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COVER STORY

25-09-2020

Criminal Law Reforms September25

Analysis of the need to form a committee to reform criminal law.

Briefing

Authoritarian State and Criminal laws

Hidden agenda behind criminal law reforms?

Kirti Singh cover-story

At a time when a pandemic is raging throughout the country and people are not able to live and interact normally and many poor and vulnerable sections of the population are struggling with issues of life and livelihood and barely surviving, the Ministry of Home Affairs has set up a Committee on Criminal Law Reform. The committee is expected to overhaul the entire gamut of laws dealing with the criminal justice system. It is supposed to look at and suggest amendments to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act. The time frame for carrying out this exercise is about six months. This is not possible even in normal times, let alone at a time of crisis.

The committee has been strongly criticised for the hurried manner in which it is trying to bring about reforms without adequate public consultation. It consists of five men—three law professors, one retired district judge and a senior lawyer—who have most likely been approved by the government. The lack of wider representation has been noted by, among others, women lawyers and civil society groups, who have pointed out that the committee does not have a woman who has worked on women’s issues. or any representative from marginalised groups such as the Scheduled Castes/Scheduled Tribes (S.Cs/S.Ts), minorities including religious and sexual minorities, and workers from organised and unorganised sectors. Inclusion of representatives from these sections would have ensured that those who bear the brunt of the criminal law processes on a daily basis have some say in their reform.

In a letter emailed to the committee on August 21, legal experts and academics/scholars from across India and from other countries have objected to the setting up of a committee to deal with a subject of such magnitude at a time when there is a humanitarian crisis and democratic institutions are in a state of “suspended animation”. They pointed out that the first five Law Commissions of India had taken about 10 years to complete an exercise to overhaul just one-third of the CrPC. They have criticised the wrong methodology adopted by the committee in not releasing the questionnaires on the IPC, the CrPC and the Evidence Act simultaneously as “calling for engagement with substantive law without any sense of what the procedural and evidentiary law might look like and vice versa guarantees dense confusion”. They want to know why the committee has not released a working paper outlining the “problem” and suggesting matters that needed reform. This could be widely discussed by the public before answering the questionnaire. Like other representations on the committee, they have pointed out that the whole exercise being carried out by the committee is an elitist one as it excludes the vast majority who cannot communicate in English and have no Internet access. They have rightly stated that it is particularly important to get the opinions of the “disempowered sections of society” on whom the legal process often places disproportionate burdens. They have quoted a Law Commission, which had pointed out that “law reform is a matter of vital importance not only for the legal fraternity and the State but also for the average citizens”, and stated that rewriting the criminal law could not be done democratically in the middle of a pandemic and should involve open and transparent discussions.

Another letter, dated July 8, from certain judges of the Supreme Court and High Courts and concerned lawyers called upon the committee to disclose the communication it may have received from the Ministry and to state what terms of reference, if any, had been specified and to disclose any concept note or project proposal that had been submitted to the Ministry. Among other demands, the letter asked for a transparent and robust engagement with the public and suggested that the draft report of the committee be put on its website for public feedback.

In a letter to the Home Minister, the All India Democratic Women’s Association (AIDWA) had pointed out that when the entire country was trying to deal with the pandemic and the suffering because of this, any meaningful participation in this exercise by people belonging to marginalised groups such as women and children, S.Cs/S.Ts, religious and other minorities and differently abled people was impossible. It averred that widespread public participation was impossible at this time since no one could directly approach the committee and air their concerns and grievances about how the criminal justice system and the police and the courts had been illtreating the common citizen. They have questioned the need for setting up such a committee in the middle of the pandemic when only certain experts and others who register with it could communicate with it mostly via questionnaires with a word limit of 200 per question.

The urgency to bring in reforms without adequate engagement with the marginalised and other groups that are impacted by unjust criminal laws and during a raging pandemic has made many suspect and fear that the committee has a pre-determined agenda for bringing in certain laws to favour an increasingly authoritarian state.

This suspicion is further strengthened by some of the queries that are raised in the questionnaire on certain subjects. One also has to look at the track record of the government in effecting only certain kinds of law reforms that suit its ideological standpoint and actions and in using the criminal law against those who are opposed to its policies and speak and protest against it, plus its openly communal and anti-Muslim stance. If one examines the laws that have been amended by the present government, they, for example, include the rape law under which the death penalty has been introduced for child rape expanding the areas in which this penalty applies. Further, rape per se and aggravated forms of rape by police personnel, rape in a place of custody, are treated in the same manner with similar punishments prescribed for both aggravated forms and other rapes. It becomes obvious, therefore, that the committee is not likely to suggest doing away with the death penalty or going against a harsh regime of punishment which primarily believes in retributive justice. Another example is the introduction of a law against triple talak, which was communal in its intent and targeted Muslim men by specifying a jail sentence for men who pronounced triple talak and not just making it void as the Supreme Court had done. Since “cruelty” by a man towards his wife is already punishable under Section 498 A of the IPC, which is applicable to all communities, a Muslim man who had abused his wife could always be punished under this offence. However, since no man from any other community is put in jail for merely deserting his wife, why target Muslim men alone? Another amendment that went against child rights and which was decried was to make the child culpable in certain heinous crimes. The committee’s question relating to decreased age for criminal responsibility shows it is open to this concept, which militates against recognised children’s rights.

Also, as a letter from members of civil society groups to the committee has pointed out, several anti-people steps have been taken by the government during the pandemic. The draft proposal of the government for amending the Environmental Impact Assessment procedures under the Land Acquisition Act “would place many projects outside the purview of public hearing effectively rendering local communities voiceless in such decisions”. The proposed suspension of labour laws is again an anti-labour proposal that would whittle away the minimum guarantees given to labourers such as the cap on the number of hours at work. The letter also points out that the habitual invoking of draconian laws such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act (UAPA) against peaceful protesters, using the spectres of national interest and sovereignty, to stifle fundamental freedoms of citizens makes civil society groups wonder whether the committee wants to overhaul the criminal law in order to “align it with the framework of the UAPA and the NSA, such that the accused’s rights are further whittled away”.

Misuse of laws

Some High Courts have commented on the misuse of these laws. The cases of Devangana Kalita and Dr Kafeel Khan illustrate how these laws have been misused to serve the government’s self-interest. In Uttar Pradesh, when all else failed to keep an innocent Dr Kafeel Khan in jail, the Yogi Adityanath government maliciously and conveniently slapped charges under the NSA alleging that he had promoted hatred and violence and threatened the peace and security. The Allahabad High Court quashed the detention order and held that Dr Kafeel Khan had in fact given a speech calling for national integrity and unity and deprecating violence, and he had thus not acted in a manner prejudicial to public order as required under the NSA. In Devangana’s case, the Delhi High Court noted her presence in a peaceful demonstration and stated that this was a fundamental right guaranteed to all citizens and no evidence was produced to show that she had instigated Muslim women to use violence or made a hate speech.

The questionnaire should be viewed in the light of the prevailing political situation. For instance, in Part C there is a question whether Section 124A dealing with sedition should be omitted or amended in terms of its definition, scope and cognisability. In the past few years the indiscriminate use of the sedition law against those who have protested and sometimes written against government action and policies has resulted in several demands being raised, including from the Left, for its abolition. Though this particular law was enacted by the British to stifle all voices against British rule in India, we have not managed to remove it even after more than 70 years of Independence. Given the frequent use of this draconian law, which militates against the constitutionally guaranteed freedom of speech, it is unlikely that the committee will recommend its abolition. Since the Supreme Court has already outlined the limits under which this law should function and restricted it to speeches that actually incite violence, the committee should not tamper with this law. Similarly, it is mystifying why in Part A of the questionnaire the committee wants to perhaps expand strict liability offences that make a person guilty whether or not the intention to commit the particular offence exists. Many fear that this could be a way of punishing the oppressed who come in conflict with public servants. Again, the question on abetment is mystifying because the law is well settled on this issue and broadening it could have dangerous consequences for the individual or groups involved. In the aftermath of the so-called Delhi riots (which was actually a pogrom), although it was Muslims who lost more lives than Hindus (42 out of 53) and suffered bigger losses in terms of properties, businesses and livelihoods, the Delhi Police has alleged that it was the anti-Citizenship (Amendment) Act protesters (mainly Muslims) who conspired to cause the riots. The police arrested mainly Muslim youths and protesters indiscriminately, even during the lockdown, and reportedly violated procedures required to be followed under the law relating to arrest.

Women’s issues

Although various political parties and human rights groups and others working with marginalised sections have been demanding more accountability mechanisms for the police and stricter laws in place on police excesses and so on, the questionnaire does not have any question on these issues. One hopes that the committee’s recommendations will not make it easier for the police to act with greater impunity and that the country’s bail law, which has already been indelibly altered, is not further tampered with to suit the government’s self-serving interest. Questions around women’s issues are particularly intriguing and smack of mala fides. Undeniably, abolition of the marital rape exception has been a long-standing demand of the women’s movement as has been getting rid of the archaic terminology in Sections 354 and 509 of the IPC, but gender neutrality of the rape law has already been extensively discussed and rejected. In fact, the women’s movement has fought hard for several years for amendments to the sexual assault laws and managed to get the laws amended after the Nirbhaya case with the support of the Verma Committee in 2013. Why should the Criminal Law Reforms committee, which does not even have a woman representative from the movement, take a relook at the clauses that were recently enacted in Section 354 A to D of the IPC dealing with molestation and sexual harassment, among other things? The committee has asked whether “honour killing” should be made a specific crime in the IPC. The women’s movement has not raised this demand. AIDWA and other women’s groups and the National Commission for Women (NCW) had proposed a comprehensive standalone law on not only “honour killing” but also crimes in the name of honour, committed mostly by the young woman’s family and relatives and community panchayats, which include acute harassment and coercive restriction of movement, forced marriage, imposition of fines and extradition. The Law Commission had subsequently suggested a standalone law, though this had a narrow intent and was only meant to target khap panchayats. The committee seems to be unaware of these laws or the discussions that went into their making.

One of the most sensitive laws that affect women’s right to get the police to act during physical abuse and assault and in violent marriages is Section 498A. There have been several efforts on the part of conservative elements to dilute this section; the Supreme Court has already given some guidelines for arrest. The committee seems to want to make suggestions to further dilute this Section perhaps in line with the 43rd Law Commission Report. This report on Section 498A was considered by many as anti-women as it suggested a preliminary inquiry before arrest and a three-month cooling period, and making the offence compoundable, thus treating the crime not as a normal crime but as a crime in which the police need not act immediately. Naturally, this patriarchal agenda will be unacceptable to most women. Apart from this, the committee also seems to want to make suggestions on Section 125 CrPC, which is widely used by women of all communities for claiming maintenance. The basis on which maintenance is granted is well established by law. While certain portions of the Section may require reform, the committee seems to want to amend the whole section. Some fear that this will adversely affect their rights to maintenance. In short, a committee set up by a government that has carried out many anti -people reforms and which is not transparent about why it has chosen to look at criminal laws at this crisis-ridden moment cannot be trusted to have a pro-people agenda and is unlikely to make suggestions for the benefit of the poor and marginalised groups who bear the brunt of the criminal justice system and its processes.

Kirti Singh is Advocate, Supreme Court of India; ex-member (part-time) 18th Law Commission of India, and legal adviser, All India Democratic Women’s Association.

 

Interview: Ranbir Singh

Ranbir Singh: Reforms were long overdue

T.K. Rajalakshmi the-nation

The Committee for Reforms in Criminal Laws constituted by the Union Home Ministry in May has drawn a fair share of criticism from a wide spectrum. The five-member all-male committee is headed by Professor Ranbir Singh, founder Vice Chancellor of the National Law University, Delhi. With his vast teaching and administrative experience, considering he was also the founder Vice Chancellor of NALSAR, University of Law, Hyderabad, Professor Ranbir Singh feels that being an academic would not be a limitation and that the committee will look into all aspects of criminal law reform on the basis of the widest possible consultation. The committee is expected to give its report by October. Excerpts from an interview Professor Ranbir Singh gave Frontline:

What are the main objectives of the committee set up by the Home Ministry and chaired by you?

The IPC [Indian Penal Code] is almost 160 years old and not any major effort was made to look into the whole gamut of criminal law reforms. Certain countries like Singapore and England looked into this, but it was long back, some 15 years ago. In India, the Malimath Committee gave good recommendations, but its mandate was different and it did not look at the whole landscape of criminal law reforms. This committee is looking into the IPC, the CrPC (the Code of Criminal Procedure), the Indian Evidence Act and the Narcotics Act. Our mandate is quite broad. I think it is a wonderful idea on the part of the government. These reforms were long overdue and probably we need to seriously look into what is required and this is what we are doing.

Can you give specific examples of the reforms that are being envisaged?

When I had a meeting in the Ministry of Home Affairs, the impression was that these laws being colonial laws—they were drafted when there was no Universal Declaration of Human Rights, and we didn’t also have our own Constitution—now we should look at the laws to examine whether they are compatible with international covenants and our Constitution. No effort was made to look into the criminal laws from the point of view of the Constitution and particularly fundamental human rights. That was the idea basically that was conveyed to me at the meeting.

Does the committee plan to consult experts and a wider audience?

Most of the experts are with us. We will consult them whenever there is a confusion in our minds. They are very senior police officers and academics. We are going for wide consultation with all stakeholders, be it judges, lawyers, academics, civil society. Recommendations are pouring in. Because of the pandemic we cannot conduct face-to-face consultations, but still a dozen people are working on the recommendations of earlier committees. The mandate of this committee will also involve looking at past recommendations from the Law Commission or other committees, including our own suggestions. We will put all that on our website. Ultimately it will be decided by the Home Ministry and Parliament.

Would it have been better to have a longer time frame for the consultations on account of the pandemic?

I agree with you that the time frame should be extended, and we had a meeting with the Home Ministry on this. In all our meetings we have been saying to the government that the Malimath Committee took three years, the [Madhav] Menon committee took more than one or two years, and even the Law Commission took a lot of time. With the pandemic being what it is, it is difficult to hold consultations and we plan to meet the Home Ministry about this. We met the Secretary of the Home Ministry on issues concerning the time frame. If we are expected to do holistic work, the time frame is important.

As chairperson, could you ask the government to have a broader representation on the committee?

This is the mandate of the government. We are a vast country and whatever number of people we keep on the committee, it may not be enough. I agree that if the government thinks that some representation should be given to people who have expressed concern, it could be done, but the government has to do it. We are looking at grass-roots justice and criminal justice reforms at that level. For that, we have a senior district judge and a very senior lawyer on our committee

The questionnaire includes new offences, but some, like marital rape, do not figure. Women’s organisations have raised concerns about the exclusion of certain offences and are apprehensive that the committee may recommend a dilution of pro-women laws.

A lot of concerns have cropped up over the years. I agree there are controversial areas, and I am sure that the committee will look at it honestly and rationally. We will give recommendations. Whether it is agreed upon or not will depend on Parliament.

It is felt that it was the mandate of the Law Commission and not academics to look into criminal law reforms.

Let me share with you and the country that a committee of this kind, looking into such an important reform process, has been entrusted to academics. If you look at committees in this country, never have academics been given charge. All important research takes place in academic institutions and universities. The charge was not given to the Law Commission as there is no Law Commission for the last few years. Some people also feel that a senior judge of the High Court or Supreme Court could have headed it. People should be appreciative that it has been given to academics. In foreign countries such work is done by universities. I was a member of the Soli Sorabjee committee on police reforms, of the Kamal Kumar committee on the IPS, Sri Krishna Committee on the bifurcation of Andhra Pradesh and Telangana.

Some people wonder why it is headquartered at the National Law University, Delhi, but it is perhaps because it is cost-effective to have it in Delhi. The kind of research we are doing, the competency and research we have developed, is comparable to any leading university elsewhere. We are also looking at all judgments of the High Courts and the Supreme Court. We will do everything under the sun but we cannot please everybody.

There is a concern that the questionnaire is predetermined, and there is a limit to the word length in which the questionnaire can be answered.

We have said that for the sake of brevity one can give suggestions in brief. But if people want to send in longer notes, they certainly can. It is not an examination that one cannot go beyond 200 words. If anyone wants to say more, they are most welcome to send separate notes.

One of the objectives refers to principled sentencing and simplifying procedures. What exactly do you mean by that?

We will look into it as the provisions for sentencing are old and dated. Bail matters are also important. We are taking the views of people who have worked in these areas and looking at reform processes in other countries too.

Many offences have been decriminalised, but at the same time there are stringent laws, such as the sedition law, which are in contradiction to some of the fundamental principles of the committee’s mandate, that is, reform with a human face.

I don’t know why some of these laws are there on the statute books. Everyone knows that these laws are being misused. These are critical areas. Then there are issues like honour killing, same-sex marriage, mob lynching, etc. There are already lots of comments by the Supreme Court, including on the issues that you mention. We will honestly and squarely discuss each and every problem.

Many academics have come under attack, been put behind bars without bail under some of these stringent and controversial laws, some of which you plan to look into. You are an academic, what is your opinion on this?

I have not seriously looked into this. But as this is not connected to what we are discussing today, I would prefer not to talk about this.

Is there need to be apprehensive that the committee might suggest stringent reforms that might result in the erosion of democratic rights?

It is premature to state whether mild or stringent reforms will be recommended by the committee. The IPC is such a document that even if there is any particular offence or criminal behaviour defined in it, it covers everything. As an example, for honour crimes, people say a different law is required. But we have a law for murder or for lynching. So why need a separate law? The judiciary can interpret every offence the way it wants to. The Vishaka judgment on prevention of sexual harassment at the workplace was law until the Act was enacted.

It is felt that the criminal justice system is skewed against the poor and the vulnerable.

It is skewed not because of the laws but the implementing by agencies. I was part of the Soli Sorabjee committee on judicial reforms. One of the major mandates of this committee was that the police administration system, law and order machinery and prosecution machinery should be separate. The Prakash Singh committee recommended police reforms. The guidelines of both committees were sent to the States as law and order is on the concurrent list. The Supreme Court wanted to know how many of the guidelines in the Prakash Singh committee had been implemented. It was found that nothing had been done. There is a need for reforms at all levels. The world is changing. Forensic science has to keep pace. There are multiple layers of reforms. The report is only one part of that.

Interview: Dushyant Dave

Dushyant Dave: Laws must provide out-of-box solutions

T.K. Rajalakshmi cover-story

Do you agree with the process set in motion for criminal law reforms and its timing?

Laws need constant review with changing times and changing societal needs. More so with criminal laws. So, if the government’s intention is honest, and it must be, there is nothing wrong in its efforts to initiate the process by constituting a committee of experts. However, I do feel the Law Commission is the most well-equipped body to undertake this exercise and it can constitute sub-groups to carry out initial research. But then the Law Commission must comprise the best available [legal minds] in the country. In the last few years, governments have made poor appointments to most bodies such as the Law Commission.

Do you feel that the setting up of this committee in a pandemic situation is another example of executive overreach? Moreover, it lacks representational diversity, which has attracted criticism.

I don’t know the constitution of the committee, but it must have people representing vulnerable sections, especially minorities, women, Dalits and other underprivileged sections. Only then can it achieve a just balance in suggesting reforms in criminal law. Activists and civil society leaders must be involved. Yes, instead of asking the Law Commission [to do the work], constituting a committee in its place is an overreach.

Why not? It can if there is an honest, widespread and meaningful consultation with all stakeholders, including society at large, lawyers, judges, law enforcement agencies, social workers, etc.

During the exodus of migrant workers following nationwide lockdown, we saw how the police behaved with them. There have been many such instances of police highhandedness of late. Do you think the committee should address these issues more specifically in terms of having strong procedural laws that uphold the presumption of innocence of an accused?

The reform process must also address police reforms and must provide for stricter punishment to the police and other law enforcing agencies for wrong arrests, inhuman treatment, torture, custodial deaths, damage to dignity and reputation, among other violations. These must be made non-bailable and cognizable. The judiciary must be given mandatory powers to take suo motu action in such cases.

On the one hand, many offences have been decriminalised. But, on the other, there is an increasing tendency to book people under the most severe of laws like sedition…

Of course, laws like the Unlawful Activities Prevention Act must be reformed drastically. Only in the last few days the Gujarat government began the process of promulgating an ordinance amending the Prevention of Anti-Social Activities Act (PASA) to make posting of messages on social media an offence if the messages are false or offensive, in a wide sense. These laws have to be applied very strictly. The arrest of hundreds of persons belonging to the minority community for raising their voice against the Citizenship (Amendment) Act is a blot on governance by the executive and the role of the judiciary.

Similarly, the Armed Forces Special Powers Act needs to be repealed as under its garb thousands of young men and women have been killed in the name of fighting terrorism. Yes, terrorism must be dealt with iron hands but not indiscriminately and wantonly. We are on a wrong path, as Northern Ireland can tell us.

It is strange that despite having laws for almost all offences under the sun, there doesn’t seem to be any let-up in crimes against the poor, Dalits, minorities, women and children. Would you agree that there is an anomaly in the application of criminal law and, by implication, in the criminal justice system?

Yes, crimes against all vulnerable sections of society, including minorities, Dalits tribal people, poor people and women, among others, must be curbed as fast as possible, and for that laws must provide innovative and out-of-box solutions. The Evidence Act must allow use of modern technology and tools while sticking to the basic principles of criminal jurisprudence, right to remain silent ( for the accused) and burden of proof (on police).

Political context

Manu for modern times

One of the first pronouncements about the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government’s intention to initiate criminal law reforms was in early December 2019. Addressing a conference of the Directors General of Police and Inspectors General of Police in Pune, which was attended by Prime Minister Narendra Modi and National Security Adviser Ajit Doval among others, Union Home Minister Amit Shah expounded how the criminal law system in India, especially its principal operational frameworks, the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), was not “conducive to today’s democratic set-up” and how the government had “resolved to initiate substantive measures to reform the system”.

A day before this announcement, in a letter to the State governments the Union Home Ministry had sought their suggestions for undertaking a major overhaul of the IPC and the CrPC. The initiative, it said, was aimed at reflecting the aspirations of a modern democracy in the criminal law system and providing speedy justice to people.

At the Pune conference, Amit Shah dwelt on these aspects as well, but he primarily exhorted the senior police officers to convert occasions like annual conferences as a regular platform to debate and formulate policy decisions pertaining to national security. His specific call was to make these occasions a “Vaicharik Kumbh”, or “thought summit”.

“Vaicharik Kumbh” is not a commonplace Hindi expression or one used by the intelligentsia. However, those familiar with the jargons and nomenclatures used within the Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar outfits know that terms such as “Vaicharik Kumbh” and “Chintan Shivir” (both mean “thinking summits”) refer to their periodic gatherings for ideological discussions on Hindutva. These conventions have been part of the RSS tradition right from its inception in 1925. However, whenever the political arm of the Sangh Parivar is in power, these gatherings focus on governance-related issues.

Mossad as prototype

Pravin Togadia, the erstwhile associate of Modi and Amit Shah in the Sangh Parivar organisational structure in Gujarat, had organised a series of such meetings during1998-2004 when he was in the top rung of the Vishwa Hindu Parishad (VHP), the ideological arm of the Hindutva combine, and when the Atal Bihari Vajpayee-led NDA government was in power at the Centre.

Interestingly, India’s criminal law system was the focus of a couple of “thinking sessions” that Togadia had organised in western Uttar Pradesh in the late 1990s and early 2000s. About 35 participants drawn from almost all the Sangh Parivar outfits sat together for the three-day sessions and formulated plans to mould the criminal law system on the lines of the Hindutva treatises on governance. Among the specific ideas that came up in these meetings were creation of vigilante groups that would supplement government agencies, especially security agencies, in special drives to protect Hindutva ideas, projects and symbols. A major symbol mentioned repeatedly in this context was the cow, and an important project identified was that of bolstering national security.

Togadia had then told this writer that these meetings discussed special initiatives to combine government and vigilante efforts to protect the cow from human predators and to set up public interest volunteer groups to identify anti-national elements in the neighbourhood and help the authorities to bring them to book. The organisational model highlighted in the discussions, Togadia said, was the Israeli Mossad, with civil society as a key component of security related intelligence gathering.

Thus, when Amit Shah exhorts senior police officers to convert their conferences to “Vaicharik Kumbhs”, Sangh Parivar activists or the Hindutva combine’s close observers see other connotations of those words. According to a retired senior intelligence officer who has worked with the Union Home Ministry and the police departments of various States for over two and a half decades, the Modi government’s official parlance has been periodically marked by a Hindutva tinge, either by design or accident. He cites, for instance, the use of the phrase “in the public interest” repeatedly in official communications in October-November 2018.

The phrase was employed in the context of the mass transfers of 14 Central Bureau of Investigation (CBI) officers, when its two topmost officers, Director Alok Verma and Special Director Rakesh Asthana, clashed on several counts. The retired officer said: “The expression at that time from the Home Ministry was that it would be ‘guided by public interest and the requirements of the Indian economy’. The phrase ‘public interest’ is one of the guiding principles of the Sangh Parivar organisational structure as elucidated by M.S. Golwalkar, one of the premier ideologues of Hindutva. Golwalkar was self-professedly inspired by the idea of fascism and the leadership of Italian dictator Benito Mussolini. Incidentally, Mussolini denotes the concept of ‘public interest’ as one of the core principles fascism.” The retired officer said the expression ‘public interest’ had been repeatedly used during the 1975-77 Emergency period too, independent India’s first and unambiguous experience with an authoritarian, oppressive regime.

It is not just the telling, perhaps unintended, phraseology that points to the larger political and ideological context and framework of the criminal law reforms initiated by the government. The Sangh Parivar’s top leaders and activists have steadfastly maintained throughout independent India’s existence that the country that came into being on August 15, 1947, does not fit in with their idea of a nation. In August 1947, an editorial in the Organiser, the RSS mouthpiece, warned Indians “not to be influenced by false notions of nationhood” and to recognise “the simple fact that in Hindustan only the Hindus form the nation”. Golwalkar made caustic comments about the Constitution and the final stages of its framing in 1949. His complaint against the Constitution was that it contained nothing from ‘Manusmriti’, ‘Bharat’s own code of laws’. He later said that this “Constitution is just a cumbersome and heterogeneous piecing together of various articles from various Constitutions of Western countries”. Pronouncements over the years by Sangh Parivar leaders—from the “moderate” former Prime Minister Vajpayee to the “militant” VHP founder Ashok Singhal—have all underscored this point.

Core issues and tactical compromises

In later years, the Sangh Parivar, especially its political arms, the Bharatiya Jan Sangh and the BJP, evolved a public strategy that stressed three so-called core issues: abrogation of Article 370 in relation to Kashmir, formulation of a uniform civil code, and construction of a Ram temple in Ayodhya at the very spot on which the Babri Masjid stood. But discussions within the Hindutva combine consistently advocated thorough restructuring of the paradigms of India as conceived by the leading lights of the freedom movement and the makers of the Constitution.

Pursuit of this line necessitated tactical compromises to capture power. Thus, even the “core issues” were diluted in the interests of capturing power. The three Vajpayee-led governments that assumed office at the Centre between 1996 and 2004 displayed this astonishing ability to make adjustments for political expediency. All these governments were dependent on coalitions with smaller secular parties, which had reservations about the Sangh Parivar’s core agenda. So, the Sangh Parivar promptly put them on the back burner, making it clear that it was just a tactical position. Vajpayee himself stated this on the floor of Parliament when his first, 13-day, government in 1996 was about to collapse. He said that his government had not pursued the BJP’s core agenda only because the party did not have a majority on its own. “We will come to it when we have a majority on our own,” Vajpayee had then said.

Absolute power

In 2014, the BJP, under Modi’s leadership, secured a single party majority in the Lok Sabha. The majority was bigger for his second term in 2019. Following this, the Sangh Parivar took big steps towards fulfilling its core agenda, first by abrogating Article 370 of the Constitution and later by taking concrete steps for the construction of a Ram temple in Ayodhya. According to Sangh Parivar insiders, formulation of a uniform civil code is also well on course. With the core agenda expected to be fulfilled before the second term of the Modi Ministry ends, it is time, insiders aver, to address matters relating to the paradigm shift with regard to the Hindutva perspective on nationhood. This is where the criminal law reforms come into play as one of the components.

Significantly, the formal announcement of the criminal law reforms was made almost a full month after the Supreme Court verdict that paved the way for the occupation of the Ayodhya land by Hindus and the preparations for the construction of the Ram temple. Some Sangh Parivar insiders are of the view that Modi and Amit Shah have some sort of a belief in auspicious days. Thus the bhumi pujan for the Ayodhya Ram temple was held on the first anniversary of the abrogation of Article 370. And the announcement of the criminal law reforms came a month after the Ayodhya verdict of November 9, 2019.

These insiders also say that the larger paradigm shift would be in keeping with the Manusmriti perspective that Golwalkar had wanted for the Constitution. Conservative insiders cite the formation of an all-male committee to recommend criminal law reforms as a sign of it. Manusmriti, incidentally, is known for its blatantly anti-woman viewpoints such as: “Women have no divine right to perform any religious ritual, nor make vows or observe a fast. Her only duty is to obey and please her husband and she will for that reason alone be exalted in heaven.” The text also states that “the father guards her in adolescence, the husband guards her in youth, the sons guard her in old age; the woman is never fit for independence”.

Apart from women, the committee is also bereft of representatives from other marginalised communities such as Dalits. The committee also does not have legal historians or constitutional experts.

Arbitrary exercise

Apart from these points on the organisational structure of the criminal law reforms committee, there are several crucial questions and apprehensions about the whole exercise. Nearly 150 personalities, including 16 former judges of the Supreme Court and High Courts, 100 lawyers from across various courts in India and former civil servants, academics and intellectuals, have flagged these concerns in a representation they submitted to the Ministry of Home Affairs. They have demanded suspension of the committee’s activities and a thorough restructuring of its parameters and functioning.

P.V. Dinesh, advocate in the Supreme Court and one of the founders of the legal portal Live Law, points to the fact that the committee does not have clearly stated terms of reference or a concept note, which he says adds to the arbitrariness of the whole exercise. Amidst the pandemic, the consultations are being carried out online. Said Dinesh: “The questions appear to be general, as if prepared by someone who has not done any research on the subject. They cater to the perceived social morality concerns rather than the nuances of law. Also, the questions are suggestive of fundamental changes like that of shifting the burden of proof; according admissibility for the confession before the police; changes in the nature of trial, punishment and the process of investigation.” The representation submitted by the former judges and lawyers also points out that criminal law reforms are too serious a matter to be wrapped up in six months through methods such as time-bound questionnaires.

Justice Chelameshwar’s perspective

Talking to Frontline, Justice J. Chelameshwar, former Judge of the Supreme Court, pointed out that the framers of the Constitution had enough foresight to realise that all laws of the country, including criminal laws, would have to undergo changes in accordance with the changing times and new developments in society, economy and technology. He said: “But we should clearly know what we want to change and how we would go about changing it. The terms of reference have to be precise and clear. One of the problems that we have is that even practitioners, including people who sit in judgment, do not understand the details, niceties and nuances of a law and the way it plays out in a changing society. These lead to horrendous judgments too, especially when it comes to something as complex as criminal law.”

The former Judge, who once stated in the Supreme Court that by some quirk of fate his judicial career had begun and ended with criminal cases, said that all efforts at reforms should keep in my mind that the interface between criminal law and the Constitution was essentially dictated by the duality of individual liberty and social control and there had to be a judicious balance between these two streams. Several studies based on the relationship between the Constitution and criminal laws have also focused on this duality, but almost all of them have underscored that these two streams are not mutually exclusive or oppositional models or watertight compartments and that they cannot be defined in absolute terms or in binaries. At its core, this duality and the coexistence of these streams is also about a functional political democracy. All efforts to initiate reforms will have to understand and assimilate this broad structure.

As Justice Chelameshwar points out, reform needs to be done knowing fully well what one is trying to reform and the intricacies that such exercises would entail. The history of the formation of the IPC involved a drafting and vetting process that lasted 26 years between 1834 and 1860. The CrPC has an even longer history of deliberations and amendments between 1852 and 1973. The Law of Evidence, namely the Indian Evidence Act, went through processes of consultation and amendments for 37 years from 1835 before it finally became law in 1872.

Most of this happened during the hugely constricting colonial sociopolitical atmosphere of the British Raj. Obviously, reforms in the independent India of the 21st century need to be more broad-based and inclusive. It cannot be driven by a committee, which is markedly imbalanced in terms of gender representation or involving marginalised sections of society. It also cannot be dictated by absolutist or binary prescriptions of the kind advanced through the Manusmriti-driven code of laws envisioned as part of the treatise of Hindu Rashtra and propounded by leaders like the current RSS sarsanghchalak Mohan Rao Bhagwat.

Gender Issues

When to wed: Raising the minimum age of marriage

Indian society’s preoccupation with marriage has gripped its government of late. On Independence Day, Prime Minister Narendra Modi announced that his government was contemplating raising the minimum age of marriage for girls from 18 to 21 years. Currently, it is 18 for girls and 21 for boys. “We have formed a committee to ensure that the daughters are no longer suffering from malnutrition and they are married off at the right age,” Modi said. In order to circumvent the issue of malnutrition among girls, the government has hit upon the solution of raising their age of marriage.

This is in keeping with Finance Minister Nirmala Seetharaman’s announcement made earlier. In her 2020 Budget speech she had said that a task force would be set up to look into the age at which a girl entered motherhood in order to address issues of maternal mortality and nutrition levels. On June 4, the Women and Child Development Ministry constituted a task force under the chairpersonship of Jaya Jaitly.

Child marriage as a menace must be tackled. But it has, at best, a circuitous connection with malnutrition. The primary causes of child marriage in India, experts agree, are illiteracy, ignorance and poverty, coupled with patriarchy, lack of opportunities in education and employment, lack of agency, fear of sexual assault, blind beliefs, the family’s need to save or retain property, issues of marriage-related expenditure and the haste to fulfil a parental responsibility. Besides, data show that while child marriages still take place, they are in gradual decline.

In 2000, 9.5 per cent of boys and 35.7 per cent of girls aged between 15 and 19 were married, according to the United Nations Population Division. In 2001, 300,000 girls under the age of 15 had given birth, some for the second time, according to the Census. In 2005-06, 45 per cent of girls married before the age of 18 years, according to the National Family Health Survey (NFHS III). In 2009, the corresponding figure rose to 47 per cent. Fifty-six per cent of these girls were in rural areas, according to UNICEF’s “State of the World’s Children 2009” report, which also stated that 52 per cent of girls had their first pregnancy between 15 and 19 years.

More recent data point to a decline in the trend. According to NFHS-4, 2015-16, there has been a decline in child marriage in the last decade to 27 per cent for women, and 20 per cent for men, and an increase in the median age of marriage from 17.2 years to 19 years for women, and from 22.6 to 24.5 years for men.

Given a gradual but sustained increase in age at marriage, the National Coalition Advocating for Adolescent Concerns (NCAAC) questioned the need for increasing the legal age at marriage for girls or declaring underage marriages void. Child marriage was more a consequence of girls dropping out of school rather than the cause, they said.

Using the same data, a list of 42 individuals from organisations such as the Nirantar Trust, Oxfam, the HAQ Centre for Child Rights, Action Aid and Save the Children and Shantha Sinha, former Chairperson of the NCPCR, explained how child marriage had already given way to adolescent marriage in India. They urged the task force to not take the legal route to raise the age of marriage for women and, instead, take measures to strengthen the positive changes that are already under way.

They said: “Child marriage is no longer a significant phenomenon in India—what we now see is late adolescent marriage, and even here the age at marriage has been improving. Prior to the onset of the pandemic, on the ground information has led us to expect further improvements. Should the legal age of marriage be raised to 21 years, no less than 56 per cent of the women (in the 20-24 year age group of NFHS-4) who married below this age—and their families—would be turned into criminals overnight. Moreover, this proportion is as high as 75 per cent amongst the poorest 20 per cent of the population. Even in a progressive state like Kerala (with excellent health coverage and high levels of education) one third of all women in the 20-24 age group marry below 21 years. Note further that these estimates suffer from what is called the truncation effect: Many women in the age group 18-20 years at the time of the survey and who were unmarried would be marrying before the age of 21 years. In other words, the vast majority of Indian women across the country marry before 21, and would now become criminalisable.”

The Saheli Women’s Resource Centre believes that the government’s push behind delaying the age of marriage for girls might in part stem from the agenda of population control. In a submission to the task force, the centre said: “The push for increasing the age of marriage of women is nothing more than population control by another name. And let us not fool ourselves, the push to control birth rates and population will have a direct impact on Child Sex Ratios, increasing sex selective abortions once again; in the bargain, undoing years of campaign and struggle to get the PC-PNDT Act [Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994] in place, and to get it amended –an Act that is in any case under threat with the latest notification of the central government suspending several of its provisions under the guise of the lockdown.” On April 4, the Department of Health and Family Welfare temporarily suspended some rules under the Act. Sabu George, who petitioned the Supreme Court against the notification, felt it might lead to “rampant sex determination tests”.,.

The Health Ministry feels that raising the age of marriage for girls will give girls more time to complete their education. It will “prepare them physiologically and psychologically to shoulder the responsibility of marriage and children”, the ministry said in its submission to the task force. It added that this had the potential to positively impact the health of the girl’s progeny. It would also empower girls to take informed autonomous decisions regarding their fertility preferences and care during ante-natal, childbirth and post-natal period, felt the ministry.

“This will lead to better chances of joining workforce. Increasing the legal age of marriage will thus give women independence, greater freedom of marital choices and given the positive correlation between educational qualification and lower fertility rates, more reproductive freedom. Further, the access to education resulting from both maternal and child health and a collateral dividend for socio economic upliftment of women at large,” said the ministry.

Views of young people

On July 17, Jaya Jaitly consulted adolescent and youth groups to get their perspectives on the issue. Their views reflect the complexity of the issue at hand. While there is no categorical acceptance or rejection of the proposed change, there is a clear view against any fixation with the age of marriage for girls as a means of empowerment.

Himadri Priya Duwara, 16, from Assam, indicated that increasing the age of marriage would not make a difference until structural inequalities were addressed. She explained that the centrality of marriage was very strong in a girl’s life. She further said that while education for girls from low-income backgrounds was free in Assam until class XII, government schools were not in good condition, This compelled parents to send them to unaffordable private schools and ultimately resulted in girls dropping out. She recommended that incentives should be provided to cover expenses such as books and uniforms. Awareness generation among parents and girls through women’s collectives such as Mahila Samitis and Kishori Samitis would be an important move. Livelihood opportunities through short courses and training in stitching and so on would allow girls to become independent and consequently delay their marriage.

Poorva Prabha Patil, 21, from Maharashtra, the first woman president of the Medical Students Association of India, said that increasing the age of marriage for girls to 21 years would only give rise to further challenges. She said the move would lead to more home deliveries because people would be apprehensive about reporting pregnancies. It would increase cases of criminalisation and harassment, especially for couples who wished to marry partners of their choice. She further flagged the issue of age of sexual consent and the need for sensitisation of society and health workers to the sexual needs of young girls.

Anjali Suryavanshi, 19, from Gujarat and a youth volunteer with Sahaj, said that increasing the age of marriage to 21 years would enable girls to complete their higher education and make it more likely for girls to be employed and financially independent and consequently able to make informed decisions. She, however, emphasised the importance of free and consensual marriage. She explained that among the factors contributing to child marriage was the fear of parents that adolescent daughters might get into sexual relationships. Other factors were poverty and lack of resources to invest in the education of daughters. She said there was a need to address these issues.

Venkata Nandini, 18, from Madanapalle, Andhra Pradesh, is a youth volunteer for the People’s Organization for Rural Development. She said that increasing the age of marriage might help girls to complete their education, get job opportunities and be physically and mentally healthier. She said that these factors could provide cushion support in times of unforeseen situations like divorces. She emphasised that legal reforms might not be sufficient and said that structural support in terms of schools and colleges and assured access to them was important. Further, parents and children should be counselled on the importance of girls’ education, skill training, health and employment opportunities. She emphasised the need to strengthen the Child Marriage Prohibition Officer’s post for better implementation of the Prohibition of Child Marriage Act (PCMA).

Beauty Kumari Paswan, 20, from Bihar felt that as the Constitution provided equal rights to girls and boys, the principle of equality should be extended to marriage as well. She felt that increasing the age of marriage would enable girls to finish their education, get exposed to new ideas, have occupational aspirations, and ultimately push back child-bearing age. However, she expressed concern about the possibility of couples who are in consensual relationships being exposed to harassment by the police following this reform. She also emphasised the importance of making accessible sexual and reproductive health knowledge and services among young girls. Youth medical centres have opened, but these services are not extended to unmarried couples because of biases among nurses stationed there. There is a need for massive awareness campaigns against child marriage and on sexual and reproductive health among adolescents, similar to the awareness drives on family planning. Thus, increasing the age of marriage would not be relevant if it is not supplemented by these efforts, she said.

There are fears of misuse of the PCMA. Analysing 83 High Court and District Court judgments and orders from 2008-2017, in which the PCMA was either invoked or discussed, Partners for Law in Development (PLD) tried to determine who used the law the most and why. The finding was that the parties involved in such litigation were predominantly drawn from poor, peri-rural and working-class backgrounds with little or no means to secure quality education, white-collar jobs, or professional careers.

The PLD found that an unintended effect of the law was to reinforce parental control over daughters’ lives and marriage choices and punish independently chosen husbands rather than prosecute arranged customary marriages. “Any deliberation on amending the PCMA must be informed by the data on how the law is used, and its impact on young people whose interests the law seeks to protect. This data indicates that law is predominantly used to retaliate against elopements or self-arranged marriages, which incarcerates boys and forces girls into shelter homes, even in cases that end in acquittal. Any law reform undertaken in relation to the PCMA must seek to strengthen the life chances of girls most vulnerable to early marriage, through linkages with government schemes that offer educational and vocational opportunities; and in the event of marriage, must invest girls with support services and decision making in relation to opting in or repudiating the marriage,” the PLD said.

Interview: Dr Bevinje Srinivas Kakkilaya

Dr Bevinje Srinivas Kakkilaya: Lockdown created unnecessary fears

Dr Bevinje Srinivas Kakkilaya is based in the coastal Karnataka city of Mangaluru, where he has been practising as a consultant physician since 1992. Dr Kakkilaya has been involved in issues of public health throughout his career. He has been a co-investigator for projects on Malaria Research Training in southern India conducted by the Kuvempu University Consortium, Shivamogga, Karnataka, in collaboration with the Penn State College of Medicine of the United States, and also on FISH Assay for malaria diagnosis, run by ID FISH, California, U.S. He has been a regular columnist on issues of public health for leading Kannada newspapers for many years and has won several writing awards for his sage analyses. Dr Kakkilaya has been writing consistently on various issues relating to the novel coronavirus pandemic since March and has recently published a book in Kannada titled Corona Hedaradirona (Let us not Fear Corona) along with his wife, Dr Balasaraswathy Panambur. The book brings together his wide writing on the subject and has been widely appreciated for its clarity on the subject. In this interview with Frontline, Dr Kakkilaya expounds on some of the crucial themes regarding the pandemic in India with an emphasis on Karnataka.

The first death due to COVID-19 in India took place in Karnataka on March 8. You were initially satisfied with the response of the State government to the pandemic but increasingly began to disagree with its approach. Can you tell us where the Karnataka government erred?

There are two sides to this issue. I had expressed my satisfaction at the efforts of the government in identifying and tracking down the primary cases and their contacts during the initial days of the epidemic. Karnataka did well, and that helped in delaying community spread. But I did question the decision of the State government, on March 13, to shut down theatres and malls and restrict wedding ceremonies, etc., terming them as non-essential, when the entire State had had a total of 11 cases, and a single death. At that point, there was absolutely no indication of community transmission of the infection anywhere and therefore such a drastic shutting down of community activities was premature and unnecessary. It turned out to be a big blow to economic activities and of no help in stopping the transmission. During this time, I had also communicated to the State government many documents and reports regarding prevention and management of COVID-19, from the NHS [National Health Service] of the United Kingdom, and other countries such as Italy, the U.S., etc. But the government failed to develop a scientific, rational and pragmatic strategy, resulting in the prevailing confusion and lack of coordination at every level.

You have been critical of the 21-day national lockdown announced by Prime Minister Narendra Modi on March 24. Until that day, 564 cases and 10 deaths had been recorded in India. Central government spokespersons and ministers have insisted that this early precaution helped in preventing the spread of the deadly virus.

Those claims have clearly been proved wrong, and it appears that India is on its way to be World No. 1 in COVID cases and deaths. A senior adviser of the NITI Aayog had reportedly asserted that there wouldn’t be a single new case after May 16; but, on that very day, 53 days through the lockdown, there were 4,864 new cases and 90,648 total cases. The national lockdown failed because that, too, was premature, sudden and harsh, disregarding the demographics and the best of experts of our country. It’s clear that shutting down communities can have a very limited role in curtailing the virus that spreads mostly through close personal contacts. Also, the premature lockdown sent wrong messages, created unnecessary fear and stigma, and in addition, created severe hardships for stranded people and migrant workers and damaged the economy. Contrary to claims, it did not help in strengthening the hospitals for COVID care.

You have often argued that people should not become overwhelmed by the coronavirus. Even the title of your book is “Let Us Not Fear Corona”. With cases increasing every day, how do we tackle the spread of the virus?

I had stated in early March that the new coronavirus would stay forever; this fact is now being stated by the government and by every agency. It was also known quite early that severe illness and deaths due to COVID occur mostly in the elderly and in those with co-morbidities. Studies available from many countries have clearly shown the case fatality rate at 0.04-0.5 per cent, which could be further reduced with a rational plan to identify and treat severe COVID. Therefore, COVID is a mild, self-limiting infection in most of the cases, particularly among children and the young. It’s very necessary to create awareness about this fact, and it’s also necessary to create requisite facilities to identify and treat severe COVID; fearmongering and stigmatisation do not help, but only create confusion and impediments.

You have often advocated “reverse quarantining” and “mobile clinics” as a response to the spread of the pandemic. Can you explain these two concepts further?

With the initial reports of COVID from China of more than 72,000 cases, and also from Italy and the U.S., clearly indicating that severe COVID occurred in the elderly and in those who had co-morbidities, I had suggested that it was important to protect these vulnerable people from getting the infection so as to reduce the deaths and thereby the burden on the health-care system. Accordingly, I had suggested an action plan to protect these people, with the help of family members, wherever possible, or by the government, utilising the facilities such as hostels, hotels or rest houses. Kerala, and much later Karnataka, did issue some statements on these lines, terming the plan as reverse quarantine of the vulnerable. Protection of the elderly was also first among the seven mantras suggested by the Hon’ble PM on April 14 to control COVID. But that was it, nothing much happened thereafter.

Also, experience from Italy, the U.S. and the U.K. by March itself had indicated that COVID being a mild infection in most cases, patients could be asked to stay at home, so as to prevent them from spreading the disease to the community outside, and also to prevent the overwhelming of hospitals, which would otherwise become unavailable to cases of severe COVID. Patients staying at home could be checked by mobile units for early identification of complications, and if so, could be shifted to hospitals for further care. Such an arrangement could have allayed anxiety, while also helping to prevent spread and to identify and treat severe COVID more effectively. But these suggestions were not considered by our government.

There is tremendous fear among parents, which is delaying the opening of schools. You have constantly stated that schools must be opened immediately. Why do you say this?

There’s ample evidence to show that children are less likely to be infected and are very unlikely to develop severe COVID, and also that shutting down schools helps neither to stop the spread nor to prevent deaths. On the contrary, there’s evidence to show that such measures have adverse effects on learning, physical and mental health, and nutrition, and can increase physical and sexual abuse. When we find that the government is allowing the more vulnerable adults into all activities and is restricting the least vulnerable children and youngsters from their most needed schools, colleges and exams, it’s evident that the government is not being guided by evidence or experts. Therefore, parents and students should demand immediate reopening of schools and all the professional courses, because the benefits far outweigh the almost non-existing risks.

You had raised concerns about the COVID management protocol published on May 15 by the Karnataka government. What were your apprehensions then and what is the reality today?

The protocol had recommended a battery of investigations and several medicines for all cases of COVID, from asymptomatic to severe. Most of these recommendations were neither evidence based nor recommended by the Central government or by other national health agencies. The primary concern, apart from the above, was that this protocol would become the standard of care and would lead to unnecessary expenses and adverse effects. It has turned out to be so, and many patients are being subjected to expensive tests and multiple medications with doubtful or no benefits.

As hospitalisation due to COVID-19 increased in Karnataka, there were complaints that private hospitals were not cooperating with the government health authorities. As someone who has observed this tension between the government and private hospitals, do you think the private hospitals have stepped up in this moment of acute crisis?

Neither the government nor organisations representing doctors and hospitals have had a scientific, evidence-based strategy for management of COVID. Lockdown hampered health-care delivery, people couldn’t reach clinics and hospitals, and this adversely affected the management of non-COVID cases. In the absence of any support from the government, this led to severe financial constraints, particularly for smaller hospitals. The government’s order to reserve 50 per cent beds in every hospital for COVID escalated the confusions and problems. All these severe constraints have led to significant salary cuts for doctors, nurses and other staff, and also made them vulnerable not only to COVID, but also to attacks and other problems.

Communalism

Tablighi Jamaat: Vindicated, finally

Ziya Us Salam the-nation

On August 22, the order of the Aurangabad bench of the Bombay High Court quashing the first information reports (FIRs) against 29 foreigners and six Indian members of the Tablighi Jamaat and chastising the police for “non-application of mind” brought much-needed relief to the affected persons and has hopefully drawn the curtain on the sustained vilification of the largest Muslim organisation in the country. “There was virtually persecution against these foreigners,” the judgment said.

The order stated: “A political government tries to find a scapegoat when there is pandemic or calamity, and the circumstances show there is a probability that these foreigners were chosen to make them scapegoats.”

In response to three separate petitions filed on behalf of foreign nationals from Indonesia, Ivory Coast, Djibouti, Ghana, Benin and Tanzania, the division bench of Justices T.A. Nalawade and M.G. Sewlikar ordered the quashing of the FIRs against 35 accused, stating that the decision to file FIRs en masse against the men who had gathered at a religious congregation was done to give an indirect warning to Indian Muslims who had participated in the protests against the Citizenship Amendment Act (CAA) in huge numbers.

In its 58-page order, the court held: “There were protests by taking processions, holding dharna at many places in India at least from prior to January 2020. Most of the persons who participated in protest were Muslims. It is their contention that Citizenship Amendment Act, 2019 is discriminatory against the Muslims. They believe that Indian citizenship will not be granted to Muslim refugees and migrants. They were protesting against National Registration of Citizenship (NRC). There were protests on large scale not only in Delhi, but in most States in India. It can be said that due to the present action taken fear was created in the minds of those Muslims. This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims.”

Significantly, even though Justice Sewlikar agreed with the operative portion of the judgment, he disagreed with Justice Nalawade’s reasoning for it.

The Tablighi Jamaat, it may be recalled, was widely criticised for hosting a congregation in Nizamuddin, New Delhi, from March 13 to 15, and was held responsible for the spread of COVID-19 by a large section of the electronic and print media when news of early infections trickled in on March 30. Some of its members were incarcerated for over two months under various provisions of the Indian Penal Code, the Epidemic Diseases Act, the Foreigners Act and the Disaster Management Act. The Nizamuddin markaz (centre) was sealed and asymptomatic volunteers were quarantined at different places. The Tablighi Jamaat chief, Maulana Muhammad Saad, was charged with culpable homicide. The social outrage at the religious meet allegedly forced a volunteer from Himachal Pradesh to take his life after he was subjected to abuse by villagers. The visitors sought relief from the court, pointing out that they had entered the country with a valid visa, undergone tests for COVID-19 prior to travel, and had been left stranded at the mosque owing to the lockdown.

In the aftermath of the March 30 incident, 3,500 Tablighi Jamaat volunteers from 35 countries were detained at various government and private facilities, and FIRs filed against them across the country. In Maharashtra, too, the police did likewise, following instructions from the Ministry of Home Affairs. The court observed: “The Maharashtra police acted mechanically. It appears that the State government acted under political compulsion and police also did not dare to exercise powers given to them under provisions of procedural law like CrPC and substantive laws. The record shows that there was non-application of mind by police and that is why even when no record was available to make out prima facie case, charge sheets are filed by police.”

Allegations of conversion

The court rubbished the charges of Tablighi volunteers seeking to convert non-Muslims to their faith. Incidentally, the Tablighi Jamaat, founded in 1927 in Mewat by Maulana Mohammad Ilyas, works only among Muslims, aiming to promote ideals of Islam among them. Its volunteers undertake 40-day and four-month self-financed outstation trips for spiritual rejuvenation. It has no outreach programme for people of other faiths. The court held: “The material on the record shows that Tablighi Jamaat is not a separate sect of Muslims but it is only a movement for reformation of religion. In any case, even from the record it cannot be inferred that the foreigners were spreading Islam by converting persons of other religion to Islam. The record shows that the foreigners were not talking Indian languages like Hindi or Urdu and they were talking languages like Arabian, French etc (sic).”

Dismissing the allegations of the foreigners seeking to convert Indians, the court observed: “Unless a particular programme of such foreigner or idea of such foreigner or doctrine or set of principles proposed by him do not create unrest in that religion or society, one cannot prevent the foreigner from expressing his ideas about reformation. There is no such specific allegation also against the foreigners. Nothing is said as to which ideas the foreigners were propagating.”

Upholding the petitioners’ right to offer prayers at any mosque, the court held: “It is true that in view of wording of Article 19 [the right to freedom of speech and expression] of the Constitution of India, the freedoms given under this Article are not available to foreigners, a person who is not the citizen of India. However, it needs to be kept in mind that when permission is given to the foreigners to come to India under visa, Article 25 [freedom of professing religion] comes into play. Then Articles 20 and 21 [that relate to fundamental rights] are also available to the foreigners.”

The Bombay High Court verdict came on the heels of judgments by the Madras High Court and the Karnataka High Court, both of which allowed the visitors to be released. The Madras High Court found their incarceration unreasonable and unjust, and gave the foreigners a clean chit on the issue of the spread of COVID-19. The foreigners filed affidavits expressing regrets for visa violations in order to obtain release. The Karnataka High Court, too, ordered the quashing of criminal proceedings against nine foreigners, even as it refused to do the same against seven Indian nationals.

The Bombay High Court verdict was followed by a Delhi court discharging eight members of the Tablighi Jamaat who faced trial at Saket District Court in New Delhi, stating that there was “no prima facie evidence” against them. The verdict came as 44 men had decided to stand trial in Delhi, refusing to take up a plea deal. It may be recalled that soon after the March 30 detention of hundreds of Tablighi members, as many 955 foreigners were charge-sheeted by the Delhi Police for allegedly violating their visa terms and conditions, not following the COVID-19 restrictions and indulging in proselytisation.

The rulings of various courts came as a relief to Tablighi Jamaat members who had been subjected to the worst form of Islamophobia. Some of the television news channels had coined hashtags such as “human bomb”, “corona jihad” and “corona spreaders”. Fake news and fake videos holding the Tablighi Jamaat responsible for the spread of COVID-19 were circulated, discarding the fundamental principles of journalism. Even newspapers used terms such as “Tabligh men hiding in a mosque” for volunteers stranded in the Nizamuddin mosque owing to the lockdown. Incidentally, the term “stranded” was used for pilgrims from Vaishnodevi who had been left in the lurch in Jammu owing to the sudden imposition of the lockdown.

The Bombay High Court bench stated in its judgment: “There was a big propaganda in print media and electronic media against these foreigners who had come to Markaz... and an attempt was made to create a picture that these foreigners were responsible for spreading COVID-19 virus in India. There was virtually persecution against these foreigners.” These words may just be what the members of the Tablighi Jamaat needed to hear after the sustained vilification.

COVID-19: Government's statistics

COVID management: Hollow claims by the government

T.K. Rajalakshmi the-nation

“Only one country in the world has tested more than us,” stated Union Health Secretary Rajesh Bhushan at a press conference on September 3. He did not specify the country but was alluding to the United States. He also stated with unconcealed pride that India had conducted over 11 lakh tests in the previous 24 hours. What was unsaid and went totally ignored in the press conference was that the daily spike in cases had crossed 80,000 on at least two days, making India the nation to report the largest single-day spike so far or that India was inching towards replacing Brazil as the number two nation with the largest number of COVID-19 cases.

Rajesh Bhushan also said that 29,70,492 people had recovered; this, however, was the cumulative figure since March. He said that the recoveries were three times the number of “active” cases. But he did not clarify that the figure for recoveries was the cumulative number, while the 8,15,538 active cases that he mentioned referred to patients who were currently infected.

Nearly 62 per cent of the active cases were from Maharashtra, Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Karnataka. The five States accounting for 70 per cent of deaths were Maharashtra, Andhra Pradesh, Tamil Nadu, Delhi and Karnataka.

When media persons expressed concern about the surging cases, Rajesh Bhushan said that the rationale behind “Unlock 4.0” was that “while lives had to be saved, livelihoods also were important”. He had little to add about the government’s plan to restore livelihoods that had been lost over the last five months, which also saw many people coping with salary cuts.

It is notable that irrespective of the visible threat posed by growing infection, especially in August, the Health Ministry went along with the directive of the Home Ministry and the University Grants Commission to educational institutions to conduct examinations, offline and online, for terminal semester students by the end of September.

India currently has the third largest number of cumulative COVID-19 cases, 3.93 million, and appears destined to go up one place by crossing Brazil’s tally in a short while. Its total now exceeds the aggregate for the entire continent of Europe as well as that of the whole of Asia other than India and is over three times the reported figures of the African continent. India has also the third largest number of deaths (68,000) attributed to the pandemic among all countries, having crossed Mexico’s tally recently.

The government’s argument was that as India’s population was bigger, the number of cases was also on the higher side. However, no comparison at any stage was ever made with China, which is similarly populated and where the cumulative number of COVID cases (85,077 as per Worldometers) now is equal to the daily number of cases reported in India.

Testing rates

In a self-congratulatory tweet on September 4, the Health Ministry said: “India continues to scale new peaks in COVID-19 tests! More than 11.7 lakh samples tested daily for two consecutive days. No other country has achieved these levels of very high testing. Even with such high daily testing levels, daily positivity rate is less than 8.5 per cent. This reflects that the Centre led strategy of Test-Track-Treat is being effectively implemented by the States and Union Territories.”

Yet, the facts tell a different story. In several countries with smaller populations, the number of tests per million population exceeded India’s. In China, which has a population comparable to that of India, 111,163 tests per million had been conducted against 32,922 in India. The total number of tests in China amounted to 16,00,00,000 against 4.5 crore in India. This was despite the fact that COVID-19 deaths in China were fewer than 5,000 (4,634, according to Worldometers), whereas India’s death toll has crossed 68,000.

According to the government’s own data. testing rates picked up only in August. From 10,000 tests in April, the number went up to 10 lakh in May and 50 lakh in June. It was clear that had the government gone in for aggressive testing right from the beginning, the spread would have been contained.

There has also been reasonable scepticism about the antigen tests that now comprise a good 30-40 per cent of the total samples tested. Compared to the gold standard RTPCR tests, antigen tests are less accurate.

The claim that the number of active cases had reduced in some of the worst affected States was also not accurate as the total number of active cases far exceeded the number of recoveries in those States. Characteristically, the government did not reveal the extent of the spread of the infection to newer areas.

The government has from the very beginning sought to play down the inadequacies of the health infrastructure and the prevalence of community transmission of the virus.

It has also not revealed so far how other health services have been adversely affected as much of government health infrastructure had been diverted for treating COVID and related morbidities.

The August surge

August has been a grim month for India. Almost two million new cases were detected, which made up 54.1 per cent of India’s cumulative total by the end of August. Within this one month, both the one and two million levels were crossed and then almost 70 per cent of the additional distance to the four million mark was also travelled. Since the proportion of tests done in August was also at 55.1 per cent of the total done since the beginning, it can be said that testing has kept pace with the growth of the infection and greater testing is not the reason for larger numbers, as claimed by the government. The overall test-positivity ratio has remained within the 8.5-9 per cent range over the month, and this is despite the rising proportion of the less accurate rapid antigen testing in India. Even with respect to deaths, which are less influenced by testing, August presented a bleak picture: the close to 29,000 deaths in the month accounted for 44.1 per cent of the cumulative total. In other words, the country ended up experiencing in August almost exactly what it had gone through cumulatively in the previous six months. Rajesh Bhushan’s claim at the Health Ministry’s press conference that the death rate at 49 deaths per million was among the lowest in the world was also not correct.

The news in the first three days of September brought no cheer as India shattered once again the world record for the largest number of cases reported by any country in a single day, breaking the record set by itself towards the end of August. As compared with the previous highest single-day figure in the Health Ministry data of 78,761 cases reported on the morning of August 30, September saw 78,357 fresh cases being reported for the first day of the month and then a whopping 83,833 on the next. This was almost repeated on the third day when 83,341 cases were reported.

India’s COVID growth much faster

India’s August picture does not reflect a global surge as its cases of infection and deaths have grown much faster than the world average. India’s share in the world’s total of confirmed cases rose from 9.4 per cent to 14.4 per cent over the month and that in deaths went from 5.4 to 7.7 per cent (Worldometers data). If the situation in August alone is considered, India has contributed the highest number of cases to the world’s tally, well ahead of both the U.S. and Brazil, and almost matched these two countries in contribution to global deaths during the same period (see table).

India’s surging numbers have meant that its per capita counts of cases and deaths have been among the fastest rising in the world. (These were relatively low in the early stages of the pandemic because of the late onset of the epidemic in the world’s second most populous country.) Both the above sources, considered reliable data sources, indicate that more countries in the world now have lower per capita incidences of both cases and deaths. Even more significantly, while this set of countries with lower per capita levels of cases and deaths than India’s are spread across all continents, they include almost all countries in East, South East and South Asia, even Bangladesh, Pakistan and Nepal. India is truly a standout case in a negative sense after geography, demographics and economic status are all accounted for. So much, then, for the official claim that India’s per capita figures are among the lowest in the world—which appears to be a blatant misrepresentation of the facts.

The myth of “high recovery” rates

Of late much is being made of the large number of recoveries and the low fatality rate in India. However, a large number of recoveries, or a rapid growth in the number of recoveries, basically reflects with a lag the number and growth of confirmed cases, since most people infected do ultimately recover within 10-11 days of being tested positive (and this period is shorter if the infection is detected at a later stage.) Thus, while the number of recovered patients increased by about 1.74 million over the month of August, the number of confirmed cases in a period of identical duration up to August 22 was to the order of 1.78 million. It is odd, therefore, to see this failure to check the spread of the infection being claimed as some great achievement. The point that is missed is the large spread of COVID-19 in India, which is what the large number of recoveries indirectly imply. Thus, in the month of August, despite the rise in the number of recoveries, the number of active cases continued to rise—to almost eight lakh by the end of the month compared with 5.65 lakh at the beginning. Moreover, even with a declining trend in the case fatality ratio (CFR), the number of deaths is already large and is becoming larger.

CFR patterns similar

Fatality ratios in any case have tended to come down the world over with increasing experience of dealing with COVID-19 patients and with a rising proportion of younger people getting infected. This is true even in the high-income Western economies where fatality ratios tended to be the highest in the early months of the pandemic. Thus, even in the U.S., which accounts for the largest number of deaths in the world, the fatality ratio during its second wave has been much lower than in the first. Between June 25 and August 31, the U.S. added over 3.70 million to its total tally of cases and just about 60,000 to its death toll (data from Worldometers). Compare this with India’s total of 3.69 million cases and over 65,000 deaths by the end of August—keeping in mind that 87 per cent of this total of cases and 77 per cent of the deaths were in the period after June 25.

At a video conference with the Chief Ministers of the 10 most badly affected States on August 11, Prime Minister Narendra Modi said that the target of reducing the fatality ratio to 1 per cent could be achieved. The fatality ratio is the ratio (percentage) of deaths of infected people to the total number of confirmed cases of infection. Since over 68,000 deaths have already been recorded, a fatality ratio of 1 per cent would be impossible to attain unless the number of cases is at least 6.8 million (since 68,000 is 1 per cent of 6.8 million). However, even if a progressively smaller proportion of infected people die in the days ahead, the number of deaths will go up significantly by the time the cases increase from the present 3.93 million to 6.8 million. In other words, the fatality ratio would still be above 1 per cent and the process would need to go on further to reduce the ratio to the 1 per cent level. So, for the Prime Minister’s target to be achieved, the total number of confirmed cases will perhaps have to top at least 10 million. Is that what is in store for the country?

Interview: Dr Poonam Khetrapal Singh

Poonam Khetrapal Singh: The pandemic is far from over

T.K. Rajalakshmi the-nation

The rising graph, and resurgence, of COVID-19 cases globally presents a new set of challenges to governments. With no cure in sight, health experts and governments are increasingly of the view that physical distancing and hygiene are the only options available until a vaccine is developed. Many governments have also given directions for the resumption of all economic activity which, in turn, seems to have contributed to the rising numbers. Dr Poonam Khetrapal Singh, Regional Director of the World Health Organisation’s office for South-East Asia, spoke to Frontline on the reasons for the resurgence, disruption of essential health services, vaccine development and the importance of collaborations between countries in the search for a cure and vaccine. Excerpts from the interview:

Countries in Europe that earlier showed signs of tapering, such as Spain, now show a rising graph of infections. In France, too, infections seem to have gone up in all age groups. What does this indicate?

The pandemic is far from over. Whenever responses slow down, including complacency on the part of the public with regard to safe behaviour, the virus bounces back. It is important to keep suppressing the virus. We are seeing instances where countries that had managed to curb the infections are now seeing a re-emergence. It is important to quickly identify any new case or cluster so that it does not spread in the community. For this, we need to make sure we test, treat and isolate and quarantine contacts so that any resurgence can be identified and stopped.

COVID-19 affects people across all age groups. As individuals, we have to continue to remain vigilant and be responsible for ourselves and the health of others. We know what that takes: keep our hands clean, maintain a distance of at least a metre between ourselves and others, avoid crowded places, practice respiratory hygiene and wear masks wherever recommended. Until such time when there is a medicine or a vaccine to protect us from this virus, this is how we have to protect ourselves.

Are countries testing adequately? In India, a WHO guideline states the adequate level of testing as 140 tests per million. Can this apply to large populations such as India’s?

Testing is an important tool in battling the COVID-19 pandemic. India has significantly ramped up its testing capacity from 100 a day early in the outbreak to more than 8,00,000 a day currently. We are aware that as of August 30 as many as 4,23,07,914 cumulative samples have been tested. On the same day, 8,46,278 samples were tested across the country. The more we test, the better we will know and understand the spread of transmission which will help us further strengthen our response.

The WHO has repeatedly warned that plasma therapy is not a conclusive and proven cure. Why then do countries and hospitals push it as a “cure” and encourage people to donate plasma?

The WHO is doing a living meta-analysis of all published trials that are ongoing for therapeutics, including plasma. The WHO recognises COVID-19 convalescent plasma as an experimental therapy that is appropriate for evaluation in clinical studies. Further clinical evidence is needed before guidance can be provided on its clinical use. The WHO recommends strongly that COVID-19 convalescent plasma should be used in clinical trials as the most effective and efficient strategy to determine the efficacy and safety of this experimental therapy.

Many governments are opening up offices and institutions and even insisting on students giving examinations. We know that health systems have come under immense pressure dealing with the pandemic.Do you feel countries that have reported more than 50,000 cases on an average should focus more on getting the numbers under control rather than conduct work as if it is business as usual?

COVID-19 has affected lives and livelihoods the world over. Easing lockdowns, countries globally are opening up and transitioning to the new normal. Whatever the transmission scenario, continued focus on core public health measures—test, trace, isolate and treat; hand hygiene; cough etiquette and social distancing—are a must. Our focus should continue to be protection of health care workers and the vulnerable population which should inform the adoption of appropriate measures by the government. Along with measures and recommendations of governments, continued community involvement is important. Every individual should contribute, by adopting appropriate hand hygiene and social distancing measures. This is a pandemic. We all need to join forces to combat it.

Vaccine research is in different stages in different countries. There is much anticipation about the discovery of a vaccine by the COVAX vaccine facility that promises to roll out vaccines, but not before the end of next year. Do you think that countries should embark on serious course correction with respect to investing in public health?

Currently, over 169 vaccine candidates are at various stages of development. Of these, about 26 vaccine candidates are under human trial and we know of at least three or four going into phase III. The COVID-19 vaccine pipeline is very robust. The more candidates we have, the more the opportunities for success—depending on their results. The COVAX facility is speeding up the search for an effective vaccine for all countries and at the same time supporting the building of manufacturing capabilities and buying supply ahead of time so that two billion doses can be equitably distributed by the end of 2021.

The pandemic has affected health systems globally, prompting countries to rethink how to have essential health services functional during COVID-19 response. It is true that essential health services were affected. Areas such as immunisation, non-communicable disease care and youth services are just some examples of services that were disrupted while health systems struggled to cope. We are encouraged by the signs we are seeing now of those services resuming in parts of the world and in significant measure in the WHO South-East Asia Region. While the pandemic exposed several weaknesses within health systems, there is a strong focus on building back.

What is the WHO’s opinion on the Russian vaccine?

The WHO welcomes all vaccine development programmes around the world, and we are very encouraged by the fact that there are several candidate vaccines in various stages of clinical trial, including the Russian vaccine Sputnik V. The WHO has started discussions with Russian authorities to learn more about the vaccine candidate. Sputnik V is about to start phase III clinical trials, we understand.

A vaccine should offer a minimum of 50 per cent efficacy in preventing infection with a lower bound of at least 30 per cent protection at the population level and should be safe, among other factors.

With the world in the grip of such a crisis, and its economic ramifications, is it not in everybody’s interest to collaborate towards the common goal of saving humanity rather than compete or blame each other for the crisis? This question is in the context of China and the decision by some countries to economically boycott it.

The rapid global spread of COVID-19 has demonstrated that pathogens do not respect local, national or international boundaries. Hence, the world needs to work together to share knowledge on the virus and its transmission dynamics, suppress the current outbreak by implementing core public health measures, and prevent any future outbreak from adopting pandemic proportions. We are already seeing this, especially in the collaboration on the COVID-19 vaccine and therapeutics.

Diary from Trumpland

U.S&China: A hybrid war

Vijay Prashad world-affairs

On July 23, United States Secretary of State Mike Pompeo delivered a speech with the strong title “Communist China and the Free World’s Future” at the Richard Nixon Presidential Library in California. Pompeo said that U.S. policy regarding China for the past 50 years had failed. At Nixon’s own library, Pompeo said that the policy of mutual engagement opened up by Richard Nixon’s visit to China in 1972 had not borne the fruit expected by the U.S.

But Pompeo’s extravagances are not alone, and U.S. pressure has not managed to scare China. For every thrust made by the U.S. government, China has retaliated in kind. When the U.S. threatened to expel Chinese technology companies, the Chinese government threatened to expel U.S. technology firms. The U.S. sent its navy alongside the Chinese coastline; the Chinese fired powerful missiles into the South China Sea. Trump’s intimidation, which threatened a war that no one seems to want, has not worked on Beijing.

At the Nixon Library, Pompeo pointed his finger at the familiar litany of accusations from the U.S. government: that the Chinese government allowed the coronavirus to spread out of control, and that it was repressing freedom in Hong Kong and Xinjiang. But these were not the real issues. The real issue is the advance of China’s economy, particularly in the arena of the next generation’s technology. “We’re seeing staggering statistics of Chinese trade abuses that cost U.S. jobs and strike enormous blows to the economies all across America, including here in southern California,” said Pompeo. This was the heart of the matter. Every other detail was merely icing on the cake.

The real threat to the U.S. comes from the rise of Chinese technology companies. Last year, China’s firms and scientists registered more patents than their counterparts in the U.S., while Chinese scientists have now published more articles in scientific journals. Moreover, there is already evidence that Chinese firms have begun to produce the next range of technology—including 5G and BeiDou (a GPS-type mapping technology)—that would help Chinese manufacturing leap a generation or more ahead of U.S. technology firms.

Next-generation technology

The U.S. government’s political attack on Huawei, which is one of the key 5G firms, is part of this attempt to roll back Chinese economic expansion. At the Nixon Library, Pompeo said, “We stopped pretending Huawei is an innocent telecommunications company that’s just showing up to make sure you can talk to your friends.” Instead, the U.S. sees it as a “national security threat”.

There is a threat to the “security” of the public; this threat has come from the U.S. government. The U.S. government says that Huawei and ZTE are threats because they channel private information to the Chinese government. There has been a public relations campaign to suggest that the real threat to privacy is from the Chinese state, when it is already clear—thanks to the revelations from Edward Snowden and The Washington Post—that it is the U.S.’ National Security Agency (NSA), and its cosy relationship with major telecommunications firms, that threatens global privacy. The Corporate Partner Access Project, BLARNEY, OAKSTAR, FAIRVIEW and STORMBREW—all code words for these projects—are NSA programmes that pay U.S. telecommunications and technology firms for direct access to their networks. The U.S. government has already compromised privacy.

But Pompeo is right. The arrival of the Chinese firms is a threat to U.S.’ “national security”, but not in the way he describes it. The U.S. manufacturing sector’s contribution to its gross domestic product (GDP) has fallen over the past decades; the largest contributions come from real estate and the technology sectors. Any dent in the advantage to the tech sector would not only damage the U.S. economy but also hurt other ancillary sectors that have come to rely on tech growth. If Chinese firms overtake U.S. firms in these key areas of 5G, robots, high-speed rail, and the Internet of All Things, then this would have a major negative impact on the U.S. economy, and so damage its “national security”. What drives Pompeo’s concern, therefore, is not just reckless anti-communism, but a genuine worry that the rise of firms such as ZTE and Huawei will fatally strike the U.S. tech sector.

In late August, Pompeo appeared on the business television channel CNBC to reiterate the U.S. attack on China’s tech sector. Once more, he spoke of “national security” and of the U.S. government’s attempt to protect U.S. citizens from Chinese espionage; as usual, the hosts did not raise the issue of U.S. espionage revealed by Snowden and The Washington Post. But in this interview, Pompeo showed how U.S. rhetoric outstrips the ability of the U.S. to dominate the debate.

On August 14, U.S. President Donald Trump signed an executive order that gave ByteDance, the company that owns the social media app TikTok, 90 days to spin off its U.S. operations. This followed an August 6 order that blocked all transactions with ByteDance, which is based in China. Eighty million users of TikTok, many of them young people, are based in the U.S.; its global audience is 1 billion. Trump pushed for the Chinese firm to sell its U.S. operations to a U.S. firm, with Microsoft and Oracle getting in the queue.

China answers

China retaliated by updating its export control rules. The Chinese government said that any sensitive technology, such as TikTok’s algorithm, would need an export licence. All this is part of a wider Chinese retaliation that suggests that firms such as Alibaba and Baidu might not be permitted to do business in the U.S.. It needs to be said that most of the market for Chinese firms such as ByteDance and Alibaba is not in the U.S. but inside China (the most powerful Chinese firewall is not government intrusion but Mandarin).

No wonder, then, that Pompeo sounded mellower in the CNBC interview. The Trump administration is open to negotiation with Beijing, he said. Yet he added that the U.S. would maintain its tough stance in the interest of U.S. national security. Speaking specifically about TikTok, Pompeo suggested that the U.S. might back off. “I predict that TikTok will no longer share its private information that belongs to the American people to the Chinese Communist Party,” he said. “I’m confident that they won’t be doing that.” This suggests that the Trump administration might be willing to allow ByteDance to continue to run U.S. operations, or at least to take a lighter touch in these negotiations.

South China Sea

Meanwhile, Trump has sent a major naval presence into the South China Sea, where U.S. warships have already faced a serious challenge. The U.S. Navy recently sailed its destroyer USS Mustin near the Xisha Islands. The governments of Vietnam, China and Taiwan all cautioned that the dispute not be militarised. Several U.S. carrier groups and destroyers, such as the USS Ronald Reagan, the USS Nimitz, and the USS Gabrielle Giffords, have sailed through this key shipping channel, buzzing the Chinese coastline, looking for a confrontation.

On August 25, the U.S. sent a U-2 spy plane into a no-fly zone near the Chinese coastline during a Chinese military drill in the Bo Sea, near the Korean peninsula. The Military Museum of the Chinese People’s Revolution in Beijing posted a picture on social media of five U.S. U-2 spy aircraft that had been shot down in the 1960s. The next day, the Chinese military launched two missiles, DF-26B and DF-21D, into the area near the Xisha Islands. These are colloquially called “aircraft-carrier killer missiles”, with the DF-26B having a range of 4,000 km and able to carry both nuclear and conventional missiles.

On August 27, the U.S. government condemned the missile launches, saying that they would “destabilise the situation in the South China Sea”. The next day, in his regular press conference, Chinese Foreign Ministry spokesperson Zhao Lijian put the onus on the U.S. “The U.S.,” he said, “has frequently dispatched in large numbers advanced warships, fighter jets and reconnaissance aircraft all the way to the South China Sea to project its power and engage in military provocations…. The U.S. has become the saboteur and troublemaker of peace and stability in the South China Sea.”

Meanwhile, as a sign of the complexity of these issues, the Chinese candidate Duan Jielong was elected to a nine-year term on the International Tribunal for the Law of the Sea on August 24. This tribunal is part of the United Nations Convention on the Law of the Sea (UNCLOS). The U.S. is not a signatory to the UNCLOS, but nonetheless tried to block the appointment of Duan Jielong. China’s Foreign Ministry spokesperson Zhao Lijian said: “China’s success in the election illustrates once again that certain country’s suppression of the Chinese nominee out of selfish interest is both unwelcome and futile.” He was talking about the U.S.

INTERVIEW: DAVID REICH

David Reich: Harappan ancestry is the single largest source population for almost all people in India today

G.N. Devy heritage

Professor David Reich is a scholar of genetics and is Professor at the School of Medicine at Harvard University. His phenomenal work Who We Are and How We Got Here (2018), resulting out of long years of research came into discussion in India through a serialised review in The Hindu, which was detailed and laudatory in tone. The review aroused my interest in the work and I quickly got hold of a copy of the book. Ever since I read it, I have not stopped feeling amazed at the range of facts and ideas Prof. Reich has presented in the book. The work should be of interest to Indian readers and scholars of history and culture because it has serious implications for the history of India as it has been read so far.

Neither the leftist historiography used for representing Indian history nor the revisionist-nationalist historiography has ever privileged the south over the north. Prof. Reich’s observations and the results of his analysis suggest the need for a paradigm shift in the approach. One must add that for the last three decades in India intellectuals have witnessed a raging conflict of views on history, the origin and the place of the Sanskrit language and the people who used it being the main ploy in that noisy debate. One does not know if Prof. Reich is aware of the historiography debate, but he surely is keenly aware of the wilful distortion of history during the fascist regime in Germany. At the very start of his book, he places on record his stand on Hitler’s notion of a ‘superior race’ and the contempt resulting out of that for other races. For a scientist dealing with genetics, I should think, this is really a significant starting point, because the science they practice, if used tendentiously, may lead to genocide. I had requested Prof Reich time for a serious conversation. The online conversation took place in June 2020. It is produced here in a version of the transcription approved by Prof. Reich.

Excerpts:

In your book, you have covered a phenomenally long span of history and pre-history of many continents, including India and East Asia. The first inhabitants on the subcontinent, in your opinion, came out of Africa, and are in Andaman. From there, they spread out to what is now south India, and from there they moved north. In that movement, their language also migrated with them. And probably, as you mention several times, the link between the Indus Valley Civilisation and those who were in the south is a subject worth exploring. It has not been finally determined if such a link actually exists. I was reading about the undeciphered Indus script; and it is still an unsolved mystery despite many claims to solving it. I would like you to comment on the probability, rather high probability, of pre-Dravidians moving to the Indus Valley, and then being pushed back. How does your science reflect on some of these areas which are still a mystery for Indian historians?

Thank you for the opportunity to have a conversation and for your kind words about my book. I’m really happy it was able to reach you and some people in India. Well, you touched on many topics and your questions range over a wide timescale. I’m going to briefly touch on the earlier part of your question and then focus on the latter part.

The earlier part of your question concerns the first human in India. It is quite clear that before two million years ago there were no humans in Eurasia. ‘Homo’, which is our genus, arose in the paleo-anthropological record in Africa and spread out of Africa into Eurasia two million years ago with the first known skeletal remains and archaeological sites in the Caucasus, in Indonesia, and then spread to other places throughout Eurasia, including India.

But the ancestors of modern humans in India only spread there after 50,000 years ago, where there is evidence for a later large-scale spread of anatomically modern people, peoples whose elements look like ours and look fully modern. This migration, once again, is out of Africa, and it displaces the previous set of humans throughout Eurasia, throughout Europe, East Asia, in South Asia, and elsewhere in Eurasia, albeit with a little bit of mixture with the archaic, previously established humans. The modern ones had skeletons like ours, and the modern occupation of Eurasia, including India, begins in earnest after about 50,000 years ago. We don’t know where modern humans arrived first out of Africa and what was the path of their spread. In the Andaman Islands today, we have people who seem to be relatively unmixed descendants of some of the first people in different parts of Eurasia, just like the ones in Australia and New Guinea. It is not clear whether there has been continuous occupation of the Andaman Islands since that time, or even if they are very early habitation of these islands. Most likely, Andaman ancestors lived in South-East Asia or the South Asian mainland. The mainland is much more likely to be the source of this population than an early migration to the Andaman Islands themselves because the mainland is so much bigger and a richer environment. Where in the mainland is unclear though; it might not be to the Indian subcontinent itself but rather to parts of Indonesia, for example, Sumatra or to Myanmar.

But your question revolves around the formation of the present-day population structure of South Asia. South Asia is one of the most diverse places on earth, with many hundreds of languages, reflecting great human diversity, and there is great genetic diversity as well. One of the things that we see when we look at genetic data from diverse people in India is that the great majority of groups in India, but by no means all groups, speak Indo-European and Dravidian languages. These are the two largest language families in India, and which are genetically well described as being arrayed on a gradient of different proportions of ancestry, different proportions of inheritance, from two very different ancestral populations, as different from each other as Europeans and East Asians. We have known for 11 years in India with this gradient of different proportions of these two highly divergent ancestries.

This came out of the work that we did in collaboration with K. Thangaraj in Hyderabad’s Centre for Cellular and Molecular Biology [CCMB]. We spent a lot of time over the past decade, trying to understand the origin of this major gradient of ancestry in South Asia that accounts for almost all of the ancestry in people speaking Indo-European and Dravidian languages, but does not account for unique and special ancestry that is common in people speaking Austro-Asiatic and Burmese languages. So most of the work we have done is focussed on that gradient. I’m happy to tell you what we have learned in the last decade about the origin of that group.

Professor Reich, after those 10,000 samples that you studied in the Hyderabad-CCMB, is there an ongoing collection of samples, and are you aware if they are being analysed again?

This project is being led in Hyderabad. There was a time in the late 2000s when the collection was intense. There was a large-scale programme by the Indian government through the CCMB that involved many students, usually masters students who would do collections in diverse villages throughout India, trying to catalogue ethnic diversity inside the Indian subcontinent. Today, if I remember right, there are 18,000 or so samples from something like 500 groups. There is a minimum of 4,500 documented ethnic groups in India. There are some 10 times more unsampled groups than sampled ones, depending on how you count.

And so this is in the end only a fraction, maybe 10 per cent, of the diversity in terms of groups in this incredibly diverse country. But that collection is ongoing. It is not as well funded as it used to be before. So the new collection is not as active, but I know this is an absolutely central project. And it is important for health care for India. Nearly everyone belongs to these groups and each group has its own genetic susceptibilities to different illnesses, just like other groups in the world do, and each one needs to be studied ‘on your own and for its own sake’ in order to characterise those susceptibilities.

Migrations

Yes, of course, the study of the unspoiled cells makes sense in stem-cell research. It will be important for health, of course. However, some of the indigenous communities are terribly worried about this. That is, they have ethical issues related to such research; but I’m not bringing those questions in, because you are far more aware of the ethical questions in science research. I will not get into that. I want to ask you one question about the possibility of migrations. When you draw conclusions about migrations, do other sciences help in consolidating your conclusions or are they entirely based on the study of the genomic properties and dating? You mentioned earlier archaeology, which is from your perspective more recent history. But because one does not have great clarity about several views of at least two or three very distinct migrations, one does not have great clarity in the field of history and historiography related to India. One is the northern migration to the south bringing with it language, epics, culture, myths, gods and food habits. And it is clear that, that happened. What we have is only mixed myths; and they are no evidence for building any theory about that migration. But in the ancient migrations that you have discussed in your book, the use of ships is to be taken into account, at least of some kind of seafaring, particularly going from south India, right up to the area of the Sumerian Civilisation. Was there in use any such transportation device about 6,000 to 7,000 years before our time? Do you have or do you normally use all that supporting evidence drawn from study of material culture or oceans study or agronomy, for instance? India has a unique dual kind of agricultural practice. One is wheat based and the other is rice based. We have been following two cultivation seasons. Did you make use of all those inputs in drawing your conclusions?

Absolutely, we do. I think there are many areas of inquiry. We have limited information about the deep past and writing really captures only the last, maybe 3,500 years in the oral tradition or probably not more than 3,500 or 4,000 years old anywhere in the world or 5,000 years old from the places where writing was earliest. And so we don’t have any information deeper in time from writing, which is a particulary rich source of information. Maybe we have some information from mythology that gets passed down, which is another type of information we could potentially use. And then there is the languages people speak since languages are related to each other and we can reconstruct their ancient vocabularies and decode that there are linkages between the languages that are spoken in different parts of the world or in different regions. And when there is a paired language, we know from ethnographic and anthropological studies of the present-day people that language usually, not always, spread through large-scale movements of people, especially women. And so, the fact that people share languages is often a clue that there is some movement of people.

Then finally, there is the archaeological evidence, the material culture remains that people leave behind, the types of buildings they make, the types of tools, in the shape of the stones, the styles of making bricks, the types of ornamentations that people made, and the types of foods they ate. You can actually see from the remains of their food what types of food people ate and see where people ate some kinds of foods, other people did not eat those kinds of foods—again evidence of connections between people, which we can directly measure. One thing that is interesting about the past is that it is not the only thing that is interesting. The past may not even be the most important thing, but it is a thing. And what that is, whether we can get a human skeleton and connect and obtain DNA from it, which has become possible in the past 10 years. We can ask the question, if people between these two ages and sites are related closely to each other or are they not so related. And if we obtain human skeletal remains over time, from 10,000 years ago, some from 7,000 years ago, from 4,000 years ago, and 2,000 years ago, and compare them to people from the present, we can see whether it is the case that people who live in that region today have descended from the same ancestors who lived there 10,000 years ago, or whether there has been additional movement and migration and contribution from people who live outside that geographical area.

What has become possible in the last decade, not just in India but in very many places in the world, is to get DNA out of ancient archaeological sites—and archaeologists have thorougly studied and characterised and understood the culture associated with them—and see how they are related to later archaeological sites in the same region or related to people today. What you can see in many cases—and what we are learning from the genetic data—is that it is almost never the case that in any place today, people are directly descended without mixture, without external input, from the same people who live there 10,000 years ago. We know that very well in Europe where we have a huge amount of data.

The people in Britain today, for example, inherit almost no ancestry from the people who lived in Britain 10,000 years ago. We have DNA now from people who live in Britain, right after the end of the last ice age, 10,000 years ago, and we can tell from the genes of these people, we can predict the colour of their eyes and the darkness of their skin. They probably have blue eyes, very dark skin almost as dark as people from sub-Saharan Africa. But about 6,000 years ago in Britain, there was a large-scale movement of people bringing farming from the continent. And there was a 99 per cent replacement. The British population was of farmers; and then again a little bit after 4,500 years ago there was another 90 per cent replacement. So the people of Britain cannot claim that most of their ancestry comes from people who live in Britain. To the contrary, there has been a tremendous amount of churn.

It is the same with India. the people who live in any one place today inherit some unbroken ancestry, sometimes probably more than in the case of Britain, but most of the ancestry of any person does not come from people who live within the same 500 kilometre or even 1,000-km radius, where they now live. Today, we are all mixed with the chain of human heritage and we have received input from many different places. And what we gained during the last decade of research in India is that now we know a lot about the origins of the gradient of ancestry. I told you about two groups. Each of them is different from each other as Europeans and East Asians. We know how that population collision and mixture occurred after the end or during or after the end of the Harappan Civilisation, a little bit after 4,000 years ago. The mixture began at that point.

Jati and varna

This brings me to the question of jati and varna, which you have briefly discussed in your book when you give this extraordinary example of the Vyasa community in Telangana. Your thesis is that, probably, this community has managed to keep itself untouched by external genetic contact. India has now something like 4,000 or more communities, and each one thinks of itself as a jati. Some describe themselves as a ‘tribe’. Historcally, the varna system has caused a huge amount of injustice to women and those were seen as ‘lower’ in the jati and varna hierarchy. Now, of course, science need not worry about this history, because it is what people did. But the conclusion about non-mixing of the genetic traits within a community, is that overconfidence of science? I may be asking this question out of sheer ignorance, but for us in India, this is a very important issue. In fact, the ‘dream of India’, the idea of modern India is to get out of the cage of caste and varna and think of all of us as equals. Caste and varna are, even today, unfortunately a part of the mindset of most Indians. So, while your entire book convinces me that all of us are basically mixed-humans, suddenly getting an evidence that some Indian communities have preserved themselves in the purest form, though such communities—population islands—may be small in numbers, makes me uneasy. I am not questioning your method or conclusion. I should add that in your book you so vehemently, clearly reject the idea of racism and stereotyping. You refer to how Hitler actually misused science to create a fraudulent political discourse. My question is: ‘What more needs to be done after your book in order to convey to Indians that these jati islands are something other than jati islands? The jati is a concept and what genetics are describing is a genetic features of a group, and not the thinking surrounding that group’s identity. In other words, I am asking you how to use your research without its conclusions being misunderstood as a justification of jati, though entirely unintended by you? My question implies that science may be an articulation of some previously unknown truth. And this objective need not be explicitly stated. But, in strange times such as the present time, ideas bundled together as ‘ideology’ can easily prove to be the enemy of truth. Therefore, I would like you to respond.

What a wonderful question. I see science as an attempt to get at truth, but how the truth is used or misused is terribly important. What genetic analysis of Indian population history has shown is an alternation—between periods of genetic isolation and periods of mixture. What we see in South Asia is an alternation of periods of mixing of groups and periods of isolation, as for example, in the group that you mentioned. And this has happened over a long time with many people in the historical memory and many groups. Often what people remember is the periods of isolation, and they think it has been always the case. However, every few hundred years, or maybe every thousand or two thousand years, groups form and mingle with other groups in a very very dramatic way. And then when that gets forgotten, people regain a false sense that migration and mixture are not important. So the group that you mentioned is like every other group in India: the product is a mixture between two or three very different populations that mix across many lines of ancestry and tradition. Then that mixed population developed its own kind of endogamy with limited influx until the next big mixing event occurred. For that group, what we found is that there could not have been more than about 1 per cent input of new people every generation for the last couple of thousand years, which is a very extreme isolation. However, that does not mean that there might have been one episode or two episodes of major mixture 1,000-2,000 years ago.

In other groups in India, it is well known that there is a lot of mixing across jati lines. Often, it is the case that people have alliances with people often from ‘lower’ caste, lower social status jati groups that get incorporated into their group. In such an instance, you would not see the same degree of impact of the ancestors of the original group.

For me, as I describe in my book, I have an analogy very much for my personal background in mind. I am from a Jewish background, which is a little bit like a jati or a caste group, but in Europe where you might not think of castes. However, historically, my people had a ‘caste’ function with an economic role in society, accompanied by social segregation; in my group, there has been a tremendous degree of isolation for thousands of years. And so I have a visceral understanding of how this can occur. Of course, my group of people, in particular, has had massive inputs from other groups. For example, the Askhenazi Jews—my community—had about half its ancestry come from mixing with Europeans, which has occurred in the last 1,500 years. That is a profound part of the ancestry of my group. What all this goes to show is that the idea that any one group is pure is genetically wrong. We are now learning a lot more about patterns in human ancestry; and the pattern that we are learning is that the myths and the stories that we tell ourselves about our history and about where our ancestors lived, do not work. Almost every time we are able test those myths, they are falsified with data. So even if we are not able to get DNA from a particular group, the best bet is that the idea of unmixed and pure lineage is wrong in some profound way. So many stories about the past have been falsified by genetic data. The science does not really have a moral aspect; it is just what it is. It is an uncontrollable force. In this case, its effect has been to explode mythology, to explode prejudicial understanding and explode the narratives of isolation on a very large timescale.

Visual culture

I now turn to another area. And I need some advice from you in that. I have been working on languages in India, and with a large group of almost 3,000 volunteers. I documented, about more than 700 languages. I have also worked with the indigenous people, the Adivasis (‘tribal’ is a bad word). When I was looking at the languages and what is called the folk culture of communities in Rajasthan and Kutch adjacent to Gujarat—the area where the Indus Valley Civilisation sprang up—we noticed in the visual culture and the languages of those people many signs that are not inherited from the Indo-Aryan but from something else, known as Prakrit, and not Sanskrit. So far, the proto-Prakrit has not been reconstructed, and, therefore, its past remains still hazy. But many times persons in that area, many starkly illiterate persons, tell me, when I show them some Harappan figures and designs, that they find them familiar. I would like to assume as a working hypothesis that there may be some links between people who now exist in that region and people who existed in that region 4,500 before our time. Do you think a composite research, studying visual culture and very extensive genetic sampling and examination might yield some better results. You have already given us this wonderful book based on extensive research. But is there some further scope to study the Harappan Civilisation, its disappearance, and its unnoticed continuities? It has disappeared from the perspective of history. But surely biological continuity is bound to be there because people did not evaporate into the skies. They must have left some descendants and some bones and the people of generations that succeeded. Would you think this kind of pursuit related to that specific area, together with archaeologists, experts of scripts and of ancient mythology might actually yield more than what we know? The trouble with the script is that there are not enough samples available to draw a final conclusion. So many partial explanations are there, but nothing explains all the mysteries related to the Harappan script. And we have no known sample of their speech. So, genetics, in collaboration with other sciences, could that be a composite project to unravel the mystery that is necessary to be unravelled for the sake of Indian history and Indian society. For, if it is not unravelled, then the Sanskritist, fascist, hegemonist powers will continue to infest the Indian thinking about history.

Absolutely. I think that in India, as elsewhere in the world, there is precious little information about the time before the emergence of writing and even from the time after writing as writing is only done by some people, and so many people did not have their stories handed down. And so in order to get at that past, to really understand the nature of how culture forms over time, we need to use every type of information we have, be that mythology, be that musicology, studies of languages and similarities of words and shared words that are unique to those regions, be that phonetics, be those studies of the ancient building tools, crops and foods that people ate and left behind. By putting the various lines of evidence, we can hope to begin obtaining some meaningful information. Since the book was published, we have made a lot of further progress in understanding the history of South Asian populations. We now have a clearer sense of the ancestry of at least some people who were part of the Indus Valley Civilisation. We have DNA from just one individual from the Harappan site called Rakhigarhi in Harayana, but we also have DNA from over a dozen other individuals living in South Asia itself, who we think are almost certainly immigrants from the Harappan Civilisation and living in the area with Turkmenistan to the north and Iran to the west. The places where they lived were trading hubs. They were trading; the sites were full of Harappan archaeological material that they were trading with the other civilisations to the west and to the north. And these people were outliers in their communities. Genetically, they were different from the other primary groups, and were genetically more Iranian; and they have a mixture related to present-day south Indians. So, I think there is a good chance that these people who are genetically similar to what we see in the Rakhigari individuals represent the gradient and the range of ancestry that is present in at least some part of the Harappan world. It was a gradient, but it was a different gradient than it is today.

What we now know is that the formation of present-day South Asian population genetically arose after the decline of the Harappan Civilisation. If we can use genetic data to date when the mixture occurred, we can show that the mixture included people of this Harappan ancestry type. They mixed with people, more to the south, more similar to the Andamanese and population in South-East Asia, and to some of the ancestry in Austro-Asiatic speakers, like Khasi. And, on the other hand, they also mixed with people to the north, who have ancestry related to the south. The mixture of these people associated with this gradient of ancestry that we have now documented through ancient DNA, both people to the north, that forms one of the ancestral populations of India, and people from the south, that forms the later ancestral populations. But most of the ancestry of both of the groups comes from the Harappan gradient. So the Harappan-related ancestry is actually the single largest source population for almost all people in India today. It mixed with other groups, probably in peninsular India or the south-east as well as groups from the north. These contributed important components, but the single largest component both of northern ancestral groups and other ancestral groups is the Harappan ancestral type. Now, we do not currently know where that ancestral group was distributed. It may not have just been within the range of the Harappan Civilisation. There may have been people genetically like it spread further out; and maybe we are seeing in some of those people not just people who participated in that culture. But a very reasonable prospect, because it was so widely distributed, is that disruptions associated with dramatic cultural changes that are documented in archaeological record, including the disruption of Harappan Civilisation, were associated with movements of people; and a mixture both of the south and the north, and then further movements associated with the admixture of these groups forming the gradient of today fully by about 2,000 years ago.

Well I shall eagerly wait for the publication of this work. Thank you.

G.N. Devy is Chair, People’s Linguistic Survey of India

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Ranakpur temple: Magic in marble

DEEP in the partially desiccated undulating plains of the Aravalli ranges between Udaipur and Jodhpur in Rajasthan, hidden away from highways and thoroughfares, stands a structure of unmatched elegance and filigreed symmetry. Carved in translucent marble and reflecting the dun hues of the surrounding desert, the Ranakpur temple is one of the finest Jain temples in Rajasthan’s shrine-studded landscape. It would be no exaggeration to say that the Ranakpur temple puts Pali, the district in which it is situated, on the pilgrim and tourist map.

We were oblivious to the presence of this rare gem as we went coursing across the desert in search of that most elusive of cats, the leopard. Rajasthan is a haven for leopards, and sightings are guaranteed if you go to the Jhalana Safari Park, a reserve on the outskirts of Jaipur. We had taken five safaris over three days and feasted our eyes upon several of these lithe and lissome beasts in their various moods. Jhalana is a reserve created exclusively for leopards, but we wanted to see the cats in their natural habitat. We were driving towards Jawai, a rocky hillock home to more than 200 leopards that had found a safe refuge on this barren rock. Every night, they come down from the hillock, cross the road and go into the scrubland in search of prey. Before dawn, they are back on their hilltop haven. The leopards of Jawai were immortalised in a 2016 documentary by Discovery Channel (Jawai: India’s Leopard Hills) that put Pali district on the wildlife enthusiast’s map.

Unique ecosystem

Even without leopards or shrines, this part of Rajasthan is spectacular. The Jawai dam and lake are home to several species of waterfowl. This landscape of scattered rocks and hills has given rise to a unique ecosystem that shelters unique wildlife. It was when we stopped for tea that we learnt about our proximity to the Ranakpur temple. Although it was just an hour away from Jawai, we might have missed it completely. We decided to check out Ranakpur before heading to Jawai.

And what a feast the temple turned out to be; it is a joyous expression of the most intricate designs that any sculptor can coax out of marble. It stands out from other temples not for its grandeur or size but for its lace-like latticework wrought on marble, resembling nothing less than a lacemaker’s designs woven out of thread with a crochet needle.

The temple itself sits on a pedestal of an acre-sized plinth on the slope of a hillock. It is a three-storied structure of imposing proportions. The front view of the temple is impressive in its width, with a series of narrow domes flanking the main dome, all aflutter with flags. A steep ascent up the steps brings you to a narrow gateway, which gives no hint of the glorious edifice behind. As you emerge from this gateway, the first impression you get is of a massive hall held up by a line of luminescent pillars, all of them exquisitely carved and some of them reaching up to the third floor. You are dazzled by the brightly lit hall. As your eyes get used to the brightness inside, you see a veritable wave of pillars as if you have entered a labyrinth of latticed pillars. Each pillar is intricately carved from the base right up to the roof and embellished with gods, goddesses, kinnaras, apsaras, dancing nymphs, yakshas and yakshis. Wrapped around each pillar are the entire pantheon of local and mythical fauna, apart from curling tendrils, flowers, buds, leaves and geometric designs. Ganeshas hold up the pillars from their base.

A closer examination of some of the pillars—it is not possible to examine all the 1,444 pillars—reveals that each one is different. The noteworthy aspect of this labyrinth is that it is positioned in such a way that the slanting rays of the sun reach most of the pillars at some time or the other during the day.

The pillars, each an objet d’art in itself, assume a magical sheen as the brilliant desert sun pours in through the gaps between the pillars to caress the filigreed sculptures, casting captivating patterns on the walls and the floor. The marble blushes and changes colour in response. If you spend an entire day at the temple as I did, you will notice how the marble changes from grey to dun to fawn to brown and even shades of green as its smooth surface refracts the spectrum of light. The light effects in the Ranakpur temple enhance and embellish its silent eloquence.

Although completed in the 15th century, Ranakpur was veiled in gunghat for the next three centuries, after Aurangezeb advanced towards Mewar and pillaged Ranakpur. This was followed by famine. Ranakpur’s precincts were overgrown with weeds and shrubs, its pillars, domes and chapels providing convenient hiding places for dacoits and other fugitives from the law. Denizens of the jungle too found a safe haven here. It was only in 1897 that the Shri Sanga of Sadri, a community congregation of Sadri town where Ranakpur is situated, decided to hand over the maintenance and upkeep of the temple to the Anandji Kalyanji Trust. Fortunately, no permanent damage had occurred and the temple complex was restored fully. Not only was it made accessible to pilgrims and tourists alike, but dharamshalas were also built to house the pilgrims visiting from far and wide.

Chaturmukha style

Built in the Chaturmukha style of temple architecture, the Ranakpur temple is dedicated to Rishabdev, the first Jain Tirthankara. Chaturmukha refers to the four identical idols of Adinatha facing the four directions inside a large ornamented dome called the Meghanada Mandapa. This is the garba griha, which is open on all four sides. The Meghanada Mandapa is a storied majestic structure whose domed roof is large enough to support a multiplicity of divinities. While there are other Chaturmukha temples in Hindu, Buddhist and Jaina faiths, no other temple interior in India equals the grandeur of the Ranakpur temple, according to the architectural historian Madhusudan Dhaky.

The origin of this marvellous temple can be traced to a dream that Dharana Shah, a minister in the realm of the Rana of Kumbalgarh, had. Deeply spiritual, Dharana Shah is said to have had a vision of a celestial flying palace with pillars—nalini gulmavimana—a kind of oracle. When he consulted his guru Somasundarji about the significance of the dream, he was told to construct a temple in the shape of the celestial vimana. Dharana found in Rana Kumbha of Mewar a willing patron and supporter and thus commenced the quest to replicate the vimana on earth. When Dharana set about looking for a suitable architect to bring his dream alive, he was fortunate to meet Depaka, a fiercely independent-minded architect, and commissioned him for the project. Conceived and executed under the skilled stewardship of Depaka, the temple is a manifestation of the versatile potential of marble from nearby Rajsamand.

It took 50 years to complete this edifice of immense beauty. However, Dharana got the four marble Adinatha images installed in Chaturmukha style even before the construction was completed because he was keen to have the deity installed by Somasunderji, who was already old. The temple took its name from the Rana, its chief benefactor, and came to be known as Ranapur, which later became Ranakpur.

While the Chaturmukha shrine is the heart of the Ranakpur temple, there are other lesser domed shrines, some 76 of them. Most shikharas are embellished with a chakra each, the spokes holding up dancing damsels, musicians with myriad instruments and elaborately and intricately carved patterns. Marble seems to have become putty in the hands of the sculptors and artisans, who coaxed evocative figurines in the nooks and crevices.

As I saunter past the numerous pillars trying to capture the beauty on a memory card, I realise that it is impossible to film these entirely unless I spend a week in the temple. There are a few visitors about, gaping in awe at the roof and pillars. The stylised elephant statue in the main dancing hall is the star attraction for visitors to pose against. Of course, all of us had to leave our cell phones at the gate and bring only our cameras inside, for which the temple charges a nominal fee.

A pillar close to the entrance to the main shrine records in Sanskrit that Depaka built this temple in A.D. 1436 on the instructions of Dharanka with the support and patronage of Rana Kumbha, the King of Chitor.

Apart from the pillars, domes, friezes and altars, what catches your eye is the marble panel depicting particular gods and scenes. A standing Parasvanatha, the 23rd Tirthankara, is surrounded by a 1,008-headed coiling snake. The coils all but obscure the yaksha and yakshini, a half-human half-snake creature, two naginis and some cauri (whisk) bearers all of whom also populate this panel. Pilgrims have wedged rose petals into the gaps of the snake’s coils.

Evening aarti

There is more evidence of this being a living temple as the evening aarti time approaches. Suddenly, the devout among the visitors form a queue before the sanctum. The murmur of voices becomes a hushed silence. My curiosity is piqued as I join the line. Then, the voice of the priest calls out in Hindi, demanding to know how many maunds, at five rupees a maund. This baffled me until I learnt that the opportunity to worship first at the evening prayers was accorded to the highest bidder of the evening. The bidding is in terms of the price of ghee. Today, the bid is settled at 100 maunds of ghee (3,700 kg), which a local family paid to get the first glimpse of the deity as it is unveiled. Devotees can make a further bid for the opportunity to receive the first prasad from the mangal aarti. The temple trust struggles to maintain this elaborate complex and has improvised ways to raise funds to supplement the revenue it gets from the sale of tickets. Of course, everyone is welcome to worship but only after the winners have had their fill of the Lord.

We troop out of the temple at 5 p.m., the closing time. There are a few more shrines in the compound, including a Surya temple and a Parasvanath temple, both smaller than the main structure but just as beautiful. The atmosphere is serene. Supreme silence reigns.

Sudha Mahalingam is the author of two books: The Travel Gods Must Be Crazy, published by Penguin, and a coffee-table book titled Mustang: Mystique of a Mountain Kingdom. She is currently the Raja Ramanna Chair Professor at the National Institute of Advanced Studies, Bengaluru.

COVID-19

COVID-19: A chain of blunders by the Central government

R. Ramachandran the-nation

The response to COVID-19 has been driven by political priorities rather than by public health and epidemiological expertise.” This is the retrospective assessment three well-known public health specialists have made of the manner in which the pandemic has been handled so far in the country. They are the epidemiologist Ramanan Lakshminarayanan of the Centre for Disease Dynamics, Economics and Policy, New Delhi, and Princeton University; the virologist Shahid Jameel, formerly of the Wellcome Trust/DBT India Alliance, New Delhi; and the epidemiologist Swarup Sarkar, formerly with the World Health Organisation’s South-East Asia Regional Office, New Delhi, and currently a Delhi-based independent public health consultant. In an editorial commentary published on August 14 in The American Journal of Tropical Medicine and Hygiene (AJTMH), they have analysed and critiqued the way the government has responded to the COVID-19 pandemic.

Criticising the large public events, including the “Namaste Trump” function in Ahmedabad to greet United States President Donald Trump in February 24-25, that were held even when it was known that the spread of the disease was well under way in Europe, the scientist trio faults the government for having resorted to a nationwide lockdown on March 24 when State-level or more localised lockdowns would have been preferable given that there were only around 500 cases and 10 deaths then. Not knowing the precise location of hotspots because of low levels of testing, “the lockdown represented a law-and-order solution to a problem for which India was poorly equipped from a public health standpoint”, says The AJTMH article. “The sudden lockdown [with just four hours’ notice],” the authors say, “imposed a significant burden on the urban poor and migrants who found themselves both out of work and with no means to return to their villages.”

“India,” the authors point out, “was slow to provide testing despite significant capacity for reverse transcription-polymerase chain reaction (RT-PCR) testing in both public and private laboratories. Testing in the early days of the epidemic was limited to a few public laboratories. Private laboratories, which typically provide the bulk of pathology services, were not allowed to test at all. The restriction was not only ostensibly to maintain quality but presumably also to control information [emphasis added].”

Even though India’s testing rate continues to be among the lowest in the world (at about 33,000 per million population as of September 2), this metric, as health specialists have recently pointed out, is no longer relevant as the disease spread has gone beyond the stage where universal testing is a strategy for containment. However, the low level of testing implies that a large number of infections (and consequent deaths) have been missed, and as has been pointed out in earlier Frontline reports and as recent sero-surveys too have indicated, the official caseload figure is only a small fraction of the actual number of total infections.

An important observation the authors make, which is indicative of the lack of transparency and the Centre’s exercise of control on what data relating to COVID-19 are available in the public domain, is that there has been limited published epidemiological or clinical research emerging from India unlike the case with other significantly affected countries. The article, however, has referred to a notable study authored by Indian and American researchers (and posted on the preprint repository medRxiv on July17) that for some reason has gone unnoticed in the media.

On the basis of preliminary and limited data from a comprehensive surveillance exercise carried out in Tamil Nadu and Andhra Pradesh of a cohort of 4,206 primary cases and 64,031 contacts, the study found that the risk of transmission from a primary case to a close contact ranged from 2.6 per cent in the community to 9.0 per cent in the household, and significantly, these results did not vary with the age of the primary case. Since a third of infected individuals are under the age of 30, “[t]his finding”, the article points out, “indicated an important role for children and young adults in transmission”. According to the study, a prospective follow-up testing of exposures showed that while 83 per cent of the infected individuals did not infect any of their contacts, 5 per cent accounted for 80 per cent of new infections. On the basis of this finding, the authors infer that “[s]uperspreading seems to have been the rule, rather than the exception”.

The quoted study also found that unlike in high-income countries where deaths are mostly in the older than 65 age group, here COVID-19-related deaths were highest in the 50-64 age group. Also, unlike in the U.S., where there is a secular increase in incidence with age, the incidence of reported cases here did not increase with age (>64 years) but, in fact, declined. “Strikingly,” notes The AJTMH article, “these differences cannot be fully accounted for by differences in population age distributions.”

That this is so despite the observation that the risk of transmission from a primary case is higher within a household could be due to greater compliance with the precaution of ensuring that the elderly are protected from getting infected, and perhaps other sociological factors. The other interesting and significant finding of the study was that “contrary to the long hospital stays reported in high-income settings, the median time to death was 5 days following admission”. One reason for this could be that patients were probably reaching hospitals only when symptoms were severe and/or conditions became serious. Unfortunately, such clinical studies have either not been done in other parts of the country, or if done, the results have neither been published nor made public.

After seven months of the pandemic in the country, the total number of confirmed cases as of September 2 stood at 3,848,968. On this count, India currently ranks third, but in terms of the daily increase in caseload, which is at present over 80,000 (82,860 on September 2), India is at the top. With this rate of increase, India is estimated to overtake the number 2 country, Brazil, by September 10 and will also soon overtake the number 1 country, the U.S. According to the Union Ministry of Health and Family Welfare, however, only 7 per cent of the districts (49/739) in eight States—Maharashtra, Karnataka, Andhra Pradesh, Tamil Nadu, Uttar Pradesh, West Bengal, Odisha and Telangana—accounted for 73 per cent of the cases, and seven States—Maharashtra, Delhi, Tamil Nadu, Andhra Pradesh, Karnataka, Uttar Pradesh and West Bengal—accounted for 81 per cent of the deaths due to COVID-19.

No ‘community transmission’

On the basis of these data, the Ministry continues to claim that there is no “community transmission”. But how this follows is not clear and is never explained. For instance, the recent sero-survey in Chennai, which accounts for 69 per cent of all the cases in Tamil Nadu (and is obviously, therefore, one of the 49 districts), found that 173 people out of the 12,405 surveyed had no history of contact with any COVID-19 patient, a clear indication of community transmission. “The epidemic,” the scientist trio observe in The AJTMH article, “is in different stages in different parts of the country, but the response has been driven by a national, overarching centralised strategy instead of being locally owned.”

Given the present situation, the article says that an important aspect of COVID-19 management now should be averting deaths, a point a group of public health experts and epidemiologists made in a recent statement (dated August 25 but issued on August 30). “The current national guidelines,” notes The AJTMH article, “do not prioritise high-risk individuals for early testing, and this is a missed opportunity for averting deaths in vulnerable populations of the elderly and those with comorbidities.” The article also highlights what is generally known: because many individuals in India die without a COVID-19 test, reporting of deaths due to COVID-19 in the country is incomplete. The number of reported deaths is, therefore, likely an underestimate.

Pointing out that the correct identification of COVID-19 deaths was an opportunity to learn about the disease and, thereby, prevent future cases and deaths, the article recommends the creation of a formal system of mortality surveillance, specifically to measure the additional mortality attributable to COVID-19. “The epidemic response should be data driven and locally owned,” the article adds. “More granular data and greater openness to data sharing and coordination would enable surveillance data to be used for management decisions, including planning regarding personal protective equipment, medicines, supplies, and, most importantly, ICU capacity and health care personnel. This would provide a clear picture of the impact of COVID-19 to the public.”

Indiscriminate testing

In their third joint statement on the COVID-19 pandemic in India—referred to above as the recent statement by public health experts—the Indian Public Health Association, the Indian Association for Preventive and Social Medicine and the Indian Association of Epidemiologists strongly criticised the Centre’s continuing approach of indiscriminate and universal testing with the apparent solitary aim of meeting the benchmark for adequacy of testing: 140 tests per million population a day and test positivity rate of less than 5 per cent.

Widespread “testing, tracing, isolating and treating” was the appropriate strategy in the early stages of the pandemic (when the caseload was low). It would have then served the purpose of early identification of the cases to limit disease transmission to others so that the infection did not get a foothold in the community. But the government failed miserably in achieving this at the time when it was necessary. Now, since the virus has already spread widely in the community in many geographical areas, testing by itself is no longer a control strategy, the statement points out. Sero-survey reports from different parts of the country and the Indian Council of Medical Research’s (ICMR) own nationwide sero-survey have indicated that the (much belated) current testing strategy is picking up less than 5 per cent of the true number of SARS-CoV-2 infections in the country. Currently, India is testing at the rate of over a million a day (11,72,179 tests as of September 2). This rate of testing of a mostly ill-defined population, as the public health specialists point out, is imposing a heavy economic cost without the commensurate benefit of disease control.

“Universal scaling up of testing,” says their statement, “at current community transmission stage of the pandemic may not be an optimal control strategy and will divert attention and resources from control measures….The testing strategy needs to be pragmatic from a public health perspective, promoting differential/targeted testing of high-risk individuals and discontinuing universal testing at this stage.” This echoes the observations made in The AJTMH article. “However,” adds the statement, “[in] areas in [the] very early phase of pandemic (where zero or very few cases have been reported) testing may be used as a surveillance tool.” Pointing out that reducing deaths due to COVID-19 should now be the primary goal, the statement adds that the strategy should now shift to syndromic management (before testing and diagnosis), especially in high-seroprevalence States and districts for efficient management of resources.

Similarly, the primary purpose of lockdown in the early stage of the pandemic was to slow down the disease spread and gain time to prepare to fight it, particularly by shoring up the health care infrastructure. “There is no evidence any more that any useful purpose would be served by weekend or intermittent or night time lockdowns, banning of domestic flights and establishing large sized containment zones,” says the statement.

The health experts have, in fact, advocated discontinuation of lockdowns as a strategy for control and favoured only the imposition of geographically limited restrictions for short periods in epidemiologically defined clusters where there is no community transmission. Cluster restrictions, the statement says, should be imposed after weighing their impact on the livelihoods of the target populations. With adequate health system preparedness, even cluster restrictions can be done away with, it adds. But with the Centre continuing to be in denial of community transmission, this advice is, as the Tamil saying goes, like blowing a conch shell into the ear of the deaf.

Nevertheless, health experts have advocated habitat-specific and epidemiologically appropriate strategies as follows. In large cities where there is already substantial spread of the disease, there is no advantage in creating containment zones accompanied by aggressive testing. Delhi, for example, has as many as 922 active containment zones (as of September 2) of which 207 have scaled down restrictions but have not been de-contained. “The focus [now] should be to prevent deaths and not on containing the infection,” the experts have said.

In large cities with moderate spread, they have advised revamping of containment zones with a clear road map and timelines for periodic review by expert committees and that all containment zones should be de-contained within 14 days. For small cities and rural townships with mild or limited spread, the group of experts has said that existing testing and cluster containment can continue, but the testing strategy with mandatory isolation of positive cases needs to be reviewed in view of the prevailing social stigma in these settings.

In fact, the practice of pasting a notice on the doors of homes of COVID-positive patients is being followed even in cities and big towns, leading to stigma and discrimination. Noting that in response, many patients left home for unknown destinations, defeating the very purpose of isolation, the statement has called for doing away with this practice immediately. “Of particular concern has been the issue of the dignity of death and cremations and burials of COVID-19 victims,” observes the statement. Regarding the prevailing restrictions on inter-State travellers, it has called for abandoning forthwith the policy of quarantining them for 14 days in designated hotels and health facilities. “When [the] majority of States/districts are affected, there is no rationale for quarantine of inter-State travellers…,” says the statement.

The public health specialists have also made observations on the issue of opening of schools and educational institutions. “Opening of school and other educational institutions could be started in a graded manner,” they have said. “There should be a pragmatic approach, especially in areas where sufficient population is already infected with SARS CoV-2. Even in low infection areas, schools may be opened with due safety measures and with adequate surveillance….”

“Closure of educational institutions, especially schools for children (5-18 years),” they have pointed out, “has had a significant impact on the teaching-learning system as well as mental health of the children. The impact has been disproportionately higher on the children of lower socio-economic strata who do not have social capital for alternatives like digital platforms. Sufficient evidence is available that infected, young children are at an extremely low risk of developing morbidity. The risk of young children transmitting corona infection to older family members would be the same as adult family members [as indeed the Tamil Nadu-Andhra Pradesh survey found] who are permitted to carry out activities outside of home environment.” Union Health Minister Harsh Vardhan said last month that the country would have its own vaccine by the end of the year. In his Independence Day speech, Prime Minister Narendra Modi, too, held out that hope, saying that the country was ready to mass-produce three vaccines once scientists gave the green signal. But the public health specialists have warned the people and the government that a vaccine, if and when available, will not be the panacea that the country has been waiting for in the hope that COVID-19 would then be banished. The three vaccines are in different stages of clinical trials in India.

“Vaccines,” they say in their statement, “do not have any role in current ongoing COVID-19 pandemic control in India. However, whenever available, the vaccine may play a role in providing personal protection to high-risk individuals like health-care workers and [the] elderly with comorbidities (according to the WHO’s ‘strategic allocation’ approach or a multi-tiered risk-based approach). While being optimistic, the prevention and control strategy should also prepare for the worst. It must assume that an effective vaccine would not be available in [the] near future. We must avoid false sense of hope that this panacea is just around the corner.”

Creation of public health cadres

The experts have also called for a significant increase in public expenditure on health care and the creation of national and State-level public health cadres similar to the Indian Administrative Service. “Public health care should be significantly strengthened and enhanced with overall public expenditure to be increased to at least 5 per cent of the GDP [gross domestic product],” says the statement. “The focus of increased health expenditure,” it adds, “should be on primary health care and human resource and infrastructure strengthening, rather than [on] opening/strengthening tertiary care centres.”

Pointing out that States such as Tamil Nadu and Gujarat that already had public health cadres were relatively better placed to handle such public health crises on their own, the specialists highlighted the “need to expedite the establishment of a dedicated, efficient and adequately resourced public health cadre as Indian Health Service (IHS) at the Centre and across States as [has been] recommended by various national committees and expert groups since 1946…”.

In a similar vein, The AJTMH article says: “The COVID-19 pandemic is an opportunity to invest in the public health infrastructure of India, an area of systemic neglect over the past few decades…. In the long term, a blueprint should be developed to empower and strengthen India’s national and State level mechanisms for public health research, surveillance, and policy activities.”

It remains to be seen whether the Health Ministry and the higher executive in the government pay any heed to the observations made by the authors of the commentary or to the statement of public health specialists.

Reservation

For equity within castes

Ilangovan Rajasekaran social-justice

A five-member Constitution Bench of the Supreme Court has endorsed the right of the State governments to create sub-categories within the Scheduled Caste (S.C.) category—such as Arunthathiyars in Tamil Nadu and Valmikis and Mazhabi Sikhs in Punjab—in order to ensure an equitable distribution of socio-economical benefits under reservation.

The bench led by Justice Arun Mishra said that it had referred the issue to the Chief Justice of India (CJI) requesting him to post it to a larger, seven-member bench. It pointed out that the issue needed further study as it involved interpretation of Articles 16(1), 16(4), 338 and 341 of the Constitution of India.

Another reason for the referral, the bench said in its verdict given on August 27, was that a coordinate bench of five judges in the E.V. Chinnaiah vs State of Andhra Pradesh (2004) had already ruled that sub-categorisation within the S.C. category was not permitted. The five-member bench said that under Article 341, the Scheduled Castes were “homogeneous” and, hence, any inter se classifications within that group was a violation of Article 14. It struck down a similar law passed by the then Andhra Pradesh government to ensure equitable benefits within the S.C. category. However, in State of Punjab vs Davinder Singh, 2011, a Supreme Court bench had approved the State governments’ powers to sub-categorise the S.C. category.

The verdict in the Chinnaiah case had opened up a judicial debate on issues regarding the constitutional validity and the legislative powers of State governments relating to reservations for the S.C., the Scheduled Tribes (S.Ts), the Backward Classes and Most Backward Classes (MBCs). It also raised the issue of creamy layer among the S.C. groups.

The August 27 judgment said that since sub-categorisation has been allowed in the Punjab case, internal reservations in various States, including the 3 per cent for Arunthathiyars in Tamil Nadu, will continue until the yet-to-be-constituted larger bench decides it. In 2009, the Dravida Munnetra Kazhagam (DMK) government led by Chief Minister M. Karunanidhi had reserved 3 per cent for Arunthathiyars within the 18 per cent reservation for the S.C. category. A few Dalit groups, including Puthiya Thamizhgam, a Dalit political party, opposed it and went to court.

In the State of Punjab vs Davinder Singh, the bench, considering a batch of other similar petitions, including ones from Tamil Nadu, had upheld the Punjab Scheduled Caste and Backward Classes (Reservation in Services) Act, 2006, which provided internal reservation for Balmikis and Mazhabi Sikhs. Earlier, a Division Bench of the Punjab and Haryana High Court had struck down the provisions of the Act in 2010, relying upon the decision in the Chinnaiah case.

In view of the Punjab case, the current bench deliberated on “whether it is not permissible to provide any further reservation to the weakest of the weak, particularly when it has not been possible to trickle down the benefit of reservation to the weakest and the same is utilised by the upper class within the group, who enjoy the benefit of reservation to the maximum, creating disparities within its class.” The judgment in the Chinnaiah case, the bench felt, needs to be revisited to decide whether the S.Cs and S.Ts could be treated as a homogenous class.

The bench quoted extensively the submissions made by senior counsels during the hearing. Those who demanded sub-categorisation and internal reservation argued that the decision of the court in the Chinnaiah case should be revisited. Ranjit Kumar, counsel for Punjab, said that the decision in the Chinnaiah case was taken on the erroneous premise that the State governments’ preference for certain Scheduled Castes under Article 16(4) “tinkers with the Presidential List under Article 341”. He said that “merely giving of preference does not tinker, rearrange, sub-classify, disturb or interfere with the list in any manner whatsoever since there is no inclusion or exclusion of any caste in the list as notified under the meaning of Article 341”.

Article 16(4), he said, covered all backward classes including the S.C. and S.T. communities. The expressions used in Article 16(4) were “any backward class of citizens” and “not adequately represented”, which covered all socially and educationally backward classes, including the S.C. and S.T. communities. “The preferential treatment given to certain Scheduled Castes/Scheduled Tribes does not violate Article 14. It intends to provide proportional equality,” Ranjit Kumar said.

R. Venkataramani, counsel for the Tamil Nadu government, argued that the judgment in the Chinnaiah case would continue to have an empirically demonstrable baneful effect on the general interests of the public. He said that it was inconsistent with the legal philosophy of the Constitution regarding equality and equal opportunity. “The decision in E.V. Chinnaiah, which holds that Scheduled Castes and Scheduled Tribes once classified are a homogenous class, is removed from social and economic reality. If the decision continues to operate, a large section of Scheduled Castes and Scheduled Tribes would be deprived of the guarantees under Articles 14 to 16. The decision in E.V. Chinnaiah deserves to be revisited by a larger bench,” he said.

He pointed out that in the judgment in the Indra Sawhney case (1992, which upheld reservations for OBC in employment but struck down reservations in promotions), the word “backward classes” included S.C. and S.T. categories. All considerations involved in dealing with backward classes—such as grouping, classification or sub-classification of castes and tribes—would apply to the S.C. and the S.T. categories as well. He noted that in the M. Nagraj and Jarnail Singh case, the exclusion of the creamy layer among the S.C. category was permitted under Article 16(4). Further, a class of citizens could not be treated as socially and educationally backward in perpetuity.

Shekhar Naphade, senior counsel in the Supreme Court, argued that Arunthathiyars formed the lowest rung in the S.C. category. “The Tamil Nadu Arunthathiyars (Special Reservation of Seats in Educational Institutions including Private Educational Institutions and Appointments or Posts in the Services under the State within the Reservation for Scheduled Castes) Act, 2009, does not tinker with the Presidential List of Scheduled Castes in any manner. Special reservation is a fundamental aspect of Article 14 of the Constitution,” he said. The Chinnaiah case, he claimed, failed to take note of ground realities and was not based on statistical data collected by the State showing disparities among S.C. and the S.T. categories.

Jyoti Mendiratta, counsel for Delhi State, drew the attention of the bench to the findings of the Justice M.S. Janarthanam Committee of Inquiry for Special Reservation for Arunthathiyars. “They were not able to reap the fruits of reservation as there was an upper crust within Scheduled Castes, and most of the posts were reserved for Scheduled Castes and Scheduled Tribes. Though Arunthathiyars were 16 per cent of the Scheduled Caste population, they managed to obtain reservation to a much lower extent,” she said.

Those who opposed the sub-categorisation and internal reservation among the S.C. category and endorsed the observations in the Chinnaiah case told the bench that it was not the part of the Parliament or State Assemblies to make classification inter se S.C. and S.T. categories once they were included in the Schedule. The Parliament was empowered to include or exclude any caste from the Presidential List. Legislating sub-classification was constitutionally impermissible, they argued.

The bench pointed out that the Chinnaiah case held that the S.C. category was homogenous. In the Indra Sawhney case, the majority of the judges held that some sections were more backward within the backward classes and that if the state chose to make such classification, it would be permissible in law. The State of Punjab argued that preferential treatment given to certain S.C. and S.T. categories “does not violate Article 14 but brings about proportional equality”. Those who were unequal among the S.C. and S.T. categories should be given the benefit of reservation as guaranteed under Article 14, it said.

Creamy Layer

The bench also discussed in detail the issue of creamy layer in the S.C. category. It said that in the Indra Sawhney case, it was noted that exclusion was practised by those who were socially and educationally advanced within backward classes. It based its arguments on the observations of Justice B.P. Jeevan Reddy (for himself and other three judges), who said in a case: “We see no reason to qualify or restrict the meaning of the expression ‘backward class of citizens’ by saying that it means those other backward classes. As a matter of fact, neither the several castes/groups/tribes within the Scheduled Castes and Scheduled Tribes are similarly situated nor are the Scheduled Castes and Scheduled Tribes similarly situated.”

In the Jarnail Singh case, it was pointed out that the object of reservation was to see that the backward classes move forward on an equal basis. “This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer who are excluded from the benefit of reservation,” the bench noted.

The bench said that when Articles 14 and 16 were harmoniously interpreted along with Articles 341 and 342, it was clear that Parliament had the freedom to include or exclude persons from Presidential Lists on the basis of relevant factors. “Similarly, constitutional courts, when applying the principle of reservation, will be well within their jurisdiction to exclude the creamy layer from such groups or sub-groups when applying the principles of equality under Articles 14 and 16 of the Constitution of India,” it pointed out and said that a “class of citizens cannot be treated to be socially and educationally backward till perpetuity”.

The bench poined out that Articles 342 and 342A, which deal with the S.T. community and socially and educationally backward classes respectively, empowered the President to issue public notifications with respect to socially and educationally backward classes, and Parliament had the power by law to include or exclude groups from the Central List of socially and educationally backward class. “Also the provisions of Article 16(4) and Article 342A indicate that it would not be permissible to adopt different criteria for Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes,” it noted.

The bench further said: “The question of immense public importance arises in view of the insertion of Article 342A. When we consider Indra Sawhney, permitting such classification of socially and educationally backward class, and provisions of Articles 341, 342, and 342A are pari materia, the Court is required to have a fresh look at the decision rendered in E.V. Chinnaiah. In the spirit of constitutional provisions, the question is required to be re-examined authoritatively by this Court, being of immense public importance. Thus, the case is required to be heard by a larger bench than the one which decided E.V. Chinnaiah case.”

Caste and class

On the question whether sub-classification was justified, the bench was of the opinion that all castes included in the list of Scheduled Castes were given the benefit of reservation, though a specific percentage of people, being more backward within the backward classes of the S.C. community, were not able to enjoy the benefit of reservation. “The preferential treatment would not tantamount to excluding other classes as total deprivation caused to any of the castes in the list of Scheduled Caste under Article 341(2). Caste is nothing but a class. It is the case of classification to provide benefit to all and to those deprived of the benefit of reservation, being the poorest of the poor,” it said.

It further elaborated that backward classes under Article 16(4) do comprise some castes: “In our opinion, the decision is relevant for interpreting Article 16(4) provisions in their application to Scheduled Castes, Scheduled Tribes, and other backward classes. They stand on the similar footing, and they cannot be treated as different from other as also fortified by insertion of Article 342A which is pari material to Article 341 or 342.”

The bench took up the question of whether sub-classification for providing benefit to all castes could be said to be tinkering with the Presidential List under Articles 341, 342 and 342A. It said: “The caste or group or sub-group continued exactly as before in the list. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.”

The bench dealt with the question of trickling down of benefits to the bottom rung. It said: “Reports indicate that benefit was being usurped by those castes (class) which had come up and adequately represented. It is clear that caste, occupation, and poverty are interwoven. The state cannot be deprived of the power to take care of the qualitative and quantitative difference between different classes to take ameliorative measures. On the one hand, there is no exclusion of those who have come up. On the other hand, if sub-classification is denied, it would defeat right to equality by treating unequal as equal.”

The bench said: “The entire basket of fruits cannot be given to [the] mighty at the cost of others under the guise of forming a homogenous class. The Constitution is an effective tool of social transformation; removal of inequalities intends to wipe off tears from every eye. The very purpose of providing reservation is to take care of disparities. There are unequals within the list of Scheduled Castes, Scheduled Tribes, and socially and educationally backward classes. Are they destined to carry their backwardness till eternity?” the bench said.

State’s responsibility

The state’s obligation, the bench said, was to undertake emancipation of deprived sections of the community and eradicate inequalities. “When the reservation creates inequalities within the reserved castes itself, it is required to be taken care of by the state, making sub-classification and adopting a distributive justice method so that state largesse does not concentrate in few hands and equal justice to all is provided.”

Pointing out that providing a percentage of the reservation within permissible limit was within the powers of the State legislatures, the bench further said that to achieve the real purpose of reservation, the needy should always be given benefits. “Otherwise, it would mean that inequality being perpetuated within the class if preferential classification is not made, ensuring benefit to all.”

Hence the state had the competence to grant reservation benefits to S.C. and S.T. communities under Articles 15(4) and 16(4), 341(1) and 342(1).

In Tamil Nadu it is AIADMK vs AIADMK vs BJP

At the Independence Day function on August 15, Tamil Nadu’s Deputy Chief Minister O. Panneerselvam showed due deference while receiving the best practices award for computerisation of departments under his control from Chief Minister Edappadi K. Palaniswami. But shortly after the event, as many as 10 Ministers, acting as interlocutors, were shuttling between the All India Anna Dravida Munnetra Kazhagam (AIADMK) leaders’ residences to sort out the differences that had cropped up between them. According to a senior AIADMK leader, the disagreements between them was the result of “a few Ministers carrying tales”. He added: “The Chief Minister has always been accommodative of everyone. But there is always scope for misunderstanding.”

After a lot of back and forth, a truce was finally reached between the two though some issues still remained unsolved. Apparently, Palaniswami ceded some ground that he had occupied in the past few years and put himself back on an equal footing with Panneerselvam. However, this was only on paper.

The two leaders have been jockeying for position following the death of party supremo and former Chief Minister Jayalalithaa. The truce brokered by Sangh Parivar elements at the time of her death has been an uneasy one. In effect, it gave Palaniswami the control of the government and Panneerselvam that of the party.

But all has not been well ever since the Chief Minister decided to take a few steps against the Bharatiya Janata Party (BJP) and the policies of its government at the Centre, obviously with an eye on the Assembly elections in the State in early 2021 along with Kerala, Assam and West Bengal. Sections of the AIADMK believe that going to the polls as an ally of the BJP will be counterproductive. The BJP’s vote share in Tamil Nadu is barely over 3 per cent; and it was a wave against the BJP in the State that led to the rout of the alliance it had with the AIADMK and a couple of other parties at the hands of the Dravida Munnetra Kazhagam (DMK)-Congress combine in the Lok Sabha elections in 2019. The DMK combine won 38 of the 39 Lok Sabha seats in Tamil Nadu.

The main reason for the strain in the AlADMK-BJP alliance is the Tamil Nadu Cabinet’s decision of August 3 to reject the three-language formula as envisaged in the New Education Policy—the brainchild of Prime Minister Narendra Modi—and continue with the two-language policy the State has been following for long. Although there was ostensible unanimity in the Cabinet on this decision, there were quite a few dissenters.

Ministers’ concerns

An informed source said that a few Ministers voiced their concerns about taking an anti-BJP line. “What if we are raided [by the Central agencies],” was one of the apprehensions that they expressed. The reference was to the raids of the Enforcement Directorate, the Income Tax Department and the Central Bureau of Investigation against a few party leaders. But the Chief Minister stood firm and told the Ministers that it was ridiculous to have incriminating material in their houses. In any case, he said, there was the example of C. Vijayabhaskar, Health Minister, whose residence had been raided by the Income Tax Department and who had been questioned repeatedly by the Central agencies. He is an accused in a case of distributing money to voters in the RK Nagar Assembly byelection in April 2017. The Income Tax Department raided his house, but the case has been in cold storage for more than two years. He continues as a Minister and is responsible for making critical decisions during the COVID-19 pandemic. In short, Palaniswami seemed to think that there would be no long-term damage unless one was convicted. While a few of his colleagues bought into this logic, many, including Panneerselvam, who is beholden to the BJP leadership for his position post-Jayalalithaa, are uncomfortable with this line of thinking.

Ganesh Chaturthi celebration

Palaniswami’s biggest slight against the BJP was when he refused to agree to the demands of the Hindutva elements in Tamil Nadu to allow public celebration of Ganesh Chaturthi in the State on August 22. On August 14, the State government announced that it would not allow installation of Ganesh idols in public places and their immersion in waterbodies in view of the COVID-19 pandemic.

On August 17, L. Murugan, BJP State unit president, and K. Subramaniyan, Hindu Munnani president, along with two other leaders, met the Chief Minister seeking withdrawal of the government’s order banning the celebrations. They told him that during the celebrations social distancing norms would be followed and any stipulation by the State would be adhered to. They later told the media that the Chief Minister had assured them of considering their demands. But, according to a source in the Chief Minister’s office, the Chief Minister did no such thing.

It was clear from the beginning that the State government would remain firm in its aim of not allowing the celebrations or the related procession. The Hindu Munnani, which had been very vocal in its demand since early August, condemned the State government’s decision and asserted on August 14 itself that it would go ahead with the installation of 1.5 lakh idols in the State. Even after meeting the Chief Minister, its leaders stated that they would go ahead with this plan regardless of the government’s decision.

The government stood firm on its decision. Some attempts were indeed made across the State, particularly in places such as Coimbatore, to install the idols on roadsides. The police came down on anyone trying do so and seized the idols.

In fact, between August 14 and 22, the stand-off between the government and the Hindutva outfits in the State—which had ironically grown manifold from 2016 to 2020 during the AIADMK government’s reign—only worsened. The BJP’s sympathisers and Sangh Parivar elements tried to put pressure on the government through the media, their local contacts and also the district administration to change its decision. Their argument was that why could the government not allow the celebrations when it had opened State-run retail liquor shops in Chennai from August 18.

On August 22, despite the Sangh Parivar outfits’ tall claims, not many people ventured out to violate the government’s orders. Their leaders, including Murugan, who had asserted that the celebrations would go on, were not seen anywhere carrying out their plan. Instead, party functionaries were asked ‘to lead’ the celebrations. Many people were booked across the State for violating the government’s orders. No top BJP or Sangh parivar leader stepped on to the road to be arrested. This was a major success that the AIADMK government had notched up against the Sangh Parivar elements in the State who had openly called for defying law and order on a few occasions. In doing so, the government also exposed the Sangh Parivar leaders to ridicule from various quarters.

Desecration of statue

Earlier, when the government, on the Chief Minister’s direction, slapped the National Security Act on a miscreant who had defaced ‘Periyar’ E.V. Ramasamy’s statue in Coimbatore in mid July, it gained wide publicity. Similarly, when a statue of AIADMK founder and former Chief Minister M.G. Ramachandran (MGR) in Puducherry was found draped in a saffron cloth, Palaniswami described those who did it as “barbarians”. This also again gained media attention. He also directed the police to proceed against the actor and BJP member S.Ve Sekar for his comments on the national flag in his reaction to the episode. The actor is now upset that the BJP leadership has left him in the lurch. Sekar sought protection from arrest at the Madras High Court. The police took the stand that if Sekar apologised for his conduct, there was no need for an arrest. Sekar climbed down and tendered an apology.

Palaniswami wrote two letters to the Prime Minister with demands and complaints. The first letter demanded that the Centre make money available from the PM-CARES fund to the State government to buy COVID testing equipment. The second one made his government’s displeasure clear over the Centre’s handling of the goods and services tax (GST) issue and rejected the solutions it had put forth to compensate for the States’ revenue losses.

Though Palaniswamy wants to take an anti-BJP stance, two events make it clear that he is also not completely rejecting the voices from the Panneerselvam camp. One of them was that though the government effected arrests related to the Ganesh Chaturthi celebrations, it did not give these arrests wide publicity. No consolidated number of the arrests were put out. The second instance related to a murder in Ramanathapuram, which was sought to be communalised by BJP leaders; the State government did not act against these leaders. The Ramanathapuram police denied the existence of any communal angle in the murder and put out a release on social media warning against the attempts at communalising the incident. The local Superintendent of Police also prevented a BJP leader who tried to incite communal riots from entering the district. Strangely, the government transferred the SP and placed him on compulsory wait. Police sources claimed the transfer was decided sometime ago, but the awkward timing of the transfer meant that this was an instance of the AIADMK backtracking to please a local BJP leader.

The AIADMK rank and file is not used to the idea of dual leadership. Over the past three years, Palaniswami has emerged as a leader capable of leading a government, while Panneerselvam has not shown the same mettle with regard to leading the party. True, there has not been any large-scale desertion of cadre from the AIADMK, but that does not explain the confusion in the minds of the cadre over the future course of the party.

The confusion is over the lack of a well-defined approach to the 2021 Assembly elections. By his actions, it appears certain that Palaniswami is convinced that the only way forward is to dump the BJP for now, appear to take a strong line against the Centre, and communicate to the people that the AIADMK has been standing against the BJP’s bullying tactics just as Jayalalithaa had done.

Despite his best attempts to win over senior leaders in the party, there are far too many doubters who are not keen on taking on the BJP. The first one on that list is Panneerselvam, whose son and Member of Parliament P. Raveendranath Kumar has Modi’s picture printed on his letterhead and has been defending the Central government in Parliament even when BJP members themselves have not been doing so.

The most intriguing games in Tamil Nadu politics have just begun and the drama is expected to reach a climax in early 2021. In short, the AIADMK camp presents itself as a party beleaguered by a battle of “all against all”: the Palaniswami faction versus the Panneerselvam faction; the party versus former party general secretary V.K. Sasikala (Jayalalithaa’s close aide who is jail after her conviction in a disproportionate assets case); Sasikala versus her relative T.T.V. Dinakaran’s Amma Makkal Munnetra Kazhagam (AMMK); and the AIADMK versus the BJP and its allies in the 2019 Lok Sabha elections, the Pattali Makkal Katchi (PMK) and the Desiya Murpokku Dravida Kazhagam (DMDK).

The Sasikala factor

The silence of Dinakaran, who was articulate after his 2017 victory in the RK Nagar byelections, is an indication that there is some deal in the works. The sudden raid on Sasikala’s property in Chennai’s Poes Garden and the Income Tax Department’s attachment recently of a new bungalow under construction opposite Jayalalithaa’s house, Veda Nilayam, under the Benami Transactions (Prohibition) Act, have to be viewed in this context. (Sasikala is said to have been planning to move to this bungalow next year when her jail term would end.) One Sasikala supporter, who was present with her until she left Chennai for the Bengaluru jail in 2017, said that these recent actions aimed at her were because Sasikala was not cooperating with the demands of a “powerful entity”. As many as 64 of her properties have been attached. The targeting of Sasikala and Dinakaran’s silence could mean that the “powerful entity” is approaching both separately. There is also talk of a merger of the AIADMK and the AMMK, but it is unclear what role Sasikala will have in this set-up.

In jail, Sasikala has been meeting only her relatives to the exclusion of partymen, said a person who was in constant touch with her through the first few years of her in jail. “She is more interested in her properties and her estates. Those are the people meeting her regularly,” he said. Even Dinakaran is a rare visitor to the jail.

It is into this political matrix that actor Rajinikanth is seen to be encouraged to enter politics, at least to lend his support to one side. On September 4, Tamil news channels carried source-based stories of Rajinikanth launching his party in November. It is a known fact that the PMK and the DMDK are merely jockeying for space. In fact, after Vijayakanth’s illness, the DMDK is all but a defunct party while the PMK, which beat a hasty retreat after the massive defeat in the 2016 Assembly elections, is trying to desperately remain relevant in Tamil Nadu politics. The DMDK is keeping its options open for the moment and appears to be open to go with the DMK alliance, which, at this moment, is on top of its game in the State.

The AIADMK is a divided house today over the strategy for the 2021 elections and most other aspects of governance. But Palaniswami is not giving up. He is clear that his government has managed to deliver on several fronts, has done a good job of dealing with the COVID-19 crisis, and has been at the forefront of taking care of people’s needs. Above all, he believes that the presence of ‘weak’ leaders in the opposition rank is his strength. “They [the DMK] will keep on giving us opportunities. We just need to take these,” he reportedly told a close associate.

Palaniswami, the eternal optimist, who was a nobody in the 2016 Assembly elections, is the person to watch out for in the 2021 elections.

Unravelling India’s growth impasse

C_P_Chandrasekhar

WHILE it was expected that the Indian economy would experience a contraction during the second quarter of 2020, the 23.9 per cent fall in gross domestic product (GDP) that the National Statistical Office (NSO) reported came as a surprise to many. For some, the surprise lay in the sheer magnitude of the contraction, which forecasters had projected at less than 20 per cent. For others, the surprise was that, despite recent controversies about political interference in the reporting of economic statistics, the figure actually provided was as high as it was, and possibly closer to the truth than the government may have liked.

The 24 per cent GDP contraction figure is remarkable not only because of its sheer magnitude but also because it is higher than the contraction reported in other countries where the pandemic was severe. China reported a positive increase of 3.2 per cent in its second quarter GDP, and the United Kingdom, a poor performer, recorded a contraction of 20.4 per cent.

Yet, the magnitude of the Indian contraction should not come as a surprise. At the end of March 2020, the Central government, with little notice, imposed one of the most stringent nationwide lockdowns anywhere in the world. Initially slated to last 21 days, the lockdown was extended and remained pretty stringent all through the second quarter of 2020. Since a lockdown implies that a host of economic activities, except those arbitrarily defined as essential, cannot be undertaken, a contraction in output was inevitable. It is not surprising, therefore, that economic activities shrank as much as they did, led by construction, trade, hotels and transport, which were among the most severely hit sectors.

In the official propaganda war, the role of the pandemic-induced lockdowns in influencing the economic contraction has been exploited to advance two kinds of arguments. First, that the economy would experience a V-shaped recovery in the second half of this financial year (2020-21) since the process of lifting the lockdown is under way and is likely to be complete by end of the third quarter of 2020. Second, that policy has had little to do with the contraction, which has been pandemic- and lockdown-led rather than policy influenced.

V-shaped recovery

What the optimism underlying the V-shaped recovery hypothesis obviously misses are the linkages underlying the developments in the second quarter. As the GDP figures show, private consumption and investment have both been badly hit, with private consumption falling by 27 per cent and private investment by 47 per cent in the second quarter of 2020 relative to the corresponding quarter of the previous year. Associated with that fall, other data indicate, has been a significant fall in employment and incomes, which will trigger further reductions in demand either because of a fall in discretionary spending or a decision to postpone purchases. In the circumstances, private investment will not automatically revive because a quick return to “normal” levels of capacity utilisation is extremely unlikely. Even if the COVID-19 shock were to wane, economic recovery would neither be automatic nor robust.

Persistence of pandemic

The reality is that even the probability of a quick fade of the shock is low. In fact, the evidence in India points not just to the likely persistence but even an intensification of the pandemic before its retreat. This may necessitate a return to lockdowns at the regional or local levels, even if not on a national scale. So even the assumption that we are going to be left with only the after-effects of the COVID-19 shock in the fourth quarter of 2020 may be wrong.

The only way the damaging effects of the pandemic could have been partially countered was through strong government intervention in the form of a fiscal stimulus. But, as has been underlined by a number of observers, the stimulus package the Finance Minister announced in March largely involved the repackaging and/or front-loading of expenditure initiatives already announced, and new spending amounted to, at best, around 1 per cent of GDP. Given the intensity of the COVID shock, that was just a fraction of what was needed to counter its effects. In the event, government expenditure rose only by 16 per cent year-on-year in the second quarter, which was nowhere near adequate to neutralise the decline in private consumption and investment. Remarkably, even after the release of the evidence on the massive contraction in GDP in the second quarter, the government seems reluctant to ramp up its fiscal intervention. So, a prolonged crisis seems unavoidable.

This assessment is, of course, based purely on what the pandemic triggered. But before the pandemic struck, the Indian economy, measured even by GDP estimates biased towards inflating growth rates, was slowing dramatically (see chart). From a high of 8.2 per cent in the first quarter of 2018, the rate of GDP growth (year-on-year) had been falling consistently to touch 3.1 per cent in the first quarter of 2020. That slowdown was driven by a recession in demand visible across a wide range of sectors varying from automobiles to biscuits. There was a strong case for a fiscal stimulus to counteract that slowdown as well. Instead, in September 2019, the Finance Minister decided to offer India’s corporate sector a huge direct tax concession. That temporarily boosted net profits but did little to revive private investment since the demand recession had not been addressed. Rather, what the tax cut did was intensify a fiscal crisis that was brewing because of the loss of tax revenues resulting from the growth slowdown. The Finance Minister made a mistake then, as she did after the onset of the pandemic. The result is bound to be a prolonged and severe recession.

It is in this light that the argument that the second quarter contraction had little to do with policy has to be addressed. Policy did play a role, not only because the choice of an altogether sudden and intensive nationwide lockdown was a blunder and yielded little that was positive while devastating the livelihoods and lives of the most vulnerable. The fiscal response to the pandemic was also too tepid to counter its fallout. Policy also did matter because before the pandemic it worsened the fiscal crisis facing the Indian state by attempting to cajole the private sector into playing the role that the state should have taken on. In the event, by the time the pandemic came, given the National Democratic Alliance government’s obsession with reporting low fiscal deficit figures and keeping the Central government’s borrowing under control, it saw the means to hike expenditures to counter the economic crisis as limited.

Meanwhile, one other factor has complicated matters on the ground. The consumer price index for July confirmed ground-level perceptions that inflation in India was on the rise. The overall index rose by 6.9 per cent relative to July 2019, which though not alarming in itself was above the 6 per cent ceiling that a conservative Reserve Bank of India (RBI) had set for its inflation target. This was primarily because, despite good monsoons and increased production, the price index for food items rose by 10 per cent. This was a step up from the corresponding figures of 6.2 and 8.7 per cent for June. Clearly, the disruption in supply that the logistical problems the pandemic had created and was creating was taking away some of the benefits that a good monsoon had delivered in terms of agricultural growth. The gross value added (GVA) from agriculture and allied sectors rose by 3.4 per cent in the second quarter of 2020 compared with a 22.8 per cent decline in aggregate GVA across all sectors. Despite this growth, prices were on the rise.

That this was some cause for concern for the RBI became clear when its Monetary Policy Committee decided in its August meeting not to further reduce interest rates to drive recovery and ease the economic pain caused by the COVID-19 pandemic. If in the past a government unthinkingly committed to holding back on a fiscal stimulus looked to the RBI to use monetary measures (however ineffectively) to push for growth, the RBI now seems to be in a mood to hand the baton back to the Finance Ministry. In an interview to Financial Times, the RBI Governor while predicting that the inflation rate would moderate in the coming months also said: “The government will announce more growth-supporting measures.” It is not clear whether that was based on any discussion with the Finance Ministry, though he quickly inserted a note of caution to say: “But whatever fiscal expansion they undertake will be very calibrated and very prudent in its approach.”

In sum, while the COVID-19 pandemic has damaged the economy in India as it has damaged economies elsewhere, the end of a growth episode riding on a credit bubble, the failure to address the resulting recession, and a tepid state response to the COVID-induced economic shock have definitely made matters worse. The result is not just the severity of the current crisis that the second quarter GDP figures underline. That crisis will be prolonged, and expectations of a V-shaped recovery amount to mere wishful thinking. Policy definitely had a role to play in putting the nation in this predicament.

Jammu & Kashmir

Political parties rallying forces again in Kashmir

ON August 22, former Chief Minister Farooq Abdullah along with the leaders of five other mainstream parties in Jammu and Kashmir—once his foes but now united by a common struggle against the Narendra Modi government’s “incursions into Kashmir”—issued a joint statement “to collectively fight to restore the special status” of the erstwhile State. The six parties are Farooq Abdullah’s National Conference (N.C.), Mehbooba Mufti’s Peoples Democratic Party (PDP), the Congress, Sajjad Lone’s People’s Conference, the Communist Party of India (Marxist) and Muzaffar Shah’s Awami National Conference. They reiterated that they would unwaveringly adhere to the Gupkar Declaration, a document the parties’ leaders signed on August 4, 2019. The day after the declaration, New Delhi unilaterally abrogated Articles 370 and 35A of the Constitution that guaranteed Jammu and Kashmir its semi-autonomous status, and bifurcated the State into the Union Territories of Jammu and Kashmir, and Ladakh.

The Gupkar Declaration, which came about under the aegis of Farooq Abdullah in the tense and uncertain atmosphere created by a troop build-up in Srinagar and other parts of the Valley, states: “[A]ny modification, abrogation of Articles 35A, 370, unconstitutional delimitation or trifurcation of the State would be an aggression against the people of Jammu, Kashmir and Ladakh.”

However, a year later, as several prominent leaders, including Farooq and Omar Abdullah, were released from detention, they did not spell out how they planned to confront New Delhi over the sweeping constitutional changes it had imposed in Jammu and Kashmir. This triggered widespread speculation that mainstream actors may have agreed to be quiescent partners of the Centre, willing to accept, if not aid, its Hindutva pursuits in the Kashmir Valley.

Against this backdrop, the August 22 statement represents the first major exhibition of resolve on the part of the mainstream players in Kashmir to come together and buttress and leverage their distinct political strengths and advantages and use their combined platform to take on New Delhi’s ideologically driven agendas in Kashmir—“measures of disempowerment and a challenge to the basic identity of the people of J&K”, as the signatories described it in their joint statement.

Equally, the statement strives to address the antagonistic popular sentiment back home at a time when the mainstream finds itself beset with both distrust of the past and present complications that have deprived it of its political idiom, which was centred on the struggle to attain pre-1953 autonomy or establish “self-rule”. The exasperation was more loudly vented against former Chief Minister Omar Abdullah, whose recent interviews led people to imagine that the fulcrum of his politics would now rest on the demand for mere restoration of statehood.

In an opinion piece Omar Abdullah wrote for a New Delhi-based English daily on July 27, he said that he would not contest an election so long as Jammu and Kashmir remained a Union Territory. His critics read this as his attempt to inject the idea among the Kashmiri people that much of what was done on August 5 was irreversible, especially the revocation of Article 370 and Article 35A. The twin Articles guaranteed the local people, among other things, exclusive rights in terms of employment and ownership of land.

Omar Abdullah dismissed the accusations as “lazy journalism”, reminding people of the watertight case his party had made in the Supreme Court against the Centre’s August 5 decision. But the controversy escalated. Mehbooba Mufti’s continued detention under the Public Safety Act not only created a contrasting spectacle but impelled people to speculate about a possible back-room deal between the Abdullahs and New Delhi. Ill-timed dissension from within the N.C., in particular from former Jammu and Kashmir Cabinet Minister Ruhullah Mehdi, who resigned as chief spokesperson of the party, precipitated a social media backlash against N.C. leaders.

This sequence of events makes one wonder whether the reiteration of the Gupkar Declaration was merely a salvage exercise in response to a very vocal spurning of the mainstream by Kashmir’s discontented youths or whether leaders across the political spectrum were willing to highlight people’s fundamental concerns regarding the onslaught on their identity and point out the misplaced priorities of the Modi government to a wider audience in India and abroad.

Limitations of mainstream politics

The answer eludes one at this moment. However, a constant berating of the N.C. or, for that matter, any other mainstream political party in Kashmir would amount to irresponsible grandstanding. One needs to factor in the limitations that hinder their politics. Government formation in Jammu and Kashmir is not the usual handover of power but a ceding of partial authority that can be reversed at the slightest crossing of the fine line New Delhi has drawn. Various instances illustrate this, including Prime Minister Indira Gandhi replacing Farooq Abdullah as Chief Minister with his brother-in-law G.M. Shah in 1984.

After August 5, the government of India underlined that it had no qualms about putting the rank and file of the mainstream political players in jail by invoking draconian laws meant to be used against anti-state actors. Its military might; its preparedness to “kill 10,000 civilian protesters”, as Farooq Abdullah recently claimed; and its near control of the mass media that passed off all the Centre’s actions in Kashmir without scrutiny compound the challenges of inventing and operating a line of politics in Kashmir that is inconsonant with the wishes of the ruling party in New Delhi.

Among the leaders of the PDP and the N.C., however, there is cautious optimism. Iltija Mufti, daughter of Mehbooba Mufti, hailed the August 22 initiative as a “collective response to Delhi’s onslaught on Jammu and Kashmir’s special status”. Sajjad Lone added that it was “no longer about power” but about “a struggle to get back what rightfully belongs to us”. It is pertinent to mention here that under the Jammu and Kashmir Reorganisation Act, 2019, so far domicile certificates have been issued to 11,398 refugees from West Pakistan, 415 members of the Valmiki community, 10 members of the Gorkha community and 12,340 registered migrants. People of the Kashmir Valley see this as the beginning of a programme that is aimed at realigning the demography of their region.

Talking to insiders in the N.C. and the PDP gives one a sense that they are enthused about the redrawing of political battle lines at the Line of Actual Control and also domestically, such as the increasing assertiveness of the National Socialist Council of Nagaland (Isak-Muivah) regarding the issues of a separate flag and constitution for Nagaland, which has proved to be a major stumbling block to coming to a final Naga accord. These leaders in Kashmir see the August 22 proclamation as an unequivocal political messaging to the Centre that as its fault lines with China grow, regional actors will not hesitate to engage it in confrontations inside the Valley. Certain other political signals seem to uphold that observation. From stressing on a battle inside the Supreme Court, Omar Abdullah is now vocal about exploring and utilising other democratic means and platforms as an important pillar of his party’s struggle against New Delhi. “We will fight using legal means at our disposal, which are two: one is the power that the Constitution gives us to challenge the decisions in the court, and the second is forums available, including Parliament, the media, social media and public meetings,” Omar Abdullah said in a recent interview.

Broadly, the idea seems to be to assemble a wide coalition of like-minded parties and civil society groups. What form their combative assertions would translate into and how these would be leveraged to reinvent politics in Jammu and Kashmir are unclear. There are few other questions that dampen the optimism that these leaders share amongst themselves. One, will the PDP, the N.C. and the People’s Conference overcome their grave disagreements and pragmatically engage with one another for the long haul? Two, will their struggle involve the task of mobilising people on the ground? And three, will they be ready to sacrifice their political stakes temporarily and convert people’s rage into a full-fledged election boycott that would renew global scrutiny of the Modi government’s dealings in Kashmir?

Although these parties have put up a united front, off-the-record interactions with their senior leaders betray their deep and unshakably hostile history. Whereas the PDP does not totally rule out a “deal between the Abdullahs and New Delhi” and is keeping a watchful eye on the N.C.’s actions and utterances, the N.C. downplays Mehbooba Mufti’s continued detention, which people in Kashmir view as an outcome of her refusal to agree to any fine lines set by New Delhi. “She has to redeem herself,” N.C. leaders say curtly, referring to her unpopular decision to form a coalition government with the Bharatiya Janata Party in 2015.

Boycotting elections?

On the question of participation in elections, opinion is divided. Waheed Para of the PDP told this reporter: “This is an unprecedented situation. There is nothing to fight for unless the dignity of the people is restored. We have the example of the ongoing Naga peace deal. There cannot be a different yardstick applied to Kashmir, marked by lack of deference for local sensitivities.”

However, he said he was not certain whether boycotting elections would be a pragmatic option to exercise. “I personally think abandoning political processes will not lead to a solution. We saw what happened between 1990 and 1996. A political vacuum is not favourable for anyone in the region. It would lead to chaos and uncertainty.” Omar Abdullah has so far avoided giving any definitive answer to that question, leaving it up to his party’s core committee to make the call.

Those who hold the view that mainstream politicians should shun elections are worried that New Delhi’s well-oiled public relations machinery would showcase any successful exercise at the hustings as acceptance of its decision to scrap Article 370. There is an overwhelming sense that Kashmir’s capacity to offer resistance is greatly reduced at this moment. Although there is steady recruitment to the militant ranks, most of the home-grown combatants operate with rudimentary training and, in most cases, minimal ammunition. A temporary fatigue with street protests prevents replication of the widespread uprising witnessed in the summer of 2016, when the 21-year-old militant commander Burhan Wani was eliminated. Pro-resistance leaders are nowhere in the action, as Syed Ali Shah Geelani pointed out when he resigned as the chief of the hard-line faction of the Hurriyat Conference on June 29. “After August 5, the leaders who were not arrested were expected to lead the people.... I searched hard for you, but you were not available,” he said. In this context, threatening to jeopardise the electoral process seems like the only option available to mainstream actors to mount pressure on New Delhi and drive a hard bargain. Why, then, are they loath to exercise that option?

Political observers concur that a lot of thought went into New Delhi’s actions of August 5, which took into account and thereby pre-empted all possible forms of resistance. The Centre deployed considerable obstacles to thwart any resistance. New Delhi’s alleged propping up of the Apni Party, which is led by a group of PDP defectors, is seen as part of its plan to use this as the “stick” in its “carrot-and-stick” approach with the mainstream.

Even if the PDP and the N.C. were to abstain from elections, the Apni Party, recently derided by Farooq Abdullah as an “Intelligence Bureau creation”, could save the day for New Delhi. The perception is that given the massive presence of Army camps across Kashmir, in particular in many pockets of North Kashmir where it is also the employer of impoverished local residents, a 10 to 20 per cent voter turnout could be stage-managed. If that happens, the N.C. and the PDP’s ceding of the political space would be wasted, and chances are that those who are berating them now as “power seekers” would not be keen to hail them as “great sacrificers”. Where does that leave Kashmir, one wonders.

Authoritarian State and Criminal laws

Hidden agenda behind criminal law reforms?

Kirti Singh cover-story

At a time when a pandemic is raging throughout the country and people are not able to live and interact normally and many poor and vulnerable sections of the population are struggling with issues of life and livelihood and barely surviving, the Ministry of Home Affairs has set up a Committee on Criminal Law Reform. The committee is expected to overhaul the entire gamut of laws dealing with the criminal justice system. It is supposed to look at and suggest amendments to the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC) and the Indian Evidence Act. The time frame for carrying out this exercise is about six months. This is not possible even in normal times, let alone at a time of crisis.

The committee has been strongly criticised for the hurried manner in which it is trying to bring about reforms without adequate public consultation. It consists of five men—three law professors, one retired district judge and a senior lawyer—who have most likely been approved by the government. The lack of wider representation has been noted by, among others, women lawyers and civil society groups, who have pointed out that the committee does not have a woman who has worked on women’s issues. or any representative from marginalised groups such as the Scheduled Castes/Scheduled Tribes (S.Cs/S.Ts), minorities including religious and sexual minorities, and workers from organised and unorganised sectors. Inclusion of representatives from these sections would have ensured that those who bear the brunt of the criminal law processes on a daily basis have some say in their reform.

In a letter emailed to the committee on August 21, legal experts and academics/scholars from across India and from other countries have objected to the setting up of a committee to deal with a subject of such magnitude at a time when there is a humanitarian crisis and democratic institutions are in a state of “suspended animation”. They pointed out that the first five Law Commissions of India had taken about 10 years to complete an exercise to overhaul just one-third of the CrPC. They have criticised the wrong methodology adopted by the committee in not releasing the questionnaires on the IPC, the CrPC and the Evidence Act simultaneously as “calling for engagement with substantive law without any sense of what the procedural and evidentiary law might look like and vice versa guarantees dense confusion”. They want to know why the committee has not released a working paper outlining the “problem” and suggesting matters that needed reform. This could be widely discussed by the public before answering the questionnaire. Like other representations on the committee, they have pointed out that the whole exercise being carried out by the committee is an elitist one as it excludes the vast majority who cannot communicate in English and have no Internet access. They have rightly stated that it is particularly important to get the opinions of the “disempowered sections of society” on whom the legal process often places disproportionate burdens. They have quoted a Law Commission, which had pointed out that “law reform is a matter of vital importance not only for the legal fraternity and the State but also for the average citizens”, and stated that rewriting the criminal law could not be done democratically in the middle of a pandemic and should involve open and transparent discussions.

Another letter, dated July 8, from certain judges of the Supreme Court and High Courts and concerned lawyers called upon the committee to disclose the communication it may have received from the Ministry and to state what terms of reference, if any, had been specified and to disclose any concept note or project proposal that had been submitted to the Ministry. Among other demands, the letter asked for a transparent and robust engagement with the public and suggested that the draft report of the committee be put on its website for public feedback.

In a letter to the Home Minister, the All India Democratic Women’s Association (AIDWA) had pointed out that when the entire country was trying to deal with the pandemic and the suffering because of this, any meaningful participation in this exercise by people belonging to marginalised groups such as women and children, S.Cs/S.Ts, religious and other minorities and differently abled people was impossible. It averred that widespread public participation was impossible at this time since no one could directly approach the committee and air their concerns and grievances about how the criminal justice system and the police and the courts had been illtreating the common citizen. They have questioned the need for setting up such a committee in the middle of the pandemic when only certain experts and others who register with it could communicate with it mostly via questionnaires with a word limit of 200 per question.

The urgency to bring in reforms without adequate engagement with the marginalised and other groups that are impacted by unjust criminal laws and during a raging pandemic has made many suspect and fear that the committee has a pre-determined agenda for bringing in certain laws to favour an increasingly authoritarian state.

This suspicion is further strengthened by some of the queries that are raised in the questionnaire on certain subjects. One also has to look at the track record of the government in effecting only certain kinds of law reforms that suit its ideological standpoint and actions and in using the criminal law against those who are opposed to its policies and speak and protest against it, plus its openly communal and anti-Muslim stance. If one examines the laws that have been amended by the present government, they, for example, include the rape law under which the death penalty has been introduced for child rape expanding the areas in which this penalty applies. Further, rape per se and aggravated forms of rape by police personnel, rape in a place of custody, are treated in the same manner with similar punishments prescribed for both aggravated forms and other rapes. It becomes obvious, therefore, that the committee is not likely to suggest doing away with the death penalty or going against a harsh regime of punishment which primarily believes in retributive justice. Another example is the introduction of a law against triple talak, which was communal in its intent and targeted Muslim men by specifying a jail sentence for men who pronounced triple talak and not just making it void as the Supreme Court had done. Since “cruelty” by a man towards his wife is already punishable under Section 498 A of the IPC, which is applicable to all communities, a Muslim man who had abused his wife could always be punished under this offence. However, since no man from any other community is put in jail for merely deserting his wife, why target Muslim men alone? Another amendment that went against child rights and which was decried was to make the child culpable in certain heinous crimes. The committee’s question relating to decreased age for criminal responsibility shows it is open to this concept, which militates against recognised children’s rights.

Also, as a letter from members of civil society groups to the committee has pointed out, several anti-people steps have been taken by the government during the pandemic. The draft proposal of the government for amending the Environmental Impact Assessment procedures under the Land Acquisition Act “would place many projects outside the purview of public hearing effectively rendering local communities voiceless in such decisions”. The proposed suspension of labour laws is again an anti-labour proposal that would whittle away the minimum guarantees given to labourers such as the cap on the number of hours at work. The letter also points out that the habitual invoking of draconian laws such as the National Security Act (NSA) and the Unlawful Activities (Prevention) Act (UAPA) against peaceful protesters, using the spectres of national interest and sovereignty, to stifle fundamental freedoms of citizens makes civil society groups wonder whether the committee wants to overhaul the criminal law in order to “align it with the framework of the UAPA and the NSA, such that the accused’s rights are further whittled away”.

Misuse of laws

Some High Courts have commented on the misuse of these laws. The cases of Devangana Kalita and Dr Kafeel Khan illustrate how these laws have been misused to serve the government’s self-interest. In Uttar Pradesh, when all else failed to keep an innocent Dr Kafeel Khan in jail, the Yogi Adityanath government maliciously and conveniently slapped charges under the NSA alleging that he had promoted hatred and violence and threatened the peace and security. The Allahabad High Court quashed the detention order and held that Dr Kafeel Khan had in fact given a speech calling for national integrity and unity and deprecating violence, and he had thus not acted in a manner prejudicial to public order as required under the NSA. In Devangana’s case, the Delhi High Court noted her presence in a peaceful demonstration and stated that this was a fundamental right guaranteed to all citizens and no evidence was produced to show that she had instigated Muslim women to use violence or made a hate speech.

The questionnaire should be viewed in the light of the prevailing political situation. For instance, in Part C there is a question whether Section 124A dealing with sedition should be omitted or amended in terms of its definition, scope and cognisability. In the past few years the indiscriminate use of the sedition law against those who have protested and sometimes written against government action and policies has resulted in several demands being raised, including from the Left, for its abolition. Though this particular law was enacted by the British to stifle all voices against British rule in India, we have not managed to remove it even after more than 70 years of Independence. Given the frequent use of this draconian law, which militates against the constitutionally guaranteed freedom of speech, it is unlikely that the committee will recommend its abolition. Since the Supreme Court has already outlined the limits under which this law should function and restricted it to speeches that actually incite violence, the committee should not tamper with this law. Similarly, it is mystifying why in Part A of the questionnaire the committee wants to perhaps expand strict liability offences that make a person guilty whether or not the intention to commit the particular offence exists. Many fear that this could be a way of punishing the oppressed who come in conflict with public servants. Again, the question on abetment is mystifying because the law is well settled on this issue and broadening it could have dangerous consequences for the individual or groups involved. In the aftermath of the so-called Delhi riots (which was actually a pogrom), although it was Muslims who lost more lives than Hindus (42 out of 53) and suffered bigger losses in terms of properties, businesses and livelihoods, the Delhi Police has alleged that it was the anti-Citizenship (Amendment) Act protesters (mainly Muslims) who conspired to cause the riots. The police arrested mainly Muslim youths and protesters indiscriminately, even during the lockdown, and reportedly violated procedures required to be followed under the law relating to arrest.

Women’s issues

Although various political parties and human rights groups and others working with marginalised sections have been demanding more accountability mechanisms for the police and stricter laws in place on police excesses and so on, the questionnaire does not have any question on these issues. One hopes that the committee’s recommendations will not make it easier for the police to act with greater impunity and that the country’s bail law, which has already been indelibly altered, is not further tampered with to suit the government’s self-serving interest. Questions around women’s issues are particularly intriguing and smack of mala fides. Undeniably, abolition of the marital rape exception has been a long-standing demand of the women’s movement as has been getting rid of the archaic terminology in Sections 354 and 509 of the IPC, but gender neutrality of the rape law has already been extensively discussed and rejected. In fact, the women’s movement has fought hard for several years for amendments to the sexual assault laws and managed to get the laws amended after the Nirbhaya case with the support of the Verma Committee in 2013. Why should the Criminal Law Reforms committee, which does not even have a woman representative from the movement, take a relook at the clauses that were recently enacted in Section 354 A to D of the IPC dealing with molestation and sexual harassment, among other things? The committee has asked whether “honour killing” should be made a specific crime in the IPC. The women’s movement has not raised this demand. AIDWA and other women’s groups and the National Commission for Women (NCW) had proposed a comprehensive standalone law on not only “honour killing” but also crimes in the name of honour, committed mostly by the young woman’s family and relatives and community panchayats, which include acute harassment and coercive restriction of movement, forced marriage, imposition of fines and extradition. The Law Commission had subsequently suggested a standalone law, though this had a narrow intent and was only meant to target khap panchayats. The committee seems to be unaware of these laws or the discussions that went into their making.

One of the most sensitive laws that affect women’s right to get the police to act during physical abuse and assault and in violent marriages is Section 498A. There have been several efforts on the part of conservative elements to dilute this section; the Supreme Court has already given some guidelines for arrest. The committee seems to want to make suggestions to further dilute this Section perhaps in line with the 43rd Law Commission Report. This report on Section 498A was considered by many as anti-women as it suggested a preliminary inquiry before arrest and a three-month cooling period, and making the offence compoundable, thus treating the crime not as a normal crime but as a crime in which the police need not act immediately. Naturally, this patriarchal agenda will be unacceptable to most women. Apart from this, the committee also seems to want to make suggestions on Section 125 CrPC, which is widely used by women of all communities for claiming maintenance. The basis on which maintenance is granted is well established by law. While certain portions of the Section may require reform, the committee seems to want to amend the whole section. Some fear that this will adversely affect their rights to maintenance. In short, a committee set up by a government that has carried out many anti -people reforms and which is not transparent about why it has chosen to look at criminal laws at this crisis-ridden moment cannot be trusted to have a pro-people agenda and is unlikely to make suggestions for the benefit of the poor and marginalised groups who bear the brunt of the criminal justice system and its processes.

Kirti Singh is Advocate, Supreme Court of India; ex-member (part-time) 18th Law Commission of India, and legal adviser, All India Democratic Women’s Association.

 

Interview: Ranbir Singh

Ranbir Singh: Reforms were long overdue

T.K. Rajalakshmi the-nation

The Committee for Reforms in Criminal Laws constituted by the Union Home Ministry in May has drawn a fair share of criticism from a wide spectrum. The five-member all-male committee is headed by Professor Ranbir Singh, founder Vice Chancellor of the National Law University, Delhi. With his vast teaching and administrative experience, considering he was also the founder Vice Chancellor of NALSAR, University of Law, Hyderabad, Professor Ranbir Singh feels that being an academic would not be a limitation and that the committee will look into all aspects of criminal law reform on the basis of the widest possible consultation. The committee is expected to give its report by October. Excerpts from an interview Professor Ranbir Singh gave Frontline:

What are the main objectives of the committee set up by the Home Ministry and chaired by you?

The IPC [Indian Penal Code] is almost 160 years old and not any major effort was made to look into the whole gamut of criminal law reforms. Certain countries like Singapore and England looked into this, but it was long back, some 15 years ago. In India, the Malimath Committee gave good recommendations, but its mandate was different and it did not look at the whole landscape of criminal law reforms. This committee is looking into the IPC, the CrPC (the Code of Criminal Procedure), the Indian Evidence Act and the Narcotics Act. Our mandate is quite broad. I think it is a wonderful idea on the part of the government. These reforms were long overdue and probably we need to seriously look into what is required and this is what we are doing.

Can you give specific examples of the reforms that are being envisaged?

When I had a meeting in the Ministry of Home Affairs, the impression was that these laws being colonial laws—they were drafted when there was no Universal Declaration of Human Rights, and we didn’t also have our own Constitution—now we should look at the laws to examine whether they are compatible with international covenants and our Constitution. No effort was made to look into the criminal laws from the point of view of the Constitution and particularly fundamental human rights. That was the idea basically that was conveyed to me at the meeting.

Does the committee plan to consult experts and a wider audience?

Most of the experts are with us. We will consult them whenever there is a confusion in our minds. They are very senior police officers and academics. We are going for wide consultation with all stakeholders, be it judges, lawyers, academics, civil society. Recommendations are pouring in. Because of the pandemic we cannot conduct face-to-face consultations, but still a dozen people are working on the recommendations of earlier committees. The mandate of this committee will also involve looking at past recommendations from the Law Commission or other committees, including our own suggestions. We will put all that on our website. Ultimately it will be decided by the Home Ministry and Parliament.

Would it have been better to have a longer time frame for the consultations on account of the pandemic?

I agree with you that the time frame should be extended, and we had a meeting with the Home Ministry on this. In all our meetings we have been saying to the government that the Malimath Committee took three years, the [Madhav] Menon committee took more than one or two years, and even the Law Commission took a lot of time. With the pandemic being what it is, it is difficult to hold consultations and we plan to meet the Home Ministry about this. We met the Secretary of the Home Ministry on issues concerning the time frame. If we are expected to do holistic work, the time frame is important.

As chairperson, could you ask the government to have a broader representation on the committee?

This is the mandate of the government. We are a vast country and whatever number of people we keep on the committee, it may not be enough. I agree that if the government thinks that some representation should be given to people who have expressed concern, it could be done, but the government has to do it. We are looking at grass-roots justice and criminal justice reforms at that level. For that, we have a senior district judge and a very senior lawyer on our committee

The questionnaire includes new offences, but some, like marital rape, do not figure. Women’s organisations have raised concerns about the exclusion of certain offences and are apprehensive that the committee may recommend a dilution of pro-women laws.

A lot of concerns have cropped up over the years. I agree there are controversial areas, and I am sure that the committee will look at it honestly and rationally. We will give recommendations. Whether it is agreed upon or not will depend on Parliament.

It is felt that it was the mandate of the Law Commission and not academics to look into criminal law reforms.

Let me share with you and the country that a committee of this kind, looking into such an important reform process, has been entrusted to academics. If you look at committees in this country, never have academics been given charge. All important research takes place in academic institutions and universities. The charge was not given to the Law Commission as there is no Law Commission for the last few years. Some people also feel that a senior judge of the High Court or Supreme Court could have headed it. People should be appreciative that it has been given to academics. In foreign countries such work is done by universities. I was a member of the Soli Sorabjee committee on police reforms, of the Kamal Kumar committee on the IPS, Sri Krishna Committee on the bifurcation of Andhra Pradesh and Telangana.

Some people wonder why it is headquartered at the National Law University, Delhi, but it is perhaps because it is cost-effective to have it in Delhi. The kind of research we are doing, the competency and research we have developed, is comparable to any leading university elsewhere. We are also looking at all judgments of the High Courts and the Supreme Court. We will do everything under the sun but we cannot please everybody.

There is a concern that the questionnaire is predetermined, and there is a limit to the word length in which the questionnaire can be answered.

We have said that for the sake of brevity one can give suggestions in brief. But if people want to send in longer notes, they certainly can. It is not an examination that one cannot go beyond 200 words. If anyone wants to say more, they are most welcome to send separate notes.

One of the objectives refers to principled sentencing and simplifying procedures. What exactly do you mean by that?

We will look into it as the provisions for sentencing are old and dated. Bail matters are also important. We are taking the views of people who have worked in these areas and looking at reform processes in other countries too.

Many offences have been decriminalised, but at the same time there are stringent laws, such as the sedition law, which are in contradiction to some of the fundamental principles of the committee’s mandate, that is, reform with a human face.

I don’t know why some of these laws are there on the statute books. Everyone knows that these laws are being misused. These are critical areas. Then there are issues like honour killing, same-sex marriage, mob lynching, etc. There are already lots of comments by the Supreme Court, including on the issues that you mention. We will honestly and squarely discuss each and every problem.

Many academics have come under attack, been put behind bars without bail under some of these stringent and controversial laws, some of which you plan to look into. You are an academic, what is your opinion on this?

I have not seriously looked into this. But as this is not connected to what we are discussing today, I would prefer not to talk about this.

Is there need to be apprehensive that the committee might suggest stringent reforms that might result in the erosion of democratic rights?

It is premature to state whether mild or stringent reforms will be recommended by the committee. The IPC is such a document that even if there is any particular offence or criminal behaviour defined in it, it covers everything. As an example, for honour crimes, people say a different law is required. But we have a law for murder or for lynching. So why need a separate law? The judiciary can interpret every offence the way it wants to. The Vishaka judgment on prevention of sexual harassment at the workplace was law until the Act was enacted.

It is felt that the criminal justice system is skewed against the poor and the vulnerable.

It is skewed not because of the laws but the implementing by agencies. I was part of the Soli Sorabjee committee on judicial reforms. One of the major mandates of this committee was that the police administration system, law and order machinery and prosecution machinery should be separate. The Prakash Singh committee recommended police reforms. The guidelines of both committees were sent to the States as law and order is on the concurrent list. The Supreme Court wanted to know how many of the guidelines in the Prakash Singh committee had been implemented. It was found that nothing had been done. There is a need for reforms at all levels. The world is changing. Forensic science has to keep pace. There are multiple layers of reforms. The report is only one part of that.

Interview: Siddhartha Dave

Siddhartha Dave: The ideal thing to do is to scrap the committee

T.K. Rajalakshmi cover-story

The process of reforming laws should be as broadly consultative as possible. Many criminal law experts believe that the Law Commission is more equipped to conduct a proper review of criminal laws than the Home Ministry-appointed five-member committee. Siddhartha Dave, a Senior Advocate in the Supreme Court, has expertise in criminal law. He is of the view that if the committee is serious about reforming criminal law, it should look at police reforms first. Excerpts from an interview he gave Frontline.

The Home Ministry has constituted a five-member committee to review and overhaul criminal laws. Do you agree with the manner in which this committee has been constituted and its timing?

The responsibility of reviewing and overhauling criminal laws should not be the prerogative of a committee but that of Parliament and the Law Commission. Ad hoc committees constituted by the Home Ministry has no locus to review the laws, especially if the Home Ministry is going to place it before Parliament. With a pandemic going on for the last four months, how will the consultations take place? It is not a transparent procedure. It should been an open forum, as it was when people deposed before the Justice Verma Commission. If I email them something, there is no guarantee that it has been received. The ideal thing to do is to scrap this committee.

The alternative is the Law Commission. It has a structure and is a formally recognised body which has been dealing with such issues since Independence. Why bypass it? Also, why select one university for this? What does a university have to do with it? What are its credentials and what great work has it done in this area? Tomorrow, laws can be reviewed by IIT Delhi by this logic. Ideally, the Law Commission should look into it, hold interactions and place its recommendations before Parliament. All ad hoc committees are extra-constitutional authorities. They have no business recommending changes.

Is it possible to suggest far-reaching changes in the Indian Penal Code (IPC), the Indian Evidence Act (IEA) and the Criminal Procedure Code (CrPC) within the time-frame of six months suggested by the government?

There should be no time-frame. These are far-reaching changes that are being proposed. There are examples of the best-drafted pieces of legislation from 1860 onwards that have stood the test of time. Whatever laws we have drafted in the last 20 years are riddled with loopholes. Forget criminal laws, amendment after amendment was moved in the Arbitration Act and the Insolvency and Bankruptcy Code, 2016, because they are so unworkable. I shudder to think what amendments they are going to bring.

Merely because a law is colonial does not make it a bad law. The Transfer of Property Act and the Registration Act (1908) are colonial laws. Review those. Our political governance is based on the Westminster model; we should review that. Parliamentary privileges follow the colonial model and it should be reviewed. Why single out criminal laws is beyond my comprehension. The CrPC needs some changes as it was largely based on an earlier one. I am not sure whether we are actually capable of a review given the time-frame. It will take six months for the committee just to understand the workings of the IPC, CrPC and IEA.

But each and every definition in these laws is outstanding. It is amazing that something that existed in 1860 covered circumstances today. Look at the Terrorist and Distruptive Activities (Prevention) Act (TADA) or the Prevention of Terrorism Act, 2002 (POTA). Both are badly drafted laws. The reason for the present review is not clear.

Do you also feel that the setting up of this committee at a time when a lot of normal functioning of society has been paralysed is another example of executive overreach?

If at all it requires any review, it should have been done by the Law Commission and no one else. It was bypassed even when the Verma Committee was set up. The 2003 Justice V.S. Malimath Committee’s recommendations on the criminal justice system have not been implemented. Justice Malimath, a retired judge of the Karnataka High Court and Kerala High Court, traveled all over the country. His recommendations are still pending and now we have another committee.

When the Bharatiya Janata Party (BJP) came to power in 1999, it wanted to review the Constitution. A committee was also set up to review the working of the Constitution. Then A.P.J. Abdul Kalam remarked that it needed to be seen whether it was the Constitution that had failed us or the people who had failed the Constitution. That same logic applies. From the Constitution we have come to criminal law now.

There are some who believe that the objective of the committee is to establish and strike a coherence between the various laws. It comprises widely respected and accomplished academics but lacks representational diversity, which has attracted criticism. Do you feel this is a valid criticism?

There is nothing called coherence between various laws. Criminal law is divided according to the subject matter. There are subject matters or laws dealing with each offence. Our procedural law is not colonial. It came about in 1973. So, there is no need to review that. If being a colonial law is the only criterion, the question of coherence does not arise. I don’t think these academics should be in this committee or dominating the committee as they don’t have any understanding of criminal law.

Why only academics? They only teach what is laid down by the courts. There are journalists, engineers who can also be in the committee. Having one member from the Bar Council and another judge here and there doesn’t serve any purpose. Let there be more judges and lawyers in the committee. There is diversity even in the interpretation of the law. There are laws dealing with crimes against women that are applied in a regressive manner in some parts of the country, but in States with a better education level, the experience is different.

If at all we are going ahead with this committee, it should be diverse.

Do you feel that this kind of a consultation would lead to substantive changes in criminal law, especially the way it is applied in lower, trial courts?

We have judgments interpreting provisions of criminal law since 1860. Until 1947, the Privy Council’s interpretations were the highest call. We have had the Supreme Court since 1950. It has consistently interpreted these provisions, which constitute law and used as case law by judges and lawyers. Now they want to re-haul these laws, which is like going back to square one. A matter goes to the trial court, which gives an interpretation; then it goes to the High Court, which interprets it in its own way and then it travels to the Supreme Court, which again has to apply its mind. It is a sheer wastage of judicial time. This is unsettling what is a settled position. It will lead to nothing, just more confusion.

We saw how the police behaved with migrant workers during the pandemic We also saw how the police entered a campus in Delhi and went on a rampage and how they behaved with a certain community during the recent Delhi riots. Do you feel the committee should address these issues more specifically, in terms of having strong procedural laws that uphold the presumption of innocence?

This is the most important aspect. The only reform the committee should carry out are police reforms. We cannot have a regressive system where the police are in charge of law and order as well as investigation. We have no concept of detectives, or separate units for crime detection.

There is no difference between those who comprise the Central Bureau of Investigation (CBI), the Enforcement Directorate (ED) or the National Investigation Agency (NIA). The cadre is the same and the training is the same. There is no difference in the skills of CBI or ED personnel and local policemen. The urgent thing needed is the implementation of the judgment of the Supreme Court in 2006 relating to police reforms. We should have better forensic laboratories, better scientific investigation. Both the State governments and the Central governments don’t want to let go of control of the police.

On the one hand, many offences have been decriminalised, most of them because of judicial intervention. On the other, there is an increasing tendency to book people under the most severe of laws like sedition, the Unlawful Activities (Prevention) Act (UAPA) which ends up causing a lot of harassment and suffering. Should the reform process look at these aspects as well?

This is precisely the reason why I don’t want this committee to touch laws that have been doing fine since 1860. Take a look at the amendments the Congress brought in 2004. It amended POTA, but brought in UAPA through the back door, which was amended in 2009 and 2013. From a purely legal perspective, it is worse than POTA. Look at the definitions it has. If I work against the economic interests of the country, I can be booked under it because it affects the sovereignty of India. It can be invoked against a black marketeer. Are these laws meant for such trivial things? These amendments were made by Parliament in free, independent India. Some of the laws of 1860 are much better than this.

The stated objectives of the committee do not reveal much. They are broad in scope. They talk about primacy of human rights, the Constitution, simplifying procedures, fair and time-bound investigation, victim justice, balancing the rights between the state and the individual, principled sentencing, balancing between the accused and the victim, and so on. What would you say about this broad mandate of the committee?

There is no point in wasting public money on this. There is a need for procedural reforms. For example, for every special law, there is a special judge. But all these judges are taken from the common pool of judges. It has become a normal legislative prerogative. It deprives the general pool of adequate number of judges. The strength of the lower judiciary is not increased. The committee will not looking into this. Rather than look at the substantive part of law, the procedural parts should be looked at.

We have to take investigation of a crime out of political control. We have a directorate of prosecution but if the political masters instruct that UAPA should be invoked against an accused, it will be done. A person maybe acquitted after 20 years. [But there will be] no restitution for him. [Doctor] Kafeel Khan is a great example of this. Decriminalising some of the offences is not of much consequence. I have yet to see someone convicted for bigamy. Decriminalising Section 377 of the IPC was good but that was not because Parliament willed it. Parliament will amend what suits it. This approach is common to all governments.

Despite having laws for almost all offences under the sun, crimes against the poor, Dalits, minorities, women and children have not come down. Our jails are full of people belonging to the weaker sections of society. Would you agree that there is an anomaly in the application of criminal law and, by implication, the criminal justice system?

This is related to law enforcement and crime investigation. Laws cannot prevent crimes. But it is the political patronage that needs to be questioned. The committee should address why jails are crowded and why bail is not given. It should look at different sections such as Dalits, women, minorities and weaker sections. Lack of bail (for undertrials) has devastating consequences. In some instances, such as murder or a heinous crime, bail can be denied. But the judicial trend today is to deny and not grant bail. If there is a riot case or an anti-CAA protest, why should someone be in jail for it? The trend that the executive can file multiple first information reports for the same offence in different States is growing. As soon as a person’s 90-day remand is over, he is taken into custody in another State. This was not the case earlier. The committee should look into this. It is not the colonial laws that are being misused but these newly drafted laws.

There are apprehensions that many progressive laws might get diluted in the process of reform and that we might see some very tough laws in the name of national security, thereby further shrinking the space of individual and collective freedoms.

Ultimately, laws do get diluted when there is one party in power rather than a coalition. This committee looks like a hand-picked committee with not much knowledge of the working of laws. I don’t have much hope from this committee. I doubt political parties also will look deeply into this. All amendments in recent years, including draconian ones, were framed during Congress regimes. The tables have turned. There is a right-wing dispensation today which is using those laws against the Congress itself. We should not forget that we have a Constitution governed by law. We have a most fundamental article, Article 21, that says no person shall be deprived of life and liberty except by procedures established by law. Only police reforms can save this country. Make the police independent of the executive. But the remit of the committee is not to go into this.

Criminal Law Reforms

Dangerous haste to reform criminal law

In May 2020, the Ministry of Home Affairs (MHA) notified a five-member Committee for Reforms in Criminal Laws comprising Professor Dr Ranbir Singh, Vice-Chancellor, National Law University, Delhi; Professor Dr G.S. Bajpai, Registrar, National Law University, Delhi; Professor Dr Balraj Chauhan, Vice-Chancellor, Dharmashastra National Law University, Jabalpur; Mahesh Jethmalani, Senior Advocate; and G.P. Thareja, retired judge, Delhi Higher Judicial Services. From the very beginning, the committee met with very strong reactions against its all-male composition, lack of social diversity, and hurried attempts to carry out a mammoth exercise in the middle of a devastating pandemic with very little public consultation. However, in this article, our interest is to examine methodological concerns with the committee’s approach, which in turn reflects the broader politics of criminal law reform.

Politics of criminal law reform

India’s criminal law regime comprises three main pieces of legislation, along with a host of special statutes criminalising specific offences. The Indian Penal Code (IPC), 1860, covers essentially a variety of substantive offences; the 1973 Code of Criminal Procedure (CrPC) delineates the procedure for the investigation of offences and conducting trials; and the Indian Evidence Act, 1872, governs the rules of admissibility of evidence. The IPC and the Indian Evidence Act were drafted and promulgated during the colonial era and have continued in independent India with amendments as and when needed. The law on criminal procedure was originally passed in 1898, to which there were subsequent amendments and an overhaul in 1973. There have been amendments to these laws over the years and a significant set of amendments were made in 2013 as a response to the Delhi gangrape case.

Criminal law codifies the coercive power of the state and is enabled by provisions of the Constitution. The right to life and liberty guaranteed to all citizens by Article 21 of the Constitution has a crucial exception, that of life and liberty being deprived in accordance with law. Since crimes are considered wrongs against the society as a whole (and not just the individual victim), it is the obligation of the state to prosecute offenders and bring them to justice. Being accused of an offence can perhaps be a life-altering experience for an individual, as it brings them face to face with the entire might of state coercive machinery.

However, more often than not, the might of this criminal justice machinery is pressed into action against the most vulnerable and marginalised sections of our society. Coercive laws have a disparate impact on these communities, which have no means of defending themselves. The consequence of the misuse of these laws is irreversible repercussions on the lives of the accused, their families and indeed even the victims of the offence.

The Indian criminal justice system faces a strange paradox. At one end of the spectrum, brutal custodial violence, manipulated investigations, wrongful prosecution, and lack of effective access to justice are all stark realities that accused persons routinely face. At the other end, victims of crimes also struggle to have their cases effectively registered, investigated and tried. Victim support is hardly available in our system, and the burden of accessing the legal system dissuades large numbers from seeking justice in their cases. The political and public discourse on crime has sought to chip away at the rights of the accused as a means to give more rights to victims. That is politically convenient, but the occurrence of crime must be viewed as the state’s failure to protect its people.

Apart from the law itself and its potential for misuse, a noteworthy Indian problem is that the process itself is the punishment. Our prisons are overcrowded, with over 70 per cent of the inmates comprising people who are yet to be found guilty by any court (undertrials), while our bail system has long been known to be against the poor. Burdened by the lack of independence, resources, infrastructure, training and personnel, the Indian criminal justice system has multiple crisis points. This crisis is further exacerbated by the trend to over-criminalise and over-punish. The tendency to use criminal law to respond to every social problem by providing for harsh punishment has further burdened the criminal justice system.

The devastating impact on the criminal justice system in Bihar as a consequence of alcohol prohibition laws is just one example from the recent past. We have a criminal justice system that is replete with archaic laws, unjust and violent laws, and exclusionary and discriminatory procedures, and yet there has been very little effort to make such a system more equitable and democratic. It is a system crumbling under the weight of its own contradictions, and since its effects are mostly felt by the worst-off in our society, there have not been any genuine attempts at reforming the various components of the criminal justice system. However, given the widespread concerns with the use of criminal law by the current dispensation, the enthusiasm for criminal law “reform” faces significant democratic mistrust. Given the nature and intensity of violence by state and non-state actors, criminal law has emerged as an even greater tool of oppression.

A committee formed to suggest “reforms” in this political context starts on the backfoot already and must confront that reality. It is a reality that justifiably views this attempt at reform as really being about giving power to the state and watering down protections. The committee for criminal law reforms needs to be acutely aware of its position in this political conversation. As a result, the burden to go about its task in the most rigorous and transparent manner is non-negotiable. Without such rigour and transparency, the committee runs the serious risk of losing legitimacy and the democratic acceptance of its proceedings. It is in this context that this article seeks to examine the methodology that the committee has adopted thus far. Unfortunately, it does seem that in its efforts to rush through its mandate, the committee has adopted measures that raise serious concerns about its rigour and, in the process, making choices that undermine the legitimacy of the process.

Committee’s methodology

To begin with, there is no clarity about the terms of reference for the committee’s work. The ‘Mandate’ section of the official website (www.criminallawreforms.in) does provide a list of points on substantive and procedural criminal law along with evidence law issues that are of interest to the committee. We might be well served to first provide the best account of the committee’s methodology.

The committee has released five out of six questionnaires, two each on substantive criminal law (on offences), procedural criminal law and evidence law. In its wisdom, the committee has released these questionnaires in a staggered fashion with 28 days to respond to each one, but the periods have overlapped significantly. The substantive criminal law questionnaire on the definitions, additions, deletion and modification of offences had 87 questions in two parts, while the two procedural questionnaires had 108 questions.

The committee, in a public notice published on August 25, probably in response to the wave of public criticism, sought to provide more details on the methodology and process. The public notice said that the questionnaires were “products of extensive research, analysis and discussions” and that “the hallmark of the exercise had been its reliance on proper methods”. The committee also said that great effort had been taken to maintain the neutrality of questions that were based on the analysis of “judicial precedents, law commission reports, other committee reports, and authoritative treatises”.

Further detailing the method adopted to identify issues, the public notices provided the following information:

a) those issues which have been previously identified/recommended by the authorities mentioned above;

b) those issues on which much public debate has occurred;

and

c) issues identified through deliberations with multiple professionals, functionaries, and legal practitioners.

Apart from the identified issues, the committee has also developed an option called “open consultations” to receive responses on any issue relating to criminal law that has not been specifically identified in the questionnaires. However, the committee has not provided any details on what it intends to do with all the responses and the methodology it will adopt to prepare its report. The demands to make public the responses received by the committee have not received a response.

Criminal law is per se intertwined with the politics of state and governance, and it is therefore important that we identify and acknowledge the politics of the methodological choices of the Criminal Law Reforms Committee. A strategy of open and voluntary consultation has significant concerns of underinclusion and overinclusion.

The questionnaires are drafted in such a manner so as to make the consultation relevant only for those proficient in the law. The broader relevance and implications of criminal law go well beyond just the interest of lawyers, judges, legal researchers and scholars. Undoubtedly there are elements of the law that lie at the core of criminal law reform, but to design the entire process of consultation as the exclusive domain of the law is to effectively deny the interdisciplinarity of criminal law. In its imagination, language and approach, the questionnaire-based approach in its current form is severely underinclusive.

And yet, it also suffers from the vice of being overinclusive. In its design, the methodology does not envisage the necessity of ensuring the presence of certain voices based on the issue under consideration. In leaving participation as purely voluntary, a committee of this nature falls short of proactive obligation to ensure that, depending on the issue, a multitude of perspectives are placed before it. For example, it would be imperative that in an exercise like this, issues concerning children, sexuality, marginalised groups, sexual violence, scientific evidence, etc., would mandatorily require in-depth engagement and perspectives from stakeholders and experts. It would necessarily involve the committee undertaking a rigorous methodological exercise to match a whole range of issues with the voices and stakeholders that need to be heard. This might seem very cumbersome and requiring a lot of work, but since we are talking of laws that have such a deep impact on all our lives, the truth is that there is no way around it.

In adopting this open-voluntary methodology with the questionnaires during a severe pandemic, the committee has made participation technology-dependent while ignoring the exclusionary politics of technology in a country where quality Internet access is abysmal. Even for those who might have the expertise to understand and respond to the legalese in the questionnaires, access is not just about using the Internet to register and send responses. In times when libraries and books are difficult to access, the requirement of access is also about reaching resources behind expensive paywalls.

The committee, in its public notice, seems to make a case that it has uploaded resources on its website to facilitate access to resources that might assist with responding to the questionnaires. However, a bare perusal of those resources suggests that those resources are not a fair representation of the perspectives and resources on criminal law and criminal justice in India. There is a heavy dominance of material produced by state institutions, and it must be a matter of serious methodological concern that in attempting to give public access to material, the op-ed section of the official website has articles only by one author. It prioritises one set of perspectives to the exclusion of almost all other perspectives. While the committee has made participation open and voluntary, it has unfortunately not done enough work to ensure meaningful participation. Its current methodology and structure of participation excludes large sections of people with varying interests in the criminal justice system from participating.

Burden of law reform

A fundamental difficulty with the committee’s methodology is that we have no information on the background work that has gone into developing the questionnaires. The public notice of August 25 assures us that a lot of good work has gone into developing these questionnaires. While there is no reason to doubt those assurances, it does not tell us what this work is and does not put up its work and methodology for public scrutiny. The public assurance is no test of its rigour and credibility.

It is necessary to see the extensive research and the background papers produced after such research that went into the development of the questionnaire. Undoubtedly there is a methodology document that has guided the development of five of the six questionnaires thus far. These documents need to be put out for public discussion and debate to ensure that such a large and profound law reform exercise is based on sound foundations.

It is undoubtedly a burdensome exercise to engage in the kind of research required to produce questionnaires that will be the basis of criminal law reform on this scale. Each of those 200-odd questions are extensive areas of study in and of themselves, and the task of identifying those 200 is an incredibly complex exercise. It is an unenviable task, but for this process to receive public confidence, it is essential that such background research be made public.

Apart from issues of public confidence, such background research and papers are necessary to ensure that those responding are sufficiently informed of various perspectives. The committee is seeking to traverse through a very complex terrain, but by calling for opinions from the public without the necessary background information, it risks converting these issues into a popularity contest.

There must be a methodological justification as to the manner in which the committee arrived upon the issues in the questionnaire. We get no indication from the material published by the committee as to the process and justifications for inclusion and exclusion of issues.

The only indication we have are a few lines in the public notice dated August 25: “The issues on which responses have been sought too, are: a) those issues which have been previously identified/recommended by the authorities mentioned above; b) those issues on which much public debate has occurred; and, c) issues identified through deliberations with multiple professionals, functionaries, and legal practitioners.”

Unfortunately, that is just not good enough in terms of methodological rigour. Why have only questions raised by some sources considered? Why were others excluded? What amounts to sufficient public debate for an issue to qualify for the committee’s attention? What were the sources from where “public debate” is discerned?

The committee has also not provided details of the deliberations with “multiple professionals, functionaries, and legal practitioners”. These are not quibbles over minor details but are, in fact, very significant issues that throw light on the choices that the committee has already made.

For example, there seem to be a disproportionate number of questions on the crime of “mischief”. Three out of 87 questions (more than 3 per cent) in the substantive criminal law questionnaire are on mischief when it forms only 0.1 per cent of IPC crimes in the country as per the 2018 statistics of the National Crime Records Bureau (NCRB). The point here is not that the committee must provide a question-wise justification, but even after five out of the six questionnaires, we are yet to be provided with any details on the methodology adopted by it.

It would be no justification to say that excluded issues can be raised through the ”open consultation” procedure, where respondents can write in about any issue relating to criminal law. The committee has played its hand and the questionnaires demonstrate the issues that are priority for it. And since there are no publicly available reasons for these choices, there is no way for us to know if the committee has already considered and rejected other issues.

The opacity surrounding the methodology adopted to frame the questions is made worse by the language employed by the questions. The committee has used certain phrases, which by no means have the same meaning universally and are subject to much interpretation and debate. To make matters worse, it has casually prefixed phrases such as mob lynching and honour killing with “colloquially understood as”. These are terms that have created sharp divisions amongst sociologists and legal scholars alike, and to leave such terms to multiple interpretations defeats the purpose of a consultation.

Another example. In the first substantial questionnaire, the committee seeks responses on introduction of “strict liability” offences within the IPC, without elaborating as to what strict liability offences are in the committee’s conception. For some scholars, strict liability offences are those that do not require any element of mens rea (intent or knowledge of wrongdoing) at all; for some others, an offence which criminalises a negligent act is also a strict liability offence. There is no consensus among scholars on the subject and, thus, the committee should have been more careful while using such terms, especially when it potentially seeks to alter the structure of the IPC.

Sexual offences: A case study

Many of the concerns discussed above might be usefully illustrated through the committee’s approach to sexual violence in the questionnaires. The Justice Verma Committee undertook exhaustive consultation for reforms in the adjudication of sexual offences in India and submitted recommendations were accepted by Parliament and passed into law by the Criminal Law (Amendment) Act, 2013.

A study on rape trials between 2013 and 2018 found that the rate of acquittals had actually increased since the introduction of the amendments, concluding that mere legal reforms were futile in the absence of corresponding social and governance reforms. Ideally, a committee undertaking criminal justice reforms should have also considered whether the Criminal Law (Amendment) Act, 2013, was being implemented procedurally. However, the committee has chosen to engage with sexual offences only in its Questionnaire on Substantial Criminal Law, which contains a section pertaining to sexual offences.

The first question seeks responses regarding the classification of sexual offences, and whether they should be classified as a sub-set of offences against the human body, offences under gender discrimination or an independent category of offences. The committee offers no guidance regarding why this has been identified as an issue, or the manner in which it will impact the adjudication of sexual offences. To be clear, this issue has immense importance for the discussion on sexual violence in our society, but the committee fails to provide the necessary perspective for respondents to engage with it as part of a criminal law reform exercise.

By adopting this methodology of single-sentence questions with no prior context of research/perspectives, it drastically reduces the possibility of informed responses. The other questions surrounding addition/modification of offences, standard of consent, marital rape and rape during armed conflict were all considered in detail by the Justice Verma Committee. Again, it is not entirely clear why the committee for criminal law reforms is choosing to re-examine these issues in less than six years, or what according to it were the lapses in the consideration of the Justice Verma Committee.

The questionnaire also seeks responses on the aggravating and mitigating factors that should be taken into consideration during sentencing in cases of sexual offences. The committee has not made it clear whether it envisages recommending statutorily recognised aggravating and mitigating factors only for sexual offences, and its reasons for making this exception.

Over the years, several Law Commission Reports and committees have examined the provisions of substantial and procedural law and recommended changes. One aspect that is entirely missing in the public discourse surrounding the criminal justice system is the dire need for infrastructural upgrade and reforms. This is indicated in some of the questions asked by the committee for criminal law reforms. The questionnaires on procedural law seek responses on time-bound trials and stipulating an outer limit on the conclusion of trials. Ideally, the committee should have undertaken an empirical study of the success of similar provisions introduced for the adjudication and conclusion of rape trials by the Criminal Law (Amendment) Act, 2013. Merely inserting a provision that trials need to be heard on a day-to-day basis and concluded within a fixed time limit will not make the judiciary more efficient.

At the heart of the problem lies the fact that there are more than two crore criminal cases pending in trial courts across the country, but there are only 18,239 trial court judges to adjudicate them. These judges are assisted by fewer than 10,000 public prosecutors and fewer than 65,000 empanelled legal aid lawyers. Envisaging any kind of procedural reforms in criminal law is meaningless without first advocating for increasing the number of judges, prosecutors, legal aid lawyers and court administrative staff.

Apart from court infrastructure, a crucial component of the criminal justice machinery is the police. A crime can only be proved in court on the strength of impeachable evidence collected during the course of the investigation. No reform in the black letter of the law will translate into meaningful change in practice unless there is an emphasis on reforms, training and increasing of manpower in the police.

The project of criminal law reforms is vast, complex and demanding. The attempt to hasten and simplify it is fraught with dangers that have long-lasting consequences. We have now been set upon a course of reforming criminal laws many of which are nearly older than 150 years. There is much that has happened in our society, economy, politics and the legal system that has shaped the evolution of criminal law. It is critical that we understand those trajectories in great detail before we set the agenda for reform.

In not laying out its understanding of those trajectories in developing the questionnaires, the Committee for Reforms in Criminal Laws has unfortunately built this entire process on very uncertain foundations.

It must give us a sense of perspective about the enormity of the task that a colonial ruler took over 15 years to develop and implement many of these laws. In a democratic society governed by constitutional norms of participation, the process of criminal law reforms needs lot more depth, inclusivity, and rigour.

Anup Surendranath is an Assistant Professor of Law and Executive Director, Project 39A, at National Law University, Delhi. Maulshree Pathak is an advocate practising in the Delhi High Court and has a Master’s in Criminology and Criminal Justice from the University of Oxford.

Interview: Dr Poonam Khetrapal Singh

Poonam Khetrapal Singh: The pandemic is far from over

T.K. Rajalakshmi the-nation

The rising graph, and resurgence, of COVID-19 cases globally presents a new set of challenges to governments. With no cure in sight, health experts and governments are increasingly of the view that physical distancing and hygiene are the only options available until a vaccine is developed. Many governments have also given directions for the resumption of all economic activity which, in turn, seems to have contributed to the rising numbers. Dr Poonam Khetrapal Singh, Regional Director of the World Health Organisation’s office for South-East Asia, spoke to Frontline on the reasons for the resurgence, disruption of essential health services, vaccine development and the importance of collaborations between countries in the search for a cure and vaccine. Excerpts from the interview:

Countries in Europe that earlier showed signs of tapering, such as Spain, now show a rising graph of infections. In France, too, infections seem to have gone up in all age groups. What does this indicate?

The pandemic is far from over. Whenever responses slow down, including complacency on the part of the public with regard to safe behaviour, the virus bounces back. It is important to keep suppressing the virus. We are seeing instances where countries that had managed to curb the infections are now seeing a re-emergence. It is important to quickly identify any new case or cluster so that it does not spread in the community. For this, we need to make sure we test, treat and isolate and quarantine contacts so that any resurgence can be identified and stopped.

COVID-19 affects people across all age groups. As individuals, we have to continue to remain vigilant and be responsible for ourselves and the health of others. We know what that takes: keep our hands clean, maintain a distance of at least a metre between ourselves and others, avoid crowded places, practice respiratory hygiene and wear masks wherever recommended. Until such time when there is a medicine or a vaccine to protect us from this virus, this is how we have to protect ourselves.

Are countries testing adequately? In India, a WHO guideline states the adequate level of testing as 140 tests per million. Can this apply to large populations such as India’s?

Testing is an important tool in battling the COVID-19 pandemic. India has significantly ramped up its testing capacity from 100 a day early in the outbreak to more than 8,00,000 a day currently. We are aware that as of August 30 as many as 4,23,07,914 cumulative samples have been tested. On the same day, 8,46,278 samples were tested across the country. The more we test, the better we will know and understand the spread of transmission which will help us further strengthen our response.

The WHO has repeatedly warned that plasma therapy is not a conclusive and proven cure. Why then do countries and hospitals push it as a “cure” and encourage people to donate plasma?

The WHO is doing a living meta-analysis of all published trials that are ongoing for therapeutics, including plasma. The WHO recognises COVID-19 convalescent plasma as an experimental therapy that is appropriate for evaluation in clinical studies. Further clinical evidence is needed before guidance can be provided on its clinical use. The WHO recommends strongly that COVID-19 convalescent plasma should be used in clinical trials as the most effective and efficient strategy to determine the efficacy and safety of this experimental therapy.

Many governments are opening up offices and institutions and even insisting on students giving examinations. We know that health systems have come under immense pressure dealing with the pandemic.Do you feel countries that have reported more than 50,000 cases on an average should focus more on getting the numbers under control rather than conduct work as if it is business as usual?

COVID-19 has affected lives and livelihoods the world over. Easing lockdowns, countries globally are opening up and transitioning to the new normal. Whatever the transmission scenario, continued focus on core public health measures—test, trace, isolate and treat; hand hygiene; cough etiquette and social distancing—are a must. Our focus should continue to be protection of health care workers and the vulnerable population which should inform the adoption of appropriate measures by the government. Along with measures and recommendations of governments, continued community involvement is important. Every individual should contribute, by adopting appropriate hand hygiene and social distancing measures. This is a pandemic. We all need to join forces to combat it.

Vaccine research is in different stages in different countries. There is much anticipation about the discovery of a vaccine by the COVAX vaccine facility that promises to roll out vaccines, but not before the end of next year. Do you think that countries should embark on serious course correction with respect to investing in public health?

Currently, over 169 vaccine candidates are at various stages of development. Of these, about 26 vaccine candidates are under human trial and we know of at least three or four going into phase III. The COVID-19 vaccine pipeline is very robust. The more candidates we have, the more the opportunities for success—depending on their results. The COVAX facility is speeding up the search for an effective vaccine for all countries and at the same time supporting the building of manufacturing capabilities and buying supply ahead of time so that two billion doses can be equitably distributed by the end of 2021.

The pandemic has affected health systems globally, prompting countries to rethink how to have essential health services functional during COVID-19 response. It is true that essential health services were affected. Areas such as immunisation, non-communicable disease care and youth services are just some examples of services that were disrupted while health systems struggled to cope. We are encouraged by the signs we are seeing now of those services resuming in parts of the world and in significant measure in the WHO South-East Asia Region. While the pandemic exposed several weaknesses within health systems, there is a strong focus on building back.

What is the WHO’s opinion on the Russian vaccine?

The WHO welcomes all vaccine development programmes around the world, and we are very encouraged by the fact that there are several candidate vaccines in various stages of clinical trial, including the Russian vaccine Sputnik V. The WHO has started discussions with Russian authorities to learn more about the vaccine candidate. Sputnik V is about to start phase III clinical trials, we understand.

A vaccine should offer a minimum of 50 per cent efficacy in preventing infection with a lower bound of at least 30 per cent protection at the population level and should be safe, among other factors.

With the world in the grip of such a crisis, and its economic ramifications, is it not in everybody’s interest to collaborate towards the common goal of saving humanity rather than compete or blame each other for the crisis? This question is in the context of China and the decision by some countries to economically boycott it.

The rapid global spread of COVID-19 has demonstrated that pathogens do not respect local, national or international boundaries. Hence, the world needs to work together to share knowledge on the virus and its transmission dynamics, suppress the current outbreak by implementing core public health measures, and prevent any future outbreak from adopting pandemic proportions. We are already seeing this, especially in the collaboration on the COVID-19 vaccine and therapeutics.

COVID-19

COVID-19: A chain of blunders by the Central government

R. Ramachandran the-nation

The response to COVID-19 has been driven by political priorities rather than by public health and epidemiological expertise.” This is the retrospective assessment three well-known public health specialists have made of the manner in which the pandemic has been handled so far in the country. They are the epidemiologist Ramanan Lakshminarayanan of the Centre for Disease Dynamics, Economics and Policy, New Delhi, and Princeton University; the virologist Shahid Jameel, formerly of the Wellcome Trust/DBT India Alliance, New Delhi; and the epidemiologist Swarup Sarkar, formerly with the World Health Organisation’s South-East Asia Regional Office, New Delhi, and currently a Delhi-based independent public health consultant. In an editorial commentary published on August 14 in The American Journal of Tropical Medicine and Hygiene (AJTMH), they have analysed and critiqued the way the government has responded to the COVID-19 pandemic.

Criticising the large public events, including the “Namaste Trump” function in Ahmedabad to greet United States President Donald Trump in February 24-25, that were held even when it was known that the spread of the disease was well under way in Europe, the scientist trio faults the government for having resorted to a nationwide lockdown on March 24 when State-level or more localised lockdowns would have been preferable given that there were only around 500 cases and 10 deaths then. Not knowing the precise location of hotspots because of low levels of testing, “the lockdown represented a law-and-order solution to a problem for which India was poorly equipped from a public health standpoint”, says The AJTMH article. “The sudden lockdown [with just four hours’ notice],” the authors say, “imposed a significant burden on the urban poor and migrants who found themselves both out of work and with no means to return to their villages.”

“India,” the authors point out, “was slow to provide testing despite significant capacity for reverse transcription-polymerase chain reaction (RT-PCR) testing in both public and private laboratories. Testing in the early days of the epidemic was limited to a few public laboratories. Private laboratories, which typically provide the bulk of pathology services, were not allowed to test at all. The restriction was not only ostensibly to maintain quality but presumably also to control information [emphasis added].”

Even though India’s testing rate continues to be among the lowest in the world (at about 33,000 per million population as of September 2), this metric, as health specialists have recently pointed out, is no longer relevant as the disease spread has gone beyond the stage where universal testing is a strategy for containment. However, the low level of testing implies that a large number of infections (and consequent deaths) have been missed, and as has been pointed out in earlier Frontline reports and as recent sero-surveys too have indicated, the official caseload figure is only a small fraction of the actual number of total infections.

An important observation the authors make, which is indicative of the lack of transparency and the Centre’s exercise of control on what data relating to COVID-19 are available in the public domain, is that there has been limited published epidemiological or clinical research emerging from India unlike the case with other significantly affected countries. The article, however, has referred to a notable study authored by Indian and American researchers (and posted on the preprint repository medRxiv on July17) that for some reason has gone unnoticed in the media.

On the basis of preliminary and limited data from a comprehensive surveillance exercise carried out in Tamil Nadu and Andhra Pradesh of a cohort of 4,206 primary cases and 64,031 contacts, the study found that the risk of transmission from a primary case to a close contact ranged from 2.6 per cent in the community to 9.0 per cent in the household, and significantly, these results did not vary with the age of the primary case. Since a third of infected individuals are under the age of 30, “[t]his finding”, the article points out, “indicated an important role for children and young adults in transmission”. According to the study, a prospective follow-up testing of exposures showed that while 83 per cent of the infected individuals did not infect any of their contacts, 5 per cent accounted for 80 per cent of new infections. On the basis of this finding, the authors infer that “[s]uperspreading seems to have been the rule, rather than the exception”.

The quoted study also found that unlike in high-income countries where deaths are mostly in the older than 65 age group, here COVID-19-related deaths were highest in the 50-64 age group. Also, unlike in the U.S., where there is a secular increase in incidence with age, the incidence of reported cases here did not increase with age (>64 years) but, in fact, declined. “Strikingly,” notes The AJTMH article, “these differences cannot be fully accounted for by differences in population age distributions.”

That this is so despite the observation that the risk of transmission from a primary case is higher within a household could be due to greater compliance with the precaution of ensuring that the elderly are protected from getting infected, and perhaps other sociological factors. The other interesting and significant finding of the study was that “contrary to the long hospital stays reported in high-income settings, the median time to death was 5 days following admission”. One reason for this could be that patients were probably reaching hospitals only when symptoms were severe and/or conditions became serious. Unfortunately, such clinical studies have either not been done in other parts of the country, or if done, the results have neither been published nor made public.

After seven months of the pandemic in the country, the total number of confirmed cases as of September 2 stood at 3,848,968. On this count, India currently ranks third, but in terms of the daily increase in caseload, which is at present over 80,000 (82,860 on September 2), India is at the top. With this rate of increase, India is estimated to overtake the number 2 country, Brazil, by September 10 and will also soon overtake the number 1 country, the U.S. According to the Union Ministry of Health and Family Welfare, however, only 7 per cent of the districts (49/739) in eight States—Maharashtra, Karnataka, Andhra Pradesh, Tamil Nadu, Uttar Pradesh, West Bengal, Odisha and Telangana—accounted for 73 per cent of the cases, and seven States—Maharashtra, Delhi, Tamil Nadu, Andhra Pradesh, Karnataka, Uttar Pradesh and West Bengal—accounted for 81 per cent of the deaths due to COVID-19.

No ‘community transmission’

On the basis of these data, the Ministry continues to claim that there is no “community transmission”. But how this follows is not clear and is never explained. For instance, the recent sero-survey in Chennai, which accounts for 69 per cent of all the cases in Tamil Nadu (and is obviously, therefore, one of the 49 districts), found that 173 people out of the 12,405 surveyed had no history of contact with any COVID-19 patient, a clear indication of community transmission. “The epidemic,” the scientist trio observe in The AJTMH article, “is in different stages in different parts of the country, but the response has been driven by a national, overarching centralised strategy instead of being locally owned.”

Given the present situation, the article says that an important aspect of COVID-19 management now should be averting deaths, a point a group of public health experts and epidemiologists made in a recent statement (dated August 25 but issued on August 30). “The current national guidelines,” notes The AJTMH article, “do not prioritise high-risk individuals for early testing, and this is a missed opportunity for averting deaths in vulnerable populations of the elderly and those with comorbidities.” The article also highlights what is generally known: because many individuals in India die without a COVID-19 test, reporting of deaths due to COVID-19 in the country is incomplete. The number of reported deaths is, therefore, likely an underestimate.

Pointing out that the correct identification of COVID-19 deaths was an opportunity to learn about the disease and, thereby, prevent future cases and deaths, the article recommends the creation of a formal system of mortality surveillance, specifically to measure the additional mortality attributable to COVID-19. “The epidemic response should be data driven and locally owned,” the article adds. “More granular data and greater openness to data sharing and coordination would enable surveillance data to be used for management decisions, including planning regarding personal protective equipment, medicines, supplies, and, most importantly, ICU capacity and health care personnel. This would provide a clear picture of the impact of COVID-19 to the public.”

Indiscriminate testing

In their third joint statement on the COVID-19 pandemic in India—referred to above as the recent statement by public health experts—the Indian Public Health Association, the Indian Association for Preventive and Social Medicine and the Indian Association of Epidemiologists strongly criticised the Centre’s continuing approach of indiscriminate and universal testing with the apparent solitary aim of meeting the benchmark for adequacy of testing: 140 tests per million population a day and test positivity rate of less than 5 per cent.

Widespread “testing, tracing, isolating and treating” was the appropriate strategy in the early stages of the pandemic (when the caseload was low). It would have then served the purpose of early identification of the cases to limit disease transmission to others so that the infection did not get a foothold in the community. But the government failed miserably in achieving this at the time when it was necessary. Now, since the virus has already spread widely in the community in many geographical areas, testing by itself is no longer a control strategy, the statement points out. Sero-survey reports from different parts of the country and the Indian Council of Medical Research’s (ICMR) own nationwide sero-survey have indicated that the (much belated) current testing strategy is picking up less than 5 per cent of the true number of SARS-CoV-2 infections in the country. Currently, India is testing at the rate of over a million a day (11,72,179 tests as of September 2). This rate of testing of a mostly ill-defined population, as the public health specialists point out, is imposing a heavy economic cost without the commensurate benefit of disease control.

“Universal scaling up of testing,” says their statement, “at current community transmission stage of the pandemic may not be an optimal control strategy and will divert attention and resources from control measures….The testing strategy needs to be pragmatic from a public health perspective, promoting differential/targeted testing of high-risk individuals and discontinuing universal testing at this stage.” This echoes the observations made in The AJTMH article. “However,” adds the statement, “[in] areas in [the] very early phase of pandemic (where zero or very few cases have been reported) testing may be used as a surveillance tool.” Pointing out that reducing deaths due to COVID-19 should now be the primary goal, the statement adds that the strategy should now shift to syndromic management (before testing and diagnosis), especially in high-seroprevalence States and districts for efficient management of resources.

Similarly, the primary purpose of lockdown in the early stage of the pandemic was to slow down the disease spread and gain time to prepare to fight it, particularly by shoring up the health care infrastructure. “There is no evidence any more that any useful purpose would be served by weekend or intermittent or night time lockdowns, banning of domestic flights and establishing large sized containment zones,” says the statement.

The health experts have, in fact, advocated discontinuation of lockdowns as a strategy for control and favoured only the imposition of geographically limited restrictions for short periods in epidemiologically defined clusters where there is no community transmission. Cluster restrictions, the statement says, should be imposed after weighing their impact on the livelihoods of the target populations. With adequate health system preparedness, even cluster restrictions can be done away with, it adds. But with the Centre continuing to be in denial of community transmission, this advice is, as the Tamil saying goes, like blowing a conch shell into the ear of the deaf.

Nevertheless, health experts have advocated habitat-specific and epidemiologically appropriate strategies as follows. In large cities where there is already substantial spread of the disease, there is no advantage in creating containment zones accompanied by aggressive testing. Delhi, for example, has as many as 922 active containment zones (as of September 2) of which 207 have scaled down restrictions but have not been de-contained. “The focus [now] should be to prevent deaths and not on containing the infection,” the experts have said.

In large cities with moderate spread, they have advised revamping of containment zones with a clear road map and timelines for periodic review by expert committees and that all containment zones should be de-contained within 14 days. For small cities and rural townships with mild or limited spread, the group of experts has said that existing testing and cluster containment can continue, but the testing strategy with mandatory isolation of positive cases needs to be reviewed in view of the prevailing social stigma in these settings.

In fact, the practice of pasting a notice on the doors of homes of COVID-positive patients is being followed even in cities and big towns, leading to stigma and discrimination. Noting that in response, many patients left home for unknown destinations, defeating the very purpose of isolation, the statement has called for doing away with this practice immediately. “Of particular concern has been the issue of the dignity of death and cremations and burials of COVID-19 victims,” observes the statement. Regarding the prevailing restrictions on inter-State travellers, it has called for abandoning forthwith the policy of quarantining them for 14 days in designated hotels and health facilities. “When [the] majority of States/districts are affected, there is no rationale for quarantine of inter-State travellers…,” says the statement.

The public health specialists have also made observations on the issue of opening of schools and educational institutions. “Opening of school and other educational institutions could be started in a graded manner,” they have said. “There should be a pragmatic approach, especially in areas where sufficient population is already infected with SARS CoV-2. Even in low infection areas, schools may be opened with due safety measures and with adequate surveillance….”

“Closure of educational institutions, especially schools for children (5-18 years),” they have pointed out, “has had a significant impact on the teaching-learning system as well as mental health of the children. The impact has been disproportionately higher on the children of lower socio-economic strata who do not have social capital for alternatives like digital platforms. Sufficient evidence is available that infected, young children are at an extremely low risk of developing morbidity. The risk of young children transmitting corona infection to older family members would be the same as adult family members [as indeed the Tamil Nadu-Andhra Pradesh survey found] who are permitted to carry out activities outside of home environment.” Union Health Minister Harsh Vardhan said last month that the country would have its own vaccine by the end of the year. In his Independence Day speech, Prime Minister Narendra Modi, too, held out that hope, saying that the country was ready to mass-produce three vaccines once scientists gave the green signal. But the public health specialists have warned the people and the government that a vaccine, if and when available, will not be the panacea that the country has been waiting for in the hope that COVID-19 would then be banished. The three vaccines are in different stages of clinical trials in India.

“Vaccines,” they say in their statement, “do not have any role in current ongoing COVID-19 pandemic control in India. However, whenever available, the vaccine may play a role in providing personal protection to high-risk individuals like health-care workers and [the] elderly with comorbidities (according to the WHO’s ‘strategic allocation’ approach or a multi-tiered risk-based approach). While being optimistic, the prevention and control strategy should also prepare for the worst. It must assume that an effective vaccine would not be available in [the] near future. We must avoid false sense of hope that this panacea is just around the corner.”

Creation of public health cadres

The experts have also called for a significant increase in public expenditure on health care and the creation of national and State-level public health cadres similar to the Indian Administrative Service. “Public health care should be significantly strengthened and enhanced with overall public expenditure to be increased to at least 5 per cent of the GDP [gross domestic product],” says the statement. “The focus of increased health expenditure,” it adds, “should be on primary health care and human resource and infrastructure strengthening, rather than [on] opening/strengthening tertiary care centres.”

Pointing out that States such as Tamil Nadu and Gujarat that already had public health cadres were relatively better placed to handle such public health crises on their own, the specialists highlighted the “need to expedite the establishment of a dedicated, efficient and adequately resourced public health cadre as Indian Health Service (IHS) at the Centre and across States as [has been] recommended by various national committees and expert groups since 1946…”.

In a similar vein, The AJTMH article says: “The COVID-19 pandemic is an opportunity to invest in the public health infrastructure of India, an area of systemic neglect over the past few decades…. In the long term, a blueprint should be developed to empower and strengthen India’s national and State level mechanisms for public health research, surveillance, and policy activities.”

It remains to be seen whether the Health Ministry and the higher executive in the government pay any heed to the observations made by the authors of the commentary or to the statement of public health specialists.

Jammu & Kashmir

Political parties rallying forces again in Kashmir

ON August 22, former Chief Minister Farooq Abdullah along with the leaders of five other mainstream parties in Jammu and Kashmir—once his foes but now united by a common struggle against the Narendra Modi government’s “incursions into Kashmir”—issued a joint statement “to collectively fight to restore the special status” of the erstwhile State. The six parties are Farooq Abdullah’s National Conference (N.C.), Mehbooba Mufti’s Peoples Democratic Party (PDP), the Congress, Sajjad Lone’s People’s Conference, the Communist Party of India (Marxist) and Muzaffar Shah’s Awami National Conference. They reiterated that they would unwaveringly adhere to the Gupkar Declaration, a document the parties’ leaders signed on August 4, 2019. The day after the declaration, New Delhi unilaterally abrogated Articles 370 and 35A of the Constitution that guaranteed Jammu and Kashmir its semi-autonomous status, and bifurcated the State into the Union Territories of Jammu and Kashmir, and Ladakh.

The Gupkar Declaration, which came about under the aegis of Farooq Abdullah in the tense and uncertain atmosphere created by a troop build-up in Srinagar and other parts of the Valley, states: “[A]ny modification, abrogation of Articles 35A, 370, unconstitutional delimitation or trifurcation of the State would be an aggression against the people of Jammu, Kashmir and Ladakh.”

However, a year later, as several prominent leaders, including Farooq and Omar Abdullah, were released from detention, they did not spell out how they planned to confront New Delhi over the sweeping constitutional changes it had imposed in Jammu and Kashmir. This triggered widespread speculation that mainstream actors may have agreed to be quiescent partners of the Centre, willing to accept, if not aid, its Hindutva pursuits in the Kashmir Valley.

Against this backdrop, the August 22 statement represents the first major exhibition of resolve on the part of the mainstream players in Kashmir to come together and buttress and leverage their distinct political strengths and advantages and use their combined platform to take on New Delhi’s ideologically driven agendas in Kashmir—“measures of disempowerment and a challenge to the basic identity of the people of J&K”, as the signatories described it in their joint statement.

Equally, the statement strives to address the antagonistic popular sentiment back home at a time when the mainstream finds itself beset with both distrust of the past and present complications that have deprived it of its political idiom, which was centred on the struggle to attain pre-1953 autonomy or establish “self-rule”. The exasperation was more loudly vented against former Chief Minister Omar Abdullah, whose recent interviews led people to imagine that the fulcrum of his politics would now rest on the demand for mere restoration of statehood.

In an opinion piece Omar Abdullah wrote for a New Delhi-based English daily on July 27, he said that he would not contest an election so long as Jammu and Kashmir remained a Union Territory. His critics read this as his attempt to inject the idea among the Kashmiri people that much of what was done on August 5 was irreversible, especially the revocation of Article 370 and Article 35A. The twin Articles guaranteed the local people, among other things, exclusive rights in terms of employment and ownership of land.

Omar Abdullah dismissed the accusations as “lazy journalism”, reminding people of the watertight case his party had made in the Supreme Court against the Centre’s August 5 decision. But the controversy escalated. Mehbooba Mufti’s continued detention under the Public Safety Act not only created a contrasting spectacle but impelled people to speculate about a possible back-room deal between the Abdullahs and New Delhi. Ill-timed dissension from within the N.C., in particular from former Jammu and Kashmir Cabinet Minister Ruhullah Mehdi, who resigned as chief spokesperson of the party, precipitated a social media backlash against N.C. leaders.

This sequence of events makes one wonder whether the reiteration of the Gupkar Declaration was merely a salvage exercise in response to a very vocal spurning of the mainstream by Kashmir’s discontented youths or whether leaders across the political spectrum were willing to highlight people’s fundamental concerns regarding the onslaught on their identity and point out the misplaced priorities of the Modi government to a wider audience in India and abroad.

Limitations of mainstream politics

The answer eludes one at this moment. However, a constant berating of the N.C. or, for that matter, any other mainstream political party in Kashmir would amount to irresponsible grandstanding. One needs to factor in the limitations that hinder their politics. Government formation in Jammu and Kashmir is not the usual handover of power but a ceding of partial authority that can be reversed at the slightest crossing of the fine line New Delhi has drawn. Various instances illustrate this, including Prime Minister Indira Gandhi replacing Farooq Abdullah as Chief Minister with his brother-in-law G.M. Shah in 1984.

After August 5, the government of India underlined that it had no qualms about putting the rank and file of the mainstream political players in jail by invoking draconian laws meant to be used against anti-state actors. Its military might; its preparedness to “kill 10,000 civilian protesters”, as Farooq Abdullah recently claimed; and its near control of the mass media that passed off all the Centre’s actions in Kashmir without scrutiny compound the challenges of inventing and operating a line of politics in Kashmir that is inconsonant with the wishes of the ruling party in New Delhi.

Among the leaders of the PDP and the N.C., however, there is cautious optimism. Iltija Mufti, daughter of Mehbooba Mufti, hailed the August 22 initiative as a “collective response to Delhi’s onslaught on Jammu and Kashmir’s special status”. Sajjad Lone added that it was “no longer about power” but about “a struggle to get back what rightfully belongs to us”. It is pertinent to mention here that under the Jammu and Kashmir Reorganisation Act, 2019, so far domicile certificates have been issued to 11,398 refugees from West Pakistan, 415 members of the Valmiki community, 10 members of the Gorkha community and 12,340 registered migrants. People of the Kashmir Valley see this as the beginning of a programme that is aimed at realigning the demography of their region.

Talking to insiders in the N.C. and the PDP gives one a sense that they are enthused about the redrawing of political battle lines at the Line of Actual Control and also domestically, such as the increasing assertiveness of the National Socialist Council of Nagaland (Isak-Muivah) regarding the issues of a separate flag and constitution for Nagaland, which has proved to be a major stumbling block to coming to a final Naga accord. These leaders in Kashmir see the August 22 proclamation as an unequivocal political messaging to the Centre that as its fault lines with China grow, regional actors will not hesitate to engage it in confrontations inside the Valley. Certain other political signals seem to uphold that observation. From stressing on a battle inside the Supreme Court, Omar Abdullah is now vocal about exploring and utilising other democratic means and platforms as an important pillar of his party’s struggle against New Delhi. “We will fight using legal means at our disposal, which are two: one is the power that the Constitution gives us to challenge the decisions in the court, and the second is forums available, including Parliament, the media, social media and public meetings,” Omar Abdullah said in a recent interview.

Broadly, the idea seems to be to assemble a wide coalition of like-minded parties and civil society groups. What form their combative assertions would translate into and how these would be leveraged to reinvent politics in Jammu and Kashmir are unclear. There are few other questions that dampen the optimism that these leaders share amongst themselves. One, will the PDP, the N.C. and the People’s Conference overcome their grave disagreements and pragmatically engage with one another for the long haul? Two, will their struggle involve the task of mobilising people on the ground? And three, will they be ready to sacrifice their political stakes temporarily and convert people’s rage into a full-fledged election boycott that would renew global scrutiny of the Modi government’s dealings in Kashmir?

Although these parties have put up a united front, off-the-record interactions with their senior leaders betray their deep and unshakably hostile history. Whereas the PDP does not totally rule out a “deal between the Abdullahs and New Delhi” and is keeping a watchful eye on the N.C.’s actions and utterances, the N.C. downplays Mehbooba Mufti’s continued detention, which people in Kashmir view as an outcome of her refusal to agree to any fine lines set by New Delhi. “She has to redeem herself,” N.C. leaders say curtly, referring to her unpopular decision to form a coalition government with the Bharatiya Janata Party in 2015.

Boycotting elections?

On the question of participation in elections, opinion is divided. Waheed Para of the PDP told this reporter: “This is an unprecedented situation. There is nothing to fight for unless the dignity of the people is restored. We have the example of the ongoing Naga peace deal. There cannot be a different yardstick applied to Kashmir, marked by lack of deference for local sensitivities.”

However, he said he was not certain whether boycotting elections would be a pragmatic option to exercise. “I personally think abandoning political processes will not lead to a solution. We saw what happened between 1990 and 1996. A political vacuum is not favourable for anyone in the region. It would lead to chaos and uncertainty.” Omar Abdullah has so far avoided giving any definitive answer to that question, leaving it up to his party’s core committee to make the call.

Those who hold the view that mainstream politicians should shun elections are worried that New Delhi’s well-oiled public relations machinery would showcase any successful exercise at the hustings as acceptance of its decision to scrap Article 370. There is an overwhelming sense that Kashmir’s capacity to offer resistance is greatly reduced at this moment. Although there is steady recruitment to the militant ranks, most of the home-grown combatants operate with rudimentary training and, in most cases, minimal ammunition. A temporary fatigue with street protests prevents replication of the widespread uprising witnessed in the summer of 2016, when the 21-year-old militant commander Burhan Wani was eliminated. Pro-resistance leaders are nowhere in the action, as Syed Ali Shah Geelani pointed out when he resigned as the chief of the hard-line faction of the Hurriyat Conference on June 29. “After August 5, the leaders who were not arrested were expected to lead the people.... I searched hard for you, but you were not available,” he said. In this context, threatening to jeopardise the electoral process seems like the only option available to mainstream actors to mount pressure on New Delhi and drive a hard bargain. Why, then, are they loath to exercise that option?

Political observers concur that a lot of thought went into New Delhi’s actions of August 5, which took into account and thereby pre-empted all possible forms of resistance. The Centre deployed considerable obstacles to thwart any resistance. New Delhi’s alleged propping up of the Apni Party, which is led by a group of PDP defectors, is seen as part of its plan to use this as the “stick” in its “carrot-and-stick” approach with the mainstream.

Even if the PDP and the N.C. were to abstain from elections, the Apni Party, recently derided by Farooq Abdullah as an “Intelligence Bureau creation”, could save the day for New Delhi. The perception is that given the massive presence of Army camps across Kashmir, in particular in many pockets of North Kashmir where it is also the employer of impoverished local residents, a 10 to 20 per cent voter turnout could be stage-managed. If that happens, the N.C. and the PDP’s ceding of the political space would be wasted, and chances are that those who are berating them now as “power seekers” would not be keen to hail them as “great sacrificers”. Where does that leave Kashmir, one wonders.

Interview: Ranbir Singh

Ranbir Singh: Reforms were long overdue

T.K. Rajalakshmi the-nation

The Committee for Reforms in Criminal Laws constituted by the Union Home Ministry in May has drawn a fair share of criticism from a wide spectrum. The five-member all-male committee is headed by Professor Ranbir Singh, founder Vice Chancellor of the National Law University, Delhi. With his vast teaching and administrative experience, considering he was also the founder Vice Chancellor of NALSAR, University of Law, Hyderabad, Professor Ranbir Singh feels that being an academic would not be a limitation and that the committee will look into all aspects of criminal law reform on the basis of the widest possible consultation. The committee is expected to give its report by October. Excerpts from an interview Professor Ranbir Singh gave Frontline:

What are the main objectives of the committee set up by the Home Ministry and chaired by you?

The IPC [Indian Penal Code] is almost 160 years old and not any major effort was made to look into the whole gamut of criminal law reforms. Certain countries like Singapore and England looked into this, but it was long back, some 15 years ago. In India, the Malimath Committee gave good recommendations, but its mandate was different and it did not look at the whole landscape of criminal law reforms. This committee is looking into the IPC, the CrPC (the Code of Criminal Procedure), the Indian Evidence Act and the Narcotics Act. Our mandate is quite broad. I think it is a wonderful idea on the part of the government. These reforms were long overdue and probably we need to seriously look into what is required and this is what we are doing.

Can you give specific examples of the reforms that are being envisaged?

When I had a meeting in the Ministry of Home Affairs, the impression was that these laws being colonial laws—they were drafted when there was no Universal Declaration of Human Rights, and we didn’t also have our own Constitution—now we should look at the laws to examine whether they are compatible with international covenants and our Constitution. No effort was made to look into the criminal laws from the point of view of the Constitution and particularly fundamental human rights. That was the idea basically that was conveyed to me at the meeting.

Does the committee plan to consult experts and a wider audience?

Most of the experts are with us. We will consult them whenever there is a confusion in our minds. They are very senior police officers and academics. We are going for wide consultation with all stakeholders, be it judges, lawyers, academics, civil society. Recommendations are pouring in. Because of the pandemic we cannot conduct face-to-face consultations, but still a dozen people are working on the recommendations of earlier committees. The mandate of this committee will also involve looking at past recommendations from the Law Commission or other committees, including our own suggestions. We will put all that on our website. Ultimately it will be decided by the Home Ministry and Parliament.

Would it have been better to have a longer time frame for the consultations on account of the pandemic?

I agree with you that the time frame should be extended, and we had a meeting with the Home Ministry on this. In all our meetings we have been saying to the government that the Malimath Committee took three years, the [Madhav] Menon committee took more than one or two years, and even the Law Commission took a lot of time. With the pandemic being what it is, it is difficult to hold consultations and we plan to meet the Home Ministry about this. We met the Secretary of the Home Ministry on issues concerning the time frame. If we are expected to do holistic work, the time frame is important.

As chairperson, could you ask the government to have a broader representation on the committee?

This is the mandate of the government. We are a vast country and whatever number of people we keep on the committee, it may not be enough. I agree that if the government thinks that some representation should be given to people who have expressed concern, it could be done, but the government has to do it. We are looking at grass-roots justice and criminal justice reforms at that level. For that, we have a senior district judge and a very senior lawyer on our committee

The questionnaire includes new offences, but some, like marital rape, do not figure. Women’s organisations have raised concerns about the exclusion of certain offences and are apprehensive that the committee may recommend a dilution of pro-women laws.

A lot of concerns have cropped up over the years. I agree there are controversial areas, and I am sure that the committee will look at it honestly and rationally. We will give recommendations. Whether it is agreed upon or not will depend on Parliament.

It is felt that it was the mandate of the Law Commission and not academics to look into criminal law reforms.

Let me share with you and the country that a committee of this kind, looking into such an important reform process, has been entrusted to academics. If you look at committees in this country, never have academics been given charge. All important research takes place in academic institutions and universities. The charge was not given to the Law Commission as there is no Law Commission for the last few years. Some people also feel that a senior judge of the High Court or Supreme Court could have headed it. People should be appreciative that it has been given to academics. In foreign countries such work is done by universities. I was a member of the Soli Sorabjee committee on police reforms, of the Kamal Kumar committee on the IPS, Sri Krishna Committee on the bifurcation of Andhra Pradesh and Telangana.

Some people wonder why it is headquartered at the National Law University, Delhi, but it is perhaps because it is cost-effective to have it in Delhi. The kind of research we are doing, the competency and research we have developed, is comparable to any leading university elsewhere. We are also looking at all judgments of the High Courts and the Supreme Court. We will do everything under the sun but we cannot please everybody.

There is a concern that the questionnaire is predetermined, and there is a limit to the word length in which the questionnaire can be answered.

We have said that for the sake of brevity one can give suggestions in brief. But if people want to send in longer notes, they certainly can. It is not an examination that one cannot go beyond 200 words. If anyone wants to say more, they are most welcome to send separate notes.

One of the objectives refers to principled sentencing and simplifying procedures. What exactly do you mean by that?

We will look into it as the provisions for sentencing are old and dated. Bail matters are also important. We are taking the views of people who have worked in these areas and looking at reform processes in other countries too.

Many offences have been decriminalised, but at the same time there are stringent laws, such as the sedition law, which are in contradiction to some of the fundamental principles of the committee’s mandate, that is, reform with a human face.

I don’t know why some of these laws are there on the statute books. Everyone knows that these laws are being misused. These are critical areas. Then there are issues like honour killing, same-sex marriage, mob lynching, etc. There are already lots of comments by the Supreme Court, including on the issues that you mention. We will honestly and squarely discuss each and every problem.

Many academics have come under attack, been put behind bars without bail under some of these stringent and controversial laws, some of which you plan to look into. You are an academic, what is your opinion on this?

I have not seriously looked into this. But as this is not connected to what we are discussing today, I would prefer not to talk about this.

Is there need to be apprehensive that the committee might suggest stringent reforms that might result in the erosion of democratic rights?

It is premature to state whether mild or stringent reforms will be recommended by the committee. The IPC is such a document that even if there is any particular offence or criminal behaviour defined in it, it covers everything. As an example, for honour crimes, people say a different law is required. But we have a law for murder or for lynching. So why need a separate law? The judiciary can interpret every offence the way it wants to. The Vishaka judgment on prevention of sexual harassment at the workplace was law until the Act was enacted.

It is felt that the criminal justice system is skewed against the poor and the vulnerable.

It is skewed not because of the laws but the implementing by agencies. I was part of the Soli Sorabjee committee on judicial reforms. One of the major mandates of this committee was that the police administration system, law and order machinery and prosecution machinery should be separate. The Prakash Singh committee recommended police reforms. The guidelines of both committees were sent to the States as law and order is on the concurrent list. The Supreme Court wanted to know how many of the guidelines in the Prakash Singh committee had been implemented. It was found that nothing had been done. There is a need for reforms at all levels. The world is changing. Forensic science has to keep pace. There are multiple layers of reforms. The report is only one part of that.

COVID-19 UPDATE

Kerala: Bracing for the worst

R. Krishnakumar the-nation

ONAM was a low-key affair in Kerala with the government asking people to celebrate the festival with care, adhering to the “soap, mask and gap” guidelines for COVID-19 prevention. Experts warned that the State was about to see the worst of the pandemic, with cases perhaps increasing by 10,000 to 20,000 every day in the coming weeks. The trend of an increase in the number of cases, which was visible from the last week of June, has continued. The State, which had 23,613 confirmed cases on July 31, reported 76,525 cases by September 1, with 22,512 (29.42 per cent of the total) of them being active. The highest single-day figure of 2,476 cases was recorded on August 26.

Even as the number of cases was increasing, the number of those recovering from the illness was also on the rise. Over 70 per cent of the positive cases (55,778 persons) had recovered by September 2. According to official figures, 305 people (0.39 per cent of the cases) died until September 2.

Unlike the situation in the first five months of the viral infection in the State, as containment measures failed at many places and the number of positive cases started going up, concern and criticism about the measures adopted by the State began to increase.

Chief Minister Pinarayi Vijayan said at a pre-Onam press conference that the evolution of the pandemic had been on predicted lines: “We are passing through the most critical stage of COVID-19. However, we cannot say that the current status of the pandemic is unexpected. Kerala was among the places in the world where COVID was reported quite early. But compared to other regions, we were able to contain the disease for a long time, without allowing it to climb to a peak. India now has the largest number of COVID cases in the world. The spread of the disease is becoming severe in south India. In Karnataka, the number of cases has crossed three lakh and 5,107 people have died [by late August]. Tamil Nadu has nearly four lakh cases and has had around 7,000 deaths. Karnataka recorded 82 deaths per 10 lakh population; Tamil Nadu 93 deaths per 10 lakh population; and Kerala, eight per 10 lakh population. If the situation had been the same as in the neighbouring States, Kerala, with a very high population density and a comparatively high proportion of aged people and high incidence of diabetes and heart disease, should have been in a bad situation. But even with such drawbacks, the spread of the disease and the death rate could be contained to a large extent. This was because of the support of the people and the exemplary functioning of the government systems,” he said.

Meanwhile, the second volume of the State Health Department’s Death Audit Report, released recently, has kept alive the controversy over whether the procedure followed for the classification of COVID deaths is right.

The government maintains that it ascertains COVID as the cause of death on the basis of World Health Organisation (WHO) guidelines for certification and classification of COVID-related deaths. It defines a COVID death (for the purpose of surveillance) “as a death resulting from a clinically compatible illness in a probable or confirmed COVID case unless there is a clear alternative cause of death that cannot be related to COVID disease (e.g. trauma). There should be no period of complete recovery between illness and death.”

But some experts say such a classification tends to leave out many COVID related deaths as those caused by unrelated reasons. However, they agree that Kerala’s case fatality rate of 0.37 would remain the best in the country even if such suspect/probable cases are taken into account as COVID deaths.

The government considers that it has gained a big advantage by controlling the rate of spread of COVID effectively until now. The first five months had seen the State Health infrastructure strengthened in a big way, with the appointment of more health workers and volunteers and the establishment of COVID First-Line Treatment Centres (CFLTCs), COVID care hospitals, and more laboratory and testing facilities in all districts. As part of the Aardram Mission, 386 Primary Health Centres in the State have been converted into Family Health Centres (FHCs), with more doctors and facilities. More than 150 FHCs are to be inaugurated soon.

As announced by the Chief Minister, the State now has 1,076 CFLTCs and 96,785 beds. Nearly 1,843 health workers have been appointed in the CFLCTs alone. Since the COVID outbreak, 9,768 health workers have been appointed through the National Health Mission. Nearly 1,200 house surgeons and 1,152 temporary employees have been deployed for COVID containment activities.“As the disease is reaching a peak, we could make ready the facilities to limit its impact. We already have enough facilities to accommodate even eight times the number of patients that we have now,” the Chief Minister said.

On January 30, when the first COVID case was reported in Kerala, the National Virology Institute at Alappuzha alone had the facility to conduct COVID tests. Now, 19 government labs and 10 private labs are equipped to conduct RT-PCR tests. Besides, there are 234 private labs conducting antigen tests. The number of COVID tests being conducted every day would soon be raised to 50,000 (from around 40,000 now, on most days).

Soon after the first case came to light, the government had announced that COVID treatment would be free in Kerala. COVID tests, food for patients, medicines, mattresses, ventilators and plasma therapy are being provided free of cost in government hospitals. The government has permitted private laboratories recognised by it to conduct COVID tests and has mandated uniform rates throughout Kerala for these tests.

The Chief Minister said: “We have permitted government-recognised private labs to conduct COVID tests for anybody who comes forward for it voluntarily. We have also directed that labs in private hospitals can only charge government mandated, uniform rates for these tests. These rates are lower than in most other States. For example, ICU charges a day in private hospitals in Kerala are Rs.6,500. The rate is Rs.46,365 in Andhra Pradesh; Rs.11,000 in Tamil Nadu; Rs.15,000 in Haryana and Delhi; and Rs.8,500 in Karnataka.”

There is no doubt that the rate of spread of the infection in Kerala is disturbing. Total lockdown was announced when the number of cases was just a handful in the State. While the initial worry was over the transmission of the virus from infected travellers returning from abroad or from other States, now hundreds of people are getting infected by the day through local transmission. Infection from unknown sources has also increased manifold. The official map of containment zones in the State now marks almost the entire State in red, with hundreds of such zones spreading into rural areas from urban centres in each of the 14 districts. The risk of infection is high. And even as it announces easing of lockdown restrictions, the government is reiterating that everyone must create a protective cover around themselves and help strengthen its “Break the Chain” campaign.

At a press conference a few days before Onam holidays began in the State, the Chief Minister drew attention to what he described as “a dangerous campaign” going on in the State that COVID was a harmless disease and that the death rate was only 1 per cent. “If such an impression spreads among the people, it will cause peril in the State. We need to remember that 1 per cent of 3.5 crore population in the State would come to 3.5 lakh people. Even if only half that number of people are infected, we can imagine what that would mean. Moreover, even if the death rate remains small, we must know that as and when the number of patients increases, the number of deaths will also increase proportionately,” he said

The Chief Minister said Kerala was trying its best to avoid deaths. “Every life is valuable. We must all pledge that we will continue to retain Kerala as a region with the lowest COVID death rate. We have remained committed to the idea that when we wear a mask or wash our hands frequently or maintain physical distancing, we are not merely keeping ourselves safe but saving the lives of others, too. We must not let go of that commitment. We must be vigilant in the days ahead too,” he said.

COVID-19 Update

Karnataka: Open season

KARNATAKA, along with Maharashtra and Andhra Pradesh, has contributed significantly to the increasing tally of COVID cases in the country. Since late August, more than half the daily deaths in the country have come from these three States. The cumulative figure for positive cases in Karnataka stood at 3,51,481 by the evening of September 1, of which 90,999 were active. The State’s highest single-day spike was surpassed several times in August, with 9,386 cases reported on August 27. The number of persons discharged stood at 2,54,626 on September 1, which means that over 72 per cent of the patients had recovered.

Karnataka has reported 5,702 deaths (a case fatality rate of 1.62 per cent) since March 8 when the first COVID-19 death in India was reported from the State. Karnataka has the third highest number of active cases in the country currently. A host of senior politicians, including D.K. Shivakumar and Nalin Kumar Kateel, State presidents of the Congress and the Bharatiya Janata Party respectively, and two Cabinet Ministers, K.S. Eshwarappa and Shashikala Jolle, have tested positive for COVID.

Bengaluru Urban continued to remain the district with the largest number of cases in the State with 1,32,092 cases reported cumulatively, of which 38,906 were active. With its recovery rate hovering around 69 per cent, Bengaluru was slightly short of the State average. The city reported more than 2,500 cases almost every day since mid-August. It also accounted for more than a third of the COVID-related fatalities in the State with 2,005 deaths reported by the evening of September 1. Contact tracing improved in August after Prime Minister Narendra Modi exhorted the Health Departments of all States to enhance contact tracing. War-room data of the Bruhat Bengaluru Mahanagara Palike (BBMP) indicated that 7.7 persons were traced as primary and secondary contacts of every infected patient.

Other districts with a significant number of active cases included Mysuru (5,299), Ballari (5,145), Belagavi (3,339), Hassan (2,807), Shivamogga (2,769) and Dakshina Kannada (2,538). August was the severest month for Karnataka. The State crossed three lakh cases on August 26, of which 2.18 lakh cases were added to the tally in August alone (one lakh of which were added between August 13 and August 26).

In a conversation with mediapersons in Bengaluru, Karnataka Medical Education Minister Dr K. Sudhakar attempted to allay concerns about the latest surge in cases, which he said was linked to increased testing. “We need to test more and ensure that the number of deaths remains low,” he said. Karnataka improved its testing capacity with more than 75,000 samples tested every day (through both rapid antigen detection test and RT-PCR methods). The connection between increased testing and number of positive cases was borne out by a reading of data for end August. The only day in the past two weeks when less than 8,000 positive cases were reported in the State was on August 31 when only 43,132 samples were tested leading to the relatively low number of 6,495 cases being detected. The BBMP offered free testing at all health centres in Bengaluru, but many people were reluctant to get tested.

Dr C.N. Manjunath, director, Sri Jayadeva Institute of Cardiology, and Dr Giridhar. R. Babu, professor and head of epidemiology, Public Health Foundation of India (both members of the clinical expert committee constituted by the State Health Department) stated that there was no cause for alarm and linked the rise in the number of cases to increased testing. Manjunath said that the spike in cases meant that “there were asymptomatic cases in the community and this meant that ‘peaking’ had begun”. Giridhar Babu stated that the increase in the detection of cases indicated “that we are identifying infections in the community early on and stopping them from infecting others”.

Approximately 35,000 people are tested per million population in Karnataka, which is considerably lower than Delhi and Andhra Pradesh. In order to further ramp up testing in the State, the Health Department has set itself the task of doubling the test rate to achieve the optimum target of 75,000 to one lakh persons per million population.

Meanwhile, the tussle between government and private hospitals, which have been mandated to reserve 50 per cent of hospital beds for COVID patients, continues. Dr R. Ravindra, president, Private Hospitals and Nursing Homes Association (PHANA), wrote to the Executive Director of the Suvarna Arogya Suraksha Trust (SAST) demanding that the government “release due payments” and clear bills of COVID patients referred by the Health Department expeditiously. Dr. Ravindra added that if these dues, approximating Rs.35 crore, were not released soon, salaries of staff members would not be paid next month.

As part of Unlock 4.0, Karnataka will see further relaxations in September leading to concerns that the number of cases may rise during the month. Pubs and restaurants have been allowed to serve liquor from September 1. Gathering of up to 100 people will be allowed from September 21. Excise Minister H. Nagesh told mediapersons in Belagavi that excise revenue had come down by 50 per cent, resulting in a loss of Rs.3,000 crore. He hoped that with new guidelines in place, revenue would flow in again.

COVID-19 Update

Uttar Pradesh: Resilient farmers

As the monthly tabulation of COVID-19 cases in Uttar Pradesh for August was revealed on September 1, the political leadership of the Yogi Adityanath-led Bharatiya Janata Party (BJP) State government was constrained to accept what was common knowledge: the pandemic was not under control and was rising in leaps and bounds in the country’s most populous State.

In fact, August recorded the highest spurt in the number of COVID cases since the pandemic was acknowledged officially in March. As many as 1,45,000 of the State’s total of 2,30,414 COVID cases were added in August, amounting to a 63 percentage point increase in the total number of cases in the State. In comparative terms, August recorded an increase of 170 percentage points over July.

The number of deaths were also maximum in August. As many as 1,856 COVID patients died during the month, and the total number of deaths stood at 3,486 on August 31. Interestingly, even though, on an average, 60 COVID-related deaths took place every day in the month, August also marked a drop in the case fatality rate, from 1.9 per cent in July-end to 1.51 per cent by the end of August. Experts, including officials in the State Health Ministry, agree that this drop is, in all probability, on account of the rising rates of infection rather than an actual decrease in the death rate.

These figures are certainly embarrassing to the State government, especially Chief Minister Yogi Adityanath, who sees himself as an administrator par excellence and has been projected by his powerful public relations team as one who has not only withstood the effects of the pandemic but has overcome it, ensuring public well-being. On its part, the State government has maintained that the average growth rate of cases in the State was consistently below the national average and that the recovery rate was a healthy 75 per cent.

The public relations team of the government also argues that the unpredictable nature of the pandemic has affected combat operations in many parts of the State. “Concerted efforts by the administration has brought the situation under control in western Uttar Pradesh districts such as Baghpat, Hathras, Sambhal and Shamli, which had shown an early spurt in the months of April and May. However, even as these regions seemingly stabilised, the number of cases in places like the State capital Lucknow, the industrial region Kanpur, and eastern Uttar Pradesh districts such as Gorakhpur, Maharajganj, Deoria and Kushinagar shot up, by as much as 10 per cent even though the State average was less than 5 per cent. It is this imbalance that we need to address, and the government is working on it,” a senior Health Ministry official told Frontline.

Field inputs from important centres like Varanasi, Prayagraj and Bareilly indicate that things were not under control in these regions too. The number of cases were rising once again in the last week of August and early September in districts in western Uttar Pradesh such as Meerut, Aligarh and Moradabad despite a marginal drop before August. A major worry for both health-care officials and public health activists is that in two districts close to the National Capital Region (NCR), namely, Ghaziabad and Gautam Buddh Nagar, the disease has not shown signs of abatement during the last three months.

Right from the beginning of the pandemic, it was widely acknowledged by economic affairs experts, senior bureaucrats, social observers, activists and politicians that the situation in the western districts was crucial for the State’s economic survival and well-being. The steady hold of the pandemic in Gautam Buddha Nagar and Ghaziabad as well as the unpredictable fluctuations in regions like Agra, Meerut, Saharanpur and Shamli are perceived as particularly disconcerting. The major agricultural produce from the region includes wheat, rice, pulses, oil seeds, potatoes, sugarcane and seasonal vegetables.

The general consensus among agriculturists, bureaucrats and economic affairs experts about the post-COVID agricultural activity in the region is that while Rabi crop procurement by the State government in the early months of the pandemic was patchy, the farmers had found their own ways of marketing in later months and have managed to hold on without much loss. According to the Bulandshahar-based progressive farmer Colonel (Retd) Subash Chandra Deswal, the impact was not uniform across the sector. “Potato production was on the lower side this season and hence farmers got adequate price in the market. The worst affected were seasonal vegetable farmers and producers of perishable goods. The fact that the majority of these vegetable farmers belong to the lower strata of society, including landless Dalits who lease land to cultivate, aggravated their hardships.”

Deswal’s point of view was endorsed by Dr Sudhir Kumar Panwar, Samajwadi Party (S.P.) leader from western Uttar Pradesh and president of the Kisan Jagriti Manch, a collective of academics and activists focussing on issues relating to agriculture. He said that while several factors, including climatic conditions, helped the quantum of production, problems in distribution and marketing caused by the pandemic and administrative mismanagement resulted in pressing liquidity shortage for farmers. Panwar is of the view that the effect of this was bound to increase steadily over the next few months.

Senior officials in the State Finance and Agriculture Ministries agree with this perspective but are not sure how this economic impact will actually pan out. “ One thing that can be stated with certainty is that people have shown tremendous resilience amidst the pandemic and are learning to live with it, dealing with the challenges as they come. This is indeed heartening,” said a Senior State Home Ministry official to Frontline.

This premise seems to be one of the driving factors for the Yogi Adityanath government as it prepares to tackle the emerging situation. On September 1, it embarked on a series of measures as part of Unlock 4.0, limiting lockdown to just to Sundays. The markets are to remain open six days a week from 9 a.m. to 9 p.m. The government is also deploying special focus teams to spruce up activities in departments like the Agriculture Production Commission and Industrial Development Commission. This is accompanied by an increase in the number of COVID tests, with a special focus on select areas such as industrial hubs and regions of high agricultural activity.

Covid-19 Update

Andhra Pradesh & Telangana: Relentless rise

Ravi Sharma the-nation

Visiting the town of Kurnool, Andhra Pradesh’s judicial capital, on August 20 to take part in Rajiv Gandhi’s birth anniversary, Sake Sailajanath, president of the Andhra Pradesh Congress Committee, was surprised to see a senior party functionary standing aloof even when he beckoned the man over. A piqued Sailajanath sought to know why. The man’s reply shocked him: “Sir, I have tested positive for COVID-19.” Expressing grave concern, Sailajanath, who is himself a doctor, told Frontline that this was the state of play in Andhra Pradesh: people had become lackadaisical, exhibiting an attitude that a face covering or mask was all they needed to be safe from COVID-19. Patients who had tested positive were not following the State’s protocol on isolating themselves, either at home or in hospitals. Said COVID-19 Task Force Committee Chairman M.T. Krishna Babu: “Awareness about the pandemic is there, but the feeling among most people is, ‘we may not get the virus’. Overcrowding and a lack of social distancing is evident at wine shops and in markets.”

Not surprisingly, on August 30, Andhra Pradesh climbed a peak it hardly wanted to. Having reported over 10,000 cases of COVID-19 every day for the fifth straight day then, it became the second State behind Maharashtra to have more than 1,00,000 active COVID cases. With 4,45,139 cumulative positive cases, Andhra Pradesh crossed Tamil Nadu’s tally (433,969 positive cases) and is, again, behind only Maharashtra (792,541 cases).

Alarming statistics

There are even more chilling statistics. As of September 1, eight of the State’s 13 districts figured among the 25 most infected districts in the country; all 13 districts are already among the 50 most affected districts. In Andhra Pradesh, 8,524.1 people out of every million of the population have tested positive for the coronavirus. The all-India confirmed per million average is 2,806.3.

Again, in Andhra Pradesh, the infection positivity rate, which is the indication of the spread of the virus in the community, has in recent weeks gone way above the national average. The national average, after rising steadily over three months, touched a peak of 9.01 per cent on August 9. It has since then come down and hovers around 8.72 per cent. Cumulatively the positivity rate in Andhra Pradesh is 11.76 per cent (in Tamil Nadu it is 8.93 per cent).

But what is worrying is that in the last few weeks Andhra Pradesh has seen a massive spike in its positivity rate. For example, on August 18, the State conducted 56,090 COVID tests, of which 9,652 turned out to be positive, that is 17.20 per cent. Again, on August 30, as many as 10,603 of the 63,077 people tested were positive (16.80 per cent).

A declining positivity rate is an indication that fewer people in the community are getting infected for the same number of tests being conducted. In such a situation, while the number of new positive cases would rise with an increase in testing, the spread of the disease would be seen as slowing down or even stymied. Officials, both from the Health Department and from the Task Force, aver that the high positivity rate clearly indicates community spread of the disease. And this is what needs to be slowed down.

The starkly unsettling figures are reflected on the ground. Andhra Pradesh is one of the four States (Maharashtra, Uttar Pradesh and Karnataka being the others) with the largest caseloads in India and are primarily the cause of the surge of cases in the country. Cumulatively, of Andhra Pradesh’s 13 districts, East Godavari with 60,661 positive cases leads the way followed by Kurnool (45,558), Anantapur (41,584), West Godavari (38,054), Guntur (36,378), Visakhapatnam (37,519), Chittoor (37,717), Nellore (31,739) and Kadapa (27,113).

Officials from the State Health Department had anticipated peaking of COVID-19 cases in August. But in many of the districts, such as Kurnool, Guntur, East Godavari and West Godavari, caseloads have been at their peak for almost the entire month of August. In Chittoor, Kadapa and Nellore, and in recent weeks in Prakasam, with 18 to 20 per cent caseloads, there are no signs of the virus retreating.

But the silver lining is the State’s case fatality rate (CFR), the proportion of deaths among those who test positive for the infection. At 0.93 per cent it is one of the lowest in India (the national CFR is 1.80 per cent) and is much lower than the global average of 3.34 per cent. (Maharashtra has a CFR of 3.1 per cent, Delhi 2.6 per cent, West Bengal 2 per cent, Tamil Nadu 1.7 per cent and Karnataka 1.7 per cent.) In all, there have been 4,053 COVID-19 deaths in the State.

Andhra Pradesh has also led the way in testing, having conducted over 3.782 million tests over the past five months since April. This translates to 72,437 tests per million of the States’ 52.22 million population. Only three States, Uttar Pradesh (5.62 million), Tamil Nadu (4.81 million) and Maharashtra (4.21 million), have done more tests. Andhra Pradesh is currently doing over 60,000 tests a day.

The large number of cases has not fazed officials like K.S. Jawahar Reddy, Special Chief Secretary, Health, Medical and Family Welfare. Said Jawahar Reddy: “We will not reduce testing to show a lower number of positive cases. Nor are we afraid or bothered about becoming the State with the largest number of positive cases, just so long as the mortality [CFR] continues to be low. Yes, we were shaken when we started recording over 10,000 positive cases every day. But the number has stabilised and we have continued our efforts to test, trace and isolate/quarantine those infected, either at the 100 plus government hospitals/COVID care centres, with an availability of 38,500 beds, or at the nearly 130 COVID-19 notified private institutions, which have 35,000 beds. Besides, our efforts are specifically designed to reduce fatalities and increase the survival rate.”

Jawahar Reddy said it was learnt that COVID patients who got a fever for a second time were in great danger, it being an almost sure indication of a cytokine storm. (Cytokine storm is a phenomenon that occurs when the body’s immune system suddenly causes an uncontrolled, abundant, and even excessive release of pro-inflammatory signalling molecules called cytokines, which in turn triggers a deranged immune response to an infection.)

He said: “We have estimated that on an average, doctors need at least a week to test, identify, stabilise and save COVID-19-infected patients. Currently, the average hospitalisation, even in cases where the patient has succumbed, is for 4.5 days. Our aim is to make this seven days. We are actively isolating and ensuring the hospitalisation of severe cases where the oxygen level falls to below 94. It boils down to how each hospital handles a patient.”

When the pandemic struck Andhra Pradesh, which has no major metropolitan city, it had to start almost from scratch. Today all the 13 districts are self-sufficient in testing and hospitalisation, say officials like Jawahar Reddy. The pandemic, according to him, has acted as a catalyst to prompt the Y.S. Jaganmohan Reddy-led government to ramp up health facilities: it is proposed to start seven super speciality hospitals in tribal areas and 16 medical colleges (in addition to the existing 11) with attached institutions, 550 urban health centres and 10,000 village health clinics at every village secretariat. Required land, consultants, and designs for most of these medical colleges and village health centres, according to officials, have been finalised. With Jaganmohan Reddy determined to implement his controversial decision to carve out 12 new districts (in addition to the existing 13), each district will have at least two medical colleges.

Officials hope that by September end, Andhra Pradesh will be past the worst of it. They estimate that by then 20 to 25 per cent of the State’s population will have been infected with the coronavirus.

Unsure in Telangana

In Telangana, the Kalvakuntla Chandrashekar Rao (KCR) government’s response to the virus continues to be befuddled and ham-handed. Much of the blame for this is attributed to the Chief Minister’s dictatorial attitude. Not prepared to brook dissent or a different opinion, KCR has tied his officials up in knots as the State lurches precariously from one crisis to another. KCR has himself hardly made any public appearances in recent weeks.

Senior Ministers confessed to Frontline that the State was helpless in fighting COVID-19 and it was up to the people to take responsibility. In some congested areas like the Greater Hyderabad Municipal Corporation, the government has all but thrown its hands up. A study published in The Lancet in July, assessing the vulnerabilities of Indian States to COVID-19, ranked Telangana as the third most vulnerable State to the effects of the pandemic.

With positive cases and fatalities mounting in the State, there are many voices alleging that the KCR government has been fudging, even suppressing, figures of COVID-19 deaths. A former Congress legislator said, “COVID-19 infected people are dying like birds during a drought. But the government is keeping the real figures under wraps. They have declared that only some 800 have died [as of September 1, as per the Telangana government webssite 846 people had died of COVID-19]. How is that ever possible?”

Syed Ali Murtaza Rizvi, Secretary, Health and Family Welfare Department, refuted this charge: “We are reporting facts. No COVID-19-related deaths are hidden.”

At the start of the pandemic, the Telangana government’s strategy and response, though publicly unstated, was to keep testing at a minimum, hope that those infected with the virus would develop antibodies, and aim for herd immunity. But by July it became obvious that the strategy had failed. Intermittent lockdowns and sealing of the State’s borders had only a limited effect. Admittedly, the return of migrants working in Gujarat and Maharashtra only pushed up the number of COVID positive cases, especially in the State capital, Hyderabad.

By July testing was sought to be ramped up and by the end of that month, Telangana was conducting nearly 20,000 tests every day; this figure reached 50,000 by the end of August. So far the State has conducted nearly 1.42 million tests, which translates into 38,351 tests per million population. As of September 1, as many as 1,30,589 people had tested positive for COVID.

A recent sample study by the Telangana Health Department highlighted the importance and sheer necessity of testing for early detection, isolation, treatment and containment. Of 61,148 people tested, 59 per cent constituted primary and secondary contacts (27,516 primary and 8,560 secondary) and did not show any symptoms. Only 41 per cent had symptoms such as fever, influenza-like illness (ILI) or Severe Acute Respiratory Infection (SARI). Close contacts of patients, including family members, too tested positive for the virus though many of them were asymptomatic. As many as 69 per cent of those who tested positive did not have any symptoms, while the remaining 31 per cent had symptoms.

Telangana, according to Minister for Medical, Health and Family Welfare Etela Rajender, had now geared up to fight the virus. Said Rajender: “Besides ramping up testing to 65,000-70,000 a day, we are taking a number of preventive measures, including providing patients who have been recommended home quarantine with a medical kit that has a wallet of medicines, supplements to boost immunity as prescribed by the ICMR [Indian Council of Medical Research] protocol, and a pamphlet of the dos and don’ts.”

He also said that testing was now available at over 2,100 centres, from mobile collection centres to primary health centres and government and private hospitals. For patients requiring further intervention, Rajender said there were 18,015 beds at the 30 government and 187 designated private hospitals, besides 8,686 beds at 90 COVID care centres.

According to Rizvi, the focus was now on testing, contact tracing and field surveys to identify people suffering from SARI and having them counselled by doctors and providing treatment as close to the patient as possible. Said Rizvi: “It is a dynamic, constantly changing and challenging situation. We are following ICMR guidelines.”

Exams&the pandemic

UGC's guidelines to conduct university exams: Test of the times

T.K. Rajalakshmi the-nation

On August 28, in a judgment with far-reaching consequences, the Supreme Court upheld guidelines issued by the University Grants Commission (UGC) on July 6 directing institutions of higher learning to conduct examinations for final semester students by September 30.

This came on the heels of an August 17 order by the apex court for the conduct of the National Eligibility cum Entrance Test (NEET) for medical courses and the Joint Entrance Examination for engineering programmes in the first week of September. The Supreme Court gave the go-ahead despite a request from six Chief Ministers of opposition-ruled States for a review of its order.

While approving the new guidelines, a bench comprising Justices Ashok Bhushan, M.R. Shah and R. Subhash Reddy observed that the UGC’s objective was to ensure that all universities followed a uniform academic calendar and that final/terminal examinations were held. The UGC’s revised guidelines, which were a complete reversal of its advisory of April 29, decreed that examinations be conducted in offline (pen and paper), online or blended (online plus offline) modes while observing the COVID-19 protocol. On April 29, the UGC issued guidelines that were advisory in nature, giving each university the freedom to draw its own plan.

A petition in the Supreme Court said the revised guidelines ignored the threat to life posed by the pandemic in Maharashtra, Tamil Nadu, West Bengal and Delhi, where cases were increasing. It also said that State governments had imposed or implemented various degrees of lockdown. On June 19, the Maharashtra government issued a notice cancelling terminal/final year exams and resolved to award grades and degrees on the basis of previous marks and internal assessments.

Narrow debate

While the Union government displayed a complete lack of sensitivity to the concerns expressed, the digital divide, and the spiralling case numbers, and adopted an “exams at any cost” approach, the courts also took a narrow legalistic view of the issue. In this entire saga the debate was confined to whether the UGC had the authority and the right to decide a deadline for examinations. By reducing the issue to a matter of jurisdiction and right, both the government and the apex court order turned a blind eye to those students who had become doubly disadvantaged because of the effects of the pandemic.

Even as the UGC set a deadline, the apex court said that under the jurisdiction of the Disaster Management Act, 2005, any State government or Union Territory could seek an extension of the deadline if it believed that it could not conduct the exams by September 30. But it was clear from the Supreme Court order that there could be no indefinite postponement.

Clutch of petitions

Students, college teachers and youth associations filed a clutch of petitions both for and against the July 6 UGC guidelines and a Union Home Ministry order issued on the same date that directed end-semester examinations to be held by September 30.

With the entire country in the grip of the pandemic and given the issue of limited digital access for online examinations, parents, students and teacher associations appealed to the government and the UGC to not insist on holding exams as both teaching and learning had been severely compromised following the closure of all schools and institutions of higher education since March. They requested that the end/terminal semester students be assessed and awarded degrees on the basis of their past performance and internal assessments. It was also seemingly illogical that mid-semester students would be promoted to the next semester on the basis of past assessments but end-semester students who had been internally assessed over the earlier semesters and had taken exams as well were being pushed to giving the final term examinations.

The apex court also heard a set of petitions challenging the decision of the Maharashtra and West Bengal governments to not hold final year examinations. The Delhi High Court, on July 14, ordered that examinations be held using the open book method. This order was challenged in the Supreme Court on the grounds that while students in other States were being evaluated by internal assessment and past performance, Delhi University students were being deprived of equal opportunities of admission and post-graduate employment because of the High Court order.

The clutch of petitions included one by 31 undergraduate and post-graduate students across 13 States and the National Capital Territory of Delhi. They said that the decision of the UGC and the Human Resource Development and Union Home Ministries was arbitrary, whimsical and detrimental to the health and safety of lakhs of students as well as in violation of Articles 14 and 21 of the Constitution. They averred that several examination boards, such as the Council for the Indian School Certificate Examinations (CISCE), which conducts the Indian Certificate of Secondary Education (ICSE) and Indian School Certificate (ISC) examinations for classes 10 and 12 respectively, and the Central Board of Secondary Education (CBSE) had cancelled their examinations and declared results on the basis of past performance and assessment. (The CBSE and CISCE had cancelled exams scheduled in the first and second weeks of July.)

They also said the decision to hold examinations was discriminatory and arbitrary because intermediate semester students had been exempted from appearing for examinations owing to pandemic concerns but final year students did not get such an exemption.

The writ petition pleaded that the results of final year/final term students be declared on the basis of their past performance and internal assessments on or before July 31, 2020, and degrees be awarded to successful students on the same basis. It also pleaded that those willing students who were dissatisfied with their past performance in internal assessments and previous exams could be given a repeat chance.

The petitioners also pointed out that the Tamil Nadu government and the Punjab Higher Education Minister had written to the HRD Ministry expressing their inability to hold exams in view of the pandemic and had urged the UGC to review its decision. More than half a dozen States had expressed concerns in view of the risks involved.

In West Bengal, the college and university teachers’ associations met Chief Minister Mamata Banerjee and the two sides reached a consensus for evolving an alternative method of marking the examinations and awarding the results by the end of July. Clearly, different State governments and the teaching community were applying their minds on how best to resolve the situation without affecting the students. Overall, the argument made sense as the objective was that students would be graded on time and get their degrees so that they could appear for other admissions. The deadline of September 30 was neither here nor there.

In Maharashtra, the State Disaster Management Authority held a meeting on June 18 and resolved that examinations for professional courses could not be held. On June 19, the State government issued a notification with details of how grading would be done for both professional and non-professional courses. (The COVID-19 situation in Maharashtra has significantly worsened since.)

At least three State governments that had written to the Home Ministry explained their inability to conduct examinations and submitted affidavits in the Supreme Court. Interestingly, the court decided that it was not required of it send notices to all State governments and Union Territories seeking their views but that the cases could be decided by hearing out what the State governments of Maharashtra, Orissa, West Bengal and NCT of Delhi had stated in their affidavits. Those against the UGC guidelines averred that the Home Ministry in its guidelines of July 29 had decreed that outside containment zones, schools, colleges and coaching centres would remain closed until August 31.

It was also contended that as Section 72 of the Disaster Management Act 2005 had overriding powers, it could supersede the UGC guidelines; that Section 12 of the UGC Act itself mandated that guidelines could be framed only in consultation with the universities. This was not done and neither were all universities consulted before the guidelines were framed. The guidelines were also silent on the state of the pandemic.

In the case of Maharashtra, it was stated that in Pune, a hub of education, students had left for their homes. Poor infrastructure, inadequate public transport, and the digital divide were the other issues that came up in the hearing. The Advocate General for Odisha and counsel for Maharashtra pointed out the logistical issues involved in taking examinations given the spread of the pandemic and said that the UGC guidelines could not be thrust on the entire country given that the pandemic was at different levels in different States. Several educational institutions had been converted into COVID care centres and hospitals. The Odisha counsel pointed out that online exams were not an option as the majority of students belonged to the lower- and middle-income groups and did not have desktops or laptops or even a decent smartphone.

The legality of the guidelines was also questioned. Counsel for the petitioners from West Bengal averred that colleges were not located on university campuses and that local trains and metros were not functional. The effects of Cyclone Amphan were still there. There was also a lack of digital infrastructure. Even counsel for the Delhi government submitted that online infrastructure was inadequate for the purpose of conducting exams.

The apex court ruled that the guidelines were not beyond the domain of the UGC, and that “ample latitude was given” to universities and colleges to conduct exams, offline and online. Instead of the previous deadline of July 31 to conduct exams, the revised guidelines had set September 30 as the new deadline. The order acknowledged that in the months following the lockdown, teaching could not take place in colleges and universities and neither could examinations be held. But the UGC had the statutory powers to conduct examinations.

Basically, the court held that there was nothing technically wrong with the revised guidelines and that they were in continuation of the previous advisory/guidelines of April 29. The guidelines had taken note of the COVID situation, it held, and the standard operating procedures (SOPs) issued for the conduct of examinations were proof that the Central government was concerned.

As for the overriding nature of the State Disaster Management Authority (SDMA) over other issues, the court gave precedence to the Home Ministry’s July 6 decision permitting the conduct of examinations in universities and educational institutions. The State government and the SDMA had no jurisdiction to decide that final-year students could be promoted on the basis of previous assessments. The date for completion of examination was fixed to maintain “uniformity in the academic calendar”, it said.

In the discussions, what has been ignored is that striking a balance between protecting health, the right of students to an education and upholding academic standards cannot be reduced only to the question of how safe is it to hold examinations in a given situation with regard to the pandemic. What needs to be considered is whether it is wise to impose on governments and administrations the additional burden of dealing with examinations on a large scale at a time when they need to direct their efforts towards controlling the pandemic.

Exams as be-all and end-all

Examinations are also far from being the be-all and end-all of the education process: they are either part of assessing how much students have learnt and comparing it across students or a way of selecting students for entry into a process of learning. The two court orders deal with these two different types of examinations. Both, however, do not have the same significance because alternatives to entrance exams may be more difficult to find as compared to end-term examinations where numerous other assessment options exist.

Therefore, whether it was optimal for the system to be burdened with both was also something that could have been considered but was not.

More importantly, with educational institutions being closed for months and online education serving as a poor substitute that is not even accessible to all, should not the question of how teaching and learning are to be restored be given priority over examinations, including in the matters of administrative effort and investment of resources?

What is the point of examinations without the processes that either precede or follow them? Moreover, how are examinations under present conditions fair to all since the pandemic conditions are likely to produce differentials in performance which have to do with reasons other than ability?

The fresh guidelines for Unlock 4, which arrived post the Supreme Court order, continue to prohibit the opening up of educational institutions. More than 66,000 persons have succumbed to the virus so far, with both casualties and cases spiking in July and August. These are some of the questions that ought to have been considered by the Central government and the court before setting a rigid deadline.

COVID-19 Update

Delhi: Double blow

Divya Trivedi the-nation

After a lull for over a month, Delhi witnessed a sharp spike in the number of COVID-19 cases in August. Daily new infections nearly doubled, to 2,024 on August 30 from 1,250 on August 21. On August 30, the number of containment zones was 820, as against 589 on August 21. By the end of August, the number of cases in Delhi had reached a staggering 1,74,748.

Expressing shock at the sudden rise in the caseload and containment zones, the Delhi High Court said: “Looking at aforesaid rising figures, by no stretch of imagination can it be stated that the COVID-19 dragon has been tamed much less slain. It is looming large in the city and needs to be tackled on priority.”

A division bench consisting of Justices Hima Kohli and Subramonium Prasad expressed dissatisfaction with the testing being conducted in the national capital and ordered the government to re-strategise so that more asymptomatic people could be tested. According to the sero-survey conducted by the Delhi government, 77 per cent of Delhi’s population was still susceptible to the virus and a significant proportion remained asymptomatic, which might “serve as silent spreader of the disease” and pose a “greater challenge for the health system to stop virus transmission.”

While the combined capacity of private and public laboratories in Delhi to do reverse transcription polymerase chain reaction (RT-PCR) tests was 14,000, the actual testing done was half that number, between 5,000 and 6,000 on average. Rapid antigen tests (RAT) increased only incrementally (8,082 tests on August 23 and 16,013 on August 28). Given the huge spike in cases, the bench asked the Delhi government to make optional or do away with the requirement of a prescription from a private doctor to undergo an RT-PCR test. The bench also asked the Indian Council of Medical Research to consider issuing a fresh advisory in respect of Delhi, but was told that the ICMR only issued nationwide advisories and States must declare their own set of guidelines.

The High Court order was timely because the Ministry of Home Affairs had declared Unlock 4.0, permitting free movement of people in almost all sectors.

All intra-State and inter-State movement of persons and goods, including for cross-border trade with neighbouring countries, has been permitted. States and Union Territories were barred from imposing any local lockdown outside containment zones. Delhi Metro will start operations from September 7 in a phased manner.

In this scenario, migrant workers returning to Delhi were at risk. Many of them might be asymptomatic carriers of the infection and would, therefore, need to be tested and quarantined, observed the court. It asked the Delhi government to take urgent steps to set up testing facilities at all the three nter-State bus terminals and railway stations.

The Delhi Disaster Management Authority’s order of June 3 that everyone entering Delhi must undergo home quarantine for seven days was being flouted with impunity. The court ordered the District Magistrates to ensure that the order was followed.

The additional standing counsel for the Government of the National Capital Territory of Delhi submitted to the court that special surveys were conducted for housemaids, daily workers, rickshaw drivers, auto drivers, taxi drivers and lorry drivers as they were a vulnerable category of people and that this would continue on an ongoing basis.

In response to the rising numbers, Chief Minister Arvind Kejriwal told the media that the situation was “fully under control” and the cases had increased “only marginally”. He said that the rate of testing would be doubled. Kejriwal had repeatedly pushed for the capital to return to normalcy and had recently reopened hotels and weekly markets on a trial basis. The Delhi government’s latest strategy was to enforce social distancing and the wearing of masks through penal provisions. Apparently, the police had penalised more than 1,88,000 people for not wearing masks and the revenue districts had penalised around 41,000 people for violations in the past three months.

In a hurry to return to normalcy, the Delhi government had done little to solve the problems of the working class. Under the lockdown, when the government had forced people to stay at home, the authorities in Delhi had carried on demolitions of slum clusters with no regard to the pandemic.

In June, officials of the Indian Railways forced 13 families to demolish their own houses in Shakurbasti after threatening to evict them. In July, the East Delhi Municipal Corporation and the Public Works Department, Delhi, destroyed about 100 houses in East Laxmi Market, Delhi, during a three-day demolition drive that rendered 150 families homeless during the peak of the pandemic. Also in July, 35 houses of the marginalised Gadia Lohar community were demolished in Gurugram by the State administration without prior notice. The authorities destroyed personal possessions and livelihood items of the affected families during the demolition.

These demolitions were done despite the United Nations (U.N.) Committee on Economic, Social and Cultural Rights calling on state parties to impose a moratorium on evictions during the pandemic.

The former U.N. Special Rapporteur on Adequate Housing, in a guidance note, emphasised that the human right to adequate housing could not be derogated in times of emergency and urged all states to end all evictions until the end of the pandemic and for a reasonable period of time thereafter.

Between March 16 and July 31 alone, over 20,000 people were forcefully evicted across India, according to the Housing and Land Rights Network (HLRN).

In a report on forced evictions, the HLRN noted: “The urban and rural poor across India continue to suffer disproportionately from the pandemic and lockdown-induced hardships related to the loss of livelihoods, income, and food. Demolishing their homes under such circumstances has greatly exacerbated their plight and increased their impoverishment.”

“Such inhumane acts of the state violate the Constitution of India and international human rights law ratified by India, which guarantees to all residents of the country the fundamental right to life; the right to an adequate standard of living, that includes the rights to adequate housing and food; the right to health; the right to education; the right to equality; and the right to remedy, including access to justice.”

COVID-19 Update

Rajasthan: Time lost in tussle

T.K. Rajalakshmi the-nation

The number of COVID-19 cases has been increasing steadily in Rajasthan, one of the first States to identify coronavirus clusters. The main clusters in the early months of the pandemic were found in Jaipur and Bhilwara. In Bhilwara, the spread was brought under control with strict adherence to lockdown measures and adoption of safety guidelines. Bhilwara’s sparse population was an advantage in containing the spread. But that was not the case with Jaipur. For some peculiar reason, the city has contributed the maximum number of cases to the overall caseload and fatality figures in the State. Jodhpur has now overtaken Jaipur in the total number of cases. The infection, which was initially concentrated in a few districts, gradually spread to all the districts. Jaipur, Jodhpur, Kota, Bikaner and Alwar have contribute close to 68 per cent of the State’s caseload.

On September 2, as many as 1,470 new cases were reported taking the cumulative tally to 84,674 cases. Twelve persons died in the 24-hour period taking the total number of COVID-related deaths to 1,093. Pratap Singh Khachariyawas, State Transport Minister, tested positive in late August. Earlier, Vishwendra Singh and Ramesh Meena, who were dropped from the Cabinet following the rebellion in the ruling Congress, had tested positive. Reports of fresh cases from the tribal-dominated southern districts has caused some concern. Although the overall figures have been low there, fresh cases were reported from Banswara, Udaipur and Dungarpur. Jhalawar, Bundi, Baran, Barmer, Chittorgarh, Churu and Bharatpur districts reported some 100 fresh cases. Jaipur and Jodhpur are the only districts that have consistently reported 100 to 300 cases every day. The daily figures for Kota and Bikaner have ranged between 100 and 200 cases. Overall, the spike in cases in these districts, including densly populated urban districts and those outlying Jaipur, was observed mainly in July and August. The virus had reached almost every part of the State.

On September 2, Chief Minster Ashok Gehlot held prolonged discussions with his Cabinet colleagues on the public health situation.

The State’s case fatality ratio at 1.3 per cent is lower than that of Gujarat and Uttar Pradesh. Its recovery rate, at 81.4 per cent, is comparable to the national average although its average growth rate at close to 2 per cent has been worrisome.

The ruling Congress wasted precious time in factional fight in July and most part of August. Rajasthan continues to occupy the13th position among States in the number of COVID cases but is in the ninth position in the number of deaths. Rajasthan is among the top 10 States that account for a good part of COVID-related deaths in the country though its share (1,008) to the national tally is low compared with that of Uttar Pradesh (3,616), Gujarat (3,046) or Delhi (4,500).

But the steady increase in the number of positive cases has been a matter of concern. On August 1, the State reported 43,243 cases, but a month later, on September 1, the number of cases almost doubled to 83,163. On an average, 1,000 cases were reported daily from all over the State. On some days, the figure went up to 1,400. Jaipur, which had reported 5,547 cases as of August 1, saw the numbers jump up to 11,099 by the end of the month. In contrast, Jodhpur, which had 7,014 cases in the beginning of August, reported an almost 70 per cent increase. On September 1, there were 12,238 cases in the district. Similarly, the number of cases in Bikaner rose to 4,476 on September 1 from 2,031 on August 1.

Gearing up for response

On September 2, the State Health Department, in an order issued to district and block- level officials, acknowledged that the virus, despite being concentrated in urban centres had spread to small towns and rural areas. The order stressed the need for an effective strategy and directed the Community Health Centres to make arrangements for testing and providing oxygen facilities and a functioning outpatient department. The centres were required to dedicate a room for patients suspected of influenza-related illnesses (ILI) and other vulnerable categories. They were told to mobilise trained medical officers and paramedical staff and provide facilities for testing samples, use oximeters and organise referral arrangements such as ambulances. The order also directed that anganwadi and accredited social health activists be mobilised for screening of suspected patients. It was decided that for every group of five panchayats, six health workers would be assigned to conduct screening by using random sampling methods, under the supervision of trained nurses. They would be equipped with monitoring devices such as oximeters and have vehicles at their disposal.

“It is important to screen people in villages and kasbahs the way it has been done in towns and cities,” the order stated. The paramedical staff would have to ensure containment and quarantine facilities, if required. The District Collector and the Chief Medical Officer would conduct training and evaluate the progress made once a fortnight. The preparations that were under way indicated that the government was apprehensive of the spread of the virus in rural areas and small towns. The order permitted District Magistrates to use the COVID emergency response fund for containing the spread.

Although government hospitals in cities such as Jaipur are no longer reserved for COVID testing and treatment, and have been designated as “COVID -free” since June, there has been a decline in the number of elective surgeries conducted in Sawai Man Singh Hospital, one of the largest government hospitals in Jaipur district.

According to published figures, the conducted a little over 13,000 elective surgeries in January, that is, 450 a day on an average. In June and July, when the hospital opened its OPD for non-COVID treatment, the number of surgeries conducted was 5,507 and 7,784 respectively. In August, as COVID cases rose exponentially, the number of surgeries and operations dropped significantly. In January, 13,110 surgeries were conducted, in February 13,902, in March 8,099, in April 1,802, in May 2,603, in June 5,507, in July 7,784 and until August 22, there were 2,752. In March, the hospital stopped routine admissions and converted the medical college into a dedicated COVID treatment centre.

The pressure on health services, which began in March, increased with a surge in COVID cases. As health care facilities in districts and villages are not on a par with those in the cities, crowding at government hospitals is bound to happen when there is a spike in cases, and the State should be prepared for this in the coming weeks.

COVID-19 Update

Maharashtra: Opening up slowly

Lyla Bavadam the-nation

When Chief Minister Uddhav Thackeray announced in August that the lockdown would not be lifted fully in Maharashtra, he was reiterating the State’s by-now-well-established policy of taking it slow when it came to easing lockdown restrictions. In Maharashtra’s ‘Mission Begin Again’ phase 4, the lockdown will continue to be in place for the whole of September. The decision is based on what is largely seen to be a successful plan to combat the pandemic.

The thinking at Mantralaya, the State’s administrative headquarters, is that it is better to proceed slowly rather than impose a second lockdown. Thackeray spelt out his government’s strategy on August 27 after inaugurating a jumbo COVID-19 facility in Pune. He said: “If we relax and believe that the virus will now be under control, we might have to face the second wave. Those countries which believed that ‘abhi ho gaya, humne maat kar di’ (we have defeated the pandemic) were all proved wrong as they saw a second wave.” Besides, he said, the belief that a person who has tested positive will not be infected again has been proved wrong. “We should not relax and become complacent.”

He added: “There is no medicine, no vaccine yet. But that does not mean we can’t continue our fight. We need to keep fighting… We need to remain alert and keep chasing the virus in a bid to check its spread.”

He pointed out that even after a vaccine is available, “we will not be able to give it to the people at one go. Maharashtra has a population of 12 crore. It will take time to vaccinate such a large population. Besides, we don’t know how long the effect of the vaccine will last. Maintain social distance, use masks and wash hands frequently—these should remain our daily priorities.”

Sense of normalcy

Apart from the containment zones, where stringent rules still apply, there is largely a sense of normalcy in the State, especially in Mumbai. Hotels can operate at 100 per cent capacity, private offices are allowed to function with 30 per cent of staff, and private bus operators can resume services. Educational institutions will continue to be closed, but senior pupils can visit their schools sometimes if they feel the need to interact with their teachers.

Perhaps the most encouraging sign of the pandemic receding in Mumbai is the shutting down of the big COVID facilities. Municipal and State authorities said the jumbo facilities were no longer needed and would be dismantled. The only restrictions that still pinch are the curbs on public transport. In Mumbai, the public bus service and the local train service are the city’s lifelines. And access to both remains severely limited. Travel in the rest of the State has opened up with the government doing away with the mandatory e-pass for inter-district travel. However, it is highly unlikely that public transport in Mumbai would be freely available any time soon, given the government’s fear of a second wave of infections. Thackeray has repeatedly said that he will not be pushed to open up the city only to have it closed down again.

Rise in districts

While Mumbai, the erstwhile COVID-19 capital, is improving, the number of affected people in other parts of the State is increasing. This is broadly attributed to a rise in travel and increased testing and was an expected outcome once the initial restrictions were relaxed. However, it is worrying for the authorities as managing COVID cases in areas outside the metros will be a challenge.

To prevent a second wave, the State advised district authorities to use their discretion in imposing restrictions. In Chandrapur district, for instance, 270 people tested positive on August 31, adding to the existing total of 2,344 patients. The district administration took strong action, announcing a week-long complete district lockdown beginning September 3, during which even shops with essential commodities were shut and no one was allowed to step outdoors except for medical services. August 31 saw high numbers in Nashik district, too, with 958 people testing positive, taking the caseload to 34,046.

The number of cases has been rising in Pune district. On August 31, 3,611 cases were reported, taking the total district count to 1,60,455. Civic data from the Pune Municipal Corporation showed that 25 per cent of the positive cases and 72 per cent of those who died were cases with co-morbidities. The authorities are focusing more on such cases. The data showed that from July 7 to August 26, 3,57,270 patients with comorbidities were screened. In their door-to-door testing, civic staff have been focusing on screening people over 60 with co-morbidities.

Neglect of other issues

The State’s focus on COVID care over the last five months has been to the detriment of all other health issues. A five-month comparative analysis of data compiled by the Brihanmumbai Municipal Corporation (BMC) and the State public health department between March and July in 2019 and 2020 showed that immunisation dropped by 60 per cent this year, while cataract surgeries fell by 92.8 per cent. Other elective procedures such as tubal ligation and vasectomies also dropped drastically by 70 per cent, while there was a decline in institutional deliveries and neonatal intensive care.

Opening up the State has resulted in a fresh look at issues that were put on the back burner. At the top of the State’s to-do list is resolving the issue of outstanding Goods and Services Tax (GST) payments by the Centre.

The first coronavirus case in Maharashtra was detected on March 9. By the end of March, all government hospitals had been converted into COVID facilities. As of August 27, the State had recorded over seven lakh cases and 23,000 deaths.

COVID-19 Update

Tamil Nadu: Fears of a second wave

Tamil Nadu is bracing for a second wave of COVID-19 infections because many more services and establishments have been opened up even though the first wave shows no signs of abating. Since the pandemic outbreak in March, more than 7,600 deaths have been recorded in the State. The number of new cases remains high, just short of 6,000 a day, which means that the first wave is still strong in the State.

A sero-prevalence study in Chennai indicated that as much as 20 per cent of the city’s population, which accounts for one-eighth of the State’s total population, could be infected. Anecdotal evidence, too, points to a massive jump in infection rates. In the past two days alone, 60 COVID positive cases were detected in an old-age home on the southern outskirts of Chennai. In a Facebook post, which has been independently confirmed, the organisation running it said that the infected women were taken to three government hospitals.

Many prominent persons are in hospital. S.P. Balasubramaniam, whose melodious voice has enthralled many generations of Indians, is fighting for life at a private hospital. He is on the support of a ventilator and an extra corporeal membrane oxygenation machine (ECMO) . The first Member of Parliament to fall victim to COVID infection is from Tamil Nadu—H.Vasanthakumar, a Congress MP from Kanyakumari and a businessman. He breathed his last on August 28. In fact, on March 20, speaking in the Lok Sabha, Vasanthakumar demanded that COVID-19 be declared a national disaster. He even laid a road map to help small businesses, migrant labourers and those on daily wages, only to be laughed at and interrupted by members from the ruling Bharatiya Janata Party (BJP).

As many as 33 MLAs are undergoing treatment for COVID. So are a few prominent members of society. Even the Governor was infected, and was advised home isolation. Even though the level of infection in the population is quite high, the State government maintains that the pandemic is still not in the community transmission stage.

But these dire signs have not prevented the State from blindly following the Centre’s lead and opening up more establishments. Even places of worship are open. The only exception is cinema theatres. The Chennai Metro, which lacks a way of purifying air, is open from September 7. It appears more than a little strange that some establishments, such as cinema theatres which can actually ensure air purification, have been locked up but others which cannot do so are allowed to function. It is ironical that malls can function but theatres inside these malls cannot function. One argument advanced by some in the ruling party is that sitting in a theatre for about two hours is more dangerous than travelling for 10 minutes in a Metro train or visiting a mall for half an hour. The counter argument to this is that COVID-19 does not depend on the length of exposure; the infection can be picked up in a matter of minutes if there is a COVID-19 positive person present in the premises.

Inter-district buses are also allowed to ply from September 7. Almost all areas of economic activity that have the potential to contribute to the spread of the virus have been opened up. In most other countries, the relaxation of lockdown conditions was done only after the infection was under control. In India, it is happening even as the country is witnessing world-record-shattering daily infection rates. Parliament has been summoned; the Tamil Nadu State Assembly, too, will meet, but in a large auditorium though. Despite the large number of deaths and the rising infections, the government has mandated that people live with the virus.

One public health expert warned that a second wave will stretch the health-care system to unsustainable levels. But no one seems to be taking note of such warnings. The State government has said that it did not have much manoeuvrability after the Government of India had laid out the rules for Unlock 4.0.

Added to all this is the spin that the Health Minister C.Vijayabhaskar, himself a doctor, dishes out every day. He has found a great way of conveying to the people that the number of COVID deaths is low and that they occur because of other reasons. He has caught on to co-morbidities—other co-existing health conditions—and has claimed from the beginning that people were dying in large numbers because of these co-morbidities and not because of COVID-19. “This is ridiculous,” said a doctor. “The co-morbidities have existed for quite a while in most patients and they have lived so far, right? So why are some dying now? Is it because of the co-morbidities or because of COVID-19? In my view, it is because of COVID,” he said.

“The Health Minister saying that people die mostly because of co-morbidities and only a few die of COVID is misleading,” said another senior doctor. “The WHO [World Health Organisation] definition of COVID death is very clear. People don’t die of co-morbidities. They die of COVID-19 and co-morbidities increase the risk. There is no such thing called primary or secondary COVID death. This is the Health Minister’s invention,” he said.

Nevertheless, the daily bulletin issued by the Health Department gives the numbers of victims of COVID-only and victims of “co-morbidities” separately. But the Minister’s media management does not work on the ground when it comes to COVID control. In south India, Tamil Nadu has the highest number of infections, followed by Andhra Pradesh and Karnataka. Ruling party spokespersons routinely dismiss this fact by saying that Tamil Nadu is conducting more tests, forgetting that it is the responsibility of governments to conduct such tests and save more people from getting infected. But with an election to fight in early 2021, the accent is more on spinning media narratives around the pandemic so as to create the impression that the government is handling the situation well.

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Oct 9,2020