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The competing visions behind two judgments

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By rghya Sengupta

Two judgments by the Supreme Court and the Meghalaya High Court in the last week epitomise the perils and promises of the delicate separation of powers framework that underlies governance in India. The Supreme Court, in a challenge to the Rafale acquisition process, rejected requests for quashing the process and setting up a court-monitored probe. In distant Shillong, a single judge of the Meghalaya High Court, in a case involving the non-issue of a domicile certificate, requested the Government of India and particularly “our beloved Prime Minister, Home Minister [and] Law Minister” to bring a law allowing non-Muslim minorities from neighbouring countries to live peacefully in India. Both judgments ostensibly favoured the government, but that would be a trivial way to understand them. At their core, they represent two competing models of judicial legitimacy and ways of conceptualising the judicial role in an increasingly shrill global order.

To understand what these judgments are, it would be useful to clarify what they are not. The judgment of the Meghalaya High Court is not a judicial verdict, properly understood. What makes a verdict judicial is a clear enunciation of facts and an even-handed application of the law to such facts. This case entailed a petition before it by one Amon Rana, who claimed to have been wrongfully denied a domicile certificate despite several generations of his family having lived in Shillong. In a previous proceeding in the same case, the high court had granted relief to Rana and ordered the state to give him a domicile certificate. That should have been the end of the matter. The subsequent proceedings, despite a clarification by the judge on his intentions, were entirely gratuitous, offering up a one-sided history lesson on Partition and a thinly-veiled attempt at recommending the establishment of a Hindu rashtra in the guise of a judicial order.

 

The Rafale judgment, on the other hand, is not an abdication of the judicial role as has been widely claimed. Despite calls for recall of the judgment owing to a purported factual inaccuracy, the judgment is testament to the fundamental proposition, forgotten in the heady, anything-goes world of public interest litigation, that there can be no judicial standard to determine appropriate pricing and mechanics of the offset policy in defence procurement. These are administrative decisions, which can only be interfered with on narrow grounds of irrationality, illegality or procedural impropriety. Further, setting up a court-administered probe on the mere suspicion of illegality cannot be an institutional panacea for all ills. The restraint demonstrated by the court is a manifestation of an alternative institutional vision, cognisant of the court’s own limitations in the separation of powers framework. In such a vision, judgments such as the one delivered in Shillong are entirely out of line for taking the court outside its zone of competence.

The Shillong judgment did not emanate from a vacuum — it is the product of a judicial culture where holding forth on extraneous matters not relevant to deciding a case are not only acceptable in order to explain the result reached but also celebrated. Take the Supreme Court’s order which declared the SalwaJudum, an armed, citizen vigilante group created by the Chhattisgarh government, as illegal. Although the judgment reached the correct conclusion, its rightness is irrelevant to my argument. What is noteworthy is that the court grounded its decision on its own understanding of the pitfalls of neoliberalism rather than any coherent understanding of the constitutional framework. Such a judgment sought legitimacy not from its reasoning but rather its ideological moorings leading to a particular result. Consequently, its basis for legitimacy was political, depending on whether one liked the result it reached and subscribed to the socialistic ideology espoused in the judgment.

On the contrary, the alternative vision of the Rafale judgment represents a traditionally intrinsic appeal to judicial legitimacy. In this understanding, a court is respected not because of the substantive outcome it reaches on a decision. Such legitimacy flows instead from a combination of belief in the moral uprightness of judges and the reasoning that they employ. The court speaks only to the extent necessary to decide the case without pontificating on extraneous issues of moment.

Further, it neither dramatically overturns a government decision nor does it resoundingly approve it — it simply refuses to be drawn into the political thicket in a matter where judicial standards cannot be usefully employed to address matters of governance.

It is crucial to note that such a view is not necessarily furthered by judicial restraint alone. Striking down land acquisition programmes of the Jawaharlal Nehru government by the Supreme Court, although interventionist, were products of the same view. Acquisitions were not halted because judges were pro-landowner, penning long passages on the benefits of capital accumulation; they were halted because the Constitution, as it then stood with a fundamental right to property, did not allow them. More recent judgments of the Supreme Court on transgender rights and the use of religion in election speeches are of the same ilk. Common to them all is a court which seeks legitimacy based on its reasoning and not its outcome.

In the age of social media and a global order that rests on simplistic binaries, such a quaint notion of intrinsic legitimacy may be ill-fitting. Many commentators, myself included on occasion, have been guilty of supporting or opposing Supreme Court judgments based on whether their results are palatable or not. Upholding Aadhaar, allowing women’s entry into Sabarimala, cancelling 2G licenses and denying the uneducated of Haryana the chance to contest local polls are all examples of judgments where the dominant public discourse has been based on results that the judgments reach and what they say rather than how they reason. This is not surprising — often an outcome that upholds probity, furthers rights and expands liberties seems to be the right one.

While there is, of course, a kernel of common sense to this, the Shillong judgment is the other side of the same coin of giving a free pass to poor reasoning combined with moral grandstanding. If results are going to be the bellwether to assess judgments, judges will try to work back from results that they feel, based on their own ideologies and intuitions, will be publicly supported. Given that each of the country’s 695 high court judges has the power of judicial review, and as the Shillong judgment demonstrates, this is simply too much of a risk to take.

The Rafale judgment compels us to recognise the Shillong judgment as wrong, not because it is a hagiographical paean to the prime minister. If that were the basis for wrongness, then it would depend on whether the reader shares the same view or not. This is a dangerous basis for judicial legitimacy. Instead, it is wrong, irrespective of the readers’ view, for a much more fundamental reason — because the order to consider granting automatic residence in India to non-Muslims from neighbouring countries is a political act, unsupported by any canon of law and clearly beyond the judicial function. For the judiciary to remain respected and above the hurly-burly of political legitimacy, it must keep in mind an adage that it often repeats in its judgments: eternal vigilance is the price of its own liberty.

(The Telegraph, Kolkata)


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Opinion

Congress Making It Easier for Modi

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By Prem Shankar Jha

Prime Minister Modi has convinced most of the political class that he has turned the tragedy at Pulwama into a great military and diplomatic victory against Pakistan. As a result, many of those who are in politics only to line their pockets are seriously considering jumping on to the BJP boat even at this late hour. Do they not realise that everything Modi has done since February 14 is pure theatre – whose only purpose is to somehow win an election he was destined to lose because of the amateurish performance of his government, its scant respect for the rule of law and the coming together of the opposition?
In 2014, the BJP came to power because its vote share jumped 13 percentage points from 18% to 31%. This happened because a large part of the electorate, which had seen growth slacken sharply in 2011, believed his grandiose promise to bring back “acche din”. i.e revive economic growth, and create millions of jobs. Instead, all he has created in the past five years is a factory for the suppression or falsification of economic data.
What he has not been able to suppress or misrepresent is the near-complete absence of new jobs, the loss of 11 million jobs in industry, and further millions in construction, and the rise of the totally unemployed, to 6.2% of the workforce – the highest level in 45 years.
The spreading disillusionment had already been reflected in a string of defeats in recent assembly elections and bye-elections, Modi knew that the BJP could not possibly win on its own, so he turned to that “last refuge of the scoundrel”, patriotism. Pulwama gave him the opportunity he was looking for and he has taken full advantage of it – with a ruthlessness that is strongly reminiscent of his opportunism after the Gujarat riots of 2002.
The irony, which the big media won’t focus attention on, is that the government had received no fewer than three warnings from the Intelligence Bureau and a more detailed one from the Kashmir police warning of the threat of an imminent attack. The golden rule in intelligence analysis all over the world is that for a piece of information to be taken seriously it must be obtained from two independent sources. The pre-Pulwama warning passed the test.
The CRPF brass, presumably, took the threats seriously, and asked for its jawans to be transported by air instead of sending them by road. It may have also suggested this because heavy snowfall had forced a bunching up of two convoys and was certain to slow their movement to a crawl. But the fact remains that it made the request, and the request was denied.
Who had the power to deny such a request? In such an important matter, it is unlikely that the Ministry of Home Affairs would have declined on its own. What is more, had it actually done so, the air would have been full of recrimination and denials in the days that followed. But a full month later, there has been only silence. So it is beyond reasonable doubt that the request was denied by the PMO. And that means Modi. Why he would do that, only knows.
This is not the first time Modi has tried to turn mass death into political advantage. Modi was able to use the Godhra fire tragedy and the orchestrated massacres which followed to advance the Gujarat elections by four months, win it and remain the chief minister of Gujarat for the next 12 years. It would have been against his nature not to seize the ‘opportunity’ that the death of CRPF jawans would give him.
Everything that has happened since then has been excellently choreographed theatre. First, Modi promised a ‘surgical strike ‘ in retaliation. That took place 12 days later on February 26. Within hours of the IAF attack on Balakot in Pakistan, which the Indian foreign secretary said had wiped out a key Jaish-e-Mohammad training camp, BJP ministers put out the claim that 300 to 400 terrorists had been killed. Since then, satellite imagery and explosive analysis suggests that the madrassa at Balakot is not only standing, but might have suffered very little damage, and that any casualties would have been far fewer than the political claims being bandied about. The air force itself said it would be “premature” to say how many people had been killed in the airstrike.
Satellite imagery apart, the most credible evidence has come over the phone from what a student at the madrassa told NirupamaSubramaniam, the highly respected journalist who used to be correspondent of The Hindu in Islamabad and is now with the Indian Express. He said that a ‘huge’ bomb had fallen close to the madrassa, after which the army had hastily evacuated the students to safe locations elsewhere.
But one does not have to choose between conflicting second hand reports and satellite analysis to arrive at this conclusion. The clinching proof is not even Pakistan Prime Minister Imran Khan’s assertion that there had been no casualties, but in where he made it. For this was in Pakistan’s National Assembly. Since Balakot is in Khyber-Pukhtunkhwa, is it credible that an MNA from the area would not have stood up, challenged his statement, named some of the dead and accused him of being a coward who did not want to confront India? No elected prime minister can take such a risk, and that is doubly so in Pakistan.
So if no one was killed, was it because the Indian Air Force is so monumentally inept that it missed a stationary target ­– a large complex – with not one but four precision-guided bombs? Since this idea strains credibility to the extreme, only one explanation remains: that the attacks were intended to miss.
This is the only hypothesis that explains two other anomalies: the first is US President Donald Trump’s curious statement a day earlier that he believed India would launch a reprisal attack and he would ‘understand’ if it did. The second is the care the Pakistan Air Force took not to cross the LoC in its retaliatory strike, and to attack only uninhabited sites ‘in order to show the PAF’s capability’. It is not beyond the realms of possibility that the US helped to orchestrate the two reactions in order to ensure that the conflict did not spill over into war.
From Modi’s point of view, therefore, the entire operation has been a monumental success. But for the nation, it is an unmitigated disaster. Yet, sceptics may ask, does one swallow a summer make? No, but the air strike was only the last of several other swallows. Another is the hue and cry that Modi has made over the declaration of Masood Azhar as an international terrorist. Modi tried to do this before the UN Security Council met on Pulwama, but failed. In fact, the UNSC resolution did not even condemn the Jaish-e Mohammad directly, but only acknowledged that it had claimed responsibility. Modi brought the listing matter up again after the tit-for-tat airstrikes and, predictably, China again vetoed it.
Azhar richly deserves to be both named and sanctioned, and the Chinese refusal is a blatantly immoral act born out of the basest form of realpolitik. But how much importance should India attach to a purely symbolic declaration that will change absolutely nothing on the ground? For Masood Azhar has shown no desire to travel abroad since his return to Pakistan in 2000. So the ban means nothing to him, or to Islamabad. What will India gain from such a declaration? The answer is ‘nothing’. But Modi’sself image as a lohpurush would gain a great deal. That is what he has been willing to endanger India’s relations with its most powerful neighbour for. The brinkmanship this involves is in many ways even more irresponsible than what he has shown over Pulwama.
What would have happened if the IAF’s bombs had actually killed 300 students inside the madrasa, whether he was training to be a jihadi, or was simply the son of a poor man who could not afford to pay the fees for a regular school? Would Pakistan then have responded with four attacks on vacant land in POK? And if it had done more, how long would it have been before the conflict escalated? This is the kind of risk that Modi was willing to run in his ruthless campaign to get re-elected, yet the Congress is unable to point this out to the people.
Today, the only sure way to prevent the Sanghparivar from returning to power is for the Congress to maintain a solid front with the opposition and establish a commonly agreed set of criteria for the allocation of seats among alliance partners. In the Congress, the main opposition to this common-sense strategy is coming from the local cadres whose capacity to raise money on the pretext of meeting election expenses and promising favours to donors in return, will vanish the moment their constituency is given to another party. This thinking is threatening to create three-cornered contests in UP, Delhi, MP, Bihar and other states, which could end by bringing the BJP back to power.
The only person who can overturn this suicidal strategy is Rahul Gandhi. It is time he brought his party back under his control. If the Congress is exposed as having only 5% of the vote in Delhi, and 8-10% in Uttar Pradesh, and is responsible for the failure of the mahagatbandhan, this will not only end the hold of the Nehru family over the party but also destroy its cadres’ standing in their constituencies.

 
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Opinion

How did Pulwama happen?

The Kashmir Monitor

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By T K Arun

Speaking at the 80th raising day of the Central Reserve Police Force (CRPF), National Security Adviser AjitDoval said that the nation’s leadership is capable of reacting to any terror attack, and will decide if the retaliation should target terrorists or those who control them. That is very well, but what about preventing another attack?
When a suicide bomber drove a vehicle laden with some 300 kg of explosives into a convoy of CRPF personnel at Pulwama, the result was tragedy. Over 40 security men were killed, several more wounded. The immediate reaction was sorrow, anger and outrage. The attack was claimed by the Pakistan-based Jaish-e-Mohammed (JeM), headed by Masood Azhar. In retaliation, the government sent Indian warplanes into Pakistani territory and bombed targets there.
The response was powerful, justified and recognised as such by most global powers. Pakistan came under immense pressure to release the Indian fighter pilot it had shot down and captured. India won diplomatic support for putting Masood Azhar on the UN’s sanctions list from most countries, save China.
The general reaction in India was one of jubilation at breaking free from Pakistan’s nuclear thrall. Prime Minister NarendraModi who dared to take the decision to use air power, even if only for a “pre-emptive, non-military” strike, basked in the glow of public approval. But, in the process, one vital question has been left to blow forlornly in the wind: why and how did Pulwama happen? When military men die, the popular response is one of grief and admiration for their heroism. Rarely do people ask whether those deaths were necessary.
Not though the soldier knew someone had blundered. Theirs not to make reply, Theirs not to reason why, Theirs but to do and die/ Into the valley of death/ Rode the six hundred. The Charge of the Light Brigade evokes awe of military bravery and sacrifice, but it also deplores blundered loss of life.
The mid-19th century Crimean war, in which a traditional British light cavalry brigade charged a deployment of Russian cannon, providing Alfred Tennyson with the material for his poem, caused so much needless loss of life and treasure that the resultant public outcry led to professionalization of the British army and the conduct of war.
In India, the death of brave soldiers provokes similar awe at their bravery and sacrifice. But the needed follow-through of professionalization of conduct in matters of war and security just does not happen.
The Pathankot Air Force Station was attacked in January 2016. Six soldiers were killed. India handed over proof to Islamabad of their non-State actors’ involvement in the attack, even invited their people to investigate the crime scene. Deadpan, Pakistani investigators declared that India had stage-managed the attack to malign Pakistan.
Six months later, an army brigade headquarters at Uri was attacked. It left 19 soldiers dead. India performed its surgical strikes on terror launch pads across the Line of Control and declared vindication.
Two months later, terrorists attacked an army base at Nagrota, killing seven Indian soldiers. Evidently, the surgical strikes were more effective in spawning Bollywood josh than in preventing further attacks.
After the Pulwama attack and India’s counter-attack, the National Security Adviser is again threatening retaliation for fresh attacks. Could we have some serious thought on how to prevent such attacks, foiling incipient attacks through intelligence that lives up to its name and pre-emptive action?
If we value the lives of our soldiers, we must focus on preventing such attacks, not revelling in our ability to strike back when a fresh attack happens. For that, fresh attacks must be recognised as security failures on the part of the government that cannot be offset by any subsequent show of force.
Nor is this failure at the level of policing and intelligence gathering alone. Essentially, the failure is that of politics, failure to live up to the promise and challenge of democracy. It is now commonplace for an encounter in Kashmir between India’s armed forces and separatist militants to draw a local crowd of protesters, who seek to shield the militants and help them escape. Some of these civilians end up as collateral damage. Every civilian death breeds yet more alienation and yet more militants.
One such young man drove a carload of explosives into the CRPF convoy at Pulwama.
For far too long has India sent its security forces to wage war against its own people in Kashmir, the northeast, the tribal plains and jungles of Jharkhand and Chhattisgarh. This strategy has produced alienation and discontent, propelling the conflict forward from one generation to the next. Soldiers have been killed, as well as civilians and rebels. This strategy must be abandoned.
India’s biggest strength is democracy. Democracy must be the means to resolve separatist conflict and rebellion. Brandishing the sword of retribution serves not to deter fresh attacks, but to whip up nationalist frenzy. That is not the way to honour the dead.
(Economic Times)

 
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Leaders must draw from NZ PM’s courage

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By Gopal krishna Gandhi

Wisdom in tranquillity, like courage under pressure, is admirable. But not unknown. But wisdom and courage, both, being displayed in a situation of unprecedented tension, are exceptional. If a Nobel Prize for Peace could be given to a spontaneous statement for wisdom and courage, rather to a person, New Zealand’s Prime Minister JacindaArdern deserves it. The words spoken by her after the terror attack in Christchurch were few. They are unforgettable. One single, three word sentence, the most so. Referring to the 49 or more killed, she said: “They are us”. Not “they are one of us”, or “they could have been you or me”. None of that cautious, self-insulating, self-indemnifying vagueness. Simply, they are us.
Those learned in Sanskrit scripture would call this pure Advaita, captured in RamanaMaharshi’s way of looking at things in the term “I am Thou”, captured by the Indian philosopher Ramchandra Gandhi for the eponymous title-theme of his extraordinary book. If at one level Ardern gave us a metaphysical statement, at another level she also gave us, spontaneously, a highly practical political philosophy that is critical to human survival today.
Reversing the “us” and “them” binary, throwing old concepts of otherness out of the window, giving no space to either cliché or platitude, she then said “…the person who perpetuated this violence is not”. The significance of both statements is mutual, colossal.
Almost all the targeted victims were Muslim, the attacker or attackers, white and Christian just like Ardern is. In saying that the terrorist or terrorists behind the attack may have been from New Zealand’s majority community but they do not represent it, cannot represent it, for they have done something inhuman, something that goes against civilisation, she said something that each New Zealander needs to know. She could have said she was grieved, agonised, appalled. She could have said ,as the head of government, as one who has to maintain order and uphold law, that she was horrified, angry, in righteous fury. And that would have been considered right, termed appropriate. But no, Ardern spoke from a thinking heart and feeling mind to say something that was totally different, totally timely and timeless. The perpetrators of terror are the aberration, she conveyed, the anomaly, the deviation, divergence from civility, from humanity that places them in a universal not one of us-ness. She made a difference, drew a line that was not about ethnicity but human decency. And then, in an amazingly topical observation for a world that is closing its eyes and shutting its doors to immigrants and refugees, she said, and I quote her exact words, “Many of those who will have been directly affected by this shooting may be migrants to New Zealand, they may even be refugees here. They have chosen to make New Zealand their home and it is their home. They are us.”
And in so doing, she said something that philosophers in positions of statesmanship have, like the emperor Asoka did, for their times and for all time. Being the other, being migrants, refugees, immigration or asylum seekers, being in a minority, being different, being isolated, bereft, in other words, being orphaned, is a condition that can be ours, yours or mine, at any time anywhere.
On the subcontinent of India, in South Asia, the condition is endemic. Each one of us is, in the next mohalla, a potential other.
A Christchurch-like mosque or temple exists in every city, town and village in India and can be the scene of terror attacks, exactly like the mosques in Christchurch. And since Hindus and Muslims and Sikhs now inhabit places outside India in large numbers, Christchurch repeats can happen anywhere, across the globe. What will be the effect? Perpetual revenge, retribution, vengeance. Perpetual , mutually sustaining hatred.
If extremists practising their macabre method under the name of Islam now wreak vengeance on churches and chapels with Christian congregations at prayer, the world will not have a day of peace, its religions no freedom from tension, fear, hate. No immigrant anywhere outside South Asia , whether Hindu or Muslim or Sikh will then feel secure. Nor Christians, of an ethnicity same or similar to that of Christchurch’s mass murderer.
India’s leaders have to draw from Prime Minister Ardern a lesson in spontaneously courageous wisdom or wise courage to say that victims of violence are us, and no perpetrator of violence is us. More specifically, that migrants and refugees seeking shelter in India from ethnic prosecution are in their own home. Non-refoulement could not have been defined better than in JacindaArdern’s words.
The darkness of that massacre has met the only light that can dispel it.

 
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