By Gautam Bhatia
Last week, a Ministry of Home Affairs (MHA) notification authorising 10 Central agencies to intercept, monitor, and decrypt online communications and data caused a furore in both Parliament and the wider civil society. The notification was described as an incremental step towards a surveillance state. The government’s defence was equally swift: it protested that the notification created no new powers of surveillance. It was only issued under the 2009 Information Technology Rules, sanctioned by the previous United Progressive Alliance government. The 10 agencies had not been given a blank check; rather, specific surveillance requests, the government contended, still had to be authorised by the MHA in accordance with law.
But whatever one makes of the government’s defence, the MHA notification lays bare the lopsided character of the surveillance framework in India, and highlights an urgent need for comprehensive reform.
The existing surveillance framework is complex and confusing. Simply put, two statutes control the field: telephone surveillance is sanctioned under the 1885 Telegraph Act (and its rules), while electronic surveillance is authorised under the 2000 Information Technology Act (and its rules). The procedural structure in both cases is broadly similar, and flows from a 1997 Supreme Court judgment: surveillance requests have to be signed off by an official who is at least at the level of a Joint Secretary.
There are three features about the current regime. First, it is bureaucratised. Decisions about surveillance are taken by the executive branch (including the review process), with no parliamentary or judicial supervision; indeed, the fact that an individual will almost never know that she is being surveilled means that finding out about surveillance, and then challenging it before a court, is a near-impossibility.
Second, the surveillance regime is vague and ambiguous. Under Section 69 of the IT Act, the grounds of surveillance have been simply lifted from Article 19(2) of the Constitution, and pasted into the law. They include very wide phrases such as “friendly relations with foreign States” or “sovereignty and integrity of India”.
Third, and flowing from the first two features, the regime is opaque. There is almost no information available about the bases on which surveillance decisions are taken, and how the legal standards are applied. Indeed, evidence seems to suggest that there are none: a 2014 RTI request revealed that, on an average, 250 surveillance requests are approved every day. It stands to reason that in a situation like this, approval resembles a rubber stamp more than an independent application of mind.
To arguments such as these, there is a stock response: the right to privacy is not absolute. Surveillance is essential to ensure national security and pre-empt terrorist threats, and it is in the very nature of surveillance that it must take place outside the public eye. Consequently, the regime is justified as it strikes a pragmatic balance between the competing values of privacy and security.
This is a familiar argument, but it must be examined more closely. First, let us clear a basic misconception: it is nobody’s case that privacy is absolute. The staunchest civil rights advocates will not deny that an individual reasonably suspected of planning a terrorist attack should be placed under surveillance. The debate, therefore, is not about ‘whether surveillance at all’, but about ‘how, when, and what kind of surveillance’.
In this context, the evidence demonstrates clearly that a heavily bureaucratised and minimally accountable regime of surveillance does nothing to enhance security, but does have significant privacy costs. For example, while examining the U.S. National Security Agency’s programme of mass surveillance, an American court found that out of more than 50 instances where terrorist attacks had been prevented, not even a single successful pre-emption was based on material collected from the NSA’s surveillance regime. Indeed, such a system often has counterproductive effects: a government that is not checked in any meaningful way will tend to go overboard with surveillance and, in the process, gather so much material that actually vital information can get lost in the noise. In the famous ‘privacy-security trade-off’, therefore, it is exceedingly important to assess the balance on the basis of constitutional principles and fundamental rights, rather than blindly accepting the government’s rhetoric of national security.
After the Supreme Court’s 2017 judgment in K.S. Puttaswamy v. Union of India (‘the right to privacy case’), the constitutional contours within which the questions of ‘how, when, and what kind’ have to be answered have been made clear. Any impingement upon the right to privacy must be proportionate. One of the factors of the proportionality standard is that the government’s action must be the least restrictive method by which a state goal is to be realised. In other words, if the same goal — i.e., protecting national security — can be achieved by a smaller infringement upon fundamental rights, then the government is constitutionally bound to adopt the method that does, indeed, involve minimal infringement.
Under these parameters, there is little doubt that on the three counts described above — its bureaucratic character, its vagueness, and its opacity — the existing surveillance framework is unconstitutional, and must be reconsidered. To start with, it is crucial to acknowledge that every act of surveillance, whether justified or not, involves a serious violation of individual privacy; and further, a system of government surveillance has a chilling effect upon the exercise of rights, across the board, in society. Consequently, given the seriousness of the issue, a surveillance regime cannot have the executive sitting in judgment over the executive: there must be parliamentary oversight over the agencies that conduct surveillance. They cannot simply be authorised to do so through executive notifications. And equally important, all surveillance requests must necessarily go before a judicial authority, which can apply an independent legal mind to the merits of the request, in light of the proportionality standards discussed above.
Second, judicial review will not achieve much if the grounds of surveillance remain as broad and vaguely worded as they presently are. Therefore, every surveillance request must mandatorily specify a probable cause for suspicion, and also set out, in reasonably concrete terms, what it is that the proposed target of surveillance is suspected of doing. As a corollary, evidence obtained through unconstitutional surveillance must be statutorily stipulated to be inadmissible in court.
And last, this too will be insufficient if surveillance requests are unopposed — it will be very difficult for a judge to deny a request that is made behind closed doors, and with only one side presenting a case. There must exist, consequently, a lawyer to present the case on behalf of the target of surveillance — even though, of course, the target herself cannot know of the proceedings.
To implement the suggestions above will require a comprehensive reform of the surveillance framework in India. Such a reform is long overdue. This is also the right time: across the world, there is an increasingly urgent debate about how to protect basic rights against encroachment by an aggressive and intrusive state, which wields the rhetoric of national security like a sword. In India, we have the Supreme Court’s privacy judgment, which has taken a firm stand on the side of rights.
Citizens’ initiatives such as the Indian Privacy Code have also proposed legislative models for surveillance reform. We now need the parliamentary will to take this forward.
Either way, the news is bad for Pakistan
By S.Akbar Zaidi
When Asad Umar, Finance Minister of Pakistan, returned from Washington after attending the Spring meetings of the International Monetary Fund (IMF) and the World Bank a few days ago, the first task he had in front of him was to deny the strong rumours that he was being demoted to be the petroleum minister. The rumours died down at that moment, but on Thursday, he was sent packing. He was, indeed, offered the petroleum ministry, which he has declined. (Dr. Abdul Hafeez Sheikh, a former Adviser under General Musharraf, has been named the adviser on finance, adding to the growing list of the Musharraf Cabinet in this current government.) At a moment when Pakistan’s economy is facing a major crisis, it also has no finance minister now. Whoever will take the new job will have to face challenges they may neither be prepared for nor experienced enough to deal with.
Pakistan’s economy has been ruined in the last eight months since when Imran Khan became Prime Minister and his party, the Pakistan Tehreek-e-Insaf (PTI) formed the government. Almost every indicator has deteriorated substantially. For example, inflation, at 9.4%, is at its highest level in five-and-a-half years and is likely to rise to double digits for the months ahead. The rupee continues to lose value every other day, which adds to further inflation especially with the oil price on the way up. More devaluation is expected over the next few months especially when the government gives in to yet another IMF programme. The fiscal deficit is about to hit more than 6% of GDP, and even a cut in development expenditure will not stop this rot, as defence spending and interest payments continue to rise. Pakistan’s exports which have been stuck at around $26 bn for years, despite the 35% devaluation of the rupee over one year, have barely budged. The government owes power producing companies huge amounts of money — known as the circular debt — which continues to accumulate, and interest rates are also going up making the cost of business even more uncompetitive. The State Bank of Pakistan recently lowered the expectations of the GDP growth for the current fiscal year to an eight-year low, to around 3.5%, an estimate which was reduced further by the IMF and the World Bank to a dismal 2.9% for the current fiscal year, and expected to fall further over the next three years.
The GDP grew by 5.8% in the last fiscal year, the highest in 13 years. By all accounts, Pakistan’s economy is in a dismal state.
A major reason why the economy has taken such a sharp plunge, with GDP growth being halved within a year, is on account of the mismanagement and incompetence of the current government and by its economic team. On top of that, there has been the hubris led by and manifested in Mr. Khan, once saying that he would rather commit suicide than go to the IMF, popular slogans when one is the main nuisance factor in the opposition, but quite embarrassing as Prime Minister of a country facing a major economic meltdown.
The economic problem Pakistan faces at the moment, has two aspects to it, and is a major case of ‘damned if you do and damned if you don’t’. One reason why Pakistan’s economy is in such a mess is because the arrogance and bravado of Mr. Khan, which was mimicked by his economic and finance team, has come to haunt all of them. For eight months the economy has been mismanaged because of the fact that the then newly-elected government in August did not do what it should have. It was almost certain that whichever party would have won the elections of July 2018, it would ask the IMF for a major structural adjustment loan. At that time, there did not seem to be many alternatives. Mr. Khan’s strategy was to run to a few of Pakistan’s friends begging for money, and to not bow his head in front of the IMF. By not submitting to the IMF then, they now have no option but to submit almost a year later. A non-IMF policy and programme was always preferred and a better option in August last year, but the incompetence of Mr. Khan, matched with vanity, did not allow for reforms to be undertaken, and has only made matters far worse.
So, after having said that they won’t go to the IMF, that’s exactly where they are now. From finding (and failing at) alternatives to revive Pakistan’s economy, the finance minister has had to find ways to convince the IMF that Pakistan needs the IMF. The reasons for the rumours of him being dismissed from his post, should have been based on his poor performance of running the economy, but they shifted to how he wasn’t able to cut an IMF deal a few days ago when he was in Washington. The fact that he was not able to meet the U.S. Treasury Secretary, Steven Mnuchin, nor the IMF head, Christine Lagarde, on this visit, was seen as yet another sign of this failure by the Pakistani media. Nevertheless, the IMF deal is now a certainty, and although the finance minister has been replaced, there was probably no need for a replacement. When the IMF implements its strict conditionalities and adjustment programme, to which the finance minister and the country supposedly ‘agree’, the finance minister becomes redundant and is simply the bearer and front for bad news and tough conditions. The new finance Adviser will fit this role perfectly.
The new IMF programme, the biggest Pakistan is expecting to receive, to be between $6-$10 bn, which is almost a certainty now, is going to make things far worse for all Pakistanis, and especially for the working people already dealing with prospects of a marked economic slowdown and high and rising inflation. The IMF will further cut the minuscule development expenditure left, although defence spending will remain a matter of ‘national security’ never discussed in Parliament, hence, not to be touched. The IMF will ensure austerity, stabilisation and will cut the growth rate further. It will insist on further devaluation, or ‘adjustment’ of the rupee, as it calls it, causing greater inflation, and will insist on raising utility prices. In every respect, the people of Pakistan will face the prospects of fewer jobs, rising prices and an economy which is now the worst performer in all of South Asia.
This will be the 13th IMF rescue package for Pakistan’s governments and its elites in less than four decades. Each time there is an economic crisis created due to mismanagement, the elite remain under-taxed, the IMF and World Bank jump in to save them. Usually, Pakistan’s governments in the past, especially the military, leverage Pakistan’s so-called geostrategic position and situation and gain undue access, with the U.S. having been Pakistan’s biggest champion and supporter. As global power shifts and the region changes, so has Pakistan’s position in it. One of the stumbling blocks to the deal this time has been the IMF’s insistence that Pakistan reveal the financial deals made with China, including financial loans, as well as the $60 billion China-Pakistan Economic Corridor. If Pakistan doesn’t take the IMF loan, it is in a mess. If it takes the loan, it is in a bigger mess. Either way, the news is bad.
Modi & Shah are out to conquer the country
By Shekhar Gupta
In the course of my usual trawling of the Hindi media, I am struck by lyrics from a very distant, faded past. It was Kavi (poet) Pradeep’s dire warning to India to watch out for threats from traitors within. These deadly enemies, the song featuring mega star Rajendra Kumar and sung in Manna Dey’s stirring voice said, were hiding in our own homes, and menacing us over our walls: “Jhaankrahehainapnedushman, apniheedeewaron se/sambhalkerehnaapnegharmeinchhupehuyegaddaron se”. It goes on to warn the patriot in us: “Hoshiyartumkoapne Kashmir kirakshakarnihai” (awake, for you have to also protect your Kashmir).
This was for Mahesh Kaul’sTalaq, released and nominated for the Filmfare Awards in 1958. Why has this again popped up in the heartland chatter?
You will also find references that Nehru so disliked the song, as it insinuated that many fellow Indians were enemies, that he banned it. And of course, facing a war in 1965, LalBahadurShastri lifted the ban. Just see, the argument goes, how relevant is this song again today. When the enemy is at the gates, and millions of traitors hide within our homes. Never mind the facts, of course.
In 60 years, after winning two-and-a-half wars, dividing Pakistan into two and becoming a $2.7 trillion economy, you would have thought we were much too secure, prospering and optimistic to bring back paranoias of the past.
But, after traversing large parts of India, in the Hindi heartland and the South, I have to report with humility that the contrary is exactly what the BJP under NarendraModi and Amit Shah has been able to achieve. At a time when India should be feeling at its most secure, internally and externally, they’ve managed to convince large enough sections of the voters, especially the tens of millions of young who learn their history from WhatsApp and believe India came out of the dark ages in 2014 that the dangers of their grandparents’ era have returned. So, who else can you trust to fight these but a strong, aggressive and fearless leader who doesn’t think twice before sending commandos on surgical strikes or jets on bombing missions in enemy territory?
With the situation on the economy and jobs grim and the crisis so palpable that it couldn’t be “fixed” with propaganda, we had anticipated Modi-Shah turning this into a “deshkhatreymeinhai” national security election. We can now say they’re succeeding.
There are three pre-requisites to building a ‘national security’ election. The first, an aggressive, even paranoid redefinition of the national interest. Second, a formidable foreign enemy a true nationalist detests, hates and fears. And most important, a Fifth Column within, consisting of collaborators and sympathisers of the same enemy. Then, you go out and seek votes against those no one can morally or politically defend. To call this merely politics of polarisation is an understatement. It is enormously more diabolical, and effective.
The key to building such a popular concept of the national interest, you first need a sharp definition of identity. American strategist and Harvard professor Joseph Nye Jr., writing in Foreign Policy, calls the national interest a “slippery concept, used to describe as well as prescribe foreign policy”. He then goes on to quote Samuel Huntington in the same journal, arguing that “without a secure sense of national identity”, you cannot define your national interests.
I bet you have figured where I am headed. But, just in case you haven’t, that identity is Hindu and the core of Indian nationalism. What’s good for the Hindus is also good for India, and vice-versa had better be true. If it isn’t, it needs fixing. And non-Hindus? Of course, they will benefit similarly. But if they complain, or don’t conform, they risk being lumped with the Fifth Column, along with liberal bleeding hearts, questioning journalists, activists, ‘compulsive contrarians’ and ‘urban Naxals’. Remember Kavi Pradeep’s warning about traitors hiding in your bedrooms and kitchens.
This is exactly how Modi-Shah have built this campaign. The opposition — with Nyay, Rafale, secularism, equality — is playing a very different game. It’s like one side is marching to martial music while the other is tuning the tanpura. All of those ideas are important as well, but then you see, none of it will be possible unless the nation survives. And since there are such grave dangers lurking, in whose hands would you rather place the nation? A proven, decisive and strong leader or a “Pappu”, whom now you see and now you don’t?
While an all-conquering nationalist wave isn’t here, it is strong enough to neutralise some of the economic distress and disaffection. In the deepest countryside, you find young, jobless and quite hopeless people saying yes, we have nothing to do and are hurting, but we can suffer a bit for the nation. It takes some campaign genius to get so many in distant places to succumb to such mass suspension of disbelief. We may find the idea ridiculous and abhorrent. But it won’t change the reality.
The other factor is identity. This wave is generally moderated, even blocked, where large sections of the population have a determinant of political identity stronger than Hindu faith. It can be caste, as with the Vokkaligas in Karnataka and the Yadavs in the heartland and Dalits generally everywhere. It can be language and ethnicity, as in the Tamil and Telugu regions. Or religion, as with Muslims and Christians. Wherever some of these factors combine, especially as in Uttar Pradesh, this upsurge can be broken.
This is why the Congress is the biggest loser. Unlike the many regional parties, it doesn’t have the hedge of alternate identities. Its Rahul-era idea of fighting hard, even militant nationalism with liberal pacifism is unconvincing, especially given its own record of running a brutally unforgiving hard state. If you think the counter to the BJP’s campaign against “enemies and traitors” is abolishing the sedition law, you have no idea what you are up against.
What the Modi-Shah BJP has succeeded in building among large sections of the younger electorate is more than a mere sense of paranoid nationalism. It is now a dangerous jingoism, and history tells us it never ends well. The enemies have been defined, and weapons earmarked: Jets and commandos for the Pakistanis, calumny and social media lynching for those within.
The dangers and the enemy Kavi Pradeep identified, and which we thought we had vanquished, have been conveniently resurrected, and the Hindi press is the first to see that trend. Sixty years later, the current mood has been captured by a young poet, although of a different generation and style: Rap.
Check out ‘Jingostan’ from the recent Ranveer Singh-Alia Bhatt hit Gully Boy: “Do hazaaratthrahai, deshkokhatrahai/hartarafaaghai, tum aagke beech ho/zor se chilla do, sab kodara do, apnizehreeli been bajake, sabkadhyankheench lo…” (It’s 2018, the nation’s in peril/we are all caught in a deadly fire/shout, scream, scare, play your venomous fiddle, divert everybody’s attention).
Because, as the rapper concludes, Jingostan is where we now live.
BJP taking a gamble?
By Parsa Venkateshwar Rao Jr
The BJP has become a force to reckon with in Indian politics, and its leaders feel they can indulge in calculated improprieties and get away too. One of the temptations of the right-wing Hindutva party is to thumb its nose at genteel liberals on the one hand, and on the other challenge other parties, from the Hindi heartland’s socialist parties, regional parties elsewhere and the Communist parties, that if they can field candidates with questionable reputations, so can the saffron party. The fielding of Pragya Thakur, who was inducted into the BJP overnight and given a party ticket from the prestigious Bhopal LokSabha seat, is calculated to ruffle feathers. And of course there is the Digvijay Singh factor. The Congress candidate in Bhopal, a practicing Hindu, has needled saffronites for decades. He is neither a secular atheist nor a secular agnostic. He is a typical example of that ideological oxymoron — the religious Hindu who is also secular. It cannot get more maddening and provocative. Mr Singh has literally driven the BJP to find an extreme figure who would match his strident ideological posture. The ochre-robed political Hindutva propagandist has turned out to be an ideal match for Mr Singh.
In contrast, a parallel ceremony of innocence was being played out in the neighbouring capital of Lucknow, where Poonam Sinha, actress and wife of Shatrughan Sinha, joined the Samajwadi Party and was straightaway given the LucknowLokSabha ticket to fight the BJP’s candidate, Union home minister Rajnath Singh. It seemed the SP was quite aware that it does not have a strong enough political heavyweight to challenge the senior BJP leader, and that it would be better to field someone who would evoke surprise and interest, if nothing else. There was no cynicism in this as there is in the choice of Pragya Thakur in Bhopal. The BJP indulged in something of this kind of empty dramatic gesture when it fielded SmritiIrani, then a television actress, against Congress’ KapilSibal in ChandniChowk in the 2004 LokSabha election. That streak of innocence continued when the party fielded her against Rahul Gandhi in Amethi in 2014. Of course, in 2019, it has turned into a heated, even malicious, political battle between Ms Irani and Mr Gandhi in Amethi.
It is a gamble political parties are willing to take as they know they cannot field candidates in every constituency who would stand up to the stature of their chief opponent. And sometimes, the gamble even pays off. The party that tried this trick in the first place was the ever-cunning Congress, when it fielded Rajesh Khanna against Lal Krishna Advani in the 1991 LokSabha polls for the New Delhi constituency, when Mr Advani won by a whisker of 1,500 votes-plus. Similarly, in 2004, actor and political greenhorn Govinda defeated seasoned BJP leader Ram Naik in the North Mumbai constituency.
But Pragya Thakur’s case doesn’t fall into the same playful category as that of Rajesh Khanna, Govinda and Poonam Sinha. There is a cynical intent here, and it comes at the cost of tarnishing the image of the BJP, though many BJP leaders in the NarendraModi-Amit Shah era might believe it is legitimate policy. The complication for the BJP in the case of the ocher-robed Ms Thakur comes from the fact that she is an accused in a terrorism case. Had a Muslim accused in a terror case been fielded by any party, the BJP would have gone to town that the secular parties were hands-in-glove with Muslim terrorists. In fielding Ms Thakur, the BJP wants to score the polemical point that there’s no such thing called “saffron terror”. It is a difficult point to sustain because the BJP and its ideological mentor, the RashtriyaSwayamsevakSangh (RSS), and other Hindutva affiliates like the Vishwa Hindu Parishad (VHP) and Bajrang Dal) believe in resorting to violence against other religious groups, especially Muslims and Christians, on the fallacious base that Muslims and Christians are trying to convert Hindus to their faith and therefore pose a danger to Hindus. This is the bare-knuckle ideological point. The Hindutva organisations tacitly believe that resort to violence and terror is justified in certain circumstances. They would not have Mahatma Gandhi’s moral courage of denouncing violence in all circumstances. The Hindutva folk then fall into the pit they dig for others when they unconsciously believe that terrorism is justified when they use it to protect their own faith.
Ms Thakur is just an accused so far, and it could be the case the court would acquit her, either because the prosecution fails to prove its case or the court decides, based on evidence, that Ms Thakur was not involved in the bomb blast in Malegaon. The BJP and other Hindutva organisations fail to recognise that even if Ms Thakur is acquitted, the tag of “saffron terror” is unlikely to vanish as they subscribe to violence in principle.
The Hindutva ideologues also do not have the cunning sophistication to argue that the use of violence against the enemy is the prerogative of the State, and not that of the individual. So the BJP’s knee-jerk reaction to Digvijay Singh’s “saffron terror” label remains unconvincing and ineffective. The unstated reason the BJP fielded Ms Thakur is that it did not have good enough leaders in the party in Madhya Pradesh to field in major constituencies like Bhopal and Guna. In the same way as the SP did not find a matching political leader from its ranks to field against Rajnath Singh, the BJP was at a loss about fielding a credible candidate from the party ranks to stand against Digvijay Singh. The decision to field Ms Thakur is not a smart one as the party leaders may want to believe. The BJP veers off from the political track and it doesn’t know what to do with the hotheads it has inducted into its own ranks. The party is also aware that people will not accept its Hindutva tantrums, and if it wants to attain political legitimacy it has to spurn its own variant of ideological frenzy. Ms Thakur doesn’t pose any challenge to India’s polity, but her presence threatens the BJP from inside. It must restrain its inner demons if it wants to govern the country. The joke then is on the BJP.