Prem Shankar Jha

Mallikarjun Kharge’s election as Congress president also opens the way for more equitable alliances with the other opposition parties.

Photo: Twitter/@INCIndia

When Rahul Gandhi began his Bharat Jodo Yatra many, including this writer, wondered why he had decided to walk from the southernmost state of India to its northernmost and not from its westernmost to easternmost. This was because, with the exception of Karnataka, till Madhya Pradesh, none of the states that he planned to walk through had a Congress party left that was worth the name.

By contrast, had he decided to walk from west to east, beginning with Gujarat he would have traversed seven major states in which the Bharatiya Janata Party is in serious contention with a rival of greater or near-equal strength. In five of these, the Congress party is in power or has sizeable cadre strength, and four of those states are facing Vidhan Sabha elections between now and the end of 2023.  Gujarat is the first among them. In each of these states, the Congress has a strong cadre base that can, with only a little extra push, upend a BJP that has not delivered on a single major economic promise it has made in the past nine years. So why, one wondered had Rahul chosen to go south to north, instead of west to east? 

Today, two months later, his reasons no longer matter because two recent events have the potential to change the political calculus of victory and defeat in the coming 18 months. 

The first is the Congress’ successful completion of Mallikarjun Kharge’s election as its  president. 

The second is the warmth with which Rahul Gandhi’s Bharat Jodo Yatra has been received in the south of the country. 

Kharge’s election is a landmark because he is only the second non-Nehru-Gandhi president of the Congress since Indira Gandhi split the original party in 1969. His elevation has brought three new elements into the political calculus of  the country’s future that were not there before. The first is that it has laid to rest the suspicion that the Gandhis were determined to keep the reigns of power in their hands at any cost, and resurrected the belief that Sonia Gandhi had only been doing so because she believed that keeping a member of Jawaharlal Nehru’s family at its head was the only way to keep the party from breaking up as it had almost done before she took over the Congress Presidency in 1999.  

Rahul Gandhi at Telangana during the Bharat Jodo Yatra. Photo: Twitter/@INCIndia

Rahul reinforced this when he came to Delhi to witness Kharge’s takeover as Congress president, by refusing to meet any of the Congress chief ministers who had sought a meeting with him and refusing to take part in the selection of candidates for the Gujarat assembly election. That, he made clear, was now Kharge’s business.

His and his mother’s unflinching resolve not to give short shrift to this still strong belief within the party cannot have failed to strike  a deep chord within all Indians, but within Hindus in particular, because it resonates with two of the most powerful leitmotifs of the Arya Dharma. These are tyaaga – sacrifice – and sanyaas – renunciation. Rahul Gandhi and his mother have shown themselves to be capable of both in the wider interest of their country and their civilisation. The full impact of their renunciation will take time to sink into the people, but it has already begun to weaken the foundations of the BJP’s main appeal to the people: that the Gandhis are foreign by blood, are not Hindus, and do not even belong to the Hindu sanskriti (civilisational culture). 

The second new element is that the unexpectedly warm reception that Rahul Gandhi has received in the three states that he has visited in his Bharat Jodo Yatra so far. To understand the warmth of his reception it is necessary to look beyond the short, grudging news clips that television channels , and mainline newspapers are giving it, and revisit a TV interview he gave to GSTV, and India Today before the Gujarat elections in 2017. That interview reveals not only the immense effort he had made to understand the problems being faced by Gujarat’s unemployed youth, its farmers and its womenfolk, but also his innate warmth and considerateness towards others, including his interviewer on the programme.

None of this was coming through, indeed could come through, when he was giving stilted, prepared, speeches to large gatherings from the safe distance of a dais that was at least 10 metres from his nearest listeners. But during the Yatra people have been seeing, and interacting, with him at close quarters. So they are feeling the impact of his sincerity and innate decency, for the first time. A different image of him and his party is therefore beginning to unfold. This change of perception is apparent even in the brief commentaries of the hard-bitten reporters who have been covering the yatra at different places along the route. 

Congress workers celebrate after senior party leader Mallikarjun Kharge won the party’s presidential election, in Mumbai, October 19, 2022. Photo: PTI

There is a third new element too – Kharge’s election has cleared the way to the formation of an alliance among opposition parties that the Gandhi loyalists in the party had spared no pains to prevent without a prior assurance that it would be led not only by the Congress, but by the Gandhis in particular. Sonia and Rahul Gandhi’s withdrawal from leadership signals a formal withdrawal from the pyramidal, leader-centred party structure that had emerged within the Congress after Indira Gandhi split it in 1969. It has therefore re-opened the way for a return, in different form, to the consensus based decision-making among powerful regional leaders, that had been the mode of decision-making in the party throughout its seven decade fight for India’s independence and till the death of Pandit Jawaharlal Nehru. 

This has opened the way for the creation of a different, looser coalition that will be based not around personalities and charisma, but around shared political and economic concerns, and the need to stem the creeping destruction of India’s ethno-religious plurality that has been Modi’s goal virtually from the day he came to power. 

Just how quickly Prime Minister Modi has understood the threat that this change of perceptions poses is reflected by his most recent diatribe against ‘Lutyens Delhi’ at the annual state home ministers’ meeting in Faridabad. In it he turned his guns against ‘not only those Naxals who hold a gun but also those who wield a pen and mislead the youth by exploiting their emotions’. To his party’s determination to tame the Muslim minority through police action; to tame the political opposition through misuse of the Prevention of Money Laundering Act; and to destroy civil rights activism through fabricated charges of sedition and subversion against its leaders, Modi has now added the threat of jailing intellectuals and journalists who criticise his government in writing, under one cooked up pretext or another. 

But in politics every action gives birth to a reaction. Modi’s increasingly brazen assault on all four of the pillars of Indian democracy, has brought it home to all opposition parties that they will have to swim together if their members do not wish to perish singly. This awareness, and the desire to form a common platform, had been growing for some time but had been stalled by the Congress’ insistence that it had to be the leader because it is the only party with a strong presence on the ground in all the states of the country where the BJP is now the dominant party. 

Kharge’s election has removed this obstacle. His long association with Sharad Pawar virtually ensures that the Congress, Pawar’s National Congress Party and the Shiv Sena will fight the BJP together in Maharashtra in the next Vidhan Sabha election. Should this happen it is difficult to see how the BJP can avoid a rout in the next Vidhan Sabha elections. Unfortunately those will come after the next Lok Sabha elections where another BJP win could easily have sealed the fate of democracy in India. 

But there is another immediate opportunity to strike a blow to the BJP’s supremacy and it is only weeks away, in the Vidhan Sabha elections in Gujarat. Somewhat inexplicably, after his September 3 visit, Rahul Gandhi has so far refused to visit Gujarat at all. This inexplicable abandonment of a powerful Congress party organisation gave the state BJP chief the opportunity to tell the people that Rahul Gandhi has “no place in his heart” for Gujarat. This may be the reason why opinion polls are predicting an easy win for the BJP. But that will only happen if the discouragement of the Congress in the state by its own central leaders continues. 

One way to revive the party’s elan would be to make an informal alliance with the Aam Aadmi party which has been making steady, albeit limited inroads into mainly the disillusioned Congress vote in the cities of the state. In the October 2021 municipal elections it had secured an average of nearly 14% of the urban vote, with a maximum of 28.47% in Surat and 21.77% in Gandhinagar, at the centre of the BJP lion’s den. Surat, Rajkot and Gandhinagar account for 11.3 million of Gujarat’s population of 63 million. If Gandhinagar can be taken as a proxy for Ahmedabad, it comes to 17 million, i.e. 28% of Gujarat’s population. That could be the share of AAP’s vote in December, and most of it would have come from disillusioned Congress party voters. 

AAP convenor and Delhi chief minister Arvind Kejriwal hosts a lunch for a Gujarat sanitation worker at his Delhi residence on Tuesday, September 27. Photo: Twitter/@ArvindKejriwal.

An AAP-Congress alliance in Gujarat would therefore be a win-win for both parties, because it would not cause abstentions or a backlash vote in Congress for the BJP as has happened in UP and some other states. So it would virtually guarantee the defeat of the BJP in December. 

Were the BJP to lose Gujarat it could cut Prime Minister Modi’s political legs at the knee. This could strengthen the disquiet in the Rashtriya Swayamsevak Sangh over Modi’s blatant provocation of communal tension, that the RSS sarsanghchalak, Mohan Bhagwat has been voicing with growing stridency in the past more than two years. It would thus achieve in a single stroke what months of patient campaigning may not achieve – which is the cutting down of Modi to size within the Sangh Parivar, if not the outright defeat of the party in the 2024 elections. 

If Kharge wishes to explore this possibility, it is he who must take the initiative in approaching Aam Aadmi Party, despite the latter being much the junior party. Chief Minister Kejriwal had approached the Congress three times before the 2017 Gujarat elections, offering not only to team up with the Congress but even to put up candidates chosen jointly by the two parties in the constituencies left to AAP. But he did not even receive the courtesy of an answer.

One result was that the Congress lost to the BJP in 18 constituencies with margins of 5,000 or fewer votes. In nine of these the margin of loss was fewer than 2,000 votes. Today, after another five years of disillusionment with a government that seems to cater only to the wishes of rich industrialists, the thirst for change is even greater. Gujarat may be ripe for change, but might vote for the BJP again for want of an alternative. The rise in the AAP’s popularity is a yardstick of this desire for change but Kejriwal and the leaders of AAP in Gujarat will not court such humiliation again, so the offer will have to come, this time, from the Congress. 

https://thewire.in/politics/bharat-jodo-yatra-congress-new-beginning

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Kiren Rijiju on Nehru’s ‘Blunders’ in Kashmir: The Dubious Benefit of Hindsight

Jawaharlal Nehru in Kashmir in May 1948. Photo: Photo Division, MIB, Public domain, via Wikimedia Commons

On October 26, the anniversary of Kashmir’s accession to India 75 years ago, Union law minister Kiren Rijiju highlighted five blunders made by India’s first prime minister, Jawaharlal Nehru, to explain why Kashmir remains a breeding ground for terrorism, and a bone of contention between India and its largest neighbours that, to use his words, is bleeding India till this day. His precise allegations were the following: 

  • “July 1947: Maharaja Hari Singh approaches Congress to accede to India like other princely states. Nehru refuses, saying “he wants more”, a requirement which did not exist in any instrument.
  • October 20, 1947: Pakistani raiders invaded the Kashmir region. Nehru still waffles and does not accept Kashmir’s request to accede to India.
  • October 21: Nehru officially writes to PM of Maharaja Hari Singh, saying it is not desirable for Kashmir to accede to India at that time. This despite Pakistani forces rapidly advancing in Kashmir.
  • October 26: Pakistani forces surround Srinagar. Maharaja Hari Singh again makes desperate appeal to join India. Nehru still negotiating and waffling with inordinate delay in responding.
  • October 27: Kashmir finally accepted into Indian union when Nehru’s demand met on Sheikh Abdullah.

Rijiju used October 26, the 75th anniversary of  Kashmir’s accession to India to launch his diatribe against Nehru’s dilatoriness in accepting its accession to India. But his main purpose seems to have been to shift the blame for the increasing alienation of Kashmiris, and the renewed attacks on the few remaining Kashmiri Pandits in the valley, upon Nehru’s shoulders from those of Prime Minister Narendra Modi, where it rightly belongs. 

There is one flaw in his attack on Nehru: it is seriously inaccurate. I am able to assert this with some authority because in 1995 I wrote a book titled Kashmir 1947 – Rival Versions of History, a book BJP spokespersons have often quoted (and sometimes misquoted) to substantiate their statements on Kashmir. So, using Rijiju’s five blunders as a frame, let me set the record straight. 

First, Maharaja Hari Singh did not exactly offer to accede to India in July 1947. He asked Rai Bahadur Gopal Das, a prominent Hindu gentleman from Lahore to intercede with Sardar Patel to break the ice that had formed between him and Nehru, in order to commence negotiations on accession to India. This was because he had decided six months earlier in December 1946, that if the British denied the princes the option of remaining under their suzerainty, he would accede to India.

The last Maharaja of Kashmir, Hari Singh. Photo: Unknow author/Wikimedia Commons, Public Domain

The deciding event for him had been the arrival in Muzaffarabad on December 23, of 2,360 penniless and traumatised refugees, fleeing from the Muslim League’s first instigated pogrom against Hindus in Rawalpindi and the North-West Frontier Province (NWFP) and been received with open arms by the almost entirely Muslim local population. The Maharani had rushed to Muzaffarabad to supervise their relief and rehabilitation. Her account of what the refugees had suffered made up the Maharaja’s mind: If a 6% minority of Hindus and Sikhs in the NWFP, who had lived in harmony with their Muslim neighbours for centuries, could suffer this terrible betrayal what, he wondered, would the fate of Kashmir’s 23% Kashmiri Hindus left helpless in Pakistan be?

Nor, he believed would Kashmiri Muslims be spared. This fear was founded on his knowledge of the umbilical cord that joined the Reshi Islam of Kashmir to Hinduism. Reshi is a corruption of Rishi. Their most revered saint, Sheikh Nooruddin, is known in the valley, and invoked by Kashmiri Hindus, as Nand Rishi. His most famous disciple, after whom the main Srinagar hospital is named, was Lal Ded. Her full name was Laleshwari Devi. 

Kashmiri Muslims did not change their surnames, and have not even thought of doing so even today. Their diet is still almost entirely Shaivite Hindu: there is no beef in Kashmiri cuisine; most Kashmiris still shun chicken and eggs; Reshi Islam has a dawn prayer, the Aurad-e Fitrat, that has no counterpart in Sunni Islam but is the incorporation of Surya Namaskar into Islam. And finally, all prayers in Reshi Islam start with an invocation of their ancestors by name, just as I have done in every formal prayer I have ever uttered from my Upanayana, till the deaths of my wife and parents. In Sunni Islam this is haraam.

These differences had not gone unnoticed by the Muslim League. In 1943, when the J&K Muslim Conference asked for incorporation into the Muslim League, Jinnah sent a close advisor, possibly his private secretary Khurshid Hussain, to Srinagar to feel them out. Here are a few excerpts from Hussain’s assessment:

“The Muslims of Kashmir do not appear to have ever had the advantage of true Muslim religious leadership…. Islam in Kashmir has therefore throughout remained at the mercy of counterfeit spiritual leaders …..who appear to have legalised for them everything that drives a coach and four through Islam and the way of life it has laid down….It would require considerable effort, spread over a long period of time, to reform them and convert them into true Muslims.

Hari Singh, therefore, knew, viscerally, what would happen not only to Kashmiri Pandits and Jammu Hindus, but to Kashmiri Muslims if he acceded to Pakistan. But in December 1946, he had lost access to Nehru because, six months earlier, when he jailed Sheikh Abdullah for raising the twin cries of ‘Land to the Tiller’ and ‘Down with Dogra rule’, Nehru had tried to force his way to Srinagar to see Abdullah, been stopped at the border in Kohala on the Srinagar-Rawalpindi road, and virtually held captive in the state guest house for three days till he turned back. 

In 1947, Hari Singh made not one but three unsuccessful attempts to break the resulting ice but failed. For the first, he sent his Maharani, accompanied by the 16-year-old Karan Singh, to Lahore for a secret meeting with a judge of the Lahore high court, Mehr Chand Mahajan. At the meeting, which occurred in Faletti’s Hotel, Mahajan asked for time to consider but before he could decide, the British, who had their spies, took the option away from him by appointing him within days to the Radcliffe Boundaries Commission. This was the first indication that the British were determined, to ensure that Kashmir should become a part of Pakistan. The Congress never got to know of this secret power play. 

Hari Singh made his second attempt to break the ice in July by asking Rai Bahadur Gopal Das, a prominent Hindu gentleman living in Lahore, to meet Sardar Patel when he visited Delhi, inform Patel of his desire to accede to India, and ask Patel for his help in ending his estrangement with Nehru. Patel’s reply to him, dated July 3, was the first formal communication between the future government of India and the state of Kashmir. There was no communication between the Maharaja and Nehru either in the rest of that month, or in August.  

Hari Singh made a third and final attempt on September 19, and this was directly with Nehru, via Mehr Chand Mahajan, who had taken over as prime minister of Kashmir after the dissolution of the Radcliffe Commission. 

A postage stamp issued in honour of Mehr Chand Mahajan. Photo: Post of India, GODL-India, via Wikimedia Commons

Mahajan’s memoirs give us the first explicit clue to Nehru’s reasons for not responding earlier. At his meeting with Nehru, when he reiterated that the maharaja was prepared to make the internal administrative changes that Nehru desired only after his accession had been accepted on the same terms as all the others, Nehru apparently lost his temper and virtually threw him out. As a highly insulted Mahajan was leaving the room, he said “Release Sheikh Abdullah from prison, then we can talk”.

That single, throwaway, sentence holds the key to understanding the dilemma of the new government and therefore to Nehru’s strategy for resolving it. The dilemma was, “If we accept Kashmir’s accession now, what will we do if Hyderabad opts for Pakistan?” 

For the architects of the future Indian Union, Hyderabad was the Mr Hyde (in Robert Louis Stevenson’s famous novel) to Kashmir’s Dr Jekyll. Hyderabad was the second largest of the princely states, only marginally smaller than Kashmir but with three times the population and four times the wealth. It too was one of the only four princely states that had enjoyed full internal autonomy, including the right to have their own armed forces, and be given a 21-gun salute by the British. It had an 81% Hindu population ruled by a Muslim elite, against Kashmir’s 77% Muslims ruled by a Hindu elite. 

Finally, Hyderabad had a far better claim to independence than Jammu and Kashmir because while the latter was a creation of the British and had existed for a mere 98 years, Hyderabad had never been annexed, either by the East India Company or the British Raj. In 1947, therefore, it was the last, still-autonomous, part of the Mughal empire. So, not surprisingly, the Nizam too was determined to remain independent no matter what it cost him. And unlike Kashmir, he had made this plain on June 11, 1947  by announcing that Hyderabad would not participate in the constituent assemblies of either India or Pakistan

Contemporary Indian assessments of Nizam Asaf Jah VI have painted him as a miser, as somewhat unbalanced and harbouring delusions of grandeur, and if not as a Muslim fanatic himself, then as a willing tool of Qasim Razvi, who had emerged as the head of the Razakars by 1947. What else could make him believe, for even a moment, that Hyderabad could exist as an independent state when it was plumb in the centre of the Decan almost 200 miles from the nearest sea? 

But later assessments provide an explanation that is far better grounded in realpolitik. The Nizam had the sovereign right to accede to either India or Pakistan. He was therefore using the leverage that gave him to bargain for the greatest possible autonomy from India. What was worse, with communal clashes increasing and the Razakars steadily gaining the support within the Muslim elite, and Jinnah offering every kind of inducement to him, to the point of pressing the Maharaja of Jodhpur to accede to Pakistan, the Nizam’s bargaining strength was getting stronger by the day.  

The only way to take the initiative away from the Nizam was to accept Kashmir’s accession to India not from the Maharaja but from the people of Kashmir. For this, Nehru had to show that not only the Maharaja but also the majority community wanted to be a part of India. And for that, he needed the explicit endorsement of Sheikh Abdullah. This made it absolutely impossible for India to accept Hari Singh’s accession while he was keeping Sheikh Abdullah in jail. 

Mahajan took Nehru’s message to the maharaja and Hari Singh lost no time in putting Abdullah’s release in motion by sending his former prime minister, Ram Chandra Kak, to mend his bridges with Abdullah. Sheikh Abdullah met him more than halfway. In his reply to the Maharaja, he wrote:

“In spite of what has happened in the past , I assure your highness that myself and my party have never harboured any sentiments of disloyalty to your highness’s person, throne or dynasty….I assure your highness the fullest and loyal support of myself and my organisation.”

The Maharaja released Sheikh Abdullah three days later (September 29) and the road to Kashmir’s accession to India was finally open.   

But why, one may still ask, did Nehru not act with greater celerity after that? Why did he allow 23 days to pass, giving Pakistan all the time it needed to organise the ‘spontaneous’ tribal raid into Kashmir that began on October 22? The question is legitimate, but it too is a product of selective hindsight. There were three reasons for the delay: first, the infant government’s preoccupation with the overwhelming disruption and slaughter unleashed by partition; second, the maharaja’s reluctance to make an explicit commitment on the role of Sheikh Abdullah and the National Conference even after he had tacitly accepted Nehru’s pre-condition and released him; and third the lack of any information about what was brewing in Pakistan. For this, the British government was directly responsible. 

Early in October, a British officer serving with the Pakistan army had reported to General Frank Messervy, the transitional commander in chief of the Pakistan army, that he had chanced upon a meeting at the home of the deputy commissioner of Rawalpindi, where seven or eight tribal leaders,  including one Badshah Gul, leader of the Afridis, were planning the details of an invasion of Kashmir. Messervy must have reported it in turn to Field Marshal Claude Auchinleck, the supreme commander of both the Indian and Pakistani armies, who was based in Delhi. But Auchinleck did not consider it necessary to inform the prime minister of India, and may not even have informed Lord Mountbatten, the governor-general. That led to his rapid, and unceremonious, exit from his position and replacement by General K.M. Cariappa.

General Cariappa, C-in-C, Indian Army, greets Jawaharlal Nehru at Plaam Aerodrome on the Prime Minister’s return from his foreign tour on November 15, 1949. Credit: Photo Division

The maharaja’s reluctance to make a commitment to the role of Sheikh Abdullah and the National Conference remained a stumbling block even after the raiders had entered Kashmir, sacked Muzaffarabad, killing and injuring more than 3,000 civilians, and sweeping up into the Jhelum valley. It was only after they cut the power at Mahura power station 40 miles from Srinagar on October 23, plunging the maharaja’s Diwali dinner into darkness, that reality finally dawned on him. He sent deputy prime minister Ram Lal Batra with what the latter described as a ‘Letter of Accession’ to India, to Delhi the next morning.

Nehru immediately sent V.P. Menon, accompanied by then Lt Col Sam Manekshaw and Wing Commander Dewan of the Royal Indian Air force to get the maharaja’s signature, assess the military requirements, and gauge Srinagar airport’s capacity to sustain a military airlift. As Menon reported to the defence committee of the cabinet the next day (they were able to fly back only because National Conference cadres lit up the runway in the dead of night with flaming torches), even as late as the evening of October 25, Hari Singh had still been reluctant to make a firm commitment on democratisation that Nehru required to legitimise India’s acceptance of Kashmir’s accession. 

This was not simply a battle of wills. Nehru knew that once the accession was complete, India could force the maharaja to do anything Delhi wanted. But democratisation after accession, even with Sheikh Abdullah’s consent, would not have made it an accession by the people of Kashmir. Nehru, and no doubt Patel, needed that because even at that crisis moment they had not forgotten Hyderabad. Every risk Nehru took during those fateful days was intended to ensure that an invasion of Hyderabad, were it to become necessary, would be considered legitimate in the eyes of the world. For there, whatever the Nizam may have desired, there was never any doubt that his people wanted to be a part of India.

Kiren Rijiju’s third, fourth and fifth ‘blunders’ are therefore nothing more than the querulous complaints of a government that knows that it has caused irrevocable damage not only to Kashmiris, but to India in Kashmir, and is now looking for ways in which to shift the blame onto the shoulders of a long-dead prime minister who can no longer defend himself, and whom the party that he helped to create is too lazy, complacent, or ignorant to know how to protect. He also seems to have forgotten that nine other states, listed in Article 371 of the constitution, have been formed on the basis of the explicit guarantee of Kashmir’s ethnonational identity provided by Article 370. Except for Arunachal Pradesh, to which he belongs, all the other states of the region have been its beneficiaries. 

https://thewire.in/politics/kiren-rijiju-nehru-blunders-kashmir-hindsight

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Much like Adolf Hitler, Narendra Modi’s eyes are set on the complete dominance of the BJP in Indian politics. To this effect, his government will continue to use its carrot-and-stick policy to destroy the opposition.

Sanjay Raut; Narendra Modi, Manish Sisodia. Photos: PTI

Eight years into government by Narendra Modi, it is no longer possible to pretend that India’s multi-ethnic, multi-religious democracy is not in acute danger. The reason is the collapse of the judiciary, the only pillar of democracy that had remained standing after the second victory of the Modi-led Bharatiya Janata Party (BJP) in 2019.

History will remember Justice A. M. Khanwilkar’s two last authored judgments for the barely veiled hostility they showed towards civil society and their disregard for the fundamental rights and the presumption of innocence until proven guilty enshrined in the constitution.

Khanwilkar began the demolition of these rights on June 25, when he not only dismissed Zakia Jafri’s appeal for justice with contempt but also incited the Modi government to punish those who had helped her to file it.

His demolition project was completed on July 27, just two days before he retired, by rubbishing no fewer than 242 petitions against the draconian powers appropriated by the executive branch of the government to harass, impoverish and imprison those merely accused of money ‘laundering’ – hiding ill-gotten gains from taxation through laws against economic crimes given to specially created agencies by a succession of laws such as the Serious Fraud Investigation Office (SFIO), the Directorate of Revenue Intelligence (DRI) and the Enforcement Directorate (ED).

Eighty of these petitions were specifically against amendments to the Prevention of Money Laundering Act (PMLA), which had reversed the burden of proof, placing it upon the accused – who had to prove their innocence – instead of on the government having to prove their guilt.

Congress MPs holding banner and placards stage a protest march at Parliament House complex to express their solidarity with the party Chief Sonia Gandhi who has to appear before the Enforcement Directorate in connection with the National Herald case, in New Delhi, July 21, 2022. Photo: PTI/Kamal Kishore

This made it possible for the  ED’s interrogators to heap charge after charge on an individual without requiring even prima facie substantiation, to interrogate them endlessly in order to force more and more information out of them, in the hope of tripping them up with inconsistencies that could become the grounds for further interrogation or sending them to jail.

The PMLA had been enacted by the Atal Bihari Vajpayee government and substantially amended by the Manmohan Singh government in 2012, but both were aware of the dangers that reversing the burden of proof entailed. So they had launched investigations with great caution. Between 2002 and 2014, the Enforcement Directorate lodged only 112 cases in all and made an equal number of searches.

But this changed dramatically after Modi came to power, for in less than eight years between June 2014 and the end of March 2022, the Enforcement Directorate launched 5,310 cases, conducted 3086 searches, attached Rs 104,702 crore (1.4 trillion) worth of assets (calling these the “proceeds of crime”) and filed 880 charge sheets.

However, it secured only 23 convictions! By any yardstick, therefore, the PMLA has been a miserable failure as a deterrent to financial and economic crimes. So, why is the Modi government so determined to retain it in precisely the form in which it has so spectacularly failed?

Consolidation of power at all costs

The answer is that since 2015, and in particular, since it added no fewer than eight more amendments in 2019, Modi has been using the Act for an altogether different purpose. This is to tame or destroy, the myriad opposition parties that make up India’s political mosaic, and turn India into a one-party state.

From his first day as prime minister, Modi made no secret of his determination to do this and remain India’s leader till the end of his natural life. In his first speech after being sworn in as prime minister in 2014, he spoke expansively about all that he hoped to achieve in the next 10 years. Ten, not five! Modi was already looking beyond the next general election on that first day in power.

Since then, his every action has reeked of hubris, and a savage determination to put his personal, indelible, stamp on Indian history, no matter what the cost. Nothing exemplifies this better than his casual destruction of the Central Vista lawns in New Delhi to build not only a grand new parliament building that the country does not need, but also a palatial new house for the prime minister, which he rather obviously intends to live in till 2034 if not longer.

Construction is underway for the Central Vista project. Photo: Seraj Ali

In 1933 Adolf Hitler took advantage of a fire in the Reichstag – the German parliament – that he may well have instigated, to get himself declared chancellor for life by Von Hindenburg, the then German President. Modi has found a better way to achieve the same end. This is to use a combination of stick and carrot to destroy the opposition parties one by one, till the BJP’s dominance of Indian democracy is assured.

In the open-ended powers that earlier government had unwisely heaped upon the police and central investigative agencies, he has found all the means that he needs, and more, to achieve his goal. For the past eight years, he has been using these to divide political parties, dismantle non-BJP governments in the states by securing defections, and destroy powerful political leaders in the opposition who fail to respond to his threats and blandishments.

For this purpose, his earlier weapon was the CBI – the Central Bureau of Investigation. But since 2019, it has become the National Investigative Agency (NIA), buttressed by changes in the Unlawful Activities Prevention Act at the political end of the spectrum, and the Enforcement Directorate, bolstered by no fewer than eight amendments to the PMLA in 2019, at the economic.

Abuse of ED and PMLA

In the past two years, Modi has relied more heavily on the PMLA and the ED to break or tame the opposition. The reason is that while the Code of Criminal Procedure puts limits upon the CBI’s capacity to act arbitrarily against those whom the government targets, the PMLA does not.

Under the constitution, the CBI can only investigate a crime with interstate ramifications after obtaining the consent of the state governments concerned. This required states to provide a general consent under the Delhi Police Act. But, even then, this had to be exercised  “with the support of the state Police”.

But, under the PMLA, the Enforcement Directorate can call anyone from anywhere in the country for interrogation without having to give a reason why; question them for hours on end, record everything they say without a defence lawyer present, and use even minor discrepancies in their statements as grounds for arresting and incarcerating them. In this respect, its power goes far beyond that of the CBI and state police, who cannot use a self-incriminatory statement, unless it is repeated, and recorded, before a magistrate.

Enforcement Directorate. Photo: PTI/File

The PMLA also does not require the Enforcement Directorate to furnish a copy of the Enforcement Case Information Report (ECIR), its version of the police’s First Information Report, to the person being arrested. Finally, bail is far more difficult to get under the PMLA than it is under criminal law because the ED has routinely argued that the defendant has the money not only to influence witnesses but also to flee the country and live a luxurious life elsewhere.

Pehle AAP

The Modi government’s transformation of a bad law into an instrument of oppression has taken place in stages.

The first phase came when Modi launched a campaign to destroy the Aam Admi Party (AAP). When the BJP was routed in the Delhi assembly elections in December 2014, Modi unleashed a barrage of attacks upon Kejriwal’s government that virtually paralysed it. The harassment was so intense and so incessant that, to bring it to an end, Kejriwal had to claim, in a 10-minute televised interview given at the end of July 2016, that Modi was bent upon getting him killed.

Middle-class India treated this as hyperbole but in the months that followed, Modi – acting through then Lt.  Governor Najib Jung – paralysed the Delhi government.

Among the weapons he used were the CBI, which called in around 150 members of the Union territory cadre of officers, serving in Delhi, for protracted interviews that turned into thinly veiled warnings to keep the Union government informed of everything that Kejriwal was doing and planning. Among the instruments he used was a case of corruption lodged by the CBI against Kejriwal’s personal secretary Rajendra Kumar, an officer with an unimpeachable reputation, that disappeared from Modi’s radar after he resigned from his post.

The BJP also launched cases of slander and defamation against Kejriwal simultaneously in 33 courts across the country. When this did not break the government, the Delhi police began arresting AAP MLAs on a variety of grounds. By July 2016, 11 out of AAP’s 67 MLAs were in custody.

Modi’s next target was Mamta Bannerjee’s Trinamool Congress government in Bengal. His principal weapon was videotapes obtained in a Tehelka-financed sting operation that showed 13 persons accepting money from chit fund owners. Twelve of them were top members of the Trinamool Congress,  who promptly became the subjects of a central CBI/ED investigation. This operation had taken place in 2014, but for reasons that remain unexplained, was uploaded by a private TV channel, Narada TV in 2016two years later, only weeks before the Assembly elections.

When the Bengal and Kolkata Police took no action against the 12, in February 2019, 40 CBI officers descended without waiting with a warrant to arrest no less senior a police officer than the Kolkata Police Commissioner and whisk him away to Delhi for interrogation. Thanks to a quick-witted policeman on duty at the commissioner’s house, the CBI officers found themselves surrounded by the Kolkata Police, virtually arrested and held in informal custody until Delhi agreed to call them back.

This ‘invasion’ by the Union government led to three states – West Bengal, Andhra Pradesh and Chhattisgarh – withdrawing their General Consent under the Delhi Police Act. They were followed rapidly by others: by March 2022, six more states had withdrawn their consent from the CBI, and other central agencies. These were Mizoram,  Rajasthan, Maharashtra, Kerala, Jharkhand, Punjab and Meghalaya.

From CBI to ED

The CBI’s searing experience in Kolkata did not discourage the Modi government but only made it turn to the Prevention of Money Laundering Act of 2002 to bring the opposition to heel. His first target was Uddhav Thackeray’s Congress-Shiv Sena government which had wrested Maharashtra from the BJP in the state elections of November 2019.

In November 2021 and February 2022, the Enforcement Directorate arrested and jailed two senior leaders of the Shiv Sena, Anil Deshmukh and Nawab Malik, on charges of money laundering. Six and eight months later the two are still struggling to get bail.

Shiv Sena MLAs got the message. In June this year, when the BJP  turned its attention to the destruction of Uddhav Thackeray’s government, it found little difficulty in weaning 40 Shiv Sena MLAs and 12 MPs away and ‘persuading’ them to join the breakaway group of Eknath Shinde. This may not have been as difficult as it sounds because the near-criminal antecedents of many of its members made them especially vulnerable to the BJP’s methods of “persuasion”.

For Modi, the destruction of the Congress -Shiv Sena combine in Maharashtra was not enough. On June 30, the Enforcement Directorate arrested Sanjay Raut, Uddhav Thackeray’s right-hand man and searched his premises for nine hours for evidence it could use against him. of raids at his residence. Raut had earlier been accused of making a great deal of money over the ‘redevelopment’ of a chawl in Mumbai. But the search unearthed only Rs 11.75 lakh in cash, which the ED seized as ‘evidence’.

But evidence of what? With apartment prices in central Mumbai ranging from Rs.23,044 to Rs.36,195 per square foot, 11.75 lakh could buy at most 3 to 4.6 square metres of built-up living space – not even enough for a bathroom, in a central Mumbai apartment! The allegation is therefore laughable but, five weeks later, Raut is still in jail.

These are not the only states on which Modi has unleashed the PMLA.  Jharkhand and Bengal have come next on Modi’s list.

In West Bengal, Partha Chatterjee, Mamata’s closest ally, has also been sent to jail by the ED, which say it has recovered more than Rs 100 crore from the apartment of his alleged “accomplice” Arpita Mukherji.  The ED claims that the flat actually belongs to Chatterjee. Mamata’s nephew, Abhishek Banerjee has been interrogated by the ED many times on this issue to break his will.

Guns trained on AAP again

Modi’s most recent assault on India’s political pluralism has taken place at the scene of the first: New Delhi. After nearly six years of uneasy coexistence, he has turned his guns once more on the Aam Admi Party.

Realising that directly assaulting Kejriwal would rebound on the BJP, as it did in February 2020, he has turned the Enforcement Directorate onto Delhi’s health minister Satyendar Jainand now deputy chief minister Manish Sisodia. The reason is almost childishly obvious. After its victory in Punjab, AAP is no longer perceived as a local, purely urban party, but as a national party capable of challenging and defeating both the Congress and the BJP in assembly elections as well.

With elections looming in Himachal and, more importantly, in Modi’s home state Gujarat, an attempt to destroy the party’s credibility by painting it to be as corrupt as the rest of them had become inevitable.

But Modi reserved his crowning assault for the Gandhi family. The purpose behind the ED’s three summons to Sonia Gandhi, its more than 50 hours’ interrogation of Rahul Gandhi, and its sealing of the offices of Young India in the National Herald building is to humiliate the Gandhi family and destroy the last shreds of the aura that once surrounded Jawaharlal Nehru and Indira Gandhi and complete the elevation of Modi to the status of India’s new supremo.

Realising that directly assaulting Kejriwal would rebound on the BJP, as it did in February 2020, he has turned the Enforcement Directorate onto Delhi’s health minister Satyendar Jain and now deputy chief minister Manish Sisodia. The reason is almost childishly obvious. After its victory in Punjab, AAP is no longer perceived as a local, purely urban party, but as a national party capable of challenging and defeating both the Congress and the BJP in assembly elections as well.

With elections looming in Himachal and, more importantly, in Modi’s home state Gujarat, an attempt to destroy the party’s credibility by painting it to be as corrupt as the rest of them had become inevitable.

But Modi reserved his crowning assault for the Gandhi family. The purpose behind the ED’s three summons to Sonia Gandhi, its more than 50 hours’ interrogation of Rahul Gandhi, and its sealing of the offices of Young India in the National Herald building is to humiliate the Gandhi family and destroy the last shreds of the aura that once surrounded Jawaharlal Nehru and Indira Gandhi and complete the elevation of Modi to the status of India’s new supremo.

https://thewire.in/politics/in-turning-india-into-a-tyranny-modi-has-made-economic-crimes-his-latest-weapon

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The Supreme Court is the last pillar of Indian democracy but it knew an adverse finding against a sitting prime minister would hasten the collapse of the entire edifice.

Illustration: Pariplab Chakraborty.

The Supreme Court of India has taken several questionable decisions in recent years. 

But its June 24 judgment dismissing Zakia Jafri’s appeal against the court-appointed Special Investigation Team’s exoneration of Narendra Modi from his share of the responsibility – as chief minister – for the 2002 Gujarat riots, and therefore of responsibility for her husband and their relatives’ death in the Gulberg society massacre, is the most questionable of them all. 

Questionable may well be an understatement: a better word could be ‘destructive’. For with this judgment, the Supreme Court has destroyed whatever faith civil society had retained in the fairness of Indian jurisprudence. For not only did Justice Khanwilkar and his fellow judges dismiss Zakia Jafri’s petition with two contemptuous words – “without merit” – and noting caustically that “the present proceedings have been pursued for [the] last 16 years”, they devoted a significant amount of their judgment to vilifying Teesta Setalvad, founder of Citizens for Justice and Peace and Jafri’s adviser since 2006, Sanjiv Bhatt and R.B. Sreekumar, two officials of the State Intelligence Bureau whose testimony Mrs Jafri had been relying upon in her quest for justice. 

Nor did the learned judges stop there, for in a key paragraph they virtually invited the government to prosecute these three on the grounds that it was they, not Modi’s Gujarat government, who had concocted ‘a larger conspiracy to keep the pot [of Modi’s culpability in the Gujarat riots] boiling”. And they did this when Bhatt and Sreekumar were not even petitioners in the case and Teesta’s own locus as a petitioner it refused to accept! This attack on members of civil society who were not even appearing before the court, could well be a precedent not only in Indian but global jurisprudence.

The learned judges’ intemperate recorded judgment is not the only worrying aspect of this case. For the judgment is 416 pages long, but the Gujarat Police arrived in Mumbai to arrest Setalvad within a day of its being given. The arrest of Sreekumar and the re-arrest of Sanjiv Bhatt, to discrediting whom the judges had also devoted more than 50 pages of their judgment, followed within hours. 

Did the Gujarat Police have speed readers in its service, or was it, perchance, able to somehow access a copy of the judgment before it was pronounced? However improbable this is, the mere fact that the suspicion exists, and is being voiced, highlights the depths of distrust that have now developed between the highest court and ‘l’etat civile’ – civil society – that, has been protecting individual rights and constitutional freedoms in other democracies since their inception, and has been doing so with increasing vigour in India as the danger to it from Modi-ism has developed over the past eight years. 

On June 28 , three days after Teesta’s arrest, former Supreme Court Judge Madan Lokur asked in these columns, “Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested?” If it did not then it was incumbent upon it to say so. But the court has remained silent till this day, thereby reinforcing the suspicion that this was indeed what the three judges on this bench had in mind. Through its silence, therefore, the court has made itself a party to the wholesale destruction of habeas corpus – the right of citizens to freedom until proven guilty of a crime punishable by imprisonment – that is the cornerstone of democracy and has been under especially heavy attack since the Sangh parivar came to power in 2014. 

Why has the Supreme Court stooped so low? Ever since judges began accepting lucrative post retirement posts after giving judgments that were to this government’s liking, civil society has begun to suspect the worst. Justice P. Sathasivam, a highly respected chief justice of the Supreme Court with several benchmark judgments to his credit, had set the ball rolling when he accepted the governorship of Kerala 16 weeks after he stepped down from the court in 2014. In April 2013, Justice Sathasivam had quashed the FIR against Amit Shah in the Tulsiram Prajapati fake encounter case and ordered that it be treated as a supplementary chargesheet filed for the killing of Sohrabuddin and Kauser Bi. Since Shah was already on bail in the latter case, this was a major relief for him as it meant he could not be arrested again as the CBI had wanted to do. Did Sathasivam not realise that when he accepted the governorship of Kerala, he would be reinforcing civil society’s fear that Modi and Shah were intent upon suborning the highest court of the land? 

Chief Justice Ranjan Gogoi strengthened this fear when he followed in Sathasivam’s footsteps and accepted nomination by the Modi government to the Rajya Sabha with equal celerity. Civil society’s suspicions hardened still further when former CBI director R.K Raghavan, who had been kept on as the head of a redundant SIT for another five years, was appointed India’s high commissioner to Cyprus within five months of resigning from it on ‘health grounds’ in April 2017. Raghavan had accepted these sinecures despite the fact that his own SIT had commented adversely on Modi keeping the three senior-most civil servants who had attended the controversial late night meeting at his home on February 27, 2002 in post-retirement posts through the entire period of the investigation, to shut their mouths. 

The shock aroused all over the world by the Supreme Court’s latest dismissal of Zakia Jafri’s petition are therefore understandable. But assuming the worst about the Khanwilkar bench’s judgment will serve no purpose because it will only hasten the catastrophe that civil society fears the most. This is the collapse of the last pillar upon which the battered remnants of our democracy still rests. 

To understand this fear it is necessary to look at the case from the judges’ point of view. Zakia Jafri’s plea was not about the Gulberg massacre. The Supreme Court had monitored this, and eight other specific cases. The Gulberg trial had resulted in 24 convictions and 32 acquittals. Zakia Jafri’s first information report (FIR), which she had submitted first to the Gujarat police after the riots, and when it took no action, to the Gujarat High Court, had accused the decision makers in the government of Gujarat of actively conspiring to let the riots happen. The wording of the FIR was explicit:

“I beg to bring to your kind notice the deliberate and intentional failure of the State Government to protect the life and property of innocent denizens of this countrythrough a well-executed and sinister criminal conspiracy amongst the accused above named, that resulted in the breakdown of Constitutional Governance in the State… since 2002, when a mass carnage was orchestrated by the most powerful in the State Executive using pressure and connivance of the State Administration and Law and Order Machinery there …..”

Heading the list of 62 conspirators was Narendra Modi, the then chief minister of Gujarat, and since 2014 the prime minister of India. This petition created a serious problem for the Supreme Court: How to avoid a truly serious “judicial overreach” that would destroy the position the court had built as the final guardian of citizens’ rights when these were threatened by actions of the executive or enactments by the legislature. 

This role was not spelt out anywhere in the constitution, but had been created by the court itself as India’s democracy had matured and in some respects soured, in the decades that followed. The constitution had spelt out the original, appellate and advisory jurisdiction of the Supreme Court in Articles 132-134 and 143-144. Its appellate jurisdiction allowed it to entertain appeals in civil matters in cases that ‘involved a substantial question of law of general importance’, and in criminal matters if a high court had, on appeal, reversed the order of acquittal of an accused and sentenced him to death, or had withdrawn for trial before itself any case from a subordinate court. 

These were highly restrictive clauses, but their severity was mitigated by a clause that allowed the Supreme Court to give ‘special leave to appeal’ if it was satisfied that a case warranted it. It was under this last, omnibus permission that it had assumed the role of protecting the rights of citizens as the shortcomings of Indian democracy began to surface. Its adjudication under this provision transformed the court from being the court of final appeal on points of law, usually affordable only to the rich and powerful, into the final guardian of the rights and freedoms that have been guaranteed to the people in the constitution. 

In two memorable lectures given under the auspices of the Palkhivala Foundation in 2007 and 2017, Harish Salve, a former solicitor-general of India, traced the origins of judicial activism to what he labelled “the Krishna Iyerisation” of jurisprudence in India in 1970s. In Salve’s words, “before him the Supreme Court was the Supreme Court of India. Justice Krishna Iyer made it the Supreme Court for Indians”

In his 2007 lecture, Salve highlighted four pivotal issues on which the Supreme Court did this. A decade later he identified three more. But in 2007, and again much more forcefully in 2017, Salve also warned that judicial activism could create its own perils. Chief of these was that the more citizens came to rely upon it to enforce the rule of law and ensure justice and equity in governance, the greater would become the risk of popular disillusionment if it failed. 

But Salve also did not hide his concern that ‘where the Court steps in too often, it builds up hopes that it will not be able to deliver’. ‘The court has neither the sword nor the purse’ he warned. ‘If popular will turns against it, the institution (will be) destroyed’. He placed the blame for this squarely upon the legislatures and the central and state administrations, accusing ‘those in power (who) cannot arrive at a consensus on (abiding by the spirit of the constitution and) keeping the judiciary above suspicion.’ 

With the BJP’s ascension to power at the helm of the Union, the abuse of citizens’ rights became normal so the chasm between the executive and the judiciary widened rapidly. Zakia Jafri’s appeal to the Supreme Court in 2017 made it unbridgeable because its principal accused was now the Prime Minister of India. This put the Supreme Court in an impossible position: Not entertaining her petition would have further eroded the confidence of the public in the judiciary’s guardianship of its rights. But reopening the case would create a constitutional crisis. 

The open rancour that its judgement displays towards civil society activists reflects its extreme discomfort with the position in which it found itself. It could not ignore the fate that had befallen the victims of the Gujarat riots. It could not therefore deny Zakia Jafri another hearing of her case. But it also knew that if it conceded her request for a fresh inquiry, Modi was even less likely to step down for its duration than Indira Gandhi had been in 1975. The risk of another head on clash between the executive and the judiciary that could, this time, bring India’s democracy to a permanent end, was therefore immense. 

This could be the reason why the Khanwilkar bench summarily dismissed Jafri’s appeal. It did this by concentrating upon the process, and not the content of the investigation, and finding no fault with it. It concluded, unsurprisingly, that due process had been followed: The Supreme Court had created the Raghavan SIT; the SIT had submitted a report; the report had been criticised by the court’s Amicus Curiae; the court had sent the report back to the SIT for revision in the light of his comments; the SIT had submitted a revised report indicting some more people but confirming Modi’s exoneration ‘for lack of prosecutable evidence’. This is what the bench finally upheld.

Judgments made in hindsight are seldom of any real value, but one needs to be made because crimes like the one committed in 2002, can occur again in our increasingly polarised communal society. The cause of justice would have been better served if Zakia Jafri had accused the Modi government not of criminal conspiracy, but dereliction of “chain of command responsibility”. 

Command responsibility is one of the oldest precepts of law in the world, for its origins can be traced back to Sun Tzu’s 6th century BC masterpiece The Art of War. It entered into modern international law when it was codified in The Hague Convention of 1899 and updated in the convention of 1907. 

While conspiracy requires proof of commission, establishing chain of command responsibility requires only proof of deliberate omission, i.e a conscious failure to act in accordance with the law. It was used in 1946 after the Second World War, to indict General Yamashita, who was the Japanese governor of the Philippines, because his soldiers committed innumerable atrocities against civilians and prisoners of war. 

The concept was refined to avoid misuse two years later in a celebrated American case labelled the High Command Case, where the US Supreme court decided that for a commander to be held criminally liable for the actions of his subordinates “there must be a personal dereliction” which “can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part based upon a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.”

There is a tonne of evidence that the Vishwa Hindu Parishad intended to use the unfortunate Godhra train burning incident in which 59 Hindus perished to launch a pogrom of Muslims the next day, but the entire case of criminal conspiracy against Modi and his principal lieutenants rested upon the remark Modi was alleged to have made in his late night meeting with police chiefs on February 27, 2002, advising them not to prevent the inevitable Hindu backlash that would occur the next day. Whatever one may choose to believe about the motives of the participants in the meeting, legally this case became untenable when all the participants in it claimed that the principal whistle blowers, Sanjiv Bhat, R.B Sreekumar and Haren Pandya had not been present at the meeting. 

So when the SIT exonerated chief minister Modi for lack of prosecutable evidence, Zakia Jafri would have been on much stronger ground if she had launched a fresh case against the Gujarat government based upon a precise enunciation of the chain of command responsibility doctrine. To prove this, all she would have needed to show was that, knowing full well the backlash that was bound to follow after the VHP had taken over the bodies of the deceased, and consciously allowing it to do so, the government had done nothing to prevent it. 

Such a case would have been difficult to disprove because in 2010, Citizens for Justice and Peace – the organisation founded by Teesta Setalvad and her husband Javed Anand – had unearthed cell-phone records which showed that “Ahmedabad police commissioner P.C. Pande had spoken to joint commissioner of police M.K. Tandon six times during the period when the latter was present at Gulberg Society and the mob was growing restive. Though Tandon was accompanied by “striking force” equipped to disperse a riotous mob, he left Gulberg Society without taking any corrective action and his departure led to the massacre …”. 

That opportunity has been missed and will return only when Modi and the BJP are no longer in power. 

https://thewire.in/government/modi-zakia-jafri-command-responsibility

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The Supreme Court of India has taken several questionable decisions in recent years. But its June 24
judgement dismissing Zakia Jafri’s appeal against the Court-appointed Special Investigation Team’s
exoneration of chief Minister Narendra Modi yet again from his share of the responsibility for the
Gujarat riots of 2002, and therefore of responsibility for her husband and their relatives’ death in the
Gulberg society massacre, is the most questionable of them all.

Questionable may well be an understatement: a better word could be ‘destructive’. For with this
judgement the Supreme Court has destroyed whatever faith civil society had retained in the fairness of
Indian jurisprudence. For not only did Justice Khanwilkar and fellow judges dismiss Mrs. Jafri’s
petition with two contemptuous words, “without merit”, and a taunting question: “ why did she take 16
years to file this appeal”, but they devoted a significant amount of its judgement, close to a third of its
416 pages, to vilifying Teesta Setalvad, the founder of Citizens for Justice and Peace and Mrs Jafri’s
adviser since 2006, and Sanjiv Bhatt and R.B. Sreekumar, two officials of the State Intelligence Bureau
whose testimony Mrs Jafri had been relying upon in her quest for justice.

Nor did the learned judges stop there, for in paragraph after paragraph, they virtually invited the
government to prosecute these three on the grounds that it was they , not Modi’s Gujarat government,
who had concocted ‘a larger conspiracy to keep the pot (of Modi’s culpability in the Gujarat riots)
boiling”. And they did this when none of the three were petitioners in the case! This attack on members of civil society who were not even appearing before the court, could well be a precedent not only in Indian but global jurisprudence.

The doubts about the learned judges’ motives aroused by their intemperate recorded judgement do not
end there. For the judgement is 416 pages long, but the Gujarat police arrived in Mumbai to arrest
Setalvad within a day of its being given. The arrest of Sreekumar and re-arrest of Sanjiv Bhatt , to
discrediting whom the Judges had also devoted more than fifty pages of their judgement followed within
hours.

Did the Gujarat police have speed readers in its service, or was it, perchance, given a copy of the
judgement before it was pronounced? However improbable this is, the mere fact that the suspicion exists
, and is being voiced, highlights the depths of the distrust that has now developed between the highest
court and ‘l’etat civile’—civil society – that, has been protecting individual rights and constitutional
freedoms in other democracies since their inception, and has been doing so with increasing vigour in
India as the danger toit from Modi-ism has developed over the past eight years.
On June 28 , three days after Teesta’s arrest, former Supreme Court Judge Madan Lokur asked , in these
columns, “ Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested?” If it did
not then it was incumbent upon it to say so. But the Court has remained silent till this day, thereby re-in
forcing the suspicion this was indeed what the three judges on this bench had had in mind. Through its
silence, therefore, the Court has made itself a party to the wholesale destruction of habeas corpus– the
right of citizens to freedom until proven guilty of a crime punishable by imprisonment that is the cornerstone of democracy, and has been under especially heavy attack since the Sangh Parivar came to
power in 2014.

Why has the Supreme Court stooped so low? Ever since judges began accepting lucrative post retirement posts after giving judgements that were to this government’s liking, Civil Society has begun to suspect the worst of motives. Former chief justice K Sathasivan, a highly respected chief Justice with several benchmark judgements to his credit, had set the ball rolling when he accepted the Governorship of Kerala only weeks after he stepped down from the Court in 2014. Sathasivan had been a member of the three-judge bench headed by justice D.K Jain that had accepted the Gujarat government’s plea to stop monitoring the Zakia Jafri case and hand it back to the Gujarat judiciary, after the SIT presented its
preliminary report exonerating Modi of any ‘prosecutable’ offences . This had enabled the Modi
government in Gujarat to fill vacancies in the SIT with its nominees and turned the SIT’s 2012 closure
report into a farce. Did he not realise that when he accepted the governorship of Kerala, he would be
reinforcing civil society’s fear that Modi was intent upon corrupting the highest court of the land?
Chief Justice Ranjan Gogoi strengthened this fear when he followed in Sathasivan’s footsteps and
accepted nomination by the Modi government to the Rajya Sabha with equal celerity. Civil society’s
suspicions hardened still further when former CBI director R.K Raghavan, who had been kept on as the
head of a redundant SIT for another five years, was appointed India’s ambassador to Cyprus within five
months of resigning from it. Raghavan had accepted these sinecures despite the fact that his own SIT had commented adversely on Modi’s keeping the three senior-most civil servants who had attended the late night meeting at his home on february27, 2002 in post-retirement posts through the entire period of the investigation, to shut their mouths.

The suspicions aroused all over the world by the Supreme Courts latest dismissal of Zakia Jafri’s petition
are therefore understandable. But assuming the worst about the Khanwilkar bench’s judgement will serve
no purpose because it will only hasten the catastrophe that civil society fears the most. This is the
collapse of the last pillar upon which the battered remnants of our democracy still rests.

To understand this fear it is necessary to look at the case from the judges point of view. Zakia Jafri’s plea
was not about the Gulberg massacre. The Supreme Court had monitored this , and eight other specific
cases. The Gulberg trial had resulted in 24 convictions and 32 acquittals. Zakia Jafri’s FIR ,which she
had submitted first to the Gujarat police after the riots, and when it took no action, to the Gujarat High
Court, had accused the decision makers in the government of Gujarat of actively conspiring to let the
riots happen. The wording of the FIR was explicit:
“I beg to bring to your kind notice the deliberate and intentional failure of the State
Government to protect the life and property of innocent denizens of this country
through a well-executed and sinister criminal conspiracy amongst the accused above
named, that resulted in the breakdown of Constitutional Governance in the State… since
2002, when a mass carnage was orchestrated by the most powerful in the State
Executive using pressure and connivance of the State Administration and Law and
Order Machinery there …..”

Heading the list of 62 conspirators was Narendra Modi, in 2006 the chief minister of Gujarat, and since
2014 the prime minister of India. This petition created a serious problem for the Supreme Court – how to avoid a truly serious “judicial overreach” that would destroy the position the Court had built as the final
guardian of citizens’ rights when these were threatened by actions of the executive or enactments by the
legislature.

This role was not spelt out anywhere in the Constitution, but had been created by the Court itself as
India’s democracy had matured and in some respects soured, in the decades that followed. . The
constitution had spelt out the original, appellate and advisory jurisdiction of the Supreme Court in in
articles 132-134 and 143-144. Its appellate jurisdiction allowed it to entertain appeals in Civil matters in
cases that ‘involved a substantial question of law of general importance’, and in Criminal matters if a
High court had, on appeal, reversed the order of acquittal of an accused and sentenced him to death, or
had withdrawn for trial before itself any case from a subordinate court’.

These were highly restrictive clauses, but their severity was mitigated by a clause that allowed the
Supreme Court to give ‘special leave to appeal’ if it was satisfied that a case did not involve any question
of law. It was under this last, omnibus permission that it had assumed the role of protecting the rights of
citizens as the shortcomings of Indian democracy began to surface. It’s adjudication under this last
transformed the Court from being the court of final appeal on points of law, usually affordable only to the
rich and powerful, into the final guardian of the rights and freedoms that have been guaranteed to the
people in the Constitution.

In two memorable lectures given under the auspices of the Palkhivala foundation in 2007 and 2017,Harish Salve, a former solicitor-general of India, traced the origins of judicial activism to what he labelled “the Krishna Iyerisation “of Jurisprudence in India in 1970s. In Salve’s words, “before him the Supreme Court was the Supreme Court of India. Justice Krishna Iyer made it the Supreme Court for Indians”.

In his 2007 lecture Salve highlighted four pivotal issues on which the Supreme Court did this. A decade
later he identified three more. But in 2007, and again much more forcefully in 2017, Salve also warned
that judicial activism could create its own perils. Chief of these was that the more citizens came to rely
upon it to enforce the rule of law and ensure justice and equity in governance, the greater would become
the risk of popular disillusionment if it failed. But Salve also did not hide his concern that ‘where the
Court steps in too often, it builds up hopes that it will not be able to deliver’. ‘The court has neither the
sword nor the purse’ he warned. ‘If popular will turns against it, the institution (will be) destroyed’. He
placed the blame for this squarely upon the legislatures and the central and state administrations, accusing ‘those in power (who) cannot arrive at a consensus on (abiding by the spirit of the constitution and) keeping the judiciary above suspicion.’

With the BJP’s ascension to power at the Centre, the abuse of citizens’ rights became normal so the chasm between the executive and the judiciary widened rapidly. Zakia Jafri’s appeal to the Supreme Court in 2017 made it unbridgeable because its principal accused was now the Prime Minister of India. This put the Supreme Court in an impossible position: Not entertaining her petition would have further eroded the confidence of the public in the Judiciary’s guardianship of its rights. But reopening the case would create a constitutional crisis.

The open rancour that its judgement displays towards civil society activists reflects it’s extreme
discomfort with the position in which it found itself . It could not ignore the fate that had befallen the
victims of the Gujarat riots. It could not therefore deny Mrs Jafri another hearing of her case. But it also knew that if it conceded her request for a fresh inquiry, Narendra Modi was even less likely to stepdown
for its duration than Mrs Indira Gandhi had been in 1975. The risk of another head on clash between the
executive and the judiciary that could, this time, bring India’s democracy to a permanent end, was
therefore immense.

This could be the reason why the Khanwilkar bench summarily dismissed Mrs. Jafri’s appeal. It did this
by concentrating upon the process , and not the content of the investigation, and finding no fault with it.
It concluded, unsurprisingly, that due process had been followed: The Supreme Court had created the
Raghavan SIT; the SIT had submitted a report ; the report had been criticised by the Court’s Amicus
Curiae; the court had sent the report back to the SIT for revision in the light of his comments; the SIT had
submitted a revised report indicting some more people but confirming Modi’s exoneration ‘for lack of
prosecutable evidence’. When the Sathasivan bench accepted this ‘closure’ report, ended its monitoring of the SIT and handed the case back for further action to the Gujarat government, ignoring the fact that it was headed by the person who was principal accused in the petition, it closed the door for any further
pursuit of justice in Gujarat. Judgements made in hindsight are seldom of any real value, but one needs to be made because crimes like the one committed in 2002, can occur again in our increasingly polarised communal society. The cause of justice would have been better served if Mrs. Jafri had accused the Modi government not of a criminal conspiracy, but a dereliction of “Chain of Command Responsibility”.
Command Responsibility is one of the oldest precepts of law in the world, for its origins can be traced
back to Sun Tzu’s 6th century BC masterpiece The Art of War. It entered into modern international law
when it was codified in The Hague convention of 1899 and updated in the convention of 1907.

While conspiracy requires proof of commission, establishing Chain of Command Responsibility requires
only proof of deliberate omission , i.e a conscious failure to act in accordance with the law . It was used in
1946 after the Second World War, to indict General Yamashita, who was the Japanese governor of the
Philippines, because his soldiers committed innumerable atrocities against civilians and prisoners of war.
The concept was refined to avoid misuse two years later in a celebrated American case labelled the High
Command Case, where the US Supreme court decided that for a commander to be held criminally liable
for the actions of his subordinates “there must be a personal dereliction” which “can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes
criminal negligence on his part based upon a wanton, immoral disregard of the action of his subordinates
amounting to acquiescence.”[1]

There is a tonne of evidence that the Vishwa Hindu Parishad intended to use the Godhra train burning to
launch a pogrom o Muslims the next day, but the entire case of criminal conspiracy against Modi and his
principal lieutenants rested upon the remark Modi was alleged to have made in his late night meeting with police chiefs on February 27, advising them not to prevent the inevitable Hindu backlash that would occur the next day. Whatever one may choose to believe about the motives of the participants in the meeting, legally this case became untenable when all the participants in it claimed that the principal whistle blowers, Sanjiv Bhat, R.B Sreekumar and Haren Pandya had not even been present at the meeting.

So when the SIT exonerated chief minister Modi for lack of prosecutable evidence Mrs Jafri would have
been on much stronger ground if she had launched a fresh case against the Gujarat government based
upon a precise enunciation of the Chain Of Command Responsibility doctrine. To prove this all she
would have needed to show was that, knowing fully well the backlash that was bound to follow after the
VHP had taken over the bodies of the deceased, and consciously allowing it to do so, the government had done nothing to prevent it.

Such a case would have been difficult to disprove because in 2010 Citizens for Justice and Peace, the
organisation founded by Teesta Setalvad and her husband Javed Anand, had unearthed cell-phone
records which showed that “Ahmedabad police commissioner P C Pande had spoken to joint
commissioner of police M K Tandon six times during the period when the latter was present at Gulberg
Society and the mob was growing restive. Though Tandon was accompanied by “striking force” equipped to disperse a riotous mob, he left Gulbarg Society without taking any corrective action and his departure led to the massacre …”[2]
.

That opportunity has been missed and will return only when Modi and the BJP are no longer in power.

[1] Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution:
http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101_text.html
[2] Mitta, Manoj (25 April 2010). “Post-Godhra riots: Teesta digs up call records”. The Times of India.

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Imposing embargoes on trade with Russia and punishing those who ignore them by cutting off their international banking facilities will only force uninvolved nations into rival militarised camps.

Russia’s President Vladimir Putin attends a meeting with Azerbaijan’s President Ilham Aliyev at the Kremlin in Moscow, Russia, February 22, 2022. Photo: Sputnik/Mikhail Klimentyev/Kremlin via Reuters

The Indian government’s stance on the Ukraine war is the first time that a genuine consensus of opinion has emerged between the Narendra Modi government and the opposition in our increasingly divided country. Indian opinion is united that Russia’s decision to invade Ukraine without first bringing its anxiety about what was happening to ethnic Russians in the Donbas region to international attention, and without raising its concerns on any of the platforms provided by the United Nations, was a serious mistake. But it is also united in believing that the road back to peace does not lie in the blanket condemnation of Russia, in the blanket denial of every single explanation that Russian foreign minister Sergei Lavrov has given for its resort to force, and in ascribing it to a power-crazed Russian president who has lost touch with reality.

Nor does it lie in sanctions that will cripple not only the Russian economy but also hurt the economies of Western Europe and the rest of the world. Finally, and most importantly, India is rightly angered by the US’s barely veiled threat that these sanctions will be extended to other nations that do not fall in line with US sanctions despite the fact that these have no UN mandate behind them.  

The US has been ‘punishing’ errant nations that have dared to buy oil from Iran in this way through financial sanctions for some time. But Russia is not Iran. Nor is natural gas its sole export. On the contrary, Russia exports a large quantity of coal, oil, semi-finished iron and raw materials ranging from timber to aluminium, nickel, cobalt and gold to the rest of the world. Imposing embargoes on trade with it and punishing those who ignore them by cutting off their international banking facilities or freezing their reserves will only force uninvolved nations into rival militarised camps. That will push the world towards a war that it can no longer afford. 

This is not an alarmist statement, but a reminder of what has happened once already within living memory. On July 2, 1940, US president Franklin Delano Roosevelt signed the US Export Control Act, which authorised an American president to license or prohibit the export of “essential defence materials” to potentially hostile countries. At the top of that list was Japan.

Between then and July 26, these sanctions were applied to an ever-widening range of metals used in the manufacture of weapons and, significantly, to aviation fuel. Nor did the embargo stop there. On July 26, 1941, Roosevelt froze all Japanese assets and bank accounts in the US. Since Japan imported nearly all of its oil from the US, this amounted to strangulation by degrees, especially of its military. A diary belonging to one of Emperor Hirohito’s aides, discovered in the early 2000s, revealed how the Japanese viewed this devastating blow: It quoted the late emperor as saying that Japan went to war with the US because of oil – and lost the war because of oil.

In short, the freezing of Japanese assets left the Emperor with no option but to sanction the invasion of Indonesia and Indo-China in pursuit of oil. The embargo also led to Japan joining Germany’s Tripartite alliance in 1941, and thence to the attack on Pearl Harbour in December 1941. 

A similar gravitation of countries into two potentially hostile groups has begun now. One is forming around the US and NATO; the other is beginning to take shape around Russia, China and Iran. An alarming feature of this development, were it to continue, would be that it will end by disrupting not just the unified global trade and manufacturing systems of the world, but the global payments system as well. This will set off a race to create a second, alternative payments system. And with China’s foreign exchange reserves being close to $4 trillion, the base for creating an alternative payments system already exists. 

Were a Yuan-centred alternative payments system to emerge, the shift of a portion of global financial reserves from the dollar, Pound, Euro and Yen could lead to a steep fall in their value. The consequences of such a shift are not easy to estimate but the possibility that it could trigger a ruinous war should not be discounted. 

Drift towards armageddon

This drift towards armageddon can only be arrested if the West ends its no holds barred effort to pin all the blame for the present situation in Ukraine upon Russia, and upon Vladimir Putin in particular. But how can it even begin to do this after blocking every media channel emanating from Russia except its own? 

The West’s justification for strangling Russia’s voice is that, having already started the war, it has no option but to lie about it now. This may well be true, but does that give the Western countries the right to deny their own people the freedom to hear their opponents and come to their own conclusions? And has it not occurred to the decision-makers in NATO that their denial of this right exposes the hollowness of their own commitment to democracy?

 There can be no meaningful dialogue between nations without a minimum of mutual respect and a willingness to listen. That is precisely what the US and every European government have decided to deny to Russia and to their own people from day one of the invasion of Ukraine. 

A soldier takes a photograph of his comrade as he poses beside a destroyed Russian tank and armoured vehicles, amid Russia’s invasion on Ukraine in Bucha, in Kyiv region, Ukraine April 2, 2022. REUTERS/Zohra Bensemra



So what can civil society do to limit its loss of perspective on the Ukraine war? The answer is that we must try to piece together the information we already have to arrive at our own conclusions about  Russia’s motives. 

The starting point of this exercise is to remember how the Cold War came to an end. The crucial breakthrough was made by US president Ronald Reagan and Soviet president Mikhail Gorbachev at Reykjavik, Iceland in 1986. It was given concrete shape in a series of follow-up meetings that ended in the signing of the Budapest Memorandum of 1994. 

The understanding between Reagan and Gorbachev that ended the Cold War was based on the decision to remove intermediate range missiles, dismantle strategic missiles and nuclear warheads, and retain only enough highly enriched uranium for a limited number of nuclear warheads. Both knew that once this was done, the Cold War would, in effect, be over. The creation of a buffer zone of neutral states between the USSR and NATO did not come up at Reykjavik because no one there anticipated the suddenness of the economic and political collapse of the Soviet Union and the dissolution of Warsaw Pact. Consequently, no government in the West anticipated the suddenness with which NATO would find itself without an enemy and therefore without a job. All the problems in the maintenance of a stable peace that have plagued intra-European relations since then have their roots in the suddenness of that collapse.

The speed with which it happened created a succession of challenges that no one at Reykjavik had foreseen. The first arose with the fall of the Berlin wall and the reunification of Germany in 1989. To allay the Soviet Union’s fear that this would allow NATO troops and armaments to be stationed at the very edge of the Warsaw Pact countries, on February 9, 1990, US Secretary of State James Baker assured the Kremlin that NATO would not expand ‘one inch eastward’.

While this remark by Baker has been widely reported, and frequently dismissed as a mere oral reassurance with no legal sanction, what has only recently come to light is that just three months later, in an extensive set of talks with Gorbachev designed to prepare the ground for the summit meeting between him and US president George H.W. Bush in Washington, Baker gave Gorbachev nine assurances that there would be a change in the character of NATO from a military to a political alliance that would not be threatening to Moscow.

Baker’s aim was to allay Soviet fears arising out of Germany’s reunification, by offering the assurance that neither NATO command structures nor NATO troops would be transferred to the territory of the former East Germany. Realising that this assurance would make it difficult to apply NATO security guarantees (especially Article 5 which states that an attack on one member will amount to an attack on all the members of the organisation) to the whole of Germany, Bush also suggested to Chancellor Helmut Kohl that he should, in the future, speak of a ‘special military status’ for East Germany. 

The next, larger challenge came with the disintegration of the Soviet Union, the dissolution of the Warsaw Pact and the plunge of Russia into abject poverty. The mere fact that Baker and H.W Bush had gone as far as they had to reassure the Soviet Union meant that they had tacitly, if not explicitly,  accepted the Soviet pre-condition that the countries around its periphery should not become a part of NATO. But now, with the Soviet Union itself having disintegrated, it became fatally tempting for hawks in the US to argue that commitments made to the USSR did not necessarily apply to Russia. 

US President Ronald Reagan (R) and Soviet President Mikhail Gorbachev sign the Intermediate-Range Nuclear Forces (INF) treaty in the White House, December 8, 1987. Photo: Reuters/File

But Russia had one more bargaining chip – the West’s need to disarm the colossal stock of nuclear warheads that had developed during the Cold War. Dismantling these in Ukraine was especially important because it contained the launch sites of 1,900 missiles with mammoth warheads. This was achieved in 1994 with the signing of the Budapest Memorandum on Security Assurances. In that conference, the US Secretary of State gave another oral assurance that NATO would not expand eastwards towards Russia’s borders. This paved the way for Russia to dismantle its formidable nuclear arsenal in Ukraine, in exchange for aid in rebuilding its economy.

Had successor governments in the US honoured their oral commitments, Europe would have had lasting peace now for more than 30 years. But for NATO, the temptation to fill the vacuum created by the collapse of the Russian economy proved too strong to resist. So NATO continued to expand. At the end of the Cold War, it had 16 members, four more than when it was created. The new entrants were Greece, Turkey, Germany and Spain, all of which were inducted in the 1950s and 60s, at the height of the Cold War.

But in the 1990s, even after the break-up of the Soviet Union and the immiseration of Russia had eliminated any conceivable threat from it to Europe, NATO continued to add new members. By 1999, it had added Hungary, Poland and the Czech Republic, all border states of the former Soviet Union. What is more significant – these countries joined NATO at its invitation.  

After 1999, NATO cast all restraint to the winds and declared an “Open Door” policy for other countries to join it, provided they met its preconditions for entry. Russia protested against this relentless expansion four times, in 1993, 1997, 2007 and finally when NATO was wooing Ukraine, in 2012. Then in 2014, when it appeared that Ukraine would be the next to join NATO, and would demand the vacation of its Black Sea naval base at Sevastopol, it invaded and annexed Crimea. 

The US reacted with predictable fury, emphasising Russia’s violation of international law, and imposing a whole string of sanctions upon it that were designed to bring its economy to its knees. But it carefully chose to forget that Crimea had been an integral part of Russia, not Ukraine, for centuries; that Russia had beaten off a British invasion of the peninsula in 1853-56, and that Moscow had attached Crimea to Ukraine for reasons of administrative convenience as recently as in 1954, when Ukraine was a part of the Soviet Union. It also chose to ignore the fact that 65% of Crimeans were ethnic Russians and only 15% were Ukrainians.

Finally and most dangerously, the Barack Obama administration ignored warnings by former Secretary of State Henry Kissinger and university of Chicago professor John Mearsheimer to leave Ukraine alone. 

In the Washington Post on March 5, 2014, Henry Kissinger wrote: “The test of policy is how it ends, not how it begins. Far too often the Ukrainian issue is posed as a showdown: whether Ukraine joins the East or the West. But if Ukraine is to survive and thrive, it must not be either side’s outpost against the other — it should function as a bridge between them.” [Emphasis supplied]

Mearsheimer, who gave a 60-minute talk at the University of Chicago in June 2015, also stated without equivocation that the responsibility for creating a confrontation with Russia rested entirely upon the West. Behind its sanctimonious talk about defending ‘orange’, (i.e democratic) revolutions lay a single-minded desire to peel Ukraine away from Russia, and to expand NATO relentlessly till it completely encircled Russia in the west.  

Thirty years of disrespect and broken promises by NATO and its member states help to explain why Putin finally lost patience with the West and decided to use force to bring Ukraine to its senses. But it does not explain either the timing of the attack or the justification he has given – that it was to stop a surreptitious ethnic cleansing of Russians from the Donbas region, towards which the Ukrainian government had been turning a blind eye ever since the annexation of Crimea.

Ukraine’s President Volodymyr Zelenskiy addresses the Australian parliament via videolink, as Russia’s attack on Ukraine continues, in Kyiv, Ukraine March 31, 2022. Ukrainian Presidential Press Service/Handout via REUTERS

Ukraine and Neo-Nazis

The Western media, prepped no doubt by their foreign office spokespersons, have simply ignored, or trashed, these allegations. But could there be any truth in them? An examination of Ukraine’s politics suggests that while Moscow may be exaggerating the extent of ethnic cleansing that has occurred, the possibility that there has been an attempt by irregular forces to ‘cleanse’ the Donbas of ethnic Russians cannot be ruled out. For, nearly 80 years after the death of Hitler, xenophobic Fascism is alive and flourishing in western Ukraine. 

This became starkly clear when, in Ukraine’s parliamentary elections of 2012, Svoboda, a right-wing, fascist party, which is a throwback to the 1930s and is based entirely in western Ukraine, garnered 10% of the vote, and sent 37 members to the parliament. Svoboda’s leader is Oleh Tyahnybok, whose battle cry has been the “liberation” of his country from the “Muscovite-Jewish mafia”.

Tyhahnybok is not all hot air, for he practices what he preaches. In 2010, two years before entering parliament, he rushed to Germany after the conviction of the Ukrainian Nazi death camp guard John Demjanjuk for his role in the extermination of nearly 30,000 people at the Sobibor camp during World War II to declare him a hero who was “fighting for truth”.

His deputy, Yuriy Mykhalchyshyn, is an even more unrepentant Nazi: Not only is he fond of quoting Joseph Goebbels, but he founded a think tank originally called “the Joseph Goebbels Political Research Center.” According to Per Anders Rudling, a leading academic expert on European neo-fascism, the self-described “socialist nationalist” Mykhalchyshyn is the main link between Svoboda’s official wing and neo-Nazi militias like Right Sector.

Had Svoboda continued its run of success in the 2014 and 2019 parliamentary elections it is possible that it would have become more moderate over time. But it went in the opposite direction so its success did not last. In the 2014 elections, its share of the vote plummeted 4.71% and it lost 31 of the 37 seats it had won two years earlier. In 2019, its vote fell further to a mere 2.15% and it won just one seat. But its leadership did not change. So it is entirely possible that its more ultra-nationalist members have drifted right and further strengthened their links with the Neo-Nazi militias. 

This may be the genesis of the attacks on ethnic Russians in the Donbas region that have seemingly pushed Putin over the brink and into war. For what is certain is that neither President Volodomyr Zelenskyy, nor his Servants Of The People party, which is made up largely of workers and ex-communists, and had won an unprecedented absolute majority in parliament in 2019, had any need to resort to such tactics to shore up their popularity. 

Putin’s advisers must know that in Zelenskyy, whose grandfather was a general in the Soviet Army during World War II, they have a Ukrainian president who is not only likely to be more receptive to his complaints but also more wary of NATO’s blandishments. That is why his invasion of Ukraine without first exploring the possibility of direct talks with Zelensky needs to be seen, above all, as a strategic blunder. For it has weakened the one man in the one Ukrainian government with whom he could have found common ground onto which to guide their relations in the future.

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Contrary to what the international media would have us believe, Russia’s decision makers are neither naïve nor rash.

A view shows graves of civilians killed during Ukraine-Russia conflict in the southern port city of Mariupol, Ukraine April 19, 2022. Photo: Reuters/Alexander Ermochenko/File Photo

Sten Widmalm’s broadside, not only on my understanding of Russia’s invasion of Ukraine, but also on what he considers my moral ambivalence, has confirmed a suspicion that has been lurking in my mind not just since February this year, but since the Euromaidan uprising of 2014.

I have already condemned Russia’s attack on Ukraine. As Talleyrand once put it, it was worse than a crime; it was a mistake. But not because it came from nowhere. It was a mistake because it triggered a chain of consequences that are becoming increasingly difficult to control.

Contrary to what the international media would have us believe, Russia’s decision makers are neither naïve nor rash. In the 31 years since the breakup of the Soviet Union, they have made only one foray outside their immediate security perimeter. This was its targeted attack on ISIS – the putative Islamic State – in Syria. ISIS, Widmalm might remember, was a product of the mess that the US and NATO had made in Iraq, Libya and Syria. It was not the Americans but the Russians that helped to clean things up.

Russia’s two forays within its security perimeter have both been defensive in nature. The first, in 2008 into Georgia, ended in the creation of the republics of Abkhazia, which occupies virtually the entire Georgian coast of the Black Sea, and South Ossetia. The second was the annexation of Crimea. Both were triggered by NATO’s naval expansion into the Black Sea.

Russia had good reason to mistrust NATO. In 2008, the military alliance said it would like Georgia to join. Was it merely a coincidence that NATO ramped up its annual naval exercise in the Black Sea called Sea Breeze in that very same year? This was no minor flag-showing exercise; by 2011 it involved 32 ships from as many countries.

The second, graver provocation, which led to Russia’s annexation of Crimea, may also have originated in the Sea Breeze exercises. In 2011, a US missile cruiser joined the NATO naval exercise for the first time. Russia’s anxiety over this development was bound to have been heightened by the fact that, only weeks earlier, a similar American ship had fired 133 tomahawk missiles into the Tripoli region of Libya and destroyed virtually the whole of Gaddafi’s military infrastructure in a single night. The possibility that, given a strong enough pretext, it could do the same to the mammoth Russian naval base in Crimea, could hardly not have entered its leaders’ minds.

After Ukraine became independent, Russia had retained Sevastopol, only on the basis of a 25-year lease that expired in 2044. With extreme right wing sentiment on the rise in Ukraine, its planned admission into NATO and the blanket protection that Article 5 of NATO’s charter, which enjoins collective defence of any member that is under attack, would have heightened the temptation for a future government to blackmail Russia, or even cut the thread of the lease  altogether. That was a risk which Russia decided it could not take. So it invaded and annexed Crimea.

Both the Russian invasions can therefore be traced back to one cause – the continuing expansion of NATO even after the enemy it had been created to fight had ceased to exist.

In the decades since the Cold War ended, a legion of foreign policy analysts in the West have done their best to disprove this. Their constant refrain has been that the US made no commitment to Gorbachev that it would not allow NATO to expand one inch eastwards. The most they are prepared to concede is that James Baker, George H.W. Bush’s secretary of state, made this commitment to Gorbachev for only Germany, whose sudden reunification in 1989 had not been foreseen by either government.

But the official record of Baker’s meetings with Gorbachev in preparation for his summit meeting with Bush at Camp David on May 31, 1990, which was declassified in 2020, says otherwise. An exhaustive analysis of the declassified documents under a programme of the George Washington University, titled “National Security Archives: The Washington/Camp David Summit 30 years Ago”, has summed up the relevant part of those documents as follows:

“Last but not least, the issue of German unification and its potential membership in NATO drew extended discussion, with Baker offering nine assurances about changing the character of NATO from a military to a political alliance not threatening to Moscow. …The documents show ( the summary goes on)  that Gorbachev came to Washington determined to push for his idea of a European security structure, or the “common European home.”  He envisioned a gradual transformation of NATO and the Warsaw Pact into political organizations and their subsequent dissolution as the Conference on Security and Cooperation in Europe (CSCE) would become institutionalized and subsume NATO security functions.”

The CSCE had been established in Helsinki in 1975 by the US, Canada and 33 European nations including the Soviet Union. Gorbachev wanted to breathe new life into it and make it a truly European organisation. Had the Soviet Union and the Warsaw Pact survived, he might well have succeeded. But both broke up barely a year after the Camp David meeting and NATO was left as the sole politico-military organisation in Europe. In the next 20 years, it absorbed all the Warsaw Pact countries and, in doing so, brought a military organisation in search of enemies to the former Soviet Union’s doorstep. Then, after the “Orange” revolution of 2005,  it began to woo Ukraine.

Before I close my response to Widmalm, I would like to touch briefly upon three other points he has made in his attempt to discredit me. First, yes, I stand corrected: Japan did join the tripartite alliance in 1940, not 1941. But it did so three months after President Roosevelt cut off  the export of strategic materials, including oil, to Japan. So my assertion that Japan was pushed into the tripartite alliance, at least in part by an act of economic warfare, remains unaffected.

Second: as I explained in my article, the conclusion that the US’s decision to freeze Japanese assets and cut off  the supply of oil to it forced Japan into a war that it might otherwise have avoided, is not mine but Emperor Hirohito’s. The diary of his aide suggests that he was against going to war but changed his mind because of the dire need for oil.

Widmalm does not seem to understand why Japan considered the embargo on oil supplies a threat to its very existence. The reason, which half a century’s hindsight allows us to understand, is that there was a radical difference between European and American industrialisation in the 19th century and Japan’s in the 20th. The former was based upon the exploitation of raw materials and cheap labour, including slave labour, of their colonies to build ever more powerful industrial bases in the home country. That exploitation required conquest, and the conquerors differed from each other only in the degree of their cruelty.

By contrast, Japan’s industrialisation, while not devoid of colonial exploitation and its attendant cruelty to native populations, was based mainly upon its exports. It was, in fact, the world’s first exemplar of export-led growth. That is why it became the model that Taiwan, South Korea, Singapore, Malaysia and Thailand adopted in the 1960s and ‘70s, and China in the ‘80s and ’90s.

Japan had very little coal, and no oil whatsoever. That is why the embargo on oil exports to it left it with little option but to fight the US and to invade Indonesia, where oil had been discovered in 1890.

Finally, there is a slur upon my morality that I cannot allow to pass. Towards the end of his essay, Widmalm  equates understanding a particular action with condoning it, and advocating restraint with appeasement:

“Jha seems to imply that a better path forward for the Americans – and for anyone else threatened by the expansion of fascist and Nazi regimes – would have been to try to persuade their adversaries to pursue other political goals. …. Claiming the Japanese emperor had ‘no option’ but to take the decisions which led to the bombing of Pearl Harbour builds on a false view of history. Indeed, it amounts to apologetics for the actions of Germany, Italy, and Japan during the Second World War.”

Judging from the dates of his degrees, Widmalm is at least 30 years younger than I am. He knows about  the horrors of the concentration camps only from films and descriptions in books. But I saw the first photographs of the piles of dead bodies found at Belsen, Auschwitz, and heaven knows where else, that appeared in Delhi’s newspapers in 1946. I was seven years old at the time, and for months afterwards the nightmares they gave me made it necessary for someone to hold my hand till I went to sleep.

It has not been easy for me to either forget or forgive. And, lest Widmalm have any illusions on this score, try and try as I have, I have failed.

https://thewire.in/world/debate-to-understand-why-russia-invaded-ukraine-is-not-to-condone-it

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The new recruitment scheme will slowly change the character of the army and also provide well-trained ‘non-state actors’ to further the political agenda of the ruling Parivar.

PM Narendra Modi. In the background is a train anti-Agnipath protesters set on fire. Photos: PTI and Reuters

In eight years as prime minister, Narendra Modi has made surprise his favoured tool for reinforcing his hold on power. He did this in September 2020 with the farm law amendments. With Agnipath, he has done it again. Its government claims that it is a “transformative military reform”. Supporters say it had become necessary to limit skyrocketing pension liabilities that were preventing the acquisition of modern weaponry. BJP leaders also claim that the 75% of Agniveers who are discharged will return to civilian life imbued with discipline and a sense of national purpose. The country will gain from this. 

If that is so, then why has it been met with a storm of protest? Why are the youth of the country, whom it is supposed to benefit, its main opponents? Why is the protest most fierce, and sustained in, Bihar, UP, Madhya Pradesh, Haryana, and Rajasthan? Are these not precisely the states in which the BJP is in power, or has established a firm presence in the past seven years? 

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Imposing embargoes on trade with Russia and punishing those who ignore them by cutting off their international banking facilities will only force uninvolved nations into rival militarised camps.

Ukraine Crisis: The West’s Response Risks Pushing the World Towards a War It Cannot Afford
Russia’s President Vladimir Putin attends a meeting with Azerbaijan’s President Ilham Aliyev at the Kremlin in Moscow, Russia, February 22, 2022. Photo: Sputnik/Mikhail Klimentyev/Kremlin via Reuters


The Indian government’s stance on the Ukraine war is the first time that a genuine consensus of opinion has emerged between the Narendra Modi government and the opposition in our increasingly divided country. Indian opinion is united that Russia’s decision to invade Ukraine without first bringing its anxiety about what was happening to ethnic Russians in the Donbas region to international attention, and without raising its concerns on any of the platforms provided by the United Nations, was a serious mistake. But it is also united in believing that the road back to peace does not lie in the blanket condemnation of Russia, in the blanket denial of every single explanation that Russian foreign minister Sergei Lavrov has given for its resort to force, and in ascribing it to a power-crazed Russian president who has lost touch with reality.

Nor does it lie in sanctions that will cripple not only the Russian economy but also hurt the economies of Western Europe and the rest of the world. Finally, and most importantly, India is rightly angered by the US’s barely veiled threat that these sanctions will be extended to other nations that do not fall in line with US sanctions despite the fact that these have no UN mandate behind them.  

The US has been ‘punishing’ errant nations that have dared to buy oil from Iran in this way through financial sanctions for some time. But Russia is not Iran. Nor is natural gas its sole export. On the contrary, Russia exports a large quantity of coal, oil, semi-finished iron and raw materials ranging from timber to aluminium, nickel, cobalt and gold to the rest of the world. Imposing embargoes on trade with it and punishing those who ignore them by cutting off their international banking facilities or freezing their reserves will only force uninvolved nations into rival militarised camps. That will push the world towards a war that it can no longer afford. 

This is not an alarmist statement, but a reminder of what has happened once already within living memory. On July 2, 1940, US president Franklin Delano Roosevelt signed the US Export Control Act, which authorised an American president to license or prohibit the export of “essential defence materials” to potentially hostile countries. At the top of that list was Japan.

Between then and July 26, these sanctions were applied to an ever-widening range of metals used in the manufacture of weapons and, significantly, to aviation fuel. Nor did the embargo stop there. On July 26, 1941, Roosevelt froze all Japanese assets and bank accounts in the US. Since Japan imported nearly all of its oil from the US, this amounted to strangulation by degrees, especially of its military. A diary belonging to one of Emperor Hirohito’s aides, discovered in the early 2000s, revealed how the Japanese viewed this devastating blow: It quoted the late emperor as saying that Japan went to war with the US because of oil – and lost the war because of oil.

In short, the freezing of Japanese assets left the Emperor with no option but to sanction the invasion of Indonesia and Indo-China in pursuit of oil. The embargo also led to Japan joining Germany’s Tripartite alliance in 1941, and thence to the attack on Pearl Harbour in December 1941. 

A similar gravitation of countries into two potentially hostile groups has begun now. One is forming around the US and NATO; the other is beginning to take shape around Russia, China and Iran. An alarming feature of this development, were it to continue, would be that it will end by disrupting not just the unified global trade and manufacturing systems of the world, but the global payments system as well. This will set off a race to create a second, alternative payments system. And with China’s foreign exchange reserves being close to $4 trillion, the base for creating an alternative payments system already exists. 

Were a Yuan-centred alternative payments system to emerge, the shift of a portion of global financial reserves from the dollar, Pound, Euro and Yen could lead to a steep fall in their value. The consequences of such a shift are not easy to estimate but the possibility that it could trigger a ruinous war should not be discounted. 

Drift towards armageddon

This drift towards armageddon can only be arrested if the West ends its no holds barred effort to pin all the blame for the present situation in Ukraine upon Russia, and upon Vladimir Putin in particular. But how can it even begin to do this after blocking every media channel emanating from Russia except its own? 

The West’s justification for strangling Russia’s voice is that, having already started the war, it has no option but to lie about it now. This may well be true, but does that give the Western countries the right to deny their own people the freedom to hear their opponents and come to their own conclusions? And has it not occurred to the decision-makers in NATO that their denial of this right exposes the hollowness of their own commitment to democracy?

 There can be no meaningful dialogue between nations without a minimum of mutual respect and a willingness to listen. That is precisely what the US and every European government have decided to deny to Russia and to their own people from day one of the invasion of Ukraine. 

A soldier takes a photograph of his comrade as he poses beside a destroyed Russian tank and armoured vehicles, amid Russia’s invasion on Ukraine in Bucha, in Kyiv region, Ukraine April 2, 2022. REUTERS/Zohra Bensemra

What can civil society do?

So what can civil society do to limit its loss of perspective on the Ukraine war? The answer is that we must try to piece together the information we already have to arrive at our own conclusions about  Russia’s motives. 

The starting point of this exercise is to remember how the Cold War came to an end. The crucial breakthrough was made by US president Ronald Reagan and Soviet president Mikhail Gorbachev at Reykjavik, Iceland in 1986. It was given concrete shape in a series of follow-up meetings that ended in the signing of the Budapest Memorandum of 1994. 

The understanding between Reagan and Gorbachev that ended the Cold War was based on the decision to remove intermediate range missiles, dismantle strategic missiles and nuclear warheads, and retain only enough highly enriched uranium for a limited number of nuclear warheads. Both knew that once this was done, the Cold War would, in effect, be over. The creation of a buffer zone of neutral states between the USSR and NATO did not come up at Reykjavik because no one there anticipated the suddenness of the economic and political collapse of the Soviet Union and the dissolution of Warsaw Pact. Consequently, no government in the West anticipated the suddenness with which NATO would find itself without an enemy and therefore without a job. All the problems in the maintenance of a stable peace that have plagued intra-European relations since then have their roots in the suddenness of that collapse.

The speed with which it happened created a succession of challenges that no one at Reykjavik had foreseen. The first arose with the fall of the Berlin wall and the reunification of Germany in 1989. To allay the Soviet Union’s fear that this would allow NATO troops and armaments to be stationed at the very edge of the Warsaw Pact countries, on February 9, 1990, US Secretary of State James Baker assured the Kremlin that NATO would not expand ‘one inch eastward’.

While this remark by Baker has been widely reported, and frequently dismissed as a mere oral reassurance with no legal sanction, what has only recently come to light is that just three months later, in an extensive set of talks with Gorbachev designed to prepare the ground for the summit meeting between him and US president George H.W. Bush in Washington, Baker gave Gorbachev nine assurances that there would be a change in the character of NATO from a military to a political alliance that would not be threatening to Moscow.

Baker’s aim was to allay Soviet fears arising out of Germany’s reunification, by offering the assurance that neither NATO command structures nor NATO troops would be transferred to the territory of the former East Germany. Realising that this assurance would make it difficult to apply NATO security guarantees (especially Article 5 which states that an attack on one member will amount to an attack on all the members of the organisation) to the whole of Germany, Bush also suggested to Chancellor Helmut Kohl that he should, in the future, speak of a ‘special military status’ for East Germany. 

The next, larger challenge came with the disintegration of the Soviet Union, the dissolution of the Warsaw Pact and the plunge of Russia into abject poverty. The mere fact that Baker and H.W Bush had gone as far as they had to reassure the Soviet Union meant that they had tacitly, if not explicitly,  accepted the Soviet pre-condition that the countries around its periphery should not become a part of NATO. But now, with the Soviet Union itself having disintegrated, it became fatally tempting for hawks in the US to argue that commitments made to the USSR did not necessarily apply to Russia. 

US President Ronald Reagan (R) and Soviet President Mikhail Gorbachev sign the Intermediate-Range Nuclear Forces (INF) treaty in the White House, December 8, 1987. Photo: Reuters/File

But Russia had one more bargaining chip – the West’s need to disarm the colossal stock of nuclear warheads that had developed during the Cold War. Dismantling these in Ukraine was especially important because it contained the launch sites of 1,900 missiles with mammoth warheads. This was achieved in 1994 with the signing of the Budapest Memorandum on Security Assurances. In that conference, the US Secretary of State gave another oral assurance that NATO would not expand eastwards towards Russia’s borders. This paved the way for Russia to dismantle its formidable nuclear arsenal in Ukraine, in exchange for aid in rebuilding its economy.

Had successor governments in the US honoured their oral commitments, Europe would have had lasting peace now for more than 30 years. But for NATO, the temptation to fill the vacuum created by the collapse of the Russian economy proved too strong to resist. So NATO continued to expand. At the end of the Cold War, it had 16 members, four more than when it was created. The new entrants were Greece, Turkey, Germany and Spain, all of which were inducted in the 1950s and 60s, at the height of the Cold War.

But in the 1990s, even after the break-up of the Soviet Union and the immiseration of Russia had eliminated any conceivable threat from it to Europe, NATO continued to add new members. By 1999, it had added Hungary, Poland and the Czech Republic, all border states of the former Soviet Union. What is more significant – these countries joined NATO at its invitation.  

After 1999, NATO cast all restraint to the winds and declared an “Open Door” policy for other countries to join it, provided they met its preconditions for entry. Russia protested against this relentless expansion four times, in 1993, 1997, 2007 and finally when NATO was wooing Ukraine, in 2012. Then in 2014, when it appeared that Ukraine would be the next to join NATO, and would demand the vacation of its Black Sea naval base at Sevastopol, it invaded and annexed Crimea

The US reacted with predictable fury, emphasising Russia’s violation of international law, and imposing a whole string of sanctions upon it that were designed to bring its economy to its knees. But it carefully chose to forget that Crimea had been an integral part of Russia, not Ukraine, for centuries; that Russia had beaten off a British invasion of the peninsula in 1853-56, and that Moscow had attached Crimea to Ukraine for reasons of administrative convenience as recently as in 1954, when Ukraine was a part of the Soviet Union. It also chose to ignore the fact that 65% of Crimeans were ethnic Russians and only 15% were Ukrainians.

Finally and most dangerously, the Barack Obama administration ignored warnings by former Secretary of State Henry Kissinger and university of Chicago professor John Mearsheimer to leave Ukraine alone. 

In the Washington Post on March 5, 2014, Henry Kissinger wrote: “The test of policy is how it ends, not how it begins. Far too often the Ukrainian issue is posed as a showdown: whether Ukraine joins the East or the West. But if Ukraine is to survive and thrive, it must not be either side’s outpost against the other — it should function as a bridge between them.” [Emphasis supplied]

Mearsheimer, who gave a 60-minute talk at the University of Chicago in June 2015, also stated without equivocation that the responsibility for creating a confrontation with Russia rested entirely upon the West. Behind its sanctimonious talk about defending ‘orange’, (i.e democratic) revolutions lay a single-minded desire to peel Ukraine away from Russia, and to expand NATO relentlessly till it completely encircled Russia in the west.  

Thirty years of disrespect and broken promises by NATO and its member states help to explain why Putin finally lost patience with the West and decided to use force to bring Ukraine to its senses. But it does not explain either the timing of the attack or the justification he has given – that it was to stop a surreptitious ethnic cleansing of Russians from the Donbas region, towards which the Ukrainian government had been turning a blind eye ever since the annexation of Crimea.

Ukraine’s President Volodymyr Zelenskiy addresses the Australian parliament via videolink, as Russia’s attack on Ukraine continues, in Kyiv, Ukraine March 31, 2022. Ukrainian Presidential Press Service/Handout via REUTERS

Ukraine and Neo-Nazis

The Western media, prepped no doubt by their foreign office spokespersons, have simply ignored, or trashed, these allegations. But could there be any truth in them? An examination of Ukraine’s politics suggests that while Moscow may be exaggerating the extent of ethnic cleansing that has occurred, the possibility that there has been an attempt by irregular forces to ‘cleanse’ the Donbas of ethnic Russians cannot be ruled out. For, nearly 80 years after the death of Hitler, xenophobic Fascism is alive and flourishing in western Ukraine. 

This became starkly clear when, in Ukraine’s parliamentary elections of 2012, Svoboda, a right-wing, fascist party, which is a throwback to the 1930s and is based entirely in western Ukraine, garnered 10% of the vote, and sent 37 members to the parliament. Svoboda’s leader is Oleh Tyahnybok, whose battle cry has been the “liberation” of his country from the “Muscovite-Jewish mafia”.

Tyhahnybok is not all hot air, for he practices what he preaches. In 2010, two years before entering parliament, he rushed to Germany after the conviction of the Ukrainian Nazi death camp guard John Demjanjuk for his role in the extermination of nearly 30,000 people at the Sobibor camp during World War II to declare him a hero who was “fighting for truth”.

His deputy, Yuriy Mykhalchyshyn, is an even more unrepentant Nazi: Not only is he fond of quoting Joseph Goebbels, but he founded a think tank originally called “the Joseph Goebbels Political Research Center.” According to Per Anders Rudling, a leading academic expert on European neo-fascism, the self-described “socialist nationalist” Mykhalchyshyn is the main link between Svoboda’s official wing and neo-Nazi militias like Right Sector.

Had Svoboda continued its run of success in the 2014 and 2019 parliamentary elections it is possible that it would have become more moderate over time. But it went in the opposite direction so its success did not last. In the 2014 elections, its share of the vote plummeted 4.71% and it lost 31 of the 37 seats it had won two years earlier. In 2019, its vote fell further to a mere 2.15% and it won just one seat. But its leadership did not change. So it is entirely possible that its more ultra-nationalist members have drifted right and further strengthened their links with the Neo-Nazi militias. 

This may be the genesis of the attacks on ethnic Russians in the Donbas region that have seemingly pushed Putin over the brink and into war. For what is certain is that neither President Volodomyr Zelenskyy, nor his Servants Of The People party, which is made up largely of workers and ex-communists, and had won an unprecedented absolute majority in parliament in 2019, had any need to resort to such tactics to shore up their popularity. 

Putin’s advisers must know that in Zelenskyy, whose grandfather was a general in the Soviet Army during World War II, they have a Ukrainian president who is not only likely to be more receptive to his complaints but also more wary of NATO’s blandishments. That is why his invasion of Ukraine without first exploring the possibility of direct talks with Zelensky needs to be seen, above all, as a strategic blunder. For it has weakened the one man in the one Ukrainian government with whom he could have found common ground onto which to guide their relations in the future.

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The party’s future lies in defending federalism from Modi’s assaults and building regional coalitions around a programme of development and reform.

‘Out With the Gandhis’ a Cry of Despair; With No Obvious Replacement, Cure May Be Worse than Disease
Sonia Gandhi and Rahul Gandhi. Photo: PTI/Atul Yadav

Ramachandra Guha’s description of the Gandhi family’s leadership of the Congress as a ‘gift to Hindutva authoritarianism’ is a cry born out of despair. Tragically, the description is accurate. The last eight years have seen a planned, creeping destruction of the multi-ethnic and multi-religious democracy that the founders of our republic created. The road the Bharatiya Janata Party (BJP) is taking the country down can easily end in civil war and even disintegration of the Indian Union. But to warn the people of this danger and seek their vote to avert it, a political party needs to identify the early signs of danger, and flag them convincingly for the voters to see. But the Congress’s leadership has not raised its voice to warn the people about the peril they are facing.

As a result, today, the Congress is a party without a programme. Its appeal to voters is based solely on the dynastic connection of Rahul and Sonia Gandhi to Jawaharlal Nehru, his closeness to Mahatma Gandhi and his seminal contribution to the making of modern India. Implicit in this is a sense of entitlement and a demand for trust based on lineage alone. As the Congress’s rebound after the Emergency showed, this was a powerful appeal till 40 years ago.

Dynasty is the past

But the generation that responded to it has passed away and for today’s youth, both Nehru and Gandhi are just a part of history. With innumerable existential problems to face, the current generation has neither the time nor the desire to dwell on the past, let alone pay homage to it. So the appeal of dynastic rule has faded, and will keep fading.

In 2014, the youth of northern India voted overwhelmingly for the BJP because they believed Narendra Modi offered them hope of a better, more secure future. He failed to deliver it, but in 2019 they still voted for him because the opposition had offered no alternative vision of the future either. Three years have passed since then and there is still no consolidation within the opposition, still no clear perception of the threat that a continuation of BJP rule poses to India’s future – and still no offer of an alternative, better future. So, it is looking more and more as if the BJP will win the 2024 general elections too.

If that happens, there is an even chance that by 2029 the Indian Union will cease to exist. This is not an alarmist prediction. It arises out of the pattern that the BJP’s actions have been weaving since it came to power, and especially since its second electoral victory in 2019. For virtually from day one, Modi, Amit Shah and their advisers have spared no effort to dismantle the multi-ethnic, federal India that  Mahatma Gandhi gave his life to create, and replace it with an intolerant, lawless, Hindu-dominated unitary nation-state.

Home minister Amit Shah and Prime Minister Narendra Modi. Photo: PTI

Assault on the federal state

Had Modi and Shah been students of Indian history, they would have known that any such effort is doomed to fail. Even the Mauryan empire, which is the model that advocates of a ‘Hindu Rashtra’ wish to emulate, was more an empire than a nation-state – a collection of socially and culturally independent principalities held together by the promise of peace and help in hard times, backed by the threat of retribution if they rebelled against central authority. When the central authority became intolerable, the empire came to an end.

The first explicit warning that this could happen again was given by DMK  member of parliament S. Kanimozhi on March 16 when, during the Lok Sabha debate on the railway budget, she asked why the Union government had allotted Rs 59 crore for development to Southern Railways, and Rs 13, 200 crore to Northern Railways. “You keep talking about India being one nation,” she said. “The railways also has to understand that it is one nation”.

The depth of anxiety this has aroused in the South can be judged from the way her statement has gone viral. The railways may have a legitimate explanation for this enormous gap but, in a manner that has become this government’s trademark, no one thought it necessary to prepare southern governments for the shock they were about to receive.

This high-handedness is only the latest of a succession of decisions that reflect the Modi government’s contempt for federalism. One of his first decisions in 2014 was to dissolve the Planning Commission and replace it with the NITI Aayog. The change looked cosmetic but was anything but that. Outwardly, Yojana Bhawan remained entirely unchanged. Not a soul working there lost his or her job. The only change was that the NITI Aayog no longer had the responsibility exercised for 65 years by the Planning Commission – of disbursing the annual plan grants to the states upon a consensually agreed basis.

Till 2014, the devolutions had been based upon the famous Gadgil Formula which was a function of a state’s population, GDP, per capita income and level of industrialisation.

The Planning Commission’s abolition opened the way to making plan grants discretionary. The government sought to give it a veneer of justification through a report published under the auspices of NITI Aayog, ‘Central Transfers To States In India Rewarding Performance While Ensuring Equity’. But this year’s railways budget has shown how easily, and even unintentionally, the discretionary power arrogated to the centre can be abused.

Modi’s second essay in centralising power at the expense of the states was his virtual abolition of the National Development Council – the forum of chief ministers that every prime minister since V.P. Singh had used to coordinate social and economic policies after the era of Congress party dominance came to an end in 1989. In January 2015, Modi observed that with the formation of the NITI Aayog, there was no need for the NDC and that it should be dissolved. Since the state governments demurred, he did the next best thing: in eight years he has not called a single NDC meeting.

The BJP’s electoral success in 2019 seems to have increased the Sangh parivar’s appetite for undermining the federal state. The cavalier disregard with which Modi passed the three farm laws in 2020 by ordinance – and bulldozed their ratification through the Lok Sabha – when agriculture is the single most important subject on the state list of the constitution, reflects his growing impatience with the constraints imposed by Indian federalism.

From Article 370 to The Kashmir Files

By far Modi’s most blatant act of contempt has been the reading down of Article 370 of the constitution, the abolition of Jammu and Kashmir’s statehood, and his push for fresh delimitation of constituencies so that more seats can be added to Jammu’s share.

In doing so, Modi has ignored the fact that Article 371 of the constitution gives protections of autonomy similar to those enshrined in Article 370 to seven other small states, six of which are in the northeast.

The decision to tinker with the boundaries of J&K’s Lok Sabha seats shows that the BJP has no intention of respecting the Centre-state consensus not to change the number (or composition) of seats allotted to each state in the Lok Sabha. It also demonstrates how easily this can be done without the consent of the affected state governments.

The threat that a politicised delimitation exercise poses to India’s unity must not be underestimated. The present composition of the Lok Sabha is an essential pillar of Indian democracy and federalism because, in the past 60 years, the population of the northern states has grown far more rapidly than that of the south. If a report by Congress MP Manish Tiwari is correct – that the new Lok Sabha hall in Delhi is being designed to seat 1,000 MPs – then the possibility that Modi intends to swamp the South with additional seats allocated to the North can no longer be ignored.

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