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Pakistan: A key to open democracy

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By Kalpana Kannabiran

“The issue of the rights of sweepers and scavengers has never entered the mainstream legal consciousness in the country,” wrote UpendraBaxi in Law and Poverty: Critical Essays. “Nor have the Bar and the Bench, and the mushrooming legal aid and advice programmes shown any awareness of the exploitative conditions of work imposed upon the scavengers and sweepers under the employment of municipal corporations or related local bodies… [T]he exploitative conditions of work constitute governmental defiance of the law and the Constitution, which can be best summed up as a crucial component of overall governmental lawlessness in the country since Independence.”
Written in 1988, Prof.Baxi’s lines remain disconcertingly relevant today. We struggle against the caricaturing of this extremely stigmatising, violently exploitative and degrading form of forced labour by a government and civil society that showcases empty rhetoric and ceremony around “cleanliness”, while decimating an entire class of citizens through callous neglect with impunity.
There has been a steady rise in deaths of conservancy workers, and a steadier normalisation of the risks to life they bear on a daily basis. Why don’t sewer deaths bring the country to a grinding halt, as they should? Will a general strike of all conservancy workers across the country bring the country to its knees? Because then, it will not be a question of prime-time jingles on a clean India; the focus will shift on each of us to take the moral and physical responsibility of cleaning our own sewers and keeping ourselves free of the risk of toxic death.
To return to Prof.Baxi’s concerns on the place of law: Article 17 of the Constitution of India states: “Untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of Untouchability shall be an offence punishable in accordance with law.” This is a fundamental right and therefore justiciable and enforceable by courts, which shall call governments to account.
In 2009, the Delhi High Court, in Naz Foundation v. NCT of Delhi, invoked BabasahebAmbedkar’s delineation of constitutional morality in asserting the urgency of decriminalising consensual sexual relations proscribed by Section 377 of the Indian Penal Code. The court cited a second provision as well: Article 15(2) which prohibits any form of horizontal discrimination drawing again from the experience of untouchability that obstructed the universal use of public places, restaurants, water sources, etc. We witnessed last month a triumphal return of constitutional morality as a guiding principle for constitutional interpretation. A five-judge bench of the Supreme Court of India, in Navtej Singh Johar v. Union of India, deployed this framework to reaffirm the rights of LGBTQ and all gender non-conforming people to their dignity, life, liberty, and identity.
The genealogy of Ambedkar’s signposting of constitutional morality may be traced to the strength of anti-caste resistance and the abolition of untouchability. It is from this context that constitutional wisdom was applied to analogous situations of oppressions based on sexuality. It is time to call the government to account through a recursive method that takes us to the original constitutional proscription of untouchability, armed with the wisdom of the Navtej Singh Johar case.
The first aspect is the importance of judicial empathy. In a violently exclusionary society, the application of the Constitution to lives as lived is an extremely emotional moment. We have people from India’s most oppressed castes dying painful deaths without dignity in the sewers of the same city where the court sits. There is neither accountability nor due diligence on the part of the state. The time for the expression of judicial empathy is now. Justice Indu Malhotra’s lines in Johar are apposite: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”
Given the urgency, with people dying daily despite constitutional and statutory protections, how do we right these historical wrongs, or at least “set the course for the future”? We are all agreed that the de minimis approach is bad law — rule by law rather than rule of law, as it should be, to echo Justice D.Y. Chandrachud. The fact that it is still possible for people to be sent into sewers without protection, and to be forced to perform degrading labour is enough for us to sit up and take note. Outgoing Chief Justice of India Dipak Misra set out four cardinal corners of the Constitution: Individual autonomy and liberty; equality sans discrimination; recognition of identity with dignity; right to privacy. He also underscored the centrality of fraternity to the constitutional value system. These signposts require us to contemplate and act on the meanings and expressions of “intrinsic dignity” for conservancy workers and safaikaramcharis.
If “self-determination and the realisation of one’s own abilities” lie at the core of personhood, how would forced, unsafe and degrading labour, and persistent untouchability figure in this new constitutional imaginary? In the case of safaikaramcharis, we are today witness to the “violation of fundamental rights that strikes at the root of their existence” (Justice Misra), and there are no visible pathways to freedom in this virulent caste society. Lest we forget, untouchability is a crime under the Constitution.
Important for citizen consideration today is the fact that the Supreme Court, in deciding on the unconstitutionality of Section 377, recognised that the four corners of the Constitution rest on a social reality steeped in prejudice, stereotypes, parochialism, bigotry, social exclusion, and segregation. If decriminalising “unnatural” sex is one of the “necessary steps on the road to democracy”, abolition of untouchability in all its forms remains an unrealised constitutional right.
The lesson on the importance of intersections in constitutional reasoning today is brought home to us in this case in yet another way. There is recognition by the court that majoritarian governments/sections work hard to keep oppressive structures in place, and that it is the duty of the court to place questions of liberty, equality, and dignity out of the reach of majoritarian impulses. The sanction for manual scavenging lies at the heart of majoritarian mindsets and structures. It is part of an ideological framework that permeates the institutional apparatus of government. If, as Justice Misra observes, “the sustenance of fundamental rights does not require majoritarian sanction”, can we call for some constitutional-procedural deliberation on the “progressive realisation of rights” in this instance? The principle of non-retrogression in the matter of fundamental rights has now been unequivocally stated. But on our streets, we only observe it in the breach especially in the case of manual scavengers.
To end with Ambedkar: “We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy.”

 

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Opinion

War or peace?

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By Dr Akmal Hussain

Foreign Minister Shah Mahmud Qureshi on Sunday, April 7, in a press briefing in Multan, announced that the government had “reliable” information that India was planning another attack on Pakistan. He revealed that during a meeting of the Indian Cabinet Committee on Security, the three service chiefs had indicated that they were ready with plans of multiple strikes against Pakistan across a wide front and were awaiting a “political nod”, which was duly given by PM Modi during the meeting.
After the political boomerang of the failed Balakot strike, simple statistical theory would suggest to the military mind that the larger the number of strikes next time the higher the probability of at least one succeeding. The chances of partial success would increase if the air attack is across a wide front: the defending air force would have to spread itself thin and so the number of intercepting aircraft that could be fielded against any one group of attackers would be reduced.
Such a military adventure by India would not simply be a repeat strike after Balakot. It would be a precipitous escalation, fraught with the risk of full-scale conventional war that could quickly lead to a catastrophic nuclear exchange. When India suffered a setback in the Balakot engagement, they reportedly readied themselves for a missile strike against three Pakistani cities on the night of February 27.
There is no technology in existence that can determine whether or not incoming missiles have a nuclear payload. So Pakistan’s declaration that they would launch triple the number of missiles in retaliation, as soon as Indian missiles left their launch pads, carried the grim possibility of a nuclear war in the Subcontinent. If we had come so close to Armageddon soon after even a single abortive strike, imagine how much greater would be the risk of escalation to the nuclear level during a full-scale conventional war.
At present, and in the foreseeable future, two aspects of the structure of the India-Pakistan relationship create a hair trigger that can quickly and repeatedly bring the two countries to flashpoint. First, a popular freedom movement in Kashmir that, despite their protracted coercion, Indian security forces have been unable to suppress. It has instead produced a pantheon of martyrs and a new generation of militant youths willing to sacrifice themselves for freedom. Under these circumstances the internal dynamics of the Kashmiri movement can generate acts of violent rebellion against Indian troops at any time.
Second, on the other side of the border for many years non-state groups of militant extremists who have off and on received patronage continue to exist. The toxic mix of these two elements creates an environment in which spectacular acts of violence by Kashmiri youth could be blamed on “Pakistan-based terrorists” by India. This could intensify tensions, precipitating another military conflict. The past cannot be taken as a guide to say how it will end, whether in peace or nuclear war.
Given the firepower of modern conventional weaponry, significant loss of territory can occur during the initial onslaught that could escalate to the use of battlefield nuclear weapons. Once nuclear weapons are used on enemy troops, all-out nuclear war would follow. The recent history of India-Pakistan military conflict however has shown that even before a full-scale conventional war, a limited, localised battle can bring the two sides to the nuclear precipice.
For example, during the Kargil conflict in 1999 when the then prime minister Nawaz Sharif flew to Washington to ask the then US president Clinton to help end the conflict, he was shown satellite pictures of nuclear weapons being loaded onto F16s as evidence for a shocked PM of how close the two countries were to a nuclear war. Then again during the first two days of the February 2019 conflict involving limited Air Force engagements, nuclear missiles were reportedly readied on the night of February 27 for use by both sides.
So far these confrontations have induced timely intercession by the international community and peoples of the Subcontinent have survived by the skin of their teeth. But what a future confrontation will bring, whether we live or die in a nuclear war is inherently uncertain. Its probability cannot be estimated.
Some take comfort in the fact that seven confrontations in the past did not result in full-scale war as international pressure to defuse tensions worked. However, this 100 percent success in preventing war in the past cannot be used as a basis for saying it will not occur the next time around. This is because in society as much as in the relationship between states the averages of the past do not necessarily hold into the future. This is unlike natural phenomena where averages of the past as expressed in natural laws do hold into the future.
For example, take the law of gravity: if you had dropped an object and it fell to the ground yesterday, there is a high probability that it would fall again if you dropped it tomorrow. But in society, probability estimates which are essentially based on projecting the past into the future are not possible in principle. The pattern of social phenomena and human behaviour observed in the past can in the future be shattered by unique events or a combination of unique events.
As the preceding discussion argues, even a limited conventional conflict following a terrorist incident can quickly escalate to the nuclear threshold. It is vital, therefore, for the two countries supported by the world community to address the explosive structure of a situation that leads to repeated military confrontation.
Millions of citizens in both countries are mired in poverty, illiteracy and disease. Thousands of children are dying at birth every day; of those who survive birth, thousands die before they are five years old. Of the children who live beyond five years, millions are suffering from malnutrition, their bodies stunted, their brains dulled. Millions of children roam the streets and alleys, deprived of quality education, abandoned by society and state and living without hope. Instead of halting this massacre of innocents together, the two states are marching in lockstep to a nuclear catastrophe.
It is time for the leaderships of both India and Pakistan to reflect on the irrationality and inhumanity of using proxy wars or ‘surgical strikes’ as a means of achieving national security. The power of a nation lies not in following the course of mutual annihilation but pursuing the path of peace for the welfare of its citizens. The leaderships of the two countries should dip their cupped hands into their shared civilisational well-springs. Imbibe the sense of compassion and human solidarity to care for our children rather than killing them.

 
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Rubbing salt on the wounds:

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By Aleem Faizee

Another assault on the people of Malegaon – this is how a shopkeeper in Malegaon reacted to the news of the BJP fielding Sadhvi Pragya Singh Thakur from Bhopal against Congress’ Digvijaya Singh in this Lok Sabha election.
It’s like rubbing salt on our wounds, another Malegaon resident said.
For the people in Malegaon, the announcement of Pragya Thakur’s candidature has brought back the ghastly memories of 29 September 2008, when the city was rocked by a bomb blast. Thakur is facing trial in the case.
On the night of the blast, it was about 9.40 pm and people were about to finish Salaat-ut-Taraweeh – special night prayers offered during the month of Ramadan – when they heard a loud sound of explosion. At first, they thought it could be a cylinder blast accident. But it soon emerged that it was a bomb blast.
The blast spot was just metres away from the Ladies Fashion Market at Anjuman Chowk where a huge crowd of women and children were busy shopping for Eid al Fitr. There was chaos near Bhikku Chowk – the site of the blast. People carried the bleeding victims, more than a hundred, to hospitals using whatever means they could find.
The blast claimed six lives. One of them was 5-year-old Farheen Shaikh who was out to buy some snacks and was on her way back home to have Ramadan dinner with her grandmother.
Among the injured was Abdullah Jamaluddin Ansari of Shakeel Transport. The 75-year-old man, during initial investigation, had said he had noticed the LML Freedom motorcycle, which was later traced to Sadhvi Pragya Singh Thakur and led to her arrest, parked in front of his office since afternoon that day. He had also informed the police chowki, a stone’s throw away from the blast site, but claimed that no action was taken.
Javed Ansari, owner of a photocopier shop, was also injured in the Malegaon blast. It took him over three years to recover and resume work.
But for these blast victims, life has never been the same since that September night.
While Javed Ansari and the family of Farheen Shaikh left the locality after the blast, Shakeel Transport’s Abdullah Ansari died last year. Following the blast, Ansari often looked at the wall clock in his shop, which had stopped working at 9.37 pm – the time of the blast – and waited for justice.
One doesn’t know how he would have reacted to the news of Sadhvi Pragya Singh Thakur joining the Bharatiya Janata Party (BJP) and contesting the Lok Sabha election.
By fielding Sadhvi Pragya, the Bharatiya Janata Party (BJP) wants people to believe that she and other accused arrested in various blast cases were ‘framed in fabricated cases’ and that ‘saffron terror’ is a myth.
But while doing so the, BJP has undermined the fact that Sadhvi Pragya Singh Thakur still remains a key accused in the 2008 Malegaon blast case. As per court papers, the first evidence that led to her arrest was the LML Freedom motorcycle that was registered in her name and was used to plant the bomb. There are also some audio tapes and visuals too. Based on these evidences, the Bombay trial court judge had observed that there was enough ground to establish Sadhvi Pragya Singh Thakur’s role in the blast.
Ironically, while nominating Sadhvi Pragya Singh Thakur as the party candidate, the BJP did not think about the kind of message this would send to all the world leaders with whom Narendra Modi has often taken up the issue of terrorism.
The people of Malegaon, who had been hearing about the pressure on some officers and public prosecutor Rohini Salian ‘to go soft’ in the case, have almost lost all hope of getting justice. Wife of Mumbai ATS chief Hemant Karkare – the officer who initially investigated the case – had turned down then-Gujarat chief minister Narendra Modi’s monetary compensation after 26/11 attacks.
Therefore, the BJP’s decision to field Sadhvi Pragya Singh Thakur in this election is neither shocking nor surprising for most people in Malegaon. But it is painful, especially for the blast victims and their families.

 
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Majboot Sarkars Overrated?

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By Amir

Prior to the 1990s, coalition governments in Indian politics were considered to be an aberration and not particularly desirable. The lack of coalitions in India was clearly tied to the one-party preponderance of the Congress. So, when the party sensed defeat in the 1989 Lok Sabha election, it tried to remind voters of how shambolic the 1977 Janata government had been.
The VP Singh-led National Front government formed in 1989 was perhaps the strangest political entity that people had witnessed in Indian politics. Propped up by the Left parties on one side, and the right-wing BJP that provided support with its 86 seats on the other – the government proved to be short lived.
The grand old party then supported the Chandrashekhar Singh government for four months, after which it decided to withdraw support and elections in 1991 brought back a Congress-led coalition government in the country. With that, the era of coalition politics was well and truly upon us.
Coalition governments were the new normal in Indian politics and would continue to be so until 2014, when the Narendra Modi-led government became the first in three decades since 1984, to win a clear majority.
In 1996, there was a short-lived Vajpayee-led BJP government for 13 days, followed by the rather soporific one led by HD Deve Gowda that lasted until 1997. After that, IK Gujral led the United Front coalition government that lasted from April 1997 to March 1998.
By then, the political scenario of the country was beginning to look a bit like a game of musical chairs. However, things stabilised with Atal Bihari Vajpayee returning in 1998, hanging on for a year and then getting re-elected in 1999 to finally last a whole term.
After that, with a full decade of the Congress led United Progressive Alliance leading the way, Indian politics developed a version of the two party system, rather, a two coalition system. Numerous political parties have coalesced around BJP and the Congress in the form of the National Democratic Alliance and the United Progressive Alliance, respectively.
Congress governments in coalition have brought about some of the most momentous and far-reaching changes. It was the Narasimha Rao-led government that introduced the economic reforms, which for better or worse, changed the country tremendously.
One simple indicator of the worth of coalitions is the fact that many thought that the UPA-I government was too hobbled by the presence of the Left, as it was a hindrance to the economic reforms associated with Congress governments since 1991.
The withdrawal of Left support, followed by the more emphatic victory that led to UPA-II in 2009, was supposed to bring in a more decisive and unfettered government. Yet, it is the UPA-I government that is remembered for the succession of rights-based legislation it introduced, while UPA II has come to be associated with crony capitalism.
Similarly, the NDA-I government of Vajpayee, with all of its coalition pulls and pressures ensured two things. First, the core and often contentious BJP issues, which are Article 370, Babri Masjid and Uniform Civil Code, were relegated to the back-burner.
Second, the Vajpayee-led BJP government could well and truly be said to have a fringe and a centre, with the fringe remaining where any fringe should belong.
However, the ruling BJP government of the day has once again brought the core contentious issues to the forefront. It has also ensured that the fringe encompasses the party uniformly, leaving no hint of nuance or differentiation.
What this suggests is that weaker coalitions may actually perform better. More importantly, coalitions are able to more naturally weave in the vital regional parties that act as breakwaters in the path of potentially elective despotism.
Are majority governments over-rated?
What have supposedly strong and stable majority governments been able to do? Have they taken decisive measures or brought about ‘big-ticket economic reforms’, untroubled by the petty pulls of coalition partners?
Take the 1984 Rajiv Gandhi government with its mammoth majority of above 400 hundred seats. In less than two years, it started playing communally divisive politics around the Babri Masjid and Shah Bano issues.
The Congress thought it was being cleverly even handed by dealing out both majority and minority communal cards. The drift in the Rajiv Gandhi government could be sensed right in the middle of its term when it lost badly in the Haryana assembly elections of 1987. It lost the hugely symbolic Allahabad by-election in 1988 to V.P. Singh, and the rest we are prone to saying, is history.
The question then is this: Could the supposed strength and stability provided by majority governments be overrated? What has the Modi government achieved on the back of its huge mandate? Has it squandered that majority much like the Rajiv Gandhi led government of 1984-89? Can Modi return to power? This has been a bit of a see-saw question.
When Modi’s government came to power with a huge landslide, or ‘tsunami’ if you will, conventional wisdom was that he was here to stay for at least two terms. The UP assembly elections in 2017 seemed to confirm this. After that, it has been more of a will he/won’t he guessing game. The jury is well and truly out on this one.

 
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