Dark clouds hover over          constitutional bodies

BRP Bhaskar

A woman casts her vote in a polling station. File

As India goes through a general election, the outcome of which may determine its future as a secular democracy, unseemly developments have cast long shadows over two constitutional institutions.

One of the institutions is the Election Commission which has the responsibility to conduct free and fair elections. The other is the Supreme Court or, more precisely, its powerful head, Chief Justice Ranjan Gogoi.

Justice Gogoi linked the sexual harassment allegation against him to the elections, saying it has surfaced when important cases are coming up in the election month.

The Election Commission had earned an early reputation for fairness. In the very first elections, held in 1952, the Communist Party of India emerged as the main opposition. In the second elections in 1957 the CPI came to power through the ballot in Kerala state.

As money and muscle power vitiated elections and poll rigging and booth capture were reported a Chief Election Commissioner attempted to check malpractices, exercising powers his predecessors did not use.

At that stage, the government enlarged the Commission with the addition of two members, motivated more by a desire to curb the overenthusiastic CEC than to reduce the burden on him. To ensure a level playing field the EC has framed a model code of conduct that lays down do’s and dont’s for the government as well as the contesting parties.

Prime Minister Narendra Modi and other leaders of his Bharatiya Janata Party flouted the provisions of the code without inviting any action from the EC. When aggrieved opponents approached the Supreme Court, it chided the EC.

Thereafter the EC put curbs on a television channel the BJP had launched on election eve and ordered postponement of release of a Modi biopic until after the elections. However, the EC took care to avoid giving offence to Modi. It suspended two officers who tried to check boxes which he had taken to Karnataka and Odisha on his poll tours. Two former CECs criticised its action.

All three serving EC members are persons appointed by the Modi government. While officers for some other sensitive jobs are now picked by panels which include the Leader of the Opposition, the government still enjoys total freedom in the selection of the CEC and the ECs.

The allegation against Justice Gogoi surfaced through an affidavit which a woman, who had worked as junior court assistant at the Supreme Court, sent to all the judges. She was attached to Justice Gogoi’s office from 2016 to 2018. In the affidavit, she narrates an incident of October 11, 2018, when she was posted at his home office.

Within a few days of the incident she was moved out of his office. Two more transfers followed before her dismissal in December 2018. She is now on bail in a case unrelated to the incident. Her husband and his brother, both of them head constables in the Delhi police, also faced disciplinary action and are facing criminal charges.

The Secretary General of the Supreme Court, responding to media queries to the CJI, said the woman had not complained of sexual harassment previously and appeared to be making false allegations “as a pressure tactics to somehow come out of various proceedings which have been initiated in law against her and her family for their own wrongdoings.”

The response appears to be disingenuous.  The criminal charges against her and her family members relate to events which happened before the October 11 incident but all the cases were registered after that date.

Justice Gogoi had the opportunity to set a noble example by asking his senior most colleagues to deal with the woman’s complaint.  But he chose to set up a special bench headed by himself to deal with it.

The woman’s complaint was one of sexual harassment. The CJI’s court has turned the issue into one of threat to independence of the judiciary. Former Supreme Court Bar Association President Dushyant Dave said Justice Gogoi had violated the principle that no man shall be a judge in his own case.

The Women in Criminal Law Association, a body of women lawyers, demanded a fair inquiry into the woman’s allegations in accordance with the procedure applicable to judges under the Supreme Court Sexual Harassment Regulations of 2013.

“The complainant ought to have the utmost opportunity to present her case as must the respondent to present his defence,” it said. It may take a long time for the two institutions to recover from the impact of these controversies. -- Gulf Today, Sharjah, April 23, 2019.

How to make amends for wrongs of history

BRP Bhaskar

Sikhs attend a cultural event. File

Amid the cacophony of a divisive election campaign, India on Saturday somberly marked the 100th anniversary of the most abominable crime of the British colonial regime, recorded in history as the Jallianwala Bagh massacre.

On April 13, 1919, an army contingent under the command of a British colonel, Reginald Dyer, had marched into Jallianwala Bagh, a garden on the outskirts of Amritsar in Punjab, blocked the main entrance and fired on a crowd protesting the arrest and deportation of two popular leaders, Satya Pal and Saifuddin Kitchlew, under a harsh law enacted a month earlier.

It was a time of turbulence in Punjab. But the protest was peaceful. The protesters’ number was swelled by the presence of villagers who had come to the town to celebrate Baisakhi, the spring festival.

Col Dyer reported to his chief that his men had fired 1,650 rounds and killed between 200 and 300 people. Punjab’s Lieutenant Governor Michael O’Dwyer approved Dyer’s action.

A commission appointed by the British Indian government on a directive from London found that the authorities had failed to prepare a casualty list. It cited an Indian NGO’s figures of 379 dead and about 1,100 injured, 192 seriously.   

The Indian National Congress put the casualty figures at about 1,000 dead and over 1,500 injured. The House of Lords applauded Dyer, aggravating the sense of horror in India. A year later the House of Commons censured Dyer.  As pressure for his dismissal mounted, the army asked him to resign.

Reviled in India as the Butcher of Amritsar, Dyer was hailed on arrival in Britain as the Saviour of India. The massacre became a turning point in Indian history. It gave new vigour to the freedom movement.

In a letter to the Viceroy, relinquishing the knighthood conferred on him, Nobel Prize-winning poet Rabindranath Tagore said the enormity of the measures taken by the Punjab government to quell local disturbances had, with a rude shock, revealed to Indians the helplessness of their position as British subjects.

 “I for my part wish to stand, shorn of all distinctions, by the side of those of my countrymen, who, for their so-called insignificance, are liable to suffer degradation not fit for human beings,” he added.

Mahatma Gandhi, who had helped the war effort by promoting recruitment to the army, in the hope that when the World War ended Britain would reward India with Dominion status, called for a day’s countrywide work-stoppage in protest.

The following year he launched the first of his non-violent civil disobedience campaigns.  

The massacre also gave a fillip to the incipient revolutionary movement in Punjab.  Udham Singh, a young Punjabi, shot and killed Michael O’Dwyer in London in 1940. He was tried, convicted and executed.

Udham Singh’s mortal remains were exhumed and brought to India and cremated in his village in 1974. An urn with a part of his ashes is at the Martyrs Memorial at Jallianwala Bagh. Britain and the British Indian government sought to pacify Indians’ demand for an apology with expressions of regret.

The demand, renewed from time to time, came up again on the eve of the centenary. Britain still did not go beyond regret.

However, as a nation, Britain has come to terms with the reality of the massacre, which Winston Churchill, then a minister and no friend of India, had described as “monstrous”.  Queen Elizabeth visited the Martyrs Memorial in 1997 and Prime Minister David Cameron in 2013.

History is replete with instances of such monstrosities. The Indian subcontinent had sufficient strength and resilience to survive centuries of loot. In contrast, the hapless natives of the American continents lost everything. 

What difference can regret or even apology make in such situations? Indians cannot overlook the fact that Britain built and defended its empire with the help of local kings and army recruits. Dyer’s orders were carried out by Indian soldiers.

Army excesses and cover-up are a continuing feature of Indian history. Crimes committed by foreigners in India pale into insignificance beside the monstrosities of the caste system, which, according to available information, began with the introduction of endogamy in the second century BCE. The malaise still impacts the lives of millions.

Apology without remorse can only be an empty gesture. The best way to make amends for the wrongs of history is for powerful nations and dominant groups that prey on he weak to foreswear ideas and practices that have led to unspeakable crimes.  -- Gulf Today,  April 16, 2019.  

Indigenous people’s future in peril

BRP Bhaskar

@brpbhaskar

Gulf Today

he Forest Rights Act, enacted by Parliament in 2006, presents a classic example of giving with the right hand and taking away with the left hand.

The shrinking forests are where most of the country’s indigenous people, officially labelled as Scheduled Tribes as the names of their communities figured first in a schedule of a colonial-era Act, live.

In popular parlance, the communities are referred to as Adivasis, which term means original inhabitants. 

Unwilling to concede their antiquity, the Rashtriya Swayamsevak Sangh, fountainhead of the ruling Bharatiya Janata Party’s Hindutva ideology, refers to them as Vanvasis, meaning forest dwellers. It conveniently overlooks the fact that they ended up on the hills and in the forests under pressure from later migrants.

The 2011 census put the number of tribes at 705 and the tribal population at 104.3 million, 8.6 per cent of the national total. Under the Constitution, the STs, along with the Dalits, officially termed Scheduled Castes, are entitled to reservation in Parliament, State Assemblies, the services and educational institutions.

Denudation of forests began in the colonial period. Early on it yielded some good results like re-discovery of the long-forgotten Buddhist stupa at Sanchi, near Bhopal, while cutting down trees to make railway sleepers.

Realising the damage caused to the environment, the British later embarked upon a scheme to protect the forests. They made laws which, while permitting Adivasis to remain in reserved forests and gather resources for their livelihood, denied access to outsiders. 

After Independence, people from the plains grabbed forest lands in many states, often with the connivance of politicians and officials.

In the 1970s, the Centre advised the states concerned to enact legislation to restore forest lands to the Adivasis. Accordingly laws were passed, but most governments failed to implement them.

In the wake of globalisation of the economy, national and international corporations started grabbing land for industries. In many states,  Adivasis mobilised themselves to defend their homelands. 

It was an unequal struggle, and the Adivasis often lost. However, in some instances, they were able to pack off the corporates. A notable case is that of the South Korean steel major POSCO which was forced to drop the plan to set up the world’s largest steel plant in Odisha state. 

Responding to the pleas of non-government organisations working among tribal communities, the first Congress-led United Progressive Alliance (UPA)  government, headed by Manmohan Singh, enacted the Forest Rights Act. It aimed at reversal of the erosion of the forest dwellers’ traditional rights as a result of forestry policies, encroachments and takeover of forests.   

In keeping with the spirit of the law, the government issued an order in 2009 making it obligatory to take the consent of the village council of the forest dwellers to set up any project in their area. When an Adivasi community of Odisha refused consent to an industrial group’s project in their area, the Supreme Court upheld their right to do so.  

In its second avatar, the UPA itself started whittling down the provisions of the Act to make it easy for corporates to undertake mining in the forests. Since Prime Minister Narenda Modi pulled all plugs to make it easy to do business the Act has been observed more in breach than in practice in the last five years. 

A set of petitions challenging the Forest Rights Act is now before the Supreme Court. On being told that 16 states had rejected the claims of a total of 1,127,446 forest dwellers, a three-judge bench directed the state governments in February to evict them. 

It asked the states to explain why there were no evictions so far and said it would take a serious view of the matter if they were not evicted before July 27, the next date of hearing. It is not clear why the court peremptorily issued an eviction order without hearing the Centre, waiting for the state governments’ explanations and giving the affected people an opportunity to make representations against the proposed action.

The Centre appears to have played a collusive role in the matter.  Congress President Rahul Gandhi accused the Modi government of remaining a silent spectator when the Act was challenged and attempts were being made to drive out Adivasis and small farmers from forest areas. 

Following a storm of protests across the country, the apex court stayed its order within a few days. But the peril to which the Adivasis are exposed remains.

Social justice has primacy among the objectives of the Constitution. It is the responsibility of the Supreme Court to ensure justice to the forest dwellers, one of the most vulnerable sections of Indian society.-- Gulf Today, Sharjah, April 9, 2019.

A severe blow to academic freedom

BRP Bhaskar

The decision to restrict areas of research in terms of national priorities came to light through a circular issued by the Central University of Kerala.

The Indian government has asked universities to limit research to topics related to national priorities.

Since it is the prerogative of those in power to determine the nation’s priorities and research institutions are dependent upon the state for funds, the move is a mortal blow to academic freedom. Decision-making under Prime Minister Narenda Modi is a process shrouded in mystery. It is not unusual for decisions to emanate from the Prime Minister’s office rather than the Ministry concerned.

The decision to restrict areas of research in terms of national priorities came to light through a circular issued by the Central University of Kerala (CUK) at Kasergode to the deans of the schools under it and the heads of all departments.

Dr Meena T Pillai resigned from CUK’s board of studies in protest against the decision. CUK said the decision was taken at a meeting of university vice-chancellors held in New Delhi to review the implementation of the tripartite agreement among the universities, the Ministry of Human Resources Development and the University Grants Commission.

The circular was explicit. It asked each head of department to prepare a shelf of projects to be taken up for research in the light of national priorities. The research student can choose one from the shelf. Research in irrelevant areas must be discouraged, it said.

Considering that funds are limited, the decision to set priorities for areas of research cannot be faulted. The problem lies in the Bharatiya Janata Party-led administration’s warped thinking and its leaders’ poor understanding of academic matters.

Modi’s educational qualifications are under a cloud. He claims to have obtained a Master’s degree from Delhi University but the university administration has turned down applications under the Right to Information Act seeking information about his academic record. A purported certificate released by the BJP showed his post-graduate degree was in “Entire Political Science”.  Modi’s first Minister for Human Resources Development, of which Education is a part, was Smriti Irani, the lead actress of a popular Hindi television serial. Though not a university graduate, she claimed to be a Yale alumna on the strength of her participation in a programme at its campus.

The BJP’s ideological mentor, Rashtriya Swayamsevak Sangh, has a keen interest in educational policy. Smriti Irani placed men associated with RSS in key positions and they began tampering with textbooks and syllabi to further the Hindutva cause.

When the RSS’s student affiliate fomented unrest in the Jawaharlal Nehru University, the Indian Institute of Technology, Chennai, and the Central University of Hyderabad, Smriti Irani played a supportive role. Modi, however, found it necessary to shift her to another ministry.

Gujarat’s BJP government went one step beyond the Centre. It sent to universities in the state a list of 82 subjects and said researchers should be asked to pick from them for their PhD thesis. The list was drawn up by the Knowledge Consortium of Gujarat (KCG), a body set up by Modi when he was the state’s Chief Minister, to oversee reform of higher education.

The topics listed by KCG include Modi’s Swach Bharat (Clean India) programme and various state government projects. Justifying the decision to encourage research on such topics, KCG Director AU Patel said independent analysis by researchers would help the government to improve the projects.

However, not all educationists were impressed by the argument. One scholar pointed out that if the government wants an independent analysis it should commission a study by a competent academic body like the Sardar Patel Economic Research Academy and not force it on research students.

Who decides national priorities, asked Dr Meena Pillai, whose criticism of the government move received national attention. She said faculty members of central universities were not speaking out on the issue fearing reprisals. She pointed out that those who criticised university administrations on various issues had invited suspensions and inquiries. 

In a feeble response to her criticism, CUK said the term “national priorities” was used to denote topics that would benefit economic, social and technological advancement of the nation and society. It added, “The research areas may include latest developments in nano technology, nano medicine, artificial intelligence, space research, nuclear science, sustainable development, climate change, organic farming among others.”

The university’s flaunting of new frontier themes must be viewed in the context of the peddling of pseudo-sciences by BJP leaders, led by Modi himself. Addressing an Indian Science Congress session, Modi had claimed ancient Indians knew the techniques of organ transplant and in-vitro fertilisation. He cited Hindu god Ganesha’s elephant head as the work of an ancient plastic surgeon and the 100 Kaurava siblings of the epic Mahabharata as test-tube babies. --Gulf Today, Sharjah, April 2, 2019 

Policy paralysis in Jammu and Kashmir

BRP Bhaskar

Kashmiri women during a rally.

BRP Bhaskar, Political Commentator

Along with the rest of India, Jammu and Kashmir goes to the polls during April-May to choose six members of the Lok Sabha, the lower house of Parliament. At present the state is without an elected Assembly. But the Election Commission has not scheduled fresh Assembly elections.

Since the Constitution was introduced 69 years ago it has been the practice to hold elections to the two houses simultaneously whenever possible. In fact, four states, Andhra Pradesh, Arunachal Pradesh, Odisha and Sikkim, are holding elections to the Lok Sabha and the Assembly simultaneously this time.

While announcing the poll schedule, Chief Election Commissioner Sunil Arora offered a clumsily worded explanation for not holding Assembly elections in Jammu and Kashmir along with the Lok Sabha poll.

As he put it, the decision was “based on the specific inputs and recommendation from the state government and Union Home Ministry, inputs from the political parties and other stakeholders, constraints of availability of central forces and other logistics, requirement of security forces for security of candidates in wake of incidents of violence in recent past and keeping other challenges in mind.”

The CEC’s explanation runs counter to facts on record. After the Assembly was dissolved and the state placed under President’s rule, both Home Minister Rajnath Singh and Governor Sat Pal Malik repeatedly affirmed the Central and state governments’ readiness to hold Assembly elections at any time of the Election Commission’s choice.

That was, of course, before the Pulwama suicide attack in which more than 40 security personnel were killed. But neither the Home Minister nor the Governor has publicly gone back on those commitments even after that incident.

All parties other than former Chief Minister Mahmooda Mufti’s People’s Democratic Party have favoured immediate Assembly elections.  It was in these circumstances that AG Noorani, a constitutional expert, observed that failure to schedule Assembly elections in Jammu and Kashmir along with the Lok Sabha poll shows up problems in the working of the Election Commission.

The CEC’s response to Noorani’s criticism is highly unsatisfactory. It fails to provide a credible answer to the question why the Commission, which is ready to hold the Lok Sabha poll, is unable to make the additional arrangements needed for conduct of the Assembly elections.

Jammu and Kashmir has six Lok Sabha constituencies — three in Kashmir valley, two in Jammu province and one in Ladakh. Polling in the state is spread over five days. While five constituencies will have one-day polling, in the sixth, Anantnag, polling will be completed in three phases spread over two weeks.

The schedule suggests that the ground situation in Anantnag is far more serious than the government has acknowledged publicly. Even so, the Commission’s decision raises some questions. The 87 Assembly constituencies may have a few hundred candidates. Is it beyond the state’s competence to protect them and to meet the additional requirement of men and material for the Assembly elections?  Must we let our democratic process become a hostage to militant groups?

The main obstacle to the constitutional process in the state appears to be the policy paralysis that has gripped the administration. After the collapse of his early efforts to improve relations with Pakistan, Prime Minister Narendra Modi has failed to develop a coherent approach to bilateral relations and to the Kashmir problem. Instead there have been knee-jerk reactions to developments in or relating to the state.

With the Lok Sabha elections at hand, Modi appears to let conditions in the state fester, reckoning it will pay electoral dividends. Last week the Centre banned Yasin Malik’s Jammu and Kashmir National Liberation Front, saying “it has been at the forefront of separatist activities and violence since 1988.” No recent event was cited to justify the step.

In a break with past practice the Centre decided not to send a minister to represent it at the Pakistan High Commission’s National Day reception since Kashmiri separatist leaders were also invited, although this is not the first time they have figured on the guest list.

The government informed the national media about the boycott. But it did not tell the media about Modi’s message to Prime Minister Imran Khan conveying greetings to the government and people of Pakistan on the occasion. Indians learnt of it from Imran Khan’s tweet.

All things considered, there is reason to suspect that the Election Commission has allowed the political interests of the ruling dispensation to override its constitutional obligation to hold Assembly election. -- Gulf Today, Sharjah, March 25, 2019..