The Hindu Editorials January 2013
Why a national water framework law
The idea of a national water framework law mooted by the Central government has
run into strong opposition from the Chief Ministers of several States. The aim of this
article is to clarify the issues involved for the information of the general public.
I am obliged to strike a personal note here, for reasons which will become clear as this
article proceeds. So far as I know, I was the first person in this country to talk about a
national law on water, more than 10 years ago, and the first to use the term ‘national
water framework law.’ The idea made no headway at all until the Planning
Commission, as part of the preparations for the 12th Plan, set up a number of working
groups and sub-groups, including a sub-group on a national water framework law with
me as chairman and five other members. We produced a complete draft of the law that
we were advocating. It is available on the website of the Planning Commission
Alagh Committee
That draft was not adopted by the Ministry of Water Resources, but it did accept
the idea , picked up the term ‘framework law’, and set up a new committee to draft the
law under the chairmanship of Dr. Y. K. Alagh. That committee has presumably not
yet concluded its deliberations, but meanwhile the idea of a national water framework
law appears to have been mentioned at a Conference of Water Resources Ministers as
well as the recent NDC meeting, and has drawn a negative response. That response is
regrettable. A national law on water is very necessary, and it must be a framework
law.
Why is a national law on water necessary? There are several reasons.
(1) Under the Indian Constitution water is primarily a State subject, but it is an
increasingly important national concern in the context of:
(a) the judicial recognition of the right to water as a part of the fundamental right to
life;
(b) the general perception of an imminent water crisis, and the dire and urgent need to
conserve this scarce and precious resource;
(c) the severe and intractable inter-use and inter-State conflicts;
(d) the pollution of rivers and other water sources, turning rivers into sewers or poison
and contaminating aquifers;
(e) the long-term environmental, ecological and social implications of projects to
augment the availability of water for human use;
(f) the equity implications of the distribution, use and control of water;
(g) the international dimensions of some of India’s rivers; and
(h) the emerging concerns about the impact of climate change on water and the need
for appropriate responses at local, national, regional, and global levels.
It is clear that the above considerations cast several responsibilities on the Central
government, apart from those of the State governments. Given these and other
concerns, the need for an overarching national water law is self-evident.
(2) Several States are enacting laws on water and related issues. These can be quite
divergent in their perceptions of and approaches to water. Some divergences from
State to State may be inevitable and acceptable, but extreme and fundamental
divergences will create a very muddled situation. A broad national consensus on
certain basics seems very desirable.
(3) Different State governments tend to adopt different legal positions on their rights
over the waters of a river basin that straddles more than one State. Such legal
divergences tend to render the resolution of inter-State river-water conflicts extremely
difficult. A national statement of the general legal position and principles that should
govern such cases seems desirable.
(4) Water is one of the most basic requirements for life. If national laws are considered
necessary on subjects such as the environment, forests, wildlife, biological diversity,
etc., a national law on water is even more necessary. Water is as basic as (if not more
basic than) those subjects.
(5) Finally, the idea of a national water law is not something unusual or
unprecedented. Many countries in the world have national water laws or codes, and
some of them (for instance, the South African National Water Act of 1998) are widely
regarded as very enlightened. The considerations behind those national codes or laws
are relevant to India as well, although the form of a water law for India will clearly
have to be guided by the nature of the Indian Constitution and the specific needs and
circumstances of this country.
Let us now consider the term ‘framework law’. My purpose in adopting that term was
precisely to avoid the danger of centralisation. In introducing our sub-group’s draft we
stated clearly that the proposed national water law was not intended to change the
Centre-State relations in any way; that what was proposed was not a Central water
management law or a command-and-control law of the usual kind, but a framework
law, i.e., an overarching statement of general principles providing a framework within
which the Centre, the States and the local governance institutions will exercise their
respective legislative and/or executive (or devolved) powers.
However, the framework law was intended to be justiciable in the sense that the laws
passed and the executive actions taken by the Central and State governments and the
devolved functions exercised by PRIs would have to conform to the general principles
and priorities laid down in the framework law (on the basis of a national consensus),
and that deviations can be challenged in a court of law. The point will become clearer
if we think of the proposed national water framework law as something like the
Directive Principles of State Policy, but different in the sense that it would be
justiciable.
If such a national law is considered desirable, there are ways in which Parliament can
enact it. We need not go into those modalities here.
The reason for my mentioning our sub-group’s draft law must now be clear. The
purpose was not to advertise that draft or to appeal to the government to adopt it —
though we will of course be gratified if that happens — but to draw attention to the
difference in approach between the sub-group and the Ministry. Though both the
subgroup and the Ministry want a national law on water, the purposes in view are
different. What the sub-group wanted was to bring about a national consensus on
certain general principles relating to water, whereas the prime concern of the Ministry
was apparently to strengthen the hands of the Centre. That was presumably why it put
aside our draft and set up a Committee to prepare a new draft.
A setback
This also explains why the Centre was unable to persuade the State governments to
accept the idea of a national water framework law. The manner in which the Centre
put forward that idea at the Water Resource Ministers’ Conference and the NDC must
have given indications of the underlying desire to strengthen the hands of the Centre.
In fact, though the Ministry uses the term ‘framework law’, what it has in mind is not
really a framework law but a conventional operational one. This must have set the
alarm bells ringing in the minds of the Chief Ministers.
As a result, the very idea of a national water framework law has become suspect in
their eyes. Even if the Alagh Committee comes up with a draft of a genuine
framework law with no elements of centralisation, it will now be an uphill task to
persuade the States to accept it. This is a setback to an important initiative.
The purpose of this article is to commend for the government’s consideration an
approach that would rescue the idea of a national water framework law from total
rejection by the States. Their fears of centralisation need to be dispelled in a
convincing manner, and what is put forward must be a realframework law .
(Ramaswamy R. Iyer is a former Secretary, Water Resources, Government of India.)
The Union government should dispel the States’ fears of centralisation if it wants to
rescue the idea from total rejection
Where buying a motorcycle can spark a riot - The Hindu
In the recent violence against the Dalits in Dharmapuri district in Tamil Nadu, about
300 of their houses were burnt down and other properties destroyed by the Vanniars, a
numerically strong intermediate caste, sections of whom have been economically
stagnant. The immediate cause for the rampage was a Vanniar woman’s marriage to a
Dalit youth and the consequent suicide of the woman’s father. However, the largescale and systematic destruction of Dalit properties was a result of the simmering
discontent against the upward mobility of the Dalits.
The growing intolerance of the intermediate castes towards this economic mobility of
the Dalits is not confined to Dharmapuri district alone. In the last two decades, 11
districts in the State have witnessed similar destruction of Dalit property as part of
caste violence. There are two aspects to this Dalit mobility and the resultant violence
against them. One is the declining of role of agriculture in rural Tamil Nadu and its
impact on the social and economic relations within villages. The second is the specific
ways in which the changing economic relations have been negotiated through altered
caste and gender relations posing challenges to the intermediate caste’s pre-existing
power.
Younger workforce
Across Tamil Nadu, the role of agriculture in sustaining rural livelihoods has
dramatically declined with non-farm employment increasingly playing a significant
role. A recent survey of rural households in four districts in the State done by the
Institute of Development Alternatives, Chennai reveals that only 28 per cent of
households rely on agriculture solely for their livelihood. In the remainder, at least one
member of the household was engaged in non-agricultural employment, ranging from
construction work to a range of manufacturing sector jobs. This resonates strongly
with the observations made about the “commuting worker” in contemporary rural and
urban landscapes. In Tamil Nadu alone, more than 72 lakh workers commuted from
rural areas to work in non-agricultural sectors. This mobility is highly gendered with
the age profile indicating the emergence of a young male workforce. This mobility has
been accompanied by a new mobility of capital too. Studies indicate a growing
ruralisation of the formal manufacturing sector in the last 15 years, with its output
increasingly coming from the rural areas even as urban manufacturing employment is
becoming more informal.
Impact of manufacturing
It is in this context that one needs to understand Dalit mobility in parts of Tamil Nadu.
The spread of a range of manufacturing activity in small towns in Tamil Nadu and its
diffusion into the nearby villages have spawned new rural-urban and rural-rural
mobilities and a move into manufacturing and service sector jobs among Dalit youth,
particularly in the northern and north-western districts. This mobility has also been
backed by investments in education albeit of a limited kind.
The move away from traditional agricultural work has undermined the control that the
intermediate castes could wield on Dalit youth. Fieldwork in villages adjoining and
housing textile and clothing factories in the Coimbatore and Tiruppur districts, and
shoe factories in Vellore district reveal not only a striking shift from agricultural work
among the Dalit youth, but also a strong reluctance among them to take up agricultural
work. The mobility beyond the village has enabled Dalit youth to challenge their
traditional caste obligations and the masculine powers of the dominant castes. The
refusal of Dalit women to perform menial duties for intermediate castes, the refusal of
the younger generation of Dalits to labour in the lands of intermediate castes and to
perform caste obligations such as funeral drumming — combined with relative
improvements in their every day existence — have become the source of conflicts
between the Dalits and the intermediate castes in the State. The inability and
reluctance of sections of intermediate castes to make a shift from agriculture despite
its non profitability due to strong social values attached to agriculture, their inability to
force the castes below them to work on their farms and their lack of control over the
mobility of Dalit youth have underwritten their caste anxieties.
Masculine power
Further, caste dominance is contingent upon the masculine power of men, their ability
to control women in private and public spheres and also their ability to control the
subordinate men of oppressed castes. With the challenge posed to their caste
dominance, the intermediate castes find their masculinity in crisis since they are
unable to exert power over the subaltern Dalit men and women. They also imagine an
erosion of their masculine power in the private sphere with their claim that Dalit men
lure away “their women.” The crisis of intermediate caste masculinity, which is the
result of the economic mobility of the Dalits, is certainly at the core of these conflicts
and the caste violence which targets Dalit properties. Otherwise, how can one explain
the fact that invariably during the caste violence in recent times, motorbikes owned by
the Dalits, a symbol of masculine mobility, have been targeted by the intermediate
castes who desire to imitate the erstwhile dominant castes in their starched
white dhotis moving on Enfield motorbikes!
(The writers are Associate and Assistant Professors at the Madras Institute of
Development Studies, Chennai.)
Refusal by Dalits to work as agricultural labour and to perform menial duties plus
their relative economic improvement have made them the targets of caste violence
An election deal is the only way
Nepal does not have a legislature. The executive’s legitimacy is contested, with a
caretaker government commanding limited authority and a ceremonial President
flirting dangerously with constitutional limits. Its judiciary is operating at less than
half strength since there is no Parliament to confirm new appointments. The fivemember Election Commission (EC) has only two commissioners left, who are also
retiring in a week. The interim constitution did not envisage the current situation
where the Constituent Assembly (CA) would fail to draft a statute. Elections for a new
CA could not be held in November and prospects for holding them in April-May are
diminishing. There is no agreement in sight over the nature and composition of the
government, the electoral system, voter roll disputes, EC appointments, and a
mechanism to clear the constitutional hurdles for elections. With President Ram Baran
Yadav saying he will not pass election-related ordinances till there is a ‘political
consensus,’ each major party has a veto. As the ruling party, the Maoists will have to
bear their share of the blame. Chairman Prachanda has constantly shifted positions. He
and Prime Minister Baburam Bhattarai are engaged in an intra-party battle which has
hardened their respective positions in inter-party talks. But the attitude of the
opposition — particularly the Nepali Congress (NC) — has been destructive and
undemocratic. It first rejected the Maoist idea of reviving the old CA to promulgate
the constitution. The Maoists then invited the NC to join the current government, take
key ministries, and appoint its nominee as the Chief Election Commissioner to ensure
free and fair polls; but this was also turned down.
The NC’s sole demand is that the PM must go and it should be given government
leadership. In any democracy, the government last elected on the floor of the house
remains in-charge till polls are held and then transfers power, but Nepal’s opposition
wants power before polls. The Maoists and Madhesi parties in government said they
were open to NC leadership, if the party owned the work done in the last CA and
joined the current government temporarily to end the ‘politics of untouchability.’ The
NC, however, wanted power unconditionally. The PM’s latest proposal is to hand over
power to a neutral civil society figure, with the limited mandate of holding polls. This
could serve as a compromise formula if such an arrangement has the sincere support
of all parties. If they want to redeem themselves, Nepal’s parties must arrive at a deal
in the next fortnight and hold elections by May to restore constitutional order and
political legitimacy.
For an India-led security architecture in South Asia
India’s neighbours often cite the ‘Bangladesh War’ and the IPKF involvement in Sri
Lanka to justify their apprehensions about Indian strategic interests and military reach
in the region.
In this, they do not acknowledge that it was not Indian plotting that caused the
Bangladesh War, but Pakistan’s own failings; and that the IPKF went to Sri Lanka at
the request of President J.R. Jayewardene, to be withdrawn equally fast, again at the
express wish of his successor President Ranasinghe Premadasa.
But India’s smaller neighbours are not as concerned about the reach, if any, of outside
powers in the region. In this sense, the neighbourhood’s concerns about India are
distinct from India’s own concerns.
For India, the disputes with China — and Pakistan, too — are real, and not just
theoretical. In this context, there is some substance in the demand by the Indian
strategic community that smaller neighbours should share their security arrangement
details with it, particularly if these involved powers from outside the region.
Ultimately, it is India that has to face these arrangements, if it came to that. Indian
concerns on this score, at the official level in particular, are clearly independent of
New Delhi’s recognition of the sovereign right of individual nations in the
neighbourhood to do business of their choosing with partners of their choosing.
None of India’s smaller neighbours has the capacity to ward off extra-territorial
security/military intervention. India alone is capable of this.
Hence, the expectation that smaller neighbours should keep India informed and
updated about their concerns and arrangements on the geo-strategic front. The ideal, of
course, would be for these countries to resist the temptation of inviting extra-territorial
players into the region and providing them with political and strategic space.
Be it the Hambantota port in Sri Lanka or the GMR issue in Maldives, or Chinesefunded civilian projects in either of these countries or other South-Asian neighbours of
India, the strategic community in India is often over-heated with the perception that
they have all done business with China behind the New Delhi’s back.
The perception is that these countries may have been working — or operating a
strategic partnership — with China, to the eternal detriment of India’s security
interests and strategic concerns. It is more so in the case of Sri Lanka and Maldives,
whose strategic location on the Indian Ocean sea-lines provides for multi-dimensional
security concerns for India emanating from China and based in either or both of these
nations.
Having said that, however, there is little acknowledgement of the geo-strategic
concerns of smaller neighbours on the part of New Delhi, either by the government or
by the Indian strategic community. Seldom do they ask why India has never taken
them into confidence while signing strategic partnership agreements with extra-
territorial powers. All said and done, they only have their sovereignty to claim equality
with the larger and bigger neighbour.
Bridging the trust gap
This gap in perceptions and reality can be closed by building a South Asian security
architecture, where Indian strategic needs and historical security concerns are taken on
board along with the concerns of India’s smaller neighbours. At the end of the day, the
smaller neighbours are the first line of defence for India. But the initiative for creating
a regional security architecture rests with India, which is the largest military power in
the region and would be called upon to shoulder much of the responsibilities,
including budgetary support, and would have to evaluate them at every turn.
India has a demonstrated track record of its ability and willingness to give military
lead to the region where required. Thus, India was proactive in helping Sri Lanka at
the height of the ‘first JVP insurgency’ in 1971, followed by the ‘Bangladesh war’ the
same year. That the Sri Lankan government’s invitation to the IPKF in 1987 would be
used to criticise India as a hegemon caught New Delhi off guard.
The Indian military intervention to Maldives during the November 3 coup bid in 1988
and the more recent assistance to both nations in the aftermath of the 2004 tsunami
showed that India was both willing to walk that extra mile in war and peace, to reach
out to its neighbours.
Of course, Pakistan may have a problem with joining an Indian initiative of this kind
— New Delhi too would have reservations in the matter. Each country’s relations with
Pakistan could also come in the way of some nations joining a security pact with
India. But it would be up to the Indian leadership, as also political and military
diplomacy, to do the job. Whether it involves State adversaries or non-State actors,
post-World-War global concerns have been moving increasingly closer to South
Asia. These need to be addressed, and the initiative has to come from India.
(The writer is Director and Senior Fellow at the Chennai Chapter of the Observer
Research Foundation, ORF, a multi-disciplinary Indian public-policy think-tank
headquartered in New Delhi. Email: sathiyam54@gmail.com )
Burying democracy in human waste
The Supreme Court had recently admonished a District Magistrate for filing a
“wrong” affidavit stating that there was no manual scavenging in his district. Just a
day earlier, Union Minister of Rural Development Jairam Ramesh had publicly
apologised for the continuance of the practice of manual scavenging. And I thought of
a documentary on manual scavenging that has haunted me ever since I saw it.
It is really what is described as an “in your face” documentary. A scene is of a small
girl in a blue frock, and with liquid eyes — what in Tamil we would call
“ Neerottam .” She answers the questions about her experience in school (what I give
below is not a verbatim reproduction of the script, but an imperfect one).
“Did you like school?”
“Yes.” (A shy smile)
“What happened?”
“I stopped.”
“Why?”
“I used to sit in the front row. Then my classmates did not want me to sit next to them.
So the teacher asked me to move to the last row. I went for some days. Then I
stopped.”
This did not happen decades ago, but in this day and age. It must have been a
government school. Where else will a poor Bhangi’s child go? Article 17 of the
Constitution states: “Untouchability is abolished.” If a government schoolteacher can
ask a child to go to the back row because her classmates do not want any contact with
her, when was it abolished?
Let us all feel on our skin the sandpaper-rub of exclusion. We are not done with that
little girl yet. The camera stays on her face, while she looks back at us. Slowly those
deep eyes, which have known a pain that no eight-year-old should, well up with tears
and she whispers:
“I wanted to become a nurse or a teacher.”
Fraternity, we promised ourselves; fraternity assuring the dignity of the individual and
the unity and integrity of the nation. What does fraternity mean? Dr. Ambedkar said,
when the Constitution was in the making, that: “Fraternity means a sense of common
brotherhood of all Indians — of Indians being one people. It is the principle which
gives unity and solidarity to social life. It is a difficult thing to achieve. Castes are
anti-national, in the first place, because, they bring about separation in social life.
They are anti-national also because they generate jealousy and antipathy between caste
and caste. But we must overcome all these difficulties if we wish to become a nation
in reality. For fraternity can be a fact only when there is a nation. Without fraternity,
equality and liberty will be no deeper than coats of paint.” The truth must be told, we
have not overcome. Why else did the teacher ask that child to sit away from her
classmates?
How do we apologise to her for the insult to her dignity, the vandalism of her dreams,
and the destruction of her desire? How do we make amends? Can we, in one lifetime,
do it? This was a denial of fraternity, a violation of the basic principle of democracy.
We, the units of humanity, are interconnected and respect for each other is a sine qua
non of all human interactions. There can be no dilution or compromise on this. It is not
dependent on who the one is or who the other. This interconnectedness is fraternity —
the spirit that assures and affirms human dignity. That is why it is imperative that
fraternity informs all State actions and all social transactions. The dynamics between
equality and fraternity work like this: in the absence of substantive equality, there will
always be groups whose dignity is not acknowledged resulting in a negation of
fraternity. Of the five senses, touch is the least understood. But it is the only sense that
establishes fraternity that also establishes kinship. A bridge is built when you touch
another in kinship in a way that it is not when you look at, talk to or listen to the other.
And “a continent of persons” within India has been denied that “touch,” that kinship.
It is because we have not understood the principle of fraternity, that there is no “they”
and “us,” there is only “us.”
2010 deadline
That young girl of the broken dreams was born to parents who are manual scavengers.
This is a group to which the right to fraternity is consistently and brazenly denied, and
the most marginalised of marginalised groups. It is acknowledged in public meetings
that manual scavenging is a human rights issue and not about sanitation. We read in
the newspapers that this practice would soon be banned and that we would become
Nirmal Bharat. But it continues. Even if the winds of change are blowing, for the
condemned ones even yesterday is not soon enough, any of the yesterdays. There have
been many deadlines for eradicating this practice, one such final deadline was March
31, 2010. Deadlines have come and gone. But manual scavengers continue their work,
anaesthetising themselves with drinks and drugs from these assaults on their dignity.
Their lives are a daily negation of the right to a life with dignity though they have
court orders affirming that right.
When a teacher asks a child — like the one whom we met earlier — what her father
does for a living, what would she say? “My father carries all your filth on his head?”
She probably remains silent. If she speaks those words, her classmates would not see it
just as another job. No, it is a job that has to be done by the “other,” so “our” houses
“within” will remain clean, and “the other” after cleaning the house will go outside the
margin and remain “unclean.” She would be asked to sit away from the rest. So, she is
silent.
‘What do you know?’
I once heard at the National Judicial Academy, an excruciatingly painful experience
shared by Bezwada Wilson, who campaigns against manual scavenging. He had seen
some persons who were manual scavengers, digging in a pile of excreta.
He asked, “What are you doing?”
“The pail has got buried in the filth; we are trying to retrieve it.”
“So you will dig there with your hands?”
“If we do not get it back, we cannot do our job tomorrow, and we will not get paid.
What do you know?”
He said, “I walked and walked for a long time out in the fields and I stood there and
cried to the moon, I cried to the wind, I cried to the water, I cried and I asked why?”
In his book “ The Strange Alchemy of Law and Life, ” Justice Albie Sachs of South
Africa writes, “There are some things human beings cannot do to other human
beings.” He said it in the context of torture; it is just the same in the context of this
abomination. The Supreme Court in State of M.P. vs. Ram Krishna Balothia (1995
SCC (3) 221) rejected the attack on the provisions of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act 1989, saying that a special legislation
to check and deter crimes against them committed by non-Scheduled Castes and nonScheduled Tribes is necessary, in view of the continued violation of their rights.
S.3(1)(ii) of this Act says: “Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe —
i. .........
ii. acts with intent to cause injury, insult or annoyance to any member of a Scheduled
Caste, or a Scheduled Tribe by dumping excreta ... in his premises or neighbourhood,”
is punishable.
But the work of manually lifting and the removal of human excreta is inextricably
linked with caste and is another form of “dumping.”
Mr. Wilson writes in his Foreword to Gita Ramaswamy’s book “ India Stinking
…” (2005) that, “(A)n estimated 13,00,000 people from dalit communities continue to
be employed as manual scavengers across the length and breadth of this country — in
private homes, in community dry latrines managed by the municipality, in the public
sector such as railways and by the army.” This is why the heart of a little girl who
wanted to become a nurse was broken and she dropped out of school. There are some
things one human being does not do to another human being.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson,
Intellectual Property Appellate Board.)
Every day that the practice of manual scavenging continues is another day that
negates the right to a life of dignity for those still forced to engage in this demeaning
work
A sop that does not help
With the Aadhaar-based direct cash transfer scheme facing so many glitches in
implementation, any hopes that the country’s energy sector can soon dismount the
subsidy tiger it has been riding so dangerously have receded into the background. Had
the Aadhaar scheme worked satisfactorily, the next logical step would have been to
extend it to leaky petroleum subsidies in order to limit them only to those who need
and deserve to be subsidised.
‘Lifeline energy’
Like all subsidies, petroleum subsidies too began with good intentions but soon spun
out of control. In 2002, when the government dismantled the cost-plus administered
pricing mechanism in the petroleum sector and linked petroleum product prices to
import parity, it chose to subsidise through the budget, two products — kerosene and
LPG. The rationale was that these constituted ‘lifeline’ energy which had to be
supplied to all households irrespective of their ability to pay for it.
So far so good. But then, the oil marketing companies, at the behest of the
government, failed to make the crucial distinction between those households that
could pay the economic cost of cooking fuels and those that couldn’t. The subsidy was
extended to every domestic LPG connection. Kerosene subsidy was extended to every
ration card holder whether BPL or not.
In an unforeseen development, deregulation of petroleum product prices in India
coincided with a steady and steep increase in the global price of crude, which accounts
for almost 90 per cent of product cost. From around $23.65 for a barrel of Indian
basket crude in March 2002, prices went up to more than $115 in 2012. Consequently,
product prices had to be revised frequently to keep up with rising crude prices.
However, both LPG and kerosene were insulated from such price increases to a very
large extent. That encouraged rapid increases in LPG penetration to households as
well as subsidised kerosene allocations through ration cards. Apart from spiralling
budgetary subsidies, this has resulted in perverse outcomes not envisaged when these
subsidies were first introduced.
While LPG penetration on the records of oil marketing companies soared, all one has
to do is to just ask around to find out how many domestic maids, helpers, cleaners,
drivers and a host of other blue-collar workers who live in our cities and towns have
access to LPG connections. Most of them don’t, basically because they cannot
produce an identity proof or give residence proof without which their neighbourhood
gas agency would not even countenance their application. Many are itinerant workers
and even those that are not rarely have a lease document for their rented homes. So,
they end up procuring 5 kilo empty cylinders from the market which they fill illegally
(and dangerously) every few days from their friendly gas shop in the same
neighbourhood. And they pay at least five times the price of a subsidised LPG
cylinder.
Not only does this class, which most needs the subsidised cooking fuel, not get it,
worse, those who don’t need the subsidy — basically, the middle class — often have
more than a single LPG connection. Some of the supplies accessed by the illegal
neighbourhood gas shop may come from these middle class households with more
than one connection, who are often culpable by default.
Diversion of cooking gas
Most households can get by with a single LPG cylinder a month and they do not draw
their second subsidised entitlement of LPG, enabling the gas agency to divert it to
whomsoever it chooses, for a premium. More often than not, it is supplied to
commercial eateries and, at times, even established hotels which are supposed to get
the bigger 19 kg cylinder at commercial prices. Enterprising private car-owners
illegally convert their car engines to run on subsidised LPG meant for cooking. The oil
marketing companies came up with Auto LPG cylinders to be sold at commercial
rates, but it has been a cat and mouse game between the OMCs and the flourishing
illegal LPG market. The ensuing rents have created a chain of beneficiaries all of
whom have a stake in keeping LPG prices subsidised. They constitute a valuable votebank.
Only now oil marketing companies are waking up to the bane of multiple LPG
connections in urban households which they are trying to weed out. The attempts to
limit the number of subsidised LPG cylinders have witnessed some policy flip-flops.
Yet another perverse outcome of LPG subsidisation is the crowding out of piped gas
in cities. While LPG is subsidised, piped gas is not. Even though currently piped gas is
cheaper than even subsidised LPG, shrewd consumers foresee a steep increase in
piped cooking gas prices, especially after the collapse of domestic gas production from
KG basin. CNG prices in Delhi have more than doubled in the last three years.
Eventually, piped gas prices will also go up as more and more city gas companies are
sourcing LNG (liquefied natural gas) from international markets. Shrewd households
used to subsidised cooking fuels are actually refusing piped gas connections. Yet
piped gas is a far superior option compared to LPG. It is uninterrupted, cannot be
diverted to other consumers and is safer than LPG in cylinders. Many a city gas
distribution company has complained about lackadaisical response to their efforts to
expand pipeline connections.
Kerosene subsidy has also produced equally perverse outcomes. Unsurprisingly, ration
outlets report full drawal of subsidised kerosene quota. But only a part of it reaches the
intended beneficiaries. At Rs. 27 a litre, the price differential between subsidised
kerosene and diesel is indeed very significant, pushing the former into diesel tanks of
cars, lorries and trucks. Kerosene mixed with diesel defies easy detection. It is
estimated that half of all subsidised kerosene goes to adulterate diesel in cars and
trucks, reducing their efficiency. Unlike LPG diversion which takes place at the level
of the dealers and gas agencies, kerosene diversion is controlled by mafia-like
operations often with local political patronage. Corruption at all levels has ensured that
chemical markers that would distinguish subsidised kerosene from the rest used in
other industries get neutralised within a few weeks of their introduction.
The most egregious perverse outcome of the government’s misguided subsidy regime,
however, pertains to diesel which is not even a cooking fuel. Even though diesel prices
were linked to import parity prices from 2002 onwards, they were not revised in
tandem with global crude prices except in the initial two years, thanks to the invisible
hand of government restraining the oil marketing companies. Diesel is used in
irrigation pumpsets used by agriculture and in public transportation, especially trucks
and the railways. Frequent elections to State Assemblies, even by-polls, can make the
government jittery about raising diesel prices, as a result of which the gap between
domestic market price of diesel and its import parity price begins to widen, giving rise
to an implicit subsidy borne primarily by the oil marketing companies.
Diesel cars
Cashing in on this unexpected windfall, car manufacturers have been flooding the
Indian market with diesel-fuelled cars. Initially these addressed the urban taxicab
segments but, gradually, even luxury brands have come up with diesel-fuelled models
to entice the fuel-price sensitive consumers. In fact, one study found that 40 per cent
of the diesel used in the country is by diesel cars. Cheap diesel, primarily meant for
freight, has also led to indiscriminate increase in truck-borne traffic as opposed to railborne freight, a more economical way to transport goods. Indian highways are
perpetually clogged with truck traffic, endangering the environment as well as human
lives, not to speak of the quantum jumps in diesel consumption in recent years. In fact,
60 per cent of the diesel consumed in the country is accounted for by the
transportation sector. The share of diesel in the petroleum fuel basket rose to 43.7 per
cent in FY 2011, up from 35.19 in FY 2002. Diesel car output growth has outpaced
growth of petrol-driven private cars so much so that the diesel automobile lobby is
threatening to become a forceful voice in ensuring that diesel remains a subsidised
fuel.
That apart, the automobile manufacturers skim a substantial chunk of the subsidy by
pricing diesel cars considerably higher than their petrol counterparts. The vehicle
owner pays an upfront premium which unduly enriches the automobile manufacturer,
a very perverse outcome indeed.
If the government is serious about fuel subsidies reaching only the intended
beneficiaries, it must act fast to curb these unintended and perverse outcomes.
(The writer is an independent energy analyst and a former petroleum regulator).
Subsidies on cooking gas, kerosene and diesel have resulted in perverse outcomes
not envisaged when they were introduced
A woman-shaped gap in the Indian workforce
Women in India face enormous challenges for their participation in the economy — in
a way that mirrors the many injustices they suffer in the society at large. The labour
participation rate of women — that is, the number of women in the labour force as a
proportion of the total female population — provides an indicator of some of these
challenges. In 2008, the labour participation rate in India was only 33 per cent for
females as compared to 81 per cent for males. By way of comparison, it was 68 per
cent. Among Indian States, the female labour participation rate is one of the lowest in
Delhi, a region also known for its harsh treatment of women.
The labour force includes not only the employed but also unemployed persons who are
actively seeking jobs. In India, substantial numbers of women who are not counted in
the labour force are, as described in the official statistics, ‘attending to domestic
duties’ in their own households. National Sample Survey reports tell us that, in 200910, out of every 1,000 females (all ages) in India’s rural areas, 347 were attending to
domestic duties. In the case of urban females, this number was even bigger: 465 per
1000. Compare this to the number of rural and urban men who were attending to
domestic duties: only 5 per 1,000 and 4 per 1,000 respectively.
Why is India’s female labour participation rate so low? Part of the answer lies in the
methods employed to measure women’s work.
A woman’s work in her own household is not counted as an economic activity, and
does not get reported in the national income statistics. This is unlike the case of
services by a paid domestic help, which is considered an economic activity and is
counted in the national income. As is well known, women’s domestic duties include
childbirth, caring for the young and old, cooking, and a range of other activities that
are crucial for the upkeep of the family.
However, society undervalues these immense contributions made by women. And, to
some extent, official statistics reproduces the prejudices in the society.
In rural areas, women periodically enter and exit from agricultural work. Quite often,
women’s participation in agricultural activities as self-employed workers is to
supplement the falling incomes of their families during times of agrarian distress. This
is what seemed to have happened in India between 1999-2000 and 2004-05. During
this five-year period, the growth of agricultural incomes in the country was stagnant,
yet the number of self-employed female workers engaged in agriculture and related
activities increased by 17 million, possibly indicating ‘distress employment’.
On the other hand, between 2004-05 and 2009-10, the number of self-employed
female workers engaged in agriculture and related activities decreased by 19 million in
India.
This decline in employment could be attributed to a modest revival in the growth of
agricultural incomes and to the positive impact on rural employment and wages
created by the MGNREGA (Mahatma Gandhi National Rural Employment Guarantee
Act). Thus, it appears that in India, during the 2000s, female employment in
agriculture was not driven by any real opportunities for income generation, but was
part of a last-ditch effort to escape impoverishment.
Urban, Educated Women
In India, social factors play a significant role in reducing women’s labour
participation. Husbands and in-laws often discourage women from working, while, in
many parts of the country, restrictions are imposed even on their movements outside
the household.
In this context, it is notable that labour participation is particularly low in India among
urban, educated women — the section of the female society that is, in fact, less likely
to be constrained by social factors. In 2009-10, the proportion of those attending to
domestic duties (and therefore out of the labour force) was 57 per cent among urban
females with graduate degrees or higher, compared to just 31 per cent among rural
females with primary or middle school education.
What are the reasons for such a massive withdrawal of educated women from the
work force? Lower wages than men could be one reason. But then female-male wage
disparities exist in Japan and South Korea as well, but female labour participation has
been high in these countries.
It appears that the factor that pushes female labour participation in India to particularly
low depths is the sheer absence of suitable employment opportunities. The slow
generation of employment is, in turn, linked to a specific feature of India’s economic
transition. This is the relatively small contribution made by the manufacturing sector
to India’s GDP (gross domestic product) and employment.
Within Indian manufacturing, women’s employment is increasingly in the low-paid,
vulnerable sectors. Between 1999-2000 and 2004-05, women accounted for 3.7
million of the 9.7 million new manufacturing jobs created in the country. A large
proportion of these women were employed in the export-oriented sectors such as
garment-making.
However, by 2009-10, India’s manufacturing sector was suffering from a variety of
problems, including power shortage and a slowdown in export demand from western
countries. Between 2004-05 and 2009-10, 3.7 million manufacturing jobs were lost in
the country, and more than 80 per cent of those who lost their jobs were women.
During the post-1990 years, the major source of employment for women has been in
the services sector, mainly in low-paid services such as domestic help. At the same
time, females accounted for only a small share of the relatively high quality jobs
generated in India in recent years: for instance, only 20 per cent of the new jobs
created in financing, real estate and business services during the 2000s, and 10 per
cent of the new jobs generated in computer and related activities during the second
half of the 2000s.
Amartya Sen has written about the ‘missing women’ in India, highlighting the low
female-male ratio in the country’s population. Sen argues that this issue points to the
severe disadvantages faced by the female child in India. The issue of the missing
women in India’s population has a parallel in the problem relating to the missing
women in India’s workforce. That is, the staggering numbers of women who have
withdrawn from the labour force and attend to domestic duties.
In 2009-10, the total number of women attending to domestic duties in India was 216
million, which was larger than the entire population of Brazil. Of these, women with
graduate degrees or higher numbered 12.7 million, which was more than twice the
population of Singapore. Clearly, the large-scale withdrawal of women from the
labour force involves enormous wastage of talent and causes a huge opportunity cost
to the nation.
Creating more jobs and ensuring better working conditions for women will encourage
greater female participation in the economy.
As more women join the workforce, the voices against gender-based inequalities will
grow louder. Equally importantly, there will also be more hands and brains to take the
Indian economy forward.
(Jayan Jose Thomas teaches Economics at the Indian Institute of Technology Delhi.)
A mix of social constraints and dearth of employment opportunities has kept women
out of the labour market, leading to a huge opportunity cost to the nation
‘Cash transfers can help make India less unequal, but are not a magic bullet’
The Union Government has launched the Direct Benefits Transfer (DBT) programme
to give benefits like scholarships, pensions, NREGA wages, etc. directly to the bank or
post office accounts of beneficiaries. There are also talks of direct transfer of subsidies
for food, fertilizer and kerosene at a later stage. Will the scheme work?
Cash transfer can be a good way of helping the poor in many circumstances. Indeed,
many schemes that are not directly cash transfer schemes also work mainly through
cash transfer, such as the National Rural Employment Guarantee programme, which
certainly has helped the poor through creating jobs and generating cash income for a
great many poor people in rural India. Cash is easy to handle and can be, in many
cases, easily monitored. It cannot be sensible to be generically against cash transfer
schemes, in a country with a lot of poverty and a commitment to use public money to
make the very poor a bit less poor.
However, the Direct Benefits Transfer (DBT) programme is a particular scheme of
cash transfer, and we have to ask what it may be displacing and whether the losers will
not be plunged into more poverty. It is not the modality of cash transfer that is the only
issue, but also how much, and for whom, and also, instead of what. If, for example, it
is instead of subsidised food, we have to make sure that the people who depend on
cheaper food will have enough cash to buy the unsubsidised food.
There is also another issue — that of the distributional effects of different kinds of
benefits within the family. There is a good deal of empirical evidence to suggest that
direct access to food tends to favour children rather than only the adults, and also girls
rather than only the boys, working against biased social priorities, common in the
subcontinent, favouring adults over children, and boys over girls, which is a longstanding problem in Indian society. If the cash transfer is not additional to food
subsidies, and is given “instead of” food subsidies, it would be important to make sure
that the money given would be used for nutritional purposes and, equally importantly,
that it would be divided within the family in a way that addresses the manifest
problems of undernourishment and deprivation of young girls.
Further, even if it is made sure that cash transfers will work in a way that meets these
difficulties, there may still be a serious problem of transition, especially if there is a
time lag in opening an account in a bank, or in a post office, to receive the cash
transferred. If, meanwhile, the subsidised food disappears, the poor who fail to open
an account adequately fast, for one reason or another, will lose doubly through not
having the cash yet, and through the fact that others will have the cash to buy food
which would keep the food prices high. The transition problem need not be impossible
to handle, but attention will have to be paid to that, bearing in mind that many of the
poorer Indians lead a life of hand-to-mouth existence, and any delay in the period of
transition may plunge some people into extreme hardship. All this is in addition to the
long-run problems of the modality of cash transfer, including distributional issues, as
well as the adequacy of the amounts of cash transferred.
Cash transfer can be a very useful system to supplement other ways of making India a
less unequal society, but it is not a magic bullet, and its pros and cons have to be
assessed and scrutinised with an open mind.
The Government’s decision to allow FDI in multi-brand retail is being hotly debated
in the country. While the Congress favours it saying it would give a much-needed
boost to the economy and help farmers, the BJP and its allies are against it saying it
would badly hurt small retailers and farmers. What precautions does the government
need to take while allowing FDI in multi-brand retail?
The first thing to note is that FDI is neither an evil in itself nor a boon in every form.
The case for it depends on its actual impact, and that in turn will depend on the choice
of field, the amount of money that might come this way, and how it would influence
the priorities of economic policies in India. It is not a question of having some abstract
principle of “no FDI” — nor one of “any FDI of any kind, anywhere,” irrespective of
the impact of any particular FDI on the lives of the people involved. So the issue
absolutely is not one of having a generic attitude of being against FDI or being in
favour of FDI. It is not like favouring “motherhood” or opposing “Satanism.” I can see
many areas in which FDI has done good work — and can do more — and other areas
in which its effect may be far from beneficial.
As far as multi-brand retail is concerned, it is a difficult field, and it is a pity that the
broader issue of the attitude to FDI has taken the particular form of asking whether
one is in favour of, or against, Walmart and other large foreign retail firms becoming a
dominant part of the Indian retail distribution. This change would certainly help
marketing many types of products and would tend to be favoured by, I would expect,
farmers and others seeking a large retail outlet. On the other hand, it is very likely that
many smaller outlets, like local grocer shops will be hit adversely by the large
competition from organised — and sometimes predatory — retail giants.
When there are both arguments that are “pro” and some that are “con” about a
particular policy change, a good policymaker has to take into account both kinds of
effects and evaluate whether the overall impact benefits or harms the Indian people.
That is not an easy issue to resolve, but of course all planning and all policymaking
involve such evaluation. I don’t have a strong view in favour of some fixed conclusion
on this particular subject, but I do have a firm conviction that the subject demands
public reasoning and critical scrutiny. The issue cannot be resolved by taking a
generally “pro” or “anti” attitude about FDI in general. A really serious scrutiny is
needed rather than just saying “I am in favour of FDI in retail distribution” or “I am
against it.”
Recent months have seen widespread anti-corruption demonstrations. How should
corruption be tackled?
It is wonderful that people are taking the issue of corruption seriously. That is a very
positive achievement. The fact that people have been coming out in the streets
protesting and recognising this to be a problem is very important because along with
that can come a better understanding of how bad things are in India, and out of that
can come the search for a better identification of how corruption can be stopped or
checked. Corruption need not be an inescapable part of Indian life, and we should not
accept it on some fatalistic ground that this is the way things are in our country. If you
have to give money in order to get something to which you are really entitled, then
that certainly calls for protest and exposure of the crooks, not for any kind of quiet
acceptance.
However, street protest is one thing, and street justice is quite another. The punitive
system has to work through our judicial system. There couldn’t be someone who is
above the law, above the courts — someone whom even the Indian Supreme Court
cannot touch. It is a question of how the anti-corruption measures can be integrated
into the democratic legal structure of India.
The remedy of corruption must involve, first, making the institutions and decisional
practices such that they do not encourage — or tolerate — corruption. There is also a
need for making the practical morality of day-to-day work more responsive to the
ethical demands of social living — there is no reason why corruption should generate
less stigma and less public shame in India than in other countries where such
behaviour is far less common. Informational availability is very important to fight
corruption, and there is much greater opportunity to make use of Indian democratic
means, including the “Right to Information” to bring about the kind of change that
would be effective (rather than only satisfy the desire “to punish the guilty”). There is
a very strong case for paying much more attention to the possibilities of institutional
change and also to steps towards attitudinal reorientation. We need more than just a
system of punishment.
sandeep.joshi@thehindu.co.in
‘We should not accept corruption on some fatalistic ground that this is the way
things are in our country.’
India-Pakistan dialogue must continue
The validity of our strategic objectives towards Pakistan should not be allowed to be
distorted by any jingoistic reaction to the incident in Jammu & Kashmir on January 8,
2013, in which two Indian soldiers were killed well inside Indian territory by a
Pakistani Army group and where one of them was allegedly decapitated.
While Pakistan has denied any decapitation, it has sought to project the incident as in
retaliation for an earlier incident on January 6 in the Uri sector in which, according to
it, a Pakistani soldier was killed by a raiding Indian Army unit. This has been denied
by the Indian Army. According to it, it merely countered covering fire by Pakistani
units in the area to facilitate the infiltration of some militants into J&K across the Uri
area.
In the present state of contentious relations between the two countries, it would be
difficult to establish the real sequence of events. Each government and Army will
assert the veracity of its version.
Dialogue process
Our strategic objectives are to work for good neighbourly relations marked by normal
trade, people to people contacts, greater sporting and cultural interactions, hassle-free
travel and a confidence-building mechanism. A sustained dialogue process is
necessary to achieve these objectives.
It will be unwise and short-sighted to allow our justified anger over the incident of
January 8 to undermine the dialogue process. It will be in the interest of the people of
both countries to resist the urge to discontinue the dialogue process.
At the same time, one has to recognise that such incidents of tactical gravity will
continue to mar bilateral relations so long as there is no genuine change of mindset in
the Pakistan Army towards India. This mindset is marked by sustained hostility
towards India and a determination to annexe J&K and keep India destabilised through
the use of terrorism as a strategic weapon against India.
Having achieved a reduction of the nuclear and conventional asymmetry through the
acquisition of a nuclear and missile capability, Pakistan has built up for itself a set of
tactical options to keep India bleeding and destabilised through terrorism and other
means without triggering off a conventional and nuclear war.
The January 8 incident arose from the Pakistan Army’s confidence that India has
limited tactical options to retaliate without running the risk of starting a conventional
and nuclear war. Pakistan’s experience in helping the United States in waging a covert
warfare against the Soviet troops in Afghanistan with the help of surrogates has taught
it the importance of building for itself a mix of covert tactical options that it can use
against India.
Prime Ministers Indira Gandhi, Rajiv Gandhi and P.V. Narasimha Rao knew the
importance of a covert tactical armoury to act as a disincentive against Pakistan for
increasing the cost of its using terrorism against India and encouraging it to seek
accommodation with India.
Our subsequent Prime Ministers and our elite have had no understanding of the
importance of such an armoury to supplement our conventional and nuclear arsenal.
As a result, we are totally bereft of any tactical options for riposte against Pakistan
when it indulges in actions such as the 26/11 terrorist strikes in Mumbai or the January
8 incident in J&K. A power without suitable means of covert riposte will find itself a
paper tiger.
Pakistan’s mistaken belief that its nuclear, missile and covert capabilities have reduced
India to a paper tiger has to be removed through the acquisition of covert options.
Covert action does not mean doing to Pakistan what it has been doing to us. It means
creating strong disincentives for its hostile actions. It does not mean tit-for-tat action.
It means creating concerns and uncertainty in its mind about the consequences of its
actions.
Covert action, to be effective, has to be sustained and unpredictable and must be based
on the support of objective allies in its population. We have such objective allies in its
population. It is for us to identify them and make common cause with them.
(B. Raman is Additional Secretary (retd.), Cabinet Secretariat, Government of India.)
But New Delhi must create strong disincentives for hostile actions by Islamabad
When India had 1,500 fast track courts
While the Chief Justice of India inaugurated a Fast Track Court (FTC) at Delhi and
exhorted the High Courts to act likewise, a Bench of the Supreme Court, in Brij
Mohan Lal vs Union of India and Others, 2005 , allowed the Central and State
governments to close down over 1,500 FTCs on the ground that funds were not
available.
FTCs were started by the Central government pursuant to the observations of the First
National Judicial Pay Commission, 1999, the 120th Report of the Law Commission on
Manpower Planning in the judiciary, the report on Crime in India published by the
National Crime Records Bureau and the lamentations of every Chief Justice of India
who used the Law Day address to highlight the mounting arrears and the paucity of
funds available to the judiciary. India has about 11 judicial officers per million
population as compared to Australia’s 42 and Canada’s 75 ; the United Kingdom has
51 and the United States has 107 per million population. To deal with the current
volume of litigation and eliminate arrears, India needs to appoint five times the present
strength of judges. The Central and State governments, however, treat the judiciary as
a pariah and pretend not to understand how important this institution is for the survival
of democracy itself.
Demeaning rules
When judges were appointed to the FTCs, their service conditions were settled by the
framing of rules which were done in consultation with the High Courts of the States.
Regrettably, demeaning rules were framed treating these quite talented judicial
officers as if they were purely temporary employees with no right to be regularised in
the cadre and their services were capable of being terminated at will without notice.
By framing such rules, the State governments undermined the independence and
dignity of the judiciary. These FTCs disposed of 33 lakh cases under quite onerous
targets given to them. Relying on these unfortunate rules, the Supreme Court upheld
the sacking of over 1,500 trained judicial officers by treating their request for
regularisation in the same manner as an ad hoc government employee. Relying on the
unfortunate judgment in State of Karnataka vs Uma Devi and Others, 2006 where ad
hoc government employees who had served for decades were declared to have no
rights at all, the FTC judges found themselves age barred for recruitment elsewhere
and unable to practice under the Bar Council of India rules in any court other than the
High Courts of the States or the Supreme Court of India.
The winding up of these courts despite their fair performance and the huge arrears that
needed to be tackled was justified by the central government on the incredible
argument that the 13th Finance Commission had recommended a grant of Rs.5,000
crore for improving the justice delivery system and that out of this Rs.2500 crore was
to be spent on courts working in shifts, Lok Adalats, the Legal Services Authorities,
Alternate Disputes Resolution and the judicial academies for trainings. Thus due to the
shift in perspective, money could no longer be spent on FTCs. The Supreme Court
found this argument “strange” and said that “the state cannot be permitted to advance
an argument of financial constraints in such matters. The state cannot, in an ad hoc
manner, create new systems while simultaneously demolishing existing systems when
the latter have shown achievement of results.” After saying this, the Supreme Court
inexplicably accepted the argument of government that the court should not interfere
since the FTCs are already closed down and the Supreme Court merely requested the
Central government to “reconsider allocating some amount” for absorbing some of the
FTC judges in the regular judiciary.
Direction in two cases
This submissive surrender to the executive was contrary toS.P. Gupta vs President of
India and Others, 1981 where it was held that it was “a primary duty of the state to
provide for fair and efficient administration of justice.” The Court held that it was the
duty of the President under Article 216 of the Constitution to appoint a sufficient
number of judges and that the Courts had the power to direct the executive to do so. In
the second All India Judges’ case (1993), the Court directed the government to
implement the recommendations of the Justice Shetty Commission Report on service
conditions for judges so as to maintain the independence of the judiciary.
In the Third All India Judges Association case, the Supreme Court felt that the “time
has now come for protecting the judicial system” by directing an increase in the judges
strength from 13 per million population to 50 judges per million.
The mere fact that the FTCs have been discontinued should not deter the Chief Justice
of India from reviewing this judgment on a Constitutional Bench and directing the
Central and State governments to increase the budgets for the judiciary five times and
appoint thousands of judges and establish thousands of courts. The judiciary has for
many years taken the blame for delay in the dispensation of justice and the arrears in
the courts. The time has come for the blame to be placed correctly — at the door of the
Prime Minister of India.
(Dr. Colin Gonsalves is founder, Human Rights Law Network and Senior Advocate,
Supreme Court of India.)
Although the judiciary is blamed for the delay in dispensing justice, it is the
government that is at fault
Figuring out Afghanistan
The big question about the scheduled 2014 departure of American troops from
Afghanistan is whether the country is going to descend again, as it did after the Soviet
departure, into ferocious fighting between warlords until the Taliban emerged
supreme, or if the semblance of government that exists now can stave off such a
scenario. This is the question that Afghan President Hamid Karzai and United States
President Barack Obama will seek to answer at their meeting on Friday. The
realisation, two years ago, that defeating the Taliban was impossible triggered cautious
efforts at exploring ways to deal with them politically. As 2014 approaches, those
efforts have picked up speed, with the Obama administration keen to leave behind an
arrangement that can help it claim a semblance of political achievement from the
military intervention. Through the facilitation of a French think-tank, representatives
of the Karzai government’s High Peace Council met Taliban representatives in France
last month. The position that the Taliban representatives took at the meeting contained
no surprises. They denounced the Constitution, do not want the 2014 elections to be
held, and believe their Islamic Emirate, ousted by U.S. forces after 9/11, was the best
thing that happened to Afghanistan. There was no renouncing of ties with al-Qaeda.
With the underlying tone one of contempt towards the Karzai government, it is hard to
escape the impression that the Taliban are not so much interested in negotiation with
Kabul as a deal with the U.S. for a return to power.
Given this, the High Council’s “Peace Process Roadmap to 2015” sounds unrealistic.
It visualises a deal based on respect for the Constitution — a ceasefire with the
Taliban and other armed groups by the end of 2013, their transformation into political
parties and participation in the following year’s elections. In reality, it makes a huge
pragmatic concession to the Taliban by envisaging “non-elected” positions in the
“power structure.” This has already raised concern within and outside Afghanistan, not
least because it is no secret that Pakistan has been working both sides of the table.
Pakistan’s stakes are understandable: post-2014, any instability in Afghanistan is most
likely to first wash across the Durand Line, adding to its existing woes. But it is not
clear if it realises that any attempt to use its influence with the Taliban to create
instability in the neighbourhood after 2014 would rebound on it. Locked out of the
process after all the talk of a ‘regional’ solution, India’s primary worry would be
Pakistan’s intentions. New Delhi, which has not yet articulated an official response to
the Chantilly talks, must flag its concerns.
The rapist in the mirror
“I remember seeing a documentary about some animal being eaten from behind while
its face seemed to register disbelief, fear, and self-hate at its own impotence,” recalls
Roy Strang, the rapist at the centre of Irvine Welsh’s supremely disturbingMarabou
Stork Nightmares , of one of his victims. “That was what she reminded me of,” says
Strang, watching his victim’s eyes, “frozen,” “dead,” through the mirror he forced her
to hold up to her face as he raped her.
Last month’s gang rape in New Delhi has focussed nationwide attention on the
epidemic proportions of sexual violence against women in India. Long overdue
debates on criminal justice and gender have begun — along, predictably, with bizarre
calls for schoolgirls’ bodies to be concealed under overcoats and curfews. Yet, there
have been only the awkward beginnings of a discussion on the problem itself — men.
It is time, though, to start looking at the rapist in the mirror.
Rituals of masculinity
To anyone familiar with young men in India’s cities and towns, Strang’s world is far
from alien. For many youth worldwide, violence against women — a spectrum that
runs from gang rape to domestic violence and street sexual harassment — is part of the
system of masculinity-making rituals, along with sport, drinking and brawling. 58 per
cent of men arrested for rape in India in 2010 were aged 18-30; in the United States,
55 per cent are below the age of 30. 53.92 per cent of men held that year for
molestation or sexual harassment were also from the same age group.
This is not to suggest that a dysfunctional masculinity is the root of rape; few human
behaviours have a single cause. Yet, from the testimonies of women, we know that
this cohort of young men have made homes and streets the site of a pervasive gender
terrorism.
Rape, though, is something rapists do, not who they are. Precisely why particular
individuals find pleasure in inflicting violence on women is a question everyone from
evolutionary biologists to cultural theorists have weighed in on; there is no consensus,
and may never be. Yet, as Welsh noted, strange behaviour “always has a context.”
Five such contexts suggest themselves as possible keys to the production of India’s
urban-male dysfunction. Together, these contexts ensure young men are rarely fully
weaned; able to lead an adult life characterised by agency and individual choice. The
consequence is a deep rage that manifests itself in nihilist behaviours.
India’s transforming urban economy has, firstly, produced a mass of young,
prospectless men. The parents of these children, many first-generation migrants to
cities, worked on the land or were artisans. Though this generation’s position in the
economy may have been inequitable, its agency as workers was not. The young,
though, find themselves fighting for space in an economy that offers mainly casual
work. This casualisation has come about even as hard-pressed parents are spending
ever more on education. Even the pressures on middle-class and lower middle-class
men are enormous. Frequently coddled in son-worshipping parents, young men are
only rarely able to realise the investment and hopes vested in them.
For a second context to hyper-violent masculinity, we must look at culture.
Increasingly, cities have no recreational spaces for young men. Films, long one of the
few cultural activities that a working-class audience could participate in, now target
élites; movie theatre prices exclude large parts of the youth population. There is
diminishing access to theatre, art, music and sport. In its place, the street becomes the
stage for acting out adulthood, through substance abuse and violence.
Thirdly, a number of young men, particularly in new urban slums, are being brought
up by no-parent families — families that fathers have abandoned or are largely absent
from, and where mothers work long hours. Elsewhere in the world, too, this social
crisis has been linked to sexual violence. South African researcher Amelia Kleijn, in a
2010 study of child rapists, found most had deprived childhoods marked by “physical
and emotional abuse, as well as neglect.”
Fourth, there is a crisis of sexuality. Few men, working class or rich, have access to a
sexual culture which allows them sexual freedoms or choices. The crisis is
exacerbated by the fact that sections of urban élites participate in a sexual culture
which is relatively liberal — a culture that young men can watch on television and in
public spaces, but never hope to participate in. For some, the sexually independent
woman is thus enemy to be annihilated. In his hit song C**t, the rape-valorising rap
star Honey Singh voices his yearning to kick a woman after raping her, to drive out
the bhoot of ego from her head. Similarly, Strang sees on the streets a wash of “blonde
and auburn wigs, lipstick smeared on those deadly pincer-like insect jaws.”
Commodities
Young men of all classes, finally, see women as status-enhancing commodities —
emulating the long-standing gender privileges tradition has vested in élite men.
None of these five contexts is new. Particular stresses linked to the reordering of
India’s social fabric, though, are giving new lethality to gender inequity. In a 2008
paper, Jon Wolseth showed how neoliberalism created the conditions for a murderous
surge of youth gang violence in the Honduras during the 1980s. Economic policies, he
argued, had not just impoverished the poor; they also tore apart community networks,
diminished public spaces and closed the door to political participation. Evangelical
Christianity and the assault rifle-armed gang emerged as mode of liberation.
Elsewhere in Latin America, scholars have observed much the same.
In India, women’s bodies appear to have become the principal terrain on which male
rage is venting itself. It isn’t that young Indian men are inherently violent than they
were in the past. In 2011, according to the National Crime Records Bureau, 29,937
men between 18 and 30 were arrested for murder. Twenty years earlier, it was 38,961.
In 1991, 270,602 men of this age group were arrested for rioting; in 2011, the figure
was 72,867. Sexual violence data, though, trends the other way. 8,864 18-30 men were
arrested for rape in 1991; 16,528 in 2011. Molestation and sexual harassment arrests
from this cohort have also almost doubled, from 23,075 in 1992, the first year for
which data is available, to 32,581 in 2011.
Lacking agency isn’t, obviously, the cause of sexual violence: women aren’t
responding to their disenfranchisement by attacking men; men with power can, and
do, rape. The point here is, rather, that the large-scale disempowerment of urban men
is lending intensity to a pre-existing culture of sexual violence.
Illusion of empowerment
For many men, then, violence against women works much as drugs do for addicts: it
offers at least the illusion of empowerment where none exists, fixing feelings of rage
and impotence. This, in turn, points to a wider malaise. Marxist scholar Antonio
Gramsci noted that Fascism arose in a society “where mothers educate their infant
children by hitting them on the head with clogs.” How men behave — on the streets
with women, with other men, with animals — is taught. In our society, violence is not
an aberration; it is the tie that binds us.
In 2007, the Ministry of Women and Child Development surveyed 12,477 children to
learn of their experience of abuse. 68.99 per cent of children, over half of them boys,
reported suffering physical violence. One in 12 children, again a majority boys,
reported suffering sexual violence. It is a staggering fact: half of all Indians have
encountered abuse before they became adults.
For the overwhelming majority of Indian children, the education in violence begins in
the family. The survey found 59 per cent of the 2,245 children who did not go to
school located home as a source of violence. In institutions like orphanages, the survey
recorded levels of violence very similar to homes. More than 65 per cent of the 3,163
school children surveyed said they received beatings along with classes in maths,
science and languages. Employers of child labourers, interestingly, were significantly
less cruel than teachers; 58.7 per cent of working children said they experienced
beatings at home, at work, or both. In each of these categories, boys were
overrepresented.
Maulana Azad Medical College researcher Deepti Pagare discovered, during a survey
of boys at New Delhi’s Child Observation Home, that 76.7 per cent reported physical
abuse. Half of them actually bore clinical evidence of violence — the perpetrators, in
more than half of all cases, their own fathers.
Elsewhere in the world, figures like these would almost certainly have provoked a
national scandal — followed by demands of criminal prosecutions. Look through
Delhi’s crime statistics, though, and you will find not one father prosecuted for
everyday crimes against his son.
India needs a masculinity that does not involve violence. Moral sermons, though,
won’t cut it: respect for women can emerge only from a culture that genuinely values
rights for all.
If we are to combat sexual violence in our cities, it is time to begin discussing the
dysfunctions of young urban men
Judiciary’s assault on democracy
The judgment delivered on September 13, 2012 by Justice Swatanter Kumar, on
behalf of himself and Justice A.K. Patnaik, belongs to an impressive lineage of
Supreme Court rulings which create havoc and confusion in institutions — and even in
the conduct of examinations — of which its judges were blissfully unaware. That this
one called for a complete overhaul of the system of the Central Information
Commission (CIC) and the many States’ Information Commissions is the least of its
blemishes. What is of graver import and long-term consequence is that it is a wanton
and reckless assault on parliamentary democracy.
Intemperate comments
Proceedings for its review had to be halted because its author Justice Swatanter Kumar
retired last month and was immediately appointed Chairman of the National Green
Tribunal; but not before delivering intemperate comments during the review
proceedings.
Like almost all Supreme Court judgments, this one is rich in florid prose, disdainful of
brevity and is animated by a desire to legislate. A good copy editor would have
reduced its 107 pages to one-third. The issue before the court was simple. Section 12
(5) and (6) of the Right to Information Act, 2005 prescribe, respectively, qualifications
and disqualifications of the CIC and Information Commissioners. S. 15 (5) and (6)
replicate them for their counterparts in the States.
Briefly, the petition contended that the criteria for eligibility did not specify the
qualifications or consultation with the judiciary. They perform judicial or quasijudicial functions and should, therefore, have judicial experience. The Act must also
prescribe a mechanism for consultation with the judiciary for such appointments.
S. 12 (6) of the Act which states the disqualifications is simplicity itself. “The Chief
Information Commissioner or an Information Commissioner shall not be a Member of
Parliament or Member of the Legislature of any State or Union Territory, as the case
may be, or hold any other office of profit or connected with any political party or
carrying on any business or pursuing any profession.” How anyone can possibly object
to these bars passes comprehension.
Judge Swatanter Kumar’s objection takes one’s breath away as does his “reading
down” of its terms.
He holds it to have “an element of uncertainty” and indefiniteness. “It is difficult to
say what the person eligible under the provision should be doing and for what period.
The section does not specify any such period. Normally, the persons would fall under
one or the other unacceptable categories. To put it differently, by necessary
implication, it excludes practically all classes while not specifying as to which class of
persons is eligible to be appointed to that post. The exclusion is too vague, while
inclusion is uncertain.”
One would have thought that the exclusion of legislators, holders of office of profit,
politicians, businessmen and professionals leaves open an entire range of persons to
select from. The statute book abounds with bars such as these. The judge says that it
debars “all persons” and asks “if anyone, who is an elected representative, in
government service, or one who is holding an office of profit, carrying on any
business or profession, is ineligible in terms of Section 12 (6), then the question arises
as to what class of persons would be eligible. The Section is silent on that behalf.”
But the criteria for eligibility is set out in S. 12 (5) and disqualification is S. 12 (6).
The judge finds a way out to save S. 12 (6) from being struck down as bad in law —
by wrecking it. “We would prefer to interpret the provisions of Section 12 (6) as
applicable post-appointment rather than pre-appointment of the Chief Information
Commissioner and Information Commissioners. In other words, these disqualifications
will only come into play once a person is appointed as Chief Information
Commissioner/Information Commissioner at any level and he will cease to hold any
office or profit or carry any business or pursue any profession that he did prior to such
appointment.”
This perverse misreading of the provision subverts the entire scheme of the Act and
flouts the will of Parliament so clearly expressed. By Judge Swatanter Kumar’s logic,
it would be open to the government of the day to pack the Information Commissions,
Central and State, with legislators from the ruling party, party officials, civil servants
and others, provided only that they resigned from their jobs to fill these plum postings.
Such people do not turn Becketts. The object clearly was to exclude this category, not
include it after its purification by resignation.
The statute book abounds with such sensible bars. Parliament was justified in laying
them down. Judges Kumar and Patnaik subvert its will and do so by a reasoning which
is shockingly absurd. The strictures by Lord Chancellor Simonds on a similar excess
by Lord Demmings are apt — “a naked usurpation of the legislative function under the
disguise of interpretation.”
The ruling is no better on the provision for eligibility. S. 12 (5) says: “The Chief
Information Commissioner and Information Commissioners shall be persons of
eminence in public life with wide knowledge and experience in law, science and
technology, social service, management, journalism, mass media or administration and
governance.”
‘Uncertain tenor’
The Bench holds, however, that “the terminology used by the legislature, such as
‘mass-media’ or ‘administration and governance,’ are terms of uncertain tenor and
amplitude. It is somewhat difficult to state with exactitude as to what class of persons
would be eligible under these categories. The legislature in its wisdom has chosen not
to provide any specific qualification, but has primarily prescribed ‘wide knowledge
and experience’ in the cited subjects as the criteria for selection.”
Indeed it holds that the qualifications prescribed [S. 12 (5)] conflict with the
disqualifications in sub-section (6). To sustain their constitutionality, the bar is thus
judicially modified to apply after appointment, and the qualifications themselves are
modified — to plant judges on the Commissions. The right to do so is boldly stated:
“The Courts can also bridge the gaps that have been left by the legislature
inadvertently”.
Gaps are detected where none exist and are filled in by an improper exercise of
judicial power, in breach of the fundamentals of parliamentary democracy. Piling error
upon error, the judges themselves venture to lay down qualifications — “a basic
degree in the respective field” practice in law for 20 years and a procedure for
consultation with the Chief Justice of India and the Chief Justices of the High Courts.
Twelve directions are given. The Almighty was content with 10.
Parliament could have laid down that the CIC and the ICs be presided over by judges.
It chose consciously and wisely not to do so. What have the judges to show for
themselves as they ran Commissions of Inquiry and the Press Council? The Kudal
Commission on the Gandhi Peace Foundation, the Thakkar Commission on Indira
Gandhi’s assassination, the J.S. Verma and the M.C. Jain Commissions on different
aspects of Rajiv Gandhi’s assassination, the Ranganath Misra Commission on the
Delhi rots, the Wadhwa Commission on the Staines murders and the Lieberhan
Commission on the demolition of the Babri Masjid?
Consultation with the CJI is no safeguard. Justice R.S. Pathak, CJI, was consulted on
the appointment of judges to the Fairfax Commission. He opted for Judges M.P.
Thakkar and S. Natarajan, a safe pair of hands. How have successive judges of the
Supreme Court conducted themselves on the Press Council of India? At least six CJIs
left office in the last quarter century under a cloud.
On November 22, hearing the petition for review, “the bench” — as correspondents
timidly reported, probably for Justice Kumar — said that the CIC and ICs “are persons
who have been in the government’s good books”. However, on September 19, a day
after the Centre moved to appoint Judge Swatanter Kumar as head of the National
Green Tribunal, another Bench comprising Justices G.S. Singhvi and S.J.
Mukhopadhyay remarked that appointments to tribunals, including the NGT, had
“raised serious issues relating to integrity of judges” and that “there is a competition
among the judges to get those appointments.”
This is one aspect of the unfortunate ruling; another is its obstruction of the
democratic process. The crux of the matter is that Parliament is entitled to lay down
the criteria and the government, accountable to it, is entitled to choose persons who
meet the criteria. The courts have no business to impose their views.
Classic warning
Justice Frankfurter’s judgment in Minersville School District v. Gobitis (310 U.S. 586,
1940) is a classic warning; “Judicial review, itself a limitation on popular government,
is a fundamental part of our constitutional scheme. But to the legislature no less than
to the courts is committed the guardianship of deeply cherished liberties … Where all
the effective means of inducing political changes are left free from interference,
education in the abandonment of foolish legislation is itself a training in liberty. To
fight out the wise use of legislative authority in the forum of public opinion and before
legislative assemblies rather than to transfer such a contest to the judicial arena, serves
to vindicate the self-confidence of a free people.” That spirit is undermined by judicial
excesses.
(A.G. Noorani is an advocate, Supreme Court of India, and a leading constitutional
expert. His latest book, Article 370: A Constitutional History of Jammu and Kashmir ,
was published by Oxford University Press in 2011 )
The Supreme Court ruling on the eligibility criteria for Information Commissioners
is based on absurd reasoning and subverts the will of Parliament
Going from Zero FIRs to e-FIRs
On January 18, 2013, Delhi police chief Neeraj Kumar announced that Zero First
Information Reports (FIRs) may be registered on the basis of a woman’s statement at
any police station irrespective of jurisdiction. This means women can file an FIR at
any police station and the complaint is required to be registered on the basis of the
woman’s complaint verbatim. Mr. Kumar stated: “The woman’s statement has to be
taken as gospel truth and a probe needs to be initiated on its basis.”
Important step forward
At the same time, the Delhi police chief announced a series of other measures such as
the recruitment of 418 women sub-inspectors and 2,088 women constables,
deployment of PCR vans outside women’s colleges, the provision that women can call
100 to seek assistance to be dropped home at night by a PCR van, and 24-hour police
cover for areas around entertainment hubs with heightened security between 8 pm and
1 am. While the foregoing measures must certainly be welcomed as an important step
forward towards making the criminal justice system functional, it is surprising that egovernance has not been utilised by the Delhi police as an important solution in a
country which is considered the world’s leading provider of IT enabled solutions.
E-governance is the application of information and communication technology to
delivering government services, exchange of information and integration of various
stand-alone systems and services between the government and citizens as well as
back-office processes within the government. Through e-governance, government
services can be provided to citizens in an efficient and transparent manner, which is of
desperate need in India.
As shown by the introduction of the Zero FIR, the starting point towards improving
criminal justice is the filing of the criminal complaint itself. It is well known that the
filing of FIRs, particularly for cognisable offenses, is an extremely difficult exercise
— more so for a rape victim who has to ceaselessly recount the horrific event. Police
stations often refuse to register FIRs for cognisable complaints, and innumerable rapes
around the country go unreported. The victims then are forced to file a private
complaint in court under Section 156(3) of the Criminal Procedure Code (CrPC)
seeking an order directing the police to register an FIR. The police chief’s
announcement that the woman’s statement will be taken as the “gospel truth” is an
important first step that will hopefully enable rape victims to register an FIR.
The police have often taken the view that, under Section 154 of the CrPC, complaints
need to be investigated before the FIR is registered because the complaint could be a
disguised civil or commercial dispute or a way of settling personal enmity. Complaints
of criminal cheating and fraud are sometimes filed as a way of pressuring business
associates to settle financial disputes or for personal grudges. However, this is highly
unlikely to occur in the case of rape. In fact, there is no reason why all complaints for
at least cognisable offences should not be registered as FIRs and then investigated.
While the Supreme Court has, in various judgments, taken contradictory views on the
issue of whether the police are required to investigate a complaint before registering
an FIR under Section 154 of the CrPC, it has repeatedly expressed its deep anguish
over the failure of police to register FIRs, particularly in rape cases. Hopefully, the
police will now register an FIR based on the woman’s statement as per the recently
announced measures. However, the mandatory and automatic registration of FIRs can
be ensured only through e-governance, that is, by providing for online registration of
FIRs by citizens.
Tracking network
The online registration of FIRs was supposed to be implemented by 2013. On March
21, 2012, the then Union Home Minister, P. Chidambaram, stated in the Rajya Sabha
that online registration of FIRs would be possible once the server and network
connectivity was established by the end of 2012 or early 2013. However, the online
filing of FIRs will be made possible only upon the implementation of the Crime and
Criminal Tracking Network and Systems (CCTNS), an ambitious Rs. 2,000 crore
project of the Home Ministry, aimed at increasing the efficiency and effectiveness of
policing through e-governance by creating a state-of-the-art IT-enabled crime tracking
system for investigation of crime and detection of criminals.
Under CCTNS, 14,000 police stations will be automated as well as 6,000 offices of
higher police officials. The CCTNS is a platform for sharing real time information by
law-enforcement agencies, which will improve identification of criminals and crime
investigation. Funds in the amount of Rs. 418 crore have reportedly been released to
the States/Union Territories and Rs. 4.54 lakh people have been trained. The CCTNS
project was supposed to be completed in March 31, 2012. However, in June 2012, the
Cabinet Committee on Economic Affairs (CCEA) extended the deadline to March
2015.
In November 2012, the Home Ministry began monitoring the status of the CCTNS
project on a weekly basis and appointed 20 Joint Secretaries to monitor the progress of
the project and ensure completion by March 2015. The delay in project
implementation was reportedly due to the non-availability of common application
software (CAS) and infrastructure problems. Since law and order is a State issue,
issues of coordination between the States also contributed to the delay. However, it is
unclear why the Indian government needs to implement a Rs.2,000 crore project
before enabling online filing of FIRs. In view of the great national imperative in
creating deterrence against rape, websites and e-filing mechanisms should be
immediately created to permit e-filing of FIRs at least in rape cases.
The online filing of annual accounts and other documents was successfully
implemented several years ago by the Ministry of Company Affairs. Various State
governments have also provided for online filing of police complaints and online
payment of traffic challans. The Himachal Pradesh Police have introduced an
interactive portal called “Kanoon Vyavastha,” the first of its kind in the country, by
which a police complaint can be filed online or by SMS. As per a report in
the Financial Express , of 1,821 SMSs received, 22 FIRs were registered without the
complainant having to visit the police station. Of these 22 FIRs, reportedly only one
was related to a rape case. After the launch of SMS service in May 2010, 4,392 SMSs
were received, of which 82 FIRs were registered. The complainant can check the
status of the FIR online and post comments. The web portal is used for daily crime
reporting, providing details of missing persons and vehicles and road accidents.
Jalandhar reportedly has an online crime tip page where people can anonymously
inform the police of a crime that has been committed. Similarly, Maharashtra has an ecomplaint system for reporting minor crimes, that is, non-cognisable offences.
Simultaneously, with the introduction of Zero FIRs, online filing of FIRs at least in
rape cases should immediately be implemented irrespective of the status of the
CCTNS project. The introduction of e-FIRs will be an important signal to all criminals
that rape will not go unpunished.
( Aparna Viswanathan is author of Cyber Law:
Perspectives (Lexis Nexis Butterworths Wadhwa 2012))
Indian
and
International
The government must allow the online filing of first information reports in rape
cases as that alone will ensure mandatory and automatic registration of complaints
Without integration, no lasting settlement
Last month, Manipur was on fire once again. This round was triggered by the
accusation that Colonel Livingston of the NSCN (I-M) had molested Meitei actor Ms
Momoko on December 18, 2012. Protests turned violent when the State government
claimed he was beyond their reach, inside a “peace camp” protected by the Indo-Naga
ceasefire agreement with the NSCN I-M (National Socialist Council of Nagaland IsakMuivah) group. Compounding the problem, NSCN justified the incident — Momoko
had “abused the Nagas.” Nagas in Imphal and those travelling back to their villages in
the hills for Christmas were attacked by Manipuri insurgent groups. Two Naga men
were killed in Kongkan village, Ukhrul district. The Nagas declared a 72-hour
“bandh” in the hills. It showed that all it required was a spark to ignite the tinderbox of
Manipur where the dominant Meteis and minority “southern” Naga coexist in uneasy
tension. A peace agreement that leaves out justice for the Nagas outside Nagaland is
destined to join the dust heap of faltering peace accords.
At the core
The issue of integration of Naga inhabited areas lies at the core of the ongoing
negotiations. It is an old demand and figures in the succession of peace agreements to
resolve the Naga conflict — the Akbar Hydari Agreement 1947, the Sixteen Point
Agreement 1960 establishing Nagaland state and the Shillong Accord 1975 which
precipitated the emergence of the NSCN. Subsequently, the Nagaland Legislative
Assembly in several resolutions called for unification of all Naga inhabited areas
under one administrative unit.
New Delhi rejects the demand. Political and partisan reasons dictated by the
compulsions of coalition politics constrain the government. Apparently, some
negotiators believe the NSCM (I-M) can be persuaded to abandon integration. In their
assessment, only the Manipuri Nagas are pushing for integration. They see Naga
society as still divided on tribal and communal lines and the anti-Tangkul agitation of
2008 as evidence of a persisting divide. In particular, intelligence agencies argue that
apart from historic tribal hostility, the Angami, Sema, Ao and Jakasang Nagas who
dominate Nagaland State fear they would lose jobs to Tangkul (Manipur) Nagas in an
integrated Nagalim.
To bank on this old divide ignores new parallel ongoing processes of reconciliation
initiated by Naga civil society bodies, especially the Forum for Naga Reconciliation
formed at the height of the anti-Tangkul agitation for communal amity. The Naga
Peace Convention, in 2008 paved the way for bringing together panoply of Naga
traditional and social organisations and engaged the underground groups in a series of
dialogues for reconciliation towards building a common front. Similarly, in Manipur,
the southern Nagas initiated a tripartite dialogue with the State and Central
governments on an interim “Alternative Arrangement” for a state within a state. The
inspiration and organisational zeal for such initiatives come from a proximate group of
middle class educated professionals active in human rights, student, environmental
and gender rights groupings.
The NSCN (I-M) is aware that it cannot afford to make a compromise on the demand
for integration. New Delhi is also aware of this position. Instead of an “integration” of
all Naga inhabited areas, the compromise on offer is a “supra state body.” According
to the Guwahati-based The Seven Sisters Post, in November 2011, the government
was willing to create an overarching body to oversee the cultural, traditional and other
aspects of Naga life inside Manipur, Arunachal Pradesh and Assam. It was
vehemently opposed by the political parties and sections of the people of Assam,
Arunachal Pradesh and Manipur. The Prime Minister and the Union Home Minister
denied it; so did the NSCN (I-M). But the newspaper corroborated the story as based
on the “status report” submitted by the government’s interlocutor, Mr. R.S. Pandey, to
the Prime Minister. Such confusing reports have fuelled fears that the NSCN (I-M) has
surrendered several key demands of the Nagas including that of integration.
At the last round of talks in November 2012, the joint statement spoke of an
“honourable solution” based on recognition of “contemporary realities and a future
vision consistent with the imperatives of the 21st century.” Evidently, “contemporary
realities” refers to the violence that broke out in Manipur in opposition to the
extension of the ceasefire to its hill districts and Imphal’s continuing rejection of
integration. The Nagas see this as an attempt to pressure the NSCN (I-M) to acquiesce
to a halfway house, the contours of which are yet to be clarified.
Where the dialogue is going
Analysts argue that the relative peace and prosperity created by the prolonged
ceasefire has brought the Nagas closer to the mainstream of Indian society. The
burgeoning migration of Naga youth to Indian cities for higher education and
employment has deepened social interaction and economic relations. It has expanded
the base of Naga middle classes who are breaking out of traditional social and cultural
mores. In a significant development, Naga civil society, which was as divided as the
underground groups, has joined hands and formed civic bodies that cut across tribal,
community and denominational divides. This has provided a forum to the various
underground groups to work together for an “honourable” solution.
The time has come for reassessment of the negotiation process. One cannot emphasise
more the need for a larger political vision. It is important to recognise that the focus on
the demand for integration marks a vital shift from the earlier position of “no
compromise on independence.”
Already, at the outset, the NSCN (I-M) had agreed to keep the issues of Nagas in
Myanmar and right to self determination “outside” the ambit of the discussions. It
reflected willingness to seek an “honourable solution that recognised the uniqueness of
Naga history” within the larger Indian polity.
In Manipur, New Delhi is engaged in counterinsurgency operations against
underground Meitei groups waging an armed struggle for independence. A division of
the former “Manipur Raj” is anathema for Meitei armed groups and a section of
Meitei elite. While the Meitei groups are still locked in hostile competition for
supremacy, Naga armed groups are talking to each other. The internal process of
reconciliation initiated by Naga civil society indicates a general acceptance of the
terms on which the NSCN (I-M) is negotiating with New Delhi. Integration is high on
the agenda. If the NSCN (I-M) fails to deliver, a return to the dangerous days cannot
be ruled out. New Delhi needs to take note of Nagaland’s Chief Minister Neiphiu
Rio’s warning — “We are hoping that good sense will prevail and lead to early
settlement. If the government of India fails to reach a settlement, it will be a lost
opportunity.”
(Tapan Kumar Bose is associated with the South Asia Forum for Human Rights)
If NSCN (I-M) and New Delhi fail to deliver on the most important Naga demand,
the region may see a return to conflict
Diluting GAAR
In postponing the General Anti-Avoidance Rules (GAAR) of taxation to April 2016
and reducing its rigour, the United Progressive Alliance government has accepted
most of the Parthasarathi Shome Committee’s recommendations. Since GAAR has
been incorporated in the Finance Act 2012, its deferment can be formalised only
during the forthcoming budget. To justify the postponement, the Committee had cited,
among other reasons, the need to train tax officials in the finer aspects of international
taxation. Days after the government’s announcement, the stock markets that have, of
late, been driven by foreign institutional investors (FII) reached new highs. The
GAAR decision, coming just weeks before the Union budget, ought to be seen as one
of the many signals the government has been sending to revive the ‘animal spirits’ of
foreign investors, domestic entrepreneurs and rentiers, in this case specifically to
assure them of the continuance of a less onerous tax regime. Some of its other
decisions, such as the hike in railway fares before the railway budget and the
permission to public sector oil marketing companies to hike diesel prices in a graded
manner, are meant to reinforce the perception of a government not loath to take tough,
unpopular decisions. Yet the important takeaway from the modified GAAR is that it is
meant to please the FIIs and portfolio managers even if, in the process, sound
principles of public finance are diluted.
A significant change is to have a multi-member panel comprising just one senior tax
official to determine the applicability of GAAR to specific transactions. The
expectation is that the inclusion of a judicial and an academic member will ease
concerns over possible high-handed behaviour by the tax authorities in their desire to
maximise tax revenue. However, only the tax official in the GAAR panel will be
accountable to the income tax department and the government. In another important
clarification, it has been decided that GAAR will cover only those transactions whose
main purpose — as opposed to one of the main purposes — is to get a tax benefit. As
a result of this change, the onus of proof on the tax authorities rises exponentially. The
status of double taxation avoidance agreements in a post-GAAR regime is still a
matter of conjecture. Perhaps the most controversial decision is to exclude offshore
derivative instruments, the so-called participatory notes or PN, from GAAR. This is a
retreat from the government’s stated position of wanting to know the identity of PN
holders, and is a serious setback to anti-money laundering efforts. Once again, as so
often in recent times, the government has opted for short-term expediency to support
the external sector.