Prem Shankar Jha

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

Illustration: Pariplab Chakraborty.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read More

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

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

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

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

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

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

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

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

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

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

Drift towards armageddon

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ukraine and Neo-Nazis

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

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

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

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

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

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

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

Read More

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read More

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

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

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

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

Read More

Like the Pulwama suicide bombing in 2019, the hijab controversy has come as an unsolicited gift to a BJP government that has been on its back feet since its mishandling of the COVID-19 crisis last year.

Debate: Thanks to the Hijab Issue, India is Falling Once More Into the Communal Trap
Students stand outside a college as they boycott classes after being denied entry with hijab in the college premises, in Chikmagalur, Monday, Feb. 21, 2022. Photo: PT

History is on the verge of repeating itself. Thirty-seven years ago, a five-judge bench of the Supreme Court had given a unanimous judgment in favour of Shah Bano – a 62-year-old divorced Muslim woman – that she had the same right to alimony under Section 125 of the Code of Criminal Procedure as women of other faiths enjoyed.

This judgment upheld the opinion given earlier by two three-judge benches of the court, and pointed out that its verdict did not infringe upon the right of minorities to abide by their own personal laws because the Quran imposed an obligation on Muslim husbands “to make provision for or to provide maintenance to the divorced wife”, and Shah Bano was a Muslim. All it had done was to ensure that she got the same protection that women of other faiths were entitled to.

The judgment aroused a storm of protest from Muslim organisations. The Rajiv Gandhi government took fright and hurriedly enacted the Muslim Women (Protection of Rights on Divorce) Act, which limited the wife’s right to alimony to the capital sum agreed upon by both parties at the time of marriage and three months’ worth of sustenance. Although a succession of subsequent court judgments evened the balance somewhat, they could not repair the damage this did to the secular credentials of the Congress, and of Indian democracy. Humpty Dumpty had fallen off the wall and all the king’s horses and all the king’s men could not put him back together again.

The Shah Bano case gave the ‘Hindutva’ renaissance that had begun around the Babri Masjid issue the intellectual respectability that it had lacked till then. Today, the hijab controversy that has erupted in Karnataka is on the verge of doing the same thing for the Modi government – just when its unending succession of blunders and callous disregard for human rights and the constitution has brought public confidence in its capacity to govern India to an all-time low.

The controversy erupted nationally on January 1, 2022, when six girl students of the Mahatma Gandhi Memorial college in Udupi gave a press conference to protest the college authorities’ denial of permission to them to keep wearing their hijabs after they entered their classrooms. This had happened four days earlier. The students portrayed the ban as an attack on their religious rights as a minority and, given the Modi government’s record of fomenting communal animosity to consolidate the ‘Hindu’ vote, this interpretation has been readily accepted  by civil society in India and abroad.

An article in The Wire by Arunima G. exemplifies this readiness. She writes: “…the present hijab vs uniform controversy … is a row engineered by the right-wing in the BJP-ruled state of Karnataka. With this, a non-issue becomes one that threatens the education of hijab Muslim students in the affected educational institutions in Udupi (and in time, elsewhere). Any number of logical rebuttals are of no value here as this has cleverly been turned into a question of upholding dress codes in schools, which with the legal turn is tied to a court judgment.” (emphasis added)

A report in the New York Times on February 11, also strikes the same tone: “In January, parents of five students petitioned the court to overturn the ban, arguing that it violated the girls’ right to an education and the free practice of their religion. Last week, the government of Karnataka issued an order in support of the school’s hijab ban. The Karnataka government is controlled by the Bharatiya Janata Party, led by Prime Minister Narendra Modi, a Hindu nationalist whose eight years in power have been marked by a rise in hate speech and religiously motivated violence.”

However, the genesis of the controversy suggests the hijab was turned into a major issue not by the BJP and its state government in Karnataka but by the students themselves, presumably at the instance of the organisers of the January 1 press conference where the story first broke.

Let us look at the story step by step. Rudre Gowda, the principal of the college, has said that wearing the hijab on the college campus was not banned, but the girls were required  to take it off when they entered the classroom.  “The institution,” he was quoted by PTI as saying,“did not have any rule on hijab-wearing as such, since no one used to wear it to the classroom in the last 35 years.”

The college has 60 female Muslim students, six of whom made the hijab an issue, and no one seems to have sought out any of the remaining 54 to ascertain the veracity of the principal’s assertion. At any rate, his claim has not been controverted by anyone so far.

Leefa Mahek, one of the six protestors at the press conference, whom the New York Times interviewed, confirmed that wearing a headscarf had not been mentioned as a problem by the administrators when she was admitted to the school a year ago. So, not only had wearing headscarfs on the campus not been banned, but she had not felt sufficiently uncomfortable with having to remove it in class to make an issue of it, for an entire year.

So what made her change her mind? The answer almost certainly lies in the answer to yet another question: who arranged the press conference on January 1? Press conferences have a purpose, so the nature and objectives of the organisers need to be examined too. The January 1 press conference was organised by an organisation called the Campus Front of India, which had decided to make the hijab an issue as part of its own assertion in Karnataka’s colleges. According to the News Minute, the CFI was particularly riled by the fact that some Muslim students had participated in a protest organised by the RSS’s student wing, the Akhil Bharatiya Vidyarthi Parishad.

The CFI is an offshoot of a parent organisation called the Popular Front of India. The PFI, which has its headquarters in Delhi, has a long list of allegations of violence against it, levelled not by the National Investigation Agency or the CBI but by the Kerala police, and these allegations go back to 2010, when Modi raj was not even a cloud on the horizon. However, the organisation remains legal and has not been banned even though the Centre has the ability to proscribe it under the Unlawful Activities (Prevention) Act, if it has the evidence to back it up.

In September 2018, the Kerala police arrested 16 members of the CFI on the charge of having stabbed to death Abhimanyu, a popular student of the Maharaja’s College at Ernakulam. Abhimanyu was district president of the  CPI(M)-affiliated Students’ Federation of India. The killing, which was almost certainly unintended, resulted from a fight between cadres of the CFI and the SFI, over which organisation would get to paint its slogans on a particular wall in the college campus.

Such politically inspired fracas are tragically common on college campuses in India, so it would be wrong to deduce, without further proof, that the CFI’s sponsorship of the six girls’ press conference is part of a ‘conspiracy’ to create communal tension. But, as the confrontation between immaculately saffron-clad boys and girls and hijab-clad girls at various locations in Karnataka showed, that is exactly what has resulted.

Like the Pulwama suicide bombing in 2019, the hijab controversy has come as an unsolicited gift to a BJP government that has been on its back feet since its mishandling of the COVID-19 crisis last year. With civil society leaders, Muslim organisations across India and a section of the media quickly concluding that the hijab ban is yet another exercise in Muslim baiting designed to advance the cause of Hindutva, this was just the excuse the Sangh parivar needed to shore up its support base.

All those who wish to preserve India’s pluralism and democracy therefore need to curb such knee-jerk reactions in the coming days, for they have, within them, the potential to unleash a vastly larger conflict than the one that was triggered by the Babri Masjid – one from which secularism and democracy will be the ultimate losers.

Fortunately, Karnataka is not Uttar Pradesh and Basavaraj Bommai is not Yogi Adityanath. The Karnataka government’s decision to leave it to the courts to decide the issue is both legally and morally the right thing to have done. The path to resolving this issue on the basis of law and the constitution is now open.

Prem Shankar Jha is a senior journalist and former editor. He is the author of Dawn of the Solar Age: an End to Global Warming and Fear (Sage 2017) and is currently a visiting fellow at the Centre for Environment Studies, School of Engineering and Applied Sciences, Harvard University

https://thewire.in/communalism/debate-hijab-karnataka-shah-bano

Read More

With every passing hour since the hold up on the flyover in Punjab, it is becoming more and more apparent that Modi intends to use it as an excuse for avoiding an election in Punjab that the BJP is bound to lose.

Modi Is Most Dangerous When He Senses He Is Losing Ground
Prime Minister Narendra Modi. Photo: pmindia.gov.in

Had Prime Minister Narendra Modi not attained the height of power in politics, he would have reached the heights of fame in theatre. For that is all that his nearly uncontrollable rage at having been thwarted from reaching Hussainiwala for his scheduled public meeting on January 5 was – pure theatre. All that had happened to provoke his rage on January 5 was a 15-minute hold up on a flyover 30 km short of where he was scheduled to unveil a National Martyrs Memorial that day.

Such holdups have happened to virtually every prime minister in the past 75 years, including at least twice to Modi himself. But neither his predecessors nor he had thought of turning these minor setbacks into a pretext for declaring president’s rule and dismissing an elected state government.  

But with every passing hour since the hold up on the flyover, it is becoming more and more apparent that even if it was not engineered by the BJP from the start, Modi now intends to use that minor mishap as an excuse for avoiding an election in Punjab that he and his party are bound to lose. 

Modi’s accusation that the Punjab government was behind the farmers’ blockade is ridiculous. Neither the government nor the farmers could have known that the prime minister would be travelling by road, as the decision not to travel by helicopter because of inclement weather was taken only after he reached Bathinda airport by plane from Delhi. 

The flyover was 92 kilometres from Bathinda airport, so it would have taken ninety or so minutes for his cavalcade to reach the flyover. That is an extremely short period of time even for the farmers’ union, let alone the state government, to organise a jatha and get it to the flyover. It is far more plausible, therefore, that the blockade had been organised, as farmer leaders have insisted, to stop buses ferrying BJP supporters from reaching the meeting ground. 

Farmers stage a demonstration to block Prime Minister Narendra Modis cavalcade, in Ferozepur, January 5, 2022. Photo: PTI

Had Modi been determined to reach Hussainiwala, his cavalcade could easily have diverted to one of the many metalled rural roads with which rural Punjab is crisscrossed. A vast network of such roads has been created by mandi committees over the past several decades to facilitate the rapid transport of the harvest.

But Modi did not even contemplate doing so. It is far more likely, therefore, that he decided to turn back because he was informed by his security staff, who had been at the site for the previous five days, that the crowd turnout at the meeting ground, when the BJP had hired chairs to seat 70,000, was not very encouraging. 

Modi’s barely veiled accusation that the Punjab Congress had conspired with Khalistanis and Pakistan to put his life in danger is as ridiculous as his party’s earlier accusation that the farmers’ struggle against the new farm laws was also the work of anti-national ‘Khalistanis’. But the way in which he made it – by thanking the Punjab chief minister for “allowing him to return to Bathinda alive” – smacks of more than merely an oversized ego that does not take any setback easily.  

For Modi had an hour or more to think of what he would say to the media when he returned to Bathinda. And since then, his party has spared no effort to paint the hold up on the flyover as a premeditated attack upon the prime minister by an opposition party, and create a justification for declaring President’s rule in the state through relentless repetition of this lie till, to untutored ears, it begins to sound like the truth.  

Since then everything that the prime minister, his home minister and party men have said and done, has looked like a well rehearsed script in a theatre of evil. On January 6, Modi visited Rashtrapati Bhavan to brief President Kovind about the lapse, with the latter calling the hold up a ‘serious lapse’. 

President Ram Nath Kovind met Prime Minister Narendra Modi at the Rashtrapati Bhavan on January 6 to receive “a first-hand account of the security breach” in his convoy in Punjab on January 5. Photo: Twitter/ @rashtrapatibhvn

That nothing at all actually happened on the flyover; that newspaper photographs published the next day and video clips of the alleged ‘deliberate’ security lapse show Modi’s (presumably armoured) black Toyota SUV, surrounded by no fewer than six SPG troopers carrying machine guns, none of them showing any alarm or anxiety; a vacant space for several metres all around the SUV, and on the other side of the four-lane flyover a large number of BJP demonstrators sporting saffron insignia and carrying tricolours chanting Modi’s praises, with not a single protesting farmer in sight, has not seemed to matter to a prime minister who has grown so used to manufacturing truth that he has felt no need to reign in the chorus even in order to maintain his credibility.

A dangerous game

The grounds on which Modi plans to impose President’s rule on Punjab are not hard to discern. Article 356 of the constitution, which empowered the President of India to dissolve any state legislature virtually at will, had been abused 82 times before the Bommai judgement of the Supreme Court in 1994. It has not been invoked by any government since then. That judgment allowed future Union governments to pull down an elected state government on only three non-procedural grounds but expressly disallowed it on even other grounds. 

The former are:

  1. Where a constitutional direction of the Union government is disregarded by the state government;
  2. Internal subversion where, for example, a government is deliberately acting against the constitution and the law or is fomenting a violent revolt, and 
  3. Physical breakdown where the state government wilfully refuses to discharge its constitutional obligations and thereby endangers the security of the state.

The latter are: 

  1. Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry; 
  2. Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the assembly;
  3. Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980; 
  4. On the grounds of Internal disturbances not amounting to internal subversion or physical breakdown;
  5. Allegations of maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state; 
  6. Where the state government is dismissed without  giving it prior warning to mend its ways.
  7. The judgement ends with a portmanteau dismissal of any purpose that is ‘extraneous or irrelevant’ to the one for which the power has been conferred on the President by the Constitution.

From home minister Amit Shah and BJP spokespersons’ endless harping on a security breach deliberately created to endanger the life of the prime minister, it is apparent that the government intends to justify using the second and third grounds for invoking Article

356 in Punjab. To make this credible, Modi and Shah are playing an incredibly dangerous game, for they are allowing their party members to harp endlessly upon the possibility that in this Sikh majority state, an insecure Congress chief minister is seeking the support of Khalistanis linked to, and backed by Pakistan, and has not hesitated to put the prime minister’s life in danger. 

As recorded by innumerable video recordings of what transpired on the flyover, this is utter nonsense for there was not even a hint of violence in the air. But Modi, and if not him then the leaders of the RSS, need to reflect on what bringing down a government headed by a Sikh on grounds that amount to treason will unleash in Punjab. For it could easily trigger a chain of events that ends in a revival of insurgency in Punjab, as the scrapping of Article 370 and imposition of what is in effect police rule is threatening to do even now in Kashmir. 

Security forces in Kashmir. Photo: PTI/Files

Even that may not be the end of the damage the BJP will do to India. Other political parties in India will see in the dismissal of the Channi government a threat to their democratic rights and take to the streets. If the BJP reacts to their demonstrations as it has done in Punjab, we could find ourselves at a crisis point for the Indian Union. 

I wish to end by showing readers where my gloomy forebodings spring from. Thirty-two years ago, Barbara Crossette, the India correspondent of the New York Times, wrote the following despatch on December 8, 1989: 

“In his first official trip out of the capital since becoming Prime Minister of India, V. P. Singh went to Amritsar today to pray at the holiest shrine of the Sikhs, promising to heal ‘the heavy, bleeding heart’ of Punjab state. Thousands have died in confrontations there in the last five years. 

In a gesture of reconciliation to a state so alienated it elected separatists to Parliament in the November elections, Mr. Singh told a largely Sikh audience at the shrine, the Golden Temple, that the heart of Punjab needs ‘a healing touch’. ‘The healing touch cannot be brought about at the point of bayonets, but with love, faith and the people’s cooperation,’ he said after riding through the town, in militant Sikh territory, in an open jeep. Indian reporters accompanying the Prime Minister said crowds surged forward along the route to greet him.” [Emphasis supplied]

Compare this to Modi sitting, brooding and nursing his anger for 15-20 minutes in an armoured SUV, and you can see the kind of prime minister India needs and the kind it does not.

Read More

In the face of a surplus of cereals and ever-dwindling prices as a consequence, farmers with small and medium sized land holdings have tried to shift to the cultivation of perishable fruits and vegetables. Their incomes, however, are still hamstrung by a lack of rural cold storage facilities in the country.

The Farmers Have Won an Epic Battle, But the Real War Lies Ahead
Farmers return to their homes after their year-long agitation against the contentious farm reform laws, at Dhareri Jatta Toll Plaza in Patiala, Saturday, Dec. 11, 2021. Farmers have called off their agitation after receiving a formal letter from the Centre on Thursday agreeing to their pending demands. Photo: PTI

The farmers of India have won an epic victory. For 15 months, they braved the biting cold, cruel heat, misrepresentation, calumny, assault by the police and the ever-present threat of COVID-19 to wage the most disciplined and peaceful protest against government policy that this country – or for that matter any other democracy – has ever seen. More than 500 of them have lost their lives over this period to natural and man-made causes, but they have prevailed. 

This is not their victory alone; it is a victory for Indian democracy as well, for the most difficult decision that any democratic government faces is to admit that it has made a serious mistake. This is something that Prime Minister Narendra Modi has never, done. The repeal of the farm laws is therefore a first step back for him. His courage – and that of the advisers who persuaded him to take the decision – needs to be acknowledged. 

But winning a battle is not the same as winning a war. The war the farmers of India still have to fight is against the deepening crisis that grips agriculture and continues to endanger their future. This is born not out of shortages, be it of food or inputs, but of mounting surpluses of produce. It is, therefore, a crisis of overproduction, not of under-distribution.

How has this paradox occurred in a country otherwise besieged by shortages of everything else?  The short answer is: it is the unintended product of incorrect policy choices and policy failures in virtually every other sector of the economy. These have resulted in slow GDP growth, averaging just over 5% since 1951 and a highly capital-intensive industrialisation that has created very few permanent jobs and woefully few casual ones. 

Slow job creation has prevented the rural population from moving off the land, as happened during the industrialisation of Europe and the USA and, more recently, that of East and South-East Asia. Farm families have therefore been forced to live off ever-shrinking land holdings by cultivating them more intensively. It is their Herculean efforts, aided by the Green Revolution in cereals, that has created the agricultural economy of surpluses that Modi tried to ‘reform’. The measure of their success is that India today is the world’s largest exporter of rice and sugar and the second largest exporter of onions, potatoes and dairy products. 

A vendor sorts potatoes, at wholesale fruit and vegetable market in Prayagraj, October 27, 2020. Photo: PTI.

The Modi government’s motives for hurriedly passing the three farm bills last year have been condemned by farmers’ leaders  and civil society members as being a pretext for handing over this huge export bonanza to some of his favourite businessmen, who have made no secret of their interest in entering the field of agro-marketing.  Had the Bills gone through, the capture of the Indian agro-market by a handful of large companies would have been the inevitable consequence of the so-called reforms, not their purpose. 

The official purpose of the Bills was to find a way of halting the ever-rising surpluses of cereals which the government can neither dispose of, nor find a use for any longer. It was based upon recommendations, possibly drawn up in haste, by two standing committees of Parliament in 2017 and 2018; and the recommendations of neoliberal economic advisers for whom The Market is a panacea for all economic diseases, second only to God. 

Few of the policy makers who crafted the three Bills realised that the farmers not only understood their predicament but had begun trying to get out of the ‘cereals trap’ almost four decades ago. As a result, the area under cultivation for wheat and rice had first stalled as long back as the early eighties and had then begun to shrink. The first cash crops they turned to were non-perishables, notably sugarcane and cotton. But by the early nineties, farmers with small and marginal holdings but also large families and, therefore, an abundant supply of free family labour, had begun to shift to the cultivation of perishables, notably of vegetables. They were doing so because horticulture, especially vegetable farming, payed more generously. 

Manmohan Singh’s UPA government recognised this and set up a National Horticulture Mission in 2006, tasked with creating infrastructure for storing and marketing fruits and vegetables. Under its aegis, thousands of cold storages were built and a vibrant national and international market was developed for India’s fruit and vegetables. 

By March 2019, there were an estimated 7,645 large cold stores with a total refrigerated space of 150 million cubic metres in the country, capable of storing  37-39 million tonnes of perishable produce. But all of these were in towns and cities. Punjab, for instance, had 379 cold storages in 2018, but not a single one in a village. Other states are no different. 

As a result, all the benefits from the development of this infrastructure have been going to the traders and cold storage owners who bought and stored the fruit and vegetables. The horticulturalists, nearly all of whom were small and marginal farmers, found themselves in exactly the same plight as before: they had to sell all of their produce within days of its ripening, at whatever price the traders were prepared to pay. 

Lack of cold storage facilities has also made it difficult for farmers to sell their apple and pear harvests. Photo: Athar Parvaiz

Data on the wholesale prices of onions, potatoes and tomatoes, published annually by the Indian Ministry of Agriculture, shows that these prices are lowest from January to April every year – when the vegetables ripen – and rise progressively through the summer until they peak, in October and November. Without cold stores, farmers have to sell their crop as soon as it ripens, between  January and April. A study of revenues and costs for potatoes and tomatoes based on a sample survey conducted in 66 clusters of villages in Punjab found that the average price farmers obtained for their potatoes in 2015-16 was Rs. 4.77 per kg. 

This gap gets wider as the produce becomes more perishable. The agriculture ministry’s surveys of horticulture in 2019 showed that over the six years from 2014 to 2019, farmers had seldom received  more than  Rs.4-5 per kg of potatoes and onions and Rs 6-8 per kg of tomatoes. But by the end of the summer, tomatoes were selling in urban markets for more than Rs 60 per kilo. 

In the average Punjabi village, cereal farmers grow 9 tonnes of wheat and rice per hectare and sell it to the Food Corporation of India (FCI) for Rs 1,62,000. In the same village, vegetable farmers, who usually own about a quarter of the land that cereal farmers own, grow 19.93 tonnes of vegetables per hectare of land but seldom receive even Rs 1,00,000 (gross) for their produce. 

That is why, not just in Punjab but all over India, vegetable growing remains the preserve of small and marginal farmers. Cereal farmers who would like to shift out of rice and wheat look at the plight of their poorer neighbours, shudder and buy more fertilisers to sustain their rice and wheat output, clinging even more desperately to the MSP system. 

Stubble burning is a popular practice for getting rid of residues of the rice crop to prepare the land for the sowing of wheat, exacerbated by the emphasis placed on cereal production. Photo: Flickr/2011CIAT/NeilPalmer CC BY-SA 2.0.

The true solution to the crisis of agriculture is the establishment of a cold stores in every village. But cold stores need uninterrupted, stable voltage power and in the last 75 years of supposed economic development, 17 successive Union and state governments have failed to provide this to any, let alone every, village in the country. 

More than six decades of rural electrification have provided villages with an average of 14-16 hours of power supply in a day. But even this is with fluctuating voltages as well as frequent interruptions and break downs. One virtually unnoticed consequence of this has been that there is not a single grid-linked cold storage in any village in India. 

This is despite the fact that the solution has been staring us in the face for the past two decades, if not longer. It is to set up a small, 5-10 tonnes-a-day biomass gasifiers in every village (or cluster of two to three villages),  gasify the rice and wheat straw that farmers are now burning to clear their fields  in simple, air-blown gasifiers and use the lean fuel gas this yields to run a back-up generator for the power supply to the cold store. 

Cold stores in the villages are the key to a second Green Revolution that could be far more powerful than the first. By endowing farmers with the power to determine the supply of fruits and vegetables to Mandis, they will double the earnings of potato and onion growers and treble (or more) those of the more perishable produce, such as tomatoes, peas, mushrooms, spinach, salads, and okra (bhindi) and fruits such as mangoes, lychees, guavas and melons .  

What’s more, horticulturalists will not be the only beneficiaries. Biochar (the other product of crop residue gasification) is 80-90% pure, sulphur-free, carbon. It can, therefore, not only replace imported coking coal with a non-fossil fuel in the steel industry, but also replace imported oil as the primary energy source for the production of transport fuels, as Germany did during World War II and South Africa did when trade sanctions were imposed upon it in 1986 to force it to end Apartheid. 

In the 1990s, The Energy and Resources Institute (TERI) – then known as the Tata Energy Research Institute – had developed a simple gasifier, complete with its straw-feeding and gas cleaning systems, for less than Rs 12 lakh. But the Union and state governments never even came to know of it. With no demand from agriculture, a few thousand of these got made and were sold to small and medium scale manufacturers of dried fruit and puffed cereals in the food processing industry. 

Last year, TERI unveiled a more sophisticated – and only slightly more expensive – two-stage gasifier in a village in Odisha, which can gasify not only straw and other crop residues, but also the carbon-rich sludge that is left behind by biogas plants. But once again, no one has thought of linking this to a cold storage to transform the future of rural India. 

Last year, the Modi government drew worldwide criticism when it announced that it would set up four large coals gasification plants by 2030 to produce coal gas from 100 million tonnes of coal as a replacement for the natural gas and Liquified Petroleum Gas (LPG) being imported today. These plants will work far better on cleaned biochar. Moreover, the government has sanctioned the  establishment of nine such plants to produce transport fuels from coal. Not only will these work much more efficiently with biochar briquettes, they will eliminate CO2 emissions and generate vast amounts of regular, salaried employment in rural areas, where it is needed most. 

The Bharatiya Kisan Union has achieved its immediate purpose and staved off disaster but it should now use the bonds it has forged within India’s vast community of farmers to promote policies  and technologies that will enable farmers to break out of the cereals trap on their own and in their own time. Biomass gasification is the most promising of these policies. But as described above, there is a wealth of others to choose from.

Prem Shankar Jha is a senior journalist and former editor. He is the author of Dawn of the Solar Age: an End to Global Warming and Fear (Sage 2017) and is currently a visiting fellow at the Centre for Environment Studies, School of Engineering and Applied Sciences, Harvard University.   

Read More

Based on the current trend line of active cases, the growth may be slowing but India will hit its peak only when daily recoveries outpace new cases. There are signs this may be happening in Delhi, which is why other metros need to pay attention to its strategy.

How Long Will the Pandemic Last? Rate of Growth of Active Cases Holds Key.

A woman watches as healthcare workers wearing personal protective equipment (PPE) check the temperature of residents of a slum during a check-up camp for the coronavirus disease (COVID-19) in Mumbai, India June 17, 2020. Photo: Reuters/Francis Mascarenhas

Just over a  week ago, Prime Minister Modi asked his ministers to prepare “emergency plans” to deal with the spike in COVID cases in the five most severely affected states of the country. If one is looking for an admission from the government that its lockdown had failed, then this is it: instead of taking 21 days, Modi’s Mahabharata has lasted over 100 days. And the battle is only growing more intense by the day.

So how long will it last? How long before the case count reaches its peak and starts to decline? After how many deaths? If anyone in the government has an idea, she or he has kept it a deep secret. Mercifully, we have enough data now to make a reasonable estimate by ourselves. The news is not all that good, but the data on the rate of growth of active cases (i.e. total cases minus those who have recovered)  is sufficiently reassuring to make panic unnecessary. While across India, daily new cases are outpacing daily recoveries, the picture in Delhi is somewhat reassuring and could serve as a guide for what needs to be done if the duration of the pandemic is to be shortened.

The following table gives data, from  May 15 till July 6, for the total number of cases, the number of patients who have recovered, and the number of patients under active care.

May 15 has been chosen as the starting date because phase 3 of the lockdown had ended and normal life was just being resumed. It therefore gave the data a fairly uniform base, free of policy change-induced shocks. A comparison of the rates of change in these parameters makes it possible to discern the slowing down of the diseases and, barring, a surge in news cases, broadly map the trajectory of cases.

Of course, a caveat is needed. Two big confounding factors remain testing rates and the government’s denial of community transmission. Recovery rates do increase because that’s the natural course during a pandemic and we won’t discover more new cases unless we test more, which is why leading epidemiologists like Dr Jayaprakash Muliyil think most cases are going under the radar. For this exercise, however, we will take the government’s data at face value.

Read More

The constitution describes India as a “Union of States”, meaning the “states” pre-existed the Union and are the federating parties that created it. By abolishing one state, J&K, Modi has threatened the very basis of the Union.

Modi 2.0's Big 'Achievement' in Its First 100 Days is to Undermine the Indian Union

So great was the Kashmiris’ trust in India’s secularism that their faith in it was not shaken even by 20 years of Indian mistrust, and military rule. Photo: Reuters/Danish Ismail

Had Chandrayaan 2’s moon lander not failed, it would have been our media-hungry prime minister and not Prakash Javadekar who would have addressed the press conference in Delhi on Sunday on the first 100 days of his second term in office. Javadekar tried to make the best of a miserable deal: he steered clear of the economy’s collapse and near three-fold increase in youth unemployment in the past seven years, and took credit for amending the Unlawful Activities Prevention Act that has turned India into a police state.

But his primary selling point for Modi’s government was its “full integration of Kashmir into India” by simply abolishing Article 370, and turning Jammu and Kashmir and Ladakh into union territories under the direct rule by the Centre – something that no other government had had the “courage” to do so far.

Neither Prime Minister Modi or Union home minister Amit Shah have bothered to ask themselves whether their predecessors’ restraint was cowardice or sagacity. This is because neither seem to be aware of the chasm that separates courage from foolhardiness. Courage presupposes foresight: a careful weighing of risks and benefits before adopting a course of action. Foolhardiness requires only the ‘courage’ to make a blind leap into the dark, hoping one will land on one’s feet.

On August 5, Modi and Shah made that leap. Today, it is apparent to those who have not been swept away by the prime minister’s self-congratulatory oratory, that he and Amit Shah have landed on the first step that leads to the disintegration of the Indian Union.

Home minister Amit Shah in the Lok Sabha during the debate on Article 370 and the reorganisation of J&K. Photo: PTI

For by dissolving a federating state of the Indian Union and bringing it under direct central rule for howsoever brief a period of time, Modi has set a precedent that, if not overruled, can be used by a future government to convert any part, or even all of the Union, into a unitary state. This will not only destroy the most basic feature of the constitution – the federal structure of the Indian Union – but also negate the political rationale that underlies it.

The reality that not only Modi but many constitutional theorists are only dimly aware of is that Indian federalism is not based upon administrative convenience or date of acquisition of a particular territory, as is the federalism of the USA, Canada and Australia. We already had that form of federalism under the Government of India Act of 1935 and lost no time in changing it drastically.

Today’s India is a federation of far older ethno-nations, several of which have had a distinct identity for more than two millennia. These have had distinct cultural and political identities long before the Indian Union was born. This fact is explicitly acknowledged by the constitution which describes India as a “Union of States”, a clear admission that the “states” in some manner, pre-existed the union and are the federating parties that created it.

The primacy of ethnicity was asserted at the cost of his life by Potti Sriramulu, the creator of Andhra Pradesh, in 1953 and conceded by Jawaharlal Nehru in the same year by creating the States Reorganisation Commission, with a mandate to redraw the boundaries of the existing provinces and create new states on the basis of language. So vigorously has ethnicity been defended that this process took another three decades to complete, with the separation of Gujarat from Maharashtra, the re-creation of Punjabi Suba as the homeland the Sikhs lost with Partition and the states of the northeast and Goa, before a stable federation finally emerged.

Indian federalism is therefore a living, breathing, entity. Its central purpose is to protect the ethnic identities of its peoples while expanding the field of their opportunities. This has been the glue that has successfully bound the most diverse region in the world into a single, modern nation-state.

Article 370 was one of the most important safeguards to India’s ethnic diversity because it safeguarded the distinct, syncretic culture of a Muslim majority state that opted for India – both its maharaja and its people – in order to protect that identity, Kashmiriyat. It is not surprising, therefore, that Article 371, which gives similar protection to ten other Indian states, is modelled on Article 370.

Thus, as elements in Nagaland and Mizoram have already pointed out, if the Supreme Court allows the president to dissolve Kashmir’s statehood, it can open the gates for some future government to dissolve theirs as well. What is more, this unease is bound to infect other, larger states as well, especially Andhra Pradesh, Tamil Nadu, Punjab, Bengal and Assam.

The great betrayal

So great was the Kashmiris’ trust in India’s secularism that their faith in it was not shaken even by 20 years of Indian mistrust, and military rule. As a result, in 2009 a survey of public opinion in the Kashmir Valley, conducted by the London-based Royal Institute for International Affairs, found that even in the four worst-affected districts of the Valley, only 2.5-7.5% of Kashmiris said they would like to belong to Pakistan. By definition, this meant that the vast majority who wanted “azadi” did not want it at the cost of cutting their economic, educational and medical ties with India.

That was the near-peace that Modi inherited in 2014. But within three months of his swearing-in, he had destroyed that half-built edifice by publicly humiliating the Hurriyat, terminating the tacit tripartite dialogue of which it had been a part since 2004, and raining “10-for-1” fire across the Line of Control in reply to sporadic ceasefire violations by Pakistani soldiers.

The most damaging of all has been the change in the television media from sympathetic neutrality to a perfervid hyper-nationalism. Suddenly there were no more azadi advocates in Kashmir, no more militants, no more stone-throwers, no more disaffected youth needing to be persuaded back into the mainstream. All were simply terrorists. These views and comments, aired relentlessly along with news of cow vigilantism, the incidents of Muslims being lynched in different parts of India, and acquittal after acquittal in the cases of bomb blasts in mosques, madrassas and trains designed expressly to kill Muslims, had completed the alienation of all but a handful. The scrapping of Article 370 is, for them, the last straw.

Like other would-be conquerors, Modi does not know the meaning of the word ‘retreat’. So his response to the return of militancy has been to use more and more force. When this too failed, he decided to eliminate the problem altogether by eliminating Kashmir. But that too is not happening. One month has passed since the government dissolved the state into two Union territories, but the Kashmir Valley is still under a siege that the world has not seen since medieval times. Worse, Amit Shah announced that it will continue for another 20-25 days.

The future of Kashmir, and therefore of India-Pakistan relations, is so dark that it does not bear thinking about. But the main threat that Modi’s actions pose to India does not lie outside its borders. They lie inside it, because if not stopped by the Supreme Court, what he has started could very easily presage the disintegration of the Indian Union.

Read More