Prem Shankar Jha

The violence in Nuh, Palwal and Gurgaon makes it clear Narendra Modi has fallen back on the one antidote with which he is familiar, which worked unfailingly in Gujarat and in the 2019 Lok Sabha elections. This is the stirring up hatred of Muslims and other minorities in the Hindu majority.

Prime Minister Narendra Modi. Photo:

Nine years into Narendra Modi’s reign as prime minister, one cannot but admire the consummate skill with which he has turned silence and enigma into his most effective political weapon. INDIA, the newly formed opposition coalition, has roundly condemned the BJP’s failure to prevent the civil war that is now raging in Manipur. It has also condemned the sudden and unexpected outbreak of communal rioting in Nuh, Palwal and Gurugram – a bare 40-60 km from Delhi. But Prime Minister Modi’s only response to them has been his now familiar, enigmatic, silence. His response to the no confidence motion didn’t even scratch the surface of the problems there.

Why is Modi silent? What can he possibly gain from silence? Only in the past week has the opposition become aware of the link that binds the two. This is his utter inability to empathise with victims of tragedy, and his dazzling capacity to turn that psychological failing to his political advantage.

Civil war has been raging in Manipur for more than three months. The entire state is split into warring camps. By the first week of July, nine weeks after the civil war started, 142 persons had been killed, dozens raped and several thousand injured or had their homes burned or razed to the ground – in a total of almost 6,000 atrocities reported to the police. Today, the death toll is closing on 200, but Modi not only continues to maintain his silence but, more significantly, has not levelled a word of criticism against Manipur chief minister Biren Singh in all of the three months that Singh has taken to destroy his state and endanger the unity of India.

This is the stubborn silence that drove the opposition into demanding a vote of confidence against his government. Its goal was not to oust him, which it knows is impossible, but just to force him to account for his government’s misrule to the people of India.

Prime Minister Narendra Modi in Lok Sabha on August 10, 2023.

What can possibly have made the prime minister court this indignity? Surely, he knows that showing empathy with the poor is the best way to win their hearts? He has only to remember how Mrs Indira Gandhi’s instant concern for the plight of the poor made her spectacular political comeback in 1980 possible. The pivotal event then was the massacre of Dalits that took place in 1977 in Belchi, a village in Bihar, at the hands of upper caste landowners. Despite being on trial before the Shah Commission for the excesses committed during the Emergency, she flew to Bihar and rode on an elephant to reach the village.

That was the quality of spontaneous sympathy that gave her a near-divine status among the poor. Modi is too good a politician not to know the value of such gestures, so his profound silence has to be traced to other, more pressing concerns. The only one that springs to mind is his growing fear that, with opposition unity solidifying from month to month, the BJP is in danger of losing the 2024 Lok Sabha elections. So he has gone back to the one antidote with which he is familiar, and which worked unfailingly in Gujarat, and in the 2019 Lok Sabha elections. This is stirring up hatred of Muslims and other minorities in the Hindu majority. He did not plan the Manipur violence, but these played into his hands just as the Pulwama attack had done four years ago. It is against this background that one needs to examine the riots that broke out in Nuh.

How dangerously irresponsible Prime Minister Modi’s behaviour is can be judged by comparing it with that of his predecessor Atal Behari Vajpayee. When, within months of the NDA coming to power in 1998, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal raised a hue and cry against conversions to Islam and Christianity, began to attack Christian priests and nuns and vandalise churches, Vajpayee sharply criticised their lawlessness and undertook a fast to force BJP-ruled state governments to take stern action. When cadres of the Bajrang Dal set fire to the car in which Graham Staines, an Australian Christian missionary, and his two sons were sleeping outside a church in Odisha, and burned them alive, he took immediate action. Mass arrests followed, and in less than four years, Dara Singh, the main culprit was in prison, sentenced to death, while his accomplices received lesser sentences.

When the VHP began another campaign against the conversion of tribals to Christianity in the Dang district of Gujarat, Vajpayee pushed the state government to end it forthwith. He also called a conclave of the BJP’s coalition partners and set up a National Coordination Committee headed by George Fernandes as a counterweight to the RSS within his government. That balancing act gave India one of the best governments it has had since Independence.

When the Gujarat riots began on February 28, 2002, after repeatedly failing to contact Modi on the phone, Vajpayee sent defence minister Fernandes to Ahmedabad to call in the army to end the violence. When he visited Ahmedabad a month later, he openly criticised Modi at the Shahpur refugee camp stating, “Main yahan lashe ginane nahi aaya hoonAman kayam rakhna rajneetik neta aur adhikariyon ka zimmedari hai. (I have not come here to count the corpses. It is the responsibility of the political leaders and officials to maintain peace.)”

Atal Bihari Vajpayee. Photo: KUNALJ73/Wikimedia Commons, CC BY-SA 4.0

Compare this with Modi’s steadfast refusal to condemn, and his tacit legitimisation through silence, of the lynching of more than 50 Muslims and Dalits by self-appointed gau rakshaks (cow vigilantes), his three-month long silence as Manipur has burned, and now his calculated silence over the outbreak of communal violence in Nuh, Gurgaon and Palwal. This makes the difference between a Hindu who understood, and wanted to foster, the essential tolerance of Hinduism, and a fake devotee who is abusing it to perpetuate his personal power at the expense of his country becomes starkly apparent.

As I write, Prime Minister Modi has maintained his now-familiar enigmatic silence on the eruption of communal violence in Nuh, Gurgaon and Palwal for nine days. Through his silence, he has endorsed the Haryana home minister’s placing of the blame squarely upon Muslim youth in Nuh who allegedly attacked devotees who came to offer prayers at the Nalhar temple. This allegation has been so readily accepted that even The Hindu reported that “soon after they (the yatris) started the second leg of their journey from the Nalhar temple to a Radhakrishna temple 60 kms away, they were attacked by a mob . As stones were thrown at them and vehicles and shops set ablaze the devotees ran back to the temple in terror. They sat huddled inside for five hours as the mob surrounded the temple”.

This description left out several key facts. The most important of these is that it was preceded by a full year of carefully planned provocation of an entirely peaceful Muslim population by the VHP and the Bajrang Dal, to which the Haryana government consistently turned a blind eye. The first was that while the Nalhar temple was ancient, the pilgrimage to it, titled a Jalabhishekh Yatra (offering of holy water from the Ganges to Lord Shiva) was only three years old, and had been launched by the VHP, with the express purpose of reclaiming Mahabharat-age temples from the Muslims. The article also did not mention that most of the pilgrims in the Jalabhishekh Yatra were not ordinary men and women of all ages but almost exclusively young men.

The second was that the fracas in Nuh town was caused by a string of provocations that had begun a year or more before the violence occurred. The first provocation took place in 2022 when a mazaar (a sufi shrine) was vandalised, but the elders of both communities contained the reaction. This year, however, saw a rapid fire string of further provocations.

First, a self styled gau rakshak named Monu Manesar, who is a Bajrang Dal activist on the run from the Rajasthan police for killing two Muslims, Nasir and Junaid, earlier this year, posted a succession of inflammatory videos and promised that he would attend the Shobha Yatra at the Nalhar temple on Monday personally, to bathe the Shivling in Ganges water.

Monu Manesar. Photo: Twitter/@MonuManesar. January 21, 2023.

Second, another notorious Muslim baiter and self-advertised member of the Bajrang Dal, Bittu Bajrangi, uploaded a series of venomous anti-Muslim videos on various channels, in one of which he claimed derisively that ‘Nuh was the Hindu community’s sasural (in-laws’ house)’. No one failed to understand the insult.

A third agent provocateur who had also announced his intention to join the Yatra this year was yet another Bajrang Dal member who is known by his nom de guerre, ‘Rambhakt Gopal’. He gained notoriety in 2020 by firing a revolver at protestors demonstrating against the Citizenship (Amendment) Act in Shaheen Bagh, shouting “Yeh lo azaadi (Here’s your freedom)” as he retreated, still holding his revolver up, into the protective ranks of a hundred Delhi policemen who did nothing to deter him.

In the run up to the Nuh march, Gopal had uploaded two videos, the first of armed persons in a jeep terrorising women and children in a Muslim village, and the second, captioned “Taking away the cow smuggler” was of young men dragging a Muslim into an SUV.

Neither Monu Manesar nor Gopal turned up at Nuh, but the damage had been done and the town was seething with young men who were determined to take revenge. It was in these conditions that, after visiting the Nalhar temple, the Jalabhishekh Yatris decided to go through the centre of Nuh town to their second shrine, the Radhakrishna temple at Singar village, 60 km away. This made the resulting violence unavoidable.

Then followed the now familiar BJP routine of blaming the victims for the atrocities they had suffered. By Friday, just four days after the riot in Nuh, the Haryana police force that had done absolutely nothing to prevent a well publicised riot, had arrested as many as 141 persons and registered 55 FIRs in connection with the violence. It has not given any data as to who, precisely, they have arrested. But it is safe to assume that just as happened after the East Delhi riots three years ago – where despite 40 out of 53 persons killed being Muslims and most of the property destroyed being Muslim-owned, all but a handful of those arrested were also Muslims – most of those who have been arrested in Nuh will also turn out to be Muslims.

What there is data for already is the revenge that the police has taken upon the Muslims of Nuh. Almost all of the more than 750 homes, huts, shops, restaurants and cinema halls demolished by the Haryana government in the immediate aftermath of the riot, allegedly for suddenly discovered illegal construction, belong to Muslims.

Throughout this tragedy, Modi has maintained his sphinx-like silence while his advisers worked out how to convert the resulting increase in Hindu-Muslim animosity into votes for the BJP in 2024. The first fruit of their cogitations has not taken long to ripen. On Wednesday August 9, a bare 48 hours after the Muslim property destruction drive began, the Haryana BJP chief, Om Prakash Dhankar, had the brazen-faced gall to accuse the Congress and the Aam Admi Party of having instigated the riots. He and his five-member delegation did this without even having visited Nuh, but after the police had prevented a Congress delegation from going to the town on Tuesday and an AAP delegation from doing so on Wednesday.

The causes of the communal conflagration in Manipur may have been local, and the violence unplanned, but the same cannot be said of the tragedy that has befallen the Meos of Nuh. Judging from Modi’s past actions, Nuh is likely to be followed by more communal violence triggered by the VHP and the Bajrang Dal, but blamed upon local Muslims. As the BJP feels more threatened by the INDIA alliance, such provocations are set to multiply. India is therefore likely to go through the fires of hell before the next election. And if the BJP somehow comes out as the victor, it will almost certainly be the last proper general election this country will see.

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Why did the chief justice not consider Prashan Bhushan’s plea for his contempt matter to be handled by some other judge? The answer may lie in the curious fate of a sensational murder case.

The Shadow of Haren Pandya’s Case Lies Long Over Justice Arun Mishra
Justice Arun Mishra, Haren Pandya and Prashant Bhushan.

To say that the Supreme Court’s verdict of contempt of court against Prashant Bhushan has shocked civil society in India would be an understatement. There has been an outpouring of dismay and anger in which even attorney general K.K. Venugopal has joined. Most of the protest has focussed on the blow that punishing Bhushan will deal to civil liberties, notably the freedom to express an opinion,  the freedom to differ and the freedom to criticise – without which democracy cannot survive.

But one feature of the judgment has not received the attention it deserves: the Supreme Court is the court of final appeal in the country. But in this case, it is both  prosecutor and judge. As the Latin phrase goes, Quis custodiet ipsos custodes?, or who will guard the guardians? By filing a suo moto case against Bhushan before itself, the Supreme Court has forced us to ask this question. And to it, there can be only one answer: that task has now devolved upon the people of India. Today the Supreme Court has forced us to sit in judgment upon it. We now have a duty to perform.

Of all the judges in the Supreme Court…

Let me start by asking one question: There are 33 judges in the Supreme Court apart from the chief justice. So why did Chief Justice S.A. Bobde not even notice Prashant Bhushan’s application that another bench conduct the contempt proceedings and leave it to Justice Arun Mishra to head the bench that would  hear this case? Did he not know that Mishra had a history of animosity with Prashant Bhushan?

That animosity was evident even as recently as a year ago when Mishra had severely chastised him in his court for daring to lodge a PIL seeking reinvestigation of the 2003 murder of BJP leader Haren Pandya in Ahmedabad. The CBI’s investigation abounded with bloomers and the Gujarat high court had been constrained to acquit the 12 men convicted in 2007 of the killing by a trial court.

In the event, Mishra and his colleague on the bench, Justice Vineet Saran, reversed the Gujarat high court’s 2011 acquittal, but more about their controversial verdict later.

Bhushan, appearing for the Centre for Public Interest Litigation (CPIL), had asked the Supreme Court to review the entire investigation because of the large amount of new information that had emerged –  of police involvement in various encounter killings that had taken place in Gujarat since 2003, statements of police witnesses in those cases and their accusations made on oath in various courts, without the police even contradicting these, that not only exonerated the 12 who had been acquitted in 2011 but, more importantly, pointed to others.

Pandya’s own family had consistently demanded reinvestigation as they believed the real culprits were never caught. Mishra, while reversing the high court’s acquittals, fined the CPIL Rs 50,000 for “wasting” the Supreme Court’s time.

So if CJI Bobde had wanted to safeguard the public’s trust in the Supreme Court, should he not have paid heed to Bhushan’s plea that any judge but Justice Mishra hear the contempt matter? Since the tweet for which the court wanted Bhushan to be punished concerned the CJI himself, Justice Bobde had a special obligation to ensure there would be no scope for anyone to feel the playing field was not level. Yet he did nothing, thus ensuring the contempt case would be dealt with by the one judge who was likely to ensure Bhushan would be punished.

The curious case of Haren Pandya

Why was CJI Bobde so sure of what Justice Mishra would do? The answer is that the Justice Arun Mishra bench’s reversal of the Haren Pandya murder judgment of the Gujarat high court was probably the single most egregious judgement that any court of higher judiciary, and certainly the Supreme Court, had ever delivered. To see why, it is necessary to revisit the tortured history of the Haren Pandya murder and judgment in some detail.

Pandya was killed at around 7.20 am on March 26, 2003 while sitting in his car in the Law Gardens of Ahmedabad, where he used to take a walk every morning. According to the Gujarat Police, “Pandya had gone to Law Gardens for a walk, as he did every morning. As he parked his car, Asghar Ali (a known hit man from Hyderabad) had approached his car and shot him five times through a three-inch opening in the pane on the driver’s side”.

Asghar Ali’s recruitment for the job, it claimed, was part of a plot hatched by Muslim elements – among them Mufti Sufian, a rabble-rousing cleric of Ahmedabad’s Lal Masjid – that wanted to avenge the post-Godhra carnage. The investigation by the CBI, which took over the case three days after Pandya’s murder, was headed by an Indian Police Service officer named Y.C Modi. Modi had no difficulty in accepting the police’s theory, for he soon confirmed that the CBI  had uncovered an elaborate conspiracy that included links with Pakistan’s ISI and gang lords of the Muslim underworld in Gujarat and Andhra Pradesh. The CBI wrapped up investigations in less than six months and filed its charge-sheet on September 8, 2003.

Based on the CBI’s finding, on June 25, 2007 a special court convened under the Prevention of Terrorism Act (POTA) convicted 12 people. For reasons that no one has ever bothered to explain, but under the tendentious pretext of “security”, the entire trial was held inside the Sabarmati Jail, thus rendering it out of public and media gaze.  Asghar Ali was sentenced to imprisonment till the end of his natural life; eight of the remaining 11 were awarded life imprisonment; two others got seven years and the third, a five-year jail sentence.

High court indicted CBI for shoddy probe

Six years later, on August 29, 2011, the Gujarat high court threw the conviction out. “What clearly stands out from the record of the present case” the court said derisively, “is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired”.

It faulted the CBI for relying heavily on a single eyewitness, Anil Yaadram, whose testimony, it said, could not be believed owing to his behaviour, which it deemed “unnatural”, it detailed the inconsistency between his supposedly eye-witness account and the forensic evidence, highlighted the absence of blood in the car after a man had been killed in it with six, possibly seven, shots from a pistol or revolver  and concluded, “The investigating officers concerned ought to be held accountable for their inaptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the courts”.

Notwithstanding this searing indictment of his investigative competence, Y.C. Modi was elevated six years later, in 2017, as the head of the National Investigation Agency.

Of course, the CBI and the Gujarat government immediately appealed the acquittal to the Supreme Court. But little was heard of the case after that for seven long years – till October 2018, when it got marked to the two-judge bench headed by Justice Arun Mishra and the matter proceeded on a priority basis mid-November onwards.

Justce Arun Mishra overturns HC verdict

The bench announced on January 31, 2019 that it had “reserved” its verdict for a later, unspecified date. It was only on July 5, 2019 that Justice Mishra pronounced his judgment. This was six weeks after the Lok Sabha elections were over and Narendra Modi had been swept back to power. To the surprise and shock of the legal community, the Mishra bench took the unusual step of reversing the Gujarat high court’s acquittal, and convicted the 12 men accused of Pandya’s murder all over again.

Reversals of lower court judgments by the Supreme Court are not uncommon: A 2018 study carried out under the auspices of the National Law University, Delhi showed that it had reversed judgment in 55.3% of the criminal cases that had come to it on appeal. But the reversal of an acquittal by a high court has, to the best of this writer’s knowledge, happened very rarely. The guiding principles for a reversal of an acquittal in any court were laid down in 2008 by Justices R.V Raveendran and Dalveer Bhandari in Ghurey Lal vs State Of UP:

“We have endeavoured to set out the guidelines for the appellate courts in dealing with appeals against acquittal. An overriding theme emanates from the law on appeals against acquittals. The appellate court is given wide powers to review the evidence to come to its own conclusions. But this power must be exercised with great care and caution. In order to ensure that the innocents are not punished, the appellate court should attach due weight to the lower court’s acquittal because the presumption of innocence is further strengthened by the acquittal. The appellate court should, therefore, reverse an acquittal only when it has “very substantial and compelling reasons.” (emphasis added)

The Raveendran and Bhandari judgment laid down these guidelines in a case where the high court had found the defendant guilty of murder after the trial court had acquitted him. In the Haren Pandya case, the Justice Arun Mishra bench did the opposite. To do this in good conscience, they needed to overwhelm the immensely strengthened presumption of innocence bestowed upon the defendants by the high court judgment they were overturning. Did Justices Mishra and Saran succeed in doing so? Let us look at the record.

In their order, the judges said that the CBI had investigated the case “thoroughly and minutely” and that “the conspiracy between accused persons has been found established…It cannot be said that investigation was unfair, lopsided, botched up or misdirected in any manner whatsoever, as had been observed by the high court in the judgment which we have set aside.” The bench then sought to explain why it was rejecting the high court’s conclusions on crucial points.

How could bullets be fired through a 3-inch opening of the car window?

The high court had deduced from sole eyewitness Anil Yaadram Patel’s testimony that the right window glass of the car in which Pandya was sitting was rolled up so high that it would have been impossible for the accused to fire at him through the car window. So Pandya could not have been shot by Asghar Ali in the manner Yaadram described.

The Arun Mishra bench rejected the high court’s conclusion on the incredible grounds that the sole eyewitness on whom the entire case rested may not have been reliable on this crucial question! Yaadram, it said, could not be expected to state accurately how far the window glass had been rolled up at the time of the murder. “Even if the witness had stated so, that would be merely his guesswork,” the judgment added.

Caption: Police photograph of the car Haren Pandya was shot in, submitted to the trial court as police evidence. It can be clearly be seen that the window on the driver’s side is rolled up, leaving just a three-inch opening as the police eyewitness, Anil Yaadram, had testified, and whose testimony – on this crucial point –  the Justice Arun Mishra bench disregarded because to have accepted it would have rendered the CBI’s claim of the shooter firing five bullets into different parts of Pandya’s body, including his scrotum, a complete fiction. Photo: Haren Pandya case documents.


What Justice Mishra ignored was that the police photo taken at the spot, which police witnesses affirmed was the opening when Pandya’s body was removed, also showed the opening to be just three inches or less.

What is more, considering that the case against Asghar Ali and his 11 supposed accomplices and conspirators had been built entirely upon the eyewitness testimony of Anil Yaadram, this decision to accept his credibility selectively cannot possibly meet the need to overcome the strengthened proof of innocence test laid down by the Raveendran-Bhandari bench.

How did five bullets cause seven injuries?

The Justice Arun Mishra bench also went out of its way to discredit the forensic evidence that the trial court had ignored but the Gujarat high court had resuscitated in order to arrive at its verdict. In particular, Justice Mishra went to great lengths to explain how there could have been seven gunshot wounds on Pandya’s body, when only five bullets had been fired at him. The two extra wounds, the judges opined, were “‘communicating wounds’ that were caused when the bullet ‘razes’ the body without entering it.” (One presumes they meant ‘grazes’, as the meaning of raze is ‘to destroy completely’)

This finding is utterly incomprehensible for two reasons: it makes a supposition and then treats it as a fact and, even more seriously, simply ignores the real facts – which are that the forensic laboratory found five bullet holes with an 8 mm diameter and one with a 5 mm diameter and another with a 4mm diameter, besides an elongated gash on the wrist. So, at least two weapons had to have been used while Yaadram testified to seeing only one being fired at Pandya.

A communicating or a graze wound suggests that the bullet has grazed the skin or flesh and fallen. Or if it marks a through and through entry and exit, again it must have fallen, besides leaving a  track. But there was neither a fallen bullet nor a track. So, if five bullets were found in the body, where did the bullets causing the entry in the outer palm under the finger phalanx go? Where did the bullet that caused the graze on the wrist go? What wound was communicated and where?

How could Pandya have been shot upwards through the scrotum while seated?

The Gujarat high court had also held that Pandya could not have been shot up the scrotum through the barely open car window. To refute this finding, and in particular to explain how the bullet could have travelled upwards in Pandya’s body from the scrotum to his abdomen, the Justice Arun Mishra bench falls back once more on Yaadram’s eyewitness testimony: that when Pandya was shot, he “fell in the car and his legs went up”.

They seem not to have realised that this finding violates another guideline prescribed by the Supreme Court as recently as 2013. In Mritunjoy Biswas vs. Pranab @ Kuti Biswas, it laid down that “. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version” (emphasis added)

Let us see if Yaadram’s deposition is ‘credible’ and ‘meets the test of prudence’:  When he was shot, Pandya was supposedly sitting on the driver’s seat in his vehicle, which was a Maruti 800, the smallest motorcar in the Indian market. So, when he was shot through the right side window at close range, he slumped and his legs, were in the well of the car in front of his seat,. But how much could they possibly rise?

For, ten centimetres from the accelerator pedal, they would have encountered the side wall and 15 cms beyond that the door of the Maruti, which rises straight up from the floor of the well to its roof. There was, therefore, literally nowhere for his legs to go – no way for them to come out of the well, and therefore no way for his knees to have come above the steering, or for his scrotum to have risen high enough for a bullet fired downwards through the window  to have moved up in his body to enter his abdomen.

Given the fact that Pandya’s body and buttocks were found firmly on the driver’s seat and only a portion of his head touched the left seat, it should have been obvious to the learned judges that Yaadram had lied outrageously, and that Pandya had likely been killed outside the car and his corpse shoved back into it head first from the driver’s side so that his legs became, as the police claimed, under with the steering wheel.

This is, in fact, the only explanation for the final anomaly in Yaadram’s testimony to which the high court drew pointed attention: the almost total absence of any blood anywhere in the car.

Why did a man shot many times inside a car leave no blood stains?

Claiming to rely upon “medical evidence”, the Justice Arun Mishra bench dismissed the high court’s concerns about the absence of blood stains, saying that the amount of blood would depend on several factors such as the position of the person and whether the injury was internal. This finding has set a new standard in imprecision and self-contradiction. For what the forensic examiners had found was not very little blood but no blood other than an infinitesimal smear on the left seat, too small even to examine, though his body was on the driver’s seat on the right, and a little on the keychain.

And what medical evidence were they referring to that could show that a man would not bleed even a little from five .32 gauge bullets pumped into him at close range, and that all of the bleeding could be internal if the body was in the appropriate position. What is more, they had already interpreted Yaadram’s testimony to infer that Pandya’s legs were at, or above, the height of his body. So then how on earth could he not have bled into the car?

Finally, did the learned judges have any idea of how many major veins pass through the scrotum? The following diagram of one testicle, taken from Wikipedia, would have told them how many:

Scrotum diagram. Photo: Wikimedia

One of the veins connected to the scrotum is the Inferior Vena Cava, among the most important veins in the human body. It is inconceivable that a wound to the scrotum, let alone a bullet wound, would not have bled profusely all over the driver’s seat and into the well at his feet.

But hubris is a disease in the Indian judiciary. Judges have grown so used to having their verdicts not scrutinised by the public that only the best among them now bother with such trivial issues as logic, consistency and clarity.

It is, therefore, difficult not to conclude that Justice Mishra was determined to prevent the question “Who really killed Haren Pandya?” from ever surfacing again. It is not for me to speculate on his reasons for doing so.

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A quarter of a century ago, at the formal  White House press conference that followed Indian prime minister Narasimha Rao’s one-on-one meeting with President Bill Clinton during his state visit to the United States in April 1994, President Clinton had heaped lavish praise upon  India for doing what no other modern country  had succeeded in doing before. This was to create  a stable nation  state  using the tool of democracy, instead of War. Clinton  said this because it was the very opposite of the way in which nation states had been created  in Europe in the tumultuous century that had preceded the signing of the Treaty of Westphalia, in 1648.

Till the advent of globalization, the archetypal European Nation State  had hard frontiers, a unitary political structure and a culturally homogeneous population  with a single national language. This uniformity had been imposed upon its citizens through a mixture of education, cultural assimilation and ethnic cleansing.

The process had been violent. It had begun with the Hundred years War , the most bloody and ruinous that Europe  had experienced till then. It reached its Valhalla in the 31-year period of the 20th century that embraced  two world wars, the Russian revolution, the Turkish pogrom of Armenians, and the  Holocaust. Altogether, this ”Age of Catastrophe”  claimed more than a hundred million lives.

But human perceptions have been slow to catch up with reality. So, even after  the second world War the European Nation State remained the only accepted model for a viable  modern state.  In the Age of Decolonisation that followed, 131 new nations became members of the United Nations. All but a few started out as democracies but only two, Costa Rica and India,   succeeded in sustaining and stabilising it.

The similarity, however, ended there: Costa Rica is a very small, unitary State with a population of just over 4 million. India by contrast is the second largest nation in the world, with a population of 1.3 billion, with 12 major and scores of smaller ethno-national groups, most of which have their own language, long histories as independent nations,  and  strongly defined cultural identities.

Under the sagacious leadership of Mahatma Gandhi, the Congress party was able to fuse them into a single nation because, unlike the majority of the other newly emergent nations, it  made no attempt to create a replica of the European Nation State.  Instead it celebrated India’s diversity and used democracy and federalism to create unity  within it.  What emerged after three decades of fine tuning was  a “federation of ethnicities” – that the Indian Constitution explicitly describes as a ‘Union of States’ in which each ethno-national group enjoyed an equal place within a framework defined by the Indian Constitution.

The Mortal Threat India Faces

This is the  unique achievement that is now under mortal threat. For in the elections to the national Parliament held in  2014, power passed decisively from the Congress party, into the hands of its main rival, the Bharatiya Janata Party (BJP), which considers India’s religious and  ethnic diversity to be not its strength but its weakness,  and is committed to replacing it with a muscular , hyper-nationalist Hindu Rashtra ( Hindu nation), bound together by  Hindutwa ( Hindu-ness) a Hindu cultural identity,  in which non-Hindus can  be accepted,  but  never on equal terms with the Hindus.

In contrast to Hinduism, which is less a religion than a way of life and is at least three  millennia old, both Hindutva and Hindu Rashtra are synthetic concepts, created only 96 years ago, in 1923. Their progenitor was a Maharashtrian intellectual,  Vinayak Damodar Savarkar who  passionately believed that the ethnic and religious diversity of India was the main stumbling block to the creation of a revolutionary movement strong enough to force the British out of India.

Savarkar argued in his now famous book,  Hindutva, that Hinduism had to develop the cohesion that Muslims all over the world had shown to resist Britain’s abolition of the Caliphate, whose titular head had , for centuries been the ruler of the Ottoman empire.  It was the rapid spread of this  Khilafat ( opposition) movement among Indian Muslims that gave concrete shape to his concept of Hindutva. The Muslims, he argued,  were capable of uniting rapidly to defend an institution located a quarter of a world away that they barely understood, because of the unity their religion gave them.  Hindus who had no church, and no clergy comparable to those of Islam and Christianity had no such capability. If they wished to free their motherland from slavery. they needed to develop it

The three essentials of Hindutvahe concluded, were a common nation (rashtra), a common race (jati) and a common culture or civilisation (sanskriti). The impress of European Fascism  on his thinking  was reflected by the similarity of this slogan with the German Nazi party’s ein volk (one people), ein reich (one nation), ein Fuhrer (one leader). And just as the Nazis decided that Jews could not be a part of this ‘volk’, Muslims and Christians could not belong to the Hindu jati (genus), because their sanskriti (culture)  and their prophets originated outside of the Hindu civilisation.

The threat to India arises from the fact that economic globalization has made  the European model of the  Nation State obsolete. The BJP and RSS’ effort to duplicate it in India has therefore come a hundred years too late. The most they can hope to achieve now is to turn India into an extreme Right wing citadel  State. But, as the  European experience with German fascism and the  disintegration of the Soviet Union  has shown,  this  is foredoomed because it  can lead only to war or rebellion, followed by disintegration.  Either of these will bring about the end of the great democratic experiment of building a modern nation state through democracy that Gandhi, Nehru and their colleagues in the Freedom movement embarked upon in 1947.

Averting this looming disaster is going to be a Promethean task. It cannot be done  by appealing to traditional caste loyalties and deal-based politics to overthrow the BJP any longer. Since the BJP’s challenge is an ideological one, it can  be fought only by exposing its  hollowness and inherent destructiveness and remind all Indians of true religious and ideological mooring, which is in religious syncretism – the constant effort to create harmony between religions and cultures, in place of conflict.

The Congress’ constant  description of itself  as a ‘secular’ party  has made it an easy target for the votaries of Hindutwa,  because of the aura of irreligiosity that surrounds the word. The guiding philosophy that has underpinned not only the modern Indian state but all major empires in India’s history, and from which India’s comfort with ethnic and religious diversity springs,  is not secularism or even pluralism, but religious syncretism. This springs from the philosophy and practice of  ‘Dharma’.

 Dharma -the antidote to Hindutwa

Dharma is the original faith of Vedic India. There is no reference in the Vedas, the oldest texts of the Indo-Aryan civilization,  to a Hindu Dharma, because the word ‘Hindu’ was coined by the Persians 3,000 years ago to describe the land of the Sindhu ( I.e Indus) river. It was brought to India from Persia more than two  millennia later by the first Muslim invaders who came through Afghanistan and Persia.

Dharma was not a religion in the modern,  exclusivist, sense of the word, because the Messianic religions that are now the subject of  most discourses on religion had not even been born when the word was coined. Dharma prescribed the right way of living: it dwelt at length on how people needed to relate to each other and to the wider world and the cosmos that surrounded them.

The Rig veda differentiates between different forms of dharma, such as prathama Dharma ( the first duty), Raj Dharma (the duties of the King to his subjects) and Swadharma ( our duty to ourselves). But every one of these centers around the concept of human duty, which is “to uphold, to support, to nourish”.

“Dharma” was the word  Gautama Buddha used to describe his sermons on the four noble truths and the eight-fold path. Western students of comparative religion, have done Buddhism a disservice by presenting it as a new religion, because this has made it one among several religions, including the three Messianic religions, Judaism, Christianity and Islam.

Buddha’s use of the Vedic term suggests that he considered himself to be a social reformer and not a prophet. What he had rebelled against was the corruption of Dharma, and the growth of Adharma. These were  caused by self-absorption, avarice, expensive and impoverishing ritual, and Brahminical control. Buddhism was, in fact, the first great recorded rebellion against organised religion in human history. Buddha’s use of the Vedic term suggests that he considered himself to be a social reformer of Dharma ( the Buddhist Dhamma) and not a prophet founding a new religion.

A critical difference

Describing Buddhism as one of several prophetic religions, as most students of comparative religion in the west habitually do,  has obscured a critical difference between Hinduism, Buddhism and other mystical religions on the one hand,  and the Messianic ones—Judaism, Christianity and Islam, on the other. Messianic religions have to be professed. Belonging to the latter requires a profession of faith in it and a repudiation of other faiths. It is a surrender of oneself to the ‘true’ God, and its reward  is the possibility of gaining absolution for one’s sins through repentance, in this life.

Mystical faiths, of which Dharma is the oldest,   have to be lived. Only virtue in this life can gain the soul freedom from the chain of rebirth. Dharma  requires no profession of faith, no submission to a single prophet. And it offers no easy absolution from sin. It is the Hindu way of referring to Buddhism, as Bauddha Dharma, and the remark that Hindus frequently make even today – “yeh mera Dharma hai” ( This is my duty) that capture its essence.

The idea of Religion as a set of beliefs that have to be practiced and not merely professed is not limited to Hinduism and Buddhism, but has managed to carve out a niche in Islam and Christianity as well. In the 11th and 12th centuries, it found a home in a Christian sect called the Cathars (or Albigenses) in southern France and Spain, and in some branches of Shia Islam such as the Alawis of Syria, Iraq and Turkey.

Not surprisingly, both sects have been treated as heretical apostates by the clergy of orthodox Christianity and Islam. In AD 1200, Pope Innocent III launched a little known Fourth Crusade against the Cathars, and instructed the knights and Barons who joined it to kill all they met without mercy, and leave it to God to sort out the heretics from the true believers. As for the Alawis, the most recent of innumerable attacks upon them in Syria has still not ended.

But in the sharpest possible contrast, the encounter  between Dharma and Islam in India has been peaceful. Dharma’sfirst encounter with Islam occurred when Arab traders came to Gujarat and built mosques there in the 8th and 9th centuries. Not only did this not spark religious conflict but, as contemporary Jain texts recorded two centuries later, when an Afghan invader, Mahmud of Ghazni,  attacked the famed Somnath Temple ( Temple of the Moon God) in Gujarat, the Arabs who had by then been living there for generations, joined in the defence of the temple and died to protect it. The fact that Somnath was a Hindu temple did not matter to them. It had to be defended because it was important to the Hindus among whom they lived.

The second, more prolonged, interaction between Dharma and Islam occurred after the establishment of the Delhi Sultanate by another Afghan invader Muhammad Ghori, in 1193 AD.  The period that followed  is the one  that the RSS would like to erase from Indian memory, if not from history.

But it was a period in which there was an unprecedented flowering of art, music and literature. It was the time of Amir Khusro, the first Indian pet who wrote in Persian. It was the time when Indian and Persian music and dance fused to create a distinct new Genre, the khayal gayaki and the Kathak dance.  It was the period during which the delicate penmanship of Persian miniature painting fused with the vivid colours of Hindu art to create a profusion of Moghul, Rajput, Kangra, Basohli and other schools of miniature painting in India. It was the time when the Indo-Islamic architecture that has given the world wonders like the Taj mahal, and Humayun’s Tomb, was born.

Hindutva’s selective memory 

The ideologues of Hindutva ignore all this and prefer to dwell on the defeat of the Rajputs, the destruction of temples and the conversion of large numbers of Hindus to Islam during this period. This is a manufactured litany of defeat, that  they use to fan hyper-nationalism, Hindu religiosity and hatred of the Muslims.

But here too,  their  ‘memory’ is selective and distorted. The Rajputs, who then ruled most of north India were ,admittedly, driven into the wilds of Rajasthan. But their defeat arose from the superior military technology of the invaders — such as the superiority of cavalry over elephants, and of archers over infantry – and not from any innate superiority of the (Muslim) fighters. On the contrary, the conquerors recognised the valour of the Rajputs and quickly inducted them into their armies.

The votaries of Hindutva harp endlessly about the damage the Muslim invaders did to the Hindu polity and society, but they again choose to ignore the fact that the same Muslim dynasties saved India from the greatest scourge of the Middle Ages – the Mongol invasions that ravaged Europe. Like other impoverished groups from the Asian steppes, the Mongols first tried to invade India. Their first foray, in 1243, took the Delhi Sultanate by surprise and the Mongols  were able to come all the way till Lahore, now Pakistan’s most beautiful city,  and sack it to their leisure.

But that was the last time they were able to enter the plains of India. Ghiyasuddin Balban, the ruler in Delhi at the time, created a standing army – India’s first – built a string of forts along the border and prevented all subsequent invaders from getting far into the plains of Hindustan. After his death, another warrior king of the Delhi Sultanate, Alauddin Khilji, inflicted two successive defeats on them in 1304 and 1305, with such great slaughter that they turned towards Europe and never returned.

Temples were admittedly destroyed, and precious art, sculpture and architecture irretrievably lost, but the motive of the invaders, like that of invaders everywhere else in history,  was pillage not forced conversion to Islam. All but a fraction of the conversions that took place in the next 400 years were voluntary.

The converts came from the lower Hindu castes. They converted because Islam offered an escape from the iniquities of caste – in much the same way as Buddhism had done two thousand years earlier, and as the Bhakti ( devotion) anti-Brahmin movement in south India had been doing since the seventh century, well before the arrival of the Muslims. Far from being a blot on the conquerors, these conversions were an impeachment of the Brahmanical, temple-centred Hinduism from which they had been systematically excluded.

Reconciliation between Hinduism and Islam

In northern India, the encounter between Islam and Hinduism proved beneficial to both in important ways that the Sangh parivar prefers not to remember. In Hinduism, it weakened the link between religion and the state by cutting off the single most important source of patronage to the temples. As state patronage dwindled, Brahmins, who had previously flocked to the peeths and mutts were forced to remain in their villages and tend to the spiritual needs of the villagers. The emphasis in their functions, therefore, shifted from presiding over elaborate temple rites to providing guidance on the issues the villagers  faced in their everyday lives. The importance of ritual in Hinduism therefore declined and that of Dharma increased.

Hinduism  met the challenge from Sufi Islam by disseminating the core ideas of Dharma, already espoused and rejuvenated by the Bhakti movement,  through the literature, poetry and song of Tulsidas, Surdas, Kabir, Rahim, Mira Bai, Tukaram, Chokhamela and a host of lesser-known poets, bards and singers. The interaction between the two made Hinduism accessible and mellowed Islam further, to the point where except for scripture, little remained of what had divided the one from the other. No couplet I know captures this more succinctly than one by Kabir that I learned as a child and have never forgotten:

Moko kahaan dhoondhate bande, Mai to tere paas me;
Na Mai Mandir, na Mai Masjid, naa Kaaba Kailash me.

(Where dost thou seek me oh devotee, for I am right beside thee; Not in a temple, nor in a mosque, not at the Qaaba, nor on Mount Kailash, shalt thou find me).

This profound reconciliation between Hinduism and Sufi Islam is perhaps best reflected in the writings of Guru Nanak and the other gurus of Sikhism. And it was not confined to the villages. It was codified by no less august a person than Emperor Akbar as the Din-e-Ilahi, the religion of God, at the height of the Moghul empire. Some British historians have hailed it  as an attempt at founding a new religion based on universal tolerance. Others have dismissed it as a religion that never had more than 19 followers.

In fact, Akbar had no such intention. The Din-e-Ilahi was no more than a distillation of what today’s corporate world would call “current best practices” of the heterodox population of India.  It propagated sulh-i-kul – universal peace – and urged ten virtues upon the realm. Among these were: liberality and beneficence; forbearance from bad actions,  repulsion of anger with mildness; abstinence from worldly desires; frequent meditation on the consequences of one’s actions and “good society with brothers so that their will may have precedence over one’s own”, in short, putting the well-being of one’s fellows ahead of one’s own.

Akbar’s goal was not proselytization. Unlike the great Mauryan emperor, Ashoka’s Buddhist edicts of  1800 years earlier,  Akbar issued no edicts. Nor did he create a religious police to oversee their observance.

The significance of the Din-e-Ilahi lies  in what it did not prescribe: It did not ascribe primacy to Islam, and it did not give a special place to Muslim clergy within the structure of the state. Instead, it declared emphatically that “he (the emperor, i.e. the state) would recognise no difference between [religions], his object being to unite all men in a common bond of peace”. The entire document was, therefore, a restatement of Dharma in a contemporary form. If any “ religion “ can claim to have emerged the victor in the grand ideological battle that ensued after thearrival of Islam in India, it is Dharma.

Among Hindus  the practice of Dharma has been – and remains – sullied by its endorsement of the notion of ritual purity and pollution that is associated with caste. But its core idea, that true religion is not what we preach but what we practice, has remained the driving force behind all movements for religious reform from the Buddha till the present day. It is what Swami Vivekananda electrified the ‘Parliament of Religions of the World’ in Chicago in 1893 with, by explaining that Hinduism does not merely tolerate, but accepts, all the great religions of the world because they are like different paths up the same mountain, or different rivers that flow into the same sea.

Even the blood-soaked partition of India and  Pakistan in 1947 did not kill off the syncretic impulse in Islam. It has led to a sustained study of the writings of Dara Shikoh, the grandson of Akbar, and his successor Shah Jahan’s eldest son and heir apparent in Pakistan.  Dara Shikoh was  a scholar of Sanskrit and translator of the Bhagavad Gita, one of Hinduism’s holiest texts. He had made no secret of his fascination with Din-e-Elahi, and of his intention to propagate it throughout his realm, before  his life was cut short by his youngest brother,  Aurangzeb.

In 2010, the noted Pakistani playwright, Shahid Nadeem, wrote a play, ‘Dara’, that highlighted his syncretism, as a protest against the rampant Islamic sectarianism that Partition had unleashed upon Pakistan and was, even then, tearing it apart.

Three years later, two Pakistani historians from GC University, Faisalabad, published a peer-reviewed paper in the International Journal of History and Research titled Dara Shikoh: Mystical And Philosophical Discourse‘, which highlighted his belief that “the mystical traditions of both Hinduism and Islam spoke of the same truth.”

This is the awe-inspiring syncretism of religion in the land of Dharma. It is what has made Indian Muslims virtually immune to the lure of the Islamic State in Syria and Iraq:  Against the 27,000 to 31,000 Europeans who joined it, the number of Indian Muslims was only 106.  Of these, only three went directly from India. The rest were recruited while they were migrant workers in the Gulf.

This is the awe-inspiring syncretism of India that  the votaries of Hindutva and Hindu Rashtra are bent upon destroying . Hindutwa is therefore  the complete   antithesis of dharma.

From Where Has Hindutwa emerged?

In the 1920s, the desire to militarise Hinduism  could perhaps have been condoned, for  it was  a counsel of despair. The Congress was still only a middle-class debating society, Mahatma Gandhi’s doctrine of satyagraha (passive resistance in order to paralyse government)was still largely untried, and the British had taken to shooting down or  hanging freedom fighters after labelling them terrorists. But the last shred of this justification lost its raison d’etre when  India gained its freedom.  For the creation of Pakistan had fulfilled at least one of the goals of the RSS – it had rid India of all the Muslims who did not accept that they were part of Savarkar’s  ‘Hindu sanskriti’.

The one-third who stayed in India had therefore declared their alleigiance to India  with their feet. So what fuelled the frantic rage against Partition that the RSS vented in  immediate aftermath of Independence? Why did they rejoice openly when Mahatma Gandhi was assassinated and lionize his assassin, Nathuram Godse? And what has made them continue to demonise Indian Muslims after they had ceased to be a threat to “Hindu” India?

The explanation is that the RSS’s goal was not simply to oust the British from India, but to take their place in order to  create  a Hindu India moulded to fit their image of Hindu Rashtra.

Today, the Sangh parivar is trying to pass off Savarkar and Keshav Baliram Hedgewar, the founder of the RSS, as freedom fighters. But the biographer of Hedgewar, and some of the remarks of his successor Golwalkar show, from the Dandi Salt March in 1929 till Gandhi’s Quit India call in 1940, the RSS stoutly opposed every attempt to secure freedom through the Gandhian way of  satyagraha (passive non-cooperation),  and even offered its cohorts to the government to act as civil guards to quell the unrest that Gandhi’s call would generate.

To the RSS, freedom was less important than power. It needed more time to create the Hindutva legions with which it hoped to storm to power. And as with fascism in Europe, it required an enemy that it could persuade people to hate and fear, to facilitate their creation.

Caught by surprise by the  Partition, which Mountbatten announced only in March 1947, the RSS made an attempt, nonetheless, to seize power in the wake of the turmoil unleashed by it and the assassination of Mahatma Gandhi. That got it banned for several years, but the seizure of power remained its unswerving goal through all its subsequent vicissitudes.

What happens now?

The BJP’s second victory in 2019,  has removed all the political and constitutional hurdles to achieving the goal that the RSS had set itself in 1923.  Narendra Modi has brought it to power on a wave that will almost certainly sweep through the state assembly elections as well,  and give it the  majority in the upper house of parliament that  it needs to change the constitution of India. But he, and the RSS are in a hurry and have little  appetite for the debates that wll rage in parliament and civil society when the government  presents bills for radically altering the structure of the constitution.   As a result it is resorting to legal sleight of hand to start ethnic cleansing, and to dissolve the constitutional safeguards that protect  India’s ‘federation of Ethnicities”.


Ethnic cleansing began in earnest within weeks of its coming back to power.  The government  finalised  a National Register of Citizens in Assam, that left out  1.9 million persons who had  lived in the state  with their families and children for five and more decades. To house them ‘temporarily’ till they are repatriated to Bangladesh or elsewhere, the government is   building “detention” camps for them all over Assam, and  has issued a directive to the administrative heads of all of India’s 724 districts to chalk out sites for building similar camps in their districts when the need for them arises.

That the intended targets are Muslims immigrants from Bangladesh became apparent when the BJP government in Assam asked for an  amendment to the citizenship rules that would allow it to limit the externment only to Muslim immgrants from Bangladesh.

The  assault on India’s religious syncretism has been launched in the one  place  where it had continued to flourish till well after Partition, and where it still survives today. This is the state of Jammu and Kashmir. On August 5, the government used a constitutional sleight of hand to dissolve the statehood  of Kashmir, and turn it into a “union territory” and administer it directly from Delhi, without any reference to its legislature or people.

The closest parallel in history to BJP’s victory this year is Hitler’s return to power in March 1933. The Nazi campaign too was based upon hatred and paranoia. Its targets were principally the Jews, but also the Gypsies whom they considered another inferior, polluting, race and the Communists.

Like the BJP today, the Nazis took advantage of the collapse of the German economy after the Wall Street Crash of 1929 to seize power in 1930 with 33% of the vote. Three years later, their hate rhetoric had pushed up their vote to 43%. Within days of the January 1933 results, its storm troopers duped a Communist sympathiser into setting the German parliament building on fire and helped him do it. In the anti-Communist hysteria that followed, Hitler was able to win the March 1933 elections,  persuade President von Hindenburg and the German parliament to pass an enabling act giving him extraordinary powers,  declare him hancellor for life and thus destroy the Weimar Republic. His storm troopers then systematically attacked Jews, Gypsies and Communists, set up internment camps and when these became too expensive to maintain, sent them to the gas chambers.

The Nazi experiment ended in the defeat, destruction and vivisection of pre-war Germany. The Hindutwa experiment has just begun, and we cannot predict with certainty where it will end. But the future looks grim. The Modi government has another four years and eleven months to go. Only an opposition,in parliament, and civil society, that rediscover Dharma, and pits it against  Hindutwa, has any chance of stopping the rush to disaster.

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The prime minister continues to demonise those who dissent, and that message has been made clear to his supporters.

The Struggle for India's Democracy Is Only Just Beginning
Protest against the CAA, NRC and NPR in Bengaluru on Saturday. Photo: PTI/Shailendra Bhojak

On December 22, India reached a crossroad in its tortured journey towards nationhood. For the first time in more than five years – and 17 years, if we count his time as chief minister of Gujarat – Prime Minister  Narendra Modi took a step back from a policy that he had previously committed himself to.

On that day, in the middle of a one-hour-and-37-minute speech at Ramlila Maidan in Delhi, he declared that it had never been his government’s intention to create a pan-Indian National Register of Citizens (NRC) on the Assam model. In fact, he claimed that his government had never discussed a nationwide NRC at all.

The NRC, he claimed, was the brainchild not of the Bharatiya Janata Party but of the Congress, for it was born out of Rajiv Gandhi’s 1985 Assam Accord. It was the Congress’s subsequent failure to implement it that made the Supreme Court issue a directive in 2012 to create the NRC forthwith. The BJP had only obeyed the court’s directive. So the blame for the entire exercise lay with the Congress not having lived up to its 1985 promise. There would be no similar exercise, he promised, in any other state.

He also pointed out that the Citizenship (Amendment) Act, 2019 (CAA) was intended to give citizenship only to non-Muslim refugees who were already in India. He did not say what he would do for Hindus and others who were persecuted in the three countries mentioned – Pakistan, Bangladesh and Afghanistan – in the future.

He went on to reassure Muslims that no Muslim born on Indian soil needed to fear the CAA in the slightest, because it was intended to benefit victims of religious persecution in neighbouring countries. His government had never said that it would turn away anyone who sought refuge from persecution in any of these countries. The purpose of the CAA was simply to sniff out migrants who had entered India surreptitiously in search of work, or for any other nefarious purpose.

The hope…

Was Modi’s assurance on an all-India NRC a pullback from an over-extended position – a tacit admission that the forces of democratic pluralism were too strong for his party to resist if it wished to retain people’s trust? There was enough reason to hope that it was.

By December 22, Modi had realised that he was facing the beginnings of a nationwide rebellion against the CAA and NRC. The governments of 10 states in “heartland” India – Punjab, Rajasthan, Madhya Pradesh, Chhattisgarh, Delhi, Bihar, Bengal, Odisha, Tamil Nadu and Kerala – had already announced that they would not implement the NRC and the CAA. The BJP was about to lose Jharkhand. A 12th state, Andhra Pradesh, had joined the other 11 and even in Karnataka’s Bengaluru, the crown jewel of the state has seen students coming out to oppose the government’s move.

In addition, the entire Northeast up in arms. So Modi had only Uttar Pradesh and six other states – Haryana, Himachal Pradesh, Uttarakhand, Karnataka, Goa and Gujarat – behind him. His home minister, Amit Shah, had thundered in response that the states’ opposition was irrelevant because “citizenship is a central subject in the constitution”. But both of them knew that with Article 356 of the constitution virtually a dead letter after the Bommai judgment of 1994, and administration in the hands of the states, there was little they could do.

The BJP’s setback in Jharkhand – after those it had suffered in Maharashtra, and to a lesser extent in Haryana – had shown that the party’s post-election honeymoon period was almost over. So using the launch of his campaign for the Delhi state assembly elections as an occasion for beating a tactical retreat seemed like the logical thing to do.

… And the harsh reality

It is only when we examine the audience that had collected at the Ramlila grounds on December 22, and parse Modi’s 97-minute speech closely and relate it to what has been happening since then, that we realise what Modi had declared was not a tactical retreat but an open war upon Indian democracy.

The most noticeable feature of the crowd that had assembled was the absence of women. Among the 78-80 persons seated in the first seven rows of one of the enclosures captured by the camera, only five were women. Another view, of about 60 persons in the right one-third of the front enclosures, clearly showed only four women. A third, aimed at what was seemingly a VIP enclosure directly in front to the dais, showed 14 well-dressed women in a crowd of 83. There were small clusters of women visible in a few other pockets as well, but all in all, the men present outnumbered the women by ten to one, if not more.

The  men had a curious sameness about them. All but a very few were young and fit. Most sported moustaches, and wore orange caps, scarves, shirts or shawls. And against a lone tricolour planted directly in front of the dais, there was a forest of the BJP’s lotus flags waving in the field and obscuring the cameras’ views.

The relative absence of women, a total absence of children, the sameness of the men and the ubiquity of flags were a dead giveaway: This was not a spontaneous gathering to hear a popular national leader, let alone a popular prime minister. This was a hand-picked gathering brought to the Ramlila ground, as a BJP leader admitted to India Today, in 3,000 hired buses. The audience make up also strongly suggested that these were members of RSS shakhas from far-flung places in, and beyond, Delhi.

Ostensibly, they had been brought to kick off a Delhi election campaign, but Modi used the occasion for a very different, specific purpose. What this could be had been revealed in an expansive moment in February 2018, by the RSS sarsanghchlalak Mohan Bhagwat. Bhagwat had boasted that “his organisation could assemble its cadres to fight much faster than the Indian army could in a situation of war…The Sangh will prepare military personnel within three days, something the army would do in 6-7 months. This is our capability. Swayamsewaks will be ready to take on the front if the country faces such a situation and constitution permits us to do so.”

Bhagwat was talking about an external enemy, but Modi’s message to the assembled shakhas was that the threat was internal. All but the last part of his speech was designed to advise them that their time had come. The Sangh parivar needed them to come to the aid of the police in suppressing dissent, and restoring order in the nation. If they did not respond, then all that the BJP had done for the people of India, and for Hindutva, would be in vain.

Modi devoted the first 30 minutes of his speech to listing the many things he had done for the people of Delhi and the nation’s poor – housing for the poor, a health insurance scheme, the Ujjwala cooking gas scheme. Then he added:

“ We have never asked anyone their caste or creed before granting benefits, then why are the opposition and some persons allied with them, accusing me of doing so!”

Prime Minister Narendra Modi speaking at Ramlila Maidan. Photo: PTI

With his characteristic disregard for the finer points of truth, he omitted to mention that Delhi has been ruled for the past five years by the Aam Aadmi Party, and that every one of these schemes has already been implemented without consideration of caste or creed – but by the AAP. He also failed to mention that the AAP had already created a cheaper and more efficient network of mobile clinics that had brought medicine to the doorsteps of the poor in Delhi four years before he announced his health scheme last year.

Modi’s real message

All this, however, was only the overture. The true purpose of the rally emerged only halfway into the speech. All of a sudden, Modi became the people’s friend, having a cosy gossip with them: “When we came to power first,” he said with more than a touch of glee, “these people could not believe it. They tried to sabotage me even then, and they thought that I would be rejected in the next election. When the people brought me back with a larger vote the second time, they were struck dumb with amazement. Since that day, they have been looking for ways to create a storm in the country.”

Who are these people? Modi asked in a conspiratorial tone. Then, as if sharing a secret with them, he said: “It is these educated people, who live in cities, who speak  English, these urban Naxals. It is they who are instigating attacks upon policemen, and urging mobs to shoot and kill them as they do their duty.”

Then, over the roar of a frenzied audience shouting “Modiji ishaara do, Ham tumhare saath hain (Modiji give us a signal. We are with you),” Modi roared: “To protect the common people of Hindustan, 33,000 policemen have martyred themselves since we gained our freedom. This is the selfless force that these lawless elements, and those who hide behind curtains and direct them, are now stoning and killing.”

Killing? Yes, that is the precise word Modi used on that fateful evening. Nor did he leave any doubt in his listeners’ minds about who the hidden instigators are: “These are of two kinds: those who have never risen above vote bank politics, i.e the entire opposition, and those have profited from this vote bank politics, who think they own the state, who think that the history they write is the correct history, the future they aspire to is India’s future…who used to think that they owned the country. Now that they have been decisively rejected by the people, they have resorted to their old weapon: ‘divide and Rule’!”

Then, as the crowd’s roar grew to a frenzy, came the clincher: “Will you back the police?” The crowd roared, “Yes.”

“Will you honour them?” “Yes”.

“Will you show them respect?” Again the roar, “Yes!”

To swelling cries of “Aadesh, aadesh (Give us the order, give us the order)” from the frenzied young men in saffron caps and shawls before him, Modi said, “To honour their martyrdom we have built a monument to the police in the city. I ask all the people of the 1,700 colonies of Delhi, will you go to the police monument and offer flowers to the martyrs?…Will you respect the police? Will you treat them as your brothers? Will you honour them and give them the respect that is their due?”

To each rhetorical question, he received an enthusiastic assent.

Police as ally and accomplice of RSS

Modi has seldom said or done anything without a preconceived purpose. It is therefore difficult not to draw the conclusion that the main purpose of his speech, and probably the rally as well, was not to personally launch an electoral campaign in a state where the  BJP is likely to lose, but to forge an open compact between the police all over the country and 51,335 shakhas of the RSS.

For the police, crowd control is not only a risky but a thankless task. Not only can policemen be injured by a stone or, in extreme situations, a bullet, but they constantly face the risk of being prosecuted for an excessive or inappropriate use of force. Modi’s speech has absolved them in advance from blame for any criminal act they may commit “in pursuit of their duties”.

Policemen can now run after fleeing demonstrators firing their revolvers at them, as TV has captured them doing in Assam. They can smash students’ motorcycles and scooters at leisure, as they were caught doing on camera in Aligarh, in order to put the blame on ‘anti-social elements’. They can enter the homes of people and destroy everything in sight, claiming that they did so in hot pursuit of ‘miscreants’. They can pick up The Hindu’s UP correspondent and question him for hours, throwing vile communal slurs at him, because he is a Kashmiri.

Finally, they can kill demonstrators, as they have done in BJP-ruled Uttar Pradesh and Karnataka. It is not accidental that, of the 25 demonstrators that the police have killed across the country since the protests started, 18 have been in UP, or that almost all of those killed have been Muslims.

Few in India will deny that the policing of public protests is a thankless task. Far too many are infiltrated by hoodlums intent upon creating chaos to facilitate theft. But the police are not saints either. A 2010 study of human rights violations by the police showed that 1,224 out of 2,560 ‘encounters’ between the police and alleged criminals that occurred between 1993 and 2010 were ‘fake encounters’, or extra-judicial executions by the police.

But in his speech Modi did not attempt to draw any fine distinctions, and turned student demonstrators into criminals, and the police into saints. The government’s camp followers have been quick to take the hint: within minutes, his pet TV channels, and their anchors, began to portray student demonstrators as destroyers of public property and the police as their victims.

Four days later, in an unprecedented departure from constitutional propriety, General Bipin Rawat – now Modi’s handpicked chief of defence staff – breached the wall that has separated the military from civilian matters and accused unspecified political leaders of encouraging acts of “arson and violence by university and college students”. And the Delhi police has added a new category of persons to those on whom it will use recently acquired automatic facial recognition software in tandem with drones, to identify in crowds: “rabble rousers and miscreants”.

Modi’s government still has more than four years to go. The fight to save religious pluralism, secularism and democracy is just beginning.
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However, since Modi does not have a reverse gear in his psyche, a retreat by him is almost inconceivable.

Modi Must Change Course and Scrap the Citizenship Amendment Act
A police personnel walks past an anti-CAA wall writing in New Delhi. Photo: Reuters

History is being made in India today.

For only the second time since Independence, virtually the entire political opposition has joined in the defence of the two core values of the Indian state: secularism and equality before the law.

The trigger is the Modi government’s passage of the Citizenship Amendment Act, by brute majority, in just three days in the Lok Sabha and the Rajya Sabha, without any prior consultation or discussion with other political parties or civil society organisations in the affected regions.

As Prashant Kishore, the general secretary of the ruling Janata Dal (United) in Bihar, has pointed out, it is the combination of the National Register of Citizens and the Citizenship Amendment Act, that has struck at the roots of secularism and the rule of law in India. These have plunged the country into a witches’ brew of fresh anxieties just when it needs to focus all of its attention on combating the economic and unemployment crisis that has overwhelmed the country.

Seven state governments have already announced that they will not implement the Citizenship Amendment Act. These include not only the Congress ruled states of Rajasthan, Madhya Pradesh, Chhattisgarh and Punjab, but also Kerala, West Bengal and Bihar.

Tamil Nadu has not joined the boycott yet, but is likely to do so because the 3,04,000 Tamil refugees who have been living as stateless citizens in India for as long as 36 years have not been included in the Act.

Maharashtra is also teetering on the brink: the Shiv Sena had voted for the Bill in the Lok Sabha, but boycotted the voting in the Rajya Sabha.

Violence erupted in Assam, Nagaland, Manipur, Mizoram, Arunachal Pradesh and Meghalaya. While many in Assam have joined the protest because exempting Hindu refugees will open the floodgates for swamping the Ahom culture, whose protection had been guaranteed by the Assam Accord sculpted by Rajiv Gandhi in 1985, the five hill states are afraid that it will push those declared stateless in Assam now, and future migrants from Bangladesh into their lands. This is threatening to re-awaken an atavistic nationalism in a vast section of the youth of these states that bodes ill for India’s future unity.

This was underlined by the Imphal Times on December 14 in an extended opinion piece that sent a chill down my spine as I read it.

The hidden agenda of the Government of India may be to replace the Mongoloid population with Aryan population. The strategy they have adopted is through population invasion-war without arms…The main focus of mainland Indians is how to keep the north-east people divided in the name of political parties, ethnicity and religion…The people of North-East view the Bill as a threat to their very existence. Many student organisations expressed that ‘We will not accept any law that will take away our Rights as indigenous people.”

To any government not blinded by an atavistic ideology and besotted by its recent success at the polls, the current unrest would have been a storm signal demanding an immediate change of course. There are many in the BJP who are fully aware of this. But the Modi-Shah duo is not among them.

Faced with student unrest in Delhi on Sunday the government has responded in a manner made familiar by Modi and Shah’s 12-year tenure in Gujarat. Modi has not only gone on the attack, but made the Muslim community the villains of the drama.

Police closed all roads leading to Okhla, broken down the gates of Jamia Millia Islamia, attacked students who, they claimed, had been pelting them with stones from inside the compound, broke into the library where students were studying for their examinations, manhandled them, and eventually arrested 50 of them.

From Jharkhand, Prime Minister Modi left none of the millions who heard him on TV in any doubt about the identity of “the mob” which was supposedly resorting to violence: “Bhaiyo aur beheno”, he said, “ you can tell who the rioters are by the clothes they are wearing”.

This is probably the first time the head of government in a democratic country has painted a target on a single community’s back in the way that Modi did in Jharkhand on Sunday.

And yet, the Modi-Shah duo is learning that it cannot rule India through terror as it ruled Gujarat till 2014. Student unrest has been spreading rapidly and has now engulfed Sikkim at one end of the country and Bengaluru at the other. In its desperation, the Modi government has  begun to treat more and more parts of the country in the way that it has been treating Kashmir: the internet has been, and remains, shut down for varying periods in Assam, the north-eastern states, four districts of Bengal, and Aligarh.

In Delhi, the Central government closed metro stations all the way till the north campus of Delhi university and the subway stations around JNU, to prevent as many students as possible from joining the protest in front of police headquarters on Sunday night.

But even a child could tell Modi and Shah that escalating repression has not worked in any country in the world, because it breeds the very opposition to the government that it is using force to crush.

The government still has time to make a face-saving withdrawal from the NRC and CAA in their present form.

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The home minister may be able to fool others on the Congress’s actions around Partition, but he cannot fool me.

Partition Lies and Amit Shah's Theatre of the AbsurdUnion home minister Amit Shah speaks in the Lok Sabha during the ongoing Winter Session of Parliament, in New Delhi, Monday, Dec. 9, 2019. Photo: PTI

During the Lok Sabha debate on the Bill amending the Citizenship Act, Union home minister Amit Shah suddenly lost his temper and blurted: “Is desh ka vibhajan agar dharma ke aadhar par Congress na kari hoti to is Bill ka kaam nahin hota (Had the Congress not partitioned this country on the basis of religion, there would have been no need for this Bill).”

His remark sent a shock wave through the Lok Sabha, provoking responses which were echoed within hours by civil society. But Shah, the master tactician, had got what he wanted – he had once again put India’s secular intelligentsia and the increasingly befuddled Congress party on the defensive. And that might have been just the extra edge the BJP needed to get this monstrous Bill through the Rajya Sabha.

Shah’s obvious purpose always was to hustle it through, as he did with the Unlawful Activities Act Amendment Bill before the opposition had time to muster its full strength. And he did it with great aplomb.

What is depressing is the fact that even 48 hours after he made this outrageous claim, no one in the Congress, or for that matter the rest of the opposition and civil society, has pinned down the outrageous lie that Shah spoke in the august halls of parliament on a Bill that, by changing the very basis of the Union of Indian, has begun the process of tearing it apart.

All have defended the Congress by saying that while it accepted the creation of two nations, it did not do so on the basis of the two-nation theory. To the vast majority of Indians, born well after Partition, this must sound like sheer sophistry. That is what Shah (who is only 55 years old) was almost certainly banking upon. It was up to the present leaders of the Congress party to checkmate Shah’s strategy. But that required an immediate command of history that Sonia Gandhi, who was sitting in the front opposition benches, did not have. So, in a manner with which we have grown wearyingly familiar, she stayed seated and remained silent.

It has therefore fallen to this 81-year-old former journalist to set the record straight. For what I know about the tumultuous last days of the British Raj and the first months of independence is not second-hand but living, first-hand knowledge. So Shah, whose knowledge is also necessarily second hand, may be able to fool others but he cannot fool me.

The Congress party’s resolution of 1947 accepting Partition gave a full explanation of why the party had felt itself left with no option. It restated in pain-filled detail why it had accepted Partition as the lesser of the two evils the country faced at the time (early 1947) despite its staunch and continuing opposition to the two-nation theory. Its reason was the urgent and imperative need to prevent the “poison of communalism” from spreading further and “tearing apart the social fabric of the country”.

The resolution reflects its leaders’ awareness that they were surrendering their own most cherished principle, but felt compelled to accept the lesser evil in order to avert a much greater one.

To understand why it felt this, it is necessary to go back in time to June 1947, when Mountbatten announced the partition plan. The ‘communal poison’ to which the Congress was referring was the Muslim League’s ‘direct action’ plan to deliberately inflame Hindu-Muslim animosity in order to garner support for its demand for partition. This had begun with the planned killing of Hindus in Calcutta of August 1946 that went on for two days, before the Hindu reaction engulfed Bihar in a bloodbath.

This was followed by a planned pogrom of Hindus and Sikhs in what was then the North West Frontier Province (now Khyber-Pakhtunkhwa) in December 1946. This was a Muslim League conspiracy in the most evil sense of the term, because it occurred in a province ruled by the Khudai Khidmatgars (also dubbed the Frontier Congress) which had been stoutly opposing partition ever since it was mooted in 1940. The two minorities made up only 6% of the province’s population, but they were the richest 6%, consisting of traders, moneylenders and rich landowners. The pogrom was therefore aimed both at seizing the assets of the Hindus and Sikhs and simultaneously de-legitmising the Khudai Khidmatgars. (This was a pogrom that the British government had tacitly supported and enabled. The evidence is in the Transfer of Power Documents, Volume 12.)

Those who escaped fled to Rawalpindi, where they received little sympathy or support, and to Muzaffarabad where the Muslim inhabitants, despite the communal hysteria of those times, received them with open arms. But by then the Muslim League National Guard (modelled, like the Rashtriya Swayamsevak Sangh, on Germany’s SA) had the bit between its teeth.

In January 1947, the League turned its attention to Punjab, where as in the NWFP, the Sikhs numbered 18% of its population but owned 30% of all the farmland and paid 50% of the land revenue to the British. Lahore, Amritsar and other cities were dominated by Hindu traders and moneylenders. So here too, the League used the lure of stolen wealth to start a series of communal riots and pogroms.

Like the NWFP, Punjab was also against the partition of India. It was ruled by the Unionist party, a party composed in more or less equal parts by Muslim, Sikh and Hindu feudals, under the prime ministership of Sikander Hayat Khan and after his death in 1942, by Sir Khizar Hayat Khan. Khizar Hayat Khan also opposed Partition but lacked the strength of his predecessor. As a result, the Unionist alliance had begun to fray at the edges when the Muslim League launched its communal riots in January 1947, following his resignation.

This brought the danger to the freedom movement posed by the poison of communal polarisation to the Congress’s doorstep. For Punjab stretched then from the Kabul river at the foothills of the Hindu Kush range till Delhi. If the capital went up in flames, then not only would freedom get indefinitely postponed, but the dream of a single independent country would be destroyed in the scramble by the rest of the country to prevent the poison from spreading into it.

It was to avoid this dire fate that the Congress accepted Partition. It reasoned that three quarters of a secular, multi-ethnic and multi-religious country was better than none. It was to save an inheritance of secularism that stretched from Gautama Buddha till Akbar and the Din-e-Ilahi, and embraced Hindus, Sikhs, Christians, Buddhists, Parsis and Jews, in addition to Muslims, that it decided to cut that glorious India’s losses and accept Partition.

And while the Congress was fighting this epic battle for an ideal, what was the RSS doing? From the Dandi Salt March in 1929 till Gandhi’s Quit India call in 1940, the RSS stoutly opposed every attempt to secure freedom through satyagraha and even offered its cohorts to the government to act as civil guards to quell the unrest that Gandhi’s call would generate. It maintained a monumental silence on the Muslim League’s direct action programme and while it may not have instructed Nathuram Godse to assassinate Mahatma Gandhi, according to Pyarelal, Gandhi’s secretary, “Members of the RSS at some places had been instructed beforehand to tune in to their radio sets on the fateful Friday for the ‘good news’.”

For the RSS to claim that it is amending the Citizenship Act to complete the work that was left undone by the Congress is beyond calumny; it is sick comedy. Unfortunately, as Nagaland’s extension of the requirement to obtain an Inner Line Permit to the whole of Dimapur district has just shown, it is comedy that could turn in a flash into tragedy.

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Despite his advanced age of 74, and the complete absence of any material or verbal evidence that he was involved in any of his son’s affairs, the Delhi high court and Supreme Court have refused to grant bail to Chidambaram.

The ED, CBI Role is Unsurprising in Bail Denial to P. Chidambaram, Not So the Courts
Former finance minister P. Chidambaram after leaving the CBI court in New Delhi on August 22, 2019. Photo: PTI/Ravi Choudhury

On November 15, a single judge bench of the Delhi high court once again refused to grant bail to former finance and home minister P. Chidambaram in the INX Media money laundering case.

This is the fifth time, between them, that the Delhi high court and Supreme Court have refused to grant bail to a 74-year-old man whose health has deteriorated dangerously while in prison, and who is therefore even less of a “flight risk” than the prosecution tirelessly alleges him to be.

Not only did the judge, Justice Suresh Kumar Kait, refuse bail, but his verbal opinion, delivered in court and reported in the Hindu, convicted Chidambaram of a variety of crimes even before the CBI and the Enforcement Directorate had framed a case against him.

The Hindu reported that the bench

“was of the opinion that the prima facie allegations against Chidambaram are serious in nature and that he played a key and active role in the case. While declining the bail plea … the judge said granting relief to such offenders would send a wrong message”.

Please examine the phrases italicised above and reflect on the fact that this was a bail hearing, not a sentencing. Chidambaram was not “an offender”. That had yet to be proved. Nor had the government adduced, or in the mass of conjecture it had released to the media, voiced anything but a suspicion that Chidambaram may have “influenced” the Foreign Investment Promotion Board (FIPB) to overlook certain “irregularities” in the INX Media case.

Chidambaram has a legal and constitutional right to be treated as innocent until proven guilty. But the bench seemed not even to be aware of any such right.

The right is habeas corpus – in plain language, the right to freedom. The law allows this to be curtailed in exceptional circumstances. These are when the court has reason to suspect that the defendant will flee the country and escape its jurisdiction, and when there are solid grounds for believing that if left free he has the capacity to tamper with the evidence by bribing, intimidating, or killing  the prosecution’s witnesses.

What the law does not allow the prosecution to do is incarcerate a suspect before it has collected even prima facie evidence of his or her possible guilt. Even less does the law allow a government to imprison a suspect in order to give itself time to find, concoct, or coerce ‘witnesses’ into providing the evidence that it does not have.

Habeas corpus was, admittedly, a much abused right even before Modi came to power. But never before had it been used by a government to pick out and target specific political rivals, with the express purpose of wiping out all democratic opposition to itself. Yet that is exactly what the courts have made themselves a party to doing.

An examination of Justice Kait’s finding on the merits of Chidambaram’s request for bail shows that he has lifted paragraph after paragraph of the ED’s submission opposing the grant of bail, and presented them as his “Findings on the Merit,” on Chidambaram’s bail application. To say that he did not apply his mind would therefore be an understatement.

Sadly, the practice of simply allowing the ED or another prosecuting agency to,  in effect, write the decision of the high court is far from uncommon. Another Delhi high court judge did exactly the same thing in Rohit Tandon vs. The Enforcement Directorate in 2018.

The sole difference with what Justice Kait has done is that in the Rohit Tandon case, the judge copied the ED’s accusation into her judgment, which was perhaps more egregious than what Justice Kait did, which was to use it in his bail ruling.

Chidambaram is only  one  of hundreds, and if we include Kashmir , thousands,  of political leaders  and civil rights activists who are  languishing in jail without trial as the police, the CBI, or the ED search for evidence of real or imagined wrongdoing, with which to bring them to heel.

Their appeals for bail come up regularly before one high court or special judge, or another, and are routinely rejected. Is it possible that this egregious dereliction of duty is now universal in the Indian judiciary? The very thought is chilling, and its implications for democracy, and the future of our benighted country, dire.

Chidambaram’s case, however, stands out boldly even against this grim background. He was arrested by the CBI on August 21, just 16 days after the government turned Kashmir into an open-air prison, and, as of today has been in prison for nearly 100 days without any charge having been framed against him.

India’s former finance minister P. Chidambaram looks on as he leaves a court after a hearing following his arrest, in New Delhi, August 22, 2019. Photo: Reuters/Anushree Fadnavis

He is being kept in jail to give the CBI, and the Enforcement Directorate – both now complete puppets of the ruling government – time to find the evidence  that might make it possible for them to secure a conviction.

The charge levelled against him  by the CBI and the ED is that in 2007 and 2008, he allowed his son Karti Chidambaram to use his  name to persuade the Foreign Investment Promotion board to regularise a clandestine infusion of Rs 305 crore worth of foreign investment into INX Media Private Ltd. For this, he is alleged to have accepted bribes amounting to $3 million.

So much has been written about this case for so long and with so much deliberate misinformation, that it is now virtually impossible to make sense of the allegations against father and son without going back to the very beginning of the alleged scam, which was perpetrated by Peter and Indrani Mukherjea in 2007.

Here, to the best of my understanding, is what happened and how the case against them has been concocted.

In March 2007, at the height of India’s eight year economic boom, INX Media applied for permission from the Foreign Investment Promotion Board, to sell Rs 4.62 million equity and preference shares with  a face value of Rs 10 each to foreign investors . The Mukherjeas also applied for permission to invest a part of the proceeds in buying a controlling stake in a second company they wanted to establish called INX News Ltd.

In May 2007, the FIPB gave them permission to sell the 4.62 million  shares but told them that they needed to make  a separate, application for permission to create INX News. But by then, the Mukherjeas  had put the new shares on the market, so the sale proceeds had begun to flow in. But what came in was not Rs. 4.62 crore, the figure that the government and the media have been endlessly harping  upon today, but a whopping Rs. 305 crores.

The money came in through three companies based in Mauritius. Mauritius has been a thorn in the Income Tax department’s side since the 1990s, because after economic liberalisation, tax concessions given to citizens of Mauritius had made the island a tax haven for foreign companies wishing to invest in India. So, not surprisingly, this inflow caught the attention of the Financial Intelligence Unit of the Ministry of Finance.

In January 2008, therefore, it alerted the Income tax department to the large inflow of funds into INX Media. This is the genesis of the money laundering charge that the Mukherjeas are facing, and of which Indrani Mukherjea has now been pardoned in exchange for testifying that both the Chidambarams had accepted bribes for regularising it.

There was, however, nothing inherently illegal about the inflow because in May 2007 the Indian economy was at the height of its explosive growth, and the market price of INX Media’s existing shares was Rs 862 per share . The inflow of only Rs 305 crore therefore suggests that the new share issue had fetched an average of Rs 660 per share.

This was a perfectly reasonable price because it fully discounted the likely fall in INX Media’s share price when such a large volume of new shares entered the market. But it left the managers of the share issue abroad with a large sum of money that could not be invested in the new company. It is possible, therefore, that this was chanelled back to INX Media through three companies headquartered in Mauritius.

The Mukerjeas got their second permission in May 2008. But by then, Lehman Brothers had declared bankruptcy and the global financial crash had begun. In India, the Sensex was nosediving from a peak of 20,000 in January 2008 to 9,000 by August. Advertisers stopped paying their bills, and the INX media group found itself headed for bankruptcy.

The Mukherjeas therefore sold INX Media in 2009 for whatever they could get for it and resigned from their posts in the group. By then, an audit of the company by Temasek holdings had raised the suspicion that they had siphoned Rs 150 crore out of the company, before jumping ship.

Nothing more was therefore heard of the INX media “scam” till 2017, a full nine years later. How did it get revived in 2017, and why was the target no longer Karti, but also his father? There is a single answer to this question: in 2015 Indrani Mukherjea and her husband Peter Mukherjea were arrested for the murder, in 2012, of Sheena Bora, her daughter by a previous marriage.

The police allowed it to be known that a financial dispute between mother and daughter was the cause of the murder. But for many in Mumbai, this confirmed a widely held belief that the Mukherjeas had parked the money they had allegedly siphoned off in an offshore account in Sheena Bora’s name.

Indrani Mukherjea may have come to the BJP’s notice in December 2016 when, at a trial hearing in Mumbai, she asked the court for permission to publish 700 verses from the Bhagavad Gita that she had translated from Sanskrit into English, and followed it up with a letter requesting this permission from the Patiala House court in February.

Whether this was so or nor, the fact remains that the CBI registered an FIR, alleging irregularities in Foreign Investment Promotion Board clearance given to INX Media for receiving overseas funds to the tune of Rs 305 crore in 2007 and accusing Chidambaram of using his influence as Union finance minister in May 2017 only three months later.

Both the Chidambarams have strongly disputed this allegation. Karti claims that he was never hired by the Mukherjeas to represent them. FIPB officials of the time have also deposed that they never even met Karti.

Karti was interrogated intensively by the CBI, arrested on February 28, 2018 and he spent 24 days in CBI custody before getting bail from the Madras high court and the Supreme court. In May this year, he was elected to parliament from Tamil Nadu, and remains, technically, a free man.

But his father has not been so lucky.

Despite his advanced age of 74, and the complete absence of any material or verbal evidence that he was involved in any of his son’s affairs, Chidambaram has been denied bail in anticipation, then bail by the CBI’s special judge Ajay Kumar Kuhar, then bail by Justice Sunil Gaur of the Delhi high court (who was tipped to be appointed as the chairman of the Appellate Tribunal under the Prevention of Money Laundering Act, but no formal announcement has been made public yet), then most surprisingly by the Supreme Court, and most recently by Justice Kait of the high court. 

Today, based on the sole and so far completely unsubstantiated accusation by a woman accused of murdering her own daughter, and who would say or do anything to avoid life imprisonment, if not the death penalty, the CBI and the Enforcement Directorate are coercively interviewing every friend and associate of Karti Chidambaram to establish how $3 million – the sum that Indrani Mukherjea claims to have paid to him and his father – have been siphoned away abroad through a dozen different shell companies. It is doing so in spite of the fact that Peter Mukherjea has categorically refuted Indrani’s allegation.

This blatant witchhunt has made a mockery of the rule of law. But what is worse, it has exposed just how seriously hollowed out not only the CBI and ED are, but also the judiciary, the last remaining pillar of India’s tottering democracy.

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