Prem Shankar Jha

Starting 1980s, a considerable number of Americans in relatively poor rural and suburban America have slid into poverty as globalisation and costly wars wreaked havoc on American society.

Joe Biden's Victory: It Is High Time the Concerns of 'Middle America' Are AddressedU.S. Senator Kamala Harris (D-CA) is joined on stage by her running-mate, U.S Democratic presidential nominee Joe Biden, after she accepted the Democratic vice presidential nomination during an acceptance speech delivered for the largely virtual 2020 Democratic National Convention from the Chase Center in Wilmington, Delaware, U.S., August 19, 2020. REUTERS/Kevin Lamarque


Joseph Biden’s victory has been greeted with the expected exhilaration and apprehension, which every newcomer to the White House experienced before. This time the exhilaration is more striking because it marks the end of a presidency that had trivialised American democracy, and held it up to global ridicule. But the apprehension will surface soon when the hoorahs are over and the changeover in Washington has been completed. The new administration will face the same challenges that its predecessors have faced since the end of the Cold War, and failed to address them.

Three decades after winning the Cold War the American state is facing a crisis that no one could have foreseen when the Soviet Union disintegrated. Instead of bringing peace, these decades have brought incessant war; instead of creating a new global order these wars have created global anarchy and fostered terrorism.

Abandonment of Middle America

In place of prosperity that followed the Allied victories in World War I and World War II, these decades have seen the withering away of blue- and white-collar employment, the end of working class job security, status and affluence. It has also brought to fore an obscene widening of the income gap between rich and poor, and a steady shrinkage of the state’s capacity, or even intention, to safeguard the health, lives and peace of mind of its poor.

black lives matter
A demonstrator holds up a “Black Lives Matter” sign during a protest over the death of a Black man, Daniel Prude, after police put a spit hood over his head during an arrest on March 23, in Rochester, New York, US September 6, 2020. Photo: Reuters/Brendan McDermid


Cruelest of all, it has created a world in which young people no longer control their future. Today more and more young Americans cannot plan to marry, cannot take out a mortgage on an apartment, cannot even think of having children, and can only buy a second-hand car, because they do not know when they will find a job, and how long it will last.

Calculated neglect over decades has caused the nation’s infrastructure to run down to a level below that of China, let alone Singapore, Malaysia and Hong Kong. China, for instance, has constructed a high-speed rail network spanning 19,000 km of track in the past 15 years, on which it is running 2,300 bullet trains every day. America has built none.

But none of this compares with the abandonment of middle America to chronic stagnation, hopelessness and despair. This began as far back as the 1980s, and neither the Democrats nor Republicans have considered it necessary to check the region’s slide into poverty. A great deal has been written on economic, social and political consequences of this neglect, but much less on its cause, and how it can be ameliorated.

The roots of today’s Blue-Red schism lie buried in the de-industrialisation of America and northern Europe, which began with the onset of globalisation half a century ago. As manufacturing began to move from the high wage economies of Europe and North America to low-wage, skill-intensive industrialising countries in Asia and Latin America, the share of manufacturing in the US GDP fell, from 26% in 1968 to 12% in 2009. Its place, as the prime mover of economic growth, was taken by business and financial services whose share in the GDP rose from 19% to 35% during the same period.

But while the bulk of the de-industrialisation has occurred in middle America, where job losses have ranged from 8% to 75% of the workforce during the last 40 years, nearly all the increase of employment in business and financial services has been concentrated in the two coastal ‘blue’ fringes, and in the Florida-Texas sunbelt. Middle America has been left to fend for itself.

Tea Party movement

In 2009, after four decades of sustained neglect, middle America found a political sponsor in the Tea Party movement. Liberal America considered the Tea Party an embarrassment – an extremist movement that backed every reactionary cause and wanted to turn the clock back to a vanished past, because it could not connect with the future.  What it lost sight of was that the Tea Party was also a protest movement, born of desperation, among people who had been robbed of their future. The Tea Party needed understanding, not condemnation. It got none.

Donald TrumpU.S. President Donald Trump addresses supporters during a Make America Great Again rally in Johnson City, Tennessee, U.S. October 1, 2018. Credit: REUTERS/Jonathan Ernst.

Trump’s surprise victory in 2016 was its first major political success. Since then liberal America has done everything in its power to pretend that this was an accident and to trivialise its significance. It has taken this to the point of portraying it as the product of Russian intervention in the election campaign. But Biden’s relatively narrow win last week has shown that the new, hard-Right is here to stay, and that its rancour will continue to fester and grow so long as the neglect and injustice that gave rise to it remains unaddressed.

Enormous task lies ahead of Biden-Harris

This is the responsibility that American voters have asked Biden and Kamala Harris to shoulder. Judging from his speeches, Biden is fully aware of its weight: in his victory speech he repeated his commitment to be “a president who seeks not to divide but unify…who doesn’t see red states and blue states, only sees the United States”.

But similar promises were made by his predecessors in their moments of triumph. So, what prevented them from fulfilling such promises when the hoorahs ended and the work began? One, amidst the plethora of explanations put forward over the years, stands out: it is ‘legislative gridlock’.

Intra-party discipline has never been the US Congress’ strong point, for the American system contains no penalties for cross-voting. This has allowed legislators in both houses to become representatives of special interests in their states, instead of representatives of the people of their states. To make matters worse, in only 10 of the 28 years after the Cold war, there has been a president whose party has enjoyed a majority in both houses of Congress. Thus, the American democratic system did not have the capacity for united action in domestic affairs that was needed to cushion the wrenching impact of globalisation and de-industrialisation upon those who stood to lose from it.

Costly wars and the detrimental effects on the American economy

The only area in which the gridlock has not paralysed policymaking is foreign policy. Achieving a consensus in this area has been made easier by the heady sense of entitlement imparted by victory in the Cold War. This has created a brand of liberal imperialism which is shared by both Democrats and Republicans, whose goal has been the creation of unipolar world order under the leadership of the US.

American soldiers. Representative image. Credit: Reuters

This was a democratic party goal long before President George W. Bush adopted it formally in the wake of 9/11. In February 1999, after bombing Iraq daily for 11 months till there was not even a milk plant left to destroy, and on the eve of doing the same in Kosovo, Clinton justified unilateral intervention in the following words:

“It’s easy … to say that we really have no interests in who lives in this or that valley in Bosnia, or who owns a strip of brushland in the Horn of Africa, or some piece of parched earth by the Jordan River. But the true measure of our interests lies not in how small or distant these places are, or in whether we have trouble pronouncing their names. The question we must ask is, what are the consequences to our security of letting conflicts fester and spread. We cannot, indeed, we should not, do everything or be everywhere. But where our values and our interests are at stake, and where we can make a difference, we must be prepared to do so.”  

The significance of his declaration lay hidden in what he did not say. The right to intervene was already a part of the UN Charter.  But it had to be exercised collectively through the Security Council. Clinton’s declaration did away with the need for creating an international consensus, and therefore ruled out the creation of a multipolar, democratic, world order.

The wars that followed have bankrupted America. In December 2014, the Congressional Research Service of the US estimated that the wars the US had waged in the 13 years since 9/11 had cost the treasury 1.6 trillion dollars. ‘Continued funding’ to maintain military preparedness in the occupied added  $95.5 billion in 2014, and no doubt continue to add similar sums till today. Add Operation Desert Shield in Iraq (1998), and the war on Serbia (1999), and the figure probably exceeds $2.2 trillion.

But that is only the military part of the expenditure that the US has incurred. A 2016 study by Nobel laureate Joseph Stiglitz estimated that the total military and economic cost of America’s wars was well over 3 trillion dollars. Had this money been used to modernise the country’s dilapidated infrastructure and encourage the shift of service sector businesses to the middle of the country, the blow dealt by globalisation to middle America could have been softened, and the ‘Red-Blue rift’ might not have reached the crisis level that it is at today.

‘Leveraging’ climate change

Biden is fully aware that healing this rift is the obligation, beyond all others, that his victory has thrust upon him. And he has made it clear that he intends to meet it. Fortunately, he has a new ally in this venture, the threat of climate change.

A crowd of thousands march in a climate strike featuring climate change teen activist Greta Thunberg in Vancouver, British Columbia, Canada October 25, 2019. Photo: Reuters/Jennifer Gauthier/files.

Technologies that can harness the energy of sun, wind, and biomass have now matured to a point where they can supplant fossil-based energy at a competitive price. Unlike fossil fuels, these technologies need vast amounts of land, sunshine and wind. These are precisely what the states of the Midwest and the Great Plains have in abundance.  Harnessing these have already begun: In 2016, Iowa, South Dakota, North Dakota, Oklahoma, and Kansas were meeting 20% to 35% of their electricity demand from wind. Other states like Texas and Minnesota were joining them.

The change that renewable energy is making to the lives of the people affected by it cannot be captured in aseptic data on energy generation, costs and returns. A recent, heart-warming article by Elizabeth Wiese in USA Today that describes the impact of wind farms on the farmers of Cloud County, Kansas, is worth quoting:

“In an increasingly precarious time for farmers and ranchers, some who live in the nation’s wind belt have a new commodity to sell – access to their wind. Wind turbine leases, generally 30 to 40 years long, provide the landowners with yearly income that, although small, helps make up for economic dips brought by drought, floods, tariffs and the ever-fluctuating price of the crops and livestock they produce. 

Each of the landowners whose fields either host turbines or who are near enough to receive a “good neighbor” payment, can earn $3,000 to $7,000 yearly for the small area – about the size of a two-car garage – each turbine takes up.  

The median income in Cloud County is about $44,000, according to the 2018 U.S. Census. For Tom Cunningham, who has been farming between Glasco and Concordia, Kansas for 40 years, the Meridian Way Wind Farm income has made an enormous difference. Cunningham’s lease payments allowed him to pay off his farm equipment and other loans. 

Before the wind turbines, things were rough, he recalled. Depending on the national and international economy, some years he broke even, some years he made money and, for more years than he cares to think about, he was on the edge. He had to take a job in town to make ends meet and for a time was what he calls “functionally bankrupt.”

“This isn’t money that other people would think is very much,” he said. “But it made an enormous difference to us.”

What wind is doing in the Great Plains states is what solar energy can do in arid and semi-arid states like Arizona, Nevada, Nebraska, and parts of Texas and California. Straw and other crop residues in the wheat-growing states can be converted into the transport fuel of choice through the exciting, relatively new, technology of plasma-assisted gasification in far larger quantities than it can be converted into cellulosic ethanol through fermentation.

America’s way out of the increasingly poisonous partisan politics in which it has been trapped, therefore, lies in precisely the same technologies that it needs to harness, in order to fight climate change.

America’s way out of the increasingly poisonous partisan politics in which it has been trapped, therefore, lies in precisely the same technologies that it needs to harness, in order to fight climate change.

Read More

Modi needs to be told that while the Indian armed forces may be capable of holding their ground when attacked, they simply cannot hold on to each and every inch of the 3,000 km-long Line of Actual Control.

What Narendra Modi’s Enigmatic Silence Means to China


Xi Jinping and Narendra Modi at the SCO summit in Qingdao. Credit: PMO


Beijing’s sole English language newspaper, the Global Times, is not an official mouthpiece of its foreign ministry. But it is also not an ‘independent’ newspaper. Ever since its English version was launched in 2009, it has reflected not only official policy but also official thinking.

When the June 15 clash took place at Galwan and, presumably, took the lives of Chinese soldiers too, the Chinese government went out of its way to highlight responsible voices in the Chinese social media that were asking for moderation in the face of a tide hyper-nationalist condemnation of India. Its comment on the meeting between the two countries’ foreign ministers, published on Friday, September 11, was equally positive.

“The joint statement and five-point consensus reached by both Chinese and Indian foreign ministers in Moscow on Thursday evening,” the Global Times reported, “marked a substantial step in cooling down the current border situation, exceeding the expectations of most international observers and creating favourable conditions for a possible future meeting between the leaders of the two countries…”.

In India, the foreign policy analyst M.K Bhadrakumar, a former diplomat himself, also came to the same conclusion: “A joint statement wasn’t anticipated after the talks… In diplomatic terms, a joint statement signals that a “critical mass” developed through the three-hour discussion between the top diplomats”.

In their joint statement to the press, the two ministers had agreed that both sides should take a cue from their leaders’ consensus and not allow differences to become disputes; quickly disengage, maintain proper distance and ease tension; abide by all the existing agreements and protocol on China-India boundary affairs; maintain peace and tranquility in the border, and as the situation eases conclude new confidence building measures to maintain and enhance peace in the border areas.

The relief was palpable in both capitals, but not unmixed with misgivings: “The successful implementation of the joint statement,” the Global Times concluded, “depends on whether the Indian side can truly keep its word. Given the country’s history, it is possible that the joint statement will end up as merely ‘paper talk’.”

Hu Zhiyong, a research fellow at the Institute of International Relations of the Shanghai Academy of Social Sciences, put it even more bluntly: “We should not only observe what India says, but also what it does. For a country like India, the most important thing is how it acts. In 2005, Premier Wen Jiabao held important talks with Indian Prime Minister Manmohan Singh before signing a joint statement by the two governments, in which both sides declared the establishment of a strategic partnership to promote peace and prosperity.”

“The two governments also signed the Agreement on the ‘Political Guiding Principles for Resolving the Boundary Issue between China and India’, in which they pledged to reduce armed forces and maintain peace. However, since Modi assumed power, the Indian government has totally neglected  (the second part of)  this joint statement. China has kept its word, but the Indian side has provoked the recent border clashes,” Hu concluded.

Chinese foreign minister Wang Yi (right) and external affairs minister Subrahmanyam Jaishankar at the Shanghai Cooperation Organisation meeting in Moscow, Russia, September 10, 2020. Photo: China Daily via Reuters


Hu Zhiyong’s remarks echo the misgivings that several China watchers, including the writer, have come to, for he too has emphasised the inextricable exchange built into the agreements China and India have signed since 1993: that as the strategic cooperation between China and India grows, the precise demarcation of the LAC will lose its salience in the relations between the two countries.

In effect this would mean that China would keep the parts of Aksai Chin it already has, but cease to claim another 100,000 sq. km in the Himalayas – something that it had already ceased to do after Premier Wen Jiabao’s meeting with Manmohan Singh at Hua Hin in 2009.

This would be a win-win outcome for both countries. Beijing has immediately acknowledged the interdependence between military disengagement and renewed cooperation on strategic and economic issues.

Sun Weidong, its ambassador in Delhi has immediately urged that ‘as the situation eases, the two sides should expedite work on new confidence building measures to maintain and enhance peace and tranquillity in the border areas’.

Pointing, as the two foreign ministers did, to the series of consensuses reached by Modi and Xi at their recent meetings, and highlighting their ‘basic judgment’  that China and India are partners rather than rivals, he stated: “We need peace instead of confrontation; we need to pursue win-win cooperation instead of a zero-sum game; we need trust rather than suspicion; we need to move our relationship forward rather than backward.

So all that was needed was a few words from Modi, if not of outright endorsement then at least  appreciation for his foreign minister’s achievement. But ten days have passed since the Moscow meeting and not a single such word has passed his lips.   Instead of addressing the first session of parliament in six months himself, Modi delegated this  not toJaishankar, but to Defence Minister Rajnath Singh .

In his 25 minute, 2,000-plus word statement, Singh did not mention the five-point agreement at Moscow, and did not  move one jot away from the earlier official line that it is only China that had shown a  flagrant disregard for its obligations under the 1993, 1996 and subsequent agreements, and that India is utterly blameless.

What is more, Modi has already changed China’s recent actions in Ladakh into a domestic political issue by seeking a parliamentary resolution to laud the Indian army’s sacrifices in the Galwan Valley. By doing this he has also pre-empted criticism from the Congress party, for any reminder by it that it was the UPA under Dr Manmohan Singh, that brought China- India-relations from wary hostility to  the brink of partnership, will be twisted by BJPs media machine and tame TV channel anchors into a  criticism of the army and callousness towards its jawans.

Defence minister Rajnath Singh speaking in the Rajya Sabha. Photo: Screengrab/RSTV

It should not, therefore, come as a surprise that the tone of comment on Sino-Indian relations in the Global Times has changed. On September 15, Hu Jixin, the editor in chief of the Global Times wrote a signed article titled, ‘China ready for Peace, and War’.

Two days later, in an article titled, ‘India’s sincerity key to ending conflict before winter,’ a writer warned Chinese readers once again, citing Chinese experts as saying: “By continually going back on their word, India is wasting the opportunities and high expectations that China has for peacefully settling border tensions before winter.”

“Their attitude to agreements has disappointed China, but China has not stopped its efforts to solve the crisis in a peaceful manner,” experts said, calling for India to show their sincerity at this time as well”.

Army Chief M.M. Naravane interacts with the troops while reviewing operational situations on the ground after the stand-off in the region during his visit, in Eastern Ladakh, Wednesday, June 24, 2020. Photo: PTI

“…but with China it will not end well”

Prime Minister Modi has been able to get away with such perennial grandstanding in India, but with China it will not end well. The Chinese have studied Modi and concluded that he is not a reliable partner.

As Hu Zhiyong told the Global Times, “Given the country’s sluggish economy and poor epidemic control, the Modi government may continue to try and stir up border tensions to deflect the public’s attention. These border tensions are used as chips to fool the public”.

Without a drastic change in Modi’s approach, therefore, a war in the Himalayas next spring is becoming a real possibility. Beijing has been preparing for the worst ever since the 73-day stand-off on the Doklam plateau in 2017.

Satellite photos taken in January 2018 showed that the Chinese had not vacated the area, but erected several permanent military posts, a few helipads and new trenches not very far from where the two Armies had faced off. About 1,800 Chinese troops had stayed in the area through the bitter  winter.

In the following year Beijing began to reinforce the People’s Liberation Army’s (PLA) western theatre command (WTC) which decides PLA deployments on the Himalayan border. Apart from reinforcing its ground forces, it changed the order of despatch of its fifth generation ‘stealth’ fighter aircraft, the J-20, and put the western theatre second after the eastern theatre, instead of fourth (after both the northern and southern theatres), as it used to be.

In 2019, it sent its first “brigade” of J-20s to the WTC Air Force. A Chinese Air Force Brigade has 24 aircraft. But the WTC Air Force also has several varieties of older combat aircraft as well. In all China has around 2,150 combat aircraft.

Since 2018, the WTC has been conducting training exercises for both its ground and air forces, ‘in actual battle conditions’.

They were conducted in June this year at the height of the Ladakh confrontation and widely shown on Chinese television. It showed the movement of several thousand paratroopers of the WTC Air Force wing with supporting armour and artillery from Hubei province, more than 3,000 kilometres, commandeering every kind of civilian road rail and air transport,  to “an undisclosed location” in the “plateaus of north-western China.”

The J-20 air superiority fighter plane. Photo: Wikipedia

India’s military capabilities have also developed substantially. The PLA probably hasn’t forgotten the battle of Rezang La in 1962 where 300 Indian Jawans, knowing that they faced certain death, still fought to the last bullet and almost the last man, and killed an estimated 1,300 Chinese soldiers. So it knows that a full scale war in the Himalayas will be enormously expensive.

But Modi also needs to be told, firmly and unequivocally, that while the Indian armed forces may be capable of holding their ground when attacked, they simply cannot hold on to each and every inch of the 3,000 km-long Line of Actual Control.

The Chinese can choose their time and place of attack and they will do so where India is weakest. In addition to that, their advantage of terrain and vastly superior logistics virtually preordain the result of any pitched battle in the Himalayas. India will lose and thousands of lives will have been sacrificed in vain.

And all this will be over a war that the Chinese government has said repeatedly, and Wang Yi reiterated in Moscow, simply doesn’t want.

Read More

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.

Read More