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COVER STORY

15-09-2017

Blow to Surveillance Raj

Supreme Court on Right to Privacy

Briefing

Interview: Chinmayi Arun

Informational privacy, the next challenge

V. VENKATESAN cover-story

Chinmayi Arun is executive director of the Centre for Communication Governance at National Law University, Delhi, where she is also an assistant professor of law. A fellow of the Berkman Klein Centre at Harvard University, she has published academic papers on surveillance and the right to privacy in India and on information gatekeeper liability in the context of Internet intermediaries.

Chinmayi Arun is the lead author of the India country report in Freedom House’s Freedom on the Net report for 2014 and 2015, and of the India report in the Global Network of Centres’ study of online intermediaries. Her public commentary on the right to privacy has been prominent and she has lectured nationally and internationally on the subject. Excerpts from an email interview she gave Frontline:

The Centre for Communication Governance has followed the Supreme Court’s hearing on the right to privacy closely. Were you expecting a unanimous judgment in favour of the fundamental right to privacy like this from the nine-judge bench from your reading of the observations from the bench during the hearing?

We were expecting a judgment in favour of the right to privacy but had never thought about unanimity. It is good to know that none of the judges wanted to be on the wrong side of history this time. Truthfully, I have faith in most of the Supreme Court judges when it comes to these things. I would have been very surprised if the bench had held that there is no fundamental right to privacy.

People did tell me that they were worried at the questions the bench was asking. I was not worried about the questions because privacy is a relatively new and unusual right. It takes most people time to see why it matters; it is okay to ask questions towards achieving a better understanding.

Does the unanimous judgment suggest that the court was wary of being on the wrong side of history by declaring that right to privacy is not fundamental? If it is true, how do you explain the stand of the government and the many respondents who articulated the opposite view?

Yes, it does. If you think of the government’s efforts as a strategy to (a) slow down the Aadhaar proceedings while it forces citizens on to the database and (b) ask such regressive questions that any judgment upholding privacy would be received with joy even if it imposed little actual restraint on the government, the government did not do too shabbily.

Perhaps it is also a question of strategic narrative. For the last two years, the government and other entities advocating on behalf of Aadhaar have managed to obscure the right to privacy debate through repeating misleading public statements. This year there has been a lot of advocacy and public engagement to remedy this.

Citizens realised what they would lose without the right to privacy and saw the many judgments that upheld privacy over the years. They realised that this right was a part of their lives. It is only after this change that the government’s stand became unpopular. By then it was too late for the government to go back on it. You can see from public statements being made by Ministers that there is already some effort to undo the damage inflicted by the government’s anti-privacy stand.

Why do you think the framers of the Constitution did not consider right to privacy as a fundamental right, and expressly excluded it from the list of fundamental rights, as the Constituent Assembly Debates reveal?

They did discuss it a little and proposed amendments that would have covered some privacy rights. In the Constituent Assembly Debates, there’s even a statement from [B.R.] Ambedkar saying that he sees the value in putting protection against arbitrary search and seizure in the Constitution, even though it is already in the Criminal Procedure Code.

There was some debate on search and seizure on one hand and interception of communication on the other. However, no powerful or convincing reasons were offered in the recorded debates for rejecting the inclusion of these rights in the Constitution. Perhaps one day a historian will unearth material about the negotiation that took place off the record, but on the record it is not clear why it did not pass.

It may help to remember that this was a relatively new right when our Constitution was drafted. It existed mainly in international human rights documents and gradually found its way into national constitutions.

The government has welcomed the judgment saying it has been its stand all along in Parliament and that it was the UPA government’s failure to provide legislative support to Aadhaar which triggered a legal challenge in the Supreme Court. Would you consider it a case of doublespeak?

Yes, it is exactly that. The UPA government never argued that there is no fundamental right to privacy. This was an argument raised by the current government. It is only now, after the judgment, that the government is saying that there is a right to privacy. If it had been saying this all along, the Constitution Bench of nine judges would have been unnecessary. As the judges pointed out, all this effort was undertaken because the Attorney General misread the M.P. Sharma judgment.

Looking back, do you think the reference to the nine-judge bench was justified and helped to clarify many issues?

No, it was not. The notion that there is no right to privacy was a ridiculous argument based on a bad reading of a judgment. The court seems to have seen it that way as well.

Perhaps the good thing to emerge from this judgment will be that people will be able to articulate the dignity and personal liberty argument clearly. Those seeking decriminalisation of homosexuality may finally manage it, since the Supreme Court has quite clearly declared that the choice of partner falls firmly within the right to privacy.

However, the judgment has done little to advance the jurisprudence on informational privacy, apart from ensuring that a data protection law will be passed. It has created a three-part test which the government needs to pass if it wishes to violate privacy. The test is rather broadly worded, which means that the judiciary will continue to struggle with informational privacy and may allow state abuse of power from time to time.

By its express overruling of the M.P. Sharma and Kharak Singh judgments, did the Supreme Court accept the government’s contention that it had held that right to privacy was not a fundamental right? I am asking this because the petitioners had argued that in both the cases there was no binding declaration by the court that the privacy right was not fundamental. Just as many smaller benches had ruled in favour of the right to privacy all these years, despite M.P. Sharma and Kharak Singh, could we not have continued without overruling? Can we say the court has rejected the contention that the many rulings in favour of right to privacy by the smaller benches were per incuriam?

No. The Supreme Court pointed out that the government was reading M.P. Sharma and Kharak Singh incorrectly. It then overruled both just to be on the safe side, but it went to some trouble to clarify that read correctly, neither judgment is good reason to argue that there is no right to privacy. This is exactly right, and is in fact what I had written in my comment on the Attorney General’s argument.

The Supreme Court’s articulation of the broad contours of the right to privacy is very valuable. The clarification, for example, that the ruling in Koushal was wrong may have great impact. The judiciary may now rule in favour of privacy without hesitation and may refer to the right in more contexts than it has done so far.

With the Supreme Court declaring the right to privacy as a fundamental right, will the Aadhaar Act stand legal scrutiny? What if the government strengthens the safeguards in the Act to match international standards?

It is apparent from the majority bench’s articulation of the right, recognising collection and aggregation of data as a violation of the right to privacy, that the Aadhaar Act does impact the right to privacy.

However, by offering up a broadly worded set of conditions under which the government may restrict the right to privacy, the Supreme Court has offered room for some parts of the Aadhaar Act to survive. It will be up to future benches, including the Aadhaar bench, to refine and interpret the judgment’s standards for how the right to privacy may be restricted.

The trouble is that neither the government nor the Supreme Court seem concerned about making sure that the safeguards are actually effective. The Aadhaar Act already has language about securing data. The trouble has always lain in two quarters. One is that in reality, the Aadhaar system malfunctions, and when it does, the lack of transparency and accountability means that citizens cannot seek recourse. The second is that there are many broad exceptions made for law enforcement agencies, creating great potential for function creep. The privacy judgment does little to help in these issues, which means that it is really for the Aadhaar bench to write a judgment with safeguards that are of some use in the 21st century.

The Supreme Court has held in the judgment that the invasion of the right to privacy is permissible only if there is a compelling state interest and a reasonable procedure [is] established by law, justified by the doctrine of proportionality. How do you think this qualification of the privacy right will be a safeguard in a practical sense? The state can always claim that a law facilitating invasion of privacy satisfies the three tests laid down by the court.

No, I don’t. This was unnecessary and was exactly what I had warned against before the judgment was published. The state will indeed always claim that it satisfies the tests. This means that each bench before which the question comes up [will] have to develop what is meant by reasonable procedure and proportionality in the context of privacy. Many of the harms caused by violation of the right to privacy are invisible. The outdated Indian command-control regulatory model will not help in this context.

The court has accepted the petitioners’ claim that the right to privacy must be left to evolve itself and that the court should not try to confine it to a few identifiable rights. In fact, the amorphous character of the right—acknowledged by both the petitioners and the respondents—was cited as a factor why it should not become a fundamental right. This amorphous character, therefore, makes privacy a unique right among all the fundamental rights. Do you, therefore, foresee a spurt in litigation claiming violation of privacy rights by both state and non-state actors? Is it an enforceable right against a non-state actor?

Yes, I do see a spurt in litigation. The Supreme Court has said [that] it should be enforceable against non-state actors but has also asked that the government develop a means to achieve this. However, I think that people will be challenging routine violations of privacy such as the use of closed-circuit television cameras in privately owned public spaces and intrusive questions asked in forms or workplaces.

One repeated argument, which the respondents made during the hearing, was that the right to privacy does not matter to the poor and the deprived and that this whole debate is elitist and has no relevance to them. Does the court answer this contention in the judgment?

Yes. It directly repudiates this argument. The judgment makes for beautiful reading in its articulation of dignity and how the right to privacy has always adhered to persons even before the Constitution was written. It will be very difficult for anyone to make this outrageous argument ever again.

Centre's response

On the back foot

For once, the “social media warriors” of the Bharatiya Janata Party (BJP) and associate organisations in the Sangh Parivar were found wanting in their designated role of defending the Narendra Modi government and its Ministers. This was one of the most palpable takeaways in the political context of the August 24 “right to privacy” judgment of the Supreme Court. To start with, the battalions of the saffron social media army were uncharacteristically silent as the judgment became public. When they were eventually forced to react, they tied themselves in knots.

The normal practice of these troll “warriors” is to start creating and propagating social media content within minutes of a major happening, implanting all the necessary spins, twists and yarns to promote the Modi government, the BJP and the Sangh Parivar. In the process, they also run down political and organisational opponents, employing any abject stratagem. Key functionaries in this massive social media machinery have often claimed that they were able to dictate political and social narratives across India, and at times even internationally, in a matter of minutes after an occurrence.

But that was not to be on August 24. For hours on end, this machinery had no clue what to propagate or how. This obviously reflected the cluelessness of the BJP leadership, including Prime Minister Narendra Modi and party president Amit Shah, in the face of an emphatic judgment that also entailed a resounding repudiation of the stance taken by the government in the case.

After the initial perplexity and silence, the BJP leadership got around to making a formal response through Ravi Shankar Prasad, Union Minister for Information Technology. His effort in that media interaction was to assert that the Modi government had “consistently been of the view that the right to privacy should be a fundamental right”. In a show of astounding bravado, he sought to depict Attorney General Mukul Rohatgi’s arguments as mere incidents of courtroom banter. (In the proceedings of the case earlier this year, Rohatgi made statements such as “[the] Constitution makers did not intend to make right to privacy a fundamental right” and that the Indian people had no “right to absolute bodily integrity”.) Prasad told the media: “You are quoting one of the exchanges in the recourse. Go to London, go to Washington or come to Delhi. Whenever cases are argued, there is a lot of banter and a lot of exchanges. But ultimately, the core of the arguments of both sides is noted in the judgment.” Within minutes of this comment by Prasad, his bluff was called in the social media and several instances of the BJP and its Ministers vociferously arguing against “right to privacy as a fundamental right” were listed.

Among those who used social media to debunk Prasad’s contention were Gautam Bhatia, the prominent lawyer, Sitaram Yechury, general sectretary of the Communist Party of India (Marxist), and Kavita Krishnan of the Communist Party of India (Marxist-Leninist). The debunking was shared so extensively that it turned out into an effective social media campaign, one which the Hindutva cyberwarriors were unable to counter. A number of social and political organisations, including the Left parties, the Congress, the Swaraj Abhiyan, the Samajwadi Party (S.P.) and the Rashtriya Janata Dal (RJD), also advanced this campaign on political and mainstream media platforms.

Even the official spokespersons of the BJP and other Sangh Parivar organisations failed to come up with cogent counter- arguments and understandably were missing from most television debates on the issue. Those who appeared in them made ludicrous spectacles of themselves. Television anchors who are in the habit of campaigning for the ruling dispensation gave fellowship to these piteous performers, who just betrayed their own bewilderment.

This campaign, and the multiple processes through which it moved forward, exposed the BJP’s duplicity on very many issues relating to the right to privacy question. Consider, for instance, Union Finance Minister Arun Jaitley’s speech in the Rajya Sabha in March 2016. It was full of perplexing statements: “Is privacy a fundamental right or not? The present Bill pre-supposes and is based on the premise and that it is too late in date to contend that privacy is not a fundamental right. So I do accept that privacy is probably a fundamental right.... The government pre-supposes privacy as a fundamental right, even though no such right exists in law. Privacy is not an absolute right. The Supreme Court is considering the privacy issue. It is subject to a restriction; it can be restricted by a procedure established by law.” Political leaders pointed out that Jaitley said all this while seeking to pass the Aadhaar Bill, 2016, virtually through the back door in the Rajya Sabha by presenting it as a Money Bill.

The move to introduce and pass the Aadhaar Bill, 2016, as a Money Bill was of a piece with other flagrant violations of democratic norms and legislative procedures by the BJP-led government. At the primary level, the move undermined the prestige and role of the Rajya Sabha, since the provisions of the Money Bill allowed the government to ignore proposed amendments. Equally importantly, the Aadhaar Bill, 2016, contained clauses that had the potential to curtail and restrict the rights of privacy of every citizen, directly impacting the rights to liberty and freedom of expression.

Incidentally, the BJP and its allies in the National Democratic Alliance (NDA) had for long opposed various aspects of the concept and implementation of the UID (unique identification number) in India, which was the most important objective of the Aadhaar Bill, 2016. That was when the BJP and the NDA were not ruling parties at the Centre. Their opposition was reflected in various forums, including in their representations in the Parliamentary Standing Committee. All that changed when the BJP came to power in 2014. Almost immediately, the Prime Minister and his Cabinet embarked on an aggressive mission to pass the Aadhaar Bill and link the UID to every single official transaction, ranging from banking to distributing benefits of the public distribution system.

The pretexts included better facilitation of the transfer of government funds to beneficiaries at the level of subsidies, pensions and scholarships and better management of the internal security machinery in the background of mounting terrorist threats. While the government advanced these points, Sangh Parivar affiliates such as the Vishwa Hindu Parishad (VHP) and leaders like Pravin Togadia marked the UID and Aadhaar as instruments to create an Israel-like society and polity, where every citizen is mapped, even DNA-profiled and indoctrinated to become fierce “nationalist soldiers”.

In this context, the Supreme Court’s ruling was nothing short of a dampener for Modi and his team. The perplexed silence and the confusion that marked the eventual responses indicated a setback in administrative and political terms.

When the BJP leadership and the Sangh Parivar mounted a fightback, it was predictably on the lines of harking back to the Emergency and how the Congress had used it for the gravest attack on the right to privacy. Some Sangh Parivar outfits pointed out that it was the Congress that had originally mooted the idea of UID and Aadhaar. Still, these Sangh Parivar campaigners themselves admitted, sotto voce, that they were not able to overcome the political backlash caused by the court verdict and the political responses to it.

However, a large number of BJP and Sangh Parivar leaders also contended that the issue of privacy was not recognised as a political factor by the common people. They believed that the verdict on instant triple talaq, which was announced two days earlier, had a higher emotional quotient and greater popular reach. Evidently, these groups believe that a sustained campaign on triple talaq and related issues can be used by Hindutva organisations to further their anti-Muslim communal propaganda. This could well sustain the communal polarisation that these outfits have cumulatively generated and aggravated over the past five years, creating obvious political consequences.

Right to privacy

Implications for Aadhaar

USHA RAMANATHAN cover-story

THE NINE-JUDGE BENCH OF THE SUPREME Court has propelled the privacy right to a place that is far higher than it was before this decision. In 2012, when the Justice A.P. Shah Committee (of which I was a member) was considering the contours of the right, it was a right that had been developing incrementally, case by case, and slowly acquiring an identity in fundamental rights jurisprudence. Some even considered it a “weak” right. That is now a thing of the past. While the detailing of the right will continue to happen as situations emerge where the right is asserted, the status of the right has been definitively pronounced by the nine-judge bench. The right to privacy is now a part of the rights and freedoms that are in the “Fundamental Rights” Chapter of the Constitution. It is closely allied to dignity. It is now “an intrinsic part of the right to life and liberty”.

This happened because of the doubts that the Attorney General cast on the very existence of the right.

Since 2012 and 2013, several petitions have been filed in the Supreme Court challenging the Unique Identification Authority of India’s (UIDAI) Aadhaar project on a range of grounds. It was a project that had been started without a feasibility report, with no law, no clarity on what it was and how it would be used, and what it meant for citizens’ rights and for state power over people. Biometrics were untested and UIDAI documents testified to this. There were fears that the poor would get excluded from services to which they were entitled: an apprehension that has come to pass and which academics, activists and journalists have documented.

The centralisation of data as also the involvement of foreign companies with close links to the United States’ Central Intelligence Agency (CIA) and Homeland Security and the French government were serious concerns. There were concerns about the potential for surveillance that this project was creating, about the convergence of data, and the breaking down of silos of information, profiling, tracking, and identity fraud. These, then, were matters of individual privacy, personal security, national security and exclusion.

Since September 2013, the court had repeatedly tried to halt the coercive way in which the project was being carried out, even as the cases were pending determination in the court. In March 2014, the government argued before the Supreme Court that the UIDAI should not be asked to share biometric information that was held in the database with the Central Bureau of Investigation (CBI) because it had to protect the privacy interests of those who had enrolled in their database. On March 16, 2015, a bench of three judges tasked with hearing and deciding on the challenges to the UID project fixed a date in July for the hearings. It was when these hearings got under way, that is, in August 2015, that the Attorney General surprised the court, and everyone else too, with his claim that the people of this country did not have a right to privacy.

Another court, another stand

Interestingly, though, this was not what the government was saying in other fora. In another court, down the corridor of the Supreme Court, in the same week, another bench of two judges was dealing with the question of striking down defamation as an offence in criminal law. There the government was saying that the privacy of the people was involved in the offence of defamation, that privacy was a fundamental right, and that the government was concerned about protecting that fundamental right, and so the court must not strike it down. Earlier this year, in the WhatsApp case, it was argued for the government that digital data were a reflection of individual personality and were protected by Article 21, which guarantees the right to life and personal liberty.

Why the denial of the right to privacy only in the UID cases? It could have been a tactical attempt to have the final decision in the case deferred until an indefinite date, which would have allowed the government to keep expanding the project in ways that would make it difficult to dismantle. On March 16, 2015, the apprehension was that the government was using every delay in hearing the case to fortify its fait accompli; the judges had been clear that they would not accept the fait accompli argument. Yet, every delay was, in fact, used by the government to use coercion and threat of denial of service to build up its database and have the Aadhaar numbers “seeded” in as many databases as it could think of.

Or it could have been a genuine concern that the UID project would not survive the test of privacy. There is forced biometrics capture, “seeding” of the numbers, the “e-KYC” service to private companies in which the demographic data and photograph held in the UIDAI database are transferred to private companies, convergence of data from different databases, the surveillance potential that is created, and the loss of control over one’s own biometrics. This is just an illustrative list. Recent days have been witness to leaks, where various State agencies and departments have casually displayed the numbers along with a range of information about people on public, easily accessible, websites. Private players have begun to demand the numbers. More, the government has begun to demand that the numbers be given to private agencies, such as mobile phone service providers, banks and schools, on pain of losing the service or even having their monies frozen in their accounts. Denying the existence of the right may have been the only route to save the project.

The constitution of the nine-judge bench was entirely unexpected when it happened. In January 2017, when Shyam Divan mentioned the matter before Chief Justice J.S. Khehar, who had just taken charge, he was told that the Chief Justice did not have the judges to spare. At that time it was not clear if the bench would be composed of 5 or 7 or 9 judges. On July 18, a five-judge bench began to hear the matter and then, quite without warning, the Chief Justice announced that a nine-judge bench would sit the next day and hear and decide the issue of privacy. Nine, because the 1954 decision in the M.P. Sharma case, which was one of the two decisions that the Attorney General had said had denied the right to privacy, had had 8 judges on the bench.

In a twist of fate, therefore, the government’s move to erase the right to privacy ended up producing a right much stronger than any that could have been imagined. Nine judges can do a lot. They can overrule judgments of other Constitution benches of lesser strength—as they did the infamous Emergency decision in what is called the “habeas corpus” case, which has been an embarrassing burden that the judiciary has had to bear for over 40 years. They can set right interpretations and understanding that they see as having gone wrong, as they did with the 2013 decision of the Supreme Court in the Section 377 case which criminalises homosexuality. They can authoritatively pronounce on rights and wrongs, and it cannot be lightly disturbed because it will need a larger bench to reverse a nine-judge bench order, and that does not happen every day. That is why there was anxiety about what the court would do, because it is likely to be the law for a long, long time.

This has then opened up the privacy dimensions of the challenge, with this difference: that it is a stronger right that will have to be answered than when the privacy right was claimed not to exist in August 2015.

Since the judgment, proponents of the project have said that privacy advocates have been proved wrong because the court has held that the right to privacy is not absolute, but can be restricted. This is misleading. Nobody claimed that privacy was an absolute right. No right is absolute. Even the right to life can be denied so long as it is according to procedure established by law. But it cannot be just any law. It has to be a law that is just, fair and reasonable. The state will have to establish that there is a legitimate need: merely saying that it is a need will not do. And it should be proportionate, which, as the court said, “ensures a rational nexus between the objects and the means adopted to achieve them”.

The court has illustrated what may be a legitimate state aim which may allow for some intrusion into the privacy right. National security, siphoning off public resources intended for the impoverished, data mining for ensuring that benefits reach intended beneficiaries, and prevention and investigation of crime illustrate what the court indicated could be legitimate state aims. There is little to disagree with in these broad descriptions of “legitimate state aims”.

What a strong privacy right does is to raise the threshold for the test of constitutionality of the infringement, with the incursions into the privacy right being placed under strict scrutiny. The test is much, much more stringent after this judgment. The right is now not just strong but also fundamental, and any restriction on the right is the exception, which restriction will have to meet the tests set by the court. The idea of state power, which was implicit in the denial of privacy by the state, has been altered unrecognisably. It is against this altered standard that the privacy violations of the UID project will be tested by the court that will now hear the case.

Usha Ramanathan works on the jurisprudence of law, poverty and rights.

Right to privacy

A historic moment

cover-story

A FUNDAMENTAL RIGHT TO PRIVACY HAS always been assumed to exist under the Indian Constitution. The courts too have recognised that such a guarantee is implicit in some of its key provisions under Part III, dealing with fundamental rights. Therefore, when the Supreme Court’s nine-judge Constitution Bench made an express declaration that the right to privacy enjoyed state protection under Article 21 of the Constitution, it appeared as if the court was refreshing its nearly seven-decade-old jurisprudence.

The judgment in Justice K.S.Puttaswamy (Retd.) vs Union of India, delivered unanimously by nine judges on August 24, is remarkable for its clarity of vision and elegance throughout its 547 pages.

To many who followed the hearing of the case closely, the outcome is not at all a surprise. After 70 years of Independence, it would have been highly unpopular for India’s Supreme Court, and any of its judges, to subscribe to a proposition that ran counter to the liberal ethos of the times. Therefore, the nine judges simply had no option but to declare that the right to privacy was a fundamental right. Even the consensus among the judges on the issue could not be just a coincidence. Any judge expressing a dissenting view could have run the risk of being seen on the wrong side of history.

The surprise was, however, over how the Union of India and the respondents could adopt before the court the extremely regressive view that the right to privacy did not deserve to be a fundamental right. There cannot be a right to be left alone when man is a social animal, said senior counsel Aryama Sundaram, counsel for Maharashtra. The right to privacy was demanded by only those who had something to hide, said Rakesh Dwivedi, senior counsel for Gujarat. The right to privacy had no relevance for the hungry millions, said the Attorney General, K.K. Venugopal. Privacy was just a facet of liberty, and being amorphous, it could not be elevated to the status of a fundamental right, was the refrain of many respondents before the court.

The six separate judgments delivered by the judges provide comprehensive answers to each and every misgiving expressed by the respondents. The lead judgment was delivered by Justice D.Y. Chandrachud on behalf of himself, Chief Justice J.S. Khehar, and Justices R.K. Agrawal and S. Abdul Nazeer. Justices J. Chelameswar, S.A. Bobde, Rohinton Fali Nariman, Abhay Manohar Sapre and Sanjay Kishan Kaul delivered separate judgments expressing their agreement with the main opinion authored by Justice Chandrachud.

A bench of nine judges had to be constituted because a five-judge bench hearing the challenges to the Central government’s Aadhaar Act had found that it could not proceed further without clarifying whether the right to privacy was a fundamental right under the Constitution. And the five-judge bench realised that it could not hear and decide the issue because two previous benches of the court, with eight and six judges each in 1954 (in the case of M.P.Sharma vs Satish Chandra, District Magistrate, Delhi) and 1962 (in the case of Kharak Singh vs State of Uttar Pradesh) respectively, had given rulings that were interpreted by the respondents as having rejected the right to privacy as a fundamental right.

As five judges cannot overrule a decision rendered by six or eight judges because of the norms of judicial discipline, Chief Justice Khehar (who retired after delivering the verdict) constituted the nine-judge bench and completed the hearing of the case in seven days in July. But the significance of the nine-judge bench does not lie in the numbers alone. A layman is sure to ask what difference it makes if privacy is recognised as a fundamental right rather than an ordinary right. Fundamental rights enjoy constitutional protection. As Justice Chandrachud explains, if privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.

But the definition of the right to privacy was elusive during the hearing of the case. The nine-judge bench found merit in the lone dissenting view of Justice Subba Rao in the Kharak Singh case. Justice Subba Rao had held that though the Constitution did not expressly declare the right to privacy as a fundamental right, such a right was essential to personal liberty.

Surveying the case law on the subject, Justice Chandrachud was quick to reach certain conclusions. One is that fundamental rights emanate from basic notions of liberty and dignity, and the enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom.

Clarifying further, Justice Chandrachud observed that the right to be let alone was a part of the right to enjoy life. The right to enjoy life was, in its turn, a part of the fundamental right to life of the individual, he held.

As Indian society evolved, the assertion of the right to privacy had been considered by the Supreme Court in varying contexts replicating the choices and autonomy of the individual citizen, Justice Chandrachud observed.

The bench overruled both M.P.Sharma and Kharak Singh to the extent they held that the right to privacy was not protected under the Indian Constitution.

During the hearing, most of the respondents, including the Centre, argued that the Constitution framers did not want privacy to be elevated as a fundamental right, as shown by the Constituent Assembly Debates.

The answer to this was provided by Justice Chandrachud as follows: “Would this court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen.”

Aberrations corrected

The privacy judgment has enormous significance in correcting certain historical aberrations, which had tarnished the Supreme Court’s image in the past. One is the court’s judgment in ADM Jabalpur vs Shivakant Shukla, delivered during the Emergency by a five-judge Constitution Bench of which Justice Chandrachud’s father, Justice Y.V. Chandrachud, was a member.

The issue before the court was whether the President could suspend the right of every person to move any court for the enforcement of the right to personal liberty under Article 21 upon being detained under a preventive detention law. Four of the five judges answered the question in the affirmative. Justice H.R. Khanna dissented and emphatically held that the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of Emergency, would not affect the enforcement of the basic right to life and liberty. Justice Khanna added that the Constitution was not the sole repository of the right to life and liberty and that even in the absence of Article 21, it would not have been permissible for the state to deprive a person of his life and liberty without the authority of the law.

Justice D.Y. Chandrachud disapproved the judgments of the majority judges in this case. He held in paragraph 119: “The judgments rendered by all the four Judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised by Kesavananda Bharati, primordial rights. They constitute rights under natural law.”

The overruling of the judgment authored by Justice Y.V. Chandrachud by his son after 40 years is one of the salient aspects of the Supreme Court’s privacy judgment. It was as if Justice D.Y. Chandrachud was waiting for this moment to correct a historical aberration for which his father, who was among the four judges who delivered it, was often criticised during his lifetime and after.

Although the judgment in ADMJabalpur was so unpopular that the court did not rely on it as a precedent in subsequent cases, the court did not have the opportunity to overrule it expressly. This opportunity unfolded before the bench in the Puttaswamy case. The bench did not take long to overrule it accordingly, along with another subsequent decision, Union of India vs Bhanudas Krishna Gawde, delivered in 1977.

Justice Sanjay Kishan Kaul, in his judgment, observed that the majority opinion in ADM Jabalpur must be buried ten fathom deep, with no chance of resurrection. Justice Nariman, in his separate judgment, endorsed the overruling.

Another aberration in the Supreme Court’s history which the Puttaswamy bench sought to undo was in Suresh Kumar Koushal vs Naz Foundation, delivered in 2014. A two-judge bench of the court had set aside a judgment of the Delhi High Court holding that Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private, was violative of Articles 14, 15 and 21 of the Constitution. The Supreme Court, while setting aside the High Court’s verdict, held that a minuscule fraction of the country’s population constituted lesbians, gays, bisexuals and transgenders (LGBT) and in the last more than 150 years fewer than 200 persons had been prosecuted under Section 377 and this could not be the basis for declaring that it was unconstitutional. The Supreme Court also rejected the Delhi High Court’s reliance on judgments in foreign jurisdictions to support its verdict.

In the Puttaswamy judgment, Justice Chandrachud held that neither of the above reasons could be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21. He reasoned: “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.… The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs, or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

Finding the Supreme Court’s 2014 judgment in Koushal unsustainable, the Puttaswamy bench disagreed with it saying LGBT rights could not be construed to be “so-called rights”. Their rights were not “so-called”, but were real rights founded on sound constitutional doctrine, Justice Chandrachud wrote.

He explained that the invasion of a fundamental right was not rendered tolerable when a few, as opposed to a large number of persons, were subjected to hostile treatment. The chilling effect on the exercise of the right posed a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity, he further reasoned.

The bench, however, refrained from overruling the Koushal decision because a curative petition filed against it was pending before another bench. “We would leave the constitutional validity to be decided in an appropriate proceeding,” Justice Chandrachud’s judgment reads. Justice Kaul concurred.

Charge of elitism answered

Responding to the contention that the right to privacy is an elitist concept, Justice Chandrachud said: “Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this court.”

But there was one aspect of the right to privacy on which there was unanimity among the petitioners and the respondents. It is that the right to privacy is too amorphous to be defined in specific terms and that it should be left to evolve from case to case. But this agreement itself became the reason for divergence between them, with the petitioners seeing no harm in declaring it as a fundamental right and the respondents insisting that a right should be recognisable in order to guarantee its protection.

The petitioners apprehended that a restrictive definition of the right to privacy specifying what it included could hamper its growth in the future. The respondents, on the contrary, suggested that a mere finding that the right to privacy was a fundamental right, without specifying its contours, could limit the state’s pursuit of its development agenda.

Agreeing with the petitioners that privacy must be left to evolve case to case, Justice Chandrachud laid down three grounds to justify an invasion of privacy. They are existence of a law, a legitimate state aim suffering from no arbitrariness, and proportionality of the means to the object. The court is expected to apply these grounds to judge invasion of privacy by state and non-state actors in a particular case before it.

The technological development today can enable not only the state but also big corporations and private entities to be the big brother, Justice Kaul cautioned.

It was during the hearing of the case that the Centre disclosed that it proposed to set up an expert committee, headed by former Supreme Court judge B.N. Srikrishna, to draft a robust data protection law.

But data protection, as the petitioners’ counsel, Shyam Divan, explained, is only one facet of the right to privacy, that is, the right to informational privacy. But there are other facets too which need protection as a fundamental right: the right to bodily integrity, the right to be forgotten and even the right to be let alone. The sharing of biometric data, which the Aadhaar scheme entails, involves many facets of the right to privacy.

The first reference to the larger bench in the Aadhaar case was in August 2015 by a three-judge bench, which was reiterated by a five-judge bench in October that year. But it took nearly two years for the court to set up a larger bench to hear and decide the limited issue of whether privacy is a fundamental right—raised by as many as 21 petitioners before it.

Petitions challenging the Aadhaar Act will now be heard and decided by regular benches of the Supreme Court in the light of the privacy judgment, even as the petitioners are jubilant that they stand vindicated.

Centre's response

On the back foot

For once, the “social media warriors” of the Bharatiya Janata Party (BJP) and associate organisations in the Sangh Parivar were found wanting in their designated role of defending the Narendra Modi government and its Ministers. This was one of the most palpable takeaways in the political context of the August 24 “right to privacy” judgment of the Supreme Court. To start with, the battalions of the saffron social media army were uncharacteristically silent as the judgment became public. When they were eventually forced to react, they tied themselves in knots.

The normal practice of these troll “warriors” is to start creating and propagating social media content within minutes of a major happening, implanting all the necessary spins, twists and yarns to promote the Modi government, the BJP and the Sangh Parivar. In the process, they also run down political and organisational opponents, employing any abject stratagem. Key functionaries in this massive social media machinery have often claimed that they were able to dictate political and social narratives across India, and at times even internationally, in a matter of minutes after an occurrence.

But that was not to be on August 24. For hours on end, this machinery had no clue what to propagate or how. This obviously reflected the cluelessness of the BJP leadership, including Prime Minister Narendra Modi and party president Amit Shah, in the face of an emphatic judgment that also entailed a resounding repudiation of the stance taken by the government in the case.

After the initial perplexity and silence, the BJP leadership got around to making a formal response through Ravi Shankar Prasad, Union Minister for Information Technology. His effort in that media interaction was to assert that the Modi government had “consistently been of the view that the right to privacy should be a fundamental right”. In a show of astounding bravado, he sought to depict Attorney General Mukul Rohatgi’s arguments as mere incidents of courtroom banter. (In the proceedings of the case earlier this year, Rohatgi made statements such as “[the] Constitution makers did not intend to make right to privacy a fundamental right” and that the Indian people had no “right to absolute bodily integrity”.) Prasad told the media: “You are quoting one of the exchanges in the recourse. Go to London, go to Washington or come to Delhi. Whenever cases are argued, there is a lot of banter and a lot of exchanges. But ultimately, the core of the arguments of both sides is noted in the judgment.” Within minutes of this comment by Prasad, his bluff was called in the social media and several instances of the BJP and its Ministers vociferously arguing against “right to privacy as a fundamental right” were listed.

Among those who used social media to debunk Prasad’s contention were Gautam Bhatia, the prominent lawyer, Sitaram Yechury, general sectretary of the Communist Party of India (Marxist), and Kavita Krishnan of the Communist Party of India (Marxist-Leninist). The debunking was shared so extensively that it turned out into an effective social media campaign, one which the Hindutva cyberwarriors were unable to counter. A number of social and political organisations, including the Left parties, the Congress, the Swaraj Abhiyan, the Samajwadi Party (S.P.) and the Rashtriya Janata Dal (RJD), also advanced this campaign on political and mainstream media platforms.

Even the official spokespersons of the BJP and other Sangh Parivar organisations failed to come up with cogent counter- arguments and understandably were missing from most television debates on the issue. Those who appeared in them made ludicrous spectacles of themselves. Television anchors who are in the habit of campaigning for the ruling dispensation gave fellowship to these piteous performers, who just betrayed their own bewilderment.

This campaign, and the multiple processes through which it moved forward, exposed the BJP’s duplicity on very many issues relating to the right to privacy question. Consider, for instance, Union Finance Minister Arun Jaitley’s speech in the Rajya Sabha in March 2016. It was full of perplexing statements: “Is privacy a fundamental right or not? The present Bill pre-supposes and is based on the premise and that it is too late in date to contend that privacy is not a fundamental right. So I do accept that privacy is probably a fundamental right.... The government pre-supposes privacy as a fundamental right, even though no such right exists in law. Privacy is not an absolute right. The Supreme Court is considering the privacy issue. It is subject to a restriction; it can be restricted by a procedure established by law.” Political leaders pointed out that Jaitley said all this while seeking to pass the Aadhaar Bill, 2016, virtually through the back door in the Rajya Sabha by presenting it as a Money Bill.

The move to introduce and pass the Aadhaar Bill, 2016, as a Money Bill was of a piece with other flagrant violations of democratic norms and legislative procedures by the BJP-led government. At the primary level, the move undermined the prestige and role of the Rajya Sabha, since the provisions of the Money Bill allowed the government to ignore proposed amendments. Equally importantly, the Aadhaar Bill, 2016, contained clauses that had the potential to curtail and restrict the rights of privacy of every citizen, directly impacting the rights to liberty and freedom of expression.

Incidentally, the BJP and its allies in the National Democratic Alliance (NDA) had for long opposed various aspects of the concept and implementation of the UID (unique identification number) in India, which was the most important objective of the Aadhaar Bill, 2016. That was when the BJP and the NDA were not ruling parties at the Centre. Their opposition was reflected in various forums, including in their representations in the Parliamentary Standing Committee. All that changed when the BJP came to power in 2014. Almost immediately, the Prime Minister and his Cabinet embarked on an aggressive mission to pass the Aadhaar Bill and link the UID to every single official transaction, ranging from banking to distributing benefits of the public distribution system.

The pretexts included better facilitation of the transfer of government funds to beneficiaries at the level of subsidies, pensions and scholarships and better management of the internal security machinery in the background of mounting terrorist threats. While the government advanced these points, Sangh Parivar affiliates such as the Vishwa Hindu Parishad (VHP) and leaders like Pravin Togadia marked the UID and Aadhaar as instruments to create an Israel-like society and polity, where every citizen is mapped, even DNA-profiled and indoctrinated to become fierce “nationalist soldiers”.

In this context, the Supreme Court’s ruling was nothing short of a dampener for Modi and his team. The perplexed silence and the confusion that marked the eventual responses indicated a setback in administrative and political terms.

When the BJP leadership and the Sangh Parivar mounted a fightback, it was predictably on the lines of harking back to the Emergency and how the Congress had used it for the gravest attack on the right to privacy. Some Sangh Parivar outfits pointed out that it was the Congress that had originally mooted the idea of UID and Aadhaar. Still, these Sangh Parivar campaigners themselves admitted, sotto voce, that they were not able to overcome the political backlash caused by the court verdict and the political responses to it.

However, a large number of BJP and Sangh Parivar leaders also contended that the issue of privacy was not recognised as a political factor by the common people. They believed that the verdict on instant triple talaq, which was announced two days earlier, had a higher emotional quotient and greater popular reach. Evidently, these groups believe that a sustained campaign on triple talaq and related issues can be used by Hindutva organisations to further their anti-Muslim communal propaganda. This could well sustain the communal polarisation that these outfits have cumulatively generated and aggravated over the past five years, creating obvious political consequences.

Interview: Bader Sayeed

‘I demand a clear interpretation of Sharia’

The lawyer-activist Bader Sayeed in Chennai was in total joy on August 24, the day she turned 71. When Frontline met her at her residence, her cell phone was ringing non-stop. The calls were not only to wish her on her birthday but also to celebrate the landmark verdict of the Supreme Court on instant triple talaq. “It is like the joy that I derive when I sight the moon on the days of Bakr-id and Ramadhan,” said Bader Sayeed, who is also a former member of the Tamil Nadu Assembly. She is one of the Muslim women who have waged a bitter fight against the practice of triple talaq. The first woman to head the Tamil Nadu Wakf Board, in 2002, she created ripples within her faith when she filed a public interest litigation (PIL) petition in the Madras High Court seeking a direction against qazis issuing triple talaq certificates and for the codification of Muslim personal law. She impleaded herself in the petition on the talaq issue in the Supreme Court. Excerpts from the interview:

It has been a long battle against instant triple talaq. What is your reaction to the Supreme Court judgment?

It is a great and satisfying day for me. When I sought judicial intervention in the early 1990s, I was hounded down. But the plight of innocent Muslim women who were “deserted and dumped” by their husbands prompted me to take a stand against these patriarchal practices, idealised and guarded by the conservative elements within the faith, thus violating the fundamental principles of equality and justice enshrined in the Quran. In spite of constitutional guarantees, Muslim women are subject to discrimination and gender inequality. They have no safeguards against arbitrary divorce and second marriage, resulting in denial of dignity and security. In this context, the Supreme Court judgment is an epoch-making one since it has struck at the very root of this anti-women practice.

What prompted you to take up the battle against instant triple talaq?

Many Muslim women who were victimised by triple talaq at one go had started coming to me for legal aid. A girl who had been admitted to the labour ward in a hospital at about 5 in the morning was given a talaq by her husband at about 1 p.m. the same day. The entire family was devastated and came to me for help. The qazi had issued a certificate of talaq validating the divorce, which is against the law. We are now fighting it in court. The unilateral pronouncement of instant triple talaq has caused inhuman suffering for Muslim women. Divorce, I feel, should be through due intervention of courts of law, which alone would protect the interests of both parties.

After I approached the Madras High Court on the issue, many have approached me to get their grievances redressed through legal means. The non-availability of statistics on the number of victims of talaq should not camouflage the enormity of the issue. The Supreme Court verdict has taken the issue to another level, that is, ensuring an effective deterrent mechanism against arbitrary practices of patriarchy.

A section of Muslims claimed that any change in Sharia would lead to the establishment of a uniform civil code, which they fear might go against the tenets of Muslim personal law. You had sought the intervention of the Madras High Court to codify Muslim personal law and also limit the role of qazis.

Yes. I sought the codification of the Muslim Personal Law (Shariat) Application Act, 1937, which governs Muslim life, ranging from religious requirements and responsibilities to personal relationships. I want “exact interpretations” of it on divorce, alimony, polygamy and on other issues concerning women. I also insist that the codification should be in accordance with the tenets of the Quran. Non-codification violates the basic principles of the right to a decent living and consequently the right to life of Muslim women.

I have objected to the practice of qazis issuing talaq certificates, which, in my opinion, has no legal validity. Qazis should function within the confines of the Qazis Act, 1880, which does not empower them to issue certificates of divorce, though this practice is defended stoutly by the All India Muslim Personal Law Board. The qazis usurp quasi-judicial powers, routinely validating the arbitrary pronouncements of talaq, causing prejudice and hardship to the victims.

I do not support any demand for a uniform civil code at present. People should not get confused about the demand for the codification of Muslim personal law and the demand for a uniform civil code. What I demand is a clear interpretation of Sharia. It should not be allowed to be misinterpreted and misused to exploit hapless Muslim women. Qazis, maulvis and jamaats should be restrained from interfering in the lives of our women. Muslim women today seek justice under the provisions of the Protection of Women from Domestic Violence Act, 2005, the Dowry Prohibition Act and many similar Acts that the country has enacted for the welfare of women in general. Hence, any arbitrary action, such as talaq, should be trashed right away.

What is your next step to consolidate this advantage?

I have decided to write to the Tamil Nadu DGP [Director General of Police] enclosing a copy of the Supreme Court judgment asking him to instruct his subordinate officials, especially Station House Officers, to be sensitive while dealing with any marital dispute involving Muslim women. Many SHOs are unaware of the laws Muslims practise and in order to avoid controversies linked to marital disputes, they coerce the girl and her family to accept any settlement the local jamaat or a qazi broker.

Parliament should enact legislation as instructed by the court. The Prime Minister can press a “pause button” on the move for a uniform civil code and instead bring in legislation on issues such as talaq in order to confront the forces of “religious rigidism”.

Personal Law

A nuanced judgment

ROHIT DE the-nation

The Supreme Court of India gave three judgments when asked to consider the constitutional validity of the practice of talaq-e-bidat , or instant triple talaq. The judgments of Justices Rohinton F. Nariman and U.U. Lalit, which find the practice violative of the Indian Constitution, have been widely praised, while that of Chief Justice J.S. Khehar and Justice Abdul Nazeer, holding that personal laws are protected from constitutional scrutiny, has been criticised.

However, the judgement of Justice Kurian Joseph, who cast the deciding vote making talaq-e-bidat illegal, has caused uneasiness because he bases his decision on the argument that the practice of talaq is violative of the Shariat rather than the Constitution. Commentators have expressed concern at this failure to uphold individual rights, condemned it for lack of clarity, or been dismayed at judicial theology. Such a reading does great disservice to the brave petitioners in the case, the careful judgment of Justice Joseph and to the cause of pluralism in a democracy.

Shayara Bano in her petition prays that talaq-e-bidat be held illegal, ineffective and having no force in law. She specifically does not seek it to be declared as unconstitutional. In fact, she argues that if one finds the practice to be illegal, the question of the constitutionality of Muslim Personal Law does not arise and cites precedents to say that if a case can be decided on other grounds, questions of constitutionality need not be addressed. This stand was supported by the intervening petition of the Bharatiya Muslim Mahila Andolan (BMMA).

In their submission the petitioners draw upon a range of authorities to support their proposition that this specific form of divorce in one sitting is illegal and is not recognised by the Quran. They argue that it is a spiritual offence to the Quran, which requires time to be given for reconsideration and reconciliation in a talaq.

It is worth noting that the authorities cited include the Quran and the hadiths, the works of leading Islamic scholars such as Maulana Muhammad Ali, leading secular academics like Prof. Tahir Mahmood, Sunnis, Shias and Dawoodi Bohra scholars, judgments from Indian High Courts and the work done by the All India Muslim Women’s Personal Law Board. This recognition of religious, secular and female interpretative authority is itself a radical act, challenging both the ability of the state or a religious leader to be the sole spokesman for Islamic law.

In doing so, these women follow the footsteps of generations of Indian women who have been relentless in pursuit of rights, carving out spaces of freedom in a restrictive society and framing their claims in multiple ways. Mughal historians have shown how Hindu women who were denied property rights under customary law sought to appeal to Qazi courts to apply Shariat law to them to ensure their control over property. Since the early 20th century, Muslim women have been campaigning for reform of Muslim family law and were instrumental in mobilising support for the Dissolution of Muslim Marriages Act of 1939 and the Shariat Act of 1937.

Radical disobedience

The codification of Muslim law gave Muslim women the right to property and the right to sue for divorce almost two decades before their Hindu sisters won their rights. Article 2 of the Shariat Act of 1937, which holds that “the rule in questions affecting talaq will be Muslim personal law”, was brought in to specifically challenge Muslim communities that followed customary rules of succession and excluded women from inheritance.

The Dissolution of Muslim Marriages Act, 1939, the most far-reaching legislative change in Muslim law in South Asia, was the result of the actions of individual Muslim women fighting to leave unhappy marriages. In the absence of a provision where Hanafi women could ask for a divorce, several women became apostates from Islam for a brief period, dissolving all legal bonds. Alarmed by this act of radical disobedience, and recognising the miseries that women were subjected to, both ulema and secular leaders worked together with women’s groups, using a little used principle called takkayur , or borrowing, and introduced a law that would allow secular judges to grant Muslim women a divorce on various grounds well before their Hindu or Christian counterparts got such rights. Both pieces of legislation established precedents for an elected multireligious legislatures deciding questions of Muslim law.

The lead-up to Partition and the marginalisation of Muslims in Indian political life slowed the pace of reform and made Muslim women make difficult choices. Could they continue to be publicly critical of their community leaders when the community itself faced marginalisation?

Begum Sharifa Hamid Ali, a founding member of the Indian women’s movement, exemplified this dilemma. In 1938, she found herself to be the sole Muslim woman in the National Planning Committee for Women, which was tasked with reviewing the status of women and suggesting measures for equality in free India. Increasingly frustrated when she attempted to explain Muslim law to her colleagues and finding them “ignorant of Islam, its law and practice”, she penned a note of protest which the Chairwoman dismissed saying “Begum Hamid Ali was thinking on communal lines”. Begum Hamid Ali, aware of the dangers posed by majoritarian law-making, sought solutions within Islamic law and commissioned A.A. Fyzee to write a model nikahnama (marriage contract) which sought to amplify women’s matrimonial rights, limiting polygamy and triple talaq.

The Pakistan experience

The breakthrough family law reforms in Pakistan were also the result of women’s organisations actively lobbying the state and utilising the resources within Muslim law. Under pressure from women’s groups, President Ayub Khan appointed the Commission on Marriage and Family Laws in 1955. Comprising three men, three women and one Muslim scholar, this commission also issued thousands of questionnaires in Bengali, Urdu and English which sought the opinion of the common people on legal changes. In their report, the six laypersons in the commission made it clear that they were not proposing changes to the Shariat but only to Fiqh , which deals with situations not anticipated in the Quran or Sunnah.

Anticipating the ferocious dissent of its sole theologian member, the commission argued that “law is ultimately related to life experiences which are not the monopoly of theologians alone”. It then went on recommend wide-ranging changes in Muslim family law, including the declaration of “tala-i-bedat” as un-Islamic and requiring all divorces to be registered before the court. By 1955, Egypt, Syria, Iraq, Sudan, Jordan and Morocco had all abolished “talaq-e-bidat”, and Tunisia, Algeria, Iraq, Iran, Malaysia and Singapore required judicial intervention in cases of Muslim divorce.

The commission was reflecting a consensus in the global Muslim world. The commission’s recommendations were, however, watered down in the final Muslim Family Law Ordinance in the face of religious opposition. While the power of triple talaq remained with the husband, it could only be exercised through a judicial process and an arbitration council. The commission’s restriction on polygamy and leeway for adoption were more successful and continue to be expanded upon judicially in Pakistan and Bangladesh. The framing of these changes within the logic and language of Muslim personal law meant that they remained in force even under General Zia-ul-Huq’s period of Islamisation of the state.

Justice Kurian Joseph does not, as is popularly believed, state that Shariat law, in any form, cannot be tested against the Constitution. He holds that talaq-e-bidat is not part of the Shariat, and therefore cannot be tested for constitutionality the way that the codified Shariat Act can. He makes the narrow case that the practice itself is illegal and follows through almost all the precedents cited by the parties against the un-Islamic nature of the practice. He rejects the argument of the All India Muslim Personal Law Board that the long history of the practice can validate the religious character of triple talaq. He is also scathing of Chief Justice Khehar’s request to Parliament to legislate, stating that the business of the court is to resolve the issue at hand.

Shadan Farasat and Warisha Farasat, advocates for the BMMA, have argued that future changes in Muslim personal law will not come through courts or an “uniform civil code” but through a political process that modernises Muslim law, keeping in mind global developments and bringing in all the stakeholders, particularly women.

When prioritising constitutional rights, Justices Nariman and Lalit found equality to outweigh religious freedom; Justices Khehar and Nazeer held that religious practices were protected from equality, but Justice Joseph attempted to reconcile both, an endeavour the petitioners actively sought.

How does the state bring about change in social circumstances? It can impose it by fiat, and it is necessary to do so when a disempowered group finds it impossible to overcome majority prejudice. However, where it is possible, it should empower the possibility of change from within, allowing Muslim women in India to enjoy both their right to equality and their right to faith under the Indian Constitution.

Justice Kurian Joseph’s decision, by respecting the authority of both religious and constitutional law, preserves the legitimacy of the forum. The power of constitutional courts and constitutionalism in India is what Pratap Bhanu Mehta has described as its promise of uncertainty. Both the state and the Muslim Personal Law Board appear before it as parties and recognise its authority. Muslim family law is shaped in the shadow of the Constitution. It is common, especially in family law, for social practice to be at wide divergence from state law, as evidenced by the existence of bigamy among Hindus and Christians. It is important for those who want equality, but not necessarily uniformity, to keep secular and religious institutions in conversation.

The landscape of personal laws today is a very different one from the 1980s. Old religious authorities are being challenged and state institutions are being pressured to respond by diverse women’s groups. In the coming year, the Supreme Court will decide on whether Parsi women can pass on their religion to their children, whether Hindu women can enter the Sabarimala temple and Muslim women access Haji Ali’s dargah. It is important to recognise that in all these cases, the women are not setting up secular identities against religious identities but are seeking to be equal participants in their faith, and one hopes the Supreme Court will continue to listen to the petitioners with the dexterousness and sensitivity that Justice has shown.

Rohit De is a lawyer and a historian at Yale University. His book The People’s Constitution: Litigious Citizens and the Making of India’s Democracy will be published in 2018. He is grateful to Shadan Farasat for his insights on the case.

Interview: Hasina Khan

‘Our fight is against patriarchy’

DIVYA TRIVEDI the-nation

HASINA KHAN started Bebaak Collective, which became the first organisation to intervene in the Shayara Bano case in April 2016. Excerpts from an interview she gave Frontline on the triple talaq verdict:

How did you get involved in the case and did you expect such a verdict?

We first read about the Shayara Bano case in the newspapers and realised that it was important that we intervene. From experience we knew that whenever a woman goes to court, a lot of pressure is put on her. So, we spoke to a lot of women’s groups and together made an intervention.

For the first time, Muslim women have been addressed from a constitutional framework. It is very important for us that gender discrimination and violence are addressed on the basis of constitutional rights. In that sense, the judgment is historic.

To be honest, we were not expecting this kind of a judgment. We thought the courts might pass the buck on to the AIMPLB [All India Muslim Personal Law Board] or the community.

What next? A new law is to be formulated within six months.

Many women have been waiting for this judgment. Hopefully this opens up the way ahead for other important fights, including equal property rights. Whenever Parliament prepares a draft on whichever personal law, it should be done in a consultative manner, along with women’s groups and their experts. There should not be a limited time frame.

While the BJP seems divided on what is to be done, we hope that they do not force their ideology into the draft. Amit Shah said they would bring the Shariat Act in Parliament within six months, but [Mukhtar Abbas] Naqvi said that since the court had given its judgment there was no need to bring further amendments.

There are very few Muslim MPs in Parliament.

In this issue, it is immaterial whether there are Muslim members in Parliament or not. In 1986, with the participation of Muslim MPs, a very bad Muslim Women (Protection of Rights on Divorce) Act was brought in. In between too, Muslim participants have only created problems for Muslim women. If such MPs are to become our representatives, then we have had it. Actually it’s not about Muslims and non-Muslims here. It is the responsibility of all MPs, no matter from which party or religion, to look at all personal laws with a gender-just lens and rectify the problems, ignorance and negligence in each of them. But, of course, at one level, there is some fear from the right wing. After all, the BJP’s uniform civil code plan is specifically targeted at Muslim personal law.

Who will bear the onus of implementation?

As far as implementation and taking it to the people is concerned, it will require long-term strategies. We will be paying close attention to the role of State governments. The good thing is that there is already enough awareness. And we have got tremendous response from families, relatives and neighbours hailing it as a positive judgment.

Personal laws prioritise marriage and blood relations. But the concept of family has changed in the Muslim community. The newer generation is involved in different kinds of relationships that are not recognised by personal laws.

The BJP is taking credit for it.

Of course, the BJP is taking credit for it, but the fact is that ever since we went to court over the matter, various viewpoints have emerged. Political parties that talk of the Muslim community and protection of its rights haven’t really spoken about gender issues. This is a big failure of such political parties who speak of secular credentials but haven’t shown any responsibility or clarity on Muslim women’s issues. The BJP took advantage of that. To all those people who are telling us that we gave an opportunity to the BJP, we want to ask them: why didn’t you do anything?

Some said triple talaq was not really an issue as the statistics did not match up.

Whether the number is one or 100, the fact is that Muslim women are facing it. Who is to say whether 100 is a small number or not? Instant talaq is adhered to by 80 per cent of the Muslim population. But the three-month talaq, or talaq-e-hasan, followed by the non-Sunnis is also discriminatory, non-consensual and problematic, as it is unilateral and the man has the power to initiate or dissolve.

Also, the image of women versus men or progressive versus religious conservative is problematic. We are not out to criminalise Muslim men or feed into the media’s creation of aggressive Muslim men. Our fight is against patriarchy and the law.

Interview: Mariam Dhawale

‘Reform has to come from within’

WOMEN’S organisations have welcomed the judgment banning instant triple talaq. However, their contention is that reform in personal laws has to be a constant process from within the community, with a focus on gender justice. Mariam Dhawale, general secretary of the All India Democratic Women’s Association (AIDWA), says that the present government is not interested in gender-just laws but will, instead, use the minority judgment to promote its version of a uniform civil code. Excerpts from an interview:

What are your impressions of the “triple talaq” judgment?

The women’s movement, especially AIDWA, has been asking for a ban on instantaneous, arbitrary, oral triple talaq in one sitting, halala and polygamy for several decades now. We deal with such cases so we know the miserable condition of women who are victims of these practices. The practice of triple talaq in one sitting has been banned in many Islamic countries. It could be given on frivolous grounds such as food not being given on time or a woman not bringing certain things from her maternal home as demanded. People started giving talaq through SMS and postcards, Skype, WhatsApp and even over the phone.

The minority judgment of the Chief Justice of India, J.S. Khehar, calls upon the government to legislate on triple talaq and has asked all political parties to cooperate.

It is a minority opinion and a tricky situation too. Our stand is that reform has to come from within. There are secular laws and all women need to take recourse to them. Muslim women have welcomed the judgment, but the way it is being glorified, it appears as if this is liberation for all Muslim women.

The government is trying to take credit for this, claiming that the judgment is the result of its efforts.

On the one hand, we have Rashtriya Swayamsewak Sangh [RSS] leaders openly saying that working women are characterless or that women should stay at home. This judgment was definitely not the result of a struggle by the RSS. In Uttar Pradesh, women still do not have rights to agricultural land despite there being a Central law. The States are supposed to legislate, but it has not been the case in several States, including BJP-ruled Uttar Pradesh. The BJP-ruled Haryana government recently equated “pride in the veil” as a matter of Haryanvi identity. Today, women are challenging these identities and yet these ideas are promoted by some political parties and the governments led by them. Why doesn’t the government, which has a comfortable majority in Parliament, pass the Women’s Reservation Bill?

There are demands for a uniform civil code now.

There is a grave danger of the BJP misusing the suggestion given to it by the judgment to legislate on triple talaq to push for a uniform civil code. The underlying principle is equality, not uniformity. I fear that the minority judgment of the CJI will be used by the BJP to target the Muslim community.

Many secular organisations and Muslim groups too had been demanding abolition of arbitrary triple talaq. When the Shah Bano controversy was raging in the late 1980s and the Congress government overturned the court’s verdict for maintenance, the BJP was silent on the issue. This government has a communal agenda. It can use mutton, cow, love jehad, anything to attack the minorities. It has no right to claim any credit for the ban. The women’s movement and women’s organisations have been asking for changes in laws.

Soon after the verdict, a woman was divorced by her husband in Uttar Pradesh using the triple talaq mode. Will this be valid? It is the local mosque that takes the decision in such cases. Yet, women’s organisations have fought consistently for the rights of Muslim women. The Supreme Court judgment, in that sense, is the culmination of all those struggles. In fact, one should question the idea that Muslim women have been liberated. Talaq is not the only issue. The majority of Muslim women are poor. Does the government address the economic and social backwardness of the community?

Can law alone address these issues? There have been demands to dilute laws framed to protect women.

Laws need to be constantly strengthened. In spite of amendments to the laws dealing with rape as recommended by the Justice Verma Committee, violence against women, especially minors, has gone up. And amid all this, there is a demand to weaken laws protecting women. There is a petition in the Supreme Court that has demanded changes in the definition of rape.

Women's right to divorce

Not about gender equality

the-nation

AMID all the euphoria that greeted the triple talaq judgment invalidating instant triple talaq, a lot of noise has been made for the “poor, helpless, voiceless” Muslim women. The judgment has been hailed as a milestone in gender equality. Prime Minister Narendra Modi hailed it as “historic”. “It grants equality to Muslim women and is a powerful weapon for women empowerment,” he said. Bharatiya Janata Party (BJP) president Amit Shah said: “The judgment marks the beginning of a new era of pride and equality for Muslim women.”

However, observers say that Muslim women’s rights, including the right to annul a marriage, are well protected by the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1938, and the the scriptures. The seasoned legal expert Faizan Mustafa said: “No, there is nothing on gender justice in this judgment. They decided on arbitrariness, not discrimination.”

Women’s right to divorce

He added: “The media are biased. Yes, many forms of divorce are available to women, particularly khula [divorce initiated by the wife] is routinely used. As a matter of fact, in most Muslim divorces the initiative of divorce is taken by wives. In Chennai and Hyderabad, it was found that most restitution-of-conjugal-rights cases were filed by Muslim men to get back their wives.”

The provisions of the khula are safeguarded by the Quran, unlike instant triple talaq. Under these, a woman can obtain divorce from her husband without assigning any reason. Her right is all powerful. The husband cannot say no to khula. The qazi, who is supposed to help formalise it, cannot ask her to reconsider the decision or ask the possible reason for the action. He only has to tell the man to accept the inevitable. Interestingly, she does not necessarily have to return the mehr amount if already paid, or any gifts she might have got from her husband. She may, however, give away mehr if the husband insists.

Once the khula is pronounced, the woman is not supposed to live under the same roof as her husband. This is meant to protect her from physical assault by the divorced husband and is in contrast to the talaq provision where the couple must stay together between the pronouncements to give reconciliation a chance. But under khula, the woman’s word is final, unambiguous and unchallenged.

Khula and Indian law

Khula is recognised in Indian law. The Muslim Personal Law (Shariat) Application Act, 1937, specifically mentions it as a form of divorce at the initiative of the wife. Further, the State laws of Assam, West Bengal, Bihar, Odisha and Meghalaya provide for registration of khula. The High Court of Kerala in Shihabudheen vs Shybi held that the consent of the wife constitutes a valid khula: this ruling came close to blurring the line between khula and divorce through mutual consent, popularly known as mubarat.

However, khula is not the only way a woman can end a marriage. She has five other forms of divorce available to her, which makes nonsense of attempts to portray the Muslim woman as helpless, vulnerable and in need of support from right-wing politicians. The other forms include talaq-e-tafweez, under which the husband vests his wife with the right to divorce at the time of nikah itself. Among the conditions that can be put in it is stopping the husband from taking another spouse. In case things do not go well between the couple, the wife can end the marriage. In Saifudeen Sheikh vs Soneka Bibi, the Assam High Court cited an ante-nuptial contract embodied in the kabinnama that in case the husband brought any of his other wives to stay with the petitioner without her consent, she would be at liberty to exercise the right to divorce. Before that, in Moharam Ali vs Ayesha Khatun, the Calcutta High Court upheld this kind of agreement under which the wife was authorised to divorce her husband in case he married any other woman.

Then there is mubarat, which is held irrevocable by Shias and Sunnis. Mentioned in the Muslim Personal Law (Shariat) Application Act, 1937, it is an out-of-court divorce. Women also enjoy the right to judicial divorce, that is, fuskh, where a qazi can annul the marriage on the application of a wife.

Interestingly, for all the jubilation around the triple talaq judgment, talaq is faced by a minuscule percentage of Muslim women. The majority of women who do face triple talaq follow the Quranic prescription of attempting reconciliation through arbitration. The failure of these attempts leads to a single pronouncement followed by another a month later, and a final one after another month. According to statistics, fewer than 1 per cent women are divorced through arbitrary text messages, WhatsApp messages, phone calls, and so on. As stated by Mustafa, “The Muslim law protects the integrity of marriage and the character of the woman. If the husband indulges in slandering his wife, she is entitled to divorce. It is called lian and is a distinct form of divorce under the Shariat Act, 1937.”

Ziya Us Salam

Events

In defence of science

DIVYA TRIVEDI the-nation

THE Uttarakhand government has started a hunt, sponsored by the State Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), for the mythical herb sanjeevani booti in the State’s forests. Indian Institute of Technology Delhi has become the nodal agency for researching the benefits of cow excreta. The Madhya Pradesh government recently stirred up a controversy by announcing that it will set up astro-OPDs where astrologers will be employed to diagnose patients in hospitals. “Our country has gone back several centuries,” said an educationist marching through the streets of Delhi holding a banner in defence of science. Along with other scientists, students, engineers and rationalists, he bemoaned the recent efforts to undermine scientific temper in the country.

The Bharatiya Janata Party (BJP) government’s diversion of resources from scientific pursuits to pseudoscientific preoccupations has forced the scientific community to come out on to the streets. Not usually known for carrying placards or organising processions, the Indian scientific community responded to the assault on science through the “India March for Science”. Institutions and individuals responded to the call given by the Breakthrough Science Society, an organisation of scientists which has its central office in Kolkata and chapters in most States. On August 9, close to 10,000 protesters marched through more than 30 towns and cities, including Chandigarh, New Delhi, Allahabad, Patna, Ranchi, Pune, Ahmedabad, Hyderabad, Gangtok, Agartala, Guwahati, Bhubaneswar, Mumbai, Kolkata, Chennai and Bengaluru. But prohibitory orders issued by some institutions and the fear of losing funding from the government kept many scientists and academics away from the march.

Still, such a large mobilisation of the scientific community was a rarity. Partly inspired by the global March for Science organised across 600 cities around the world on April 22, the India chapter took a while to organise itself. In the United States, the movement was born as a response to Donald Trump’s budget cuts and decision to pull out of the Paris Agreement on climate change. In India too, funds for research were being slashed. Financial support to the Indian Institutes of Technology (IITs), the National Institutes of Technology (NITs) and the Indian Institutes of Science Education and Research (IISERs) had been reduced over the past few years. The IITs and the NITs were asked to manage their expenditures from students’ fees. Research funding agencies such as the Council for Scientific and Industrial Research (CSIR), the Department of Biotechnology and the Department of Science and Technology were facing severe shortage of funds. The march was organised to demand that the government allocate at least 3 per cent of the gross domestic product (GDP) for science instead of the current 0.8 per cent.

Some protesters were there just to reclaim the idea of protest. “When I look at my country today, they are researching urine. The right to protest is also being taken away from us. I am here to reclaim that right,” said an educationist at Jantar Mantar in Delhi.

“If unscientific ideas and superstitions are vigorously promoted the way they are being done now, it will restrict the space for science in people’s minds. While science demands evidence, the kind of mentality being propagated today encourages people to believe without questioning. Science is not just a set of theories, it is a way of life which is seriously being undermined,” said Prof. Soumitro Banerjee, professor of physics at IISER Kolkata. He was referring to some recent government initiatives that had the footprint of the pseudoscientific fixations of the Sangh Parivar.

Unscientific Beliefs

Recently, IIT Kharagpur announced in a workshop that vastu shastra would be included in undergraduate and postgraduate programmes in architecture. Commenting on a journal published by the Ranbir and Chitra Gupta School of Infrastructure Design and Management, IIT Kharagpur, Prof. Amitabha Datta, president of Breakthrough Science Society, West Bengal Chapter, said that the journal “advised people to follow vastu practices in day-to-day life— like keeping idols of Hanuman and Ganesha in front of the house. An article titled ‘A to Z of Vastu Vidya’ by Prof. Joy Sen claims that these idols can protect us from ‘evil powers’!... This is not an isolated incident. We are now witnessing a concerted effort to infuse unscientific, mythical beliefs into the common peoples’ minds in the name of science. We appeal to science-loving people of the country and particularly the members of the IIT community to protest against the move and to stop the introduction of vastu in the syllabus.”

IIT Delhi, meanwhile, has emerged as the nodal centre for “cow science”. The institute initiated research on the cow’s excretions under the direct chairpersonship of Harsh Vardhan, Minister for Science, Technology and Earth Sciences. This R&D initiative will focus on the uniqueness of indigenous cows and the use of panchagavya in food and nutrition, agriculture, medicine and health. Panchagavya is a mixture of cow’s milk, curd, ghee, dung and urine. An official memorandum directing the constitution of a national steering committee called Scientific Validation and Research on Panchagavya (SVAROP) was sent out by the Science for Equity, Empowerment and Development (SEED) of the Department of Science and Technology on April 25. The committee will be co-chaired by Vijay Bhatkar, Chancellor, Nalanda University, and the national president of Vijnana Bharati, the science and technology front of the Rashtriya Swayamsewak Sangh (RSS).

The March for Science was a response to “science facing the danger of being eclipsed by a rising wave of unscientific beliefs and religious bigotry, and scientific research suffering serious setback due to dwindling governmental support”, said an organiser.

High Court judges extolling the cow’s virtues or the Education Minister of a State claiming that the cow is the only animal that breathed out oxygen, however problematic, do not have the backing or validation of a scientific institution. But when scientific institutions backed by the government push for obscurantist ideas, it threatens to crush the foundation on which the scientific temperament of future generations is to be built. Organisers of the march said there had never been a greater need for scientists to interact with society as now. “While we can justly be inspired by the great achievements in science and technology in ancient India, we see that non-scientific ideas lacking in evidence are being propagated as science by persons in high positions, fuelling a confrontational chauvinism in lieu of true patriotism that we cherish. Promoting a scientific bent of mind can certainly help improve the social health of our country where incidents of witch-hunting, honour-killing and mob lynching are reported regularly,” said one of the organisers.

The march in Pune saw participation by the anti-superstition organisation Maharashtra Andhashraddha Nirmoolan Samiti, and Narendra Dabholkar was remembered as the first martyr for science in India. Dabholkar, Govind Pansare and M.M. Kalburgi were all murdered between 2014 and 2015 for advocating a scientific way of thinking.

While there is a lot of rhetoric coming from the Centre for the promotion of science, it does not help when the Prime Minister himself claims, in a room full of doctors, that Ganesha’s elephant head was proof of the prevalence of cosmetic surgery in ancient India. Or that the myth of Karna being born outside his mother’s womb was testimony to the prevalence of genetic engineering. Rather than being isolated incidents, these fantasies of a glorious past are being mouthed by the highest bodies of decision-makers in India and the discipline of science itself is being remoulded to prove such theories. Meanwhile, scientists in government laboratories are being asked to generate a part of their salary by selling their inventions and from other sources. In Dehradun in June, a two-day chintan shivir (brainstorming session) was organised, influenced and attended by the RSS affiliate Vijnana Bharati.

Acting on one of the conclusions arrived at the session, the Ministry of Science and Technology directed all CSIR laboratories to raise their own funds and turn research projects into for-profit ventures over two years. As priorities moved towards economically beneficial and profitable science, and even as demands for a knowledge society increased, everything that was required to sustain a knowledge society had been undermined, said Prof. Dhruv Raina, a science historian and professor at Jawaharlal Nehru University, New Delhi.

Concrete demands

The March for Science made some concrete demands. First, to allocate at least 3 per cent of the GDP for scientific and technological research and 10 per cent for education. Second, to stop the propagation of unscientific, obscurantist ideas and religious intolerance, and encourage development of a scientific temper, human values and a spirit of inquiry in conformance with Article 51A of the Constitution. Third, to ensure that the education system imparts only ideas that are supported by scientific evidence. And last, to enact policies based on evidence-based science.

“What is being spread are essentially various mythologies presented as science, and the exercise of science and scientific research seems to be to explore the correctness of these mythologies. All kinds of budgets are being created for this, including budgets for yoga and vastu shastra. It is being propagated that if one is sick, then one should do yoga instead of going to a hospital. There is a move away from public commitment to health and developing science and education. The funding for science itself is being diverted. R&D budgets of the government are being diverted to flagship programmes of the government or the Prime Minister,” said Prabir Purkayastha of the Delhi Science Forum.

Seventy years after Independence, a great proportion of the population is illiterate and semi-literate, and science does not reach them. “Most schools do not even have laboratories. How will you teach science to them? The great majority of students are taught in such schools and they will never become scientists,” said Soumitro Banerjee.

Jammu & Kashmir

Tinderbox petition

SHUJAAT BUKHARI the-nation

A SEMBLANCE of normalcy seemed to be returning to Jammu and Kashmir this year, despite intermittent lapses into violence such as the skirmishes that claimed nine lives on April 9, the day when elections were held for the Srinagar parliamentary seat. But if things appeared to be settling down, a new issue has cropped up to agitate emotions: that of Article 35A.

The unrest of 2016, besides leaving nearly 100 people dead, thousands wounded and many people blinded as a result of pellet injuries, had badly hit the State’s economy and education. Tourism, which too continues to feel the impact, touched its lowest ebb this year.

The coalition government led by Chief Minister Mehbooba Mufti has been in the thick of fighting new-age militancy as the number of local youths joining the ranks of militants swelled up alarmingly. The Valley was rocked by agitations in 2008, 2010 and again in 2016. Now, it seems ready for another battle as the people fear that Article 35A, which has been challenged in court, must be saved and that its possible abrogation will have dangerous consequences for the Valley. The perceived threat to Article 35A has not only brought together arch rivals in the State’s mainstream political parties but made separatists join the bandwagon of saving Article 35A “at any cost”.

The Bharatiya Janata Party (BJP), which is part of the ruling coalition along with the People’s Democratic Party (PDP), had agreed to the Agenda of Alliance with the PDP, which is committed to protecting the special status of Jammu and Kashmir as guaranteed through Article 370. Yet, in the three years of the Narendra Modi government, efforts have been made to delegitimise the political struggle in Kashmir and to deny that the problem in Jammu and Kashmir is a political one and needs a political solution. Besides harping on a military solution by toeing a hard line and projecting Kashmir as a new hotbed for the likes of the Islamic State or Al Qaeda, it has launched a tirade against the special status of the State through its affiliates.

The BJP government at the Centre discourages all discussion on Kashmir as a political issue. The ruling party seems to believe that the entire State, including Pakistan-occupied Kashmir (PoK), is an integral part of India. The complete integration of the State in the Indian Union has been the BJP’s political agenda. Article 370, which gives the State special status within the ambit of the Constitution, has been a thorn in the party’s side. Yet it endorsed the Agenda of Alliance in order to be in power in the State.

The party and its affiliates are now trying to use the judiciary to push their agenda. We the Citizens, a non-governmental organisation (NGO) patronised by the Rashtriya Swayamsewak Sangh (RSS), the ideological fountainhead of the BJP, has filed a petition in the Supreme Court to scrap Article 35A.

Significance of Article 35A

Article 35A was extended to Jammu and Kashmir through the Constitutional (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to State subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932. Only State subjects are entitled to own land in both parts of the State divided by the Line of Control (LoC), that is, including PoK. However, in Gilgit-Baltistan, which has been almost annexed by Pakistan, people do not have State subject rights any longer. This gives meat to the clamour for abrogation of Article 35A.

The significance of Article 35A is that it helps the State to retain a distinct character in terms of its residents. It actually protects a law that was passed by the Dogra monarch Maharaja Hari Singh during British rule to stop the influx of Punjabis into the State. The Maharaja passed the law reportedly at the behest of Kashmiri Pandits, who were powerful in the State at that time. According to the leading constitutional expert A.G. Noorani: “Parliament of India has no legislative competence to make laws in respect of J&K State subjects/citizens as defined by law and under Section 6 of the Constitution of J&K in respect of their immoveable properties.”

With the legal battle under way, experts are raising more pertinent questions. One is that should Article 35A go, all the 41 Presidential Orders that came after the one adding the provision to the Constitution would be subject to legal scrutiny as they were all in essence amendments to the 1954 Order. The subsequent orders have extended 94 out of the 97 entries in the Union List to the State and applied 260 articles of the Indian Constitution to the State. These orders have also been used to erode the special status or the autonomy of the State from time to time. The Government of India has refused to file an affidavit to defend Article 35A in the Supreme Court and instead sought a larger debate. The issue acquires a new twist with reports that the original file containing all necessary information and notings regarding Article 35A and the Presidential Order of 1954 is missing from the Ministry of Home Affairs.

It is not known what the final decision of the Supreme Court will be. But there is an apprehension that it could be an adverse one, even though the State government is defending the law. The Supreme Court will hear the case on August 29, and a bench, which was hearing a similar/linked case with the next Chief Justice Dipak Misra on it, has indicated that it could be referred to a five-judge bench. There are at least five cases that are linked to the special status of Jammu and Kashmir and are pending in the Supreme Court and the High Court.

Chief Minister’s warning

Chief Minister Mehbooba Mufti was the first to warn against tampering with Article 35A. At a seminar in Delhi, she said if Article 35A was tinkered with, there would be nobody to shoulder the Indian flag in Kashmir. The entire opposition in the State, comprising the National Conference (N.C.), the Congress, the Communist Party of India (Marxist) and other regional parties, has come out in defence of the law. Former Chief Minister Farooq Abdullah chaired a meeting of the opposition on August 7 and warned of the consequences of abrogating Article 35A. “If the S.C. [Supreme Court] decides to scrap Article 35A, New Delhi will have to face the consequences and be ready for the battleground. We will go to jail, do everything we can. They should be ready for it,” he said in an interview with this writer. With Mehbooba driving to Farooq Abdullah’s residence to discuss Article 35A, the political equations in the State seem to be changing. The Chief Minister also met the Prime Minister and the Home Minister on the issue.

It remains to be seen whether the Government of India changes its stand on August 29, when the case is again listed for hearing. Former Chief Minister Omar Abdullah has taken the battle a step forward by saying that in case Article 35A was tinkered with, the larger discussion on the accession would be reopened.

The Joint Resistance Leadership (JRL), comprising Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik, has also warned of the consequences of a possible abrogation of Article 35A. For the first time, entities on either side of the ideological divide are on the same page. The concern is that the removal of Article 35A will help the BJP fulfil its long-standing dream of complete integration, which eventually will make it possible for people from other States to settle in Jammu and Kashmir. Whether the pro-India and anti-India forces will stage protests together is not known, but the case has set the ball rolling not only for a greater confrontation between New Delhi and Srinagar but also for a possible revolt. If that happens, it is going to be BJP versus the rest. Not only will it put Kashmir back on the boil, but the fate of the State government will become uncertain.

Zaffar Shah, a leading lawyer, says that such issues warrant political decisions. “Such approach doesn’t have people’s support. Issues that can only be decided in a democratic manner can’t be dealt with by the courts. It appears that this is being done with a design to take away the core sovereignty of the State of Jammu and Kashmir,” he said. Hurriyat Conference leader Mirwaiz Umar Farooq said that the aim was simply to change the State’s demography: “As this Article bars non-State subjects from settling and buying property in J&K, it is being challenged in a court with a view to alter the demography of the State by settling people from outside the State with the right to acquire land and property, and vote in the Assembly elections.” He added that this was “basically aimed at reducing the 75 per cent Muslim majority of the State to a minority and changing the basic character of the State in order to undermine and deeply affect its disputed nature. It is being done under a deliberate plan and is part of the much-flaunted ‘final solution’ to the Kashmir dispute by the Indian state, led by the RSS.”

The mainstream camp headed by the N.C. has already initiated moves to bring Jammu and Ladakh into the fight, though popular opinion in Jammu is influenced by the BJP and the RSS. The political parties are seeking to send a message that removing Article 35A would be equally harmful for Jammu. Maharaja Hari Singh, who enacted the State subject law, was from Jammu and did this to contain Punjabi influence. “We will remind them about his vision vis-a-vis the State’s sanctity of a unique nature and they should follow,” said the CPI(M) leader M.Y. Tarigami. Though political manoeuvring is on to project Jammu as being at loggerheads with Kashmir, the strike observed by Jammu chemists last year was significant. They protested against a government order allotting a contract to a non-State firm and called it an attack on Article 370. In Kashmir, demography tends to be at the centre of concern, but Jammu might think in economic terms and could revolt against forces hell-bent on robbing the State of its special status.

The issue has exposed the double standards of the BJP, which at once contrives to be in power in the State and also lends implicit support to erode its special status. The BJP will doubtless use the issue in the run-up to the 2019 general elections, but it has the potential of setting Kashmir on fire. Jammu and Kashmir is not like any other State. It has an international dimension. New Delhi is committed through the Simla Agreement to resolving the issue with Pakistan, albeit bilaterally, but the dynamic of the problem is not as simple as the current government seems to think it is.

‘Centre must protect the Constitution’

the-nation

ZAFFAR AHMAD SHAH, constitutional expert and legal luminary from Jammu and Kashmir, discusses what Article 35A is, the ramifications that its abrogation would have on the State, and the role that the State government and the Government of India need to play in this context. Excerpts:

What is Article 35A?

Article 35A is the provision of the Constitution that safeguards several rights available to the permanent residents of Jammu Kashmir. It is different from the Indian law which defines the citizenship of India. It protects the rights and privileges of the permanent residents of Jammu Kashmir in acquisition of property, in employment and in scholarships.

A law, which in a sense is applicable to a particular section of society—like it is applicable to the permanent residents of Jammu Kashmir but is not applicable to Indian citizens—can be questioned in court.

In order to protect such laws, if the Constitution itself makes a provision saying that laws which give some advantage, privilege or rights to a group of people will not be challenged or cannot be challenged, then such group of people for whom the law is meant would continue to enjoy the protection of law.

What do privileges under Article 35A mean in practical terms?

Under the Constitution of India, the people of India have the right to buy or acquire property anywhere in India. When we say that people of India cannot buy any property in Jammu Kashmir, we are violating the rights of the people of India. But Article 35A says that even if the laws of the citizens of India are violated, the permanent residents, or people of Jammu Kashmir, will have this privilege.

When an advertisement for government jobs is out, it is restricted to the permanent residents of the State. If Article 35A is not there, then any person from India can apply for the job.

The scholarships granted by the State government are available only to the permanent residents of the State and not other citizens of India.

As a consequence of the protection of these rights, various laws have been passed which prohibit acquisition of property by non-permanent residents and restrict employment in the State only to permanent residents and, more importantly, the law protects the right of permanent residency.

Another political protection is in contesting Assembly seats: only permanent residents of Jammu Kashmir can contest.

What ramifications will abrogation of Article 35A have?

A group of people who call their organisation “We the Citizens” want the law declared invalid in the Supreme Court. And if it happens, it will have very serious and disastrous implications for our people. They will lose the concept of permanent residency; our land, our jobs and our scholarships will become open to every person.

People of the State should continue to have these rights. This is a guarantee to them, an outcome of something that happened 60 years back. Suddenly a group of people come and question it. We read mischief into it. An attempt is made to dilute and do away with the special status. This will pave the way for the abrogation of Article 370, against which writs have already been filed.

Our position and identity—culturally, morally, ethically, politically, economically—will become vulnerable. We won’t be able to save and define ourselves as a distinct and separate nation.

How do you see the Hurriyat leaders who say that they have nothing to do with the Indian Constitution and that their fight is not for any special status but complete independence from the Indian state?

This also has basis in the Constitution and the law. On August 14 and 15, 1947, as the British Paramountcy lapsed, all States except Jammu Kashmir, Junagarh and Hyderabad merged with India. As far as Jammu Kashmir is concerned, it has a special case, different from Hyderabad and Junagarh. What would be the position of Jammu Kashmir between August 15, 1947, and October 26, 1947? It was an independent state. It had its own sovereignty.

When on October 26, 1947, the Maharaja endorsed the Instrument of Accession, he transferred the powers of Defence, Communication and Foreign Affairs to the Union of India. So he empowered the Parliament of India to make laws relating to Defence, Communication and Foreign Affairs. But then on other subjects like taxes, punishing people for offences and thousands of other laws are also needed. So he retained the rest of the powers with himself.

The Governor General responded to it and explained that since the ruler of the state belonged to a community different from that of the majority of the people, this law be put to the ratification of the people.

Now this ratification by the people of the Instrument of Accession has not taken place. India took the matter to the United Nations, and the Security Council passed the resolution asking for a plebiscite in Jammu Kashmir, which did not take place.

So the stand of the Hurriyat, on the one hand, appears to be different, but on the other hand there is a common theme. The issue relating to constitutional autonomy is equally important and not inconsistent with the larger issue. Whatever autonomy the State has under the existing constitutional arrangements, people want these protections to continue to remain in operation until the larger issue is decided. Ultimately, these protections will be available to identify who the permanent residents are, but if non-permanent residents come to the State, there will be a mixture of the two and it will be difficult to know who the real permanent residents are.

Is this issue also important for the mainstream political parties of Jammu and Kashmir?

It is not an issue only for the Hurriyat. It is important for all political parties. Permanent residents will be all leaders of political parties, including the BJP [Bharatiya Janata Party], and the people of Jammu and Ladakh, who want Article 35A scrapped. If this article gets invalidated, then any person can go and buy land in Ladakh and Jammu. This issue is essentially political in nature. Should these issues be taken to court?

How do you see the State government’s role? If there was an agreement between the People’s Democratic Party [PDP] and the BJP, how did the issue land up in court? And is the PDP doing enough to protect Article 35A?

The BJP as a political party has made its mind clear that it wants Article 370 to go and that it wants the status of the State reduced to that of other States. Being coalition partners [with the PDP], it agreed to the status quo position of the State. Now a writ petition has been filed against Article 35A and it is believed that it has been done at the behest of the BJP. And with the Union of India not filing an affidavit, the PDP is virtually left alone in protecting Article 35A. This is a paradox for the PDP. On the one hand it is in a coalition with the BJP and on the other hand, it is fighting the case without the help of the BJP. The PDP has of late engaged a good lawyer, Fali Nariman, to defend the case. What the PDP needs to consider is why it should be in coalition with a political party that does not support it in the Supreme Court. The situation has been made so uncertain that it has threatened the very existence of the PDP. The BJP has outsmarted the PDP to facilitate the implementation of its own agendas and it is claiming publicly that it does not want Article 370. Was the PDP the facilitator of the BJP or was it so naive?

What can the Centre do to avoid any political upheaval in Jammu and Kashmir?

The first thing that the Government of India can do is to instruct its Attorney General to file an affidavit in the Supreme Court and make its stand known and request the court to dismiss the petition against Article 35A.

But would that not amount to an acceptance on the BJP’s part that it failed to have Article 370 abrogated?

As a government, you have one stand and as a political party, you have another stand. Before the Supreme Court, it is the government which is the party.

Earlier too, governments have defended [against] challenges to the Constitution. The government cannot refuse to support the constitutional position. It is under a constitutional obligation to maintain a constitutional position. The relation between the State government and the Government of India is ingrained in the Constitution. Who will defend it if not the government?

Media

Sarkar vs Sarkar

PRASAR BHARATI’S (the public service broadcaster) refusal to broadcast Tripura Chief Minister Manik Sarkar’s prerecorded Independence Day speech on All India Radio (AIR) and Doordarshan (DD) is being seen as a direct assault on the rights of an elected Chief Minister and on the principle of federalism. The incident, which caused a furore in social and political circles, once again reinforced the Bharatiya Janata Party (BJP)-led government’s tendency to muzzle dissenting voices. Manik Sarkar has been at the helm of the Communist Party of India (Marxist)-led Left Front government of Tripura for four consecutive terms now. As has been the ongoing practice for several years, on August 12 AIR and DD recorded Manik Sarkar’s Independence Day address, in Bengali and English respectively, to be aired and telecast on the morning of August 15.

However, on the evening of August 14 the Chief Minister’s office was informed through a letter from AIR that the speech would not be broadcast unless he “reshape[d]” it. The move was clearly an attempt to pressure an elected head of government to conform to the will of the ruling party at the Centre whose policies Manik Sarkar had criticised in his speech.

The letter from the office of the Assistant Director General, AIR, on behalf of the Director General, said: “… keeping in view the sanctity and solemnity attached with the occasion the broadcast is meant for, the CEO Prasar Bharati was also consulted and the collective decision taken at Delhi advises that the broadcast may not go with its existing content. AIR/Prasar Bharati will however be more than happy if the Hon’ble Chief Minister agrees to reshape the content making it suitable to the solemnity of the occasion and sentiments of the people of India at large.”

The Chief Minister refused to “reshape” his speech, and so it was not telecast or aired. “Manik Sarkar has been the Chief Minister for more than 19 years. Does he not know what to say in an Independence Day address? This is as a direct infringement on the rights of an elected Chief Minister,” Gautam Das, the spokesperson of the CPI(M) in Tripura and member of the party’s Central Committee, told Frontline.

He pointed out that nowhere in the letter did AIR specify which part of the Chief Minister’s speech was not in keeping with the “solemnity” of the occasion and the “sentiments of the people”. “They did not say what their objection was. It is clear that they are censoring what the Chief Minister will be saying to his people at the behest of their political leaders at the Centre. They [the BJP] do not want [to accept] that varieties of opinion exist in the different States of the country. There should not be anything that goes against their views and they do not want the media which is under their control to telecast or broadcast any view directly or indirectly critical of the BJP and its policies. This is intolerance at its worst and it is undemocratic and unconstitutional,” Gautam Das said. The party’s State secretary, Bijan Dhar, called it “an insult to the people of Tripura”.

The Polit Bureau of the CPI(M) said in a statement: “This is a gross infringement on the right of a Chief Minister to address the people of his State on Independence Day. This Act is reminiscent of the Emergency days and goes beyond as it seeks to gag the elected Chief Minister of a State. The Central government is trampling upon the autonomy of Doordarshan/AIR and Prasar Bharati by such acts of censorship.”

The Congress party also condemned the Centre’s move. Tripura Pradesh Congress president Birajit Sinha said the Centre’s attempt to gag the Chief Minister’s speech could not be supported. “The Central government is indulging in groupism at every level. This is very dangerous for democracy. All the media is under their control. This is worse than the Emergency,” he said.

Doordarshan Kendra (Agartala) tried to counter the allegations of the State government by claiming that it had given “wide coverage” to the Chief Minister’s Independence Day programme. In a statement, U.K. Sahoo, the Kendra chief, said: “I would like to state that [the] news unit of the local station of Doordarshan at Agartala has given wide coverage to [the] public address of [the] Chief Minister of Tripura and the development activities of the State government…. On August 15, Doordarshan also gave wide coverage to the Chief Minister’s Independence Day programme and telecast report running to 29 minutes and 25 seconds. The Chief Minister’s speech coverage was for 12 minutes. This was telecast at 1900 [hours].” However, he did not mention the recorded speech of the Chief Minister that Doordarshan refused to telecast on the morning of August 15.

The incident once again brought to the fore the question of Prasar Bharati’s autonomy and its powers. Although the Prasar Bharati Act was passed in 1990, it was not until 1997 that Prasar Bharati became a statutory autonomous body and the country’s public service broadcaster controlling AIR and DD, which were earlier under the Ministry of Information and Broadcasting.

The Prasar Bharati (Broadcasting Corporation of India) Act, 1990, states: “The Corporation shall, in the discharge of its functions, be guided by the following objectives, namely: (a) upholding the unity and integrity of the country and the values enshrined in the Constitution; (b) safeguarding the citizen’s right to be informed freely, truthfully and objectively on all matters of public interest, national or international, and presenting a fair and balanced flow of information including contrasting views without advocating any opinion or ideology of its own.”

However, according to Jawhar Sircar, former Chief Executive Officer (CEO) of Prasar Bharati, the principles upon which it was established were being perverted mainly by internal bureaucracy. “The form of the institution remained autonomous, [but] the functioning was not. Internal corrosions started taking place. The same set of people trained in the same manner simply carry out the ethos from one government Ministry to another governmental organisation. Such a place cannot breed autonomy,” Sircar said.

He pointed to a 1995 Supreme Court ruling that said it was imperative for Parliament to make a law “placing the broadcasting media in the hands of a public or statutory corporate” whose constitution and composition must be such as to ensure “impartiality in political economic and social matters and on all other political issues”.

“The Supreme Court specifically says to allow the federation to articulate itself; to allow pluralism and diversity of opinions and views. The Act says it will provide space for the contradictory voice. It is ridiculous for the bureaucracy to try and censor it, as it did in the case of the Tripura Chief Minister,” said Sircar.

He added that such a thing did not happen during his tenure as CEO nor could he recall any precedent before his time.

Sircar found nothing “unconstitutional’ in Manik Sarkar’s speech. “Certain words like conspiracies and others may sound a little jarring, but that is his way of saying it. A politician does not come on television to speak on cookery, he is there to make a political statement. This [Prasar Bharati’s decision] conveys a mistake in [the] reading of its powers, with not a single contrary voice available within the organisation to speak out against it,” he said. By not airing or telecasting Manik Sarkar’s prerecorded speech, Prasar Bharati stirred up a controversy. Had the speech been telecast, it may have passed largely unnoticed outside Tripura, but by censoring it, Prasar Bharati has ensured that it has become one of the most talked about speeches in the country today.

Communalism

Conjuring an icon

ZIYA US SALAM politics

CLOSE on the heels of the introduction of V.D. Savarkar as a national freedom fighter in history books, Deen Dayal Upadhyaya is now being exalted to the status of a national icon by the Bharatiya Janata Party (BJP) governments at the Centre and in the States, primarily Uttar Pradesh.

In August, the Centre cleared the Yogi Adityanath government’s proposal to rename the age-old Mughal Sarai railway station after him as part of the Bharatiya Jana Sangh leader’s centenary celebrations. The Yogi Adityanath government had already renamed Agra airport after Upadhyaya in April. The renaming of the railway station and the airport seeks to erase the Mughal legacy and install a Rashtriya Swayamsewak Sangh (RSS) ideologue in the minds of the people.

The State government is determined to make Upadhyaya the talk of every nook and corner of the State. Plans are afoot to rename one nagar panchayat in every district after him. All districts will be covered over the next five years. Deen Dayal Upadhyaya, who died a mysterious death in 1968, and his philosophy of dharma, inclusion and exclusion, are set to be established in the public consciousness.

The Uttar Pradesh government also plans to organise a mega programme in Mathura to coincide with his birth anniversary in September this year and develop his birthplace, Nagla Chandrabhan village in western Uttar Pradesh, as a tourist destination. Besides, school and college students are expected to participate in competitions centring around his life and times. BJP president Amit Shah released a booklet for around 9,000 schools whose students will take part in them. The book is also meant to apprise youngsters of the life and philosophy of Upadhyaya.

Earlier, BJP-ruled States such as Assam, Madhya Pradesh, Jharkhand, Chhattisgarh, Haryana and Rajasthan procured in bulk copies of the 15-volume collection of the works of Upadhyaya released late last year. The fascination for Upadhyaya was not limited to books. In the last session of Parliament, Hukumdev Narayan Yadav, a BJP MP, quoted Upadhyaya as saying that “Muslims of this nation should know that their ancestors were Hindus”.

Meanwhile, in Assam, the State government intends to set up 12 model colleges under his name; five of them, in Goalpara, Darrang, Biswanath, Karimganj and Bongaigaon, will become operational in September. The move has failed to impress the Assamese people, who believe a local hero would have been a better rallying point in a State which has had no association with the Hindutva icon. They argue that the local people would have had no problem had the government chosen a more recognisable name like Subhas Chandra Bose or Rabindranath Tagore for the new colleges. Upadhyaya is largely unknown in these circles, and those who do know his work regard him only as an RSS ideologue.

Asom Gana Parishad (AGP) president Atul Bora called for a review of the decision, pitching in for colleges to be named after the State’s well-known writers and cultural personalities.

Prof. P.K. Datta of the Department of Social Sciences, Delhi University, said: “The reactions are really to the cultural expansion of the Sangh Parivar, a crucial element of which is the renaming of places.”

These moves mark a major revival for Upadhyaya, who had been forgotten for many years. Datta said: “The Sangh Parivar is setting out to put in place a rival and comprehensive iconography of the nation to that of the nationalist movement.” Hence the attempt to pass off Upadhyaya as someone in the league of Mahatma Gandhi. Although a contemporary of former Prime Minister Atal Bihari Vajpayee, Upadhyaya faded from public memory partly because he did not live as long: he died in 1968 in a train accident at Mughal Sarai railway station.

All this was sought to be changed with a single stroke when Prime Minister Narendra Modi mentioned him and Mahatma Gandhi in the same sentence at a public address in Kerala. This seemingly gentle, even innocuous, comparison was a breakthrough moment.

The BJP, desperate for a national icon to call its own, elevated Upadhyaya in the public imagination as a philosopher, activist, economist and spiritual guru to mark the beginning of the year-long centenary celebrations. (He was born on September 25, 1916, in Nagla Chandrabhan village, Mathura.)

Modi’s mention of Upadhyaya led to many reading up on the theoretician of the Jana Sangh and discovering that he also talked of political enfeeblement of Muslims as a necessary route to their gradual assimilation into the fold of Bharat Mata. He was one of the early practitioners of the deeply divisive philosophy of “us” and “them” and never quite accepted the Constitution; he was also ready to tolerate the minorities only if they adopted the Hindu way of life, distinguished only by a private mode of worship, if at all. Incidentally, so distrustful of Muslims was Upadhyaya that he proposed a 10-mile corridor on the India-Pakistan border where the community was not to be allowed to settle. He propounded a philosophy of “integral humanism”, but how much of a humanist could he have been given his divisive politics?

The BJP, which did not field a single Muslim candidate in the Uttar Pradesh elections earlier this year, is quietly but consistently following his ideology. Modi’s advice to the BJP National Council that Muslims should not be treated as a different people is a telling example. “Do not treat them as vote banks. Do not regard them to be an object of hate. Do not shun them. Do not reward them but purify them, consider them one of your own,” he said. His words were straight out of the Upadhyaya book.

“He had his own vision of humanism, which was that of a tightly integrated society in which the individual would simply be a part of the social and cultural totality of the nation. This is a humanism without difference and dissent,” Datta said.

Upadhyaya stood for the assimilation of Christians and Muslims into the national mainstream if they gave up their distinct characteristics and admitted to their Hindu ancestry. Back in 1965, he said: “No sensible man will say that six crores of Muslims should be eradicated or thrown out of India, but then they will have to identify themselves completely with Indian life.”

For him, the word Indian was interchangeable with Hindu. The minorities were to be tolerated if they gave up their way of life and agreed to live under the umbrella of Hinduism. “There exists only one culture here. There can be no separate cultures here for Muslims and Christians. Culture is not related to mode of worship or sect. It is related to the country. Kabir, Jayasi and Raskhan should serve as models for Muslims,” he said.

What does the revival of interest in Upadhyaya mean for Muslims? “Nothing very new to what had already been signalled by the iconisation of Golwalkar and Savarkar,” Datta said.

Modi asked his party to make “extra efforts to take everyone along, especially the poor and the downtrodden”. Quoting Upadhyaya, he said: “Deendayal ji used to say that if equality has to be achieved, people at the higher level have to bend down and support those who have been exploited and neglected.”

Upadhyaya was also someone who wanted the Constitution to be subordinated to dharma. “Deen Dayal Upadhyaya is associated with giving more importance to dharma than even the Constitution and this was the essence of his integral humanism. He was against the constitution of the federal state system. The propagation of Upadhyaya can signal a new offensive to bring the idea of a new Constitution on the agenda,” Datta said. The rehabilitation of Hindutva heroes could yet extract a greater price.

Public health

Tale of neglect

THE death of almost 60 children, including infants, in the government-run Baba Raghav Das Medical College Hospital in Gorakhpur within a span of 48 hours raises several issues relating to the state of public health in the country, especially because the National Health Policy 2017 envisages increasing spending on health only to 2.5 per cent of the gross domestic product (GDP) by 2020 and leaves it to the private sector to fill critical gaps. Only an increase in expenditure on health and a robust and accountable public health care system can be trusted to fill critical gaps. The fact that a huge number of infant and child deaths take place even now—and not all are attributable to encephalitis—should be a matter of grave concern to both the Central and State governments.

The alleged cause of the deaths of the children on August 10 and 11 was asphyxia because of the unavailability of sufficient oxygen. The term “alleged” is being used as the cause is the subject of inquiry at several levels even as a political slugfest is under way to determine who was responsible for this tragedy. Independent sources in Gorakhpur told Frontline that the deaths could be a result of various types of enteroviruses causing Acute Encephalitic Syndrome (AES) in the children.

Successive Central and State governments are culpable to a certain extent; but the current State government, headed by Yogi Adityanath of the Bharatiya Janata Party (BJP), cannot escape responsibility for the deaths. So far, it has indulged in a futile blame game and tried to pin responsibility on the hospital administration. On August 22, a committee headed by the Chief Secretary submitted its report to the Chief Minister. The report, a copy of which is available with Frontline, has short-, medium- and long-term recommendations. It has asked for a criminal investigation against Rajiv Mishra, Principal, BRD Medical College Hospital; Dr Satish, head of the department of anaesthesia and child health and in charge of the oxygen supply; Dr Kafeel Khan, in charge of the 100-bed Acute Encephalitic Syndrome ward; and Messrs Pushpa Sales Private Limited, the oxygen supplier. It has also recommended an inquiry into the “concealment of facts” by Dr Kafeel Khan, accusing him of going against the rules of the Indian Medical Council. Apart from this, it has recommended an inquiry under the Prevention of Corruption Act against the Principal, his wife Purnima Shukla, and two others. A special audit by the Comptroller and Auditor General (CAG) of the medicines bought over the last three years has also been recommended. The Chief Minister has accepted the recommendations and ordered the departments concerned to proceed speedily against them, adding that that no one will be spared. The report has recommended creating medical and paramedical posts to fill the shortages in all government medical college hospitals and making budgetary provisions for the same. It does not mention the cause of deaths anywhere.

Acting on an inquiry, the government removed Anita Bhatnagar Jain, Additional Chief Secretary (Medical Health), from her post and suspended the principal of the medical college. Anita Bhatnagar Jain was held responsible for the delay in the payment of dues to the oxygen vendor. Separately, responding to petitions demanding a high-level probe, a bench of the Allahabad High Court directed the government to place before it the committee’s report.

A three-member team of the Indian Medical Association (IMA) comprising Dr K.P. Kushwaha, former principal of the medical college and head of the paediatrics department; Dr Ashok Aggarwal, national vice president of the IMA, and Dr B.B. Gupta, president of the Gorakhpur branch of the IMA, conducted an inquiry into the deaths. While it did not find the administrative head and the paediatric physician in charge of the ward guilty of clinical negligence, it did observe that the supplier of liquid oxygen had not been paid his dues for over six months.

The inquiry committee also found that the hospital was overcrowded and that there was a shortage of paramedical and other medical staff such as nurses and doctors, especially paediatricians. The IMA-appointed committee did not recommend any drastic action against the doctors and the administrative staff but proposed an administrative inquiry. It did attempt to seek out the views of the doctor on duty, the administrative head, and the college principal, but they did not appear before it.

Various inquiries have apportioned blame and responsibility in different ways. A team of doctors sent by the Central government found that unavailability of oxygen was not the reason for the deaths even though there was overwhelming evidence of requisitions made to the Department of Health for release of funds, which were sent after considerable delay. The Chief Minister, too, declared on Twitter that oxygen supply was not the main reason. “To expect the vendor to hang around for six months is a little unfair. The payments were undoubtedly held up,” said a doctor involved in one of the probes. The Chief Secretary and others have demanded that those responsible, including Ministers and heads of departments who ignored the requisition to release money to pay the oxygen supplier, be sacked.

It is also being argued that there is nothing unusual about the high number of deaths in a region and a hospital that catered to several districts in Bihar and had patients coming in from Nepal as well. Doctors Frontline spoke to in Gorakhpur said that children who had good immunity and were better nourished had a higher chance of survival. In 2012, the mortality rate in the region dipped to 15 per cent from around 35-40 per cent earlier. That same year, children were administered immunoglobulins, resulting in many lives being saved. These medicines, doctors told Frontline, were expensive, costing Rs.1 lakh per patient, but the then government, because of the persistence of the hospital administration, managed to provide the medicine to the children.

An analysis of the Uttar Pradesh government’s Budget shows that there has been a significant hike in the medical and health budgets from 2015-16 onwards. The “actuals” for 2015-16, when the State had a Samajwadi Party government, was Rs.12,104 crore and it saw a significant leap to Rs.17,828 crore (Budget Estimates, or BE) in 2016-17. The Revised Estimates, or RE, was Rs.15,834 crore. However, after the new government assumed office, it allocated Rs.17,181 crore, which was an increase of 9 per cent over the RE for 2016-17, but, compared with the BE for 2016-17, the amount sanctioned was Rs.647 crore less. In comparison, the percentage change (BE 2017-18 over RE 2016-17) for education (34 per cent), agriculture (813 per cent), public works (54 per cent), urban development (65 per cent), and rural development (37 per cent) showed increases. The health budget promised to introduce 712 more emergency ambulances.

Dismal picture

Data from the fourth National Family Health Survey (NFHS, 2015-16) on Gorakhpur show that only 17.7 per cent of the children received a health check-up within two days of birth from a doctor, nurse or midwife. A high percentage of births were in public facilities, indicating perhaps the dependence on public health centres.

Only 65.4 per cent of the children in the 12-23 months age group were found fully immunised against tuberculosis, measles, polio, diphtheria, whooping cough and tetanus. Only 3.8 per cent of the children in the 6-23 months age group were found having an adequate diet; 42.1 per cent under five years were stunted, 19.9 per cent were wasted and 35.2 per cent were underweight. Almost 60 per cent of the children in the age group 6-59 months were anaemic. Similarly, 45.6 per cent of the pregnant women in the 15-49 age group were anaemic and fewer than 15 per cent of the women had undergone any examination of the cervix, breast or the oral cavity. Vaccination for Japanese encephalitis (JE) was 29 per cent in the 1-15 age group. And 70.3 per cent of the children who were taken to a health facility reported fever or symptoms of acute respiratory infection.

It has been ascertained from reliable sources that of the 60 deaths, fewer than 12 were because of JE, nearly a dozen because of scrub typhus (a zoonotic disease that was identified as a source of child mortality in 2013), and the rest because of various enteroviruses. Scrub typhus is known to cause encephalitis (inflammation of the brain) as well. So it was not only JE that was responsible for the deaths in the BRD Medical College Hospital. But rather than establishing diagnostic practices within the hospital, the research units within the medical college were closed down. Work slowed down at six Indian Council for Medical Research (ICMR) projects on scrub typhus and at the National Institute of Virology unit. There was no explanation though a fund crunch was hinted at.

The low-lying plains of Gorakhpur, which nestle between the Sarayu and the Ganga rivers, are host to a range of communicable and water-borne diseases. Agriculture is the sole occupation here as in the rest of eastern Uttar Pradesh, though frequent floods disrupt agricultural work. With high levels of groundwater contamination, the region has a high rate of gastrointestinal infections too. The situation has been more or less the same since 1978 when the first outbreak of JE occurred. Until 2004, no efforts were undertaken to check the spread of the main vector, pigs and mosquitoes. The only JE vaccine-producing centre in the public sector at Kasauli in Himachal Pradesh was shut down in 1998 and imports began. While the reported cases were in lakhs, the supplies were totally inadequate, said a doctor from Gorakhpur.

Meanwhile, an outbreak of JE in Andhra Pradesh between 2002 and 2004 saw the government there swing into action, intervening at multiple levels including providing vaccine. Gorakhpur was ignored. JE cases in Assam and parts of Bihar came down owing to the supply of imported vaccines. In 2006, children and adults were vaccinated in Gorakhpur as well. In 2007, the United Nations Children’s Fund (UNICEF) reported that only 56 per cent of the children were immunised against JE. There were other enteroviruses active too. Fevers were getting more prolonged, resulting in acute flaccid paralysis. Vaccines could not be the only solution.

What is clear in this instance is that there was a shortage of oxygen for those children, including neonates, who may or may not have had JE but were brought to the hospital in a serious condition. It is widely recognised that the primary health centre (PHC) is the first point of prevention and treatment, and it has been ignored by successive governments.

State of PHCs

The continuing low budgetary allocation for health by the Centre is an indication that a major shift in thinking has not happened. It has been reported that only 30 per cent of the doctors report for duty at the PHCs in Gorakhpur. There are no patient admissions; only out-patient departments function. There is a shortage of medicines as well. Cleanliness and overall facilities provided in the PHCs are an issue. At the community health centres (CHCs), doctors are present but do not admit encephalitis cases. They are all referred to the BRD Medical College Hospital. The IMA report points out that the hospital caters not only to Gorakhpur district but is the only source of tertiary health care for as many as 16 districts. It is terribly overburdened, taking in five times the sanctioned capacity of patients. Nearly 128 doctors and paramedical staff are “outsourced” while 160 are on contract. In such a scenario, a disaster was waiting to happen.

There are, therefore, several reasons for the death of so many children. It could have been prevented had the investments been made in the desired areas. Having been the constituency of the current Chief Minister for several decades, the situation in the hospital could have been addressed earlier. The way out lies in strengthening the public health system by stepping up investment in health, both by the State and by the Centre, and making the PHCs and the CHCs workable. The “health and wellness centres” planned by the Central government cannot wait until another such tragedy strikes. To expect the private sector to fill the gaps would not only be unrealistic but pave the way for greater disasters ahead.

Venezuela

Trump’s new target

JOHN CHERIAN world-affairs

President Donald Trump has now turned his attention to Venezuela after threatening North Korea with “fire and fury”. Speaking to reporters in the second week of August, flanked by his Secretary of State, Rex Tillerson, and the United States’ Ambassador to the United Nations, Nikki Haley, Trump bombastically stated that a military option against Venezuela was very much open. “We are all over the world and we have troops all over the world in places that are very, very far away. Venezuela is not very far away, and the people are suffering and dying. We have many options for Venezuela, including a possible military option, if necessary,” he announced. Even the right-wing governments in Latin America, which have close military and political links with the U.S., were shocked by the statement. The threat of war against Venezuela was made at a press conference that was supposed to be devoted to the more serious crisis in the Korean peninsula.

Foreign Ministers of 12 countries in the continent opposed to the Venezuelan government had just met in Lima, the capital of Peru, and had issued a statement condemning the newly elected Constituent Assembly, terming it a “rupture with democracy”. The meeting was orchestrated by the U.S. State Department to show the world that Venezuela was being increasingly isolated in the continent. But the U.S.-sponsored charade about democracy being trampled in Venezuela was duly exposed after Trump made his chilling statement.

Until the 1980s, the U.S., which considers Latin America its backyard, used to intervene blatantly in the internal affairs of its neighbours, fomenting coups and changing regimes at will. The last full-fledged U.S. military invasion in the region was in Panama in 1989 when George H.W. Bush was President. Manuel Noriega, Panama’s President at the time, was arrested and spent the rest of his life in jail. He died earlier this year. Bush’s predecessor, Ronald Reagan, sent troops to the tiny Caribbean island republic of Grenada with a population of over 90,000 to effect regime change after a left-wing government assumed office there in 1983. The U.S. played an important role in organising the failed coup against Hugo Chavez in 2002. It was the Venezuelan people, taking to the streets, who foiled that attempt.

‘Act of madness’

The Venezuelan government was quick to denounce Trump’s statement as “an act of madness”. Trump’s belligerent response came immediately after Venezuelan President Nicolas Maduro expressed a desire for a “personal conversation” with Trump to explain to him the nuances of the complex political situation in Venezuela. “Mr President, I offer you my hand,” Maduro said in his diplomatic overture to Trump made during the opening of the newly elected Constituent Assembly. Maduro made the gesture despite the Trump administration characterising him as a “dictator” and imposing sanctions on the top leadership of Venezuela, including Maduro and his Vice President, Tareck El Aissami. The Trump administration went to the extent of describing the Vice President as a “drug lord”.

The Barack Obama administration played a part in hastening the deterioration of relations between the two countries. His administration had stated that Venezuela posed “an unusual and extraordinary threat” to U.S. interests, and sanctions were imposed on some individuals. The Trump administration has, of course, taken matters to another level altogether by specifically targeting Venezuela’s top leadership and its economic interests. The other heads of state on whom the U.S. has imposed sanctions are Bashar al-Assad (Syria) and Kim Jong-un (North Korea). Two other leaders the U.S. had imposed sanctions on—Saddam Hussein and Muammar Gaddafi—were executed after it carried out regime change in Iraq and Libya.

Trump’s latest threat came in the wake of the successful election of a new Constituent Assembly in Venezuela on July 30. Many governments in the region and the international community expressed the hope that the new Assembly would end the political impasse in the country. More than a hundred people have been killed in violence engineered by right-wing opposition parties this year.

The U.S. and its allies in the region had called the vote for a new Constituent Assembly illegal and had promised more punitive actions against the country if it went ahead with the vote. The right to call a National Constituent Assembly is supported by several articles in the Venezuelan Constitution. According to Venezuela’s election commission, more than eight million citizens (41 per cent of the electorate) cast their votes to elect 541 members of the Assembly, despite the best efforts of the opposition to disrupt the elections. The newly elected body is tasked with rewriting the Constitution of the country within two years. The violence had escalated in the run-up to the Constituent Assembly elections, with the opposition resorting to methods that could be described as “terrorist” in nature. The opposition had specifically targeted members of the security forces, and many of those killed in the last four months were security personnel. A candidate for the Constituent Assembly election was killed by members of the armed opposition. More than 10 people were killed as the country went to the polls on July 30. Supporters of the opposition have also died in the violence that engulfed the country. The Constituent Assembly has established a “Truth Commission” to bring those responsible for the violence to justice.

Coup attempt

A few rogue elements who once served in the Venezuelan armed forces tried to storm a strategically located military base in central Venezuela after the elections were held. It is no secret that U.S. intelligence agencies have been working overtime to infiltrate the Venezuelan armed forces in order to precipitate a military coup. The leader of the coup attempt was a captain of the Venezuelan National Guard who was cashiered on disciplinary grounds in 2014. Cuban President Raul Castro, in a message to the Venezuelan government, said the elections demonstrated the “popular support” in a “clear and emphatic” way for the legacy of the Latin American liberator, Simon Bolivar, and for the architect of the Bolivarian revolution, Hugo Chavez. He, however, asked Maduro to be prepared for “a strong struggle” against “international harassment and blockades”. Raul Castro assured Maduro that the Cuban people would be “in the front row of militant solidarity” with the Venezuelan people in their struggle.

The topmost priority of the new Assembly is to restore political calm and end the disruption and chaos precipitated by the opposition-controlled parliament. From day one, the opposition was only interested in toppling the democratically elected President. Leaders of the 11 Latin American countries that make up the Bolivarian Alliance, which met in Caracas, Venezuela’s capital, described the creation of the Constituent Assembly as a “sovereign act” aimed at helping the nation overcome its political problems and divisions. The U.S. and its allies in the region do not recognise the Constituent Assembly and maintain that Venezuela is under a “dictatorship”. This view is not shared by many countries, including the majority of Latin American and Caribbean countries. Russia and China have recognised the legality of the Assembly and the credibility of the recently held elections. Both countries have criticised the U.S.’ escalation of pressure on Venezuela. The Non-Aligned Movement, currently chaired by Venezuela, supports the government.

After the election of the Constituent Assembly, there are signs that the violence that erupted more than four months ago has started ebbing. The opposition could not muster too many people to protest against the opening of the Constituent Assembly. Only a few hundred people joined the protests. There are signs that the unity of the opposition parties is fraying. The right-wing parties that are closely tied to the U.S. have condemned the decision of the other opposition parties to participate in the provincial elections scheduled to be held in October. They have called for a total boycott of the elections.

According to many observers of the region, Trump’s talk of military intervention was made to bolster the sagging morale of the die-hard sections of the opposition, which have refused to sit down for a dialogue with the government to end the political crisis. A survey by a reputed polling firm in Venezuela showed that less than 10 per cent of the populace support foreign military intervention in their country. Mike Pompeo, Director of the Central Intelligence Agency (CIA), said in a television interview that Venezuela posed a threat to the national security of the U.S. “The Cubans are there, the Russians are there, the Iranians, Hizbollah is there,” Pompeo said. Venezuela has good relations with the three countries the CIA Director mentioned. It is not known why he added Hizbollah, the Lebanese political party, to the mix. Pompeo said that Trump’s remarks on Venezuela were meant to give the people there “hope and opportunity to create a situation in which democracy can be restored”.

Venezuelan Defence Minister Vladimir Padrino Lopez described Trump’s threats “as an act of craziness and of supreme extremism”. He said there was “an extremist elite governing the United States”. The President of Bolivia, Evo Morales, said the world now knew “that those who were against Maduro were only looking for a military intervention from the empire”. Vincente Fox, the former right-wing President of Mexico and no friend of Maduro, said that Trump’s “mouth is quicker that his mind”. He warned Trump not to wreck the world the way “you’re wrecking the U.S.”.

The South American trade grouping Mercosur, which comprises Argentina, Brazil, Paraguay and Uruguay, criticised the American threat to militarily intervene in the internal affairs of another Latin American country. Venezuela remains temporarily suspended from the organisation because of an alleged failure to uphold democratic norms. All the Mercosur states, barring Uruguay, are under right-wing governments. Despite this, Mercosur said the “only acceptable means of promoting democracy are dialogue and diplomacy”.

Colombia, the U.S.’ staunchest ally in Latin America and which shares a long land border with Venezuela, also criticised Trump’s statement. The country’s Foreign Ministry said it condemned “military measures and the use of force” and that all efforts to resolve the political problems in Venezuela should be peaceful and respectful of its sovereignty. Colombian President Juan Manuel Santos, who was hosting visiting U.S. Vice President Mike Pence in the third week of August, was even more forthright. “The possibility of military intervention should not even be considered,” he said. “America is a continent of peace.” Pence assured Santos that the U.S. was looking for a “peaceable” solution to the crisis in Venezuela, only to backtrack later while addressing anti-government Venezuelans in Colombia. He told them that the U.S. would not stand aside and watch Venezuela “collapse into a dictatorship”.

The alt-right ideologue Steve Bannon, who recently quit as Trump’s Chief Strategist, said in an interview that the military hawks in Washington were trying to influence Trump to opt for a military intervention in Venezuela. Bannon said the U.S. military was aware that it could not go to war against North Korea. They think Venezuela would be a soft target. The U.S. has for long coveted Venezuela’s vast hydrocarbon and mineral resources. After the threat by Trump, Maduro called for military exercises in the last week of August. He said millions of civilians would also participate along side the military.

A leader who failed to lead

politics

THE problem with hindsight is that it gives a brutally honest perspective for those who want to see it. Sometimes it is aided by events that have no relation to the one that is being reflected upon and scrutinised.

The Kannada pride agitations in Karnataka since May—first over Hindi name boards in Metro stations, the unfurling of a Karnataka flag, the Lingayat conclave, and the making of Kannada compulsory in schools—and the decent response it received in many parts of the State are perhaps an indication of what could have been in Tamil Nadu. Karnataka Chief Minister Siddaramaiah has not lost any opportunity to convey the message that he stood for Karnataka, Kannada pride and culture.

Tamil Nadu’s moment came in January with the jallikattu agitation. All it needed was a leader willing to come forward boldly, and stake it all, even as the entire State had come to a standstill, and was fighting for “Tamil pride”. O. Panneerselvam, who was the Chief Minister at that time, and a person who was perceived by people to have a clean image, was found wanting and ended up taking the “safer” alternative: agreeing to a policing solution to an essential problem of identity and aspirations.

Looking back, many things acquire newer perspectives: A year suddenly feels like a very long time in Tamil Nadu politics. Three Chief Ministers were sworn in under a year, and the State nearly had a fourth one, too. One Chief Minister died in office, another was ousted because he was getting too popular, a third Chief Minister-elect did not find favour with the Governor and was not sworn in, and the fourth is now in office. Through these tumultuous events, Tamil Nadu shared a Governor with Maharashtra, and the National Democratic Alliance in New Delhi has not thought it fit to have a full-time Governor to handle the increasingly complex problems confronting Tamil Nadu.

After the Jayalalithaa-led All India Anna Dravida Munnetra Kazhagam was voted to power in May 2016 for a historic second consecutive term (a feat attained by M.G. Ramachandran in 1984), amidst allegations of widespread bribing of voters, it seemed like business as usual: Jayalalithaa’s first few signatures were populist and intended to cater to the core AIADMK base.

Riding on the slogan makkalal naan, makkal u kkagavey naan (by the people, for the people), Jayalalithaa’s AIADMK managed to secure a mere 0.1 per cent of the votes more than the Dravida Munnetra Kazhagam (DMK) but won 134 of the 232 seats.

By the end of 2016, two political stalwarts, Jayalalithaa and M. Karunanidhi, both of whom had redefined the Indian polity in their own inimitable styles and held centre stage in Tamil Nadu politics, were suddenly not around. The DMK tried to get its act together with the appointment of a “working president”, M.K. Stalin, after making suitable amendments to the party’s constitution.

The AIADMK initially put up a brave front. A few hours after Jayalalithaa’s death was announced on the night of December 5, Panneerselvam, who was the party’s treasurer, was sworn in as Chief Minister with an unchanged team of Ministers. He was commended for his work on many fronts: after the Chennai cyclone he was able to bring life back to normal in the city in quick time, and he showed remarkable ability in negotiating and getting water for Tamil Nadu from Andhra Pradesh.

Just when it seemed that Tamil Nadu had a stable government, AIADMK general secretary V.K. Sasikala’s badly felt need to cut Panneerselvam to size and project herself as the heir to Jayalalithaa pushed the State into uncertainty again. On the morning of February 5, even as Panneerselvam was examining the Ennore oil spill, he was asked to reach the AIADMK party headquarters on Lloyds Road. He resigned and was among those who proposed Sasikala’s name for the Chief Minister’s post. Two days later, on February 7, Panneerselvam reached the Jayalalithaa memorial at 9 p.m., for prime-time television enlightenment, which ended about 40 minutes later with him denouncing Sasikala.

Several opinion polls subsequently showed that he was the most popular politician in the State. Panneerselvam’s inability to rise above and lead and take charge as the State was looking for a leader to fill Jayalalithaa’s void cost him his place in history. The instability that the State has been witnessing since Jayalalithaa’s death shows no signs of abating. This appears to be the new norm in Tamil Nadu. And, Panneerselvam, perhaps the only person who could have averted that fate, ended up contributing to it.

R.K. Radhakrishnan

Corporate Affairs

The helmsman returns

V. SRIDHAR the-nation

THE third week of August was tumultuous at Infosys, the Indian software services industry bellwether. On August 18, chief executive officer (CEO) and managing director Vishal Sikka, the first “outsider” (non-founder) to head the company (he has been at the helm since 2014), announced his resignation. The company’s board appeared to sympathise with him and blamed the founder, N.R. Narayana Murthy, for his departure.

Narayana Murthy, widely regarded as a pioneer within and outside the industry, fought back. On August 24, the board was virtually dismantled: Nandan Nilekani, a co-founder who is more widely known as the architect of the Aadhaar project, returned to take over as non-executive chairman. Nilekani’s return meant the ouster of chairman R. Seshasayee, Sikka and two other directors. These departures have provided Nilekani with a free hand to reconstitute the board and give the company a new direction.

The happenings at Infosys had a far-reaching impact. Although Sikka’s statement of August 18 did not specifically name Narayana Murthy, his allegation that the “constant drumbeat of distractions” had pushed him into a corner had the hallmark of a tirade against the company’s founder. In a move rarely seen in the corporate world, the board also mounted a frontal assault on the company’s founder. In a statement issued the same day, the board blamed Narayana Murthy’s “continuous assault” on Sikka for his resignation. It reiterated its “strong support” for Sikka, despite Narayana Murthy’s “misguided campaign” against the leadership. Sikka was made executive vice chairman, even as chief operating officer (COO) U.B. Pravin Rao was named interim managing director and CEO.

Unanswered questions

The media’s heightened focus on the corporate drama was also marked by an inability to separate issues of corporate probity from corporate performance and leadership. There is a grain of truth in the board’s allegation that there was a “continuous” stream of allegations made by Narayana Murthy, but the fact remains that these go back to at least 2015 when Infosys acquired Panaya, an Israeli start-up specialising in automation technology.

Two separate whistle-blowers said in February 2017 that the deal was shady, alleging that the $200 million paid was far higher than warranted and was suggestive of payoffs to individuals. But the allegations went beyond the Panaya acquisition. The terms on which the company’s then chief financial officer (CFO) Rajiv Bansal left Infosys in October 2015 (he remained as an adviser until December 2015) raised questions about whether the board had exercised enough caution, prudence and due diligence.

In particular, the size of Bansal’s severance package, totalling Rs.17 crore, was seen to be excessive by Infosys’ standards. Moreover, the details of the severance package were disclosed only in May 2016. Narayana Murthy engaged with the board on this matter too and the severance package was finally capped at Rs.5 crore. Bansal has invoked the arbitration clause in his contract to force Infosys to part with the rest of the package.

The circumstances of the resignation of Infosys’ general counsel was also a matter on which Narayana Murthy trained his guns on the board.

All three elements of the allegations—the nature of the acquisition, the terms and circumstances of Bansal’s exit and the general counsel’s departure—brought the entire Panaya deal under a cloud. Narayana Murthy’s repeated demand for greater clarity was not without substance.

Although the company spent a considerable amount of time and money on investigating the complaint before finally giving a clean chit to the deal, the full report was never made available either to the board or to the shareholders. This has been a major demand repeatedly made by Narayana Murthy. In fact, Ravi Venkatesan, who was co-chairman until August 24, reiterated the board’s decision not to release the full report of three separate investigations, including one by an American legal firm, after Sikka’s resignation.

The two-page summary report of Infosys’ Audit Committee that the board released on June 19 gave a clean chit to Sikka, but the report itself is sketchy. Narayana Murthy wrote to the board saying that he was not satisfied that a thorough probe had been conducted into the allegations of impropriety and wrongdoing. Specifically, on July 8, Narayana Murthy asked the board if the company could categorically state that no Infosys employee or relative of an employee had benefited from the Panaya acquisition.

Moreover, the perception that Infosys was holding back relevant information began to gather momentum and could have been the reason why Narayana Murthy’s actions in seeking information from the board found wider appeal.

In fact, Narayana Murthy, in an email to his “advisors” dated August 9, which was leaked to the media, said: “I have nothing against Dr Vishal Sikka.” He said that his sole focus had been on governance issues at Infosys, adding that he had “never commented about his [Sikka’s] strategy or its execution” and that “the fault lies with the current board”.

He said: “If the board had not embraced inaction and had ensured proper governance, [it] could have created checks and balances required in any well-run company. That, alas, does not exist today.”

Walking away not an option

Those who saw in Narayana Murthy’s persistence evidence of a patriarch who refused to cede control over the company, including Omkar Goswami, a former director, were not being charitable. But those who defended Narayana Murthy said that “walking away” was not an option for someone who had founded the company. Walking away after handing over the company to a younger and competent leader is one thing, but running away from a company that is out of tune with its core legacy is quite another, they argued.

In the first two trading days after Sikka’s resignation, the Infosys share nosedived, shedding nearly 15 per cent in value. The company’s decision to offer a buyback, pending since the January 2017 “in principle” decision—another matter of criticism owing to the board’s tardy performance—implies that the buyback would draw down Rs.13,000 crore from its cash reserves. The board’s approval, a day after Sikka’s resignation, was an obvious move to assuage the markets.

The bonhomie that characterised Sikka’s entry in 2014 had been ebbing for some time. Sikka, a former top executive at SAP, the global specialist in enterprise solutions, was brought in to provide a renewed technology focus at a time when Infosys and the industry were entering a new phase of their evolution—from a labour arbitrage-based offshoring model to one that relied on greater automation.

It was believed that Sikka’s aggressive push in this direction would set it on a new path (“Rebooting Infosys”, Frontline, July 11, 2014). Clearly, recent events have proved that while embracing change may be beneficial in many respects, discarding cardinal values in order to chase growth may prove futile in the long run, especially for a company with Infosys’ track record.

The board was clearly unable to rein in its CEO, demand accountability or take strong measures by acting as a cohesive entity. What really tilted the balance in favour of Narayana Murthy was the widespread appreciation of his role as founder and his own track record of nurturing a company that stood for probity. The issue became so important that a political angle soon emerged from the shadows. Soon after Sikka resigned, on August 23, Ravi Venkatesan met Union Finance Minister Arun Jaitley, triggering speculation about what transpired. Why would the country’s Finance Minister want to meet the leader of a private corporate entity, especially when it was going through a crisis? The question was partly answered when the Securities and Exchange Board of India, the stock market regulator, said that it would undertake a fresh probe into the circumstances. This was obviously an attempt to put pressure on the board to clean up its act. It was obvious that the political leadership did not wish to see Infosys slide further, especially as it is preoccupied with the fallout of large-scale job losses in the information technology (IT) industry. The pressure to fall in line was not purely political; the fact that the publicly owned Life Insurance Corporation (LIC) controls the single biggest bloc of shares held by an Indian entity—not even the promoters individually own more than the insurer—meant that the government had other levers to operate to make those heading the board fall in line. Speaking to newspersons on August 25, Nilekani said he would get the “full briefing of the investigations” into the whistle-blower allegations and would “take appropriate action”. Significantly, the terms of Sikka’s separation stipulate a “non-disparagement obligation”. It is not clear whether the clause would prevent the reports from being revealed.

The board said it “was not its intention to cause Mr. Murthy or any other affected person any personal distress or anguish while stating its point of view”. This appeared to be a virtual apology, although observers were left wondering how the same actors could so dramatically revise their positions on Narayana Murthy within seven days. These developments indicate that a full-scale revamp of the board is on the cards. Nilekani also said one of his top priorities was to get a new CEO.

Nilekani’s entry marks a new era at Infosys. This could be viewed either as the homecoming of the old guard or as a last-ditch effort to stabilise a company in troubled times.

Public health

A political burial

ON August 22, when the periodic meeting of the coordination committee of the Bharatiya Janata Party (BJP) and the Rashtriya Swayamsewak Sangh (RSS) was held in Lucknow, the dominant mood among the participants was of smug contentment. The participants—representatives of the Uttar Pradesh government, the BJP organisation, and the RSS—expressed satisfaction about having staved off a big administrative crisis without much of a political setback following the death of around 70 children at the Baba Raghav Das Medical College Hospital at Gorakhpur, which seemed to be acquiring the dimensions of a public relations disaster. Chief Minister Yogi Adityanath himself did not attend the meeting, but both Deputy Chief Ministers, Dinesh Sharma and Keshav Prasad Maurya, were present along with senior RSS leaders Dattatreya Hosabale and Krishna Gopal.

The manner in which the deaths occurred and the reasons for them exemplified the ineptitude and misplaced priorities of the five-month-old Yogi Adityanath government while exposing the callousness ingrained in a political system led by a so-called spiritual person. The government and the Chief Minister had failed to look at the issues faced by the BRD Medical College Hospital despite Yogi Adityanath himself visiting the institution a few days before the tragedy. This oversight was most acute and criminal in the non-payment of dues to the oxygen supplier, which in turn resulted in the shortage of oxygen leading to the deaths. However, nearly two weeks after the tragedy sent shock waves across the country, the crucial coordination committee meeting came to the conclusion that the political damage had been contained.

Damage control

The damage-control strategy employed was not officially listed at the meeting, but the participants as well as a large number of observers of the coordination exercises had a clear sense of what these were and how they worked out. Broadly, the government and the BJP party machinery manoeuvred at three levels. One: outright denial of any mismanagement of health services, including negligence in paying the oxygen supplier. Two: initiating administrative measures, including punitive action, against the hospital as an institution and against some officers in the Health Department. Three: unleashing a not-so-subtle communal propaganda, playing up the pro-Hindutva and anti-Muslim stereotypes of the Sangh Parivar.

The three-pronged strategy was advanced by Yogi Adityanath and members of his Council of Ministers, and then, as is the Sangh Parivar’s wont, effectively picked up and taken forward by the party’s organisational machinery. It persisted with the argument that the deaths were not due to shortage of oxygen supply but due to the chronic spread of encephalitis in the region, which had taken a large number of adolescent lives over the past many years. This was stated repeatedly by the Chief Minister and the ministerial spokesperson Siddharth Nath Singh. When Yogi Adityanath went to the hospital after the news of the tragedy came out, he claimed that the government had paid the hospital in time and that it was the hospital administration that did not make the payment to the oxygen supplier.

Having put the blame squarely on the hospital administration, the second line was advanced through punitive action against officers and BRD Medical College Principal Rajeev Mishra. While Mishra was suspended after the news of the tragedy came out, more measures were taken even as the August 22 RSS-BJP coordination committee meeting was in progress. These included the removal of Anita Bhatnagar, Additional Chief Secretary (Medical Education), and orders to lodge a first information report (FIR) against a number of persons, including Rajeev Mishra and Drs Kafeel Khan and Satish at the BRD Hospital. All these measures were reportedly taken after a four-member committee led by Chief Secretary Rajiv Kumar submitted a report of the probe into the deaths.

Kafeel Khan episode

Incidentally, Dr Kafeel Khan was hailed, even as the tragedy unfolded, by a number of residents of the region as well as the media and social media as somebody who sought to mitigate the suffering of the children by taking proactive steps to procure oxygen. He was the person in charge of the ward where the deaths took place. However, the department was not able to procure oxygen as it had not got the money from the higher authorities to pay the supplier. It was in this context that Dr Kafeel Khan made efforts on his own.

Yet, when Yogi Adityanath visited the BRD Hospital, he directed the authorities to take action against Khan too. He was removed as the person in charge of the department. This was on the grounds that the doctor was doing private practice at a nursing home run by his wife. It is on the same grounds that the recommendation to file an FIR against him has been issued by the government. (He was later reinstated in the department with ostensibly lesser powers.)

A moot question doing the rounds in the hospital administration and among the people of Gorakhpur was whether there was a formal complaint against Khan on the grounds cited for the investigation. Indeed, the department can take suo motu notice of “private practice violations”, but for that too there is considerable paperwork that happens within the department. There were doubts whether all these were finalised before the investigation against Khan was announced. According to a number of people closely involved in the functioning of the hospital as well as some social activist observers of Gorakhpur, the Yogi Adityanath government turned against Khan because the desperate efforts he made to get oxygen got noticed by the media.

Talking to Frontline, a senior health official associated with the hospital said the thinking in the government was that but for Khan’s efforts the shortage of oxygen would not have become a public story. “He brought attention to something that otherwise would have been easily brushed under the carpet. That seems to be the primary cause for the action against him,” said the official.

Communalisation

While questions about the appropriateness of the investigation against Khan and the actual reasons for it are yet to evoke concrete responses, the “Khan episode”, involving both his actions and the measures initiated against him, was used by the BJP and other Sangh Parivar outfits to divert attention from the governance failures in relation to the tragedy. As is the normal practice, communal propaganda formed the basis of these diversionary tactics. A clear sign of this could be seen in the Hindutva outfits’ murmuring campaigns that underscored the “possibility of a Muslim conspiracy” in highlighting the oxygen shortage. That Khan had been tweeting to former Chief Minister and Samajwadi Party (S.P.) president Akhilesh Yadav on various issues was also highlighted.

In the second week of August, other issues were also added to advance this communalisation project. Once again leading from the front, Yogi Adityanath called for massive Janmashtami celebrations, including in government institutions. Some police personnel responded by organising festivities in police stations. When the Chief Minister was asked about the propriety of this, he came up with the communal response that when he could not ask Muslims to stop offering namaz on roads during Eid, he had no right to stop the celebration of Janmashtami at police stations.

These blatant attempts at communalising the situation also evidently helped divert attention from the Gorakhpur tragedy as well as its fallout.

As Manoj Kumar Singh, Editor of the Hindi online portal Gorakhpur Newsline, told Frontline, in the social climate created by these controversies, follow-up coverage on the serial deaths became more and more sparse. “Child deaths were continuing even into the second and third weeks of August for several reasons, including deficiencies in the medical infrastructure, but the attention of both the media and the public was increasingly captured by other developments. The flood situation created by the massive rains in Basti, Gorakhpur and nearby areas in the third week of August also added to this distraction,” Singh told Frontline.

Apparently, the floods had become a point of “delighted reference” among participants in the RSS-BJP coordination meeting. For the record, the meet expressed concern over the tragedy in the hospital. But the larger agenda was indeed on furthering the communalisation project. A pointer to this was the fact that one of the key issues addressed at the meeting was the re-initiation and strengthening of efforts to build the Ram temple in Ayodhya. Incidentally, earlier coordination committee meetings had addressed specific governance-related issues such as the industrial policy of the Yogi Adityanath government, especially at the level of small and medium enterprises. But this time, the Ayodhya temple plan came up more prominently than administrative issues.

Governance deficit

Several bureaucrats in Uttar Pradesh and a number of political observers are of the view that this shift in focus is in keeping with the governance trajectory of the Yogi Adityanath Ministry.

“The government has been consistently slipping in all areas of governance. It came to power promising better law and order, but Home Ministry records show that the State is going through one of the worst periods ever in this respect. The much-touted farmers’ loan waiver scheme has come a cropper, leaving most of the farmers unhappy about the very concept as well as the implementation of the programme. Gorakhpur has exposed the government’s indifference to and callousness in addressing health issues. Thus, it is but natural that the political leadership of the government would want to shift public attention and that too in a massive manner,” pointed out a senior bureaucrat.

In the words of Rajendra Choudhary, spokesperson of the S.P., the Yogi Adityanath government’s one-point solution to all problems is communalisation. He believes that this will not work for a long time because people will see through it. But, as the participants at the RSS-BJP coordination committee meeting noted, the tactic is working for the time being and working fairly well for their purpose.

Interview: Mariam Dhawale

‘Reform has to come from within’

WOMEN’S organisations have welcomed the judgment banning instant triple talaq. However, their contention is that reform in personal laws has to be a constant process from within the community, with a focus on gender justice. Mariam Dhawale, general secretary of the All India Democratic Women’s Association (AIDWA), says that the present government is not interested in gender-just laws but will, instead, use the minority judgment to promote its version of a uniform civil code. Excerpts from an interview:

What are your impressions of the “triple talaq” judgment?

The women’s movement, especially AIDWA, has been asking for a ban on instantaneous, arbitrary, oral triple talaq in one sitting, halala and polygamy for several decades now. We deal with such cases so we know the miserable condition of women who are victims of these practices. The practice of triple talaq in one sitting has been banned in many Islamic countries. It could be given on frivolous grounds such as food not being given on time or a woman not bringing certain things from her maternal home as demanded. People started giving talaq through SMS and postcards, Skype, WhatsApp and even over the phone.

The minority judgment of the Chief Justice of India, J.S. Khehar, calls upon the government to legislate on triple talaq and has asked all political parties to cooperate.

It is a minority opinion and a tricky situation too. Our stand is that reform has to come from within. There are secular laws and all women need to take recourse to them. Muslim women have welcomed the judgment, but the way it is being glorified, it appears as if this is liberation for all Muslim women.

The government is trying to take credit for this, claiming that the judgment is the result of its efforts.

On the one hand, we have Rashtriya Swayamsewak Sangh [RSS] leaders openly saying that working women are characterless or that women should stay at home. This judgment was definitely not the result of a struggle by the RSS. In Uttar Pradesh, women still do not have rights to agricultural land despite there being a Central law. The States are supposed to legislate, but it has not been the case in several States, including BJP-ruled Uttar Pradesh. The BJP-ruled Haryana government recently equated “pride in the veil” as a matter of Haryanvi identity. Today, women are challenging these identities and yet these ideas are promoted by some political parties and the governments led by them. Why doesn’t the government, which has a comfortable majority in Parliament, pass the Women’s Reservation Bill?

There are demands for a uniform civil code now.

There is a grave danger of the BJP misusing the suggestion given to it by the judgment to legislate on triple talaq to push for a uniform civil code. The underlying principle is equality, not uniformity. I fear that the minority judgment of the CJI will be used by the BJP to target the Muslim community.

Many secular organisations and Muslim groups too had been demanding abolition of arbitrary triple talaq. When the Shah Bano controversy was raging in the late 1980s and the Congress government overturned the court’s verdict for maintenance, the BJP was silent on the issue. This government has a communal agenda. It can use mutton, cow, love jehad, anything to attack the minorities. It has no right to claim any credit for the ban. The women’s movement and women’s organisations have been asking for changes in laws.

Soon after the verdict, a woman was divorced by her husband in Uttar Pradesh using the triple talaq mode. Will this be valid? It is the local mosque that takes the decision in such cases. Yet, women’s organisations have fought consistently for the rights of Muslim women. The Supreme Court judgment, in that sense, is the culmination of all those struggles. In fact, one should question the idea that Muslim women have been liberated. Talaq is not the only issue. The majority of Muslim women are poor. Does the government address the economic and social backwardness of the community?

Can law alone address these issues? There have been demands to dilute laws framed to protect women.

Laws need to be constantly strengthened. In spite of amendments to the laws dealing with rape as recommended by the Justice Verma Committee, violence against women, especially minors, has gone up. And amid all this, there is a demand to weaken laws protecting women. There is a petition in the Supreme Court that has demanded changes in the definition of rape.

Women's right to divorce

Not about gender equality

the-nation

AMID all the euphoria that greeted the triple talaq judgment invalidating instant triple talaq, a lot of noise has been made for the “poor, helpless, voiceless” Muslim women. The judgment has been hailed as a milestone in gender equality. Prime Minister Narendra Modi hailed it as “historic”. “It grants equality to Muslim women and is a powerful weapon for women empowerment,” he said. Bharatiya Janata Party (BJP) president Amit Shah said: “The judgment marks the beginning of a new era of pride and equality for Muslim women.”

However, observers say that Muslim women’s rights, including the right to annul a marriage, are well protected by the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1938, and the the scriptures. The seasoned legal expert Faizan Mustafa said: “No, there is nothing on gender justice in this judgment. They decided on arbitrariness, not discrimination.”

Women’s right to divorce

He added: “The media are biased. Yes, many forms of divorce are available to women, particularly khula [divorce initiated by the wife] is routinely used. As a matter of fact, in most Muslim divorces the initiative of divorce is taken by wives. In Chennai and Hyderabad, it was found that most restitution-of-conjugal-rights cases were filed by Muslim men to get back their wives.”

The provisions of the khula are safeguarded by the Quran, unlike instant triple talaq. Under these, a woman can obtain divorce from her husband without assigning any reason. Her right is all powerful. The husband cannot say no to khula. The qazi, who is supposed to help formalise it, cannot ask her to reconsider the decision or ask the possible reason for the action. He only has to tell the man to accept the inevitable. Interestingly, she does not necessarily have to return the mehr amount if already paid, or any gifts she might have got from her husband. She may, however, give away mehr if the husband insists.

Once the khula is pronounced, the woman is not supposed to live under the same roof as her husband. This is meant to protect her from physical assault by the divorced husband and is in contrast to the talaq provision where the couple must stay together between the pronouncements to give reconciliation a chance. But under khula, the woman’s word is final, unambiguous and unchallenged.

Khula and Indian law

Khula is recognised in Indian law. The Muslim Personal Law (Shariat) Application Act, 1937, specifically mentions it as a form of divorce at the initiative of the wife. Further, the State laws of Assam, West Bengal, Bihar, Odisha and Meghalaya provide for registration of khula. The High Court of Kerala in Shihabudheen vs Shybi held that the consent of the wife constitutes a valid khula: this ruling came close to blurring the line between khula and divorce through mutual consent, popularly known as mubarat.

However, khula is not the only way a woman can end a marriage. She has five other forms of divorce available to her, which makes nonsense of attempts to portray the Muslim woman as helpless, vulnerable and in need of support from right-wing politicians. The other forms include talaq-e-tafweez, under which the husband vests his wife with the right to divorce at the time of nikah itself. Among the conditions that can be put in it is stopping the husband from taking another spouse. In case things do not go well between the couple, the wife can end the marriage. In Saifudeen Sheikh vs Soneka Bibi, the Assam High Court cited an ante-nuptial contract embodied in the kabinnama that in case the husband brought any of his other wives to stay with the petitioner without her consent, she would be at liberty to exercise the right to divorce. Before that, in Moharam Ali vs Ayesha Khatun, the Calcutta High Court upheld this kind of agreement under which the wife was authorised to divorce her husband in case he married any other woman.

Then there is mubarat, which is held irrevocable by Shias and Sunnis. Mentioned in the Muslim Personal Law (Shariat) Application Act, 1937, it is an out-of-court divorce. Women also enjoy the right to judicial divorce, that is, fuskh, where a qazi can annul the marriage on the application of a wife.

Interestingly, for all the jubilation around the triple talaq judgment, talaq is faced by a minuscule percentage of Muslim women. The majority of women who do face triple talaq follow the Quranic prescription of attempting reconciliation through arbitration. The failure of these attempts leads to a single pronouncement followed by another a month later, and a final one after another month. According to statistics, fewer than 1 per cent women are divorced through arbitrary text messages, WhatsApp messages, phone calls, and so on. As stated by Mustafa, “The Muslim law protects the integrity of marriage and the character of the woman. If the husband indulges in slandering his wife, she is entitled to divorce. It is called lian and is a distinct form of divorce under the Shariat Act, 1937.”

Ziya Us Salam

Events

In defence of science

DIVYA TRIVEDI the-nation

THE Uttarakhand government has started a hunt, sponsored by the State Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH), for the mythical herb sanjeevani booti in the State’s forests. Indian Institute of Technology Delhi has become the nodal agency for researching the benefits of cow excreta. The Madhya Pradesh government recently stirred up a controversy by announcing that it will set up astro-OPDs where astrologers will be employed to diagnose patients in hospitals. “Our country has gone back several centuries,” said an educationist marching through the streets of Delhi holding a banner in defence of science. Along with other scientists, students, engineers and rationalists, he bemoaned the recent efforts to undermine scientific temper in the country.

The Bharatiya Janata Party (BJP) government’s diversion of resources from scientific pursuits to pseudoscientific preoccupations has forced the scientific community to come out on to the streets. Not usually known for carrying placards or organising processions, the Indian scientific community responded to the assault on science through the “India March for Science”. Institutions and individuals responded to the call given by the Breakthrough Science Society, an organisation of scientists which has its central office in Kolkata and chapters in most States. On August 9, close to 10,000 protesters marched through more than 30 towns and cities, including Chandigarh, New Delhi, Allahabad, Patna, Ranchi, Pune, Ahmedabad, Hyderabad, Gangtok, Agartala, Guwahati, Bhubaneswar, Mumbai, Kolkata, Chennai and Bengaluru. But prohibitory orders issued by some institutions and the fear of losing funding from the government kept many scientists and academics away from the march.

Still, such a large mobilisation of the scientific community was a rarity. Partly inspired by the global March for Science organised across 600 cities around the world on April 22, the India chapter took a while to organise itself. In the United States, the movement was born as a response to Donald Trump’s budget cuts and decision to pull out of the Paris Agreement on climate change. In India too, funds for research were being slashed. Financial support to the Indian Institutes of Technology (IITs), the National Institutes of Technology (NITs) and the Indian Institutes of Science Education and Research (IISERs) had been reduced over the past few years. The IITs and the NITs were asked to manage their expenditures from students’ fees. Research funding agencies such as the Council for Scientific and Industrial Research (CSIR), the Department of Biotechnology and the Department of Science and Technology were facing severe shortage of funds. The march was organised to demand that the government allocate at least 3 per cent of the gross domestic product (GDP) for science instead of the current 0.8 per cent.

Some protesters were there just to reclaim the idea of protest. “When I look at my country today, they are researching urine. The right to protest is also being taken away from us. I am here to reclaim that right,” said an educationist at Jantar Mantar in Delhi.

“If unscientific ideas and superstitions are vigorously promoted the way they are being done now, it will restrict the space for science in people’s minds. While science demands evidence, the kind of mentality being propagated today encourages people to believe without questioning. Science is not just a set of theories, it is a way of life which is seriously being undermined,” said Prof. Soumitro Banerjee, professor of physics at IISER Kolkata. He was referring to some recent government initiatives that had the footprint of the pseudoscientific fixations of the Sangh Parivar.

Unscientific Beliefs

Recently, IIT Kharagpur announced in a workshop that vastu shastra would be included in undergraduate and postgraduate programmes in architecture. Commenting on a journal published by the Ranbir and Chitra Gupta School of Infrastructure Design and Management, IIT Kharagpur, Prof. Amitabha Datta, president of Breakthrough Science Society, West Bengal Chapter, said that the journal “advised people to follow vastu practices in day-to-day life— like keeping idols of Hanuman and Ganesha in front of the house. An article titled ‘A to Z of Vastu Vidya’ by Prof. Joy Sen claims that these idols can protect us from ‘evil powers’!... This is not an isolated incident. We are now witnessing a concerted effort to infuse unscientific, mythical beliefs into the common peoples’ minds in the name of science. We appeal to science-loving people of the country and particularly the members of the IIT community to protest against the move and to stop the introduction of vastu in the syllabus.”

IIT Delhi, meanwhile, has emerged as the nodal centre for “cow science”. The institute initiated research on the cow’s excretions under the direct chairpersonship of Harsh Vardhan, Minister for Science, Technology and Earth Sciences. This R&D initiative will focus on the uniqueness of indigenous cows and the use of panchagavya in food and nutrition, agriculture, medicine and health. Panchagavya is a mixture of cow’s milk, curd, ghee, dung and urine. An official memorandum directing the constitution of a national steering committee called Scientific Validation and Research on Panchagavya (SVAROP) was sent out by the Science for Equity, Empowerment and Development (SEED) of the Department of Science and Technology on April 25. The committee will be co-chaired by Vijay Bhatkar, Chancellor, Nalanda University, and the national president of Vijnana Bharati, the science and technology front of the Rashtriya Swayamsewak Sangh (RSS).

The March for Science was a response to “science facing the danger of being eclipsed by a rising wave of unscientific beliefs and religious bigotry, and scientific research suffering serious setback due to dwindling governmental support”, said an organiser.

High Court judges extolling the cow’s virtues or the Education Minister of a State claiming that the cow is the only animal that breathed out oxygen, however problematic, do not have the backing or validation of a scientific institution. But when scientific institutions backed by the government push for obscurantist ideas, it threatens to crush the foundation on which the scientific temperament of future generations is to be built. Organisers of the march said there had never been a greater need for scientists to interact with society as now. “While we can justly be inspired by the great achievements in science and technology in ancient India, we see that non-scientific ideas lacking in evidence are being propagated as science by persons in high positions, fuelling a confrontational chauvinism in lieu of true patriotism that we cherish. Promoting a scientific bent of mind can certainly help improve the social health of our country where incidents of witch-hunting, honour-killing and mob lynching are reported regularly,” said one of the organisers.

The march in Pune saw participation by the anti-superstition organisation Maharashtra Andhashraddha Nirmoolan Samiti, and Narendra Dabholkar was remembered as the first martyr for science in India. Dabholkar, Govind Pansare and M.M. Kalburgi were all murdered between 2014 and 2015 for advocating a scientific way of thinking.

While there is a lot of rhetoric coming from the Centre for the promotion of science, it does not help when the Prime Minister himself claims, in a room full of doctors, that Ganesha’s elephant head was proof of the prevalence of cosmetic surgery in ancient India. Or that the myth of Karna being born outside his mother’s womb was testimony to the prevalence of genetic engineering. Rather than being isolated incidents, these fantasies of a glorious past are being mouthed by the highest bodies of decision-makers in India and the discipline of science itself is being remoulded to prove such theories. Meanwhile, scientists in government laboratories are being asked to generate a part of their salary by selling their inventions and from other sources. In Dehradun in June, a two-day chintan shivir (brainstorming session) was organised, influenced and attended by the RSS affiliate Vijnana Bharati.

Acting on one of the conclusions arrived at the session, the Ministry of Science and Technology directed all CSIR laboratories to raise their own funds and turn research projects into for-profit ventures over two years. As priorities moved towards economically beneficial and profitable science, and even as demands for a knowledge society increased, everything that was required to sustain a knowledge society had been undermined, said Prof. Dhruv Raina, a science historian and professor at Jawaharlal Nehru University, New Delhi.

Concrete demands

The March for Science made some concrete demands. First, to allocate at least 3 per cent of the GDP for scientific and technological research and 10 per cent for education. Second, to stop the propagation of unscientific, obscurantist ideas and religious intolerance, and encourage development of a scientific temper, human values and a spirit of inquiry in conformance with Article 51A of the Constitution. Third, to ensure that the education system imparts only ideas that are supported by scientific evidence. And last, to enact policies based on evidence-based science.

“What is being spread are essentially various mythologies presented as science, and the exercise of science and scientific research seems to be to explore the correctness of these mythologies. All kinds of budgets are being created for this, including budgets for yoga and vastu shastra. It is being propagated that if one is sick, then one should do yoga instead of going to a hospital. There is a move away from public commitment to health and developing science and education. The funding for science itself is being diverted. R&D budgets of the government are being diverted to flagship programmes of the government or the Prime Minister,” said Prabir Purkayastha of the Delhi Science Forum.

Seventy years after Independence, a great proportion of the population is illiterate and semi-literate, and science does not reach them. “Most schools do not even have laboratories. How will you teach science to them? The great majority of students are taught in such schools and they will never become scientists,” said Soumitro Banerjee.

Jammu & Kashmir

Tinderbox petition

SHUJAAT BUKHARI the-nation

A SEMBLANCE of normalcy seemed to be returning to Jammu and Kashmir this year, despite intermittent lapses into violence such as the skirmishes that claimed nine lives on April 9, the day when elections were held for the Srinagar parliamentary seat. But if things appeared to be settling down, a new issue has cropped up to agitate emotions: that of Article 35A.

The unrest of 2016, besides leaving nearly 100 people dead, thousands wounded and many people blinded as a result of pellet injuries, had badly hit the State’s economy and education. Tourism, which too continues to feel the impact, touched its lowest ebb this year.

The coalition government led by Chief Minister Mehbooba Mufti has been in the thick of fighting new-age militancy as the number of local youths joining the ranks of militants swelled up alarmingly. The Valley was rocked by agitations in 2008, 2010 and again in 2016. Now, it seems ready for another battle as the people fear that Article 35A, which has been challenged in court, must be saved and that its possible abrogation will have dangerous consequences for the Valley. The perceived threat to Article 35A has not only brought together arch rivals in the State’s mainstream political parties but made separatists join the bandwagon of saving Article 35A “at any cost”.

The Bharatiya Janata Party (BJP), which is part of the ruling coalition along with the People’s Democratic Party (PDP), had agreed to the Agenda of Alliance with the PDP, which is committed to protecting the special status of Jammu and Kashmir as guaranteed through Article 370. Yet, in the three years of the Narendra Modi government, efforts have been made to delegitimise the political struggle in Kashmir and to deny that the problem in Jammu and Kashmir is a political one and needs a political solution. Besides harping on a military solution by toeing a hard line and projecting Kashmir as a new hotbed for the likes of the Islamic State or Al Qaeda, it has launched a tirade against the special status of the State through its affiliates.

The BJP government at the Centre discourages all discussion on Kashmir as a political issue. The ruling party seems to believe that the entire State, including Pakistan-occupied Kashmir (PoK), is an integral part of India. The complete integration of the State in the Indian Union has been the BJP’s political agenda. Article 370, which gives the State special status within the ambit of the Constitution, has been a thorn in the party’s side. Yet it endorsed the Agenda of Alliance in order to be in power in the State.

The party and its affiliates are now trying to use the judiciary to push their agenda. We the Citizens, a non-governmental organisation (NGO) patronised by the Rashtriya Swayamsewak Sangh (RSS), the ideological fountainhead of the BJP, has filed a petition in the Supreme Court to scrap Article 35A.

Significance of Article 35A

Article 35A was extended to Jammu and Kashmir through the Constitutional (Application to Jammu and Kashmir) Order issued by President Rajendra Prasad on May 14, 1954. It was specifically devised to grant protection to State subject laws that had already been defined under the Maharaja’s rule and notified in 1927 and 1932. Only State subjects are entitled to own land in both parts of the State divided by the Line of Control (LoC), that is, including PoK. However, in Gilgit-Baltistan, which has been almost annexed by Pakistan, people do not have State subject rights any longer. This gives meat to the clamour for abrogation of Article 35A.

The significance of Article 35A is that it helps the State to retain a distinct character in terms of its residents. It actually protects a law that was passed by the Dogra monarch Maharaja Hari Singh during British rule to stop the influx of Punjabis into the State. The Maharaja passed the law reportedly at the behest of Kashmiri Pandits, who were powerful in the State at that time. According to the leading constitutional expert A.G. Noorani: “Parliament of India has no legislative competence to make laws in respect of J&K State subjects/citizens as defined by law and under Section 6 of the Constitution of J&K in respect of their immoveable properties.”

With the legal battle under way, experts are raising more pertinent questions. One is that should Article 35A go, all the 41 Presidential Orders that came after the one adding the provision to the Constitution would be subject to legal scrutiny as they were all in essence amendments to the 1954 Order. The subsequent orders have extended 94 out of the 97 entries in the Union List to the State and applied 260 articles of the Indian Constitution to the State. These orders have also been used to erode the special status or the autonomy of the State from time to time. The Government of India has refused to file an affidavit to defend Article 35A in the Supreme Court and instead sought a larger debate. The issue acquires a new twist with reports that the original file containing all necessary information and notings regarding Article 35A and the Presidential Order of 1954 is missing from the Ministry of Home Affairs.

It is not known what the final decision of the Supreme Court will be. But there is an apprehension that it could be an adverse one, even though the State government is defending the law. The Supreme Court will hear the case on August 29, and a bench, which was hearing a similar/linked case with the next Chief Justice Dipak Misra on it, has indicated that it could be referred to a five-judge bench. There are at least five cases that are linked to the special status of Jammu and Kashmir and are pending in the Supreme Court and the High Court.

Chief Minister’s warning

Chief Minister Mehbooba Mufti was the first to warn against tampering with Article 35A. At a seminar in Delhi, she said if Article 35A was tinkered with, there would be nobody to shoulder the Indian flag in Kashmir. The entire opposition in the State, comprising the National Conference (N.C.), the Congress, the Communist Party of India (Marxist) and other regional parties, has come out in defence of the law. Former Chief Minister Farooq Abdullah chaired a meeting of the opposition on August 7 and warned of the consequences of abrogating Article 35A. “If the S.C. [Supreme Court] decides to scrap Article 35A, New Delhi will have to face the consequences and be ready for the battleground. We will go to jail, do everything we can. They should be ready for it,” he said in an interview with this writer. With Mehbooba driving to Farooq Abdullah’s residence to discuss Article 35A, the political equations in the State seem to be changing. The Chief Minister also met the Prime Minister and the Home Minister on the issue.

It remains to be seen whether the Government of India changes its stand on August 29, when the case is again listed for hearing. Former Chief Minister Omar Abdullah has taken the battle a step forward by saying that in case Article 35A was tinkered with, the larger discussion on the accession would be reopened.

The Joint Resistance Leadership (JRL), comprising Syed Ali Geelani, Mirwaiz Umar Farooq and Yasin Malik, has also warned of the consequences of a possible abrogation of Article 35A. For the first time, entities on either side of the ideological divide are on the same page. The concern is that the removal of Article 35A will help the BJP fulfil its long-standing dream of complete integration, which eventually will make it possible for people from other States to settle in Jammu and Kashmir. Whether the pro-India and anti-India forces will stage protests together is not known, but the case has set the ball rolling not only for a greater confrontation between New Delhi and Srinagar but also for a possible revolt. If that happens, it is going to be BJP versus the rest. Not only will it put Kashmir back on the boil, but the fate of the State government will become uncertain.

Zaffar Shah, a leading lawyer, says that such issues warrant political decisions. “Such approach doesn’t have people’s support. Issues that can only be decided in a democratic manner can’t be dealt with by the courts. It appears that this is being done with a design to take away the core sovereignty of the State of Jammu and Kashmir,” he said. Hurriyat Conference leader Mirwaiz Umar Farooq said that the aim was simply to change the State’s demography: “As this Article bars non-State subjects from settling and buying property in J&K, it is being challenged in a court with a view to alter the demography of the State by settling people from outside the State with the right to acquire land and property, and vote in the Assembly elections.” He added that this was “basically aimed at reducing the 75 per cent Muslim majority of the State to a minority and changing the basic character of the State in order to undermine and deeply affect its disputed nature. It is being done under a deliberate plan and is part of the much-flaunted ‘final solution’ to the Kashmir dispute by the Indian state, led by the RSS.”

The mainstream camp headed by the N.C. has already initiated moves to bring Jammu and Ladakh into the fight, though popular opinion in Jammu is influenced by the BJP and the RSS. The political parties are seeking to send a message that removing Article 35A would be equally harmful for Jammu. Maharaja Hari Singh, who enacted the State subject law, was from Jammu and did this to contain Punjabi influence. “We will remind them about his vision vis-a-vis the State’s sanctity of a unique nature and they should follow,” said the CPI(M) leader M.Y. Tarigami. Though political manoeuvring is on to project Jammu as being at loggerheads with Kashmir, the strike observed by Jammu chemists last year was significant. They protested against a government order allotting a contract to a non-State firm and called it an attack on Article 370. In Kashmir, demography tends to be at the centre of concern, but Jammu might think in economic terms and could revolt against forces hell-bent on robbing the State of its special status.

The issue has exposed the double standards of the BJP, which at once contrives to be in power in the State and also lends implicit support to erode its special status. The BJP will doubtless use the issue in the run-up to the 2019 general elections, but it has the potential of setting Kashmir on fire. Jammu and Kashmir is not like any other State. It has an international dimension. New Delhi is committed through the Simla Agreement to resolving the issue with Pakistan, albeit bilaterally, but the dynamic of the problem is not as simple as the current government seems to think it is.

‘Centre must protect the Constitution’

the-nation

ZAFFAR AHMAD SHAH, constitutional expert and legal luminary from Jammu and Kashmir, discusses what Article 35A is, the ramifications that its abrogation would have on the State, and the role that the State government and the Government of India need to play in this context. Excerpts:

What is Article 35A?

Article 35A is the provision of the Constitution that safeguards several rights available to the permanent residents of Jammu Kashmir. It is different from the Indian law which defines the citizenship of India. It protects the rights and privileges of the permanent residents of Jammu Kashmir in acquisition of property, in employment and in scholarships.

A law, which in a sense is applicable to a particular section of society—like it is applicable to the permanent residents of Jammu Kashmir but is not applicable to Indian citizens—can be questioned in court.

In order to protect such laws, if the Constitution itself makes a provision saying that laws which give some advantage, privilege or rights to a group of people will not be challenged or cannot be challenged, then such group of people for whom the law is meant would continue to enjoy the protection of law.

What do privileges under Article 35A mean in practical terms?

Under the Constitution of India, the people of India have the right to buy or acquire property anywhere in India. When we say that people of India cannot buy any property in Jammu Kashmir, we are violating the rights of the people of India. But Article 35A says that even if the laws of the citizens of India are violated, the permanent residents, or people of Jammu Kashmir, will have this privilege.

When an advertisement for government jobs is out, it is restricted to the permanent residents of the State. If Article 35A is not there, then any person from India can apply for the job.

The scholarships granted by the State government are available only to the permanent residents of the State and not other citizens of India.

As a consequence of the protection of these rights, various laws have been passed which prohibit acquisition of property by non-permanent residents and restrict employment in the State only to permanent residents and, more importantly, the law protects the right of permanent residency.

Another political protection is in contesting Assembly seats: only permanent residents of Jammu Kashmir can contest.

What ramifications will abrogation of Article 35A have?

A group of people who call their organisation “We the Citizens” want the law declared invalid in the Supreme Court. And if it happens, it will have very serious and disastrous implications for our people. They will lose the concept of permanent residency; our land, our jobs and our scholarships will become open to every person.

People of the State should continue to have these rights. This is a guarantee to them, an outcome of something that happened 60 years back. Suddenly a group of people come and question it. We read mischief into it. An attempt is made to dilute and do away with the special status. This will pave the way for the abrogation of Article 370, against which writs have already been filed.

Our position and identity—culturally, morally, ethically, politically, economically—will become vulnerable. We won’t be able to save and define ourselves as a distinct and separate nation.

How do you see the Hurriyat leaders who say that they have nothing to do with the Indian Constitution and that their fight is not for any special status but complete independence from the Indian state?

This also has basis in the Constitution and the law. On August 14 and 15, 1947, as the British Paramountcy lapsed, all States except Jammu Kashmir, Junagarh and Hyderabad merged with India. As far as Jammu Kashmir is concerned, it has a special case, different from Hyderabad and Junagarh. What would be the position of Jammu Kashmir between August 15, 1947, and October 26, 1947? It was an independent state. It had its own sovereignty.

When on October 26, 1947, the Maharaja endorsed the Instrument of Accession, he transferred the powers of Defence, Communication and Foreign Affairs to the Union of India. So he empowered the Parliament of India to make laws relating to Defence, Communication and Foreign Affairs. But then on other subjects like taxes, punishing people for offences and thousands of other laws are also needed. So he retained the rest of the powers with himself.

The Governor General responded to it and explained that since the ruler of the state belonged to a community different from that of the majority of the people, this law be put to the ratification of the people.

Now this ratification by the people of the Instrument of Accession has not taken place. India took the matter to the United Nations, and the Security Council passed the resolution asking for a plebiscite in Jammu Kashmir, which did not take place.

So the stand of the Hurriyat, on the one hand, appears to be different, but on the other hand there is a common theme. The issue relating to constitutional autonomy is equally important and not inconsistent with the larger issue. Whatever autonomy the State has under the existing constitutional arrangements, people want these protections to continue to remain in operation until the larger issue is decided. Ultimately, these protections will be available to identify who the permanent residents are, but if non-permanent residents come to the State, there will be a mixture of the two and it will be difficult to know who the real permanent residents are.

Is this issue also important for the mainstream political parties of Jammu and Kashmir?

It is not an issue only for the Hurriyat. It is important for all political parties. Permanent residents will be all leaders of political parties, including the BJP [Bharatiya Janata Party], and the people of Jammu and Ladakh, who want Article 35A scrapped. If this article gets invalidated, then any person can go and buy land in Ladakh and Jammu. This issue is essentially political in nature. Should these issues be taken to court?

How do you see the State government’s role? If there was an agreement between the People’s Democratic Party [PDP] and the BJP, how did the issue land up in court? And is the PDP doing enough to protect Article 35A?

The BJP as a political party has made its mind clear that it wants Article 370 to go and that it wants the status of the State reduced to that of other States. Being coalition partners [with the PDP], it agreed to the status quo position of the State. Now a writ petition has been filed against Article 35A and it is believed that it has been done at the behest of the BJP. And with the Union of India not filing an affidavit, the PDP is virtually left alone in protecting Article 35A. This is a paradox for the PDP. On the one hand it is in a coalition with the BJP and on the other hand, it is fighting the case without the help of the BJP. The PDP has of late engaged a good lawyer, Fali Nariman, to defend the case. What the PDP needs to consider is why it should be in coalition with a political party that does not support it in the Supreme Court. The situation has been made so uncertain that it has threatened the very existence of the PDP. The BJP has outsmarted the PDP to facilitate the implementation of its own agendas and it is claiming publicly that it does not want Article 370. Was the PDP the facilitator of the BJP or was it so naive?

What can the Centre do to avoid any political upheaval in Jammu and Kashmir?

The first thing that the Government of India can do is to instruct its Attorney General to file an affidavit in the Supreme Court and make its stand known and request the court to dismiss the petition against Article 35A.

But would that not amount to an acceptance on the BJP’s part that it failed to have Article 370 abrogated?

As a government, you have one stand and as a political party, you have another stand. Before the Supreme Court, it is the government which is the party.

Earlier too, governments have defended [against] challenges to the Constitution. The government cannot refuse to support the constitutional position. It is under a constitutional obligation to maintain a constitutional position. The relation between the State government and the Government of India is ingrained in the Constitution. Who will defend it if not the government?

Media

Sarkar vs Sarkar

PRASAR BHARATI’S (the public service broadcaster) refusal to broadcast Tripura Chief Minister Manik Sarkar’s prerecorded Independence Day speech on All India Radio (AIR) and Doordarshan (DD) is being seen as a direct assault on the rights of an elected Chief Minister and on the principle of federalism. The incident, which caused a furore in social and political circles, once again reinforced the Bharatiya Janata Party (BJP)-led government’s tendency to muzzle dissenting voices. Manik Sarkar has been at the helm of the Communist Party of India (Marxist)-led Left Front government of Tripura for four consecutive terms now. As has been the ongoing practice for several years, on August 12 AIR and DD recorded Manik Sarkar’s Independence Day address, in Bengali and English respectively, to be aired and telecast on the morning of August 15.

However, on the evening of August 14 the Chief Minister’s office was informed through a letter from AIR that the speech would not be broadcast unless he “reshape[d]” it. The move was clearly an attempt to pressure an elected head of government to conform to the will of the ruling party at the Centre whose policies Manik Sarkar had criticised in his speech.

The letter from the office of the Assistant Director General, AIR, on behalf of the Director General, said: “… keeping in view the sanctity and solemnity attached with the occasion the broadcast is meant for, the CEO Prasar Bharati was also consulted and the collective decision taken at Delhi advises that the broadcast may not go with its existing content. AIR/Prasar Bharati will however be more than happy if the Hon’ble Chief Minister agrees to reshape the content making it suitable to the solemnity of the occasion and sentiments of the people of India at large.”

The Chief Minister refused to “reshape” his speech, and so it was not telecast or aired. “Manik Sarkar has been the Chief Minister for more than 19 years. Does he not know what to say in an Independence Day address? This is as a direct infringement on the rights of an elected Chief Minister,” Gautam Das, the spokesperson of the CPI(M) in Tripura and member of the party’s Central Committee, told Frontline.

He pointed out that nowhere in the letter did AIR specify which part of the Chief Minister’s speech was not in keeping with the “solemnity” of the occasion and the “sentiments of the people”. “They did not say what their objection was. It is clear that they are censoring what the Chief Minister will be saying to his people at the behest of their political leaders at the Centre. They [the BJP] do not want [to accept] that varieties of opinion exist in the different States of the country. There should not be anything that goes against their views and they do not want the media which is under their control to telecast or broadcast any view directly or indirectly critical of the BJP and its policies. This is intolerance at its worst and it is undemocratic and unconstitutional,” Gautam Das said. The party’s State secretary, Bijan Dhar, called it “an insult to the people of Tripura”.

The Polit Bureau of the CPI(M) said in a statement: “This is a gross infringement on the right of a Chief Minister to address the people of his State on Independence Day. This Act is reminiscent of the Emergency days and goes beyond as it seeks to gag the elected Chief Minister of a State. The Central government is trampling upon the autonomy of Doordarshan/AIR and Prasar Bharati by such acts of censorship.”

The Congress party also condemned the Centre’s move. Tripura Pradesh Congress president Birajit Sinha said the Centre’s attempt to gag the Chief Minister’s speech could not be supported. “The Central government is indulging in groupism at every level. This is very dangerous for democracy. All the media is under their control. This is worse than the Emergency,” he said.

Doordarshan Kendra (Agartala) tried to counter the allegations of the State government by claiming that it had given “wide coverage” to the Chief Minister’s Independence Day programme. In a statement, U.K. Sahoo, the Kendra chief, said: “I would like to state that [the] news unit of the local station of Doordarshan at Agartala has given wide coverage to [the] public address of [the] Chief Minister of Tripura and the development activities of the State government…. On August 15, Doordarshan also gave wide coverage to the Chief Minister’s Independence Day programme and telecast report running to 29 minutes and 25 seconds. The Chief Minister’s speech coverage was for 12 minutes. This was telecast at 1900 [hours].” However, he did not mention the recorded speech of the Chief Minister that Doordarshan refused to telecast on the morning of August 15.

The incident once again brought to the fore the question of Prasar Bharati’s autonomy and its powers. Although the Prasar Bharati Act was passed in 1990, it was not until 1997 that Prasar Bharati became a statutory autonomous body and the country’s public service broadcaster controlling AIR and DD, which were earlier under the Ministry of Information and Broadcasting.

The Prasar Bharati (Broadcasting Corporation of India) Act, 1990, states: “The Corporation shall, in the discharge of its functions, be guided by the following objectives, namely: (a) upholding the unity and integrity of the country and the values enshrined in the Constitution; (b) safeguarding the citizen’s right to be informed freely, truthfully and objectively on all matters of public interest, national or international, and presenting a fair and balanced flow of information including contrasting views without advocating any opinion or ideology of its own.”

However, according to Jawhar Sircar, former Chief Executive Officer (CEO) of Prasar Bharati, the principles upon which it was established were being perverted mainly by internal bureaucracy. “The form of the institution remained autonomous, [but] the functioning was not. Internal corrosions started taking place. The same set of people trained in the same manner simply carry out the ethos from one government Ministry to another governmental organisation. Such a place cannot breed autonomy,” Sircar said.

He pointed to a 1995 Supreme Court ruling that said it was imperative for Parliament to make a law “placing the broadcasting media in the hands of a public or statutory corporate” whose constitution and composition must be such as to ensure “impartiality in political economic and social matters and on all other political issues”.

“The Supreme Court specifically says to allow the federation to articulate itself; to allow pluralism and diversity of opinions and views. The Act says it will provide space for the contradictory voice. It is ridiculous for the bureaucracy to try and censor it, as it did in the case of the Tripura Chief Minister,” said Sircar.

He added that such a thing did not happen during his tenure as CEO nor could he recall any precedent before his time.

Sircar found nothing “unconstitutional’ in Manik Sarkar’s speech. “Certain words like conspiracies and others may sound a little jarring, but that is his way of saying it. A politician does not come on television to speak on cookery, he is there to make a political statement. This [Prasar Bharati’s decision] conveys a mistake in [the] reading of its powers, with not a single contrary voice available within the organisation to speak out against it,” he said. By not airing or telecasting Manik Sarkar’s prerecorded speech, Prasar Bharati stirred up a controversy. Had the speech been telecast, it may have passed largely unnoticed outside Tripura, but by censoring it, Prasar Bharati has ensured that it has become one of the most talked about speeches in the country today.

Public health

Tale of neglect

THE death of almost 60 children, including infants, in the government-run Baba Raghav Das Medical College Hospital in Gorakhpur within a span of 48 hours raises several issues relating to the state of public health in the country, especially because the National Health Policy 2017 envisages increasing spending on health only to 2.5 per cent of the gross domestic product (GDP) by 2020 and leaves it to the private sector to fill critical gaps. Only an increase in expenditure on health and a robust and accountable public health care system can be trusted to fill critical gaps. The fact that a huge number of infant and child deaths take place even now—and not all are attributable to encephalitis—should be a matter of grave concern to both the Central and State governments.

The alleged cause of the deaths of the children on August 10 and 11 was asphyxia because of the unavailability of sufficient oxygen. The term “alleged” is being used as the cause is the subject of inquiry at several levels even as a political slugfest is under way to determine who was responsible for this tragedy. Independent sources in Gorakhpur told Frontline that the deaths could be a result of various types of enteroviruses causing Acute Encephalitic Syndrome (AES) in the children.

Successive Central and State governments are culpable to a certain extent; but the current State government, headed by Yogi Adityanath of the Bharatiya Janata Party (BJP), cannot escape responsibility for the deaths. So far, it has indulged in a futile blame game and tried to pin responsibility on the hospital administration. On August 22, a committee headed by the Chief Secretary submitted its report to the Chief Minister. The report, a copy of which is available with Frontline, has short-, medium- and long-term recommendations. It has asked for a criminal investigation against Rajiv Mishra, Principal, BRD Medical College Hospital; Dr Satish, head of the department of anaesthesia and child health and in charge of the oxygen supply; Dr Kafeel Khan, in charge of the 100-bed Acute Encephalitic Syndrome ward; and Messrs Pushpa Sales Private Limited, the oxygen supplier. It has also recommended an inquiry into the “concealment of facts” by Dr Kafeel Khan, accusing him of going against the rules of the Indian Medical Council. Apart from this, it has recommended an inquiry under the Prevention of Corruption Act against the Principal, his wife Purnima Shukla, and two others. A special audit by the Comptroller and Auditor General (CAG) of the medicines bought over the last three years has also been recommended. The Chief Minister has accepted the recommendations and ordered the departments concerned to proceed speedily against them, adding that that no one will be spared. The report has recommended creating medical and paramedical posts to fill the shortages in all government medical college hospitals and making budgetary provisions for the same. It does not mention the cause of deaths anywhere.

Acting on an inquiry, the government removed Anita Bhatnagar Jain, Additional Chief Secretary (Medical Health), from her post and suspended the principal of the medical college. Anita Bhatnagar Jain was held responsible for the delay in the payment of dues to the oxygen vendor. Separately, responding to petitions demanding a high-level probe, a bench of the Allahabad High Court directed the government to place before it the committee’s report.

A three-member team of the Indian Medical Association (IMA) comprising Dr K.P. Kushwaha, former principal of the medical college and head of the paediatrics department; Dr Ashok Aggarwal, national vice president of the IMA, and Dr B.B. Gupta, president of the Gorakhpur branch of the IMA, conducted an inquiry into the deaths. While it did not find the administrative head and the paediatric physician in charge of the ward guilty of clinical negligence, it did observe that the supplier of liquid oxygen had not been paid his dues for over six months.

The inquiry committee also found that the hospital was overcrowded and that there was a shortage of paramedical and other medical staff such as nurses and doctors, especially paediatricians. The IMA-appointed committee did not recommend any drastic action against the doctors and the administrative staff but proposed an administrative inquiry. It did attempt to seek out the views of the doctor on duty, the administrative head, and the college principal, but they did not appear before it.

Various inquiries have apportioned blame and responsibility in different ways. A team of doctors sent by the Central government found that unavailability of oxygen was not the reason for the deaths even though there was overwhelming evidence of requisitions made to the Department of Health for release of funds, which were sent after considerable delay. The Chief Minister, too, declared on Twitter that oxygen supply was not the main reason. “To expect the vendor to hang around for six months is a little unfair. The payments were undoubtedly held up,” said a doctor involved in one of the probes. The Chief Secretary and others have demanded that those responsible, including Ministers and heads of departments who ignored the requisition to release money to pay the oxygen supplier, be sacked.

It is also being argued that there is nothing unusual about the high number of deaths in a region and a hospital that catered to several districts in Bihar and had patients coming in from Nepal as well. Doctors Frontline spoke to in Gorakhpur said that children who had good immunity and were better nourished had a higher chance of survival. In 2012, the mortality rate in the region dipped to 15 per cent from around 35-40 per cent earlier. That same year, children were administered immunoglobulins, resulting in many lives being saved. These medicines, doctors told Frontline, were expensive, costing Rs.1 lakh per patient, but the then government, because of the persistence of the hospital administration, managed to provide the medicine to the children.

An analysis of the Uttar Pradesh government’s Budget shows that there has been a significant hike in the medical and health budgets from 2015-16 onwards. The “actuals” for 2015-16, when the State had a Samajwadi Party government, was Rs.12,104 crore and it saw a significant leap to Rs.17,828 crore (Budget Estimates, or BE) in 2016-17. The Revised Estimates, or RE, was Rs.15,834 crore. However, after the new government assumed office, it allocated Rs.17,181 crore, which was an increase of 9 per cent over the RE for 2016-17, but, compared with the BE for 2016-17, the amount sanctioned was Rs.647 crore less. In comparison, the percentage change (BE 2017-18 over RE 2016-17) for education (34 per cent), agriculture (813 per cent), public works (54 per cent), urban development (65 per cent), and rural development (37 per cent) showed increases. The health budget promised to introduce 712 more emergency ambulances.

Dismal picture

Data from the fourth National Family Health Survey (NFHS, 2015-16) on Gorakhpur show that only 17.7 per cent of the children received a health check-up within two days of birth from a doctor, nurse or midwife. A high percentage of births were in public facilities, indicating perhaps the dependence on public health centres.

Only 65.4 per cent of the children in the 12-23 months age group were found fully immunised against tuberculosis, measles, polio, diphtheria, whooping cough and tetanus. Only 3.8 per cent of the children in the 6-23 months age group were found having an adequate diet; 42.1 per cent under five years were stunted, 19.9 per cent were wasted and 35.2 per cent were underweight. Almost 60 per cent of the children in the age group 6-59 months were anaemic. Similarly, 45.6 per cent of the pregnant women in the 15-49 age group were anaemic and fewer than 15 per cent of the women had undergone any examination of the cervix, breast or the oral cavity. Vaccination for Japanese encephalitis (JE) was 29 per cent in the 1-15 age group. And 70.3 per cent of the children who were taken to a health facility reported fever or symptoms of acute respiratory infection.

It has been ascertained from reliable sources that of the 60 deaths, fewer than 12 were because of JE, nearly a dozen because of scrub typhus (a zoonotic disease that was identified as a source of child mortality in 2013), and the rest because of various enteroviruses. Scrub typhus is known to cause encephalitis (inflammation of the brain) as well. So it was not only JE that was responsible for the deaths in the BRD Medical College Hospital. But rather than establishing diagnostic practices within the hospital, the research units within the medical college were closed down. Work slowed down at six Indian Council for Medical Research (ICMR) projects on scrub typhus and at the National Institute of Virology unit. There was no explanation though a fund crunch was hinted at.

The low-lying plains of Gorakhpur, which nestle between the Sarayu and the Ganga rivers, are host to a range of communicable and water-borne diseases. Agriculture is the sole occupation here as in the rest of eastern Uttar Pradesh, though frequent floods disrupt agricultural work. With high levels of groundwater contamination, the region has a high rate of gastrointestinal infections too. The situation has been more or less the same since 1978 when the first outbreak of JE occurred. Until 2004, no efforts were undertaken to check the spread of the main vector, pigs and mosquitoes. The only JE vaccine-producing centre in the public sector at Kasauli in Himachal Pradesh was shut down in 1998 and imports began. While the reported cases were in lakhs, the supplies were totally inadequate, said a doctor from Gorakhpur.

Meanwhile, an outbreak of JE in Andhra Pradesh between 2002 and 2004 saw the government there swing into action, intervening at multiple levels including providing vaccine. Gorakhpur was ignored. JE cases in Assam and parts of Bihar came down owing to the supply of imported vaccines. In 2006, children and adults were vaccinated in Gorakhpur as well. In 2007, the United Nations Children’s Fund (UNICEF) reported that only 56 per cent of the children were immunised against JE. There were other enteroviruses active too. Fevers were getting more prolonged, resulting in acute flaccid paralysis. Vaccines could not be the only solution.

What is clear in this instance is that there was a shortage of oxygen for those children, including neonates, who may or may not have had JE but were brought to the hospital in a serious condition. It is widely recognised that the primary health centre (PHC) is the first point of prevention and treatment, and it has been ignored by successive governments.

State of PHCs

The continuing low budgetary allocation for health by the Centre is an indication that a major shift in thinking has not happened. It has been reported that only 30 per cent of the doctors report for duty at the PHCs in Gorakhpur. There are no patient admissions; only out-patient departments function. There is a shortage of medicines as well. Cleanliness and overall facilities provided in the PHCs are an issue. At the community health centres (CHCs), doctors are present but do not admit encephalitis cases. They are all referred to the BRD Medical College Hospital. The IMA report points out that the hospital caters not only to Gorakhpur district but is the only source of tertiary health care for as many as 16 districts. It is terribly overburdened, taking in five times the sanctioned capacity of patients. Nearly 128 doctors and paramedical staff are “outsourced” while 160 are on contract. In such a scenario, a disaster was waiting to happen.

There are, therefore, several reasons for the death of so many children. It could have been prevented had the investments been made in the desired areas. Having been the constituency of the current Chief Minister for several decades, the situation in the hospital could have been addressed earlier. The way out lies in strengthening the public health system by stepping up investment in health, both by the State and by the Centre, and making the PHCs and the CHCs workable. The “health and wellness centres” planned by the Central government cannot wait until another such tragedy strikes. To expect the private sector to fill the gaps would not only be unrealistic but pave the way for greater disasters ahead.

Corporate Affairs

The helmsman returns

V. SRIDHAR the-nation

THE third week of August was tumultuous at Infosys, the Indian software services industry bellwether. On August 18, chief executive officer (CEO) and managing director Vishal Sikka, the first “outsider” (non-founder) to head the company (he has been at the helm since 2014), announced his resignation. The company’s board appeared to sympathise with him and blamed the founder, N.R. Narayana Murthy, for his departure.

Narayana Murthy, widely regarded as a pioneer within and outside the industry, fought back. On August 24, the board was virtually dismantled: Nandan Nilekani, a co-founder who is more widely known as the architect of the Aadhaar project, returned to take over as non-executive chairman. Nilekani’s return meant the ouster of chairman R. Seshasayee, Sikka and two other directors. These departures have provided Nilekani with a free hand to reconstitute the board and give the company a new direction.

The happenings at Infosys had a far-reaching impact. Although Sikka’s statement of August 18 did not specifically name Narayana Murthy, his allegation that the “constant drumbeat of distractions” had pushed him into a corner had the hallmark of a tirade against the company’s founder. In a move rarely seen in the corporate world, the board also mounted a frontal assault on the company’s founder. In a statement issued the same day, the board blamed Narayana Murthy’s “continuous assault” on Sikka for his resignation. It reiterated its “strong support” for Sikka, despite Narayana Murthy’s “misguided campaign” against the leadership. Sikka was made executive vice chairman, even as chief operating officer (COO) U.B. Pravin Rao was named interim managing director and CEO.

Unanswered questions

The media’s heightened focus on the corporate drama was also marked by an inability to separate issues of corporate probity from corporate performance and leadership. There is a grain of truth in the board’s allegation that there was a “continuous” stream of allegations made by Narayana Murthy, but the fact remains that these go back to at least 2015 when Infosys acquired Panaya, an Israeli start-up specialising in automation technology.

Two separate whistle-blowers said in February 2017 that the deal was shady, alleging that the $200 million paid was far higher than warranted and was suggestive of payoffs to individuals. But the allegations went beyond the Panaya acquisition. The terms on which the company’s then chief financial officer (CFO) Rajiv Bansal left Infosys in October 2015 (he remained as an adviser until December 2015) raised questions about whether the board had exercised enough caution, prudence and due diligence.

In particular, the size of Bansal’s severance package, totalling Rs.17 crore, was seen to be excessive by Infosys’ standards. Moreover, the details of the severance package were disclosed only in May 2016. Narayana Murthy engaged with the board on this matter too and the severance package was finally capped at Rs.5 crore. Bansal has invoked the arbitration clause in his contract to force Infosys to part with the rest of the package.

The circumstances of the resignation of Infosys’ general counsel was also a matter on which Narayana Murthy trained his guns on the board.

All three elements of the allegations—the nature of the acquisition, the terms and circumstances of Bansal’s exit and the general counsel’s departure—brought the entire Panaya deal under a cloud. Narayana Murthy’s repeated demand for greater clarity was not without substance.

Although the company spent a considerable amount of time and money on investigating the complaint before finally giving a clean chit to the deal, the full report was never made available either to the board or to the shareholders. This has been a major demand repeatedly made by Narayana Murthy. In fact, Ravi Venkatesan, who was co-chairman until August 24, reiterated the board’s decision not to release the full report of three separate investigations, including one by an American legal firm, after Sikka’s resignation.

The two-page summary report of Infosys’ Audit Committee that the board released on June 19 gave a clean chit to Sikka, but the report itself is sketchy. Narayana Murthy wrote to the board saying that he was not satisfied that a thorough probe had been conducted into the allegations of impropriety and wrongdoing. Specifically, on July 8, Narayana Murthy asked the board if the company could categorically state that no Infosys employee or relative of an employee had benefited from the Panaya acquisition.

Moreover, the perception that Infosys was holding back relevant information began to gather momentum and could have been the reason why Narayana Murthy’s actions in seeking information from the board found wider appeal.

In fact, Narayana Murthy, in an email to his “advisors” dated August 9, which was leaked to the media, said: “I have nothing against Dr Vishal Sikka.” He said that his sole focus had been on governance issues at Infosys, adding that he had “never commented about his [Sikka’s] strategy or its execution” and that “the fault lies with the current board”.

He said: “If the board had not embraced inaction and had ensured proper governance, [it] could have created checks and balances required in any well-run company. That, alas, does not exist today.”

Walking away not an option

Those who saw in Narayana Murthy’s persistence evidence of a patriarch who refused to cede control over the company, including Omkar Goswami, a former director, were not being charitable. But those who defended Narayana Murthy said that “walking away” was not an option for someone who had founded the company. Walking away after handing over the company to a younger and competent leader is one thing, but running away from a company that is out of tune with its core legacy is quite another, they argued.

In the first two trading days after Sikka’s resignation, the Infosys share nosedived, shedding nearly 15 per cent in value. The company’s decision to offer a buyback, pending since the January 2017 “in principle” decision—another matter of criticism owing to the board’s tardy performance—implies that the buyback would draw down Rs.13,000 crore from its cash reserves. The board’s approval, a day after Sikka’s resignation, was an obvious move to assuage the markets.

The bonhomie that characterised Sikka’s entry in 2014 had been ebbing for some time. Sikka, a former top executive at SAP, the global specialist in enterprise solutions, was brought in to provide a renewed technology focus at a time when Infosys and the industry were entering a new phase of their evolution—from a labour arbitrage-based offshoring model to one that relied on greater automation.

It was believed that Sikka’s aggressive push in this direction would set it on a new path (“Rebooting Infosys”, Frontline, July 11, 2014). Clearly, recent events have proved that while embracing change may be beneficial in many respects, discarding cardinal values in order to chase growth may prove futile in the long run, especially for a company with Infosys’ track record.

The board was clearly unable to rein in its CEO, demand accountability or take strong measures by acting as a cohesive entity. What really tilted the balance in favour of Narayana Murthy was the widespread appreciation of his role as founder and his own track record of nurturing a company that stood for probity. The issue became so important that a political angle soon emerged from the shadows. Soon after Sikka resigned, on August 23, Ravi Venkatesan met Union Finance Minister Arun Jaitley, triggering speculation about what transpired. Why would the country’s Finance Minister want to meet the leader of a private corporate entity, especially when it was going through a crisis? The question was partly answered when the Securities and Exchange Board of India, the stock market regulator, said that it would undertake a fresh probe into the circumstances. This was obviously an attempt to put pressure on the board to clean up its act. It was obvious that the political leadership did not wish to see Infosys slide further, especially as it is preoccupied with the fallout of large-scale job losses in the information technology (IT) industry. The pressure to fall in line was not purely political; the fact that the publicly owned Life Insurance Corporation (LIC) controls the single biggest bloc of shares held by an Indian entity—not even the promoters individually own more than the insurer—meant that the government had other levers to operate to make those heading the board fall in line. Speaking to newspersons on August 25, Nilekani said he would get the “full briefing of the investigations” into the whistle-blower allegations and would “take appropriate action”. Significantly, the terms of Sikka’s separation stipulate a “non-disparagement obligation”. It is not clear whether the clause would prevent the reports from being revealed.

The board said it “was not its intention to cause Mr. Murthy or any other affected person any personal distress or anguish while stating its point of view”. This appeared to be a virtual apology, although observers were left wondering how the same actors could so dramatically revise their positions on Narayana Murthy within seven days. These developments indicate that a full-scale revamp of the board is on the cards. Nilekani also said one of his top priorities was to get a new CEO.

Nilekani’s entry marks a new era at Infosys. This could be viewed either as the homecoming of the old guard or as a last-ditch effort to stabilise a company in troubled times.

Public health

A political burial

ON August 22, when the periodic meeting of the coordination committee of the Bharatiya Janata Party (BJP) and the Rashtriya Swayamsewak Sangh (RSS) was held in Lucknow, the dominant mood among the participants was of smug contentment. The participants—representatives of the Uttar Pradesh government, the BJP organisation, and the RSS—expressed satisfaction about having staved off a big administrative crisis without much of a political setback following the death of around 70 children at the Baba Raghav Das Medical College Hospital at Gorakhpur, which seemed to be acquiring the dimensions of a public relations disaster. Chief Minister Yogi Adityanath himself did not attend the meeting, but both Deputy Chief Ministers, Dinesh Sharma and Keshav Prasad Maurya, were present along with senior RSS leaders Dattatreya Hosabale and Krishna Gopal.

The manner in which the deaths occurred and the reasons for them exemplified the ineptitude and misplaced priorities of the five-month-old Yogi Adityanath government while exposing the callousness ingrained in a political system led by a so-called spiritual person. The government and the Chief Minister had failed to look at the issues faced by the BRD Medical College Hospital despite Yogi Adityanath himself visiting the institution a few days before the tragedy. This oversight was most acute and criminal in the non-payment of dues to the oxygen supplier, which in turn resulted in the shortage of oxygen leading to the deaths. However, nearly two weeks after the tragedy sent shock waves across the country, the crucial coordination committee meeting came to the conclusion that the political damage had been contained.

Damage control

The damage-control strategy employed was not officially listed at the meeting, but the participants as well as a large number of observers of the coordination exercises had a clear sense of what these were and how they worked out. Broadly, the government and the BJP party machinery manoeuvred at three levels. One: outright denial of any mismanagement of health services, including negligence in paying the oxygen supplier. Two: initiating administrative measures, including punitive action, against the hospital as an institution and against some officers in the Health Department. Three: unleashing a not-so-subtle communal propaganda, playing up the pro-Hindutva and anti-Muslim stereotypes of the Sangh Parivar.

The three-pronged strategy was advanced by Yogi Adityanath and members of his Council of Ministers, and then, as is the Sangh Parivar’s wont, effectively picked up and taken forward by the party’s organisational machinery. It persisted with the argument that the deaths were not due to shortage of oxygen supply but due to the chronic spread of encephalitis in the region, which had taken a large number of adolescent lives over the past many years. This was stated repeatedly by the Chief Minister and the ministerial spokesperson Siddharth Nath Singh. When Yogi Adityanath went to the hospital after the news of the tragedy came out, he claimed that the government had paid the hospital in time and that it was the hospital administration that did not make the payment to the oxygen supplier.

Having put the blame squarely on the hospital administration, the second line was advanced through punitive action against officers and BRD Medical College Principal Rajeev Mishra. While Mishra was suspended after the news of the tragedy came out, more measures were taken even as the August 22 RSS-BJP coordination committee meeting was in progress. These included the removal of Anita Bhatnagar, Additional Chief Secretary (Medical Education), and orders to lodge a first information report (FIR) against a number of persons, including Rajeev Mishra and Drs Kafeel Khan and Satish at the BRD Hospital. All these measures were reportedly taken after a four-member committee led by Chief Secretary Rajiv Kumar submitted a report of the probe into the deaths.

Kafeel Khan episode

Incidentally, Dr Kafeel Khan was hailed, even as the tragedy unfolded, by a number of residents of the region as well as the media and social media as somebody who sought to mitigate the suffering of the children by taking proactive steps to procure oxygen. He was the person in charge of the ward where the deaths took place. However, the department was not able to procure oxygen as it had not got the money from the higher authorities to pay the supplier. It was in this context that Dr Kafeel Khan made efforts on his own.

Yet, when Yogi Adityanath visited the BRD Hospital, he directed the authorities to take action against Khan too. He was removed as the person in charge of the department. This was on the grounds that the doctor was doing private practice at a nursing home run by his wife. It is on the same grounds that the recommendation to file an FIR against him has been issued by the government. (He was later reinstated in the department with ostensibly lesser powers.)

A moot question doing the rounds in the hospital administration and among the people of Gorakhpur was whether there was a formal complaint against Khan on the grounds cited for the investigation. Indeed, the department can take suo motu notice of “private practice violations”, but for that too there is considerable paperwork that happens within the department. There were doubts whether all these were finalised before the investigation against Khan was announced. According to a number of people closely involved in the functioning of the hospital as well as some social activist observers of Gorakhpur, the Yogi Adityanath government turned against Khan because the desperate efforts he made to get oxygen got noticed by the media.

Talking to Frontline, a senior health official associated with the hospital said the thinking in the government was that but for Khan’s efforts the shortage of oxygen would not have become a public story. “He brought attention to something that otherwise would have been easily brushed under the carpet. That seems to be the primary cause for the action against him,” said the official.

Communalisation

While questions about the appropriateness of the investigation against Khan and the actual reasons for it are yet to evoke concrete responses, the “Khan episode”, involving both his actions and the measures initiated against him, was used by the BJP and other Sangh Parivar outfits to divert attention from the governance failures in relation to the tragedy. As is the normal practice, communal propaganda formed the basis of these diversionary tactics. A clear sign of this could be seen in the Hindutva outfits’ murmuring campaigns that underscored the “possibility of a Muslim conspiracy” in highlighting the oxygen shortage. That Khan had been tweeting to former Chief Minister and Samajwadi Party (S.P.) president Akhilesh Yadav on various issues was also highlighted.

In the second week of August, other issues were also added to advance this communalisation project. Once again leading from the front, Yogi Adityanath called for massive Janmashtami celebrations, including in government institutions. Some police personnel responded by organising festivities in police stations. When the Chief Minister was asked about the propriety of this, he came up with the communal response that when he could not ask Muslims to stop offering namaz on roads during Eid, he had no right to stop the celebration of Janmashtami at police stations.

These blatant attempts at communalising the situation also evidently helped divert attention from the Gorakhpur tragedy as well as its fallout.

As Manoj Kumar Singh, Editor of the Hindi online portal Gorakhpur Newsline, told Frontline, in the social climate created by these controversies, follow-up coverage on the serial deaths became more and more sparse. “Child deaths were continuing even into the second and third weeks of August for several reasons, including deficiencies in the medical infrastructure, but the attention of both the media and the public was increasingly captured by other developments. The flood situation created by the massive rains in Basti, Gorakhpur and nearby areas in the third week of August also added to this distraction,” Singh told Frontline.

Apparently, the floods had become a point of “delighted reference” among participants in the RSS-BJP coordination meeting. For the record, the meet expressed concern over the tragedy in the hospital. But the larger agenda was indeed on furthering the communalisation project. A pointer to this was the fact that one of the key issues addressed at the meeting was the re-initiation and strengthening of efforts to build the Ram temple in Ayodhya. Incidentally, earlier coordination committee meetings had addressed specific governance-related issues such as the industrial policy of the Yogi Adityanath government, especially at the level of small and medium enterprises. But this time, the Ayodhya temple plan came up more prominently than administrative issues.

Governance deficit

Several bureaucrats in Uttar Pradesh and a number of political observers are of the view that this shift in focus is in keeping with the governance trajectory of the Yogi Adityanath Ministry.

“The government has been consistently slipping in all areas of governance. It came to power promising better law and order, but Home Ministry records show that the State is going through one of the worst periods ever in this respect. The much-touted farmers’ loan waiver scheme has come a cropper, leaving most of the farmers unhappy about the very concept as well as the implementation of the programme. Gorakhpur has exposed the government’s indifference to and callousness in addressing health issues. Thus, it is but natural that the political leadership of the government would want to shift public attention and that too in a massive manner,” pointed out a senior bureaucrat.

In the words of Rajendra Choudhary, spokesperson of the S.P., the Yogi Adityanath government’s one-point solution to all problems is communalisation. He believes that this will not work for a long time because people will see through it. But, as the participants at the RSS-BJP coordination committee meeting noted, the tactic is working for the time being and working fairly well for their purpose.

Textile sector

A looming crisis

SURAT, the famed “cloth city” of India, accounts for as much as 80 per cent of the country’s man-made fibre market and virtually 100 per cent of its production of synthetic sarees and dress material. The wholesale synthetic textile market in Surat is located on a 1.5-km stretch of its arterial ring road, lined with 185 multi-storey buildings on both sides. Each building has an average of six floors and about 5,000 to 7,000 shops. The scale of business is staggering. Through the year, this business hub teems with trucks laden with fabric, businessmen from across the country, local wholesale traders and labour who help with transport and packing.

On July 1, though, when the Goods and Services Tax (GST) was introduced, Surat’s bustling markets went silent. Earlier, all stages of the textile industry other than yarn had been free of the tax net, but these were now brought into the GST regime at one stroke. The enormity of the task ahead, as well as the consequent loss due to taxes, has stunned and shattered textile traders.

The centuries-old textile sector is an integral part of India’s sociocultural fabric. Chiefly made up of small businesses, the textile trade in Surat is carried out through traditional methods such as long-term credit and consignments based on trust. The GST move appears to encourage vertical integration and is expected to shift the sector towards big industry, which seems to be the mission of the current government.

The immediate reaction of the textile traders was to go on strike. For three weeks, the markets in Surat shut down, leading to massive losses to traders. Tarachand Kasat, president of the GST Sangharsh Samiti, told Frontline: “We lost close to Rs.1.25 crore a day. More than 65,000 textile traders participated in the strike. Every stage in the chain will be taxed and therefore affected.”

In spite of the sizeable mobilisation within the textile community, the strike had a bleak outcome. Finance Minister Arun Jaitley refused to remove the tax altogether, saying it would break the input tax credit chain. However, the GST Council, which met on August 5, did roll back taxes on jobwork, reducing the percentage from 18 to 5. While this is a slight improvement, traders are nevertheless deeply disappointed as they believe they have been let down by a government which they helped bring to power. “Hamari bhul, kamal ka phool (our fault was [voting for] the lotus),” says Kasat. He says this will have repercussions in the Gujarat Assembly elections and, later, in the Lok Sabha elections.

For now, the textile traders seem to have accepted it as a fait accompli. “The festival season is upon us. Our orders are a third of what usually goes out during this period owing to the strike and because everyone in the industry is busy sorting out their paperwork,” says Gurumukh Kunjwani, president of the Millennium Market Traders Association.

“It is not as though we are against paying taxes or even GST; after all, we do pay income tax. As a sector that has hitherto not been taxed, all we are asking for is some time to put systems in place,” says Kunjwani. “Most of us are small businesses, and are not well versed in technology. We also have to hire professional accountants. These are added costs that will eat into our marginal profits. We estimate that about Rs.8 lakh will be added to our costs annually.” Most traders Frontline spoke to clarified that their protest was not against GST per se but the fact that they needed time to implement accounting and other processes.

According to Kasat, the textile industry was perhaps left out of the tax net because it was encouraged to develop and flourish under the old socialist policy of roti, kapda aur makaan (food, clothing and shelter) for all. He added that this industry not only provided clothing but was second only to the agricultural sector in providing employment. Across the country, there are thousands of textile mills producing cotton, blended and synthetic fibre. India is Asia’s largest producer of man-made fabric, but it currently faces stiff competition from China. “Caught between competitive markets and GST, this industry is going to dwindle and die. We predict that 25 per cent of the total 75,000 traders in Surat will shut down within a year,” says Kasat.

For an industry not used to taxes, the problem GST presents is that it taxes the entire supply chain. There are approximately 15 stages from yarn to a final product such as a saree. GST regulations tax every stage (see diagram). The GST Council to which traders appealed said that at best it could reduce taxes on jobwork such as printing, embroidery and packaging to 5 per cent but categorically stated that 18 per cent GST would remain for yarn, says Champalal Bothra, president of the Federation of Surat Textile Traders Association (FOSTTA).

Explaining the process, Bothra says that for the movement of every material in the jobwork, each person involved at every stage will have to do paperwork and pay GST on the product and also on labour charges. If the units doing jobwork are not GST-registered, the responsibility falls on the loom owner or the wholesale trader to pay GST under the Reverse Charge Mechanism (RCM). RCM is a method of collecting tax wherein the recipient of the product pays tax on the material and the service he buys from unregistered dealers. This was one of the factors that triggered the protest.

With 65 per cent in the chain being unorganised, the onus of paying taxes would therefore fall entirely on cloth manufacturers and traders. For instance, a small karigar (craftsman) who does the lacework for about Rs.10 a saree needs a GST number to pay tax, else the tax will have to be borne by the wholesale trader. The fact on the ground is that the karigar does not have the wherewithal for this kind of accounting, while the traders do not have the resources to bail him out.

According to Bothra, the man-made fibre sector comprises small businesses that work on marginal profits; GST will increase the cost of production, and subsequently profits will become almost insignificant. He explains: A synthetic saree costs Rs.70 to make from start to finish. These sarees are typically sold to distributors at Rs.80 or 100—the profits are barely 15 per cent. Adding 5 per cent at every stage raises the cost to Rs.150-200 per saree. This makes it unviable for not only the distributors, who will not pick up stock at the new price, but also the target market (synthetic sarees are worn mostly by the lower income group) who will not be able to afford it either.

Bothra says 50 per cent of their customers are from rural India, who prefer nylon sarees as they are affordable, durable and low-maintenance. “Don’t they realise that this product will only further affect consumers who always face one hardship or another?”

Pre-GST, the yarn manufacturer paid approximately an 18 per cent Value Added Tax (VAT) and excise duty, a cost that was incorporated into the yarn sold to the weaver. Post-GST, the weaver gets a credit of approximately 12 per cent for the input taxes (taxes on raw material, in this case yarn), which is an additional benefit. The only benefit of GST which will be seen in the long term is input tax credit.

However, a significant problem with input tax credit and GST is that Section 19 of the GST Act says that traders need to follow the procedure for sending goods out for jobwork in order to avail themselves of input tax credit. Jobwork such as embroidery and lacework can be done even in small homes and is a substantial source of income for a large number of women in the villages near Surat. The inability to move material for jobwork which is part of the regulations will not only cause an upheaval in a well-oiled system but also threaten the livelihoods of hundreds dependent on this work. “GST will help the so-called composite textile businesses such as Reliance and other big names. Every stage is processed in-house and therefore they can handle the tax situation more efficiently,” says Bothra. “Sadly, the BJP’s [Bharatiya Janata Party] policies benefit only big industry. It is part of their ideology. The small- and medium-scale sectors are being systematically wiped out.”

“This is an attempt to bring various unorganised sectors into the tax net,” says a Mumbai-based chartered accountant. The government declared that it wanted to plug the “tax leakage” occurring because of exempting small-scale industries (SSIs) and the unorganised sector. “While the intention is to curtail cash transactions and black money and show more accountability, sadly, too many people down the chain are adversely affected,” she says. “This sector could have been granted a stage-by-stage rollout.”

Bleak outlook

The Millennium Textile Market on Surat’s ring road is a six-storey structure with labyrinthine corridors that house as many as 6,500 shops. Wholesale traders, middlemen and daily wage labourers involved in packing, lifting and transporting sit among bales of fabric. Shop windows display sarees, salwar sets and lehengas in every possible shade and colour.

While the scene appears busy enough to an outsider, Nitin Kunjwani of Pallu Sarees says: “This is nothing. Normally, you will not be able to walk so fast through the lanes at this time. There are people from every State who come to procure fabric and sarees. We would sell 7,000 to 10,000 sarees a day. Now it has dwindled to a few dozen a day.”

Kunjwani says the sudden introduction of GST is tantamount to sheer harassment, not to mention the losses incurred. Since a sizeable number of traders and job workers need to get their GST numbers registered first, nothing can be done until then. One of the traders, Amit Rai, has decided to close his shop. “I need to get rid of the old stock and then I will shut down. It has become too difficult. Eighty per cent of our workers have left. If we are lucky, we get one customer a day who may or may not buy sarees. I am unable to sustain the business which had already begun to slow down a few years ago owing to Chinese imports. Instead of imposing taxes on us, there should be anti-dumping duty on Chinese imports.” Surat is home to seven lakh looms, 1.10 lakh embroidery machines and nine industrial estates with thousands of textile weaving, dyeing and printing mills. The textile hub produces four crore metres of fabric a day. The daily turnover is estimated at Rs.125 crore, according to FOSTTA.

There is also a looming fear among the workers that jobs will disappear. FOSTTA says there are about 14 lakh people working in the industry. “Earlier, agents would come and drop 50-60 sarees for us to do small sequins or piping work. Now we get 10 or 20 if we are lucky,” says Vimlaben, who lives in a shanty about 10 kilometres from the city. “Busloads of fabric would come to our colony. We do not see those anymore.” Earlier, Vimlaben would earn Rs.200 to 300 a day. She says she has barely earned Rs.50 to 60 a day in the past two months, which is why she has come to the market to earn a wage, packing sarees.

The textile workers of Surat are among the main providers of saffron fabric for several BJP election campaigns. “This is what they do to us in return. It is unacceptable,” rues Mahesh Ramodiya, owner of Siddhi Sarees.

Such was the might of the Surat textile industry that when a Central Value Added Tax (CENVAT) was imposed in April 2003, traders went on strike and in July 2004 the government rolled back the tax on power looms. Except for that brief period, the textiles industry has been largely exempt from taxation. This time, though, it does not seem likely they will be able to escape the net.

Kerala

Court clears Pinarayi Vijayan in Lavalin case

the-nation

“We all know that there are many people who have been waiting for this day. They are of two kinds. Those who saw it in a positive way, not just those who gave me a favourable verdict in the election, but along with them a large section who had realised the truth much earlier. But certain mysterious forces were all the time pursuing the case, with the intention of a good hunt. We have to understand that this verdict creates a big disappointment to such forces.” It was with these concluding words and the distribution of sweets that Chief Minister Pinarayi Vijayan announced his liberation from the scourge of “the SNC-Lavalin corruption case” that had been haunting him for nearly two decades.

“The CPI(M) central committee had made it clear early enough that it is a case foisted with political motives. The speciality of today’s verdict is that the High Court too brings that out with clarity,” he said.

On August 23, the Kerala High Court rejected the revision petition filed by the CBI against a Special CBI Court’s order passed in November 2013 discharging Vijayan and two others in the case. The two others were the then Principal Secretary, K. Mohanachandran, and the then Joint Secretary, A. Francis, officials in the Electricity Department when Vijayan was the Electricity Minister from May 1996 to October 1998. The High Court, however, rejected the decision of the CBI court to set free three officials of the Kerala State Electricity Board (KSEB)—former chief accounts officer K.G. Rajasekharan Nair, former chairman R. Sivadasan and former chief engineer Kasturiranga Iyer—along with Vijayan and others.

The long-drawn-out case related to the award of a supply contract to the Canadian company SNC-Lavalin for the renovation and modernisation of the Pallivasal, Sengulam and Panniar hydroelectric projects, for which the company had already been engaged by the KSEB as a consultant.The crux of the High Court’s judgment is in the distinction it made between Pinarayi Vijayan and the two others discharged along with him as “persons outside the KSEB, brought in or arraigned by the CBI on the allegation of a conspiracy later on”, and the rest of the accused as “persons within the KSEB who designed the projects and perpetrated the contracts”. The High Court pointed out that Vijayan and the two government officials had no involvement or role in the modernisation projects designed by the KSEB. It was also not the CBI’s case that the three had made any unlawful gain or monetary benefit out of the deal between the KSEB and SNC-Lavalin.

The circumstances of the rest of the accused were entirely different, the court said. “They are the persons who designed the projects for the renovation and modernisation of the hydroelectric projects; they are the persons who perpetrated the contracts which happened to be executed in suspicious circumstances, and they are the persons who allegedly caused monetary gain and pecuniary advantage to SNC-Lavalin.”

In his 102-page verdict, Justice P. Ubaid said the main allegation against Vijayan appears to be that he showed undue haste and interest in the execution of the supply contracts in February 1997, and the KSEB happened to execute such a contract at the instance of the Minister in haste “when the SNC-Lavalin offered some grant for the construction of the Malabar Cancer Centre”.

But the CBI does not have any satisfactory explanation as to what vicious role or dishonest role the Electricity Minister had in the deal when he got the things approved by the Cabinet or when the Cabinet as a whole approved the proposal of the KSEB.

The court said: “I find that despite materials showing failure and inaction on the part of many Ministers who succeeded him, the CBI wrongly picked and chose the seventh accused (Vijayan) for prosecution on an allegation of conspiracy, without the support of any material. Just because SNC-Lavalin retracted from the gratuitous promise which was not at all accepted as one of the essential conditions of the contract between SNC-Lavalin and KSEB, the Minister who obtained such a promise and who later omitted to obtain an enforceable contract, cannot be prosecuted because there cannot be such a contract on gratuitous terms. If at all such a contract is there, it cannot, in any circumstances, be legally enforced.”

The court said that though there were three written supply contracts, nowhere was it mentioned that the proposal for a cancer hospital or the grant offered by SNC-Lavalin for it was one of the essential terms of the contract. There is also no reason why the CBI would find fault with Vijayan alone and allege that he failed to obtain an enforceable agreement from SNC-Lavalin, even though he was the Electricity Minister only for a short period and “had no sufficient tenure to expedite things and get an enforceable contract from SNC-Lavalin”.

The court also said that just because the proposal for a grant for the hospital was taken up and accepted by the government in view of the special interest shown by the then Electricity Minister, it cannot be said that it was part of the other contract, or that it was thought of and accepted as a consideration for the other contracts. It was projected, proposed and accepted simply as a gratuitous grant. And if the KSEB officials wrongly extended some benefit to SNC-Lavalin, in view of such an offer made by the company, the KSEB officials must be liable for it, the court said.

The latest High Court order, too, may prove to be a only the “end of another stage” in a long battle, if the CBI decides to go in appeal against it in the Supreme Court.

R. Krishnakumar

Interview: Prof. Tahir Mahmood

‘It is time for the ulema to introspect’

ZIYA US SALAM the-nation

PROF. TAHIR MAHMOOD is not a man of casual words. Everything about him is measured, from his words to his time. What is uninhibited, though, is his view on the Muslim religious leaders whose rigidity, he believes, has forced the highest court to intervene to grant justice to aggrieved women. What is more, he does not foresee the ulema getting into introspection mode anytime soon following the Supreme Court judgment invalidating instant talaq. “Though the ulema have been restrained in their reaction to the Supreme Court judgment, some of them regard it as an intervention in the personal laws of the community. I read about the imam of Fatehpuri Masjid being critical of it. Others, though, have been cautious and pragmatic in their response.”

Mahmood finds the judgment of the five-member bench “half-hearted”. “The judges have merely put aside triple talaq but not provided a clue beyond it. Triple talaq at one go, or instant talaq, is not the only form of biddah,” he says. A fierce critic of orthodoxy, Mahmood, who has been the Chairman of the National Commission for Minorities (NCM), is well known for taking on the establishment. As the NCM chief, he had suggested that Kashmiri Pandits be given the minority status in the State, and ensured that the Christians who suffered incidents of violence in Odisha and Gujarat got justice. Even as the triple talaq debate unfolded inside and outside the highest court, he was that rare intellectual who pointed out that divorce could not be held as an essential part of Islam, and hence triple talaq had to go. Mahmood stands vindicated after the Supreme Court judgment. Incidentally, the Chief Justice of India J.S. Khehar has quoted him extensively in his judgment. Excerpts from an exclusive interview with Frontline:

As a legal expert who had said as early as last year that triple talaq was not an essential part of Islam, how do you look at the Supreme Court judgment?

Not just triple talaq, talaq itself is not an integral part of Islam. Talaq itself is to be avoided. Talaq is the worst of the permitted things in the sight of Allah. It is allowed only after all avenues of reconciliation have been explored. The Prophet had nine wives. He did not divorce any of them. There were many provocations, but he did not divorce them. He set an example for the rest of us. And yet we have the Chief Justice of India saying that it is an essential practice of Muslims, that it has been around for 1,400 years and therefore enjoys constitutional protection. I have never heard of such a thing earlier. Fortunately, he remained in a minority on the bench. Other judges openly dissented from this view. They had to; it is common sense.

Is the judgment a step in the right direction?

The judgment is absolutely fine. It could have been better, though. The judges stopped with saying that they were setting aside talaq-e-biddat. But instant talaq is only one of them. According to the Quran, every divorce has to be revocable within three months, and preferably be revoked as well. They did not talk of that.

There is a view that the government of India wanted the complete divorce procedure to be stopped by the court, but stopped short of saying that maybe talaq-e-ahsan and talaq-e-hasan have to go too.

I have not heard that. We must remember that the government of India was asked by the court to respond. It did not go there on its own. Be it led by the Congress or the BJP, the government was duty-bound to respond. And what could it have said? That it was okay with triple talaq at one go? It is not possible. In the Quran, men are not just advised; they are more than advised; there is a persuasion to the husband to reconcile in case of differences or even revocable divorce. That makes instant talaq null and void. A period of three months is given to the husband to consider wisely, calmly. If the man takes the divorce back within those three months, either through word or action in the privacy of his home, it is fine, with no third-party intervention. This is talaq-e-ahsan. It is not a form of divorce.

Now supposing after some time, one or two years later, he has another quarrel and divorces his wife—once again, this divorce is revocable within three months. Again, the wife will remain with the husband to give reconciliation a better chance. It is like an incentive for patch-up, but often people throw out the wife. It is nonsense. However, if the husband agrees to reconcile, there is no problem. Since something like this can happen many times, this was a way in which Islam took care of it. Before Islam, it was a rampant practice: men would marry and divorce, then take back divorce. Islam reformed it. Revocable divorce is permitted only twice. After the third divorce, a man cannot revoke it or marry the woman again.

It is a matter of ignorance that people think triple talaq is the only way of divorce. After the first divorce and the conclusion of iddat (waiting) period, remarriage is possible. Within the iddat period, a man can annul divorce with private intimate conduct. The ball is in the husband’s court during the iddat period. After the iddat period, the ball is in the woman’s court. It is the prerogative of the wife, whether she wants to continue or not. If she does, no problem. There can be a simple nikah afresh, without the need for halala and so on.

Here a concession is given: in the Arab world, most divorcees and widows were married immediately after the iddat period. Many used to marry five-six times. No widow used to stay single. Even the Prophet’s wives, except one, were either widows or divorcees. After the third divorce, there is no remarriage. Now the woman is a single independent woman. She may choose to marry another man of her own will. Now supposing he dies or they have a divorce after some time, then she performs the iddat of the second husband. After that, if she chooses to marry her first husband again, it is allowed. It has been distorted into halala, a sort of marriage with the precondition of divorce. Islam has sanctioned a liberal, pro-women law, but it is so badly messed up by our ulema.

The judgment is like the reiteration of the famous Shamim Ara case.

Justice Kurian referred to the Shamim Ara case, saying we have already decided the Shamim Ara case and that in case of divorce, only the Islamic way has to be followed. He was right. They only needed to make one addition, that there is no provision for instant triple talaq in Islam.

The Chief Justice of India did not need to write 272 pages to say that triple talaq is an essential practice of Islam. It is not. He has referred to Christian and Parsi reforms, Hindu reforms and so on. He has quoted 22 pages from my book Muslim Law in India and Abroad. He has spent 30 pages on Quranic verses. But there are only a handful of Quranic verses on talaq. He has quoted all the judgments on talaq. If you delete irrelevant material, only 50 pages would be left of the judgment. Maybe that is why it took more than three months to write the judgment. And Justice Nazeer went along. He merely signed it.

The All India Muslim Personal Board claims that the court agrees that personal laws are fundamental laws and cannot be infringed upon. What is your opinion?

That was said not by the court but by Justice Khehar. What Justice Kurian said has led to the deduction by the AIMPLB that personal laws are fundamental. However, in the same case, the judges have said triple talaq is unconstitutional. There is a paradox there.

There is an interpretation that it will lead to empowerment of women.

That is another extreme. Some women are saying that it is Eid for them. It is stupid. The court has only set aside instant triple talaq. It has not stated clearly what the legal condition will be, if, say, somebody gives triple talaq today. The Court should have said that in the case of triple talaq, whether you say it three times or 30 or 40 times, it will be considered one divorce. But the court has not said so clearly. At the social level, neither the maulvi nor the family will allow this.

We cannot ignore the gender aspect of the judgment. Even the Prime Minister has talked of gender equality after the judgment.

Well, he was waiting for it. But it is time for the ulema to introspect. The ulema claim that the divorce rate among Muslims is extremely low. The fact is that most divorces are not reported. The court is the last resort. Young Muslim women and old Muslim women alike were facing cruelty. The Supreme Court has sought to stop this. But it is a half-hearted attempt.

But do you think the ulema will introspect now?

Who can tell them this? You cannot reason with them. This time they are more cautious. The AIMPLB claims that the decision is in their favour; only Khehar’s judgment is in their favour. They have linked Kurian’s word with his. You cannot blame them for this.

Does the judgment give primacy to the Quran ahead of tradition?

Yes, 100 per cent. It is true of both minority and majority judgments. There is nothing wrong with it. Even Zakia Soman pleaded for a Quran-based law. The judges said the same. When there is no instant talaq among the Shias, members of Ahl-e-Hadith sect and 22 Muslim countries, on what basis can anyone claim that it is an essential part of the faith?

There are fears that it might lead to a uniform civil code.

People will always say that. They said the same thing with the Special Marriage Act, 1954. UCC is not easy in this country. It is not about Muslims alone. The Sikhs have had their own law since 1909. Limited civil code is already there with respect to child marriage, dowry, etc.

Lingayats

Struggling for a new status

THE numerically and politically strong Lingayat community of Karnataka has always had a paradoxical relationship with the Hindu faith, but its demand to be recognised as a separate religion, at a time when the State is scheduled for Assembly elections in months to come, has serious religious and political ramifications.

The community, which has a dominant presence in northern Karnataka, has been the trusted vote bank of the Bharatiya Janata Party (BJP) for about two decades. In fact, it has been the saffron party’s battering ram to make inroads into Karnataka in particular and southern India in general.

Lingayats have been assiduously wooed by Hindutva advocates, but for at least half a century now the community’s leaders have been persistent in their demand that it be recognised as a separate religion outside the Hindu fold. Herein lies a dilemma for the champions of Hindutva: how to maintain the community’s separate identity after aggressively homogenising it within a monolithic vision of what constitutes Hinduism.

The current controversy has its roots in the massive gathering of Lingayats on July 20 in Bidar town to demand legal status for their community as a separate religion. The rally assumed importance not just because of the numerical strength of the gathering and its timing but its insistence that Lingayats and Veerashaivas, together classified in the Other Backward Classes (OBC) category and used synonymously for all administrative purposes, constitute different faiths. The protesters insisted that Lingayats, the “true followers” of the 12th-century social reformer Basaveshwara (Basavanna/Basava), constituted a separate religion, while Veerashaivas were no more than a sect of the Hindu Saivite faith.

Although there have always been doctrinal and cultural differences between Veerashaivas and Lingayats, never before has the community looked so visibly divided. For now, the all-consuming question is whether Lingayats/Veerashaivas can be considered as forming a separate religion or whether Lingayats alone deserve that tag.

With religious heads and their followers sharply divided on the question, the fighting factions, in broad strokes, are those who believe that Basavanna is the founder of Lingayatism, or Lingayata Dharma, and those who consider him as a man who reformed a pre-existing faith called Veerashaivism.

Reform and reaction

Lingayats argue that Veerashaivism, with its roots in the Vedas and Agamas, is not comparable to the revolutionary and egalitarian faith founded by Basavanna, rejecting caste hierarchy and Vedic rituals. The movement welcomed into its fold several artisan communities and people belonging to the lower castes, resulting in an unprecedented social and religious ferment. The large body of literature left behind by followers of this movement in spoken Kannada, called Vachanas, is testimony to this. “Barbers, actors, scholars, peasants, boatmen, washermen, cowherds, shepherds, sex workers and saints, a variety of people with different socio-economic backgrounds, have expressed themselves in these Vachanas, using their everyday experience to communicate their thoughts on religion, philosophy and society,” observes the Vachana scholar O.L. Nagabhushana Swamy in the preface to The Sign, an edited anthology of Vachanas in English translation. About 30 of the 130 Vachanakaras, whose works are available now, were women.

This radical movement (often called “Kalyana Kranti”) culminated in violence when Basaveshwara performed the marriage of a Brahmin girl with the son of a cobbler, breaching the Varnashrama principle.

Although they worship Siva, the followers of Basava argue that their idea of God, Parashiva who is formless, and religious prescriptions are distinctly non-Hindu. It is not surprising that Dalit and backward class movements in Karnataka found inspiration in this movement.

Veerashaivas, on the other hand, are largely followers of the Pancha Peethas (the five mutts, or Hindu religious bodies, located at Rambhapuri, Kashi, Kedar, Ujjain and Srisaila and headed by “panchacharyas”). Basava followers have strongly opposed some of the practices of this sect, such as adda pallakki utsava (devotees carrying seers in a palanquin). Although Pancha Peetha followers regard Veerashaivism to have existed before Basava’s time, they do not agree that Veerashaiva and Lingayat can be separate entities. This has obviously to do with fears that this would fragment their following and reduce their political and social clout.

What makes the distinction difficult in the present context is that, over time, the Lingayat faith has imbibed several of the varna practices and Vedic rituals. The period of political turmoil after the death of Basava and the later assassination of King Bijjala of the Kalachuri dynasty (where Basava served as a minister) is regarded as when these practices may have crept into the religion. The followers of Lingayatism were targeted by the followers of faiths that received royal patronage.

“The political turmoil, influence of Hindu Brahmin religion and social and economic pressure of the times may have forced Lingayata Dharma to accept various features of Hindu Brahmin religion. For example, Lingayats were involved in building of temples and worship of sthavara linga. They gave endowments and donations to Kalamukha Acharyas [of Saiva faith]. Lingayat poets praised Kalamukha Acharyas in their poems. The beliefs, rites and ceremonies that Basavanna had opposed were accepted and followed by Lingayats during this period,” says Hiremallur Ishwaran, an expert on the movement who served as Professor of Sociology at York University, Toronto,in his book Basavanna Hagu Lingayata Dharma (1997).

Dilemma of the faith

Political compulsions and social pressures have constantly reshaped the faith. Interestingly, the seers of the five mutts, who initially opposed any effort to break away from the Hindu faith, have increasingly shown a willingness to compromise on this issue to hold the flock together. Virasomeshwara Swami of the Rambhapuri Peetha, the first to oppose the demand of Lingayats for recognition as an independent religion, is now willing to support it on the condition that the nomenclature of the new religion be “Veerashaiva/Lingayat Dharma”. He said in various interviews that though he was personally opposed to the creation of a new religion, he changed his stance because of “pressure from the followers”.

There is a growing suspicion that the demand for a separate religious status is not motivated by a purely spiritual impulse. With Lingayat/Veerashaiva mutts running a slew of educational institutions, recognition as a minority religion will bring them several benefits. This lobby is said to be behind the demand. Some of the Lingayat mutts, which were known to be egalitarian in spirit as opposed to Brahminical institutions, now have overt political allegiances. B.S. Yeddyurappa, the BJP’s State president, doled out large sums of public money to some of these mutts in successive budgets when he was Chief Minister.

Yeddyurappa’s own position and that of his party in the debate has been a curious one. Predictably, his first response was to oppose any attempt to break away from the Hindu fold. But his later remarks have been mellow, restricted to blaming the Congress for engineering a split in the community and making a “poll gimmick” of the issue. He said the issue ought to be resolved by religious heads through consensus. What has embarrassed Yeddyurappa considerably is his attestation of the very same demand in 2013 when the All India Veerashaiva Mahasabha presented it to the Centre. The Mahasabha has, since the 1940s, made appeals for separate religious status for “Lingayat/Veerashaiva”.

The Mahasabha, headed by Shamanur Shivashankarappa of the Congress, has now appealed for a “united fight” by sinking all doctrinal divisions. Significantly, BJP leaders within the community admit, on condition of anonymity, that the party high command has sent a strong directive not to issue any statements on the subject for now. The party’s national president Amit Shah, during his recent three-day visit to Bengaluru, refused to engage with the question and dismissed it as an issue “that will not last long”.

Congress’ new strategy

There is no doubt that the Congress is hoping to gain electorally from fuelling the demand for a separate religious tag. Perhaps the Congress hopes that a split in the Lingayat/Veerashaiva group, which constitutes about 17 per cent of the population and is the BJP’s support base, will help it. The party and Chief Minister Siddaramaiah have realised that they need more than their traditional Ahinda (Kannada acronym for minorities, backward classes and Dalit) votes to win the next elections. It is no coincidence that Siddaramaiah recently made displaying of Basaveshwara’s portraits mandatory in all government offices. In fact, the first appeal to him to support the community’s demand for separate religious identity came at a function organised by the Mahasabha to thank him for this gesture.

As the political analyst Sandeep Shastri puts it, the Congress is attempting an “Ahinda-plus” experiment by egging this agitation on, but warns that this could be a treacherous path. There is no clarity yet on which section of the “socially conservative community that has rarely allowed divisions” is really behind this demand. While several religious heads in north and central Karnataka are vocal in their support for this cause, the powerful mutts in southern Karnataka have been conspicuous by their silence.

“The Congress is throwing a pebble and watching how far it can go,” said Shastri. The State Congress has not had a tall leader from the community since Veerendra Patil, who was removed from the post unceremoniously in 1990. “The Congress has not been able to recover the community’s votes or project a Lingayat leader with pan-Karnataka acceptance since then,” he said.

A split in the Lingayat/Veerashaiva votes could pay electoral dividends to the Congress. In fact, the BJP’s defeat in 2013 is attributed to Lingayat votes being divided between the BJP and Yeddyurappa’s breakaway Karnataka Janata Paksha (KJP). With Yeddyurappa back in the BJP, the Congress needed a new strategy. But the Congress seems to be aware of the risks involved in being seen as deliberately breaking the community for electoral benefits. There is no guarantee that the demand and the agitation will pick up steam and be sustained.

This perhaps explains why the party’s initial enthusiasm appears to have waned. While five Lingayat members of the Siddaramiah Cabinet had announced their decision to go on a tour of the State to gather the opinion of seers and leaders of the community, only two have set out on this mission, with the rest not sure about their stand on the nomenclature issue. Choosing his words carefully, the Chief Minister said he would forward the demand to the Centre if representatives of the community submitted a proposal burying their differences. “Later, the government will examine it from the legal and constitutional point of view,” he said, suggesting that the party may want to keep the issue simmering.

After the rally in Bidar, there was an equally large mobilisation of Lingayats in the border town of Belagavi on August 22, with an estimated two lakh persons participating in the event. In speech after speech, political leaders and mutt heads took on the Rashtriya Swayamsewak Sangh (RSS) chief Mohan Bhagwat for his advice that the community drop the demand for a separate religious status in order to “strengthen” Hinduism. They asked him not to “meddle in [the affairs of] other faiths”. Not surprisingly, no BJP leader participated in this rally. Similar rallies have been planned in Maharashtra.

Political ramifications apart, the point raised by Siddaramaiah on the legality of declaring a “new religion” could eventually become crucial, considering that similar efforts in the past have not gone very far.

In 1990, the Mahasabha approached the Karnataka High Court seeking a separate code for the Veerashaiva/Lingayat community in the Census. The High Court dismissed the petition on the grounds that Census instructions to the enumerators allowed all religions to be recorded faithfully as reported by the respondents. Thus, all religions had a fair and equal opportunity to be recorded during the Census and provision of a code was only an administrative convenience, the court said. Again, in 2013, the Mahasabha submitted a memorandum to the Union Home Minister seeking a separate code number/column/abbreviation for recording the religion of Veerashaiva/Lingayata in the Census Form and recognition for it as an independent religion. The Minister forwarded the memorandum to the Registrar General of India for consideration. In her reply, the Assistant Registrar General of India, Pratibha Kumari, cited the 1990 court order, Census reports and works of British writers to reject the plea.

Pratibha Kumari cited Census reports of pre-Independence India (1891, 1901, 1911 and 1931) in which the community was recorded as “caste Hindu”. She went on to argue that standard ethnographic literature also substantiated the fact that Lingayat/Veerashaiva was a sect evolved from Hinduism, which rejected the traditional temple cult dominated by Brahmin priests. “As described by C.B. Brown [in an essay on the creed, custom and literature of the Jangamas in Madras Journal Literature of Science, January 1840, page 53), Lingayats are anti-Brahminical worshippers of Siva known as Virshaiv or Lingadharis who are easily recognised by their wearing small idol either hung on the chest or bound on the arm. They are disciples of Basava, whom they regard as a form of God Siva. They pray to the images they wear, which they salute as Basava. They are widely spread throughout south India,” she said in the reply.

While giving reasons for rejecting the proposal, Pratibha Kumari quoted Edgar Thurstone and K. Rangachari’s Castes and Tribes of Southern India in which Lingayats were described as “a peaceable race of Hindu Puritans”. She inferred, on the basis of these documents, that Veerashaiva/Lingayat was a Hindu sect, not an independent religion.

However, those at the forefront of the current agitation say that the problem earlier was with nomenclature. “Lingayat and Veerashaiva are different. Lingayat is an independent religion founded by Basavanna and we should stake our claim with that nomenclature,” Sri Siddhalinga Swami of the Tontadarya mutt of Gadag said. Seers of several Virakta mutts (established after Basavanna, unlike the Pancha Peethas) share the opinion that it is crucial to establish this distinction.

“If we approach the same authorities with the same nomenclature, their reply will remain the same,” Sanjay Makal, president of the Vishwa Lingayat Mahasabha, said. He has been collecting citations from Vachanas, records of earlier court observations, precolonial historical documents and postcolonial scholarly works to substantiate this claim. For instance, he said the Chief Census Officer of the Bombay Province under British rule, Reginald Edward Enthoven, had in his “Essay on Organisation of Lingayats; Little Lingayat Religion” explained how Lingayats were different from Hindus. Many Vachana scholars, including M.M. Kalburgi, who was shot dead in 2015, had consistently argued that Lingayatism is a distinct faith, often incurring the wrath of orthodoxy.

These issues are widely debated in meetings conducted at religious mutts and other venues to garner support for the demand for a separate religion. If sources are to be believed, there is increasing polarisation rather than consensus on the issue.

If a consensus is reached and the issue moves to the next logical level, how will the Indian legal system look at a set of people seeking recognition as a new religion, breaking away from Hinduism?

Constitutional expert and former advocate general Ravivarma Kumar said that while the Centre or States had no role in the formation or bifurcation of a religion, nothing could stop an individual or a group from forming or propagating a religion. The Indian Constitution gives every person the right to freely “profess, practise and propagate” any religion of his or her choice. “In exercise of this right, a person can embrace any religion. The Central government’s role is limited to recognising or not recognising it as a minority religion,” he said.

The Centre can do so under two laws, the National Commission for Minorities Act, 1992, and the National Commission for Minority Educational Institutions Act, 2004. Ravivarma Kumar pointed out that though some provisions of law, such as the Hindu Marriage Act, 1955, were applicable to Jains and Buddhists, these religious groups were regarded as minority religions. He admitted that there were no specific provisions in the Constitution for recognising a new religion. “But where is the bar on it?” he asked.

While mass mobilisation and constitutional issues form one aspect of the debate, some scholars call for greater intellectual clarity and introspection before taking up the demand legally. K. Marulasiddappa, scholar and Kannada writer, has no doubt that Lingayatism is in its essence a separate religion. However, he is suspicious of the ongoing agitation and underlines the need for greater “cultural and religious clarity” as the first step. Tracing the history of Lingayatism, he said the basic ideological framework of the 12th century movement had been consistently diluted since the 14th century.

“In its present form, the Lingayat faith is hard to distinguish from the dominant Hindu faith. This is because the Hindu Saivite elements that began entering the faith in the post-Basava period have grown strong to a point that the egalitarian spirit now stands completely diluted,” Marulasiddappa said. Even the caste hierarchy, which was anathema to Basavanna, is an entrenched practice in the community.

The ongoing agitation has turned into “Congress versus BJP politics”, with the former keen to break the BJP “vote bank” and the latter striving to preserve it as part of the Hindutva bloc. Marulasiddappa believes that there is little meaning in the current mobilisation if there is not even an effort to recover the ideal of a classless and casteless society that Basavanna and his fellow Vachanakaras dreamt of. “The calculation now is entirely on reservation and other benefits of being recognised as a minority religion. This is tragic,” he said.

As things stand today, there is no predicting the direction in which the renewed fight for the status of a separate religion for Lingayats will head on the social, religious, political and legal fronts.

Uniform civil code

Demands of diversity

AT least since the 2002 Supreme Court case of Shamim Ara vs State of U.P. 2002 (7), SCC 518, the position in Muslim personal law has been that arbitrary triple talaq is invalid. A man can only divorce his wife by formal performative utterance following attempts at reconciliation with arbitrators; and he must show reasonable cause for divorce.

Given this 15-year-old decision, the significance of the Supreme Court decision on August 22 that instantaneous triple talaq is legally invalid is not entirely clear. The divisions in the Supreme Court—there was no clear majority on the most important legal questions—mirror the deep divisions that characterise the contemporary public debate on personal laws.

Efforts to reform personal laws have reached an impasse. Those opposed to the existing system of personal laws advocate replacing it with a constitutionally directed uniform civil code (UCC). Proponents of such a reform seek to rectify perceived gender-related shortcomings of the current system as well as its supposed tendency to promote religious communalism and undermine national unity.

Those opposing a UCC worry that a negative subtext about Indian Muslims accompanies calls for its enactment and that a UCC would reflect Hindu norms to the exclusion of others. Others have questioned how any meaningful public debate around a UCC can occur in the almost complete absence of knowledge about its content; there is indeed an element of absurdity in this when we reflect on the heat and passion with which this debate—on a code with no agreed-upon content—is conducted. Those who oppose the enactment of the UCC and defend the personal law system cite religious freedom and minority group autonomy and anticipate the danger that a UCC will amount to forced and oppressive assimilation.

These competing views have resulted in a stalemate that seven decades of debate, activism and advocacy have not overcome.

Reorienting assumptions

While the UCC debate in India is deeply divisive and polarised, its battle lines encourage a number of widespread and mistaken assumptions on both sides. One assumption that saturates debate is that uniformity is the highest virtue of any family law regime and leads to better and more just outcomes for women. This assumption has been thoroughly undermined by researchers in this area. As Flavia Agnes argues, “Rather than uniformity in law, women need an accessible and affordable justice system.” Once we set aside the blinkers that keep us transfixed to the ideal of uniformity, other options emerge. One in particular, alternative dispute resolution (ADR), holds out promise in family law disputes.

The constitutional directive to establish a UCC does not preclude ADR, which has a settled place in India. Private arbitration, conciliation and mediation are recognised, facilitated and encouraged in many areas of law—including, to some degree, in family law. Under Indian law, as in most jurisdictions, arbitration is binding on the parties to it. Mediation and conciliation are normally not binding unless parties sign a settlement agreement binding them to an outcome. Judicial decisions reveal a range of family law disputes that have been referred to binding arbitration. The provisions in the Family Courts Act, 1984, regarding counsellors may also point to an appetite for alternative forms of dispute settlement.

Another assumption that pervades debate about a UCC is that we have to choose between a family law regime that is just to women and one that is sensitive to religious and cultural difference; we cannot have both. This assumption can also be challenged. Families display diversity in their constitution, norms, values and practices. When disputes arise, families have different needs. A one-size-fits-all approach to family law is not suited to supporting family members to resolve their disputes while protecting their interests and respecting their values. Across jurisdictions, there is growing acknowledgement that family law must be sensitive to culturally and religiously diverse users. This is important because family law plays an important role in ensuring that minorities, including children, have access to meaningful means of practising their culture and religion. If minorities are compelled to follow state family law, and the law solely reflects the norms of the majority, minorities are disadvantaged to the extent that they are denied the opportunity to resolve their disputes in a way that aligns with their cultural and religious norms.

Sensitivity to the needs of minorities is important because state regulation is not the only game in town. If the state system of family justice is not sensitive to people’s cultural and religious values, there are alternative fora for the resolution of their disputes, including khap panchayats (caste-based village councils) and religious bodies such as the Dar ul Qaza . If the state system wants family disputes to be resolved under its supervision, it must be responsive to the demands of diversity.

As Farrah Ahmed has previously proposed in her scholarly work, a two-pronged plan for the reform of personal laws is needed. First, consistent with the constitutional directive, a uniform family law (or UCC) should be enacted in India that is sensitive to the needs, norms, culture and aspirations of minority groups. Second, and simultaneously, Indian family law should give people the option of using fair and just religious ADR mechanisms for their disputes. The outcomes of such religious ADR would be recognised by the state, and, through state-imposed threshold requirement, substantive and procedural safeguards would be guaranteed.

Not all disputes currently governed by the personal law system would fall within the ambit of religious ADR. For instance, statuses, such as marriage, divorce and adoption, are not usually subject to religious ADR. But many would. In particular, religious ADR could be used to resolve the financial terms of a divorce, disputes relating to the maintenance and division of marital property, and disputes relating to inheritance.

The contractual norms governing religious ADR, including the procedure to be followed, and selection of the person(s) who will arbitrate, mediate or conciliate the dispute, can be decided privately by the parties. This degree of autonomy is a celebrated characteristic of ADR as it provides for flexibility of process and party autonomy. But the parties could also approach existing organisations which conduct religious ADR. These organisations may have standard-form contracts that assist parties in establishing an ADR mechanism to resolve disputes. They can also provide access to arbitrators, mediators, conciliators, legal practitioners, social workers and other state actors such as the police.

Perhaps the most important component of this proposal is that outcomes of these disputes would be state-recognised. It is primarily through the process of recognition that the state can ensure that the religious ADR process meets certain minimum thresholds. In particular, there are three safeguards which must be introduced to avoid ADR processes and outcomes which are unjust or unfair. First, those who participate in ADR must be able to do so freely, particularly given that the account of dispute resolution systems in India shows that they are sometimes coercive, using tactics of social boycott, shame, intimidation and ridicule. Second, religious ADR recognised by the state must not use norms that disadvantage women. Third, the processes used in religious ADR must be procedurally fair and just.

Safeguards for consent are already built into Indian law. Contract law doctrines of unconscionability, coercion and undue influence offer some protections for ADR agreements, or any contract, award or settlement arising out of the ADR that were not entered into freely. Further safeguards must be developed which would allow courts to intervene even in circumstances that do not rise to the level of unconscionability. As the Canadian Supreme Court suggested in Miglin v Miglin [2003] 1 SCR 303, it is important that courts are alert to “circumstances of oppression, pressure, or other vulnerabilities” when reading ADR agreements and “assess the extent to which enforcement of the agreement still reflects the original intention of the parties”.

The state must not recognise ADR processes, whether religious or not, which are procedurally unfair, based on unjust norms, or which have a patently unjust outcome. Beyond this, steps must be taken to foster, encourage and assist organisations such as the All India Muslim Women’s Personal Law Board, women’s Sharia courts and “jamaats” run by women across the country. These organisations develop gender-just interpretations of religion suited to religious ADR. They have also demonstrated a willingness and capacity to offer practical assistance to Indian women in conducting ADR and assisting with legal aid as well as in advocating legal reform. The state must license or accredit their ADR services so that the outcomes of their processes are readily recognised and enforced by state courts. Equally the state could refuse to accredit or license religious ADR organisations that do not operate on gender-just principles. The state must also offer free or subsidised training to these organisations on the threshold requirements their processes must meet for state recognition and enforcement. Finally, the state must fund such organisations and publicise the availability of their services.

Merits of the proposal

The proposed model of personal law reform has two clear virtues. First, its incorporation of state-sanctioned religious ADR ensures an accessible and just family dispute forum for women. The benefits of religious ADR for women must be assessed against other dispute resolution alternatives. One option is to go to court. However, state courts do not currently offer disputing family members, particularly women, accessible and affordable justice. The reasons for this are complex.

Flavia Agnes notes that courts may be perceived as “distant [and] alien” and there is distrust and “fear among the general public regarding courts and lawyers”. Courts are not seen as efficient or accessible options for dispute settlement since it is widely known that litigation in courts involve intractable delays and great expense.

These reasons are why many prefer another option: cheaper, speedier and more accessible dispute resolution from bodies such as khap panchayats and religious bodies such as the Dar ul Qaza . These bodies have little or no interaction with the state courts though, and they therefore lack important safeguards, such as access to courts, natural justice, prospective rules, and other threshold requirements. These safeguards would be available to the bodies governed by the religious ADR mechanisms. Thus, religious ADR has the unique potential to offer dispute resolution that meets the requirements of accessibility and affordability as well as justice and fairness.

The second virtue of the proposed reform is that religious ADR affords autonomy and recognition to religious minorities to a greater extent than the personal law system can. A recent survey on Muslim women’s views on Muslim personal law conducted by the Bharatiya Muslim Mahila Aandolan found: “An overwhelming 86 per cent wanted the community-based legal dispute resolution mechanism to continue but at the same time wanted the functionaries to be made accountable to law and to principles of justice. They wanted the government to help ensure this accountability through a legal mechanism. While 88.5 per cent women wanted a partnership between the court and the qazi, 90 per cent women wanted qazis to be brought under legal accountability mechanisms.”

This overwhelming view accords remarkably closely with the proposal defended here. Religious ADR would allow community-based organisations to retain a role but hold them “accountable to law and to principles of justice” using the “carrot” of legal recognition.

As Farrah Ahmed has argued in Religious Freedom under the Personal Law System, religious ADR leaves room for more autonomy for religious communities than the personal law system currently does. Under personal law, communities are unable to determine the boundaries of their own membership, the norms by which they are governed, or their representatives and leaders. In each case, the state assumes sole decision-making responsibility. If community organisations offered religious ADR, the state would recognise processes which were created and developed by religious communities, and were up to them, within the limits of the thresholds discussed earlier.

Moreover, since religious ADR allows parties to resolve disputes on the basis of religious norms aligned with their beliefs, it facilitates religious practice. Parties could use religious ADR to ensure that their disputes are settled according to their own religious norms, and, furthermore, settled by people that they trust to interpret those norms. Further, those who reject religion or have no religious beliefs would be free to make ADR arrangements on the basis of other norms, or indeed to follow uniform family laws. Thus, supplementing uniform family laws with religious ADR gives an opportunity to practise religion in family law matters to those who want it. This would allay the concerns about oppressive assimilation that are often raised against the enactment of uniform family law.

The need for reform of personal laws is clear: their rules are unjust, harmful, discriminatory against women, and contrary to constitutional guarantees of gender equality. Once assumptions that have become entrenched in the UCC debate are questioned, the merits of the proposed model of family law reform are evident. This article has defended a proposal that seeks to address the stalemate that has arisen in Indian family law from the tension between a constitutional directive to enact a UCC and the deep concerns about the UCC as well as how it is debated. The article has defended the implementation of a UCC in India supplemented by a well-regulated state-recognised regime of religious ADR. The hallmark of this proposal, setting it apart from informal dispute resolution systems already widely practised in India (in khap panchayats, for instance), is that its outcomes would be recognised and enforced by the state if minimum thresholds of justice and fairness are met. It is hoped that a proposal of this kind would help the many citizens who lack access to affordable, speedy and accessible justice.

Dr Farrah Ahmed is an Associate Professor at Melbourne Law School, University of Melbourne, and the author of Religious Freedom under the Personal Law System published by Oxford University Press in 2016.

Luke Chircop is a JD student at Melbourne Law School.

Triple talaq

The gender question

JHUMA SEN the-nation

THE Supreme Court on August 22 pronounced its much-awaited judgment in Shayara Bano vs Union of India, a case that challenged the constitutional validity of instantaneous talaq (talaq-ul-biddat). The court, by a three-two verdict, invalidated instantaneous talaq, holding it to be un-Islamic and unconstitutional.

While this signals a significant step in the campaign for gender justice in personal law that women’s groups (and in this case, Muslim women’s groups) have been shouldering, it will not be uncharitable to say that the judgment is a classic case of a gender-just outcome without a gendered reasoning.

For one, the judgment is unable to articulate a jurisprudence of gender justice, nor does it evolve a framework of constitutional governance by making religion, non-discrimination and Constitution speak to each other. The immense possibilities of the judgment are stunted by limited and, in some cases, regressive reasonings extended by the bench to arrive at its findings.

The vacation bench set up with five judges at the very outset of the proceedings had delineated the primary issues that were to be dealt by the court; first, whether instantaneous talaq and nikah halala are essential practices of the Islamic faith and second,whether these practices violated any fundamental right under the Indian Constitution. The court stated that it would not go into questions of polygamy nor would it open the question of reconsidering a 1952 Bombay High Court judgment in Narasu Appa Mali where the court had stated that uncodified personal laws were not laws within the meaning of Article 13 of the Constitution, and, therefore, need not be tested against its provisions. What essentially then remained before this court to examine was the validity of the instantaneous talaq alone.

Islamic law of divorce is of three types—talaq (modes of divorce at the instance of the husband), khula (divorce at the instance of the wife) and mubarat (mutual consent divorce). Instantaneous talaq, unapproved by the Prophet himself, emerged in the 2nd century in some Sunni schools, mostly Hanafi, and was validated later by certain courts in British India, who erroneously considered Muslim marriages as loose unions that could be dissolved by a casual utterance of talaq. This led to a 1932 Privy Council decision in Rashid Ahmed where it was inaccurately agreed that instantaneous talaq was bad in theology but good in law. It was only much later that Indian courts started reinterpreting personal laws to indicate that what was good in theology could only pass the test of being good in law.

A series of High Court cases leading up to the Supreme Court decision in Shamim Ara (2002) reaffirmed that an attempt at reconciliation was an essential condition precedent to talaq, something that was not possible in instantaneous talaq. In other words, the position that emerged with Shamim Ara was that what is bad in theology must be bad in law, marking a clear departure from the earlier position.

In spite of Shamim Ara, reported cases of instantaneous talaq were on the rise and a 2015 report by the Bharatiya Muslim Mahila Andolan,titled “Seeking Justice Within Family–A National Study on Muslim Women’s Views on Reforms in Muslim Personal Law”, indicated that 92 per cent of Muslim women wanted a total ban on instantaneous talaq. This was complicated by the fact that the All India Muslim Personal Law Board (AIMPLB), dominated by men, failed to adequately address issues such as instantaneous talaq that affected only women.

The instantaneous talaq case (or more popularly, albeit erroneously, “triple talaq” case), which came before the Supreme Court in a batch of petitions from survivors and a suo motu petition in 2015, therefore, faced several challenges. The bench was to determine the relationship between personal law and the Constitution; it was also expected to determine the constitutional validity of instantaneous talaq in accordance with the law. This was, however, a more complex exercise than it appears, for the court needed to first ascertain if it would adopt a narrow or a broad position. A narrow view was to only determine the relationship between instantaneous talaq and Muslim personal law; a broader approach would not stop at that, but would go further to determine the relationship between personal law and the Constitution.

At a meta level, a constitutional court was also expected to probe the relationship between religion and the Constitution itself, asking if both were constitutive of each other and what role they play in constitutional governance of a nation state. More significantly, it was expected that the court would unpack the meanings of non-discrimination and equality that were central to the claims of gender justice for Muslim women. Such a historic opportunity to articulate a framework for gender justice seldom arrives before the court. Even when it arrives, the court is known to cunningly dodge issues of discrimination, sometimes by deference to the legislature and at times by interpreting statutes ( Mary Roy vs State of Kerala, Geetha Hariharan vs Reserve Bank of India, for example) to mitigate discriminatory aspects of personal laws. The court in the instantaneous talaq case chose the narrow approach and declined to interrogate the Narasu ruling or explore the relationship between personal laws and the Constitution.

In Narasu, Chief Justice M.C. Chagla and Justice P.B. Gajendragadkar, through their separate yet concurring judgments, answered the question whether personal laws applicable to Hindus and Muslims are laws in force within the meaning of Article 13(1) of the Constitution and must in order to survive 372(1) and Article 13(1), satisfy the requirements of Articles 14, 15 and other Articles of Part IIIin the negative. Justice Gajendragadkar’s reasoning relied on a technical reading of Article 13(1) that it contemplated only statutory laws and that personal laws cannot be considered statutory laws and hence were outside the scope of Article 13. When it comes to testing the constitutional validity of personal laws, although courts have been careful to adopt a case-by-case approach instead of a universalised one, the ghost of Narasu has not been exorcised with a vast domain of uncodified personal laws remaining outside the realm of constitutional scrutiny. The first failure of the Shayara Bano judgment is the refusal to engage with the Narasu question.

Minority Opinion

The AIMPLB had submitted that triple talaq is a matter of faith, having been practised for 1,400 years, and is outside the purview of judicial scrutiny. The minority opinion (of Chief Justice J.S. Khehar and Justice S. Abdul Nazeer) relies on this, albeit in a contradictory manner. The minority opinion on the question of the validity of triple talaq finds the practice discriminatory yet advocates its protection by holding that “the stature of ‘personal law’ is that of a fundamental right”. This is truly inexplicable, because personal law neither is a fundamental right nor is protected by Article 25 of the Constitution, which protects individuals, not “laws”.

Then they go on to add, by way of a strange analysis, that personal law is only bound by “public order, health, and morality” inscribed in Article 25(1), implying that instantaneous triple talaq does not offend gender equality and non-discrimination, which go at the heart of constitutional morality.

Indeed, in paragraph 193 of the judgment, the Chief Justice of India reasons that “it is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”; and yet he carefully avoids establishing that instantaneous triple talaq is an essential practice of Islam, as mandated by the essential practices test itself. For a constitutional court to reason thus, albeit in a minority opinion, that religion is “a matter of faith, and not of logic” and is protected from constitutional scrutiny is acutely disturbing.

Tomorrow, if a community decides that bride burning is a matter of faith, and follows no logic, will a constitutional court not rise to the occasion, scrutinise it and declare it unconstitutional? The AIMPLB had stated in its submission that personal laws were a matter of faith, like Ayodhya being the birthplace of Rama was a matter of faith for Hindus. The frightening impact of this logic cannot be emphasised enough.

The majority opinion (Justices R.F. Nariman, U.U. Lalit and Kurian Joseph) adopts different reasons to invalidate instantaneous triple talaq. Justice Nariman, writing for himself and Justice Lalit, concludes that the practice is unconstitutional because it is arbitrary. He finds the Muslim Personal Law (Shariat) Application Act, 1937, had codified Muslim personal law, including the practice of triple talaq, which rendered itself to constitutional scrutiny.

He reasoned that because instantaneous triple talaq allowed Muslim husbands unbridled power to divorce their wives, without any possibility for reconciliation, it would be arbitrary, failing the test of Article 14 of the Constitution, which mandates equality before law. Thus, arbitrariness becomes the reason for invalidating triple talaq, whereas non-discrimination based on sex inscribed in Article 15, which ought to have been the primary reason, and spiritedly argued by the petitioners, remains secondary.

The Constitution Bench refuses to acknowledge here that non-discrimination is not merely equality’s subset. The idea of non-discrimination is distinct from the idea of equality. If arbitrariness negates equality and is thus a violation of Article 14, it takes a different route in case of non-discrimination. Derogation of rights in case of the latter is not done by arbitrariness in state action. Au contraire, it is through a systematic deployment of power horizontally between classes and vertically by the state.

Discrimination cannot be contained by arbitrariness alone. In Madhu Kishwar vs State of Bihar, the court, while looking at gender, observed this and noted that “the rules of succession are indeed susceptible to providing differential treatment, not necessarily equal”.

One cannot help but be dismayed at this lost opportunity for the court to articulate a gendered reading of the Constitution drawing from Article 15. It is distressing that the judges did not entertain the question of non-discrimination; indeed, the express silence on the question of non-discrimination is telling in the face of the fact that the campaign to abolish triple talaq is inextricably linked to the emergence of Muslim women’s activism over the past decade or so, and the petitioners in this case bare testimony to that.

The second strand of the majority opinion (Justice Joseph) offers a crisp reasoning to invalidate instantaneous triple talaq as un-Islamic. He effectively reiterates multiple High Court judgments leading to the 2002 Supreme Court judgment in Shamim Ara vs State of U.P. to rule that instantaneous triple talaq is invalid because it leaves no scope for reconciliation as required by the Quran and is hence bad. What is bad in theology must be bad in law, he holds.

Interpreting theology

While this approach, that is a secular court interpreting theology, has been largely controversial in the past ( Shah Bano), in a personal law system such as ours, this cannot be entirely avoided in a legal-pluralist paradigm. In fact, this conundrum has played out in the Indian context between legal pluralists and secular modernists on the question of reform of religious personal law since the making of the Constitution.

Reforms of the post-Independence period, to borrow from Flavia Agnes, “privileged modernisation, codification, and unification as key elements of progressive development”. While the early 1950s saw the attempt by the nascent nation state to “secularise” the legal system, most well-meaning attempts at “gender justice” proved to be detrimental for women living outside the traditional conjugal family. The Constituent Assembly debates, too, bear testimony to the conflict between pluralists and secularists, with the constitutional framework choosing to hold on to the personal law system.

It would have been interesting to see what opinion Justice Kurian Joseph’s “swing vote” would have provided about the elephant in the room—uncodified personal laws and whether they are subject to the test of the Constitution crystallised in Narasu. But he avoids the subject like the rest and one does not know why. The saving grace of this missed opportunity is Justice Nariman observing that the wrong of Narasu could be corrected in an appropriate case in future. That said, Shayara Bano will remain significant for two reasons—first,its significance in marking a signpost moment of the women’s movement in India, and second,the implications the judgment may have in popular vocabulary and imagination.

In recent years, a growing number of Muslim women in India have been publicly calling for personal law reforms. In articulating their rights, they refer sometimes to the Quran, sometimes to the Constitution and sometimes, to borrow from Shaista Ambar of the All India Muslim Women’s Personal Law Board, they “walk with the Quran in one hand and the Constitution in the other”.

This by no means is an easy task. How does any woman negotiate and navigate the state structures and the dictates of the community? History has shown that she perennially oscillates between the state and the community, navigating the pulls of culture, religion and law, be it in the nationalist resolution of the “women’s question” (Partha Chatterjee) in social reform in the early and mid 19th century in Bengal or the agitation surrounding the Hindu Code Bills. In the triple talaq discourse, the Muslim woman rooted in a “communalised polity” (Flavia Agnes) is imagined as a handmaiden of the majoritarian Hindu state when she chooses to exit the religious personal law system and approach a constitutional court and argue for her rights as an equal partner in marriage, or as a victim of oppressive religious personal law of the Muslim other when she does not . The Muslim woman citizen here does not remain an individual, unmarked bearer of rights but a subject who is a product of state, community and gender.

Shayara Bano epitomises this struggle to reframe the category of “Muslim women” while also highlighting how these women-led networks are challenging the authority of the religious elites to represent them. This is the true victory of Shayara Bano.

Jhuma Sen is an Assistant Professor at O.P. Jindal Global University.

Interview: Zakia Soman

‘India needs codified Muslim family law’

AKSHAY DESHMANE the-nation

ZAKIA SOMAN, one of the petitioners in the triple talaq case, has campaigned for the past decade against triple talaq through the Bharatiya Muslim Mahila Andolan (BMMA), an organisation she co-founded. In this interview, she responded to criticism about her organisation’s so-called links with the ruling dispensation by pointing out that for some “the time for gender justice is never right”. Excerpts:

Your thoughts on the Supreme Court judgment.

It is a welcome judgment. It could have been better and forthcoming. If all five in the bench had concurred, then they would have thought further. They could have, for instance, commented and come out with a workable and at the same time gender-just kind of a solution, a procedure [for divorce].

A section of opinion holds that the procedure is there in Sharia, that implementation is lacking.

When there is talk of reforms in Muslim laws, all of those who defend Sharia become defensive. And they start saying that everything ideal is there in Sharia. Then why did so many women feel compelled to go to courts? There is a problem in the practice [of talaq] because there are misinterpretations [of Sharia] which back this practice. This [Muslim] Personal Law Board took so long to admit that triple talaq is not Quranic. But there are still ifs and buts.

So, the BMMA is opposed to Sharia?

Yes. We are very clear that the word or message of Allah is found in the Quran. Sharia is man-made. Now, why should we agree to laws drafted by men? It has provisions favourable to men and they justify their unjust behaviour in the name of Sharia. So we ask: who has made this law and were women consulted while making it? Do women who get thrown out of their homes through triple talaq get asked what they feel about it? It is a fight against patriarchy.

Does Sharia need reform in India?

We are very clear that India needs a codified Muslim family law based on the Quran, which has equal rights for women in all aspects of life, not just in marriage and family but in society also. That is our constitutional right. You made a Hindu Marriage Act in 1955, you made a Hindu Succession Act in 1956. Why has Parliament not passed a Muslim Family Act? Parliament has also amended, from time to time, the Christian marriage and divorce Act. If there are laws for other communities based on their religious texts being reconciled with the Constitution, why have Muslim women been deprived of that legal protection?

What do you expect from the law that Parliament has been asked to draft?

We want Parliament to bring a Muslim family law based on the Quran and conforming to the constitutional values; we are very clear that there is no clash between the two. Since 2008 we have been working on a draft Muslim family law and we have spoken with 100,000 women across the country. In a meeting in Murshidabad district in West Bengal, women told us they want to ensure that the age of marriage should be 18 or 21, triple talaq should be prohibited, punishment should be given to those practising halala , polygamy should be illegal, and kids’ custody should be with the mother. All of these things are there in a draft we have been working on. We will share it first with women parliamentarians.

Can a uniform civil code help Muslim women?

A uniform civil code is all about politics and not gender justice. It is a totally separate issue. It is an issue for the entire Indian population to consider. Let’s not call it uniform civil code, let’s call it common secular code. It is desirable for gender justice. But a common secular code can be brought about only when the whole society is empowered; when there is a history of women and girls getting equal treatment; when women, especially, are empowered to have a choice, not just legally but also socially. For now, the Special Marriage Act needs to be strengthened. It does not cover inheritance and property related issues. So make it a comprehensive law and popularise it, and teach girls in schools that it is their right. Let her choose whether she wants her saptapadi and kanyadaan marriage or a nikaah or a church wedding or a registered marriage.

How do you respond to allegations that you are facilitating the government and ruling party’s agenda?

Our mission started over a decade ago and we have been steadfast in it. Our mission is gender justice in Islam coupled with equal citizenship for women in the real sense. Now, it so happens that in the last election, the UPA was defeated and the NDA came to power. It is not of our making. The people elected this government, and as far as triple talaq is concerned, this government’s affidavit was correct. That is all there is to it.

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Oct 9,2020