VOLUME 34

IN T E R V I EW

NUMBER 11

MAY 27-JUNE 09, 2017

ISSN 0970-1710

WWW.FRONTLINE.IN

C O VE R S TOR Y

Justice without fairness

Jammu & Kashmir Chief Minister Mehbooba Mufti Cracks in the alliance?

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S O C IA L I S S U E S

The Supreme Court’s order convicting and sentencing Justice C.S. Karnan raises serious questions about the court’s commitment not only to natural justice but also to freedom of expression. 4

OB IT UARY Leila Seth: A class apart

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ES SA Y Kashmir: The roots of 2017

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CO NT ROVER SY Rajasthan: Demonising Akbar

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LI TE RATUR E Satyajit Ray’s Feluda at 50

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PH AR MACEU TI CAL S On prescribing generic drugs 112 SP OR T U.P.: Dalits under attack in Saharanpur F E D E R A L IS M Puducherry: Lt Governor vs Chief Minister Interviews: V. Narayanasamy Kiran Bedi W O R L D A F FA I R S South Korea: Moon Jae-in’s victory Palestinian prisoners in Israel protest France: Beyond Macron’s victory U.S.’ Afghan war

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46 46 48

SCIENCE Memories of a Bangalore quartet

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TH E N IR BHAYA CAS E The death penalty debate 121 R E LA TED ST OR IES 54 58 61 64

T R A VE L

The sound of silence in New Zealand

Getting a kick out of football in Aizawl

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Interviews: Mathews J. Nedumpara 8 Justice Abhay Thipsay 12 Arghya Sengupta 16 Raju Ramachandran 20 Prashant Bhushan 23 D. Raja, CPI 26 Guided by passion 11 Gag on media 15 Sword of criminal contempt 19 Justice Karnan’s controversial career 25 Another first in judicial history 28 Dalits divided on support 30 L’affaire Justice C.V. Nagarjuna Reddy: Stalled impeachment 32

ED UC ATION Tamil Nadu: Debate over NEET Not so neat CO LU MN Jayati Ghosh: OBOR: One grand design DA TA CA RD BO OK S LE TT ERS

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51 124 83 130

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JUNE 9, 2017 .

FRONTLINE

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COVER STORY

MONICA TIWARI

JUSTICE WITHOUT

ON THE PR EMISES of the Supreme Court of India in New Delhi. FRONTLINE . JUNE 9, 2017

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FAIRNESS The Supreme Court’s order convicting and sentencing Justice C.S. Karnan raises serious questions about the court’s commitment not only to natural justice but also to freedom of expression. BY V . V E N K A T E S A N

AF P

TRUTH IS STRANGER THAN FICTION. WHAT actually happens is sometimes more bizarre than anything that could be imagined. Until May 9, no one could have imagined that a High Court judge in India could be held guilty of contempt of the Supreme Court and sentenced to six months’ imprisonment. Until May 18, when this issue went to press, no one could have imagined that a High Court judge, after being held guilty and sentenced to imprisonment by the apex court, could be on the run, evading the process of law or that the Supreme Court’s direction to the police to execute its order to imprison a sitting High Court judge would remain unimplemented beyond a week because the judge was untraceable. As the Justice C.S. Karnan saga becomes more and more bizarre, the initial derision that greeted Justice Karnan, a sitting judge of the Calcutta High Court, when he took on the Supreme Court after it initiated contempt of court proceedings against him soon turned into scepticism about the very powers of the Supreme Court to punish him for contempt in the manner it chose to. The Supreme Court took suo motu cognisance of a letter written by Justice Karnan on January 23 to the Prime Minister seeking an investigation into allegations of corruption by certain judges of the Madras High Court. On February 8, a seven-judge bench of the Supreme Court comprising the first seven senior-most judges issued notice to Justice Karnan and directed him to refrain from handling any judicial and administrative work as may have been assigned to him in furtherance of the office held by him. He was also directed to return all judicial and administrative files in his possession to the Registrar General of the High Court immediately. The bench comprised the Chief Justice of India, Jagdish Singh Khehar, and Justices Dipak Misra, J. Chelameswar, Ranjan Gogoi, Madan B. Lokur, Pinaki Chandra Ghose and Kurian Joseph. Justice Ghose retires on May 27. On February 13, when the bench heard the case against Justice Karnan again, it took note of his absence, despite notice, and his communication to the Registry of the Supreme Court. The bench also took note of the fact that Justice Karnan had not authorised anyone to

JU STICE C. S. KAR NA N in Kolkata on May 4.

represent him as counsel in this case. Unaware of the reasons for his absence, the bench chose to grant him another opportunity and adjourned the case to March 10. The bench made it clear on February 13 that since contempt proceedings were a matter strictly between the court and the alleged contemner, anyone who entered an appearance and disrupted the proceedings of the case could be proceeded against in consonance with law. “No one should appear in this matter, without due consent and authorisation [of Justice Karnan]”, the Supreme Court further said. On March 10, the bench again took note of Justice Karnan’s failure to appear before it despite the notice of 5

FRONTLINE . JUNE 9, 2017

the suo motu petition having been served on him. Meanwhile, Justice Karnan had sent a fax message to the Registry of the Supreme Court on March 8 seeking a meeting with the Chief Justice and the other judges of the Supreme Court in order to discuss certain administrative issues expressed therein. The bench noted that the fax message reflected the allegations of Justice Karnan against certain named judges. “The above fax message, dated 08.03.2017, cannot be considered as a response of Shri Justice C.S. Karnan either to the contempt petition or to the notice served upon him,” the bench held in its order. The bench thus found no alternative but to seek his presence in the Supreme Court on March 31 by issuing a bailable warrant through the Director General of Police, West Bengal. On March 31, Justice Karnan appeared before the Supreme Court bench as directed by it. The bench repeatedly asked him whether he affirmed the contents of the letters written by him as were available on the record of the case. He was also asked whether he would like to withdraw the allegations. The bench asked this question on the basis of his letter dated March 25, which he personally handed over to the bench on March 31. The bench observed: “He has not responded, in any affirmative manner, one way or the other. We would, therefore, proceed with the matter only after receipt of his written response. Shri Justice C.S. Karnan is hereby called upon to respond to the factual position indicated in the various letters addressed by him to this court within four weeks from today.” The bench declined to permit him to discharge judicial and administrative duties, as he requested, and directed him to appear in person on the next date of hearing. Meanwhile, Justice Karnan complied with the previous direction of the Supreme Court to vacate the official bungalow allotted to him at Chennai (when he was a judge of the Madras High Court before his transfer to the Calcutta High Court) and hand over its vacant possession to the Registrar of the High Court. On May 1, the Supreme Court’s seven-judge bench noted that Justice Karnan had been expressing further disrespect to the Supreme Court and making press statements with abject impunity. The bench took note with seriousness Justice Karnan’s orders (purported to be judicial) against the seven members of the bench and another judge of the Supreme Court. Therefore, it directed all Courts, Tribunals, Commissions or Authorities not to take cognisance of any orders passed by him after February 8, when the Supreme Court initiated contempt proceedings against him. On May 1, the Supreme Court doubted Justice Karnan’s mental fitness to defend himself in the contempt proceedings in view of the tenor of his press briefings and the “judicial orders” passed by him. Therefore, it ordered the Director of the Health Services, Government of West Bengal, to constitute a board of doctors from the Pavlov Government Hospital, Kolkata, FRONTLINE . JUNE 9, 2017

to examine him on May 4 and submit a report to the court whether he was in a condition fit enough to defend himself. The Director General of Police, West Bengal, was directed to constitute a team of police personnel to assist the medical board to comply with its order. SERIOUS MISGIVINGS

The order led to serious misgivings whether the court had the power to force anyone to undergo a medical test on the assumption that he might suffer from mental illness. Justice Karnan received the medical board with respect, but refused to undergo any test claiming that he did not suffer from any mental illness. The doctors, who rightly refrained from forcing a test on him, could not comply with the Supreme Court’s directions. Ironically, on May 1, the bench also allowed Justice Karnan, “if he is so advised”, to furnish his response to the notice issued to him in the meantime and that if he did not choose to file a response on or before May 8, it would be presumed that he had nothing to say on the matter. It appeared as though the bench was preparing to convict and sentence him on May 1 itself by opening this window despite expressing its doubts about Justice Karnan’s fitness to defend himself in the proceedings. The bench heard Attorney General Mukul Rohatgi, who was of the view that Justice Karnan must be dealt with sternly in order to send a message that the Supreme Court would not distinguish between a judge and a nonjudge while exercising its contempt power. On the other hand, senior advocate K.K. Venugopal, counsel for the Registrar of the Madras High Court in a related case in which Justice Karnan is a respondent, suggested to the bench that it need not proceed further in the matter in view of his superannuation on June 12. Eventually, the bench adopted the course suggested by Rohatgi. On May 9, the last working day of the Supreme Court, the bench apparently felt that time was running out for both Justice Karnan and for itself and that it had exhausted all the available options to it before it could convict and sentence him for the offence of contempt of court. The bench noted: “On merits, we are of the considered view that Sri Justice C.S. Karnan has committed contempt of the judiciary. His actions constitute contempt of this court and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemner shall not perform any administrative or judicial functions. Detailed order to follow. The sentence of six months imposed by this court on Sri Justice C.S. Karnan shall be executed forthwith by the Director General of Police, West Bengal, or through a team constituted by him.” GAG ON THE MEDIA

While dictating the order, the Chief Justice of India, Justice J.S. Khehar, added the following, as an 6

R. V. MO OR THY

procedural fairness meant that the Supreme Court was blamed for being unfair to Justice Karnan only because he happened to be a judge and, therefore, depriving him of the legal safeguards that are available to a common citizen. One such legal safeguard is the rule that nobody can be convicted or sentenced without a reasoned judgment. On May 9, the bench observed in its order that the details would follow later. The bench apparently thought that because some of the judges on the bench would not be available during the summer vacation, it would not be prudent to wait until the reopening of the Supreme Court after the vacation, as in the meantime Justice Karnan would have retired. In any case, the bench may have to be reconstituted because of the impending retirement of Justice Ghose on May 27, and the matter is still pending for final disposal. It is not that a judge cannot be punished for contempt of court after his retirement. But the bench’s unstated objective was to send Justice Karnan to jail while he continued to be in office as a judge in order to demonstrate that it applied its contempt powers irrespective of whether a person happened to be a judge or a non-judge (see interview with advocate Raju Ramachandran on page 20). The second principle that the bench sacrificed in its obsession with punishing a judge while in office was not to pronounce the convicting and sentencing orders on the same day. All courts are expected to separate these two and deliver them on two different days in order to grant an opportunity to hear the convict separately on sentencing. It is meant to protect the sentencing bench from any unconscious bias which might result after finding a person guilty of an offence, leading to disproportionate punishment. The gap of a few days between the conviction and the sentencing is considered essential for the bench to apply its cool mind to the mitigating factors, which may be advanced by the convict who may require some time for such reflection and the making of a plea. In the case of Justice Karnan, the doors for his apology ought not to have closed under the law on May 9 when the bench found him guilty. The Contempt of Courts Act permits a convict to offer apology and thereby seek mitigation of the sentence. The court could not have assumed that he might not offer apology or regret his actions if it pronounced the order of conviction first and sentence later. This is a serious infirmity.

J U S T I CE J . S . K H E H AR , the Chief Justice of India.

afterthought, which was seemingly prompted by a lawyer: “Since the incident of contempt includes public statements and publication of orders made by the contemner, which were highlighted by the electronic and print media, we are of the view that no further statements made by him should be published hereafter. Ordered accordingly.” The gag on the media came out of nowhere, as it was proposed neither by the Attorney General, whose assistance the bench specifically sought, nor by the bench. The suggestion did not come from Venugopal or senior advocate and president of the Supreme Court Bar Association, Rupinder Singh Suri, who was allowed to intervene in the matter. Gaurav Bhatia, honorary secretary of the Supreme Court Bar Association, told Frontline: “We did seek stern action against Justice Karnan because he lowered the dignity of the institution by his derogatory statements. But we did not propose the gag on the media. The judges had it in their minds”. The prior restraint imposed on the media on reporting Justice Karnan’s statements smacked of an urge to violate the solemn guarantee in the Constitution to ensure freedom of expression for trivial reasons. It is well-settled that the constitutional guarantee of freedom of expression, which includes freedom of the media, can be restricted only on certain reasonable grounds as specified under Article 19(2) of the Constitution. Although contempt of court is one of those grounds, the media was not accused as a contemner before the bench in the Justice Karnan matter. Propriety and the principle of natural justice demanded that the media should have been issued notice and heard before the Supreme Court passed its restraint order on May 9. In its eagerness to punish Justice Karnan while he was in office and set an example to others within the judiciary and outside, the Supreme Court bench sacrificed procedural fairness, which it was keen to observe in ordinary cases. The compromise on

PROCEDURAL SAFEGUARDS

On the same day, another bench of the Supreme Court, of Justices Adarsh Kumar Goel and Uday Umesh Lalit, found business tycoon Vijay Mallya guilty of contempt of court because he transferred $40 million to his three children in contempt of the orders passed by the Karnataka High Court and sought to subvert the course of justice by shielding them from ongoing recovery proceedings by such transfer of funds. Earlier, the Supreme Court had asked Mallya to make a complete 7

FRONTLINE . JUNE 9, 2017

‘They are usurping the power of removal of judges’ Interview with Mathews J. Nedumpara, counsel for Justice C.S. Karnan in the Supreme Court. B Y V . V E N K A T E S A N

Why do you think the Supreme Court invoking its powers to punish Justice Karnan for contempt was flawed? There is no jurisdiction. There is a method of removal of a judge for proved misconduct under the Judges Inquiry Act. The net effect [of the contempt proceedings] is that what you cannot do directly you are doing indirectly. Under the Constitution, judges are not the appointing authority. They are mere appointees. The President is the appointing authority. They [the Supreme Court] usurped the power of appointment [through the Second Judges case in 1992]. Now they are usurping the power of removal. The answer to this criticism is that the Contempt of Court Act does not distinguish between a judge and a non-judge. In theory, it does not make a distinction. This is the FRONTLINE . JUNE 9, 2017

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first time it has been invoked against a judge. If it makes a distinction, it is liable to be struck down. It should apply to everybody. But the Act is meant to be invoked against somebody who actually interferes in the administration of the judiciary. If Justice Karnan’s allegations against other judges are true, then the judges who were accused of corruption are guilty of contempt. The purpose [of the Contempt of Court Act] is to make courts function, not to protect individual judges. Karnan’s attack is on the individual judges, not the court. This Act has been used to discipline a High Court judge. The Supreme Court is not the disciplinary authority of High Court judges. The disciplinary authority is Parliament. Where do we get the proposition that every power is in the Supreme Court? They are legislating. BY SP EC IA L A R RA NG EM ENT

LABELLED a maverick by a section of the media owing to his penchant for calling a spade a spade, Mathews James Nedumpara, son of Joseph Nedumpara, a schoolteacher who retired as Headmaster, has travelled a long way from Pala, his hometown in Kerala, to make his presence felt not only in the Supreme Court but in all courts in the country. He has behind him 33 years of legal practice. Nedumpara, or MJN to friends, runs Campaign for Home for All, which seeks to address the housing needs of the poor and the downtrodden labour class in Mumbai. Besides, he is the president of the National Lawyers Campaign for Judicial Transparency and Reforms (NLCJTR), a movement of 7,000 lawyers and laymen seeking judicial accountability. He was in favour of the National Judicial Appointments Commission (NJAC) that the Supreme Court struck down in 2015. He claims that Justice Karnan has been illegally prosecuted and sentenced to imprisonment. Excerpts from an interview he gave Frontline:

What should the Supreme Court have done? There is a Parliament and an Executive government. If Justice Karnan has exceeded the limits, there is an active Bar also. Public opinion is there. They would have come forward. The Supreme Court has no business to peep into it at all. The court should get rid of the current perception which it carries that it is the answer to every deficiency in the Executive government, every malaise. There is an erroneous assumption that democracy is dependent on the judiciary alone. That concept has to go. Then we become a judgocracy. Our campaign is against the Contempt of Court Act. We seek its abolition. It is used only in India, Pakistan and Bangladesh. The judiciary is like other departments of the state and ought to be subjected to public scrutiny. The judiciary should command respect. During the hearing of the case, you wanted to represent Justice Karnan but did not have the vakalatnama signed by him. The bench, therefore, did

not allow you to defend him. How did you get Justice Karnan’s consent after the Supreme Court sentenced him to six months’ imprisonment? I had every authority. I required time to receive the vakalatnama. Meanwhile, I can have the watching brief, the vakalatnama can be filed later. In criminal matters, I can have just a memo of appearance, I don’t need a vakalatnama. I should have got the time to say all these. Before I could reply, I was asked to sit down by the Chief Justice. So what would I do? In your view, was Justice Karnan an undeserving Judge who was erroneously appointed under the collegium system? He has suffered enormous discrimination. Prudence demands that he should have been silent. He wanted to give vent to his hurt feelings. He should have suffered in silence and let others speak on his behalf. Justice Karnan was not very practical. That is where he failed. All his sentencing orders against Supreme Court judges are perceived as disproportionate responses to the contempt proceedings against him. I agree with you. He says he did it because he felt that the Supreme Court did not have the power. According to him, Supreme Court judges were abusing their power to punish for contempt. High Court judges and Supreme Court judges are equal; the only difference is that the Supreme Court is the court of appeal. Justice Karnan is saying, “If they abuse the power, I also I have the same power. I can retaliate.” When you do that, it turns public opinion against you. Any person in public life must have two eyes. One is [to see] what I do is right or wrong. Second [is to see] whether what I do is right or wrong in the public perception. His response is that they are abusing. If I am abusing, are they not doing the same? It is more of a retaliation. But has Justice Karnan not exhausted his legal remedies in the contempt matter? Our petitions have not yet been decided. No criminal can be convicted without a judgment. It is a fundamental [need of] jurisprudence. Only after the judgment you pass the sentence. Would that vitiate the Supreme Court’s order convicting and sentencing him? Absolutely. It has never happened in judiciary. What are the remedies that you intend to pursue further? We will pursue the Article 32 petition. Every problem ought to have a solution. The excuse that the same bench of seven Judges should hear, etc., is not an inviol-

“No criminal can be convicted without a judgment. It is a fundamental [need of] jurisprudence.” able law. My petitions have to be discussed and argued. Access to justice is my right. Even if the sentencing is wrong, should not Justice Karnan surrender? I am entitled to protect my freedom. All legal remedies are open to me. The Chief Justice of India says he cannot constitute the same seven-judge bench before the vacation ends. He says, “We have taken a conscious decision.” But that does not mean that is the end of it. Tomorrow, another bench may review, revise the decision. Certain legal infirmities are there, which are so manifest and have to be remedied. We are not evading. We have been mentioning, trying to bring it up. But why is Justice Karnan hiding? Is he liable to declare to the whole world where he is in Chennai? I have informed the West Bengal Director General of Police that Justice Karnan is not attempting to evade arrest, and his intention is to challenge the validity of the Contempt of Court Act, 1971, under Article 32 of the Constitution as well as place an application for recall of the Supreme Court’s orders against him. Is Justice Karnan prepared to apologise to the Supreme Court? Is that what you told the court? Legally, no one can be compelled to apologise. I told the court that I could persuade my client, as a matter of reconciliation, to offer regrets without compromising his rights and legal contentions. To err is human. Reconciliation has a soothing effect. It was as part of court craft that I told the court that the honourable judge had erred. It was more like an informal statement. But now the apology chapter is closed. Secondly, my contention is that the opportunity to apologise under the proviso to Section 12 of the Contempt of Court Act was not given to Justice Karnan. On the same day that Justice Karnan was found guilty of contempt of court and sentenced to six months imprisonment, another two-judge bench of the Supreme Court found the business tycoon Vijay Mallya guilty of contempt of court and adjourned the matter to July 10 for hearing him in person on the proposed punishment. 9

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disclosure of his assets in the case filed against his company by the banks which alleged defrauding on loans sanctioned to him. Mallya did not disclose the details of the bank account held in Edmond De Rothschild Bank in Switzerland through which he transmitted funds to his children. Unlike Justice Karnan, Mallya did not appear before the Supreme Court in the contempt proceedings even once. Again, unlike Justice Karnan, Mallya did not file any reply to the contempt petition. But the court found him entitled to procedural fairness, precisely because of these two grounds, and said it deemed it necessary to give him one more opportunity and also hear him on the proposed punishment. The court thus adjourned the matter to July 10 for hearing Mallya in person on the proposed punishment to be awarded to him for contempt of court. Mallya was specifically asked to keep his affidavit ready to be tendered on the same day by stating mitigating circumstances, if any, and any other submissions he chose to advance. The court directed the Ministry of Home Affairs, Government of India, to secure and ensure the presence of Mallya before the Supreme Court on July 10, knowing fully well that he was a fugitive in the United Kingdom and was unlikely to return on his own.

rebuffed by the CJI with a stern warning. With the judiciary closing its doors on him, Justice Karnan’s only hope appears to be the President's power under Article 72 of the Constitution to suspend his sentence. Under Article 72 (1) (b), the President has the power to suspend the sentence of any person convicted of any offence in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends. Justice Karnan’s contention is that the Supreme Court’s sentence overrides the power of the President to remove him after an address by Parliament has been presented to him in the manner required by Article 124(4) of the Constitution. INDICTMENT OF THE COLLEGIUM SYSTEM

Whatever the denouement in Justice Karnan’s saga, it is also an indictment, implicitly, of the collegium system of appointing judges begun by the Supreme Court in the Second Judges case in 1992. The Supreme Court revived the collegium system in 2015 after it struck down the National Judicial Appointments Commission (NJAC) Act, 2014, which briefly eclipsed it. Justice Karnan was first recommended for appointment as a judge by the Madras High Court’s collegium, which was later approved by the Supreme Court’s collegium comprising the Chief Justice of India and two senior-most judges. It is not that aberrations like Justice Karnan’s appointment cannot happen in any other system of appointing judges other than that of the collegium. But the collegium system was inherently prone to give rise to such aberrations because of its lack of transparency. Had the process of appointment been more transparent than what was possible under the collegium system, factors for and against Justice Karnan’s suitability for the post of the judge could have come to light and considered suitably by the collegium before it finalised its binding recommendation to the government. Coming at a time when the government and the Supreme Court are engaged in a tug of war on the finalisation of the revised Memorandum of Procedure (MoP) for appointing judges of the higher judiciary, the Justice Karnan episode appears to give an edge to the government, which seeks primacy in the appointment process through the back door. The government, which opposed the collegium system during the debate on the NJAC, now feels vindicated in the aftermath of Justice Karnan’s conviction and sentence as he was a product of the collegium. The Supreme Court may feel triumphant in having exercised its contempt jurisdiction over Justice Karnan with its full might. However, it has emerged weaker than it was in its battle for supremacy with the government, which could now use the Karnan episode to make the collegium cede more space to it in the appointment process. �

The government could use the Karnan episode to make the collegium cede more space to it in the process of appointment of judges. Justice Karnan may well be guilty of contempt of court as the Supreme Court has found. But the question why it deprived him of the procedural safeguards that were extended to Vijay Mallya on the same day for the same offence may continue to trouble the Supreme Court’s conscience. The Supreme Court may well have invoked its contempt powers against Justice Karnan in order to uphold its majesty, institutional honour and reputation. But it allowed these very virtues to be eroded by its indifference to well-established principles of procedural fairness and natural justice. Justice Karnan appeared to have exhausted his legal remedies with the refusal of the Supreme Court’s Registry on May 12 to accept his writ petition challenging the validity of the May 9 order. His application for the recall of the order also appeared to have been rejected as both were found to be non-maintainable. Attempts by his counsel, Mathews J. Nedumpara, to mention the matter before the Chief Justice of India during the hearing of the triple talaq matter by the Constitution Bench was FRONTLINE . JUNE 9, 2017

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CO VE R ST OR Y

Guided by passion The Justice Karnan case has highlighted again the urgent need to amend the law and procedure on the exercise of suo motu contempt proceedings by the Supreme Court and High Courts. BY M.P. RAJU QUIS CUSTODIET CUSTODES? (WHO WILL judge the judges?) The judges of the Supreme Court constitute the highest court and the last court of appeal. They are neither elected nor, once appointed, can they be disciplined by any institution except Parliament by way of impeachment. The recent order of the seven-judge bench of the Supreme Court convicting and sentencing Justice C.S. Karnan of the Calcutta High Court to six months’ imprisonment for contempt of court has brought this question to the fore again. This is in addition to the questions relating to the contempt of court power usurping the impeachment function of Parliament, the propriety of the order gagging the media and the malaise of an unrepresentative judiciary. The saga relating to Justice Karnan is not a short one. His alleged acts of irregularity, illegaly and even delinquency have been in the media for long. They have even been subjected to judicial review and remedied by higher benches of the same High Courts and even the Supreme Court. One such case, wherein he as a High Court judge happened to be impleaded, strangely as a party respondent, got tagged with the present contempt proceedings. He was evidently in the dock and the media cannot be accused of being merciful to him. But the post-punishment scenario is different. There is growing criticism against the Supreme Court regarding the manner in which it has dealt with Justice Karnan, including the allegations by and against him. True, impropriety or even illegality of the action by the Supreme Court should not be a reason to permit Justice Karnan to go scot-free if he is proved guilty under the Constitution. However, democratic fairness is not that simple. It requires even legally sustainable actions against anybody to be fair and reasonable. The democratic mandate inherent in this sense of fairness expects the polity to shift its stand in favour of the one who is put in the dock and to rise in defence of his democratic entitlement to fairness. Thus, until the judiciary and other judges were kept in the “dock” by Justice Karnan, the public and the media were eager to subject him to strict scrutiny. Even his alleged reliance on his ‘Dalit’ identity was not taken kindly to. However, gradually, when he was found to be

in deep trouble at the hands of the omnipotent suo motu contempt jurisdiction in the apex court, the fairness pendulum started to swing to the side of Justice Karnan. A large section of the media felt that he, even if guilty, had to be treated as deserving natural justice and constitutional protection. The punishing judges and the judiciary then came under strict scrutiny. Are they being fair? Could it be that they were scared and perplexed and thus, groping in darkness, had to pick up the crutches of contempt of court? Would an impartial and independent inquiry into the allegations against and by a sitting justice of a High Court have done more harm to the independence of the judiciary? EPIC RETOLD

The year 1964 saw the release of the celebrated Tamil film, Karnan, which featured the film icons ‘Sivaji’ Ganesan and N.T. Rama Rao. The film, based on the story of Karnan, a character in the Mahabharata, was later dubbed into Telugu and Hindi. Although the storyline follows the narration in the epic, there are some artistically constructed changes. In preparation for the Kurukshetra war, the Kaurava assembly convenes under Duryodhana to appoint the generals of the army. Bhishma is appointed the commander-in-chief and he nominates generals for different battalions. Karnan is insulted on account of his lowly birth and given the command of a low-rank infantry. However, during the war Bhishma loses. Eventually Karnan is appointed commander-in-chief replacing him. Karnan goes to war accompanied by his son Vrishasena. Vrishasena fights bravely, but is killed by Arjuna. In revenge, Karnan uses the Nagastra against Arjuna, but Krishna saves Arjuna from it. Since Karnan unsuccessfully used the Nagastra once and he cannot use it more than once as per a boon received he is unable to kill Arjuna. A wheel of Karnan’s chariot gets stuck in a hole and he steps down to pull it out. At that time, Arjuna, under the direction of Krishna, shoots arrows at Karnan that severely wound him. Krishna tells Arjuna that the punya (merit) that Karnan has attained during his lifetime is protecting him. Krishna disguises himself as a 11

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For transparency in the system Interview with retired Justice Abhay Thipsay. BY

ANUPAMA KATAKAM

JUSTICE Abhay Thipsay returned to Mumbai in March this year from Allahabad, where he had been transferred just 10 months before his retirement. When Justice Thipsay questioned the collegium’s decision to send him away from the Bombay High Court, which he saw as a punishment, he was told that it was routine procedure. Justice Thipsay is well known for his convictions in the Best Bakery case retrial, which restored people’s faith in the judicial system. He was, however, widely criticised for his order granting bail to the actor Salman Khan. He has also given bail to several Maoists and other supposedly anti-national elements. Justice Thipsay maintains that all his decisions were upheld by higher courts and therefore he stands vindicated. He spoke at length to Frontline about the system and its flaws. Does the collegium system of appointment and transfer of judges ensure judicial independence? Or is it the bane of the system? I would not like to comment on the collegium system or to say whether the system earlier existing was better. However, I can certainly say that the collegium system is not foolproof. It lacks transparency. Whatever may be the system adopted for appointments and transfer of judges, transparency would be required in the process. The crucial aspect is whether there is transparency in the system of appointments and transfer of judges. A system that lacks transparency cannot be good. I don’t support the position that the executive must not have any say in the matter of appointments to the higher judiciary. Before the collegium system was evolved by a judicial pronouncement, appointments were made in which the executive was consulted. The general perception even in legal circles is that those appointments were properly made. No one says that the judges appointed during that period were inferior. Now, the Supreme Court itself has recognised that the system of appointing judges to the higher courts needs to be improved and sought suggestions to improve it. I will only give an example of how the collegium system has been at times irrational. About two-thirds of the judges of the High Court are appointed from the Bar. There can be genuine differences of opinion about their ability because there would not be fixed parameters for judging them. Therefore, it would be difficult to say that a particular choice was wrong. However, onethird of the judges of the High Court are appointed from the subordinate judiciary, and in their case, the comparFRONTLINE . JUNE 9, 2017

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RE TI RE D JU ST ICE Abhay Thipsay.

ative inferiority or superiority of a candidate is more easily demonstrable. A number of factors are taken into consideration while grading a judicial officer. They include not only his legal acumen but several other factors such as his punctuality, leave record, complaints received against him, that is, record of the Vigilance Department, his general conduct with the members of the Bar, etc. On the basis of confidential reports/records on these factors, grades are given. These are selection grades and super time scales. Now, to get selection grade and super time scale, the judicial officer must conform to the requirements laid down by the High Court administration. It often happens that a senior judicial officer fails to get the selection grade or the super time scale because he cannot fulfil the required parameters, but his juniors get such grades. However, there have been instances where the judicial officers who did not fulfil or meet the criteria for getting the super time scale were elevated to the High Court and not juniors who were awarded such scale. Is this not illogical? No sensible person can say that even when the High Court thinks that “B” is better than “A”, though “A” is senior, and therefore, gives a higher scale to B, “A” should be preferred in the matter of elevation to the High Court. This has happened in the Bombay High Court. We cannot ignore that such wrongs have taken place in the collegium system. The collegium system does not take into consideration the public perception, that is, the perception of the legal community about a judge while considering his case for elevation. Perhaps, it would be a good idea to involve the

Brahmin, goes to Karnan and begs him for his virtues as donation. Out of generosity, Karnan donates all his virtues to the Brahmin. At this juncture, Arjuna shoots a few more arrows at Karnan that kill him. Karnan’s request to wait until he raises the wheel of his chariot is rejected mercilessly. Afterwards, the Pandava brothers realise that Karnan is their elder brother. Arjuna is filled with remorse, but Krishna consoles him and the others that what happened to Karnan was guided by the curses of Indra and Parasurama, especially because he hid his caste. In an epic and in a war Karnan might have deserved it. But in a constitutional democracy, even a convict on death row is not devoid of the entitled human rights. The very value of independence of the judiciary is derived from a human right as enshrined in Article 10 of the Universal Declaration of Human Rights (UDHR): “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal....” Can a derivative value such as judicial independence annihilate its mother value, the very human right itself? More important is the question whether a contempt of court procedure, that too initiated suo motu, complies with this human right or not.

members of the Bar in the process of appointments. The collegium transferred you to the Allahabad High Court despite your reluctance to be transferred. Did you express your reluctance formally? Did the collegium take you into confidence before initiating the transfer? I did express my reluctance categorically. However, no reasons were given. By asking whether they took me into confidence, if you mean whether they gave reasons, the answer is “No”. When the process was initiated, I was told that the transfer was proposed for “better administration of justice”. It is generally accepted that the Supreme Court is not bound to give reasons for a transfer. Why should a letter from a High Court judge making allegations of corruption, and sent to the Prime Minister seeking investigation, amount to contempt? For this, we must understand the concept of the contempt of court. Anything that tends to interfere or threaten the administration of justice can amount to contempt of court. Though the provisions regarding contempt of court are not intended to be used for protecting the dignity of individual judges and they are not a substitute for an action for defamation, if allegations of a serious nature are levelled against judges, it has an effect of interfering with the administration of justice. Again, the question in such cases would be whether the allegations are bonafide, or whether they have been made with the object of terrorising or intimidating the judges or embarrassing them. Thus, simply because a letter has been sent to the Prime Minister seeking investigation, no immunity can be claimed from an action for contempt. It all depends on the facts of the case, including the nature and seriousness of the allegations, the circumstances in which they are made, the object behind making the allegations or defamatory remarks, and above all, whether all this can be said to have been done bonafide.

PROSECUTOR AND JUDGE

In the present case, as in every contempt of court case, the court is both prosecutor and judge. In the present case, this was emphatically asserted. During the proceedings on February 13, it was specifically recorded: “It is necessary to notice, that certain counsel appeared on their own. We enquired from them, whether they were duly authorised by Sri Justice C.S. Karnan, and were in possession of a power of attorney to represent him. They had no such authorisation. These learned counsel submitted that they proposed to file impleadment application on behalf of certain organisation. The oral prayer for impleadment is rejected. “Since contempt proceedings are a matter strictly between the court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against in consonance with law....” The Supreme Court had earlier said, “The contempt power, though jurisdictionally large, is discretionary in its unsheathed exercise. ...Justice is not hubris; power is not petulance and prudence is not pusillanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial and the people (‘We, the people of India’) pronounce the final verdict on all national institutions” (the Mulgaokar case, 1978).

The Supreme Court has sentenced Justice Karnan to six months’ imprisonment. What are the powers of the Supreme Court and the Chief Justice of India over a High Court judge? If you are talking about disciplinary or administrative powers, the Supreme Court and/or the Chief Justice of India do not have any such powers over a High Court judge. For the misconduct of a High Court judge, the procedure is only that of impeachment. However, the Supreme Court sentenced Justice Karnan by exercising its judicial power and not as an authority with disciplinary jurisdiction over him. A High Court judge may have certain privileges, but he is not immune from the exercise of contempt jurisdiction by the Supreme Court.

A RASH OF SUO MOTU PROCEEDINGS

The contempt of court procedure is between the accused contemner and the court. The court is deciding a case which is against itself. This is clearly against the 13

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“Never should the machinery and methodology for eradication of judicial delinquency possess intimidatory or ingratiatory potential. That will be fatal to judicial independence.” —Justice V.R. Krishna Iyer principle of Nemo judex in sua causa (no one should be a judge in his own cause). Thus, many are of the view that the law regarding the procedure in contempt of court proceedings requires substantial reform. Being aware of this dangerous dimension, the Supreme Court itself had repeatedly voiced cautions. The change in law, making truth as a defence, has attempted to cure this a little bit. A Constitution bench in 2014 noticed it, stating: “The legal position with regard to truth as a defence in contempt proceedings is now statutorily settled by Section 13 of the 1971 Act (as substituted by Act 6 of 2006).” In view of the change in law, making truth as a defence, the procedure, even if summary, ought to be preceded by an inquiry by an independent and impartial body. This is all the more relevant in suo motu contempt proceedings. The Supreme Court and High Courts are given the power to take cognisance of contempt matters even if a case is not filed before them for the same. In Justice Karnan’s case, this power was used. Thus, charges are not raised by anybody nor spelt out clearly. Added to this is the fact that the reasons for the order of conviction and sentence are yet to be written and pronounced. The recent exercises of suo motu contempt powers by different benches of the Supreme Court have been in the news. Justice Markandey Katju, a former justice of the apex court, himself was a victim of suo motu contempt proceedings. There have been suo motu contempt proceedings recently against the former president of the Board of Control for Cricket in India (BCCI), Anurag Thakur. In another recent instance, orders have been reserved against Mohit Choudhary, an advocate of record of the Supreme Court, for “making insinuation and allegations in open court hearing” with regard to the alleged wrong listing of a matter by the registry of the court.

role of the polity in a constitutional democracy has to shift in favour of such accused. He/she is pitted against the whole might of the court, the government and the establishment. He or she is in a minority where the whole nation state is on one side and the accused is on the other. Thus, the shifting of sensibilities in favour of Justice Karnan despite the allegations against him is in tune with the idea of democratic fairness. When the judges are judging themselves, the independence of the judiciary requires to be protected against itself. The greatest threat to the independence of the judiciary can be sometimes from within. The late former Chief Justice of India, Y.V. Chandrachud, on laying down office in 1985 after a tenure of seven years, the longest so far, made a poignant observation: “There is greater threat to the independence of the judiciary from within than without... A little introspection may be useful in this regard. I expand on it as I see the danger.” The Supreme Court enjoys vast powers and final authority. Surely, it must be under constant vigilance and responsible criticism. Justice Warren Earl Burger, months before becoming 15th Chief Justice of the United States Supreme Court, observed in 1969: “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis.” Justice V.R. Krishna Iyer was categorical: “But judges decide their own causes and, if exposed brashly, take contempt proceedings or otherwise show displeasure. And the Bar-Bench coalition conceals from public view the ugly process of the judiciary.” He was emphatic: “Never should the machinery and methodology for eradication of judicial delinquency possess intimidatory or ingratiatory potential. That will be fatal to judicial independence.” Plato had asked, “Is it more advantageous to be subject to the best of men or the best of laws?” And he preferred a philosopher king. But Aristotle rejected the all-wise ruler: “To invest man with authority is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by anger.” Law in contrast, is “intelligence without passion”. Suo motu contempt proceedings run the risk of being guided by passion without intelligence. � M.P. Raju is an advocate practising in the Supreme Court of India.

NEED TO AMEND THE LAW

The Justice Karnan case has again highlighted the urgent need to amend the law and procedure with regard to the exercise of suo motu contempt proceedings by the Supreme Court and High Courts. Until the changes are made, the democratic sense of the polity, including the media, has a duty to scrutinise and ensure that human rights and other fundamental rights of the accused in such contempt proceedings are protected. The prophetic FRONTLINE . JUNE 9, 2017

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CO VE R ST OR Y

The gag order The Supreme Court’s ban on the press in the Justice Karnan case is a standing affront to the citizens’ right to freedom of speech and a threat to the media and to the democratic process. BY A.G. NOORANI

TH E H IN DU ARC H I VE S

IT IS A MOST UNFORTUNATE LEGACY WHICH the Chief Justice of India, Justice J.S. Khehar, will bequeath when he demits office. He showed not a trace of judicial discretion, let alone statesmanship, in his gross mishandling of Justice C.S. Karnan. It is precisely when the provocation is grave that judges must keep their calm and not lose their balance. Justice Karnan provided provocation in plenty; but none could or should have suspected him of being in the grip of a medical condition in his mind. To his unworthy behaviour, the Supreme Court, led by its Chief Justice, responded with an order devoid of any sense of proportion. It ordered his medical examination rather in the style of people involved in a brawl who accuse each other of being nuts. Chief Justice Khehar spurned sensible advice to adjourn the matter until the offender retired the following month. The tragic comedy enacted in Kolkata did not enhance the court’s prestige. Justice Karnan had none to be affected. All this pales into insignificance when compared to the gag order on the press which the Chief Justice pronounced on May 9. It was of a piece with the lack of balance that alone can explain why it was made at all. “The Court also ordered the media not to publish contents of orders passed by Justice Karnan” (The Hindu, May 10, 2017). One is appalled and saddened at the deafening silence of leaders of the Bar in the court, of the country at large as well as by the muted criticisms in a few sections of the press. The loud-mouthed TV anchors are too uneducated to realise the significance of the order.

JU ST ICE HI DA YATU L LA H. He had raised, in a

dissenting judgment, the question whether the court can suppress the publication of the deposition of a witness heard not in camera but in open court. bound by the fundamental rights. There is a precedent for all this. As a judge of the Bombay High Court, Justice V.M. Tarkunde was known for arbitrariness and brusqueness, traits which emerged in the gag order he made, for which he received his just deserts at the hands of H.M. Seervai. One misses Seervai sorely in these depressing times. He has no peer now in scholarship, courage of integrity. Let Seervai himself record the facts of the case. It was “a sensational libel case, K.M.D. Thackersey vs. R.K. Karanjia in the Bombay High Court in which hearings had been held in public. One Goda, who had been examined earlier, was recalled for further examination, when he applied that his evidence should not be allowed to be reported, because reports of his evidence earlier had injured him in his business. Although the trial continued

DUBIOUS PRECEDENT

The order belongs to the family which produced its kin— the ban on reporting proceedings in the court. Both are violative of the citizen’s fundamental right to freedom of speech and expression (Article 19(v)(a) of the Constitution). They are made without jurisdiction and can be ignored or defied with impunity. The right to move the Supreme Court for the enforcement of the fundamental right is itself a fundamental right (Article 32). You have here the court itself flouting this right, without deliberation or hearing argument, out of sheer pique. Their Lordships need to be told that the Supreme Court is very much 15

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For a judicial accountability mechanism ARGHYA SENGUPTA is founder and research director at the Vidhi Centre for Legal Policy, a New Delhibased think tank that does legal research and assists the government in making better laws. Sengupta holds a doctorate in law from the University of Oxford on the subject of independence and accountability of the Indian higher judiciary. He is currently writing a book that deals with the question of impeachment and methods of holding judges accountable. He is also editing a book on judicial appointments in India. Excerpts from an interview he gave Frontline. Did the Supreme Court have any alternative to initiating contempt proceedings against Justice Karnan? This entire Karnan episode essentially shows that there is an absence of judicial accountability mechanism, short of impeachment. If you have an indisciplined judge whose conduct is either worthy of impeachment (and the impeachment is not happening) or the judge’s conduct is such that it is not worthy of impeachment but it is still misconduct of some shape or form, then there must be some measures to deal with it. Now the issue is that, with the Judicial Standards and Accountability Bill not having been passed, and with the Supreme Court not having instituted a credible in-house procedure against judges, there is a gap, and the judges felt that given the fact that this action was continuing, the only option open to them, if they had to act, was contempt.

SA ND EE P S A XE NA

Interview with Arghya Sengupta, founder and research director at the Vidhi Centre for Legal Policy. B Y V . V E N K A T E S A N A N D A K S H A Y D E S H M A N E is the fact that the court decided that it would now bar all orders passed or statements made by Justice Karnan from being reported. That the contempt power needed to be used in order to send the message is what is potentially troubling. However, if we think that by acting against Justice Karnan we have addressed the core issues that pertain to the judiciary then we will be wrong. Because Justice Karnan is a bit of an outlier. It is an exceptional situation. And sometimes exceptional situations demand exceptional measures. There is an opinion that the court should have addressed the concerns that Justice Karnan raised. And the larger concerns about caste within judiciary should have been addressed—so goes the view. His allegations are fairly serious. I think caste and representation within judiciary are very genuine issues that have been raised. The court, in my view, gave him an opportunity to make good his allegations. He did not take it. However, this forum of judicial proceedings through contempt is not the place to look at it.

Senior counsel K.K. Venugopal suggested to the court during the proceedings that it should let him go because of his impending retirement. After having initiated contempt proceedings, given the fact that this contempt was anyway multiplied time and again first by Justice Karnan not appearing, then by him passing these orders, after all that, the court just could not look back. This submission of Mr Venugopal might have been a good argument to not initiate contempt proceedings, but if the court in its wisdom decided that it wanted to initiate contempt in order to demonstrate that it will act harshly against one of its own like it often does with people outside, then I think this was the only course that the court had.

But the Contempt of Courts Act provides truth as a defence. Should not the court investigate these allegations? Now you see, this is where we have a problem. Because the Supreme Court has held that the Contempt of Courts Act does not apply to it. There are two judgements of the Supreme Court—in the SCBA [Supreme Court Bar Association] case and Delhi Judicial Services Association case—where they have said very clearly that the contempt power is a sui generis power, that is, coming from Article 129 of the Constitution, and that cannot be trammelled by any statute. The court reiterated this in the Sahara-Subroto Roy contempt case. But the court has gone much further here. It appears to be suggesting that even the Constitution does not apply. Because when you are now restricting the freedom of speech of the media, you are trampling on the media’s Article 19 rights.

Has the court been able to send a message that it will not hesitate to act against one of its own? I think the message has been sent. However, I feel that it has come at a certain cost. I think the biggest cost

Do you agree with the ruling that the Contempt of Courts Act does not apply to the Supreme Court? The power of contempt are jurisprudentially the power of last resort. So it must be, in some senses,

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to be held in public, Tarkunde J. orally directed that Goda’s further evidence should not be reported. The next day, the defendant’s counsel submitted that the above order ought not to have been passed, and, in any event, the judge should pass a written order. The judge adhered to his order and declined to pass a written order. A writ petition to quash the judge’s order was dismissed by the Bombay High Court on the ground that a writ could not issue from a bench of the High Court to another bench, or to single Judge, of the same court. The present petitions were filed by journalists (who were affected by the judge’s order), contending that it violated their rights to the freedom of speech and expression guaranteed by Art. 19(1)(a), and that a writ should be issued quashing the judge’s order. “The petitions were heard by a bench of nine judges. Five judgments were delivered: Gajendragadkar C.J. delivered a judgment for himself. Wanchoo, Mudholkar, Sikri and Ramaswamy JJ. (‘the majority judgment’) dismissing the petitions; Sarkar, Shah and Bachat JJ, each delivered separate concurring judgments dismissing the petitions. Hidayatullah J. delivered a dissenting judgment, allowing the petitions. He accurately formulated the questions for determination as follows: ‘(i) Can a court, which is holding a public trial from which the public is not excluded, suppress the publication of the deposition of a witness heard not in camera but in open court, on the request of the witness that his business will suffer; (ii) does such an order breach (the) fundamental right of freedom of speech and expression entitling persons affected to invoke Art. 32; and (iii) if so, can this court issue a writ to a High Court?’ … “It is difficult to understand why the majority judgment held that Tarkunde J.’s order imposed a ban on the publication of Goda’s evidence only during the trial of the suit. It is submitted that Hidayatullah J. was right when he said that ‘as the intention was to save Goda’s business from harm, it is reasonable to think that the prohibition was perpetual and that is how the matter appears to have been understood… because no report of his deposition has since appeared in any newspaper’. The majority judgment considered the authorities relating to the holding of a trial in camera and held that a judge had inherent jurisdiction to hold a trial in camera if he was satisfied that in no other way could justice be done. If a judge wrongly ordered a trial in camera he acted not without jurisdiction, but in the mistaken exercise of jurisdiction. On this assumption the majority held that the order was passed by Tarkunde J. acting as Judge, and just as his order would be binding between the parties and could not be questioned except on appeal so also an order made by a judge in a judicial proceeding affecting third parties, and in that sense collateral, stood in the same position. Assuming that the order incidentally affected the fundamental rights of the petitioners that did not involve a violation of fundamental right. … “Hidayatullah J. held that the order of Tarkunde J. enjoined a perpetual prohibition and that the order was without jurisdiction. If there was one point in which the

expansive. It cannot be otherwise. You cannot think of a situation where Subroto Roy of Sahara defaults on thousands of crores and pays Rs.2,000 as civil contempt, the maximum fine prescribed under the Act. So there is an issue as to why the contempt power needs to be expansive. The question is—how expansive can it be? My answer to that is that it must be as expansive as possible, but it must, to the extent possible, respect coordinate provisions in the Constitution. At the end of the day, contempt is a power flowing from the Constitution. Now the exercise of the contempt power will necessarily trample on somebody’s fundamental rights. The contemner may be put in prison; you cannot say that it cannot violate Article 21. His freedom of speech might be restricted. But what the court has said in this case restricts the rights of somebody who is not a contemner: the media are not contemners before it. Restricting the media without hearing them has some natural justice issues and, therefore, is a problem. So I think there needs to be a genuine introspection by the court and the legal fraternity as to what the remit of contempt powers should be. The whole idea of sentencing someone along with the conviction, without any break—don’t you find it troubling? See, in terms of normal criminal principles, obviously it is troubling. It does not happen largely in that way. But given the fact that it was an exceptional situation and there were already three hearings provided to him, and there was another opportunity for him to come and be heard, which he took on one occasion and did not take on the remaining one, on balance, it is perhaps justified. But sentencing someone to imprisonment without a reasoned judgment. How could that be justified? Reasons should have been and could have been provided. Either the reasons could have been there, or they could have sentenced after the reasons were ready. They could have done it in one or two days. The well-known senior advocate Indira Jaising has said that the court is doing indirectly what it cannot do directly by sentencing Justice Karnan to imprisonment, and thereby removing him from office. No, I think that we need to recognise that there is a distinction between the two situations. Impeachment is permanent stripping from judicial office. It is a service-related issue, where a person is found through a political process to be unsuitable for continuance in office. Criminal contempt is an act of criminal misconduct that erodes the dignity of justice, which might lead to conviction in exceptional circumstances, of which this was one. 17

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TH E H IN DU A RC HI VE S

Law Lords were agreed in Scott v. In McPherson v. McPherson Scott it was that there was no juris[(1936) A.C. 177], the Privy Coundiction to enjoin a perpetual procil said “the order directing the hibition of the evidence given in proceedings of the trial to be held camera except in cases not materin camera was so completely beyial to the present inquiry. ond the powers of the High Court Secondly, even if there was juristhat although obtained at the indiction to hold a proceeding in stance of the appellant, it might be camera, the order was made when disobeyed by her with impunity.” the Court was not sitting in camIn the classic Media Law, era and a judge had no jurisdiction Geoffrey Robertson Q.C., a chamat all to prohibit the publication of pion of human rights, and Andrew evidence when the hearing was Nicol write: “British courts have not in camera. refused, for example, to permit “The right of publication ‘secret trials’ on the grounds of flowed from the fact that such morals or public order, or to uppublication merely enlarged the hold gagging orders imposed to area of the court and communicprotect the private lives of witated to all that which all had the nesses or parties. The press has right to know. He held that the not needed the (European) Conjudiciary was subject to fundavention to challenge successfully H. M. SE ERV AI. He opined that the mental rights and he considered such diverse rulings as an order not judiciary fell in the ambit of “the state” in several other Articles in Part III in to name a witness from a famous Article 12 and was bound by the order better to understand the alfamily lest publicity might interfundamental rights. leged violation of Art. 19(1). He fere with her cure for heroin addicheld that as the order was without tion; an order not to publish the jurisdiction, the fundamental right to the freedom of address of a former MP defendant lest his estranged wife speech was violated.” should discover his whereabouts and harass him; and an Seervai submitted the majority view to a trenchant order that reporters should leave the Court so that a analysis. He opined the judiciary fell in the ambit of “the distressed defendant could explain in privacy the matristate” in Article 12 and was bound by the fundamental monial problems that drove her to drink before she drove rights. Seervai’s critique of the majority view is followed her car. In all these cases trial courts had been moved by by a discussion of whether the judges are bound by the personal plight to overlook the fundamental principle fundamental rights. “It is submitted that Hidayatullah J. that trials must be open in every respect.” was right when he held that a breach by a Judge of the In the instant case the gag was not in respect of provisions of several Articles relating to fundamental proceedings in the court but on a person well outside it. rights, could not be excluded from the writ jurisdiction of He was not heard, nor were the media. It made an order the Supreme Court, and the reservation made by Shah J. which deserves a speedy burial by the court itself. It has … suggests, though it does not decide, that Hidayatullah the power, indeed a duty, to do so. J’s view of Arts. 20 to 22 is correct. Mirajkar’s case was A seven-judge Bench of the Supreme Court held that followed in S.N. Koya v. L.M. & A. Islands” (AIR 1967 an order by the Supreme Court can be challenged on the Kerala 259). ground that the court had violated fundamental rights He added: “If Tarkunde J. had jurisdiction to pass the (A.R. Antulay vs R.S. Nayak & Another (1988) 2 Suorder, then it would be correct to say that no matter how preme Court Cases 602). It ruled: “In giving the direcgrievously he erred in the exercise of his jurisdiction, the tions this court infringed the constitutional safeguards order did not violate the fundamental right to the free- guaranteed to a citizen or to an accused and injustice dom of speech and expression which includes the free- results therefrom. It is just and proper for the court to dom of communication and the freedom of the press. For rectify and recall that injustice, in the peculiar facts and reasons already given. It is submitted that Hidayatullah circumstances of the case. … No man should suffer beJ. was right when he held that the order contained a cause of the mistake of the court” (pages 670 and 672, perpetual prohibition against publication of the evidence paragraphs 80 and 83). and the order was beyond the jurisdiction of Tarkunde J., The Supreme Court’s gag order of May 9 is a standing and using the language of the Privy Council in McPherson affront to the citizens’ right to freedom of speech, a threat v. McPherson, we may say that it was an order that could to the media and to the democratic process. If allowed to be disobeyed with impunity. If this is the correct view, it is pass muster, what is there to prevent the Supreme submitted that Hidayatullah J. rightly held that it viol- Court—or the High Courts—from banning in advance ated the petitioner’s freedom of speech and expression” reports of a speech by a politician, or a lawyer or a writing (Constitutional Law of India, fourth edition, pages by a journalist? It would be best if the Supreme Court 390-395). recalls the order. � FRONTLINE . JUNE 9, 2017

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CO VE R ST OR Y

Karnan vs Karnan Even where it is not a specific gag order as in the Supreme Court order against Justice Karnan, it exerts a nagging virtual pressure of precensorship, or pre-emptive censorship, on the journalist. The sword of criminal contempt hangs over the press even as it goes about discharging its legitimate function of informing the people about the process of justicing in our democracy. BY SASHI KUMAR JUSTICE KARNAN, BEYOND HIS QUIXOTIC and burlesque judicial behaviour, was beginning to mean different things to different people. To most, he was obviously and insistently asking for it. So, when the seven-judge bench of the Supreme Court headed by the Chief Justice finally and unanimously convicted him to six months’ imprisonment for contempt of court, it did not come as a surprise, or a day too soon. The maverick High Court judge’s recalcitrance, rendered in calibrated instalments in full public view, was making a laughing stock of the judiciary. His serial taunt of the highest court of the land was becoming an embarrassment all round. To some others he seemed to be acquiring a bit of an underdog image, even a semblance of an unlikely David pitted against the Goliathan apex court, even if he went about his case in a shoddy and ham-handed manner. Maybe there was something to his grouse about being discriminated against as a Dalit? After all, Dalits are discriminated against in almost all walks of life, and the judiciary need not be an exception. Maybe, again, his charge of corruption in the judiciary was not all that absurd, even if the manner of his making it was reckless and irresponsible? After all he is not the first to make the allegation? But the way he went about it all was so ludicrously self-defeating that his case ended up looking like one of Karnan versus Karnan. Yet others saw a scheming method in the madness and the judge’s tantrums as a guise for astute identity politics leading up to something—exactly what it was is not clear yet. Justice Karnan’s defiance, in this view, was no naive or impetuous belligerence but a carefully scripted act, the real intent and purpose of which is yet to emerge. He has not disclosed his hand, and when he does the reasons and motives will fall in place. The Supreme Court verdict has been largely welcomed but also critiqued on some substantive and some specious counts. While it is recognised that the court—as a “court of record” under Article 129 of the Constitution

SU S H I L KU M AR V E RM A

with “the power to punish for contempt of court” and, again, with “all and every power” for “the investigation or punishment of any contempt of itself” under Article 142 (2)—acted well within its powers and the constitutional framework, since the matter related to a High Court judge, there were, in the informed public discourse on the case, jurisdictional concerns and a strand of opinion that it was better left to the political establishment to oust him from service through impeachment proceedings in Parliament. Another thought was whether it would have been more expedient to let matters be until Justice Karnan

JU ST ICE A. P. SHA H: “Courts... must be more

restrained in their use of contempt proceedings as a tool.” 19

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retired next month, obviating the need for a judgment against a sitting judge, but then that could have been seen as weakness or pussyfooting by the court when it came to a fellow judge being the contemner, and against the principle of equality before the law. These views aired and discussed in the public sphere were not by way of gainsaying the verdict of the Supreme Court but reflected the concern and engagement in social circles with this unprecedented situation in our judicial history. The collegium system of judicial appointments and the criteria adopted for elevation of a judge to a High Court were, once again, collateral concerns on the sidelines of this case.

The two big issues the Supreme Court verdict brings to the fore, which have a critical bearing on democracy and freedom of speech, are, one, whether courts should, in this day and age, be resorting to criminal contempt proceedings at all and, two, and more crucially, the prohibition as part of the order against the press reporting Justice Karnan’s statements—effectively a gag order. Many commentators, including in legal circles, have accepted or seem reconciled to the first but expressed their reservations or disapproval of the second. But the two are in a sense tied together because violation of the gag order could again be cause for contempt action by the court. Indeed, this whole business of criminal contempt is

For a more pragmatic view RAJU RAMACHANDRAN, eminent Senior Advocate of the Supreme Court, has 40 years of distinguished legal practice behind him. His book, I’ve been around for some time, published last year, is not just a collection of his columns, articles and interviews but captures the sociolegal underpinnings of contemporary society and stimulates the reader to reflect further. Among other things, the Justice Karnan episode is a sad reminder of whatever is wrong with the collegium system of appointing judges, as Justice Karnan was a product of this system. As a critic of the collegium system, Ramachandran may have reasons to claim that he stands vindicated, but he is more inclined to look for the causes that led to Justice Karnan’s conviction and sentence. Excerpts from the interview he gave Frontline: Was there any alternative to contempt proceedings against Justice Karnan? I don’t think there was an alternative to the contempt proceedings as far as the court is concerned. The other alternative, namely, the removal process, was within the realm of Parliament. But having initiated those contempt proceedings, and having seen the stand of Justice Karnan, who appeared before it on one occasion, the court could have taken a pragmatic view of the matter, because of the happy circumstance that his retirement is imminent. This was the suggestion of K.K. Venugopal, and I wish this wise counsel had been heeded.

ordinary citizen. Definitely, the initiation of contempt proceedings itself must have been actuated by the feeling that the judiciary should be as strict, if not stricter, with its own as it was with an outsider. But as the drama played out, it was clear that this was not a case within the realm of the ordinary. The public itself would have understood from the conduct of Justice Karnan that the case merited different treatment.

And the lack of procedural fairness in the entire exercise of contempt power by the Supreme Court has been of concern to many. I would say that the court hastened the process without following the procedural steps which it was required to do, having directed his medical examination. It had to arrive at some legal conclusion on the basis of his refusal to be examined, namely, whether it was a wilful non-compliance of its directions, before convicting him. Reasons for the court’s order are to follow later, and with the courts having closed for the summer break, we can expect a reasoned judgment only on the reopening in July. To convict without giving reasons appears inappropriate to me. It does reduce the legal acceptability or legitimacy of the order. But no order of the Supreme Court can be ignored. Those who are bound under the Constitution to execute the order of the court can have no excuse for not carrying it out. The gag on the media from reporting whatever Justice Karnan may say has, to many, tarnished the image of the Supreme Court.

But the Supreme Court, in the contempt proceedings, sought to make no distinction between a judge and an

FRONTLINE . JUNE 9, 2017

S. S U BR AM ANI UM

Interview with Raju Ramachandran, advocate of the Supreme Court. BY V. VENKATESAN

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messy and antithetical to free thought and expression, not least because one is ever on unsure ground about what constitutes the offence. Even where it is not a specific ban as in this Supreme Court order, it exerts a nagging virtual pressure of pre-censorship, or pre-emptive censorship, on the journalist. The sword of criminal contempt hangs over the press even as it goes about discharging its legitimate function of informing the people about the process of justicing in our democracy. Surely, demystifying the judicial process does not detract from or, far from it, scandalise the judiciary. If anything it enhances the institution’s prestige and democratic credentials. Decriminalising contempt has been a long-

standing demand of the fourth estate, to unfetter the press in this respect and enable it to report and comment about this vital institution without fear or favour. Justice Ajit Prakash Shah, former Chief Justice of the Delhi and Madras High Courts, in his illuminating address at the convocation of the Asian College of Journalism (ACJ) on May 3, World Press Freedom day, barely a week before the Supreme Court judgment against Justice Karnan, , weighed in strongly against the resort to criminal contempt action by courts in general. “You must,” he exhorted his audience, comprising primarily journalism diplomates, “ensure that the press is permitted to have its fair share of criticism and call out the courts when they ought to be. Courts, on their part, must be more restrained in their use of contempt proceedings as a tool. When you as journalists believe such restraint is not being exercised, you must point that out… any fear that the court may invoke contempt proceedings must not hold you back. It is your duty, your responsibility, your obligation, to ensure that the court is informed of its poor judgement. Indeed the Supreme Court itself has said that fair comment of this nature is protected under the right to freedom of speech and expression, and the press must use this protection to the fullest, to balance the power of the court.” That last observation about the press balancing the power of the court, interestingly, also suggests (at least in its best interpretation) that the press, as the fourth pillar of democracy, has agency in the separation of powers envisaged in the Constitution. The executive, the legislature, the judiciary and the fourth estate become, de facto, mutually countervailing forces thereby providing the checks and balances among these institutions that make for a healthy and vibrant democracy. Exercise of criminal contempt against the press upsets this delicate balance. Briefly touching on the historical rationale for courts taking recourse to the tool of contempt, Justice Shah alluded to Alexander Hamilton’s The Federalist Papers in which his reading of the judiciary is as the “weakest” and “least dangerous” of the three traditional arms of government. Because while the executive “holds the sword of the community” and the legislature “commands the purse” and “prescribes the rules by which the duties and rights of every citizen are to be regulated”, the judiciary “has no influence over either the sword, or the word or the purse… neither force nor will, but merely judgement…” Shorn of any powers or control, Justice Shah seemed to infer, “when courts believe that their effectiveness is under threat, they resort to using contempt as a weapon, whenever the court perceives that some statement is contemptuous.” But the judiciary today is not anywhere near as effete as projected by Hamilton. It has power and teeth. “Judicial excess” and “judicial activism” are recurring themes of, real or imagined, concern today, and there is a growing feeling, including in the legal profession, that judicial activity and pronouncements must be held accountable to the letter and spirit of the Constitution. The implications of a powerful judiciary untethered

I don’t think this was adequately thought out. The gag on the media should have been backed by a modicum of reasoning, namely, that since he had been held guilty of contempt, publication of his statements bringing the court and the judicial system into further disrepute would amount to perpetuation of the contempt. Justice Karnan, before his conviction and sentence, was already deprived by the Supreme Court of his administrative and judicial work. Therefore, can he be subjected to one more punishment in the form of imprisonment for six months for the same offence of contempt? Deprivation of judicial and administrative work itself is not a punishment because it is only the equivalent of an ordinary employee being placed under suspension. The legal position is clear that suspension is not a punishment (except in rare cases, where prolonged suspension has itself been held to be punishment). Does not the Supreme Court’s move to convict and sentence Justice Karnan on the same day strike at the root of procedural fairness and natural justice? I wish the Court had given at least a short time to him to respond on the question of sentence and then passsed a sentence if he still did not appear. If the idea was that effective orders needed to be passed, while he was still a sitting judge, it was still possible to give at least two or four days’ time. After all, the court is sitting during the vacation. If all the seven judges were not available, a different bench of seven could have been constituted, as a matter of necessity. The constitutional power to punish for contempt, under Article 129, is certainly a higher power than the ordinary power under the Contempt of Courts Act. But while the provisions of the Contempt of Courts Act may not apply, in their strict sense, the rules of procedure which it embodies are rules of fairness that should equally guide the exercise of constitutional power. 21

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TH E H IN DU A RC HI VE S

In his convocation address at the ACJ, Justice Shah pointed out that “scandalising the court”, which along with interference in or obstruction of administration of justice becomes the main ground for criminal contempt in India, had not been invoked for prosecution in the United Kingdom since 1931 and that courts both there and in many other commonwealth countries have held that “scandalising the judges… is virtually obsolescent… and may be ignored”. He cited instances of how courts in the U.S. and England had prioritised freedom of expression even when it might have been directed against them or piqued individual judges. In Bridges vs California in the U.S., when a labour leader called a court ruling “outrageous” and threatened to call a strike against it, the court, instead of hauling him up for contempt, made what Justice Shah called “an important observation that our own judges would do well to pay heed to”. The court said: “[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench would probably engender resentment, suspicion and contempt much more than it would enhance respect.” He might have added that the court in this case also held that striking being entirely legal the argument that threat of a strike would illegally intimidate a judge or subvert justice was untenable.

Justice Robert Bork: “Who is to protect us from the power of judges?....The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable...”

THE SPYCATCHER CASE

Another more spectacular instance, also cited by Justice Shah in the course of his address, was that of the Spycatcher case in the U.K. where The Guardian and The Observer were restrained from publishing excerpts from the memoirs of a British secret agent who claimed that MI5 had conspired to assassinate President Nasser of Egypt to subvert the Harold Wilson government. However, other publications not so specifically restrained, such as The Independent, The London Daily News, The London Evening Standard and The Sunday Times, got the same material separately and published it. When they were proceeded against and found guilty of contempt by the House of Lords because they had in effect made the injunction against publication infructuous, the judgment was pilloried in the press. Daily Mirror even published photographs, topsy-turvy, of those who had placed the injunction with the caption: “You Fools!” But there were no contempt proceedings. Justice Shah narrated the anecdote of the eminent lawyer Fali Nariman, who was in London at this time, asking Lord Templeton why Daily Mirror was not hauled up for contempt. Lord Templeton’s response was, as Justice Shah put it: “….that judges in England did not take notice of personal insults, uttered without malice. After all, he said, he was old, and though he believed he wasn’t a fool, someone else who sincerely thought he was, was entitled to his opinion!” In Landmark Communications vs Virginia in which the U.S. Supreme Court reversed a lower court’s conviction of the publisher of The Virginian-Pilot for reporting an inquiry by the Virginia Judicial Inquiry and Review Commission and naming the judge whose conduct was

to the Constitution have seldom been posed as sharply as by Robert Bork, former Justice of the United States Court of Appeals for the District of Columbia Circuit. “Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution,” he observes, “they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills. Yet when it rules in the name of the Constitution, whether it rules truly or not, the court is the most powerful branch of government in domestic policy. The combination of absolute power, disdain for the historic constitution and philosophical incompetence is lethal.” Justice Bork does not stop there, but goes on to ask: “Who is to protect us from the power of judges? How are we to be guarded from our guardians? The answer can only be that judges must consider themselves bound by law that is independent of their own views of the desirable. They must not make or apply any policy not fairly to be found in the Constitution or a statute. It is of course true that judges to some extent must make law every time they decide a case, but it is minor, interstitial lawmaking. The ratifiers of the Constitution put in place the walls, roof, and beams; judges preserve the major architectural features, adding only filigree.” FRONTLINE . JUNE 9, 2017

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‘Casteism a reality in the judiciary’ Interview with Prashant Bhushan, Supreme Court advocate. B Y A K S H A Y D E S H M A N E there is no proper scrutiny of these appointees. There is no criteria that have been made and no proper way of judging people on those criteria. SH A N KE R C HA K RA VA RT Y

THE eminent Supreme Court Advocate Prashant Bhushan is of the view that the Supreme Court bench did the right thing in ordering the arrest of Justice C.S. Karnan for contempt of court. However, Bhushan disagreed with the court’s decision to gag the media. He also sought a change in the definition of contempt in the law. Though he does not see a caste angle in the Justice Karnan case, he said casteism was an unfortunate reality in the judiciary. Excerpts from an interview:

In the post-National Judicial Appointments Commission (NJAC) context, what does it say about the collegium system that’s followed at present? This whole system is not proper, but it is slightly better than allowing the government to make the appointments. The reform needed in appointments is that you need to have a proper, full-time, broad-based selection committee, not an ex-officio body because this is something that requires a lot of time and for that you need a full-time body. How do you see the spaces for dissent and whistleblowing within the judicial system? That is a serious problem. There is no proper system of judicial accountability. The impeachment process is impractical and politicised. Again, we need a full-time, broad-based body of people who are independent of the government as well as the judiciary both for selecting judges and for removing judges. There need to be two different bodies—one for selecting and one for removing or taking disciplinary action against judges. And the whistle-blowers can blow the whistle to such a body. This has to be outside the judicial set-up. This business of self-accountability does not work. It has to be external accountability, but not through the government.

Your view about the Supreme Court’s order against Justice Karnan for contempt of court. What Karnan has done is certainly unacceptable. He has made all kinds of allegations against judges, and he compounded his folly by passing orders against the Supreme Court judges who had issued the contempt notice to him. Therefore, he was certainly guilty of contempt for making baseless and reckless allegations against the judges and for passing these kind of orders. I think they gave him a long enough rope.But the gagging of the media is not called for. Such an order, in my view, is unconstitutional. And, secondly, it’s not in good taste. You can’t protect your dignity by gagging the media. You have to protect your dignity by your own actions. I have always been of the view that this part of the Contempt of Courts Act—the definition of contempt, scandalising the court, or lowering the authority of the court— needs to go in the long run.

You have been vocal about corruption within the higher judiciary and have exposed many chief justices and other judges of the Supreme Court. Are there adverse consequences to dissent? They did initiate contempt proceedings against me regarding an interview I had done with Tehelka. It is still pending in the Supreme Court. So, my own experience has been that if you do it in a very proper manner backed up with evidence, if you blow the whistle against a judge or a set of judges on the basis of proper evidence, usually the judiciary is unwilling to go after you by way of contempt, etc. That’s why it has to be done carefully with complete evidence.

Is it because it is abused or misused? It is sometimes misused, and the dignity and image of the court do not depend upon punishing somebody for making reckless allegations. The recklessness of those allegations should be evident to the people from the court’s own actions. It was clear that Karnan was making reckless allegations. Were Karnan’s allegations on casteism within the judiciary exaggerated or was there some truth to them? Karnan’s allegations concerning caste were totally bogus and reckless. Karnan was a reckless judge. He should not have been appointed in the first place. His actions have been totally ridiculous. I have been saying that this shows that the whole process of appointing judges is not proper because

Independent of the Karnan case, what is your opinion about the prevalence of casteism within the judiciary? Yes, there is casteism within the judiciary, similar to what we see in higher society, among educated people outside. The same thing happens within the judiciary also.

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being investigated despite a State statute against disclosure of such proceedings, the court held that “the operations of the courts and the judicial conduct of judges are matters of utmost public concern”. The court endorsed Justice Frankfurter’s prior statement that “speech cannot be punished when the purpose is simply to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed”.

tempt of court by the Delhi High Court “for publishing content that portrayed a retired Chief Justice of India unfavourably. Mid-Day raised the defence of truth and good faith but was not entertained.” Apart from, and in addition to, the obvious anachronism of criminal contempt law, the restraint on prepublication accompanying the Supreme Court order on Justice Karnan makes it particularly problematic. The replacement of prepublication censorship with post-publication consequence was the result of a protracted struggle in England in the 17th and 18th centuries. The end of licensing, when it lapsed in 1695, after the overthrow of the Stuarts in 1688, marked this shift, although newspapers were forbidden from reporting parliamentary proceedings well into the late 1700s. Meanwhile, though, the ground for a freer speech dispensation was being prepared by the growing assertiveness of a nascent press. In 1644, John Milton’s “Aeropagitica” gave a conceptual fillip to freedom of expression and advanced the idea of the self-righting principle. Milton wrote: “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?” Fast-forwarding to the present, as recently as January this year, a Supreme Court bench headed by Chief Justice J.S. Khehar and also comprising Justice D.Y. Chandrachud, disposing of public interest litigation petitions by the non-governmental organisation Common Cause pending since 2013, underlined the rights of the press under Article 19(1) (a) and held that pre-broadcast or prepublication censorship is no business of the court and that all grievances were to be subject, post-publication, to the law of the land. So it is not as if there is a prior restraint mindset in the court when it comes to freedom of speech or expression, including of the press. Even so, it becomes necessary for the freedom of the press, which is constantly a work in progress, to be alert to and challenge, where possible and where the press has the standing to do so, such gag orders as the one that came with the judgment on Justice Karnan. Interestingly, ever since the U.S. Supreme Court ruled in 1976 that orders restraining the press from putting out information about a criminal case were “improper”, courts have tended to restrain the source of the information rather than the publication of it. Such a tactic or approach sparing the press per se a gag order was, of course, unlikely to have worked in the case of Justice Karnan and hence ostensibly the prior restraint on the press itself, apart from the fact that the press here does not enjoy the equivalent of the First Amendment rights of its U.S. counterpart. But then, again, the practicality and effectiveness of prior restraint of the press in the face of an uncontrollable and freewheeling social media space is, again, debatable—especially if the source in question here were to resurface from wherever he is and decide to take to it to air his views or “judicial” pronouncements. �

‘HAZE OF GLORY’

Abstracting and insulating courts and judges from close public scrutiny by creating a mystique around them may have been the initial agenda. The U.K. Law Commission report of 2012 recommending the discontinuance of the crime of contempt refers to the law of criminal contempt being necessitated by the need to create a “haze of glory”’ around courts and judges in 18th century England. It was important that courts were not just universally impartial but also perceived to be so. So, the Law Commission noted: “This language suggests that ‘to be impartial’ and ‘to be universally thought so’ are two independent requirements implying that the purpose of the offence is not confined to preventing the public from getting the wrong idea about the judges, and that where there are shortcomings, it is equally important to prevent the public from getting the right idea.” In this scheme, truth becomes dispensable, even a liability, as much in criminal contempt as in libel. The origins of truth not being acceptable as a defence in libel, the incredible idea that the truth of a libel aggravated the crime or that “the greater the truth the greater the libel”, are ascribed to the observation by Chief Justice Holt in 1704 (when he gave seditious libel sweeping scope in England) that “if men should not be called to account for possessing the people with an ill opinion of the government, no government can subsist; for it is very necessary for every government that the people should have a good opinion of it”. Governments have since had to learn to live with an adversarial press and the opposition of political parties and the people. Courts have perhaps been slower to reconcile to, or accept, critical opinion and comment. The notion of scandalising the court seems to be in part a vestigial carryover of that of scandalum magnatum, which meant taint of peerage or a judicial officer in that class in early English law. TRUTH AS DEFENCE

In India, it was only relatively recently, in 2006, that the Contempt of Courts Act, 1971, was amended to introduce, in the form of Clause (b) in Section 13 of the Act, the idea of truth as defence in a case of criminal contempt. The clause reads: “The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.” Even so, as Justice Shah pointed out, this did not help the employees of Mid-Day from being sentenced for conFRONTLINE . JUNE 9, 2017

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CO VE R ST OR Y

A controversial career Since his elevation as a judge to the Madras High Court in 2001, Justice C.S. Karnan has been involved in many a controversy relating to allegations of discrimination against him because he is a Dalit. BY ILANGOVAN RAJASEKARAN THE RAGING CONTROVERSY ON THE STAND-OFF between Justice C.S. Karnan and the seven-member bench of the Supreme Court, while causing embarrassment to the country’s higher judiciary, has also left a deep scar on the institution. The beginnings of the current controversy can be traced to the elevation of 65-year-old Chinnaswamy Swaminathan Karnan from the Bar to a judge on the bench of the Madras High Court on March 30, 2009, after he had served as a lawyer in the Madras High Court for more than a decade. He was made a permanent judge two years later. Until then no one seemed to have heard about him. His elevation to the bench surprised many then. Justice Karnan, a Dalit hailing from a village in Cuddalore district in Tamil Nadu, has been in the limelight since then for courting controversy. In the view of many observers of the judiciary, only a thin line separated his unusual behaviour from an abnormality. The unpredictability in his character is too obvious to be missed. The latest was the claim of “mental frustration” in his letter to the apex court after he was transferred to Kolkata. Besides, when he appeared before the Supreme Court in person in response to a contempt notice, he told the bench that he “has lost his physical and mental balance”. And he has always used his caste identity to claim victimhood and intimidate fellow judges and extricate himself from embarrassing situations his actions created. When he was serving on the bench in the Madras High Court in 2011, he accused brother judges of harassing him since he was a Dalit. He sent a written complaint against a few fellow judges and the then Chief Justice of the Madras High Court, R.K. Agarwal, to the National Commission for Scheduled Castes (NCSC), accusing them of “harassing and victimising” him since he was a Dalit. “This is the first time in the annals of the Indian higher judiciary that a serving judge preferred a complaint against brother judges on the charge of caste discrimination,” said a senior lawyer in Chennai. “It was to subjugate me. I was ridiculed,” he said in his complaint to NCSC Chairman P.L. Punia, who forwar-

T . S I NG AR AV E L O U

ded it to the then Chief Justice of India, Justice S.H. Kapadia. He even convened a press conference in his chamber, an unprecedented incident in the Madras High Court. These acts also led to an agitation by a few in support of Justice Karnan on the court premises then. His letter to the NCSC Chairman, dated January 6, 2014, talked about how he, as a portfolio judge for Karur district in Tamil Nadu, was prevented from inaugurating the combined court buildings in Kulithalai town. He alleged that Chief Justice Agarwal had changed his portfolio to Sivagangai district just four days before the inauguration of the court buildings, which was scheduled for June 8, 2013. “As such, His Lordship R.K. Agarwal has prevented me from any active role at Kulithalai… and

A B AN NER of the Viduthalai Chiruthaigal Katchi in

support of Justice Karnan on the Ulundurpet-Tiruchi main road in Tamil Nadu. 25

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‘Not a healthy precedent’ THE stand-off between Justice C.S. Karnan and the Supreme Court has brought to the fore many issues such as that of judicial accountability and scrutiny, evocation of the contempt law, and the gag on the media. D. Raja, national secretary of the Communist Party of India, spoke to Frontline on its ramifications. Excerpts:

ME ET A A HL A WA T

Interview with D. Raja, national secretary of the CPI. B Y T . K . R A J A L A K S H M I

What are your views on the stand-off between Justice Karnan and the Supreme Court? It has exposed the lapses and weaknesses in the judiciary, including that of corruption, accountability and lack of adequate social representation. The judiciary should be inclusive without prejudice. It was the Left parties that pushed for the National Judicial Appointments Commission. When India had helped South Africa frame its Judicial Appointments Commission, it is high time we had our own NJAC. Justice Karnan’s removal from his judicial duties and conviction have raised questions of constitutional propriety. In his letters to the President and the Prime Minister, he has also referred to the infringement of the jurisdiction of Parliament. The Constitution is clear on the procedures of removal of members of the higher judiciary. A judge can be removed only by impeachment under Article 124 (4) of the Constitution on grounds of proven misbehaviour and incapacity. According to the Judges (Inquiry) Act, 1968, a complaint can be made by a resolution of 100 members of the Lok Sabha or 50 members of the Rajya Sabha. The motion is submitted to the presiding officers of the Houses concerned, following which an inquiry committee is set up to look into the complaint. The committee comprises members of the judiciary and may include an independent agency as well.

What do you see as the way forward? There should be a dialectical link between law and justice. Justice should have the backing of law. Laws will always have a bias as they are part of a superstructure defined by the ruling classes. But justice cannot afford to have a bias. If there was an issue about Justice Karnan’s behaviour or functions, they should have been investigated. How can the Supreme Court sentence him and at the same time pass an order for his mental examination? In any case, the constitutional route should have been adopted. It is not a healthy precedent. The gag order [on the media] is equally mystifying. It is for the people to judge. There is a perception that when the judiciary is attacked, courts act swiftly. There are so many contempt petitions pending in courts against State governments and even the Central government. There are 1,626 contempt cases pending against the Tamil Nadu government as revealed by a Right to Information application. The question also arises as to who does Justice Karnan appeal to? He has not been interrogated; should he go to jail? These issues have to be dealt with in legal jurisprudence. And had the matter reached Parliament, it would have given MPs an opportunity to discuss the larger issues confronting the Indian judiciary.

An opinion prevails that Justice Karnan may have trivialised the issue of caste discrimination by writing to the National Commission for Scheduled Castes. There is also a view that the Supreme Court could have taken cognisance of his allegations and investigated the same. The issue is not just about Justice Karnan. Whether the Supreme Court has acted in accordance with the Constitution has been raised in the public FRONTLINE . JUNE 9, 2017

domain. The issue should not be personalised in terms of emphasising his regional or caste identity. That issue remains—that of addressing social representation so that the judiciary is above prejudice and bias. The collegium system of appointing judges is opaque. The issue of how to ensure a fair selection procedure in appointments is a serious one. There is some discussion going on between the Central government and the Supreme Court on a memorandum of procedure for the appointment of judges. Parliament is not privy to it, but some talks are on, according to Ravi Shankar Prasad, Union Minister for Law and Justice. He said so in Parliament in response to a question. As for the charges levelled by Justice Karnan, the Supreme Court could have either initiated an inquiry or approached the President or Parliament. On the issue of contempt of court, we have had jurists of eminence like the late Justice V.R. Krishna Iyer, who wrote in The Hindu that “veiled violence through ‘contempt threat’ stultifies free speech and mocks at fearless justice”.

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displaying a form of discrimination without assigning any reason. Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, become applicable [against Agarwal],” he said in his letter.

sudden unfamiliar incident made us fume inwardly on this raw unconventional protest that was unexpected, uncharitable and ungenerous and, to say the least, it was indecorous,” stated Justice Agarwal, in the letter he wrote to the Chief Justice of India, Justice P. Sathasivam, about the incident and other related issues involving Justice Karnan, who, he urged, should be shifted from the Madras High Court. The Chief Justice alleged that the judge had barged into his chamber after “hurling a volley of invectives”. Justice Agarwal wrote further: “In fact, some of my brother judges are afraid of him. The conduct of Justice Karnan, as the present incident shows, is not only unbecoming of a judge but also tends to undermine the dignity of the Chief Justice and brings a bad name to the institution.” But Justice Karnan was not one to lie low. He preferred yet another complaint to the NCSC and asked the Chief Justice of India not to oblige Justice Agarwal’s demand [to transferr him] until he (Justice Karnan) had established “the veracity of my allegations”. In a letter addressed to the Chief Justice of India and the Chief Justice of the Madras High Court, Justice Karnan explained: “As such, it is my bounden duty to establish the veracity of my allegations. Therefore, my presence in the Madras High Court was absolutely essential.” He alleged that “gross violations” had been committed in preparing the list of 12 persons recommended for the posts of additional judges to the Madras High Court. The selection, he said, was “not conducive to court decorum and proper administrative norms” and added that he would “substantiate this view by detailed explanations on each of the misdemeanours”.

IN A PIQUANT SITUATION

Now the top court finds itself in a piquant situation with Justice Karnan raising the issue of caste bias against a few senior Supreme Court judges, too, who found him guilty of contempt. He told the Delhi media the other day that he was “ashamed of being born in India and would not hesitate to move to a country where caste discrimination does not exist”. Dalit lawyers rallied behind him and, along with a few activists, attempted to stage a road blockade at Anna Salai, Chennai, on May 16, demanding withdrawal of the Supreme Court’s sentence against him. They were arrested and enlarged on bail later. Justice K. Chandru, former judge of the Madras High Court, said using the Dalit card as a weapon was incorrect. “Justice Karnan knows very well that whenever his conduct is questioned, he could use the Dalit card. It is a weapon of convenience. You must understand that there were Dalits among the judges who complained against him. The wife of a Dalit judge filed a petition against him. Every time this Dalit card is pulled out, things are hushed up. If you look at his conduct over the last five years, it is clear something is seriously wrong,” he told Frontline. Many other serving judges and senior lawyers, who did not wish to be named, endorse Justice Chandru’s views. But a Madurai-based lawyer, W. Peter Ramesh Kumar, who was sentenced to six months’ imprisonment for criminal contempt by the Madras High Court and is a close aide of Justice Karnan, reiterated that the senior judge had suffered the worst form of discrimination based on birth in the Madras High Court. “But the Chief Justices of both the Madras High Court and the Supreme Court never treated it seriously. He is a whistle-blower in the institution, for which he is being harassed,” Peter Ramesh Kumar said. During a brief interaction with this correspondent in Chennai some time back, Justice Karnan, talking about the problems he faced, claimed that he had the moral right to interfere in what he felt were “important socially and legally relevant issues”. He said: “I have a responsibility to do. The society to which we all belong to needs to be respected. If a system remains insensitive, it is our responsibility to set it right. Exactly that is what I have been doing in the judiciary too.” In January 2014, the collegium was about to finalise names for the posts of additional judges for the Madras High Court when a public interest litigation (PIL) petition was filed against it. A Division Bench was hearing the case when Justice Karnan, who was a serving judge then, stormed into the court hall. After terming the system “autocratic”, he claimed that the “selection is not fair” and threatened to file an affidavit in this regard. The judges on the bench were taken aback. “The

SYNONYMOUS WITH CONTROVERSY

By then Justice Karnan had become synonymous with controversy. Just prior to his complaint to the NCSC, in 2015, the important portfolios Justice Karnan held in the Madras High Court were withdrawn, which infuriated him further. He went on long leave after he was allotted “insignificant or dummy” portfolios. In the same year, he also accused a brother judge of sexually assaulting an intern in his chamber. Justice Karnan’s spat with the then Chief Justice Sanjay Kishen Kaul, now a judge in the Supreme Court, assumed folklore proportions when the former, on April 16, 2015, stayed the Chief Justice’s administrative order with regard to the selection of civil judges, which the Madras High Court stayed the next day. Interviews were slated from April 15. But Justice Karnan initiated suo motu proceedings and stayed the entire recruitment process. He sought the selection list of the names of district judges with their biodata, the list of judicial officers who conducted the examination and evaluation, and the names of the members of the selection committee, from the Joint Registrar, RTI Section, Madras High Court. Not satisfied with this, in a letter addressed to the joint director of the Central Bureau of Investigation 27

FRONTLINE . JUNE 9, 2017

Another first in judicial history THERE have been judges in the past with questionable background and unbecoming behaviour. But in all of those cases, the matter had remained within the judiciary. Justice Karnan has brought such behaviour to the open. Justice Karnan is a standing monument to the fact that the collegium system of judges’ appointment is not foolproof. How did a person of such qualities become a judge in the first place? The process of selection involves the High Court collegium, the Supreme Court collegium, the office of the President and the Union government which does the background check. He was appointed as a judge in 2009 and within two years he was confirmed as a permanent judge. We should assume that he had escaped any proper scrutiny of his background. Once a person is appointed, the only intervention possible is through impeachment by Parliament, which is a complex and long-drawn-out process. Unlike many past instances of complaints against judges, which remained in the realm of gossip in the corridors of the courts, in this case you have specific complaints made against the conduct of Justice Karnan by three successive Chief Justices who served in the Madras High Court and were later elevated to the Supreme Court. This apart, his own conduct, where he had abused fellow judges in the media and passed orders that have no basis in law, and intervened in court proceedings, all these went unnoticed by four successive Chief Justices of the Supreme Court. Further, 21 judges of the Madras High Court have written specific complaints against Justice Karnan to the Supreme Court. At least at that stage the Supreme Court should have intervened and conducted an inhouse inquiry to take further action against him. The Supreme Court failed miserably in using the in-house procedure evolved by it. For any investigation to begin, especially on sitting judges, there has to be prima facie material available. Let us also examine the conduct of Justice Karnan who is making these allegations. When he addressed the media after the Supreme Court issued a bailable warrant against him, standing next to him was a person convicted by courts for criminal contempt and who is known to have a dubious background. How will one expect any confidence in the accusations made by a judge who has no problems in being in the company of convicted criminals? Another major problem exposes the inadequacies of the system. How can transfer be the solution for such misconduct? If a person is corrupt or is mentally imbalanced, will transferring him solve the problem? Justice Karnan is the embodiment of all that is wrong in judicial appointments and judicial accountability. FRONTLINE . JUNE 9, 2017

K. V. S. GI RI

During the hearing on the challenge against the National Judicial Appointments Commission law, which sought to replace the current system of collegium appointments, the judges asked the Attorney General if he could point out one specific instance of a bad appointment. By doing so, the judges diluted the arguments against elements like Justice Karnan. There were written complaints against him not by pedestrians but by Chief Justices of High Courts. What prevented the Supreme Court from conducting an in-house investigation or recommendation for impeachment? Caste prejudice can be open or concealed. Unless a person who suffers expresses himself, others cannot feel for him. But, given the kind of powers a judge wields and the kind of respect you have in society by virtue of that position, it is difficult for [such] people to be insulted openly. Justice JU ST ICE K. CH AND RU . Karnan has said that fellow judges insulted him because he was a Dalit. But from the nature of his allegations, I feel it was done to garner sympathy. He has not listed out any incident. He wanted specific portfolios allotted to him in the Madras High Court. Why should a judge seek any specific portfolio knowing well that such allotment is done through a roster system? The Chief Justice, who refused, was abused with the choicest of words. Where does the question of Dalit come in here? Many questions are raised in the public realm, implying that a sitting judge cannot be punished for contempt. Except for the post of President and Governors of States, there are no immunities granted for any illegal action. Maybe after a sitting judge is convicted for criminal contempt, Parliament may take steps to impeach such a judge on account of proved misbehaviour. In this country, contempt laws are used to browbeat anyone who dares to criticise the judiciary. You cannot have respect by command in a democracy. For example, take the case of former Supreme Court judge Markandey Katju. It is unpardonable what the Supreme Court did to him in the recent contempt proceedings. The judiciary has to inspire confidence by its actions and not through the contempt law. I think such a law is unnecessary in a democracy. Justice K. Chandru, retired judge of the Madras High Court. (As told to Ilangovan Rajasekaran.)

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(CBI) in Chennai, Justice Karnan instructed him to inquire into the educational qualifications of the then fellow judge Justice V. Dhanapalan who was a selection committee member. However, a three-member bench of the Supreme Court, headed by the then Chief Justice of India H.L. Dattu, moved by the Madras High Court Registry, restrained him from interfering with the process of selection of civil judges. The apex court had to step in on more than one occasion to bail out other judicial officers who faced Justice Karnan’s fury and also at every time he chose to act in ways considered to be either unethical or eccentric. But he perhaps outdid himself when the then Chief Justice of India T.S. Thakur recommended his transfer to the Calcutta High Court. He, in yet another act of defiance, stayed it through a suo motu judicial order (February 15, 2016). He sought a written statement from the top court on the reasons for his transfer. The Supreme Court Bench led by the present Chief Justice, J.S. Khehar, however, stayed all orders issued by Justice Karnan from February 12, 2016, the date he received the transfer order to Kolkata, before authorising the Madras High Court to strip him off his judicial and administrative powers. His reaction was terse. “Mine is a separate constitutional office. How can the apex court interfere in my office without hearing me? Parliament is the competent authority to decide [on this],” he claimed. But what he did after that did not come as a surprise to anyone. Realising the gravity of the situation, he backtracked on his belligerent stance and conceded that he passed an “erroneous order” [stay order] because of “mental frustration resulting in the loss of mental balance since I was disturbed through various incidents”. In his letter addressed to Justices Khehar and R. Banumathi, he said he had been disturbed since some fellow judges in the Madras High Court had “ridiculed” him. He said he did not name the judges who “indulged in such ugly pranks” in order to uphold the “sanctity of the judiciary and maintain communal harmony”. He, however, assured the judges that in future he would foster a “harmonious attitude to one and all”.

Justice Karnan was transferred to the Calcutta High Court on March 11, 2016, and not long before he found himself embroiled in a fresh controversy. In June 2016, during the hearing of the high-profile case of the collapse of the Vivekananda flyover in Kolkata, which claimed 27 lives, Justice Karnan had a spat with Justice Ashim Roy in open court. Justice Roy was the senior judge of the Division Bench which was looking into the bail application of the officials of IVRCL, the company that was commissioned to construct the flyover. CONTROVERSY IN KOLKATA

On May 20, 2016, the Division Bench comprising Justices Roy and Karnan refused bail to the 10 IVRCL officials accused in the case; however, Justice Karnan signed in favour of the accused 18 days later, claiming that he had a change of heart after going through the papers again in his chamber. Justice Roy objected to this, pointing out that such decisions should be taken in open court, and a heated debate ensued. Soon after the incident, the Calcutta High Court Bar Association held a general body meeting in which the lawyers decided to boycott the court of Justice Karnan. Suranjan Dasgupta, the secretary of the Calcutta High Court Bar Association, said: “Earlier, Justice Karnan had misbehaved with two of the advocates, including the Chief Public Prosecutor. Justice Karnan had told the prosecutor, who is a very senior lawyer, that if he continued to argue, he would complain against him to the Bar Council of West Bengal and the Bar Council of India and see that his licence is cancelled. This, along with the fact that he had an open tiff with a senior judge, led us to decide to boycott the court of Justice Karnan.” The boycott lasted for two days and then Justice Karnan met the representatives of the lawyers and the matter was resolved. “Justice Karnan wanted to meet us, so I went and met him along with my office-bearers. He was very polite and courteous and said that that it was a misunderstanding and that he did not have any hard feelings towards lawyers and his brother judge; he regretted what he had said and did not mean to hurt anyone’s feelings and the matter was sorted out,” said Dasgupta. After the incident, Justice Karnan was given charge of a single bench, and, according to lawyers, performed his functions well. “He was a good judge and was known to be relief-minded—meaning he tried to provide relief to those who had turned to the court with their problems,” a senior lawyer of the Calcutta High Court told Frontline. According to highly placed sources in the Calcutta High Court, after Justice Karnan passed a stay order against the Chief Justice of India’s order transferring him to the Calcutta High Court from the Madras High Court, a section of influential lawyers raised objections with the then Chief Justice of the Calcutta High Court, Manjula Chellur. “We had said that we did not want such a controversial judge in the Calcutta High Court. But at the Chief Justice’s request, we relented,” a senior advocate told Frontline. � With Suhrid Sankar Chattopadhyay in Kolkata

SUMMONED FOR CONTEMPT

But the Supreme Court stuck to its order of transferring him to the Calcutta High Court, especially after the Chief Justice of India received a petition from a batch of 21 judges levelling serious charges against Justice Karnan who by then had dispatched letters to the President, the Prime Minister and senior Ministers alleging corruption among former and current judges in the country. This prompted the top court to summon him for contempt, the first in the history of the judiciary against a sitting High Court judge. Justice Karnan appeared before the seven-member bench on March 31 and offered an apology but wanted his judicial and administrative powers restored. “Arrest me and punish me if you want. Restore my job,” he told the bench, which, on May 9, sentenced him to six months’ imprisonment. 29

FRONTLINE . JUNE 9, 2017

CO VE R ST OR Y

Divided on support Dalits are unhappy over the turn of events in the judiciary but many of them find it difficult to support Justice Karnan. BY DIVYA TRIVEDI “I AM LIKE NAPOLEON, AN ADOPTED SON OF Dr Ambedkar,” said Justice C.S. Karnan. Whether he is on the right side of the law or not, his stand-off with the Supreme Court judges ignited a debate on caste discrimination in the judiciary. While opinion was divided among Dalits over their support to Justice Karnan, there was no disagreement that there was bias against the Scheduled Castes (S.C.) and the Scheduled Tribes (S.T.) in the profession. Using the example of a single State, Andhra Pradesh, advocate Bheemrao explained how the S.C. quota was seldom filled properly. “There is not a single Advocate General from the S.C./S.T. community in the Andhra Pradesh High Court. Even the post of Additional Advocate General has never gone to a person from these castes. While 800 S.C./S.T. advocates have enrolled, there are not more than 200 practising advocates who come to the court. There is a huge number of dropouts as the profession is economically unsustainable for S.Cs/S.Ts.” The situation in the other States was no different, he said. Ruing the lack of support for S.C./S.T. advocates within the court system, he told Frontline: “All the big cases, such as land cases, are given to other lawyers. All atrocity case victims approach S.C./S.T. lawyers, whom we support. We fought their cases wholeheartedly, but it does not strengthen us economically to be on a par with other community members. S.C. advocates have no platform like the Reddy, Kamma or Brahmin advocates to push for their cases.” In the past six years, there has been no elevation of a judge to the Andhra Pradesh High Court from among the S.C. members of the Bar. Bheemrao said the S.Cs who were appointed as judges were those promoted from the lower judiciary. Another difficulty faced by S.C. lawyers

was that experienced lawyers did not give juniorships to S.Cs/S.Ts. If at all they got appointed, they would be made to carry papers and books to the courts, without reading the briefs, which did nothing to improve their skills or knowledge. “Training camps should be held for S.C./S.T. lawyers and some of the legal aid cases should be given to them so that they can learn and also earn. The court system works when seniors promote juniors. S.C./ S.T. lawyers also need to be promoted,” he said. DISCRIMINATION

While the number of S.C./S.T. advocates is low, the number of S.C./S.T. judges can be counted on the fingers of one’s hand. This is the reason why Dalits appreciate the fact that Justice Karnan was able to become a judge and want to support him. They feel he has been able to oppose discrimination from within the system. Karthik Navayan Battula, lawyer and activist, told Frontline: “Justice Karnan’s case has exposed the inherent limitations of Indian civil society. He has exposed its prejudice and arrogance against Dalits, supported by status quoist invisible assumptions of what kind of assertion is accepted from the dispossessed. He was asked to go for a medical examination, maybe because they were shocked and frustrated by the fact that a Dalit could point out the existence of corruption. According to existing social standards, Dalit assertion is accepted only if Dalits ask for subsidies, that is, benefits for being loyal. When they act like anyone else and raise their voice as a whistle blower or human rights defender, their voices are simply dismissed so that their contribution is not recognised. This is the reason why civil society has not come out in support of Karnan.” The SC/ST Association in the Andhra Pradesh High

While the number of S.C./S.T. advocates is low, the number of S.C./S.T. judges can be counted on the fingers of one’s hand. This is the reason why Dalits appreciate the fact that Justice Karnan was able to become a judge. FRONTLINE . JUNE 9, 2017

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Court, which has 30 members, will stand by Justice Karnan and release a statement after ascertaining certain facts, Bheemrao said. “In principle we are in support of him. Prima facie, the judiciary has been improper in dealing with this issue. We will issue a resolution after we study and interpret the law on it." Justice Karnan had written to the National Commission for Scheduled Castes about facing discrimination.

Many lawyers feel that Justice Karnan may have flouted some rules but so did the Supreme Court judges.

AMBEDKARITE COLLECTIVE

The U.S. Ambedkarite Collective, consisting of the Ambedkar International Mission, the Ambedkarite Buddhist Association of Texas, the Ambedkar International Center, the International Commission of Dalit Rights, the Ambedkar Mission Society of Canada, the Be Educated and the Cherukonda Institute, expressed solidarity with Justice Karnan and demanded reservation for Dalits in the judiciary. Writing in the website Velivada.com, the collective noted: “In the appointment of Supreme Court and High Court judges, there is a lack of adequate representation of the Scheduled Caste, Scheduled Tribe and Backward Caste judges on the bench. From 1950 to the present, only four Scheduled Caste judges were promoted to Supreme Court. According to a report, 70 percent of the judges come from 132 families thereby giving rise to the nepotistic virtues practised in the highest orders. The Supreme Court in 1993 condemned the ‘self-perpetuating oligarchy’ in the court system which it observed gave rise to a ‘theory of judicial relationship.” It further stated that “generations of same men from the same family or caste, community or religion, are being sponsored or initiated as judges”. A group of lawyers and other professionals organised a protest in Chennai on May 17 in support of Justice Karnan. The Birsa Ambedkar Phule Students Association of Jawaharlal Nehru University organised a public talk in support of Justice Karnan. The speakers included: Advocate Nithin Meshram, Professor Y.S. Alone, Dr Raj Kumar, Prof. Hany Babu of Delhi University, and Dilip Mandal. Mandal has been active on social media defending Justice Karnan. He said that after Partition, both India and Pakistan had Dalit Law Ministers: Ambedkar and Maharana Jogendra Nath Mandal. “In those days Dalit advocates used to rule the roost as the judges were Englishmen who did not see the caste but the merit of lawyers. After freedom [from the colonial rule] most judges were Brahmins who used to promote same-caste lawyers. Gradually, Dalits left the profession.” Other voices amongst Dalits were unhappy at the turn of events but found it difficult to sympathise with Justice Karnan, for which they were attacked on social media. Leading figure in Hindi Dalit literature and Ambedkarite thinker Kanwal Bharti said Justice Karnan was fighting a good fight in the wrong way. “He stayed his own transfer order and registered a report in the S.C./S.T. Commission against it. He sent the complaint about corruption by 20 judges to the President and the Prime Minister whereas he should have sent it to the Chief Justice of India. When the Supreme Court

invited him to defend himself, he refused to go and kept giving bytes to the media. He crossed all limits when he sentenced the Chief Justice of India along with eight other judges to five years imprisonment as if in his court a case was going on against them. Was it not wrong on his part? Is it not an insult to the judicial process to issue punishment without a case or hearing?” he said. Pramod Ranjan, the editor of Forward Press, who believes that a person is an Ambedkarite by thought and not necessarily by birth, said Justice Karnan’s Hindu religious fervour was counter to professing the Ambedkarite ideology. “It is not a coincidence that on the basis of intelligence inputs, the police forces of Kolkata, Tamil Nadu and Andhra Pradesh were searching for Justice Karnan in Hindu temples. He is a deeply devout and religious person. His days begin with pooja-path [religious rituals] and holidays are spent in circling temples. He considers the Buddha as an avatar of Vishnu and Dr Ambedkar as an avatar of the Buddha. He has strong belief in astrology and numerology and teaches the same to people who meet him. His real name was S. Karunanidhi but when he found that based on numerology, the name would be an obstacle to becoming a big man, he changed it to Chinnaswami Swaminath Karnan in 1991,” he wrote on his Facebook wall. Several Dalits found it difficult to defend Justice Karnan in the light of the tilak he wears on his forehead. Hany Babu is not concerned about Justice Karnan’s ideology and political views but he insists on supporting him in the light of the fact that Justice Karnan had been fighting discrimination in the Madras High Court and then the Supreme Court. Many lawyers feel that Justice Karnan may have flouted some rules but so did the Supreme Court judges. One of the lawyers, who did not wish to be named, said: “No one can be judge in one’s own cause. This holds true for both Justice Karnan and the Chief Justice of India Khehar. In his open letter, Justice Karnan sought a probe into Kaliko Phul’s letter accusing the CJI of corruption, among other things. An investigation should have been conducted instead of pressing charges against the person who made the complaint. Justice Karnan was not disparaging the institution; he was asking for a probe against an individual. There is a difference between the court and a judge. The CJI was accused in the letter, and therefore should not have presided over his own case the same way as Justice Karnan should not have done. It is a contempt of Parliament.” � 31

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CO VE R ST OR Y

Stalled impeachment The process to initiate impeachment proceedings against Justice C.V. Nagarjuna Reddy of the Andhra Pradesh/Telangana High Court for alleged interference in the course of the judicial process, including physical assault and use of caste slurs against a Dalit junior civil judge, is sought to be revived. BY KUNAL SHANKAR

FRONTLINE . JUNE 9, 2017

C. V . SU B R AH M AN YA M

ON DECEMBER 5, 2016, JUSTICE C.V. NAGARJUNA Reddy of the High Court for Andhra Pradesh and Telangana became the fifth judge in independent India against whom Members of Parliament resolved to begin impeachment proceedings; but he was the first against whom the process ended within 10 days of its commencement after one-third of the Rajya Sabha members withdrew their signatures, aborting the motion for want of the requisite numbers in the Upper House. In India’s constitutional scheme of things, judges of the High Court and the Supreme Court enjoy complete independence to adjudicate “without fear or favour”. As per Article 124 (4) of the Constitution, the only way to remove a judge for “proven misbehaviour” is through an elaborate process of impeachment initiated by not less than 50 MPs of the Upper House or double that number in the Lok Sabha. The process was first attempted in 1993 against Justice V. Ramaswami of the Supreme Court after an inquiry and adverse findings. The motion failed as Congress MPs present in the Lok Sabha abstained from voting, leading to a lack of a two-thirds majority favouring impeachment, which is another requirement under Article 124 (4) of the Constitution. The allegations against Justice Nagarjuna Reddy, if true, are grave. One of them was that he interfered in the course of the judicial process, including physical assault and caste slurs against a Dalit junior civil judge posted in his home town, Rayachoti, in Kadapa district of Andhra Pradesh. The December 1, 2014, representation to the Supreme Court seeking initiation of in-house inquiry into his accusations by Sanku Rama Krishna, the Junior Civil Judge/Magistrate, accessed by Frontline, says that Justice Nagarjuna Reddy’s brother Pavan Kumar Reddy, who was the Additional Public Prosecutor at the Rayachoti District Court, was part of a wide nexus of red sandalwood smuggling in cahoots with the local administration and the police. He claimed that Justice Reddy and his brother “control the entire judicial machinery of

JU ST ICE C.V. Nagarjuna Reddy.

Rayachoti, from appointments to granting of bail to undertrials, to administrative duties such as records maintenance”. Rama Krishna, in fact, holds the brothers responsible for the “disappearance of court records” in several instances. This was also the time when Justice Nagarjuna Reddy was the “portfolio judge” of Kadapa. In layman’s terms, it is an administrative supervisory role over a certain jurisdiction that lies within the High Court’s purview. The aborted motion, initially signed by 54 Rajya Sabha members, which was accessed by Frontline, states that Pavan Reddy set his domestic help on fire in a fit of rage, leading to his death on November 20, 2012. This, he 32

said, was because Ramanjulu, the domestic help, refused to cooperate in a cover-up of the use of a Forest Department vehicle for smuggling sandalwood. The dying declaration given by Ramanjulu to Rama Krishna, which was accessed by a Guntur-based non-profit organisation under the Right to Information (RTI) Act, shows it was recorded around 8 p.m. on November 20, 2012, at the Government Area Hospital, Rayachoti. Rama Krishna claimed that Justice Nagarjuna Reddy called him 10 days later demanding that he drop his brother’s name from the dying declaration. The dying declaration elaborates Pavan Reddy’s attempt to get Ramanjulu’s signature on blank sheets of paper, to use it as his admission for the theft of the vehicle. He further stated that his refusal to do so enraged Pavan Reddy, who in an inebriated state poured kerosene on Ramanjulu and set him on fire. There are also accusations of demands to withdraw criminal complaints lodged by Rama Krishna against two court staff, one of whom is Justice Nagarjuna Reddy’s niece D.R. Laxmi Devi. Rama Krishna’s February 7, 2013, complaint accuses the court staff of colluding with undertrials, faking weekly appearances, forging judges’ signatures, and even tearing off pages from record books. Rama Krishna’s complaint about a week later, on February 13, accused Justice Nagarjuna Reddy and his brother of physical abuse, threats to kill him and the use of caste slurs in the presence of the local Circle Inspector at the judge’s home in Rayachoti for refusing to withdraw the complaints. Rama Krishna began a series of attempts to seek redress by way of complaints, representations and writ petitions both in the High Court and in the Supreme Court. His first complaint was with the Vigilance Registrar at the High Court in Hyderabad the day after the alleged incident. He filed a simultaneous complaint with the Chief Justice of the same court. A week later, he was transferred to Chintapalli in Visakhapatnam district, that is, from Rayalaseema to coastal Andhra in the Tribal Agency Area. And another three weeks later, he was suspended from duty as the Junior First Class Magistrate (JFCM). He has not been reinstated since. Rama Krishna followed up with a representation in the Supreme Court on September 17 that year, aggrieved that neither the Vigilance Registrar nor the Chief Justice of the High Court had initiated an inquiry into his complaint. The Supreme Court returned the complaint to the High Court seeking its opinion on the matter.

The motion for impeachment sets out certain other unacceptable conduct by Justice Nagarjuna Reddy, such as acquiring assets disproportionate to known sources of income. Chief Justice of India (CJI) whether to inquire into the complaint or not. Frontline has learnt that following a representation made to him by the Campaign for Judicial Accountability and Reforms (CJAR) on August 30, 2016, the then CJI, Justice T.S. Thakur, requested his colleague Justice Ranjan Gogoi to scrutinise the case for a preliminary view. The CJAR is a Delhi-based advocacy network seeking to reform and fight corruption and impropriety in the higher judiciary. Justice Gogoi, in turn, suggested a more thorough three-member inquiry committee, which is the process put in place by the 1995 judgment. But this process was not initiated. Justice Thakur retired on January 4 this year after 13 months as the CJI. According to jurists, the paucity of time, with retirement looming, often scuttles in-house procedures. The CJAR representation also accused Pavan Reddy of continuing in office as the Additional Public Prosecutor (APP) “illegally for a decade”. It said: “The law mandates that a person who has practised as an advocate for not less than seven years is eligible to be appointed as APP. Pavan Reddy was the sarpanch of Gadikota village of Veerballi Mandal, Kadapa district, during the period 2001-2006. Pavan Reddy was appointed as APP in 2006 for a period of three years in contravention of the law that mandates seven years of continuous practice as an advocate prior to appointment as an APP. He was given another term for three years, which ended in 2009. His third term ended in April 2012 and Mr. P. Bharani Kumar was appointed as APP in place of Pavan Reddy. On 16.05.2012, however, P. Bharani Kumar was removed and the temporary charge was again given to Pavan Reddy. Apparently, thereafter, he was regularised and is continuing till today.” Meanwhile, Rama Krishna filed two writ petitions in the High Court in Hyderabad—one in 2013 seeking action on his complaint against Justice Nagarjuna Reddy and another in 2014 seeking a direction to the High Court’s Vigilance Registrar to inquire into the complaints levelled against Pavan Reddy and other court staff at Rayachoti. A two-judge bench of the High Court finally admitted the second petition after the removal of Justice Nagar-

INQUIRY MECHANISM

There is an in-house inquiry mechanism for the country’s higher judiciary, which was set in motion by a Supreme Court judgment in 1995. The C. Ravichandran Iyer vs A.M. Bhattacharjee judgment directed the Chief Justices of all High Courts to receive complaints relating to judges of their courts. It also directed them to ascertain the veracity of the accusations and “consult the Chief Justice of India where deemed necessary, by placing all their information with him” but left it to the discretion of the 33

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K . V. S. G I R I

T H E H I G H C O U R T O F Andhra Pradesh and Telangana in Hyderabad.

juna Reddy as a respondent among the list of parties, arguing that it was improper for the High Court to consider accusations in open court against one of their own. Exasperated, Rama Krishna breached an ethical code: he held a press conference to get his message across. This invited contempt proceedings by the High Court, which Rama Krishna challenged in the Supreme Court. Rama Krishna attempted once again to reinstate Justice Nagarjuna Reddy as a party in the High Court case earlier this year. On March 9, a two-judge bench led by Justice V. Ramasubramanian rejected the plea with adverse findings. The court held that several documents submitted by Rama Krishna as evidence were not genuine or tampered with. It reasoned that this was apparent from the inconsistencies in the dates mentioned in the various representations and the corrections found in Ramanjulu’s dying declaration to portray a conscious state of the victim while, according to the court, the medical opinion was otherwise. On December 6 last year, a day after the first motion to initiate impeachment proceedings was presented, Justice Nagarjuna Reddy declared his intention to go on leave. Ten days later, 19 of the 61 MPs withdrew their signatures, owing to a sudden change of mind. The Hindu quoted YSR Congress MP Vijay Sai Reddy as saying: “If you are trying to bring in caste into every aspect, we will not be able to function properly as a society.” As the requisite numbers were not there, Rajya Sabha Chairman Hamid Ansari refrained from constiFRONTLINE . JUNE 9, 2017

tuting a three-member committee under the 1968 Judges Inquiry Act, which is the next stage of the impeachment procedure. Justice Nagarjuna Reddy returned to work in Hyderabad the next day. At the time of filing this story, Rama Krishna’s mobile phone was “not in service” and one of the lawyers who appeared for him in the Hyderabad High Court replied via text message to this correspondent saying: “Since a few days his whereabouts are not known, everyone is trying to reach him, it’s worrying”. The motion for impeachment sets out certain other unacceptable conduct by Justice Nagarjuna Reddy, like acquiring assets disproportionate to known sources of income and purchasing a property when he was engaged as counsel in that very case, which is prohibited conduct for a lawyer. These are not issues covered by the order of the High Court rejecting Rama Krishna’s plea. In any case, the High Court’s order is not a final one in the writ petition. Frontline has learnt that another attempt has been made to initiate impeachment proceedings against Justice Nagarjuna Reddy. A Rajya Sabha member, who played an active role in mobilising support for the process, said that this time there would be no withdrawal of signatures and that the motion, with the requisite numbers, had been resubmitted to the Rajya Sabha Chairman. The process of impeachment under the Constitution is a political one. It remains to be seen whether Parliament will view the judge’s alleged conduct as misbehaviour to consider his removal. � 34

INTER VIEW

‘Agenda of Alliance is the only way forward’ Interview with J&K Chief Minister Mehbooba Mufti. B Y S H U J A A T B U K H A R I CHIEF Minister Mehbooba Mufti, one of the founders of the ruling People’s Democratic Party (PDP), has been in power for the past 13 months, a period that has seen some of the worst disturbances in Kashmir’s history. Her government has been fighting stone-throwing protesters on the streets and the new brigade of young gun-wielding militants in the Valley even while trying to convince her coalition partner, the Bharatiya Janata Party (BJP), of the need to initiate dialogue with Pakistan and the separatist leaders in Kashmir and to create an atmosphere conducive to that. The Chief Minister talks about the issues confronting her government and the road ahead. Excerpts: How do you see the situation in Kashmir right now? The situation is very challenging. It has been a problem for the past 70 years, but today it is manifesting itself in various ways. Since 2008 it has changed in many ways, like militancy was seen declining but at the same time agitations and agitational politics were on the rise. Today, youths are proactive and it is a challenging situation. Apart from it being a political problem, there are so many things responsible for it, there are so many issues concerning the ground situation. Have the provocations from Delhi, from different quarters, also contributed to this? When there is a problem, you

the only way they feel they can be relevant is by creating chaos and confusion. It has become a money game for them.

N I SS AR AH MAD

How do you view the role of the BJP? Do you think that they have let you down?

have an issue, then any other thing that is not well-received by the people adds to the problem. They definitely precipitate the issue. Last year there were certain quarters looking for an excuse even if you clarified many things. In the Assembly, I and my Ministers tried to clarify about the Kashmiri Pandit colony and Sainik colony issues, yet the very next day statements came from different people that a Sainik colony ws being set up. I think they were preparing. At times, there are people who want to keep the issue alive. Some people are very genuine, who want a resolution of this problem, who want to see peace returning to the State, who want every Kashmiri to have a life of dignity. But there are others for whom it has become a business to keep the pot boiling, and 35

When Mufti [Mohammad Sayeed] sahab entered into this alliance, the idea behind it was much bigger than anyone could anticipate. It was like 1947, when Sheikh Mohammed Abdullah entered into an alliance, rejected the two-nation theory and went for secular India and supported the Maharaja in his accession to India. At this point of time, there was a mandate, which was very divergent, and then after a long time you had a Prime Minister who had secured a brute majority and who seemed to echo Vajpayee. Vajpayee is the only leader who is remembered very fondly by Kashmiris even today. He was the only one who went out of his way to reach out not only to Kashmiris but even Pakistan despite the Kargil War, despite the attack on Parliament House. That is why Mufti sahab thought that this alliance would do wonders for the subcontinent. He was not thinking about Kashmir only. He was thinking beyond himself, his party, beyond the formation of the government. Unfortunately, his health was not good during those 10 months and he did not get enough time, and things did not shape up the way he wanted. For that I would not say the BJP is to be blamed, but I think it was FRONTLINE . JUNE 9, 2017

Cracks in the alliance? FOR the past few months the situation in Kashmir has intermittently turned ugly and the ongoing student unrest has given it a new dimension. Some of the leading colleges and schools in Srinagar remained shut for most of mid May because the moment they reopened trouble erupted and quelling it became a major challenge for the authorities. The local population has kept up its resistance to the Army’s operation against militants, said to number 88 in all, in south Kashmir. The operation, first launched on May 4, continued on May 17, though with fewer personnel. Defence Minister Arun Jaitely and Chief of the Army Staff Gen. Bipin Rawat reviewed the situation in Srinagar on May 18 and 19. While, the Bharatiya Janata Party (BJP) government at the Centre seems to be under pressure to go hard on Kashmir, its policy is dotted with security concerns rather than the exigencies of politics. Indeed, its handling of Kashmir is becoming crucial in the context of the 2019 general election and the ambition to “conquer” all the States where elections are due in the next two years. On the other hand, it is in coalition with a regional party, which until a few years back was seen peddling

soft separatism and had a strong pro-Kashmir and pro-dialogue line. Chief Minister Mehbooba Mufti, as head of the People’s Democratic Party (PDP), ensured its growth by sympathising with not only civilian victims of state atrocities but also families of militants. Her father, Mufti Mohammad Sayeed, was a strong votary of dialogue and reconciliation with both Pakistan and the Hurriyat. That is why when the alliance between the PDP and the BJP was stitched in 2015, it took two months to finalise the Agenda of Alliance (AoA), which clearly mentions dialogue. However, provocations from the BJP and its ideological cohorts appeared to be driving the government’s Kashmir policy in 2016, which saw a summer of unrest as the pellet gun became the new tool against protesting youths. The government’s charge that Pakistan was fuelling the unrest had no effect as the people’s involvement in the agitation was complete. When the protests started dying down, it was hoped that New Delhi would reach out to the people through political representatives of all hues. Though a parliamentary delegation visited Kashmir in September 2016, the Joint Hurriyat Conference leader-

the situation, the way the media, especially the electronic media, play up things, the atmosphere that was created because of various things. Someone was joking some days back, saying that if the electronic media had been there in the 1990s [the situation in] Kashmir would not have been where it is, I don’t know what would have happened to Kashmir.

because he could create that kind of atmosphere on the ground. Then Vajpayee came, announced a ceasefire on the border, then dialogue was announced, militancy was going down, then Vajpayee initiated the opening of routes. It was a combination of good governance, political process and a favourable atmosphere on the ground.

So the media are to be blamed more than the BJP?

Provocations from the BJP began when Mufti sahab took charge. They went to court on Article 370, and there was the issue of the State flag. Rather than contributing towards the vision of Mufti sahab, the BJP was sabotaging.

For any movement forward, you need to have a favourable atmosphere on the ground. My father was able to change things in his first tenure when we went with the Congress FRONTLINE . JUNE 9, 2017

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ship of Syed Ali Shah Geelani, Mirwaiz Umar Farooq and Yasin Malik refused to meet it as long as they were in detention either in police stations or under house arrest. Subsequently, an initiative by a citizen’s group led by former Foreign Minister and BJP leader Yashwant Sinha did break the ice when its members arrived in Srinagar on their own. Sinha was seen as a senior politician who would have the ear of the Prime Minister, so his visit was taken seriously and the Hurriyat leaders engaged with him. Sadly, as Sinha himself said in an interview, he was not even granted an appointment by the Prime Minister. At the same time, the nonBJP parties have toyed with the idea of a Kashmir conclave in Delhi to invite attention of the rest of the country to the “real issue”. Sharad Yadav of the Janata Dal (United) is leading the initiative, but some BJP leaders have dismissed it as a move to “discredit Modi”. The Congress, on its part, is struggling to be relevant by setting up a policy group on Kashmir led by former Prime Minister Manmohan Singh. As for the BJP government’s stand, its functionaries have made it clear that no engagement was possible with the Hurriyat. The Minister of State in the Prime Minister’s Office, Jitendra Singh, claimed that

Mufti sahab always said these are two different ideologies. We did not expect a very smooth start. They have their own ideology and we have ours and there were going to be contradictions to start with. They went to court on Article 370 and now, after two years, you have Mr Amit Shah saying that abrogation of Article 370 is not going to resolve anything. So that means it takes time. Definitely, there have been certain provocations which came from their side, which we could have done without. But the Agenda of Alliance is not being followed.

the Hurriyat had no support and that the youth of Kashmir wanted to go with the development model of Narendra Modi. Chief Minister Mehbooba Mufti has been batting for talks. On April 27, when she met Prime Minister Modi, she told the media: “Talks are the only option. How long can you have a confrontation? Talks with the Hurriyat [Conference] had taken place when Vajpayeeji was the Prime Minister and L.K. Advaniji was the Deputy Prime Minister. We need to start from where Vajpayeeji left. Talks are the only way out.” However, New Delhi is unmoved. The past few weeks have seen the Army being moved and preparations are under way to flush out militants in a major operation. This could push Kashmir into a into a political crisis and a new phase of uncertainty in the event of collateral damage. Any imposition of President’s Rule as demanded by the opposition will come at a huge cost for the BJP, involving a loss of face locally and internationally because of the failure to bring back even a facade of democracy in Kashmir. Shujaat Bukhari The Agenda of Alliance is the only way forward. It is a road map, which is the crux of the working groups’ reports. Working groups [formed in 2006] have been the crux of the agenda of our party from the beginning. The N.C. [National Conference] says autonomy, the Congress says something else, the BJP says something else, we say self-rule. So the Agenda of Alliance is the crux of the working groups’ reports endorsed not only by the Prime Minister then but by all the political parties. Unfortunately, we have not been able to move much on the Agenda of Alliance, and I would say it is a loss not just for the PDP but for

the entire country. This is the road map if we want to take Kashmir out of this situation. Only three points of the Agenda of Alliance have been followed vigorously and implemented—the issue of Pakistan-occupied Kashmir (PoK) refugees, the West Pakistan refugees, and Kashmiri Pandits— and nothing that would match the PDP’s ideology and manifesto. As far as the West Pakistan refugees are concerned, providing them basic amenities was not exclusively the BJP’s agenda, the one-time compensation to PoK [refugees] is something that was even on our agenda and in our manifesto. About Kashmiri Pandits, I have not seen anybody keener than my father. He would tell me, I feel sad that we are not able to retain this minuscule minority of Kashmiri Pandits. He wanted to do something about it. So all these issues that we have started working on are not exclusively the BJP’s issues. Maybe they have been talking too much about it, but all these issues are human issues. There are some issues directly concerning Kashmir. Do you not think that certain issues like the transfer of power projects and revocation of the Armed Forces Special Powers Act would help ease the situation? We have been working on the transfer of power projects. At this point of time, revocation of the AFSPA sounds ridiculous when militancy is on the rise and infiltration is on the rise. You can say it for the heck of saying it, but if you are really serious, then you need to ask, is this the right time? Even if you want to, do it slowly and steadily and start from some place. You need to understand, is this the right time? I would say no. Should not something be done to address the situation. As soon as I took over, the NIT thing was there. Then we had this Handwara incident. I just got three months of relative calm and then all hell broke loose. During those three months, we had been discussing one 37

of the very important points in our agenda, of the opening of new routes like Jammu-Sialkot, NowsheraJangard, Kargil-Skardu. The Government of India and the Home Ministry were very serious about it. We were also discussing how to legalise the Nepal route. So there were certain things we were discussing and this was something that was most non-controversial in our agenda, and I believe this is something that is going to change the entire perception of people living within Kashmir and outside Kashmir. Unfortunately, whatever happened and how it happened, everything went into disarray. HURRIYAT AND PAKISTAN

Engagement with the Hurriyat and Pakistan is part of the Agenda of Alliance. Of course. The Prime Minister went to Lahore. It was after Vajpayee, he was the only one who went there. He went in a very normal way like the way one visits a neighbour’s house. Unfortunately, we had Pathankot happening. And we are living in a democratic country where the Prime Minister is also accountable and answerable to so many people, the opposition, and then you have the electronic media and everybody talking about it. I think it was sabotage and I do not know who sabotaged it, but it was sabotage. Talking about dialogue, I think I must be the only Chief Minister in the history of Jammu and Kashmir who wrote to the Hurriyat people to please talk to Sitaram Yechury and the group of

“Revocation of AFSPA sounds ridiculous when militancy and infiltration are on the rise.” FRONTLINE . JUNE 9, 2017

those parliamentarians who came, to move forward, but again the door was shut. That was the unfortunate part. But does dialogue take place in a situation where you put the other side under house arrest and detention? Nelson Mandela, Gandhi and all those people who have entered into dialogue and achieved so much in their lives have all been in jails. Even Sheikh Mohammed Abdullah was in jail when he entered into dialogue. In terms of the experience the people and leaders have vis-a-vis New Delhi, is there not a huge trust deficit? It is on both sides. Don you not think there is always an effort to discredit the leaders, whosoever they are? Well, I think we have to take a chance if you really care for your people. You see how much people have suffered. We have lost so many lives. We have suffered economically. Ultimately, we have to think what to do about it. It is we the people of J&K State who are suffering and we have to take a chance. Let us leave Pakistan aside, why does the Prime Minister not reach out to the people? There is a feeling that having Pakistan on board is as important as talking to the Hurriyat. Pakistan has its own role to play. Did Pakistan have a role in the 2016 unrest? Going by the latest admissions of some separatist leaders, it seems that they did have a very important role in last year’s unrest. It is not about Pakistan or the Hurriyat, it is more about the Indian leadership, not only Mr Narendra Modi and his Cabinet, but the entire leadership of the country. What do they have in their mind about Jammu and Kashmir? If you look at Pakistan, in the other part [of Kashmir] which is with them they have built the economic corridor, the dams and so many things. Then FRONTLINE . JUNE 9, 2017

China had taken a part of us; they are also using that. So we as a country are still busy, 70 years down the line, in containing the people of Kashmir, their anger or their emotions. So whose fault is it? As Mufti sahab would say, it is the fault of the leadership of Jammu and Kashmir as well as the leadership of the country, whosoever was there right from Jawaharlal Nehru. We need to think what we can do with Jammu and Kashmir. Can we make Jammu and Kashmir a model for SAARC cooperation? Can we do it? If China is building an economic corridor in the other part of Kashmir, why can’t SAARC countries have our offices, banks, educational universities, handicrafts universities? You need to have a better discourse in Kashmir, but we are not doing anything. SELF-RULE

But PDP talks about self-rule, which goes beyond the Line of Control. It is not only about this part of Kashmir. Of course, opening of routes between the two Kashmirs is something we have been pursuing, having some kind of joint mechanism and advisory that has been recommended by the working groups, like having people on both sides meeting each other at least once or twice a year so that they can have a joint environmental policy, joint tourism. Kashmiri Pandits have been asking why they cannot visit Sharda Peeth on the other side. Sikhs from Rajouri want to go to the other side. They have some gurdwaras there. When we talk of self-rule, it is something that has been discussed in the working groups exclusively and threadbare, and it is not alien to anyone and everyone has endorsed it. When we talked about dialogue, everybody at that point of time endorsed it; when we talked about the opening of routes, everybody endorsed it; and it is again a part of our Agenda of Alliance. Self-rule is not some book of literature; it is something which is very practicable. It is something that is for today and to38

morrow. It is a futuristic document which will bring both Kashmirs closer without undermining the sovereignty of our country and also satisfy the emotional urge of people on both sides. At the same time, the generation that has grown up after the 1990s in Kashmir—and you have been closely associated with the youth— is saying emphatically that they think they are not Indians and do not fear death. How to address that? Is military the only solution? No, not at all. The military has its own job cut out for it. It has to deal with militancy, not only with militants but militancy, which is a thought. As far as these young kids or youth are concerned, we need to have a multidimensional approach whether it is through sports, dialogue, culture, education, so many things have to happen at the same time. They need to be engaged through various ways and means. I don’t think it is the job of the military or the police. It is our job. It is the job of society, first of all of parents and then of teachers. Today’s teachers are not [the same as] what we used to have. The teacher-student relationship has changed. Kids are more tech-savvy now, they are more into mobiles, and teachers too now have a clear-cut job. I think teachers again have to become father figures and reach out to kids. The entire society—politicians, parents, and teachers—have to get together, and if we do not do that then we will lose one more generation. You attracted a lot of criticism for your toffee and milk comment of 2016. Do you regret it? I am a brutally frank person. What I said at that point of time was when there was curfew, when the situation was so bad that nobody would like to venture out, and when shops were closed, why would any parent allow their kids to go out. Even today I say that parents should not allow if there is a situation like that, every parent has a duty to ensure that their kids are safe and sound within the four walls of their

MU KH TA R K HA N /A P

IN S R I N AG A R , students throw stones during clashes with the police on May 17.

home. So why would they send their kids out, why would they do that? So many kids got hurt, many kids even died. I am a parent and I would not allow my kids to go out when there is a situation like that. The situation was uncontrollable. Many people died. Did you at any point of time think of leaving? I think that is the easiest thing to do. We have seen politicians leaving in the heat of the moment and then blaming Governors and everybody for whatever happens after that. I would always like to fight till the end. But when people were getting killed, you were being blamed for it.

ation. I still am what I was. I am still a fighter. I still care a lot for my people. I am straightforward, not a diplomatic person. I feel hurt as there was a time when I would enter these Army camps and get these boys out and fight with everybody for them. And then there was a time when these kids were on the streets trying to fight with the Army and the police with stones in their hands. There was an incident in Kupwara when the Army was punishing two boys and you picked a fight with them, but today you are defending the Army?

Chief Ministers of Jammu and Kashmir have always been seen as New Delhi’s face in Kashmir rather than as Kashmir’s face in New Delhi.

Not only in Kupwara, I fought with the Army and the State Task Force in Kapran and Dooru and so many other places. I do not defend the actions of the Army when they do something wrong, but how can we allow our kids to go and pick a fight with the Army by throwing stones at an Army camp or pick a fight with the police by throwing stones or even, at times, bottles filled with petrol at a police station? How can we allow kids to do that when we love them so much? We know there is going to be some kind of retaliation. It is so dangerous.

It may have been the case in the past, but when Mufti sahab was there he always talked about Kashmir. I always talk about my own people. I talk about how to salvage the situ-

Will there be a solution to the Kashmir issue or will Kashmir be subsumed ultimately into the politics of Delhi going by the way

My resigning from office would not have resolved anything. When Farooq [Abdullah] sahab left in 1989, did it resolve anything? No. On the other hand, he kept blaming Jagmohan after that, saying Jagmohan came and did this thing and that thing. I do not want to be responsible for running away from my duty.

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things are happening? No talks, nothing.... As I said earlier, we have to think about it. What do we want to do about this piece of land that is with us? And what about the people, how do we win them over, what do we do with their lives? Do we just watch, sometimes people are sulking and sometimes we are sulking, or do we want to make this a happening place? I would repeat, like what is being done in the other part of Kashmir, or Kashmir that is with China, we can also think about out-of-thebox things and see that it becomes a happening place with all the other countries of the SAARC. But the impression is that Delhi only thinks on the lines that this is just a piece of land. I don’t think they think this is just a piece of land. I have seen a lot of concern. The Prime Minister has been very concerned, the Home Minister has been very concerned, the Defence Minister has shown a lot of concern. So I don’t think it is just a piece of land for them. The only thing is that it is a problem that has been there for so many years. So it is not so easy because the mindset that exists in the rest of the country and the mindset that exists here are in collision with each other. That is why Mufti sahab entered into this alliance. He wanted to have some kind of a meeting point for the two sides. He wanted to change the mindset on both sides. What is the reason for the increasing support for the militancy in Kashmir, which is the major challenge you face today and no operation is being carried out? It is a cycle. Who was Burhan? When did he pick up the gun? In 2010, after the agitation. Who were the militants who picked up the gun in 2008? So there has been a cycle, militancy going down and then after some time agitations. GENERATIONAL SHIFT

What about public support, where you have thousands of people FRONTLINE . JUNE 9, 2017

attending funerals of militants and people stopping counter-insurgency operations? The way people react to things has changed. There are more protests. People are no more scared, unlike in 2010 when they would fear to go near the Army camps. The fear of the Army is no more there. After the healing touch policy, the fear of the Army was reduced to a large extent, POTA [Prevention of Terrorism Act] was revoked, and the State Task Force was disbanded. The kids who were born after that and those who were young were brought up in a different atmosphere. They did not see what the earlier guys had seen. So they do not have the fear of the Army, or they would not go and attack an Army camp. Also, the general exposure of what is happening globally is making them bolder. Then there are also people who are organising these things. You cannot say it is all spontaneous. A bunch of separatist leaders themselves disclosed that they have people in different parts of the Valley who organise such things. Your opponents say that is because of the PDP-BJP alliance. They can say that but the PDPBJP alliance has a much higher purpose than what my opponents can understand. They were also in an alliance with the BJP when they were sharing power in New Delhi. They were in alliance with other parties also. For them alliance only means power-sharing. I don’t think they would be able to understand the great vision of Mufti sahab, to put everything at stake, your own self, your individuality, your personality, your party, everything. A person went beyond small things for a big thing. Was it a gamble and did the PDP get discredited with it in Kashmir? It was not a gamble. A person gambles without knowing what he is going to do. My father knew very well what he was going to do. Till his last, he believed in this alliance. He was very passionate to do something for the people. He wanted their miseries FRONTLINE . JUNE 9, 2017

to end because it had been going on for so many years—beating up of people, bloodshed, and disillusionment. When all these things happened last year, we had so many business houses that were opening offices and we could have addressed the unemployment problem, but everybody got a setback. Of course, our party received a setback owing to so many things, but I would still say the purpose is much bigger than my party. Do you think lack of governance is also contributing towards the unrest? It is a vicious circle. The government had started well in the first three months, but since then the focus of the Cabinet has been law and order. No development work was allowed. Someone went to the contractor of a flyover to start work and then some boys went to his home and told him they will burn his home if they started work. When there is such a group of people who organise such kind of chaos and confusion, then governance takes a hit. The government has banned the Internet, social media, everything. Nobody loves to do such things. These are very unpleasant decisions which we had to take. Anytime anything happened, they would circulate fake pictures and news, and it would create more anger among the people. But it is a temporary thing and it is not going to last forever. Will the situation improve because you talked about three months after you met the Prime Minister and the impression was that you have been given three months? It is improving. We need some time. It is not anybody giving me two or three months. I said give me some time for creating on the ground an atmosphere conducive to any kind of political process. So it can be two months or three months. And about the improvement in the situation, I think the situation is improving. 40

And there is talk of President’s Rule also. Maybe. I cannot comment on that. It is for the Central government to decide. You are in an alliance with the BJP. Such decisions are not discussed in public. There may be a thought process among a certain section of the people who think that if a democratic, elected government is soft then harsher measures are needed to bring the situation under control. There is such a section of people in Delhi as well as within the State; there may be that kind of a lobby that thinks it is better to have President’s Rule. They will lose confidence in you? No, they will be losing the confidence of the 60 to 70 per cent of the people who voted for this government. This is the government that has the most representative character, going by the voting percentage in Kashmir or Jammu. It is not Mehbooba Mufti who they will be losing confidence in. They will be losing the confidence of all the voters who turned out to vote for this government in 2014. But the people’s mood vis-a-vis elections has changed. It is a temporary phase. When I fought my first election in 1996, the voter percentage was in single digit, but later it increased. It is not something permanent, it is a temporary phase. It will change. Where is that Mehbooba Mufti today who used to visit homes of militants, was popular, got people out of Army camps? Mehbooba Mufti is still the same. Mehbooba Mufti is used to facing challenges. I started my career fighting a seat which was the most militancy-infested area where nobody dared to fight an election. I moved around and there is hardly any place in the State where I have not been and stood with the people. Today I am facing a different

kind of challenge and I am fighting. I am a fighter. Should dialogue begin with Pakistan and the people of Kashmir, including all the stakeholders? There is no alternative to reconciliation between India and Pakistan, between New Delhi and the people of the State. There is no other way out, but the time factor is very important. We also need to think about taking other measures, like opening up Jammu and Kashmir to the outside world.

“The student unrest seems to be a more organised thing, not something spontaneous.”

where both sides can reconcile with each other. Reconciliation is the first step. Are you concerned about the student unrest? Yes, I am, but it seems to be a more organised thing, not something spontaneous. If something happens at one place and you control it there, then it happens at some other place. There is someone behind it. It is not something that students want to do on their own. There are people who want to create unrest. For them creating unrest has become a money-minting machine. Your father and you were both media friendly when you were asked about Omar Abdullah in 2010 and how you protested on the streets. But the same things were happening in 2016 and you were in power, and why did you lose your cool?

What you say today is not something very permanent. The other side also has not responded well.

But Omar prefers to be on Twitter instead of on the streets. The Home Minister was telling me that he was getting late. I was not upset with the question. I was emotionally hurt as I said they were the kids whom I had rescued and their parents were not taking care of them. I started entering into Army camps when I joined politics.

You are saying the Hurriyat has not responded?

How do you see Omar Abdullah’s criticism even if on Twitter?

Yes, they have not responded. The group of people like Sitaram Yechury and Sharad Yadav coming to their doors and trying to talk to them and getting no response.

He has to do that. I do not grudge him that. At least he is saying something on Twitter if not hitting the streets. I think the mainstream political party should be very active on the streets also. Otherwise there will be a vacuum. Who is going to fill that vacuum?

But the BJP is opposing dialogue regularly despite being an alliance partner.

They met Yashwant Sinha? That was the next time. Yashwant Sinha did not get a good response from Delhi.

You do not allow the Hurriyat to do that?

I think it is a vicious circle. First, the Hurriyat did not respond. Now, New Delhi is not responding.

What does the Hurriyat do? They throw stones. When Omar sahab was the Chief Minister, we used to take out processions and raise slogans. The same can be done by the N.C., but they are not doing any political activity of that kind. So if he chooses to be on Twitter, it is okay with me.

Will you force New Delhi to respond? We cannot force anybody, but I am trying to create an atmosphere

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The Congress and other parties have said that the PDP feared that it would lose the byelection in Anantnag parliamentary constituency and for that reason called it off. What Tassaduq [Hussain, Mehbooba Mufti’s brother] said that day was that eight people had lost their lives and it was not worth it. We were anticipating more violence in Anantnag. Three-four months earlier, I had in a way tried to convey to the Election Commission of India, “let’s not have elections and postpone them for some time till wounds are healed and let’s give people some time after the 2016 unrest”. But I don’t know what came over them and they announced this election. It was ill-timed. When Tassaduq came into the party and you gave him the mandate, the N.C. and the Congress labelled your party a private limited company. Tassaduq is established in his own way. He has a name in the industry and is one of the best cinematographers. So, if he chose to come and serve people here, to me it is something that I could not deny him. He says his father left something unfinished. He feels passionately about it. He is not a politician. He does not think like a politician. But he really wants to do something about this place, do something for these kids, talking to them, meeting them, going deep into what is ailing them. I could not deny him that. Also, the party, everyone of them, was of the opinion that he was the right choice at this point of time. So that is what I did. You talk a lot about corruption, but on the ground not much has changed. As far as the Cabinet is concerned and our Ministers are concerned, there is a difference. But beyond that, on the ground we have not been able to control corruption. Although I dismissed 60 people, they have gone to the court and got their dismissals quashed. When your energies are diverted to law and order, governance and corruption take a back seat. � FRONTLINE . JUNE 9, 2017

SOC IAL ISSU ES

Targeting Dalits A caste Hindu onslaught on Dalits in a western Uttar Pradesh village triggers a fightback, bringing cheer to marginalised communities who find themselves bullied by saffron groups that all too often take the law into their own hands. BY D I V Y A T R I V E D I AGNIBHASKAR’S head was slashed with a sword as he ran up the stairs of his house to escape a murderous mob of nearly 40 men. His wife was surrounded by an equal number of men who tried to chop off her breasts. A one-year-old baby was flung into the flames before being rescued with great difficulty. Bikes and a handpump in the courtyard were damaged beyond repair and the entire house, which stood at the corner of the Dalit basti (colony) in Shabbirpur village in western Uttar Pradesh, was reduced to ashes. In the neighbouring house beFRONTLINE . JUNE 9, 2017

longing to his brother, his relative, Soumati, 70, lay on a cot, immovable in her grief as she recalled the hours of savagery on May 5 that destroyed everything the family owned. She pointed to the bike on which her pregnant daughter-in-law Meenakshi fell as men attacked her belly with a sword. Soumati's daughter threw herself on Meenakshi to save the child, and sustained grievous injuries. All of them have left the village for treatment or out of fear, leaving Soumati behind as the sole guardian of whatever is left. In one of the biggest caste attacks by Rajputs 42

on Dalits in recent times in western Uttar Pradesh, Shabbirpur’s social fabric, which had held together for several decades with both Ravidas Jayanti and Shivratri being celebrated, was shredded to pieces. Shabbirpur in Saharanpur district is dominated by Rajputs. The Dalits here belong to the Chamar community. It was a little-known village until the May 5 violence catapulted it into infamy. More than 55 Dalit houses were torched while several others were looted and damaged by thousands of caste Hindu men from nearby villages. Sporting saffron

P H OT OG RA P H S: D IV Y A TRI VE DI

A G N IB H A S K A R A N D H I S W I F E (facing page), Dalit victims of the violence, hospitalised after the attack. (Above) In the

aftermath of the attack, a burnt Dalit home. headgear and scarves, they attacked the Dalits, including women and children, with swords and sticks, vandalised whatever assets the Dalits had—handpumps, bikes, cattlefeed—and even attacked their livestock—cows and buffaloes. The violence started as the Dalits were returning home from the fields for lunch. It went on all afternoon for five hours. There are two police stations within two kilometres of the village, but the police allegedly did nothing to stop the violence, though they were alerted. According to one eyewitness, a policeman watching the violence told the attackers: “You have one and a half hours, do what you want.” Village residents said that the police watched the violence and participated in it. “They were shouting Jai Maharana and asking me to say the same. I am not a Hindu, and they know that. What if I said Jai Rajputana? Will that change anything? Will they let me marry a girl from their caste?” asked an angry Agnibhaskar from his hospital bed in Saharanpur. The

family of Agnibhaskar, an articulate and proud Chamar, was specifically targeted in the violence. Unlike other Dalits in the village, he did not work on the Rajputs’ fields. “People who attack with the police standing alongside them are cowards. They tried to kill me, but I survived and will continue to stand by my principles,” he said, showing injury marks on his back where the police had beaten him. Accounts of how it all started vary to a certain degree. But at the heart of it all was the Sant Ravidas temple, set up nearly four decades ago on land owned by Dalits. The Rajputs have been opposing Dalit plans to instal an Ambedkar statue within the temple compound. They demanded that Dalits obtain permission from the local administration for it. Such permission is not really required as the land belongs to Dalits. The issue came to a head in the days before the flare-up. A resident of the village said: “They want to replace Ambedkar with Maharana Pratap. We have no problem if they 43

worship their leader, but why should it necessitate displacement of our leaders?” As the trouble started in Shabbirpur, a few thousand Rajputs were called in from nearby Simlana, where a panchayat was being held. A few men from Shabbirpur, some belonging to the Shiv Sena, the Bajrang Dal and other Hindu organisations, played loud music in the Dalit basti, hurled caste slurs and tried to create trouble outside the Ravidas temple. The Dalits, who had not been allowed to take out a march (shobha yatra) on Ambedkar Jayanti on April 14, objected. The Panchayat Pradhan, Shivkumar, a Dalit who had won from a general seat, led the protests, according to the Rajputs. (Earlier, the Rajput brothers Om Singh and Shyam Singh had held sway as Panchayat Pradhans for over 30 years.) Shivkumar called the police when the situation went out of control. The Rajputs from Simlana arrived in four batches, and at last count, there were nearly 3,000 of them in the village. Most of the Dalits FRONTLINE . JUNE 9, 2017

D I VY A T RI V E D I

hid or ran away. Those who could not months, of the 125 big and small inwere attacked viciously. The pra- cidents of caste violence against Daldhan’s son, Santkumar, tried to re- its, the majority involved instances of cord the attacks on his mobile phone statues of Ambedkar being deseccamera but got beaten up so badly rated or demolished in various that he was hospitalised in places, according to Professor Satish Dehradun in a critical condition. Prakash of Meerut College. The reThe Ravidas temple was at- cent revival of Maharana Pratap as a tacked. A young man from Ra- hero in the Hindu consciousness was soolpur village allegedly broke the part of the same trend. His birth anRavidas statue in the temple and de- niversary on May 9 was celebrated by secrated it. As the houses in the Thakurs earlier, too, but never with temple’s vicinity were set on fire, the the kind of fanfare that was on disarea was engulfed in smoke. As he play this year. From Union Home came out of the temple, he fell chest Minister Rajnath Singh to Chief down and died. The Rajputs alleged Minister Yogi Adityanath and V.K. that he was killed by Dalits, but the Singh, several BJP leaders menpost-mortem report confirmed that tioned him in their speeches and he died of suffocation, according to commemorated his memory. IncidSuperintendent of Police (Rural) entally, since Yogi Adityanath beVidyasagar Misra. His family was came Chief Minister of Uttar paid a compensation of Rs.10 lakh, Pradesh, Thakur men have routinely though the Dalit victims of the day’s flaunted guns and swords in public violence received nothing from the and chanted slogans like “UP mein State government. Nine first inform- rehna hai toh Yogi Yogi kehna hai” ation reports (FIRs)—four from each (must chant Yogi Yogi if you want to of the contesting sides and one by the stay in UP] along with “Har Har police—were registered under sec- Mahadev”. tions of the Indian Penal Code pertaining to unlawful assembly, rioting D A L I T F I G H T B A C K In response to the violence in Shaband death; 17 people were arrested. Most houses in the village were birpur, the Dalits called for a “main Saharanpur’s empty as people fled in fear of further hapanchayat” violence. Though policemen were Gandhi Maidan on May 9. The police stationed there, the Rajputs contin- refused permission for it, and proued to taunt and threaten the Dalits, testers clashed with the police when said a group of teary-eyed women to they were baton-charged. A police Frontline. “They said they would not outpost in Ramnagar was burnt and spare our girls, so we have sent all of several vehicles were damaged. Sevthem away to relatives in other vil- eral members of the Bhim Army, lages. But for how long can we keep which joined the gathering, were arrested; others, including them away?" Chandrashekhar In the years since Azad, its founder, the Bharatiya Janata went into hiding as atParty (BJP) governtempts were made to ment came to power at link them to naxalites the Centre, there have and their arrest bebeen concerted efforts came imminent. The to establish the imAkhil Bharatiya portance of Hindu Kshatriya Mahasabha leaders as the rightful and other Hindu orleaders of the country. ganisations demanIt was sought to be ded that the Bhim done by attacking Army be banned unDalit leaders like der the National SeAmbedkar (see Frontcurity Act (NSA) and line, May 29, 2015, T H I S C H I LD , with burn Azad be charged un“Idolatry vs Ideomarks on the neck, was der the same Act. logy”). In the past few injured in the arson. FRONTLINE . JUNE 9, 2017

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Subhashini Ali, former Member of Parliament and Polit Bureau member of the Communist Party of India (Marxist), said: “There are also indications that the State government is planning to use the NSA against Dalit activists, including Chandrashekhar. This would be extremely unfortunate and vindictive. I would appeal to the government not to resort to such unjust measures but to try and restore peace by seeing that justice is done and all those guilty of hate-mongering, violence and arson are punished. Compensation must be paid to those who have suffered losses and injuries.” A group of retired judges, intellectuals, writers and activists released a statement condemning the State government’s attempts to villainise Dalit leaders. Among them were former Supreme Court judge Justice P.B. Sawant, former Bombay High Court judges Justices Hosbet Suresh and Kolse Patil, the author and activist Ram Punyani, the activists Teesta Setalvad and Javed Anand, the academic and activist Muniza Khan and the leader of the Pasmanda Democratic Forum Khalid Anis Ansari. Dalit leaders, however, were divided over the Bhim Army’s role in the framework of Ambedkarite politics. The former Pradhan of Chandpur, Mahender Singh of the Ambedkar Samaj Party, said that if the group did indulge in violence then it was condemnable and it should work within the system. But he added that every time the BJP came to power in Uttar Pradesh, Dalit self-respect and religious places came under attack. “That is the importance of a leader. When Mayawati is in power, we feel safe, even though there is no direct contact with her. But our people do not go around harming other communities like the Thakurs are doing now.” The Bhim Army signifies a new form of Ambedkarite politics and has been instrumental in safeguarding the rights and dignity of Dalits on several occasions in the past two years. Its range of interventions included ensuring Dalit students were not beaten up by upper-caste boys in

TH E THAK UR S

attacked even the Dalits’ livestock (above and below). A burnt shop (left).

schools and stepping in when a Dalit groom was ordered off his horse by Thakurs. All this has made it extremely popular across villages in Uttar Pradesh. When Thakurs objected to a board on private land in Ghadkauli village in Saharanpur which read “The Great Chamar, Dr Bhimrao Ambedkar Gram, Jai Bhim Jai Bharat”, the Bhim Army was called in, and it prevailed upon the Thakurs to let the board stay. CHANDRASHEKHAR’S MESSAGE

In a message from hiding, Chandrashekhar Azad announced a dharna in Delhi’s Jantar Mantar on May 21 and appealed to all Dalits to attend it. He reiterated that the Bhim Army worked for the marginalised within the constitutional framework. “We are not against any community, but we work for justice for our community,” he said. He added that had the police put in as much effort in controlling the viol-

ence against Dalits in Shabbirpur as they had in framing him under false charges, there would be no need for anguish from the Dalits’ side. Jignesh Mevani, the Dalit leader from Gujarat, visited Saharanpur and expressed solidarity with the victims. In a video message through the Chalchitra Abhiyaan, he said that ever since Yogi Adityanath became Chief Minister, the Sangh Parivar and the BJP cadre had been empowered to do whatever they pleased. “The incident in Shabbirpur is the result of their desperation to break the Constitution and replace it with the Manusmriti and to convert a secular society into Hindu Rashtra.” Residents of Shabbirpur were appreciative of the Bhim Army’s efforts to support them. Elsewhere in the State, Muslims and Dalits expressed similar sentiments. “Finally somebody gave a befitting reply to the saffron rogues,” many of them told Frontline. Asif Rahi of Paighame-Insaniyat, an organisation work45

ing for Hindu-Muslim unity in Muzaffarnagar, said that Muslims were too scared to do anything about the several instances of violence against them by organisations close to the BJP. “For the first time, in Saharanpur, Dalits gave a reply. When Dhudali happened, Yogi Adityanath had an opportunity to show that his government was firm on law and order. But he did nothing,” he said. On April 20, in Sadak Dhudali village in Saharanpur district, BJP MP Raghav Lakhanpal tried to take out a march to mark Ambedkar Jayanti. Rallies on the occasion have been banned for several years in the area because it is communally sensitive. Senior S.P. Luv Kumar and Lakhanpal were injured in the stonepelting that ensued between the two communities. Later, BJP workers threw stones outside Luv Kumar’s residence, destroyed a CCTV camera and removed the name plate on the gate. Two FIRs were lodged against Lakhanpal and 300 others for the two incidents. No action was taken on the FIRs, and Luv Kumar was transferred out. “This clearly shows which side law and order tilts in Yogi Adityanath’s Uttar Pradesh,” said an observer. Just before the violence in Shabbirpur, Yogi Adityanath visited Meerut. The Dalits there were offended that Ambedkar’s statue was not among the statues that he garlanded. Slogans of “Jai Shri Ram” were countered with those of “Jai Bhim”. Later, protests turned violent and the police had to be deployed to bring the situation under control. “This attitude will severely impact Modi’s attempts to woo Dalits and they will move away from the BJP,” said Professor Satish Prakash. “Ever since Yogi Adityanath came to power, Thakurs, Gujjars, Jats and OBCs [Other Backward Classes] have become aggressive and think that it’s their khandani sarkar [familial government]. They want to teach Dalits a lesson. Chances of communal riots are low as Muslims are scared. Dalits are facing a political defeat and there is a leadership vacuum, but Dalits will stand up against upper-caste aggression.” � FRONTLINE . JUNE 9, 2017

FE DE RA LI SM

Running feud Kiran Bedi, Lieutenant Governor of Puducherry, persists in her battle with the elected government, but the Chief Minister and his team seem confident of their ground. BY R . K . R A D H A K R I S H N A N AWAY from the media glare of Arvind Kejriwal’s Delhi, a battle as big and vicious as the ones around the Delhi Chief Minister rages between the elected Chief Minister of the Union Territory of Puducherry, V. Narayanasamy, and the

Central government’s agent, Lieutenant Governor Kiran Bedi. Caught in between the two are bureaucrats, the police, politicians and political parties. There have been “for Bedi” and “anti-Bedi” meetings and rallies by a clutch of

political parties, and the drama has dominated, even trumped, ratings of soaps in the evening prime time shows on local television channels. Even as a drought of unprecedented proportions makes life difficult for citizens of the Union

‘Good relations with the Centre’ Interview with Puducherry Chief Minister V. Narayanasamy. B Y R . K . R A D H A K R I S H N A N AFTER four tenures as a Member of Parliament, V. Narayanasamy was picked by the Congress high command to become Puducherry Chief Minister. The sure-footed yet unassuming politician was Parliamentary Affairs Minister in the first United Progressive Alliance government. He underplays his differences with the Lieutenant Governor and says that he strives to provide a responsive administration. He met this correspondent at his residence, and talked about his new role and his vision for the Union Territory. Puducherry is a very small Union Territory. It has districts such as Yanam, which is more than 800 km away from Puducherry; Karaikal, which is about 130 km away; and Mahe, which is over 600 km away. It is expensive to maintain outposts in these places. How do the dynamics work out? Is it possible to have control over these territories from Puducherry?

FRONTLINE . JUNE 9, 2017

This situation is not our creation. It is an international agreement signed by the Government of India and the French government. This is what the French government wanted, and the Indian government committed itself to. In 1977, the Morarji [Desai] government tried to make Mahe a part of Kerala, Karaikal a part of Tamil Nadu, and Yanam a part of Andhra Pradesh. There was a big agitation at that time. The Janata Party was in power in Puducherry. Thereafter, they could not come to power. Politically also, the people want a separate identity for the Union Territory of Puducherry. A small Union Territory like Puducherry faces additional problems such as being dependent on the Centre for funds, for instance. What has been your experience in dealing with the Union government? I have a good relationship with

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the Central government though I am the Chief Minister of a Congress-ruled State. I have a good equation with the Central Ministers, the Prime Minister, everybody. My priority is development of the State. I don’t want to cross swords with anyone, unless and until something is in conflict with my party’s interests. I don’t want to unnecessarily fight with them [the Central government] like Arvind Kejriwal. Therefore, my equation with the Central government is good. They are all cooperating with us. They are giving lots of schemes and projects for the State. Now, slowly, we have taken off. We are moving steadily and slowly because of some administrative bottlenecks that I cannot explain since I am part of it. The bureaucracy, which was not working for the last 10 years, is now working. Because, when we started working, they also started working. Therefore, we can see the visible results after two years.

Administratively, does the Government of Puducherry have enough powers to fulfil its mandate? Delhi Chief Minister Arvind Kejriwal has been raising the issue of lack of powers in Delhi. How different is Puducherry from Delhi? There is a clear provision given for the Union Territory of Puducherry for the creation of a Legislature and a Council of Ministers under Article 239 A [of the Constitution]. Article 240 provides a clause that if the Assembly is constituted the President shall cease to exercise his powers as far as the Union Territory of Puducherry is concerned. Therefore, when the President himself has no powers, anybody below cannot exercise any extraordinary power. Look at Article 239, 239A and 240. All the three provisions were exclusively for Puducherry. We have got Law and Order, Land, Services. These are with the Government of Puducherry. Article 239 AA is for Delhi. There’s a State List. According to this, the Chief Minister and the Council of Ministers have to carry out day-to-day administration. There is a Concurrent List,

T. SI NG A R AVE LO U

Territory spread across three States, the lack of cooperation between the elected government and the Lieutenant Governor means that essential files are held up at various levels, affecting governance and delivery of services. At the heart of the whole issue is the interpretation of Articles 239 (Administration of Union Territories), 239 A (Creation of Legislatures) and 240 (Powers of the President to make regulations for Union Territories) of the Indian Constitution. While it is clear that 239 and 239A give wide-ranging powers to the “administrator” nominated by the President, provisions under Article 240 make it clear that many of these powers will cease as soon as an elected legislature is in place in the Union Territory. Durga Das Basu’s Shorter Consti-

V. NA RA YANAS AMY.

where the Lieutenant Governor has to act on the advice of the Chief Minister. There’s a Central List. That has to go to the government of India. It is defined in the rules. Some people—they are not able to understand. As far as I am concerned, I am following the rules and I am moving with the administration. There has been a minor problem involving a Municipal Commissioner here, which has brought to the fore the question of separation of powers between the Chief Minister/ government and the Lieutenant Governor’s office. It appears that in your view the elected government is supreme. As far as I am concerned, I never interfere in others’ powers. I give full liberty to the Ministers to act. I will not allow anyone to interfere in my powers, which are enshrined in the Constitution, the Union Territories Act, and the Rules of Business. The Municipal Commissioner issue is not my creation. The [Legislative] Assembly Speaker will be the correct person to answer that. I can only imple-

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tution of India, (14th edition, 2008), says: “Under Art. 239, the President occupies, in regard to Union Territories, a position analogous to that of a Governor in a State.” The Lieutenant Governor, therefore, is not equivalent to a Governor. He or she is a person who acts as the “eyes and ears” of the President in the Union Territory. The Amendment to Article 240 is the key to understanding the issue. “The Proviso, inserted by the 14th Amendment Act of 1962, is a sequel to Art. 239 A. Since that Article envisaged the setting up of Legislatures for some of the [Union] Territories, it was provided that the President’s legislative power to make regulations ceases after such Legislatures for these Union Territories are created, but may continue until then.” In an elaborate conversation that

ment the decision of the Speaker. How can this issue between the two constitutional functionaries be sorted out? The [Union] Home Ministry is the arbiter. I have given them the facts of the case, relating to the powers of the Chief Minister, the Ministers and the Lieutenant Governor. I am yet to receive a reply. There does not seem to be any big difference between most political parties in Puducherry, even if the very same parties have huge ideological differences even in neighbouring Tamil Nadu. Why is this so? We don’t have any personal animosity towards anybody. During election time we do politics. After that if there is a marriage in, say, an AIADMK [All India Dravida Munnetra Kazhagam] person’s family, we all will be there. They also come to our family functions. Personal relationships are different from politics. Here we will not give up our party’s ideology merely because we do this. We draw a line between politics and friendship.

FRONTLINE . JUNE 9, 2017

‘Inherent contradiction’ Interview with Kiran Bedi, Lieutenant Governor of Puducherry. B Y R . K . R A D H A K R I S H N A N A RETIRED Indian Police Service (IPS) officer, Kiran Bedi is a handson person. In an interview that lasted nearly an hour, it was clear that she had a vision that was at variance with the one that the elected government had for Puducherry, one of the smallest and administratively challenging Union Territories of India. (It has administrative fragments across three States of southern India.) Kiran Bedi believes that she has not been posted to sit around as a titular head; she is the functional head of the Union Territory and will act, even if this means that the entire State machinery is at odds with her office. Excerpts from the interview:

The office of the Governor and that of the Lieutenant Governor have

FRONTLINE . JUNE 9, 2017

T. SI NG A R AVE LO U

You have had a long and distinguished service as an IPS officer. Then, you were the live wire of an agitation, and later led a party during an election. How is your current role different from all these other roles that you have performed? Does your long experience in all these spheres help you in your current role? This role is constitutional with administrative and financial responsibilities. It is by and large selfmonitored. Self-audited. Self-led. Self-directed. Hence [it] has a greater responsibility. It leaves me to myself to deal with sensitive and demanding issues. The buck stops with me. I am guided by the laws, rules and regulations. Or precedents, both good and bad. The onus is on me to choose and transform. Also, the choice is with me to be populist or firm. Only when in doubt, I have the option to refer the matter to the government of India for guidance. There, options are available.

alignment in integrity of purpose, it can be a model Union Territory in all respects. Be it cleanliness, development, peace and security, and more. Provided there is the spirit of collaboration and not competition. For the Government of India, Puducherry is far away from Delhi. It expects the administration of Puducherry to sort out its matters. However, it remains the key provider and arbiter of a conflict.

often been in the news for the wrong reasons. In your assessment, how has your tenure here been so far, since you too have been in the news for your differences with the Union Territory government? I personally think that there is an inherent conflict in the system of Union Territory management. On the one hand, we have an elected Assembly in Delhi and Puducherry; on the other hand, we have an appointed Administrator with laiddown executive and financial responsibilities. Both sides interpret laws and rules as they want to, even when the laws are explicit. The alignment of intention and purpose alone can keep it free of conflict. Therefore, where there is a deviation, conflict is bound to arise. What is your vision for Puducherry? Where do the Centre, the elected government and the officials figure in this? Puducherry is a very cohesive, small Union Territory. If there is an 48

What, in your assessment, does Puducherry lack? How can these shortcomings be set right? Puducherry lacks nothing. It has everything in abundance. It has many things in abundance. It just needs a single-minded honest leadership with an honesty of purpose, both in the political and bureaucratic spheres. People want both to be upright, accessible and sensitive public leaderships. There is an inherent tension between the Governor or Lieutenant Governor and the Chief Minister in any State where a party which opposes the one ruling at the Centre is in power. How has this played out in Puducherry? The same way as it played out in Delhi. Because both have come from the same laws, rules, etc. There is bound to be conflict if the Union Territory has a functional Lieutenant Governor. It will work smoothly if the Administrator is merely an endorser or a ceremonial head. There seem to be wide differences of opinion between the Chief Minister and the Lieutenant Governor. How can this end? It can end with commonality of intentions only. If they expect the Lieutenant Governor to be a rubber stamp then there is no common ground. They once said to me,

“Madam, Lieutenant Governor is expected to be only a ceremonial head.” I told them their expectation was wrong. I have clear-cut and written responsibilities as an Administrator and an Lieutenant Governor as laid down under the Law and the Business rules and I shall serve Puducherry accordingly. Mine is a constitutional position. I report to the Honourable President of India. I am bound by the law and the rules. The Lieutenant Governor’s office enjoys no immunity. Hence, whatever I approve has to meet the standards of financial and administrative prudence. If I have no role, then why do files for all financial clearances, transfers and postings, disciplinary issues and policy approvals come to me? I have to apply my mind. The Constitution and the Rules of Business being so clear on the separation of powers, where is the room for doubt at all? In our case, on the issue of following the business rules when there was a conflict, we sent the matter to the government of India. On January 27, the government of India issued a legal clarification. But the same was dismissed by saying that it was mere interpretation. Now where do you go from here? Time is short. I have limited time. I have to take matters as they come, which I have been doing now for the last many months. On the day of my taking charge here, I informed my team that I would serve Puducherry for two years. Unless called out earlier, I will like to hand over on May 29, 2017. The people of Puducherry have different concerns such as drinking water, transport hassles, etc. They are not really interested in this “LG vs CM” fight. How clued in are you on the needs of the people? What else is being done? The

Raj Nivas is an open house daily for two hours for people’s grievances. People come with total faith. And large numbers come daily. We are also personally overseeing a website and a WhatAapp number to ensure due response. I am personally overseeing it. We as a team address all issues. At Raj Nivas we are taking the support of paralegals, family counsellors, senior police officers, senior officers of the administration, etc. Together, we hear every visitor every evening. And matters are addressed. The Lieutenant Governor’s office is not a post office. Where we feel we have a deadlock, we check with the officer concerned or get the petitioner an appointment to be heard. We also identify the place to be visited on people’s request to deal with the long-standing matters requiring coordinated response. This is what takes us, Team Raj Nivas, every weekend, at 6 a.m., to issues needing urgent attention. We have done over 77 morning rounds till now. Since taking over I have not missed any weekend morning to move out to address these issues. These visits are driving the change and restoring faith in the administration. They also give us options for realistic solutions. Water, sanitation and safety have been my serious concerns, besides providing development support, ensuring equity and financial providence. This is through presentations and meetings with the officers concerned. You draw a link between Delhi and Puducherry. But are not the provisions for Delhi and Puducherry different in that the elected government in Puducherry has slightly more powers? The clarification letter which came from the Home Ministry exactly reiterated that…. But then it needs to be accepted/respected. 49

this correspondent had with Dr Kiran Bedi, it was clear that she was of the view that administratively, there was no difference between Delhi and Puducherry, and hence, all matters of policy had to necessarily have her sanction in Puducherry. But Delhi’s National Capital Region is governed by a completely different provision in the Indian Constitution, Article 239 AA, which was inserted by the Constitution (69th Amendment) Act, 1991, and was effective from February 1, 1992. The one common difference that is widely recognised is with respect to police powers: while Delhi’s police report to the Union Home Ministry and not to the Delhi government, the police in Puducherry are controlled by the Puducherry government. Adding ammunition to Kiran Bedi’s point of view is a five-page “clarification” issued by the Union Home Ministry on January 27, 2017. Signed by Satish Kumar Singh, Under Secretary to the government of India, it says that “the law which occupies the field for Puducherry is the Government of Union Territories Act, 1963”. Relying on these rules, the Under Secretary concludes that “from a conjoint reading of the above rules, it is clear that the Administrator is to play an integral role in the policymaking as well as the day-to-day affairs of the Union Territory of Puducherry. The fact that the Administrator can call for papers from the Secretary of a Department makes it abundantly clear that the Administrator has the right to interact with the officers and while doing so is discharging his responsibility as the Administrator…. It is pertinent to note that even the office of Chief Minister is obligated to furnish information to the Administrator in certain situations….” Narayanasamy asked how an interpretation of rules could replace constitutional provisions. Asked about the January 27 clarification, he said that he had written to the Union Home Ministry on this issue. “I have raised specific issues relating to the January 27 interpretation of the Home Ministry. About four months FRONTLINE . JUNE 9, 2017

TH E H IN DU A RC HI VE S

L I E U T E NA N T G O V E RN O R Kiran Bedi interacting with officials during a visit

to Kariamanickam village in December 2016. have gone by. I am yet to receive any response,” he told Frontline. The wide publicity given to the January 27 clarification did not mean that Kiran Bedi was back on top in the battle to establish who was superior in the Union Territory. Even the Chief Secretary took the clarification lightly, leading Kiran Bedi to write a formal letter of complaint to Union Home Minister Rajnath Singh. “…[T]he Chief Secretary does not send any report on references made by me,” she wrote to him on April 15, 2017. “Chief Secretary has informed me that only Ministers are accountable for the departments under their charge,” she added. She has also publicly lashed out against the Chief Secretary, according to media reports. None of this has had any effect on Chief Secretary Manoj Kumar Parida, a 1986 batch Indian Administrative Service officer from the Union Territory cadre. In a note written on April 12, he made it clear that all issues raised by the Lieutenant Governor were being addressed but there was no need to replicate the documentation: “As regards weekly report on major decisions taken during the week, the Additional Secretary has been submitting the report to Raj Nivas. In a small administration FRONTLINE . JUNE 9, 2017

like Puducherry where Secretaries meet the Ministers two to three times every day, there is no justification to waste time, energy or paper on sending weekly reports on action taken.” Not willing to give up, Kiran Bedi has written to the Chief Secretary asking him, among other things, to join in her weekend morning rounds. In one such email, she notes: “I am constrained to express my concern on your not joining in the weekend joint swachch/sanitation rounds to do on-the-ground stocktaking to resolve years-old sanitation issues, some with serious hazardous implications, despite my repeated personal request to you…. I do hope you respect the spirit behind this ‘extra mile approach’ of leadership, or the ‘shramdaan’ approach which is being persistently desired by our Honourable Prime Minister. We owe a compliance to PM’s directions.” With Narayanasamy fully behind the officers, they have nothing much to worry about. “Even in Government of India, the President does not send newspaper cuttings asking for action taken report,” the Chief Minister noted in a reply to the Lieutenant Governor. Agreeing with the Chief Secretary’s view on the manner of briefing the current occupant of 50

Raj Nivas, he noted: “As regards explanation for non-response, it is the Chief Minister who is the controlling officer of the Chief Secretary and Secretaries. Explanation can only be called for by the Ministry of Home Affairs which is the disciplinary authority for all IAS officers. Hon’ble Lt Governor is informed not to get into day-to-day administration of the government and allow the elected government to decide its priorities. I have advised Chief Secretary and other Secretaries to only respond to such communications which are routed through or brought before the Chief Minister.” In a trip to Delhi, Kiran Bedi called on Rajnath Singh to apprise him of the issues in Puducherry. She even tweeted about it on May 2: “Called on Hble UHM @rajnathsingh Apprised him of constraints and challenges being encountered in serving Puducherry.” Since any battle needs allies, Kiran Bedi is not shy of seeking them. On April 25, a seemingly innocuous tweet said that she had banned meat in Raj Nivas. But it had a small twist: “RajNivas Puducherry has already done. PETA urges Modi to ban meat from being served at govt events.” After Prime Minister Narendra Modi inaugurated the gigantic bust of Siva in Jaggi Vasudev’s ashram in Coimbatore in February, he was invited for a talk at Raj Nivas. Kiran Bedi’s tweet of April 18 read: “Here’s d videoclip of @SadhguruJV at RajNivas, Puducherry. An audience across segments of society. An event 1st of its kind.” Narayanasamy also has friends in New Delhi. Having been one of the main floor managers for the Congress party in Parliament in an era when the Left parties were calling the shots, from 2004 to 2009, Narayanasamy is well known and well regarded in New Delhi. From 2009 to 2014, even as UPA-2 was imploding, he was a Minister in the Prime Minister’s Office. During this stint too, he came out looking good, even if his boss, Prime Minister Manmohan Singh, took a lot of flak. That, in essence, is Narayanasamy. �

One grand design China’s One Belt One Road project appears to have bought into several features of neoliberal globalisation, including deeper financial integration, protection of various kinds for private investors through “investment facilitation” and very extensive trade liberalisation. T is a truism of history that rising powers tend to be the ones valorising “free” trade and more open and integrated national economies, just as waning powers tend to turn inwards. So, it is no surprise that over the past half year, as the United States elected a President with an avowedly protectionist agenda (even if relatively little has been acted upon so far), China’s President has become the chief advocate of globalisation and more extensive trade and investment links across countries. This drumbeat reached a crescendo in mid-May, at a summit in Beijing to celebrate the official launch of the major new Chinese initiative, the One Belt One Road (OBOR) project, which President Xi Jinping himself described as “the project of the century”. The plan, which has been talked of since 2013, is grandiose and overwhelmingly ambitious. Harking back to the “Silk Route” that was established two millennia earlier and became the primary trading route linking the Chinese empire with other civilisations of the time, it aims to

I

connect more than 60 countries with around two-thirds of the world’s population. This would be done through infrastructure establishing transport and other connectivity links, facilitating trade and investment and other forms of cooperation with China as the hub rather than just one end of the trail. The stated Chinese perception is that this will rebalance the global economy and restore faith in globalisation through new demand created by increasing supply, in a somewhat startling assertion of the much-discredited Say’s Law at a global level. The official website declares: “The Belt and Road Initiative aims to promote the connectivity of Asian, European and African continents and their adjacent seas, establish and strengthen partnerships among the countries along the Belt and Road, set up all-dimensional, multitiered and composite connectivity networks, and realise diversified, independent, balanced and sustainable development in these countries. The connectivity projects of the Initiative will help align and coordinate the 51

development strategies of the countries along the Belt and Road, tap market potential in this region, promote investment and consumption, create demands and job opportunities, enhance people-to-people and cultural exchanges and mutual learning among the peoples of the relevant countries, and enable them to understand, trust and respect each other and live in harmony, peace and prosperity.” All this is obviously a huge and almost all-encompassing set of goals; but for now, in fact, the focus is essentially on infrastructure development. The initiative is confusingly named since the “Belt” refers to physical roads and overland transport while the “Road” actually refers to maritime routes. The Belt covers three main sets of connections seeking to link China to Russia and the Baltic European countries through Central Asia and Russia; going through Central Asia to connect China with West Asia, the Persian Gulf and the Mediterranean countries; and establishing seamless transport links between China and FRONTLINE . JUNE 9, 2017

South-east Asia, South Asia and the Indian Ocean. The Road is being described as the “21st Century Maritime Silk Road”, which would develop the links of Chinese coastal ports to Europe through the South China Sea and the Indian Ocean; and to the countries of the South Pacific Ocean through the South China Sea. SIX CORRIDORS

Six specific “international cooperation economic corridors” have been identified to start with. These are: New Eurasia Land Bridge; ChinaMongolia-Russia, China-Central Asia-West Asia, China-Indochina Peninsula, China-Pakistan, and Bangladesh-China-India-Myanmar. Each of these corridors is hugely ambitious in terms of the new infrastructure required and the physical and political difficulties of the terrain sought to be covered. Each of these also requires developing particular regions in China in ways that would further these links, which would help in reducing the regional inequalities within China. The corridors typically require not just railways and roads, but airports and sea ports, oil and gas pipelines, power transmission routes with cooperation in creating and maintaining regional grids, cross-border optical fibre connectivity, and so on. For example, the New (or Second) Eurasia Land Bridge Economic Corridor includes an international railway line running from Lianyungang in Jiangsu province on China’s eastern coast through Alashankou in Xinjiang province of west China all the way to Rotterdam in Holland. The China section of the line comprises the Lanzhou-Lianyungang Railway and the LanzhouXinjiang Railway and stretches through eastern, central and western China. Thereafter, it would pass through Kazakhstan, Russia, Belarus and Poland, going through various coastal ports in Europe before terminating at Rotterdam. The plan is not only to offer railto-rail freight transport along the entire route, but also eventually to move towards the convenience of FRONTLINE . JUNE 9, 2017

“one declaration, one inspection, one cargo release” for any cargo transported. Considering that this seamless freight transport is still not possible even after the trade facilitation agreement of the World Trade Organisation, this clearly involves very bullish expectations about reducing/eliminating customs and border inspection across the participating countries. And this is only the railroad part of the plan for this particular economic corridor. If this sounds excessively optimistic, bear in mind that this is only one of the various planned routes, and indeed one of the least problematic in terms of various territories it passes through. Other corridors cover more contested and even insecure terrain. For example, the ChinaPakistan Economic Corridor (slated to extend from Kashgar in Xinjiang province to Gwadar port in southern Pakistan) has already become a bone of contention between China and India. It is the chief reason that India stayed away from Beijing’s party on May 14 and 15, since it involves a road being built through Pakistan52

occupied Kashmir, recognised by India to be part of its own territory illegally occupied by Pakistan (over which several wars have been fought). That concern, in turn, has affected prospects for the last corridor, even though Bangladesh and Myanmar are apparently enthusiastic about the potential for enhancing internal and cross-border transport infrastructure in this manner. Even by the large-scale standards of Chinese investment plans (remember the Three Gorges Dam and the river interlinking projects, or the building of entire cities in a few years?), the OBOR initiative is clearly humongous. So, how is it going to happen, and over what time frame? Most importantly, how is all of this to be financed? The financing is largely expected to come, at least to start with, from the various development financing initiatives that China has led in the past few years. The Asian Infrastructure Investment Bank has a capital of $100 billion, nearly half of which comes from China. The New Devel-

DA MI R S A G OLJ /A P

C H I NE S E P R E S ID E N T X I J I N PI N G (third from left) with Russian President

Vladimir Putin and other leaders during the Belt and Road Forum on May 15. opment Bank of the BRICS (Brazil, Russia, India, China and South Africa) countries similarly has a capital base of $100 billion. In addition, the Silk Road Fund set up exclusively by China has $40 billion. These together sound like a lot of money, but it is still peanuts compared with the scale of the investment required for these grand plans, which would amount to several trillion dollars over the coming few years to meet the declared goals. Indeed, it is still smaller than the current levels of investment in other developing countries enabled by the China Development Bank and the China Exim Bank. And since each of these agencies has yet to make its first loan or investment commitment, a lot remains to be seen. SOURCES OF FUNDING

Clearly, therefore, other sources of funding will be required. And these will depend upon commitments and investment guarantees made by gov-

ernments of other countries involved as well as the inclinations of private parties, who are notoriously hesitant and fickle with respect to infrastructure investment. Xi Jinping and Premier Li Keqiang have been active over the past year, visiting more than 20 countries to get them on board and sign economic cooperation agreements with China towards this goal. But even countries that have signed on are more inclined to let China take the lead in this and then follow depending upon how the processes and events play out. And most of the 56 trade and economic cooperation zones set up by Chinese businesses in OBOR countries are still quite small and limited in scope. On the face of it, this is clearly a smart move from the Chinese government, given its current state of overcapacity in basic and infrastructure industries. It would enable higher capacity utilisation, provide more and larger markets for a range 53

of its output, develop some of its own less prosperous regions, and simultaneously extend its economic and political influence over a wider geographical area. Comparisons to the post-war U.S. Marshall Plan are inevitable, but the basic similarity is only in the recognition of the advantages of such investment in other countries given the mutual dependence of demand generation. Does this amount to a new Chinese imperialism, as some western observers have already decided and several developing countries fear? No doubt, some of the attributes of imperialism, in terms of the search of capital for controlling new markets and new sources of “economic territory”, are very much present in this endeavour, whether or not it achieves the hoped-for scales. Further, at least on the surface, the OBOR strategy appears to have bought into several features of neoliberal globalisation, including deeper financial integration, protection of various kinds for private investors through “investment facilitation” and very extensive trade liberalisation. The official Chinese government statement that “China will stay committed to the basic policy of opening-up, build a new pattern of all-around opening-up, and integrate itself deeper into the world economic system” confirms that intention. Since China’s own development success has been based on a much more heterodox and statecontrolled approach, many developing countries would rather emulate its past actions rather than its current talk. So, how all this plays out depends on much more, including how individual countries and people within those countries are able to negotiate and deal with this changing landscape. Global capitalism based on one clear superpower has not turned out to be as stable, peaceful or prosperous as many had expected. A world of competing superpowers may involve more conflict of different kinds, but it can also generate more possibilities for developing countries. � FRONTLINE . JUNE 9, 2017

WORLD AFFAIRS

SUNSHINE IS BACK

KI M M IN -H E E- PO O L / G E T T Y I MA G E S

The war clouds seem to be receding on the Korean peninsula with Moon Jae-in’s attempts to reach out to the North after his election as South Korea’s President. BY J O H N C H E R I AN

S O U T H K O RE A ’ S N E W P R E S I D E NT Moon Jae-in addressing a press conference at the presidential

Blue House in Seoul on May 10. FRONTLINE . JUNE 9, 2017

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THE BIG VICTORY OF MOON JAE-IN, FORMER trade unionist and human rights activist, in South Korea’s May 9 presidential election is the first bit of refreshing news this year from the Korean peninsula, a region that has been witnessing political turmoil and military tensions for some time. On the campaign trail, Moon Jae-in had said that his first priority would be to restore calm in the Korean peninsula. With United States President Donald Trump and his top officials making belligerent statements against North Korea in the past few weeks, war clouds loomed large. The Trump administration had used the North Korea bogey to install the Terminal High Altitude Area Defence (THAAD) missile system on Korean soil in April, an action that drew strong criticism from China and Russia. To add insult to injury, Trump demanded that the South Korean government pay for the defence system estimated to cost more than $1 billion. China said the missile system would undermine the country’s nuclear and defence capabilities along its southern coast. China had taken diplomatic and economic steps against South Korea after the previous conservative government in Seoul agreed to the speedy installation of THAAD. As a consequence, big-spending Chinese tourists stopped coming to South Korea, one of their favourite destinations, and the Chinese started boycotting South Korean products. China is South Korea’s biggest trading partner. Moon Jae-in’s Democratic Party of Korea, a left-ofcentre party, described the THAAD deployment as “a total failure of diplomacy”. He himself had on the campaign trail called for the immediate suspension of the THAAD deployment. At that time he said the Americans had “sneaked” the missile system in when the country was in the midst of an election campaign. One of the first things he did after taking office in the second week of May was talk to the top leadership in Beijing to allay their misgivings about the real purposes of locating the THAAD system so close to their borders.

the North would be among his first priorities. This is in stark contrast to the nine years of conservative rule when South Korea, acting in tandem with the U.S., threatened the North with sanctions. If his statements after assuming office are anything to go by, Moon Jae-in is determined to chart a new foreign policy course for his country. While running for office, he had said that South Koreans would have “to learn to say no” to Washington. But cutting the umbilical cord to Washington is easier said than done. His close friend and ideological mentor, Roh Moo-hyun, who was the President from 2003 to 2008, had also said that he would not “kowtow to the Americans”. Though he stuck to the sunshine policy, Washington arm-twisted him into sending troops for the Iraq War and signing a free-trade agreement. Trump now says that deal was a bad one for the U.S. and wants to renegotiate it. Trump has also repeatedly stated that he wants South Korea to spend more on its own defence and share the costs of hosting the U.S. military on its soil. Although before the elections Moon had warned against the imposition of the THAAD system on Koreans, he may now find it difficult to get it removed without seriously rupturing the country’s long-standing military alliance with the U.S. The THAAD system may be theoretically able to protect the U.S. and Japan from a North Korean attack, but the South is the sitting duck. With Seoul located less than 50 kilometres from the border with the North, any war would lead to the devastation of the South Korean capital and its surrounding areas. More than half the country’s population is located in this zone.

The suspicion among South Koreans about the U.S.’ game plan for the region has only increased under the Trump presidency.

RELATIONS WITH THE NORTH

More importantly, President Moon Jae-in pledged to restore the “sunshine policy” that was initiated under Kim Dae-jung, the first left-of-centre President elected by South Koreans in 1998. The policy encouraged dialogue, family reunion and economic engagement with North Korea. One of the outcomes was the setting up of the Kaesong Industrial Park in North Korea in which South Korean conglomerates had invested heavily. Kim Dae-jung was the first South Korean leader to visit the North. Tensions between the North and the South had diminished considerably when the policy was in place. However, the rise of a conservative reactionary government in 2008 put the brakes on the policy. Moon Jae-in’s predecessor, Park Geun-hye, completely disengaged with the North by ordering the closing of Kaesong Industrial Park last year. The new President indicated that reopening the industrial park in order to send a conciliatory message to

A clause in the U.S.-South Korean Mutual Defence Treaty of 1953 states that the two parties are committed to try to solve “any international dispute” by peaceful means and to “refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations”. While dealing with the Trump administration, President Moon Jae-in will no doubt put a great deal of emphasis on this particular point. But Trump has threatened to solve the problem with North Korea “one way or the other”. After his bellicose statements in April had apparently no impact on Pyongyang, Trump now is depending on Beijing to armtwist Pyongyang into making concessions on the nuclear and missile front. 55

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With Moon Jae-in’s election to the presidency, war clouds seem to be receding on the Korean peninsula. From all available indications, he will coordinate closely with China while formulating his North Korea policy. North Korea, meanwhile, has criticised China for cooperating with the U.S. in imposing additional sanctions against it. Both Beijing and Seoul, for different reasons, do not want a chaotic disintegration of the North, as desired by Washington and some of its close allies. The South may talk of reunification, but the leadership there knows that the economic and political costs will be very high. One of the main reasons China is against a regime change in North Korea is because it does not want U.S. troops stationed on its border. The U.S. has permanent bases in the South and a large concentration of troops there. China had gone to war against the U.S. in 1951 in order to prevent such an eventuality. During the campaign, Moon Jae-in stressed that the aim of the international sanctions against North Korea was not to bring its government down, but to goad it to the negotiating table. “To do that, we must recognise Kim

Jong-un as their ruler and as our dialogue partner. The goal of sanctions must be to get North Korea back to the negotiating table,” Moon Jae-in said. Washington now does not have the option of triggering a war with the consent of a pliant South Korean government. In his first speech to the National Assembly, Moon Jae-in pledged “to do whatever it takes” to keep the peace in the Korean peninsula. He said he was willing to travel immediately to Washington and later to Pyongyang in order to be able to fulfil the pledge. PUBLIC OPINION

Public opinion in South Korea is also against any further deepening of military ties with the U.S. The suspicion among South Koreans about the U.S.’ game plan for the region has only increased under the Trump presidency. More than North Korea, it was issues such as the economy, corruption and relations with the U.S. that dominated the month-long campaign in South Korea. The new President said that he would engage in “sincere negotiations” with both Washington and Beijing on the issue of lessening tensions in the region. Moon

A H N Y OU NG-JO ON /A P

Jae-in will need diplomatic astuteness to keep South Korea neutral in the looming confrontation between the U.S. and China. Interestingly, both the Koreas sent their delegations to the One Belt One Road summit in Beijing held in May. The U.S. also sent a delegation although it knew that the North Korean delegation would be present. Meanwhile, North Korea chose to test-fire an intermediate range missile on May 13 despite warnings from the U.S. and the international community. It was the first missile test since the new South Korean President assumed office. Pyongyang announced that it was “a new ground-to-ground medium long-range strategic ballistic rocket”. It represents a level of performance never before seen in a North Korean missile, the aerospace specialist John Schilling observed. In a statement, North Korea said the test was “aimed at verifying the tactical and technological specifications of the newly developed ballistic rocket capable of carrying a large size heavy nuclear warhead”. Moon Jae-in condemned the launch as “a clear violation of the U.N. Security Council resolutions”. However,

AT TH E R AIL WA Y ST A T IO N in Seoul on May 14, a

South Korean soldier walks by a TV news programme showing a file image of missiles being test-launched by North Korea. he said there remained a need to keep the doors open for dialogue with the North. “We must show that dialogue is possible, when the North changes its attitude,” he said after the latest missile launch by Pyongyang. Only Washington and Tokyo have issued stronger statements, with the White House describing North Korea “as a flagrant menace for far too long” and demanding the implementation of more international sanctions. WITHDRAWING RIGHT-WING DECISIONS

at a rally near the U.S. Embassy in Seoul on April 29 against the plan to deploy the THAAD missile system in South Korean territory.

AH N Y OU NG-JO ON / A P

S O U T H K O R E AN P R OT E ST ERS

In his first days in office, Moon Jae-in has been quick to dismantle some of the odious domestic policies that his predecessor had introduced. He ordered the withdrawal of the right-wing nationalist textbooks from the school curriculum. Park Geun-hye had proclaimed in 2015 that government schools would have to replace “left-leaning” textbooks with “patriotic” ones. The textbooks that were published under her government’s supervision mainly ended up extolling the dictatorial and corrupt rule of her father, Park Chung-hee, and promoting a right-wing nationalist history of Korea. She had also drawn up a blacklist of artistes, intellectuals and mediapersons who were deemed to be left-wing. They were banned from writing or participating in government-funded programmes and the official media. That ban no longer exists. Moon Jae-in may find it more difficult to bring the “chaebols” (big business conglomerates) to heel as he had promised on the campaign trail. One of the main reasons for the impeachment of Park Geun-hye was her corrupt involvement with the bosses of chaebols such as Samsung. All the Presidents who have held office in South Korea since the advent of multiparty politics were investigated for corruption. Moon Jae-in has promised to be different. On his first day in office, he told the Korean people that he had assumed the top job with an “empty pocket” and that he would also leave office with his “pockets empty”. � 57

FRONTLINE . JUNE 9, 2017

W O R L D A F F A IR S ISRAEL & PALESTINE

Resistance in prisons

MO HA MAD TO R O K M AN / R EU T ER S

Palestinian political prisoners in Israel are on an indefinite hunger strike protesting against the degrading conditions in the prisons, the restrictions imposed on family visits and the very nature of their detention. B Y J O H N C H E R I A N MORE THAN 1,500 PALESTINIAN POLITICAL prisoners incarcerated for years in high-security Israeli jails have been on an indefinite hunger strike since April 17, a day that is observed every year as “Prisoners’ Day” by Palestinians in the occupied territories and Israel. More than 6,500 Palestinian prisoners, including an estimated 300 children, are languishing in Israeli jails under bleak conditions. The Israeli government has passed a law that allows for the arrest of children aged 12 and above for “terrorist offences”. Around 550 Palestinian prisoners have not even been put through the charade of a court appearance. They are “administrative detainees” who have been arrested on the basis of “secret evidence” but never told of the evidence the state has gathered against them. The policy of “administrative detention” allows the Israeli government to detain Palestinians without any charges filed against them. One of the major demands of the agitating prisoners is the scrapping of “administrative detention”. Around 200 prisoners were in Israeli jails before the signing of the 1993 Oslo peace accords between the Israeli government and the Palestinian Liberation Organisation (PLO). Some of them figure in the list of prisoners who have spent the longest time in prison worldwide. Karim Younis and Mahir Younis have been in an Israeli prison since 1984. Many prisoners have lost their close relatives, whom they were not allowed to see in their last days. Some were even denied permission to talk FRONTLINE . JUNE 9, 2017

to their dying parents. The hunger strike, coincidentally, is taking place on the 50th anniversary of the Israeli occupation of the West Bank and the 100th anniversary of the inglorious Balfour Declaration, which laid the groundwork for the Jewish takeover of the Palestinian heartland and the subsequent Palestinian “naqba” (catastrophe). Under international law, Palestinian prisoners must be held in the occupied territories, not in the territory of the occupying power as is being done now. It is difficult for immediate relatives of the prisoners to visit them in Israel because of the travel restrictions imposed on the Palestinian population in the occupied territories. Human rights groups have described this as a violation of the Geneva Convention, unlawful and cruel. “Instead of unlawfully transferring Palestinians outside the occupied territories, Israel must ensure that all Palestinians arrested there must be held in prisons and detention centres in the occupied Palestinian territories. Until then, Israelis must stop imposing excessive restrictions on visitation rights as a means of punishing prisoners and their families, and ensure that conditions fully meet international standards,” a statement from Amnesty International 58

said. Amnesty has given the example of one Palestinian prisoner who was allowed to meet his family only on one occasion though he was in jail for five and a half years. The striking prisoners also want to bring to the notice of the international community the miserable conditions under which they have been living. By the second week of May, only a handful of prisoners gave up the fast for medical reasons. Since 1967, more than 50 Palestinian prisoners have died owing to the medical negligence of the jail authorities. Another 150 have died, according to the Palestinian Prisoners Club, because of inhuman treatment and torture. The last mass hunger strike by Palestinian prisoners in 2012 ended after the Israeli authorities agreed to limit administrative detentions and end the practice of prolonged solitary detentions. The authorities also agreed to allow visits of relatives of prisoners from Gaza. But since then, they have backtracked on most of their commitments.

A RALLY IN THE W ES T BANK CITY of Ramallah on

April 17 in support of the Palestinian prisoners on hunger strike in Israeli jails. Marwan Barghouti, who is leading the prisoners’ hunger strike. Barghouti, a Fatah leader, has been in an Israeli prison since 2002. He has been sentenced to five life terms on the trumped-up charges of being behind the deaths of five Israeli civilians during the Second Palestinian Intifada (uprising) of 2000. The Swiss-based Inter-Parliamentary Union described his trial and conviction as “a violation of international law” and as a “failure to meet fair trial standards”. Many Palestinians consider Barghouti, 58, the natural successor of Palestinian President Mahmoud Abbas, who is 82. A succession battle is already on behind the scenes. Opinion polls have shown that Palestinians prefer Barghouti by a wide margin to be their next leader. Israelis have tried to portray the strike as a “political stunt” by Barghouti. As the Palestinian street coalesced in support of the striking prisoners, Israeli authorities tried to plant doctored pictures of Barghouti and some of his comrades snacking behind the prison walls.

THE IMPORTANCE OF BARGHOUTI

The Israeli authorities are trying all kinds of dirty tricks to discredit the strike. They first tried to portray it as a publicity stunt by the charismatic Palestinian leader, 59

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AP

month after the strike started. In a letter addressed to the Palestinian people, which was handed over to the lawyer, Barghouti said: “I promise to you and all the prisoners that we are continuing the empty stomachs campaign and the campaign for freedom and dignity until we achieve our objectives, and that nothing will break the will and determination of the prisoners despite the assault on them and the oppression they are coping with. I stress that all attempts at blackmail and tough moves will only increase the prisoners determination.” Barghouti called for political unity among Palestinians and urged Fatah and Hamas to heal their rift. At the same time, he objected to holding negotiations with Israel until it agreed to vacate the occupied territories and recognised the State of Palestine, with East Jerusalem as its capital. Barghouti has to undergo humiliating “body checks” four times every day. He has already lost 14 kilograms since he embarked on the hunger strike. Israeli Defence Minister Avignor Lieberman expressed the hope that all the fasting prisoners would die or be executed. A week after the strike started, Israeli authorities targeted the leaders; they confiscated their personal belongings and sent many to solitary confinement. Hospitals have been ordered to remain on standby to force-feed the fasting prisoners. Both the World Medical Association and the United Nations consider forcefeeding a cruel and degrading punishment as well as violation of international law. Force-feeding of Palestinian prisoners has led to deaths in the past. The Israeli Medical Association has also issued a statement saying that force-feeding will be “never accepted ethically” as was stated in the World Medical Association’s Malta Declaration. Human rights groups such as the Physicians for Human Rights-Israel (PHR-I) said that doctors who worked for the Israeli Prison Services (IPS) had minimal medical qualifications and just followed the orders of the IPS. Israeli authorities refused to negotiate with the prisoners on any of the issues, including their basic demands relating to family visits and an end to the practice of solitary confinements. President Abbas, who was on an official visit to India in the third week of May, urged the Israeli government to comply with the “humanitarian” demands of the prisoners. He urged the international community to support the prisoners and demanded that Israel respect their rights and human dignity. In 2013, the late anti-apartheid figure, Ahmed Kathrada, and Fadwa Barghouti launched the International Campaign to Free Marwan Barghouti and all Palestinian Political Prisoners from Robben Island (South Africa), where the notorious apartheid-era prison in which Nelson Mandela and his comrades were incarcerated, is located. In the third week of May, leading South African politicians and Cabinet members announced that they would undertake a one-day fast in solidarity with the Palestinian prisoners. Activists in other parts of the world are also staging solidarity hunger strikes. Students in many European universities have started relay hunger strikes in support of the Palestinian prisoners. �

M A R W A N B A R G H OU T I waves as he enters a Tel Aviv

court in April 2003. The prominent Palestinian prisoner and the organiser of the protest has been placed in solitary confinement. “The aim of the strike,” Barghouti said, “is to achieve more humane, fair and more dignified prison conditions.” In an article smuggled out of the prison, and published in many major world publications, Barghouti clearly explained why he and his comrades were embarking on an indefinite hunger strike. “Israel has established a dual regime, a form of judicial apartheid, that provides virtual impunity for Israelis who commit crimes against Palestinians, while criminalising Palestinian presence and resistance,” he emphasised. Marches in support of Barghouti, who has been moved to solitary confinement, and the other striking prisoners have been held in all major Palestinian cities, including Gaza. Hamas, a political rival of Fatah, which rules Gaza, is also supporting the hunger strikers. In the second week of May, a Palestinian was killed in the West Bank during a rally in support of the striking prisoners. The solidarity committee formed to support the prisoners has called on the Palestinian Authority (P.A.) to halt security cooperation with Israel and postpone the local body elections. Even as the condition of the prisoners is worsening by the day, Israel is refusing to negotiate with them on the issue of improving the living conditions in the jails and increasing the number of family visits. Barghouti’s wife, Fadhwa Barghouti, worried about the deteriorating health condition of her husband and other prisoners, wrote a letter to Pope Francis in the second week of May. Barghouti’s lawyer was finally allowed to meet him a FRONTLINE . JUNE 9, 2017

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WO RL D AFFA IRS FRANCE

Cautious optimism Emmanuel Macron had a clear victory in the presidential election, but the National Assembly elections to be held in June will be the real indicator of the future direction of French politics. BY V ID YA RAM I N LO ND ON in the Netherlands, where Mark Rutte of the CentreRight People’s Party for Freedom and Democracy triumphed in national elections early this year, beating Geert Wilders, leader of the Far-Right Party for Freedom. It would also seem to match trends in other countries, such as the losses Britain’s right-wing UK Independence Party (UKIP) suffered in local elections in May, which are seen as a sign of what will follow in June’s

CH RI ST I A N H A RT MA NN /R E U T E R S

HOW DOES ONE INTERPRET EMMANUEL Macron’s victory in the second round of the French presidential election? To some people, his clear win over the Far-Right, anti-immigrant, anti-Muslim Marine Le Pen (who, following the first round, stepped down as the leader of the National Front in a cynical bid to widen her appeal to voters) is an indication of the failure of FarRight populism to hold sway in Europe. This was the case

F R EN C H P R E S I DE N T E M M A N UE L MA CRO N (left) and outgoing President Francois Hollande after the handover

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Hollande (who came under pressure in the party not to run for a second term). Many established figures within the party preferred former Prime Minister Manuel Valls. Interestingly, the primaries of The Republicans party yielded an unexpected victory for Francois Fillon, who lies to the right of his party, over Alain Juppe, a moderate within the party who was favoured because he was seen as a unifying candidate. However, in the first round, attention quickly began to focus on the success of Jean-Luc Melenchon, the leader of the La France Insoumise (Rebellious France) movement. He came in fourth, inspiring people, particularly the young, with his “red-green” agenda that combined radical political reforms (rise in taxes for the wealthiest, a revisiting of France’s relations with the European Union, and a move to a sixth republic more akin to a parliamentary system, with less presidential powers) with a green agenda (moving away from nuclear energy in a phased way towards offshore wind power and other sources of renewable energy). Unlike many of the candidates who opposed Marine Le Pen, Melenchon declined to endorse Macron in the second round. The deep-rooted nature of the changes under way in France was also visible in the second round, in which 33.4 per cent of the voters either abstained or spoilt their ballot papers (as against 24.3 per cent in 2012 and 24.6

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BER T R A N D G U A Y/ A FP

general election. The other view is to treat his victory as a sign of the far more complicated forces at work in French politics, as they have been in many other parts of Europe too. The first round of the presidential election certainly highlighted the decline and fall of the two-party system, which has dominated the country since the establishment of the Fifth Republic in 1958. This is the first M A RINE LE PEN on time in a presidential election May 7 after the second that neither the mainstream round of the election. established socialist nor the Right-of-Centre parties made it to the second round. Instead, Macron won 24 per cent of the vote and Marine Le Pen 21.3 per cent. The most notable change was the destruction of Francois Hollande’s Socialist Party, which won just over 6 per cent of the vote under the leadership of Benoit Hamon. The choice of Hamon himself was a sign of the changing times: he was the surprise winner of the primaries that the party held to select a replacement for

P RO T E S T E R S holding a banner that reads “Neither Le Pen nor Macron, we deserve better” during a demonstration on

April 27 after the results of the first round, in Rennes, western France. FRONTLINE . JUNE 9, 2017

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per cent in 2002 when Marine Le Pen’s father, JeanMarie Le Pen, lost to Jacques Chirac). The figure exceeds the number of votes for Marine Le Pen, meaning that she effectively was in third place. In the run-up to the second round, protests, including by student groups, highlighted the high level of dissatisfaction with the choice of candidates. Following Macron’s vicJ E AN -L UC tory, there were protests in M E LE NCHON , leader of Paris over his plan to reform the La France Insoumise the labour market, an initiatmovement. ive he championed as Minister of Economy under Hollande but which has proved to be deeply divisive. Workers at an automobile parts factory in central France, which is facing closure, staged protests and boobytrapped and destroyed some machinery. Unions highlighted the “savage” way workers were being treated (many are older workers with few employment options in a country where the average unemployment rate has been running at around 10 per cent) and called on Macron to intervene in the situation. More widely, there is a sense of caution in France’s reception to Macron. Some people drew parallels with Hollande’s victory in 2012, recalling the optimism with which he was greeted in the early days of his presidency. His promises to shake up the complacent politics that characterised the term of his predecessor, Nicolas Sarkozy of The Republicans, had raised hopes. By the end of Hollande’s term, his presidency was widely recognised as one of the least popular in recent history despite the command his party held over the legislative Assembly. That track record is clearly reflected in the concerns people have regarding Macron. A poll conducted by Sondage Kantar TNS for Le Figaro and other newspapers between May 4 and 5 found that only 34 per cent of French voters wanted Macron to get a parliamentary majority in the Assembly elections to be held in June. These elections will be the next big indicator of the direction of French politics: whether the rejection of the two mainstream parties will continue and whether Marine Le Pen will be able to capitalise on the gains she made during the campaign. While she was decisively rejected in the second round, she performed strongly in the first, gaining over two million more votes than her father did in 2002. Her party has two seats in the National Assembly, but it remains to be seen whether it will make gains, particularly in the former industrial areas such as the north-east and the south. MELENCHON’S CHALLENGE

It will also test the appetite for Melenchon’s radical reform agenda. Melenchon, who has pledged to field 63

candidates in all the seats across the country, is a far more electorally experienced politician than Macron. His campaigning has also been marked by tech-savviness when it comes to communicating with the electorate. (For example, his speech at an event in Lyon earlier this year was projected as a hologram at a separate rally in Paris.) Macron, of course, cannot be underestimated. While his lack of a party base has been seen as a weakness from the start, and it was suggested that the National Assembly elections would be his true battleground, he has risen to the challenge. He actively courted applications from people outside the political world to be candidates and received over 19,000. He has published a list of 428 (out of 577) candidates who will contest the Assembly elections on behalf of La Republique En Marche (the name he gave his En Marche! movement after securing electoral victory), whose composition highlights his eagerness to not be seen as an establishment figure and part of the political continuity that has put off many voters. The list has a 50:50 ratio of women to men and comprises a sizeable number of people (52 per cent) who are new to politics and have careers ranging from law to education and the police. Just over 20 are incumbent Members of Parliament. To set himself apart, he has also made a pitch to a more global audience, releasing a video of himself inviting scientists and others working on climate change in the United States to continue their work in France, where they would be welcomed. Recent polls suggest it could be a close race. One poll, conducted by Sontage Kantar TNS in early May, puts Macron at 24 per cent, The Republicans at 22 per cent, the National Front at 21 per cent, Melenchon at 15 per cent and the Socialists at 9 per cent. While there is some uncertainty about the outcome of the Assembly elections, what cannot be disputed is the high levels of dissatisfaction with the status quo and with politicians perceived to be from within the mainstream, something that has become apparent over the course of elections across Europe over the past two years. This is exacerbated by high levels of unemployment and the feeling that the economic recovery that followed the eurozone crisis has left many sections of society behind. This resulted in gains for the Left (such as the ascent of Jeremy Corbyn as Labour leader in the United Kingdom) and the Right, which has successfully tapped into the migration crisis and widened it to include scapegoating of the continent’s immigrant population. In some cases, this has led to gains by the mainstream Right, too, as was the case in the Netherlands where Rutte’s success hinged partly on the decidedly rightward drift of his politics (including, for example, adopting an increasingly tough line on immigrants). It was also the case in Britain, where the losses of UKIP in the local elections were put down to it being seen as the main party of Brexit. The ability of the Left to make headway in this environment (building on some of the success of the Podemos movement in Spain) remains to be seen: the Assembly elections will be a major test as will Britain’s ideologically charged June 8 election. � FRONTLINE . JUNE 9, 2017

WORLD AFF AI RS UNITED STATES

The Afghan toll

S HA H MA RA I / RE U T E R S

The U.S. has little to show for its long engagement in Afghanistan. And if the Taliban returns to power, it will be a major blow to U.S. prestige. Every contingency will be taken to prevent that outcome, even the destruction of Afghanistan. B Y V I JA Y P R A S HAD

(F R O M L E F T ) Former Afghan President Hamid Karzai, President Ashraf Ghani, the warlord Gulbuddin Hekmatyar, former

jehadi leader Abdul Rabb Rasool Sayyaf and Chief Executive Abdullah Abdullah on their way to a ceremony at the presidential palace in Kabul on May 4.

Each year, as the United Nations Assistance Mission in Afghanistan (UNAMA) finds, the percentage of women and children among the official death toll increases, many of the deaths a result of aerial bombardment. Afghan sources say that the number of war dead must be

THE AMERICAN WAR IN AFGHANISTAN WILL soon enter its 16th year. Over this period, the United States and its allies have lost close to 3,000 soldiers, while an unknown number of Afghans have died. The official figure for the Afghan dead, above 150,000, is laughable. FRONTLINE . JUNE 9, 2017

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near the million mark. The human toll has been considerable. In 2016, over half a million people fled their homes because of the conflict. This is the highest number of displacements since 2008. Of the estimated population of 32 million Afghans, almost two million have been displaced by the conflict; about three million are refugees from the almost 40 years of war in the country. In the five months that ended in May, UNAMA found that already 90,000 people had been displaced. The “spring offensive” of the Taliban began with a burst. On April 21, a handful of Taliban fighters infiltrated the Afghan National Army’s 209th Corps base in Balkh, a province in northern Afghanistan. They killed 140 Afghan soldiers. It was a devastating attack, which came a week after the U.S. dropped the 21,600-pound (9,798-kg) Mother of All Bombs (MOAB), the largest non-nuclear bomb in the world, on Nangarhar, Afghanistan. The bomb landed on the village of Asadkhel. The U.S. military said that 94 Islamic State fighters were killed. Journalists have not been permitted to the site, although it should be said that the district is home to 1.5 million people. It was as if the Taliban paid no heed to U.S. President Donald Trump’s decision to drop “Madar-e Bamb-ha”, the Dari translation of the grotesque device. The Balkh attack almost seemed as a directed snub. The Taliban now controls over 40 per cent of Afghanistan, with its hold cemented in north-eastern Helmand province, north-western Kandahar province, north-western Zabul province and Uruzgan province. Its forces could soon be in command of southern Afghanistan, which would put the Taliban in charge of the length of the country’s border with Pakistan. The assassination of Taliban leaders seems to have barely dented its ability to push hard against the Afghan Army and the Army’s North Atlantic Treaty Organisation (NATO) allies. Dan Coats, the U.S. Director of National Intelligence, told the U.S. Senate that regardless of any action by the U.S., “the political and security situation in Afghanistan will almost certainly deteriorate through 2018”. What he meant was that U.S. interests would not be met through the government of Ashraf Ghani and the security presence of the Afghan National Army. The Taliban is likely to continue to make gains. It is expected to seize a city in this “spring offensive” and consolidate its position through that tactical victory. The U.S. commander in Afghanistan, Army General John Nicholson, has called for an increase of several thousand troops. A leaked suggestion from the White House to send an additional 3,000 to 5,000 U.S. and other NATO troops followed swiftly. This leak came a month before Trump was to address NATO directly, which is to happen on May 25. Australian Prime Minister Malcolm Turnbull told Trump that he was “open” to sending additional troops to Afghanistan. NATO formally ended its combat mission in Afghanistan in 2014. There is hesitancy amongst its member states, apart from the U.S., to expand its presence in Afghanistan. Germany’s Angela Merkel and Britain’s Theresa May are uneasy with the prospect. Both

face elections this year, and both know that the American war in Afghanistan is unpopular in their countries. SILENCE IN THE U.S.

J O NA TH AN E RN ST / A FP

During the 2016 U.S. presidential election, neither Trump nor Hillary Clinton raised the matter of the American war in Afghanistan. The war has cost the U.S. at least $23 billion a year, with an additional $117 billion on reconstruction. Of that reconstruction money, 61 per cent, $71 billion, went towards the creation of the Afghan National Army. The U.S.’ surge in 2010, which brought 100,000 troops into the country, failed to stem the Taliban’s drive. By 2014, that strategy was silently dropped. There was little discussion about it then. With the great loss of life on all sides, the waste of resources and the futility of U.S. war aims, one would have thought that the question of Afghanistan would have been raised in the debates or in the speeches. But there was virtual silence on it.

GE NE RA L JO HN NIC HOLS ON, commander of the U.S.

forces in Afghanistan, and U.S. Defence Secretary James Mattis at a news conference in Kabul on April 24. The Special Inspector General for Afghanistan Reconstruction (SIGAR), a U.S. monitor for the money spent, has released 35 reports of considerable merit. They make for harrowing reading. They show that corruption has been endemic to the process of reconstruction. Little can be seen for the billions of dollars spent to rebuild Afghanistan. Roads remain of poor quality and schools and medical clinics are promised but do not appear. In Balkh province, where the Taliban had attacked the Army base, the staff of SIGAR found that only 30 per cent of students who had been reported enrolled in schools were seen at any one time. Teachers were absent. Buildings erected with concrete “dissolved in rain” or had walls and roofs that collapsed. The U.S. has spent at least $8.5 billion in its counternarcotics campaign to end, effectively, opium production. But this has been utterly wasted. The drug trade is 65

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Strikingly, SIGAR notes that this corruption resides deep in the Afghan Army. On March 28, 2017, the Afghan Ministry of Defence fired 1,394 officials for corruption. In 2016, 35 per cent of the Afghan security forces were killed: 6,800 soldiers and police. SIGAR points out that “about 35% of the force does not reenlist each year”. The problems in the Afghan Army are deep: “unsustainable casualties, temporary losses of provincial and district centres, weakness in logistics and other functions, illiteracy in the ranks, often corrupt or inefficient leadership, and over-reliance on highly trained special forces for routine missions”. No wonder that the Taliban has been making swift gains over the past few years. Its adversary is not prepared to contain its advance. TRUMP’S SURGE

AFP

Matters are so grave that the Afghan government had to welcome warmly the old war dog Gulbuddin Hekmatyar of the Hizb-e Islami, who was known as the “Butcher of Kabul” for his siege of Kabul between 1992 and 1996. Considered a serial violator of human rights, Hekmatyar is now back as a player in the Kabul political scene. On May 13, Hekmatyar met former Afghan president Hamid Karzai to talk about the increased death of civilians. Karzai, at the end of his presidency, began to be critical of the U.S. style of warfare in Afghanistan. He argued that the night raids and the aerial attacks killed more innocent civilians than combatants. Karzai has since become bolder with his pronouncements and is one of the most vocal protesters against the use of the MOAB on his country. He said that it “is a brutal act against innocent people.... A bomb of that magnitude has consequences for the environment, for our lives, for our plants, for our water, for our soil—this is poison.” The meeting of Karzai and Hekmatyar suggests the formation of a new antiAmerican pole inside the Kabul political class. It is in this context that Trump’s White House has suggested an increase in U.S. troops in the country. H.R. McMaster, Trump’s National Security Adviser, hastily noted that there had been no decision yet to increase troop levels. McMaster, who was instrumental in the 2007 Iraq surge, is aware that in the White House a potential troop increase is already being called “McMaster’s War”. If it fails, the blame will be on him. If it succeeds, Trump will certainly take the credit. It is unlikely that even an increase of 5,000 U.S. troops will have an impact on the Taliban’s rush towards Kabul. The style of U.S. warfare is likely to increase civilian casualties, and the deterioration of the Afghan National Army will not raise the population’s confidence. The Taliban, which had been delegitimised for its cruel rule 20 years ago, has now positioned itself once more as the only viable force to bring stability to the country. The reality of this is clear to many in U.S. intelligence. The return of the Taliban would be a major blow to U.S. prestige, the worst U.S. military defeat since Vietnam. Every contingency will be taken to prevent that outcome, even the destruction of Afghanistan. �

A M O S Q U E T H A T W A S D A M A G ED in a Taliban attack

N OO R M OH A MM A D/AF P

on the Afghan National Army’s 209th Corp base in Balkh province on April 21.

H AR V E S TI N G O P I U M S A P in a poppy field in Helmand

province on April 11. The U.S. has spent at least $8.5 billion in its counternarcotics campaign, but to no avail: 80 per cent of the world’s heroin comes from Afghan opium. worth about $1.56 billion and contributes almost 7.4 per cent to Afghanistan’s gross domestic product. The report SIGAR released in April showed that drug production increased by 43 per cent in 2016, with drug eradication “nearly imperceptible”. Opium cultivation increased by 10 per cent, with the main growth in regions where the Taliban is in control (Helmand, Kandahar, Uruzgan and Zabul). The U.S. says that 60 per cent of the Taliban’s funds come from the opium trade. At this point, 80 per cent of the world’s heroin comes from Afghan opium. There is no effective strategy to reduce the trade. FRONTLINE . JUNE 9, 2017

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TRAVEL

OF MIDDLE-EARTH AND THE

SOUND OF SILENCE In New Zealand, the grandeur of the mountains, the endless expanse of the ocean, the vast meadows and the deafening silence in general seem designed to remind one of one’s own insignificance. Text & Photographs By SUDHA MAHALINGAM

F R A N Z J O S E F G L A C I E R. The early Maori name for it is Roimata (tears of the avalanche girl). Legend has it that the

tears of a Maori girl whose lover fell down a cliff froze into the glacier. 67

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DOUBTFUL SOUN D (a sound

is a narrow channel of water connecting two wider bodies of water or between two bits of land) is the most exquisitely rugged and remote area of untamed wilderness in this part of the world.

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The Lord of the Rings fame are attractions enough, but most Indians come to New Zealand for that one commodity we seldom find in our own country: tranquil wildernesses and vast empty expanses untrodden by human feet. Modern facilities; crisp, clear air; a cool climate; and the ozone skies dramatically lit up by the setting sun are a bonus. Being in the southern hemisphere, New Zealand enjoys a salubrious summer climate in December even as Delhi FRONTLINE . JUNE 9, 2017

freezes over. New Zealand is an expensive destination though. We hire a car and drive through this scenic country and stay in selfbooked Airbnb accommodations throughout, except for the two nights we spent deep inside the Fiordland National Park in Doubtful Sound. The trip also involves self-catering, inspired as much by our budgetary constraints as by our dietary preferences. It is a great way to explore the country; you are not limited 70

by the pace of other travellers as would happen in group travel. Airbnb homes in South Island seem to run on autopilot. You never get to see any human beings, neither the owner nor any caretaker. As the check-in time approaches, an anonymous SMS on your mobile gives you the code to unlock that magical door to the accommodation. The properties are invariably shipshape and squeaky clean. The kitchen is equipped with all the gadgets you

C O W S C O M I N G H O M E in Franz Josef town, which is at the base of the mountain where the glacier is situated.

would need to cook your food. The entire house is at your disposal. Nothing is locked, not even the walkin closets bursting with the owners’ clothes. The trust reposed by the owners imposes an added sense of responsibility on you to leave the property as you found it. We begin our trip with a tour of Christchurch, a sprawling city with huge gardens and leafy neighbour-

hoods. We take the cable ropeway up a hill from where we enjoy a panoramic view of Lyttleton port, the epicentre of the 2011 earthquake. Today, the port is a picture of placidity with nary a trace of the destruction. Lyttleton was the port early settlers used to reach this island. A home for the Maori for about 700 years, this natural harbour was rediscovered by Captain Cook in 1770 71

during his first voyage to New Zealand, on the ship Endeavour. FRANZ JOSEF GLACIER

Next morning, we begin our fairytale drive through the Southern Alps. Within minutes of leaving Christchurch, we are already in the mountains. Our destination for the day is Franz Josef glacier. The route takes us through Arthur’s Pass, a comFRONTLINE .

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T H E T U I , a native bird.

munity of 60 households almost all of whom rely on tourist traffic for their livelihood. The pass is the only way out of the Waimakariri watershed into the valleys of the west coast. The area is also a national park that is home to the great spotted kiwi, the kea, the blue duck and the rock wren. After we cross the pass and enter the valley on the other side, the surf-battered stretch of craggy coastline serves up several peaks, including New Zealand’s tallest: the 3,754-metre-high Aoraki, or Mount Cook. In Franz Josef, the town that bears the same name as the glacier, we stay at a country house with an expansive paddock and farmyard. With enchanting views on all sides of the property, we elect to spend our time outdoors chasing wekas, New Zealand’s version of wild swamphen, FRONTLINE . JUNE 9, 2017

and watching cows come home at sunset. The trek up to the glacier can wait until the morrow. The early Maori name for Franz Josef glacier is Roimata (tears of the avalanche girl). Legend has it that the tears of a Maori girl whose lover fell down a cliff froze into the glacier. Named after the Austrian emperor by an Austrian explorer who found it, the glacier has been retreating alarmingly in recent years. A fivekilometre walk from the base of the mountain on which the glacier is situated leads us to a roped-off section of the glacier that looks like slush. We stand at the foot of the glacier and take our regulation photographs. Helicopters whirr above. For a hefty sum, they will drop you on the glacier for 10 minutes and bring you back down. The scale of things in New Zeal72

POST-RAIN CASCADES dot

the hillsides along the route through Doubtful Sound.

A VIEW of

the Tasman Sea.

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T H E F R A N Z J O S EF G L A C I E R .

and is designed to remind you of your own insignificance—the grandeur of the mountains, the endless expanse of the ocean, the vast meadows and the deafening silence. The one thing you will find in abundance in South Island is solitude. The macadam meanders languorously. As tyre swallows tarmac, you realise you have not sighted a single car other than your own since you set out in the morning. Nor do you see any human beings, although this is supposed to be peak tourist season in New Zealand. The drive meanders between the coast and inland. When the sea leaves the road, the lakes take over. There are several of them at every twist and turn, and they dazzle you with their deep blue in which the peaks are reflected. The meadows and mountainsides are polka-dotted with grazing sheep. Dairy is New Zealand’s major revenue earner, alongside tourism. There are lovely walks for every level of fitness, and if you want to go tramping and camping in the countryside, be prepared to shell out as much as you would for a hotel stay in India. The Kiwis have put a price even on their wildernesses. WANAKA

But South Island offers much for the adrenalin junkie, which is perhaps why it attracts so many young visitors. Wanaka, our next destination, offers adventure seekers every excitement—hang-gliding, jet-skiing, rappelling, canoeing, skydiving, rafting, surfing, ballooning, boating, trekking, canyoning, you name it, it is on offer—for a hefty price, of course. After all, the tourist season is short and the weather can be unpredictable. You sign numerous forms indemnifying the operators of these sports against every eventuality before you undertake something as routine as boating in a lake! Wanaka is home to numerous canyons. You are lowered into one (in a harness, of course) to explore the dark deep recesses and discover hidden secrets. Or you can go jetskiing, splashing flecks of foam and speeding through the waves. Wanaka is spectacular, which is why FRONTLINE . JUNE 9, 2017

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AORAKI , OR MOU NT COOK,

is 3,754 metres high and is New Zealand’s highest peak.

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THE WILMOT PA SS ROAD,

which runs through Fiordland National Park. New Zealanders claim this is the most expensive road ever built.

T H E WEK A, New Zealand’s version of

the wild swamphen. it was one of the locations where The Lord of the Rings was filmed. En route, we stopped several times along to admire the vistas. In Wanaka at sunset, the sky looks like a palette on which the artist has dripped ochre and pink. We stroll along the banks of the lake and discover not one but three Indian restaurants. New Zealand became a British colony in 1840, although the Dutch sailor Abel Tasman had made contact with the indigenous Maori residents almost two centuries earlier. It was Tasman who named the island New Sealand. He was followed by Captain Cook, who landed his Endeavour on the coast of this new land and established British and French settlers on the land. But the Maoris did not bow down to foreign domination easily and put up a stiff fight like the Sioux Indians of America. At last, when truce was established and the somewhat controversial Treaty of Waitangi was concluded in 1840, it was premised on peaceful coexistence of the two cultures, Maori and European. Later, it was discovered that it used clever wordplay to privilege British interests, leaving Maoris fuming. The uneasy balance endures though. During our travels through this country, we did not come across a single Maori resident, although they are said to comprise 15 per cent of the country’s population. Leaving Wanaka, we set out for FRONTLINE . JUNE 9, 2017

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Manapouri, a quaint village perched on the banks of Lake Manapouri, which in turn is the gateway to the two famous “sounds” of South Island: Milford Sound and Doubtful Sound. A sound is neither a fjord nor a caldera; it is not like backwaters, a bay or a gulf. In geography, a sound is a sea or ocean inlet larger than a bay, deeper than a bight and wider than a fjord; or a narrow sea or ocean channel between two bodies of land. We leave our rental car in Manapouri, the jumping-off point for the delightful Doubtful Sound cruise. Swatting sandflies, which swarm all over, we board a boat that takes us across the scenic lake, which is surrounded by mountains and clothed in a veil of mist. At the other end of the ride is an underground hydroelectric power station located on the edge of the Fiordland National Park. It is the largest power station in New Zealand and was constructed in the teeth of opposition from environmentalists. At the power station, we board a bus that will take us 21 kilometres across the national park through Wilmot Pass from where we board another boat for the Doubtful Sound cruise. New Zealanders claim that this gravel road through the national park is the most expensive road ever built. Although it is a major tourist attraction, there is just a single company that runs the combined boat-bus-boat trip to Doubtful Sound. Not only are the ticket prices extortionate, they get booked several months in advance. The bus journey takes us through a serene forest lined with manuka shrubs. The honey from manuka blossoms is said to have medicinal properties. We stay the night in Deep Cove Hostel, which is located deep inside the national park. The Deep Cove Outdoor Education Trust is a non-profit organisation established in 1971. It has a 50-bed hostel that was established to give school-age children an opportunity to experience life in a remote part of the national park. Visitors can stay here when there is no school camp. We are the only residents in this establishment today. The surrounding forests, we find, are lined with traps FRONTLINE . JUNE 9, 2017

SUNSET IN WANAKA.

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THE HIGHLIGHT OF THE TRIP to

South Island is the cruise through Doubtful Sound.

MANAPOURI HYDROELECTR IC POWER STATIO N

on the edge of Fiordland National Park. It is the largest power station in the country. 81

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L A K E T E K APO . It is one of the seven lakes that make up the Lakes District in South Island.

T H E S O U T HE R N A L P S , with Lake Wanaka in the foreground.

for stoats, an introduced species that wreaks havoc on native birds and animals. The highlight of our trip to South Island, of course, is the cruise through Doubtful Sound: sheer, weathered cliffs dominate the horizon and the perpetual mist adds a touch of mystique as our boat sails silently through these waters. Postrain cascades dot the hillsides. The FRONTLINE . JUNE 9, 2017

sound is home to bottlenose dolphins and fur seals. At the sound’s mouth to the Tasman Sea lies Nee Islets, home to a massive seal colony. Doubtful Sound is undoubtedly the most exquisitely rugged and remote area of untamed wilderness in this part of the world. It is also a delightful oxymoron in that the “sound” is a place of deafening silence! There are more than 40 sounds 82

in South Island. The story why this one is called the Doubtful Sound goes as follows: when Captain Cook sailed to this part of the island through the Tasman Sea, he dared not enter the sound since he feared there would not be enough wind to blow his ship back to the open sea. We also visit Milford Sound, where we glide over calm waters between weather-scuffed rocks even as Mitre Peak beckons us from a distance. But compared with Doubtful Sound, this one is crowded with busloads of camera-wielding tourists rending the tranquillity with their clicks and chatter. Bustling Queenstown is a pit stop on our way back. Lush rainforests, glimmering lakes, breath-taking views and some of the finest wine the country produces have made Queenstown a favourite destination. After a day in Queenstown, we drive back through the wetlands of Haast, home to seal and penguin colonies. And the route back to Christchurch throws up mesmerising views of Aoraki. It was a climb up this peak that whetted Edmund Hillary’s desire to take up mountaineering as a career. The Sir Edmund Hillary Alpine Centre there showcases a three-dimensional digital dome planetarium. �

B O O K S in review

‘Soft capitalism’ at work A profile of a segment of the IT industry, which claims to be the new “middle class” that sets the agenda for an emerging “aspirational” India. BY C . T . K U R I E N

T

HE title of the book is somewhat enigmatic. The blurb is more explicit: “Reengineering India explores India’s post-liberalisation transformation through the lens of the software industry. The book views the IT [information technology] industry as a key site where new identities, aspirations, and social imaginaries are being created and circulated. It examines the origins and organisation of software capital, the production of the Indian IT workforce, the introduction of new forms of work and management, and the connection between software and the ‘new’ middle class.” Granted that the IT industry and IT professionals have generated something of a new “culture” in the country during the past three or four decades, this anthropological account of the relationship between work, class, capital and culture in India’s new (post-liberalisation) economy and society deserves attention. The book is based on studies conducted largely in Bengaluru in the first decade of the present century by which time the city had come to be referred to as India’s “Silicon Plateau”. During that decade, the

Reengineering India Work, Capital, and Class in an Offshore Economy By Carol Upadhya Oxford University Press, New Delhi, 2016 Pages: xiii + 383 Price: Rs.995

companies and capital on the one hand, and the interaction of workers (who prefer to be known as professionals) from many countries on the other, that has defined the specifics of the Indian IT industry and has been leading to the cultural “re-engineering” of the country. From their inception and early days, the IT companies in the country have demonstrated that in view of their distinctly different ambience—modern, fastmoving, performance based and closely related to the “knowledge economy”—they were distinctly different from the essentially family-based Indian industrial establishments of the past. To be sure they were capitalist enterprises, but they rep-

city had some 1,200 IT-related companies employing over 260,000 people. But while Silicon Valley in the United States had an ecosystem of independent specialised firms, the ones in Bengaluru were closely related to IT companies in other parts of the world, specialising in exports of professionals and products. As is well known, though the Indian IT companies such as Infosys were started in the 1980s and had soon received recognition within the country and outside, it was the Y2K crisis of 1999-2000 that gave Indian companies and IT professionals a big boost. What the author claims is that it is the nature of this global connection with multinational 83

resented “compassionate capitalism”, as N.R. Narayana Murthy of Infosys claimed, with fairness, integrity and interest of society as their main features. The antagonistic relationship between owners and workers that symbolised early capitalism is also not to be seen in IT companies, with all members being “techies”, or IT professionals. A sociological analysis of this new face of capitalism, quite compatible with its “neoliberalism” and its thrust on the services sector can be said to be the focus of the book. From the early days of “body shopping”, Indian IT personnel came to be noted for their professional competence attributed to their mathematical skills and logical reasoning. Hence foreign companies, especially the ones in the U.S., were eager to have Indian software specialists working for them either in their individual capacities or more frequently through various forms of corporate arrangements. To a large extent, these arrangements, prominently one of “outsourcing”, defined the nature of the Indian IT industry from the beginning. An important observation of the author is the asymFRONTLINE . JUNE 9, 2017

metry of relationships in this arrangement. “Although members of a cross-border team are supposed to be equal collaborators, the reality of the outsourcing situation creates a differential distribution of power, as teams are structured by the contractual relation between customer and service provider. In software services companies, the Indian team almost by definition stands in an unequal relation with the client side.” The same unequal relationship exists even when Indian companies, particularly the newer and relatively smaller ones, enter into relationships with multinational corporations because what is usually outsourced is mainly the low-end, routine work on the assumption that Indian engineers are “sloggers” who work hard and are good at following instructions but are not particularly noted for independent work. ‘LIBERALISING MIDDLE CLASS’

To what extent can this be attributed to the “middleclass” background of Indian IT professionals? The middle class, of course, is not an easily identifiable category. In the Indian context, it initially denoted the privileged, uppercaste, English-speaking minority dispersed in different parts of the country. In the early decades of Independence, it meant the growing numbers of those with professional qualifications and those in the growing ranks of administrative personnel with a pan-Indian profile. And with liberalisation and FRONTLINE . JUNE 9, 2017

globalisation, the middle class has come to have greater affinity with both the state and the market, “the new liberalising middle class” as a writer has described. The author’s finding is that most of the software engineers come from such middle-class backgrounds, quite homogenous socially, with women IT professionals coming from more affluent socio-economic backgrounds than men. However, the growth of the IT and IT-enabled services has led to an heterogenisation of the middle class as diverse social groups strive for economic mobility by entering these occupations. IT professionals belonging to these categories seem to have many things in common: generally higher earnings, consumption patterns and new lifestyles. And yet, not all is well professionally for a number of the “techies”. A major reason for this somewhat surprising finding is that while practically all of them have high educational qualifications, they are poor in communication skills. Engineers are doers, not talkers! But the IT industry is basically a team work where constant interaction is an essential aspect of the profession, and there is a hierarchy, too. The author quotes a senior industry consultant: “You have to understand the communication hierarchy. There is the white guy, who talks to the software developer. He communicates with the project manager. The project manager orders the

technical engineer, who is accountable to him… There are at least six guys who have to be kept in the loop though they don’t communicate directly.” A significant part of the book deals with the problems of individual members of the industry, both when they work in their parent unit as well as when they go to foreign countries on assignments. Another major theme that the book deals with is the management practices and ideologies in the IT industry and how they fit in with the larger neoliberal ideology. Within an IT company, the management problem is essentially one of respecting the sense of equality and freedom of all its members while observing the managerial function of command and hierarchy. IT firms, the leading ones as well as the smaller ones, have made a deliberate attempt to project that they have a new model of governance. A major difference they try to make known is that they are middle-class entrepreneurs who rely on merit and hard work rather than inherited advantages of wealth and contacts. They encourage the spirit of upward mobility and the right of equals to branch off and start firms of their own. However, some elements of hierarchy are unavoidable, when doing contract work with others, especially foreigners, work has to be assigned; foreign assignments have to be determined; performance has to be supervised. Indian IT firms that have earned a reputation are those that have succeeded 84

in this dual task of camaraderie and command. The book also attempts to locate the IT industry in the context of globalisation and the new phase of capitalism that it represents. The quest for profit is the motivating spirit of IT companies and it is profit that evaluates their performance. From this perspective, the IT industry represents a sophisticated version of capitalism, “soft capitalism” as a writer designated it towards the end of the 20th century. If early capitalism was “hard capitalism” because of its crude exploitation of workers, soft capitalism is characterised by its subtle forms of exploitation of highly paid professionals. If IT professionals are recognised for their creativity and productivity, they are also viewed “as a bundle of skills, in which one’s very person is defined as a conglomerate of commodifiable pieces of knowledge and ability”. IT professionals are, therefore, under constant pressure to keep up with the ever-changing world, to be flexible at all times. The recognition of the skill of a professional, indeed, depends on how marketable it is. The professional, the worker, becomes a mere “bundle of skills”. It is doubtful whether the IT industry has been re-engineering India in any meaningful sense, but the author brings to the notice of the reading public a profile of a segment of the minority that claims to be the “new middle class” that sets the agenda for an emerging “aspirational” India. �

B O O K S in review

Facets of political Islam The book is a valuable addition to the literature on the unfolding drama in the Arab world. BY K . P . F A B I A N

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R FAZZUR RAHMAN SIDDIQUI completed his doctoral thesis on “Islamic Political Movements in West Asia and South Asia” from Jawaharlal Nehru University in 2008. He joined the Ford Foundation, and later moved to the Indian Council of World Affairs as Research Fellow. He has kept up his interest in “political Islam”. His book The Islamic State: From the Time of Caliphate to Twentieth Century: Pre-Ikhwan and post-Ikhwan Phase, published in 2010 (Beirut), was rated highly by fellow scholars. India, of course, should take keen interest in “political Islam”. It was by using the Islamic card that Mohammad Ali Jinnah, who was as far away from orthodox Muslim faith as possible, carved out Pakistan, with the strong support of the departing imperial power. That Pakistan itself broke up, with East Pakistan becoming Bangladesh, shows that religion cannot be the unfailing glue that keeps a people together. In Jammu and Kashmir, Pakistan’s Inter-Services Intelligence has made use of Islam to promote separatism.

Political Islam and the Arab Uprising Islamist Politics in Changing Times By Fazzur Rahman Siddiqui Sage Publications, New Delhi, 2017 Pages: 339 Price: Rs.995

Yet another reason for India to take note of political Islam is that a certain number (a few multiples of 10) of young Indians have ventured out to the Islamic State (I.S.) in Syria or Afghanistan. While the number of the brainwashed youngsters might be small compared with those from other countries, it is necessary for India, the government as well as civil society, to figure out the attraction of the I.S. for the young. Siddiqui’s book is one of its kind as one has not come across a book published in India dealing with political Islam in a holistic manner. There are books on I.S., but they do not give the reader the big picture. The book is dedicated to all

those countless revolutionaries who stood up to change the political trajectory of the Arab world. The reader, while admiring the author’s optimism and idealism, might wonder whether, except in Tunisia, the Arab Spring has delivered the anticipated results in the Arab world where innocent people continue to be killed in Syria and Yemen and with Egypt and Libya still struggling to find their way to a democratic destination. The first chapter gives us a theoretical framework. The 1979 Iranian Revolution led by Ayatollah Khomeini introduced “a new trinity—power, Islam and politics—in the global political discourse”. The term political Islam has 85

“apocalyptic implications” for the scholars and the media in the West. Adherents of political Islam differ from Marxists by emphasising the importance of the “moral and cultural interpretations” to understand social evolution. Yet another matter of importance is that political Islam is a revolt against orthodox Islam also. The author gives an account of the origins of fundamentalism (in its various forms), Salafism, and Wahhabism and explains why political Islam is different from the three. The author inundates the reader with one too many definitions of political Islam from various scholars. The reader will find out that the author’s own brief and unconvoluted definition is the most appropriate one: A political movement to restore the primacy of the Shariah. THREE PHASES

Political Islam has gone through two phases and is now in its third phase. The first phase began in the 19th century when Islam lost to Western imperialism and ended with the retreat of that imperialism, giving political freedom to the Islamic world. The second phase, stretching to the early 1990s, was characterised by the growing voices of dissent against dictators. The third phase began with the collapse of the Soviet Union and led to the Arab Spring (the uprisings that commenced in 2010). Chapter 2, titled “Quranic-Theological Context of Political Islam”, explains FRONTLINE . JUNE 9, 2017

AFP

A T T A H RI R S Q U A R E in Cairo during a rally marking

the 2011 Arab Spring uprising on January 25, 2014. that for Islam sovereignty belongs to God and not to man. The Prophet Mohammad was both ruling and teaching his people. It is necessary to hold political power for “commanding rights and forbidding wrongs”. The author quotes from the Quran: “Allah has promised those of you who believe and do righteous deeds that He will surely bestow power on them in the land as He bestowed power on those who preceded them, and that He will firmly establish their religion which he had been pleased to choose for them. “ The third chapter, “Islamic Responses to the Arab Politics During Colonial and Post-Colonial Phases”, deals with the Islamic response to the ascendency of the Christian West. There were two types of responses. The first called for “complete integration” with the West. The second had two variations, either to reject in toto the influence of the West or “to recreate an Islamic state according to Shariah and the Quran”. We are given detailed accounts of the thoughts of Sayeed Jamal al-Din al Afghani (1837-97), Hassan FRONTLINE . JUNE 9, 2017

al-Banna (1906-49), Sayyed Qutb (1912-66), Sayyed Abu al-Ala Mawdudi (1903-79), and Imam Roholla Ayatollah Khomeini (1902-89). Al Afghani had a fascinating identity problem. As he put it: The English people believe me a Russian The Muslims think of me a Zoroastrian The Sunni think of me a Shiite And Shiite thinks me an enemy of Ali Some of the friends of the four companions have believed me a Wahhabi. Chapter 4 (“Arab Spring and the Future of Political Islam”) gives a historical account, starting with the attempted selfimmolation of Mohammed Bouazizi in Sidi Bouzid, a small town in Tunisia. “The origin of the Arab Spring can be traced back to the womb of the autocratic character of the regimes in the post-colonial Arab world.” The West, especially, the United States, promoted democracy in eastern Europe, but did not do the same in the Arab world. The author points out the crucial significance of the use of technology by

the people in revolt. The number of Internet users in Egypt went up from 16.3 million in 2009 to 22.6 million in 2010. Turning to oil, the author maintains that it has proved to be as “much curse as blessing”, whereas “unbridled liberalism and the diktats of the International Monetary Fund and the World Bank” devastated the economies of Egypt and Tunisia. The role played by the Salafists in post-Mubarak Egypt is noteworthy. Salafists traditionally shunned politics but they decided to participate in the parliamentary elections in 2011 and formed a united Islamic Front with the Muslim Brotherhood. The front won 70 per cent of the seats. Al Nour, the party of the Salafists, won 27.8 per cent of the votes. However, the Brotherhood and Al Nour fell out, and when the popular agitation to topple President Mohammed Morsi began in 2013, the Salafists joined in. INDIA AND THE GULF

The last chapter is titled “Arab Spring: Changing Landscape and Implications for India”. More than six million Indian nationals are in the member countries of the Gulf Cooperation Council (GCC), and the remittances from these countries account for half of the total remittances received. The remittances to India account for half of the total going out of the GCC countries. Cooperation in defence and security between India and the GCC member countries has been strengthened recently. India has never wanted 86

to export its democracy to other countries. It has scrupulously avoided interfering in other countries. New Delhi realises that political instability and turbulence in the GCC area will have serious adverse consequences for the country: Indian nationals there will have to come back, the remittances will stop, and energy imports, so crucial to the economy, will be affected. In his conclusion, the author draws attention to the paramount importance of adherence to democracy by secularists and Islamists. He feels that India has not paid adequate attention to the Arab region and the changes occurring there. “The Arab Spring is a major source of instability in the whole region, which might affect the sectarian coherence here as well. India should try hard to prevent this cleavage in its own country because the presence of large number of Shiite might lead to this fragmentation” (emphasis added). The epilogue, which narrates the history of the emergence of the Islamic State of Iraq and Syria, is useful. There is a useful glossary of Arabic terms used in the text. The bibliography, running into more than 150 books, not to mention journals, shows the diligent research done by the author. The editing could have been better. The book is a valuable addition to the literature on the unfolding drama in the Arab world where some outside powers are actively engaged, adding fuel to the raging fire, with the rest of the world watching helplessly. �

B O O K S in review

Big data terror A book that makes us realise how people are reduced to bits of data that can be used to expand the profits of corporations, to reduce the state’s spending on affirmative action, and to threaten the idea of democracy. B Y A . S . P A N N E E R S E L V A N

O

ver the last hundred years, there have been some outstanding novels that capture our dystopian reality. From Aldous Huxley’s Brave New World to George Orwell’s 1984, from Franz Kafka’s The Metamorphosis to Margaret Atwood’s The Handmaid’s Tale, each explored the ruthlessness of the state’s power and the institutions created by that power to perpetuate entrenched interests at the cost of the people. Despite their chilling narratives, these novels, at the end of the day, offered comfort in that they were works of fiction that talked about dark possibilities, which may not be our fate if we are vigilant enough. Somehow, the reader is convinced that these novels are teaching grounds to learn, to dissent, to question, to act and to resist. They are seen as catalysts for the democratic mediation of spaces for human aspirations and desire for freedom. They, at a deeper level, reaffirm the agency of the people against draconian institutional models. However, Cathy O’

Weapons of Math Destruction How Big Data Increases Inequality and Threatens Democracy Cathy O’ Neil Allen Lane, London Pages: 272 Price: £12.99

ments, this book is more disturbing than any of the dystopian novels. It deals with real big data and arrives at stark conclusions. In our case, where there is a constant change in the basic parameters in collecting data, one shudders to think what the future holds for us. Cathy O’Neil is one of the finest data experts in the world. She started the Lede Program in Data Journalism at Columbia University. A PhD in Mathematics from Harvard, she worked for years in Wall Street as a data scientist, building models for hedge funds and predicting

Neil’s Weapons of Math Destruction, a non-fiction inquiry into the world of big data, removes even this comfort and makes us realise how people are reduced to bits of data that can be used to expand the profits of corporations, to reduce the state’s spending on affirmative action, and to threaten the idea of democracy. In India, in the context of the Supreme Court’s connivance with the government of India’s defiance of its interim order in pursuit of its move to make Aadhaar mandatory for the delivery of subsidies, benefits and other entitle87

people’s purchasing power and digital clicks. But, she was disillusioned with this kind of mathematics, which refused to see the conditions of the lives of people. She was dismayed with the arrogance and the authority displayed by the high priests of mathematics and computer science in determining what one was entitled to. She was disturbed by the ironic relationship between the high assumptions of the mathematical models about creating a fair system based on numbers that eliminated bias and the toxic reality of reinforcing stereotypes. In this book, she explains with rich empirical evidence how the new algorithm-driven models are opaque and incontestable, even when they are wrong. To understand the inherent weakness in the new math-driven models, we need to look at specific human experiences recounted in the book rather than abstract terms such as probable statistical error, adjustment for margins of error, and various formulae. Cathy O’Neil became suspicious of the numbers game following the 2008 sub-prime financial crisis in the United States that caused a rise in unemployment and wreaked havoc on the lives of millions. She wrote: “What’s more, thanks to the extraordinary powers that I loved so much, math was able to combine with technology to multiply the chaos and misfortune, adding efficiency and scale to systems FRONTLINE . JUNE 9, 2017

that I now recognised as flawed.” VICTIM OF MATHEMATICS

The first case she deals with is that of an excellent schoolteacher in Washington, D.C., who became a victim of mathematics. In 2007, the city’s mayor, Adrian Fenty, wanted to turn around underperforming schools under his remit. He created a new powerful post, Chancellor of Washington’s Schools, to aid him in this mission and appointed an education reformer, Michelle Rhee, to the post. Rhee developed a teacher assessment tool called IMPACT and decided to fire all the teachers whose scores put them in the bottom 2 per cent. At the surface level, this looked like a fair system and many good teachers felt that they had no cause for worry. But, Sarah Wysocki, a fifth grade teacher, with excellent reviews from the school principal and parents, scored abysmally in IMPACT’s value-added modelling, an algorithmgenerated scoring method, and was fired. What exactly was the value-added model measuring? It was a mathematical computation developed by a consultancy firm, Mathematica. Its job was to measure the educational progress of the students and then to calculate how much of their advance or decline was due to teachers. The variables were plenty: the socio-economic background of the student, the effects of learning disabilities and domestic violence, to name a few. Could FRONTLINE . JUNE 9, 2017

Solid values and selfregulation rein in only the scrupulous. Society should get a grip on techno-utopia and unwarranted hope in what algorithm and technology can accomplish. ranking lost its reputation, forcing good students and good professors to avoid it, and the alumni to cut down on contributions. Its ranking tumbled further.

an algorithm capture human behaviour, performance and potential? “There are so many factors that go into learning and teaching that it would be difficult to measure them all,” said the fired teacher. One of the techniques adopted by the statisticians was to count on numbers to balance out exceptions and anomalies. “Weapons of math destruction”, Cathy O’Neil argues, often punish individuals who happen to be the exception. IMPACT’s dependence on algorithm weeded out more good teachers than bad teachers.

FLAWED ASSUMPTION

Cathy O’Neil looked at the other flawed assumption that comes with quantifying qualitative attributes. She looked at a case of a website that was looking for a social media maven, the digital world’s term for someone who helps to aggregate and accumulate presence in the social media platforms. The hiring manager devised a proxy to evaluate the applicants. She settled for those with most followers on Twitter. It looked like a fair assumption to measure social media engagement. But once the word leaked that assembling a crowd on Twitter was key for getting the job, candidates did everything to ratchet up their Twitter numbers. Some paid money to a service that populates their feed with thousands of followers, most of them generated by robots. The proxy lost its effectiveness.

COLLEGE RANKINGS

The next example that Cathy O’Neil examines is that of the ranking of 1,800 colleges and universities in the U.S. by the magazine U.S. News & World Report. It was a process that began in 1983 by instituting opinion surveys. Stanford came out as the top national university and Amherst as the best liberal arts college. But others protested, forcing the magazine to go in for data. The first data-driven ranking was published in 1988. Many felt that the results were sensible. However, soon a vicious feedback loop materialised. A college that fared badly in the

FAIRNESS AHEAD OF PROFIT

O’Neil explains how big data processes codify the past in a reductionist man88

ner and how they cannot predict the future. “Doing that requires moral imagination, and that’s something only humans can provide. We have to explicitly embed better values into our algorithms, creating Big Data models that follow our ethical lead. Sometimes that will mean putting fairness ahead of profit,” she argues. She cites an oath drawn up by two financial engineers, Emanuel Derman and Paul Wilmott, which focussed on the possible misuses and misinterpretations of their models: “I will remember that I didn’t make the world, and it doesn’t satisfy my equations. Though I will use models boldly to estimate value, I will not be overly impressed by mathematics. I will never sacrifice reality for elegance without explaining why I have done so. Nor will I give the people who use my model false comfort about its accuracy. Instead, I will make explicit its assumptions and oversights. I understand that my work may have enormous effects on society and the economy, many of them beyond my comprehension.” She feels, however, that this will not suffice because solid values and selfregulation rein in only the scrupulous. Her concluding argument is that society should get a grip on techno-utopia and unwarranted hope in what algorithm and technology can accomplish. It is hard to disagree when she says: “Before asking them [algorithm and technology] to do better, we have to admit they can’t do everything.” �

SC IE NC E

Memories of a Bangalore quartet Satish Dhawan, Sivaraj Ramaseshan, G.N. Ramachandran, and H. Narasimhaiah dominated the scientific landscape of Bengaluru between 1970 and 1990 as contemporaries with uniquely distinct interests and styles. Their dedication to the cause of science continues to inspire people long after their passing. BY P . B A L A R A M B Y S P E C I A L A R R A N G E M EN T

H . N A R AS I M H AI A H when he met Gandhi in Bangalore in 1936, a meeting that was to transform the young boy into a lifelong

follower of Gandhi’s ideals. Vallabhbhai Patel is at extreme left. Gandhi was in Bangalore to address Congress workers. 89

FRONTLINE . JUNE 9, 2017

MALGUDI, R.K. Narayan’s idyllic setting for his stories, may have been inspired by the Mysore of a bygone era, but its name is a felicitous blend of two of Bangalore’s oldest suburbs—Malleswaram and Basavangudi. Even in the 1970s, when I first arrived in the city, these areas retained an old-worldly charm. Few could have foreseen the city’s transformation at that time, although the foundations were already in place. Bangalore, now slowly metamorphosing into Bengaluru, the erstwhile princely State of Mysore, and the State of Karnataka, occupy a FRONTLINE . JUNE 9, 2017

THE INDIAN INS TI TUTE OF S CIENCE in Bengaluru on March 4 during the

Open Day celebrations when people were free to visit the campus. special place in the history of science in India, especially as it developed over the 20th century. Jamsetji Tata’s vision of a modern research institution in India was formally realised in 1909 when the Indian Institute of Science (IISc) was established on a large campus generously gifted by Krishnaraja Wodeyar, the Maharaja of Mysore. Over the next hundred years, Bangalore became the major centre of academic science in India. Delhi may have more institutions, Mumbai may be home to 90

two of India’s most important institutions created by Homi Bhabha— the Tata Institute of Fundamental Research and the Bhabha Atomic Research Centre—and Kolkata may have been the epicentre of the intellectual renaissance in the first three decades of the last century (when it was still Calcutta), but it is really Bangalore that has anchored much of the activities that we associate with the growth of science and technology in India. Does not the ambience of a city

contribute to the flowering of talent at points in history? Budapest, a city often brutalised by the European political upheavals of the 20th century, is a notable example. From the banks of the Danube emerged the creative geniuses of the turbulent decade of the 1930s—Leo Szilard, John von Neumann, Eugene Wigner, Edward Teller, Dennis Gabor, Theodor von Karman, Michael Polanyi and Albert Szent Gyorgi among them (V. Smil, Nature, 2000, 409, 21). C.P. Snow’s charming collection of reflections on men of substance, Variety of Men, introduces in simple and elegant prose

some of the men who dominated the English, or more accurately the Cambridge and London, scene in the eventful years between the 1920s and the 1950s. In these pages are some of the most readable accounts of famous men such as the physicist Ernest Rutherford, who presided over the dawn of the atomic age; the mathematician G.H. Hardy, remembered as much for his reflective prose as for his discovery of Ramanujan, and the incomparable H.G. Wells, unhappy in his last days at his exclusion from the Royal Society. In India, the Kolkata of the 1920s and the 1930s must stand as a magnificent example of the link between ambience and intellectual discovery. For a brief period, in those two decades, Kolkata was home to Jagadish Chandra Bose (1858-1937), Prafulla Chandra Ray (1861-1944), Rabindranath Tagore (1861-1941), C.V. Raman (1888-1970), Meghnad Saha (1893-1956), Satyendra Nath Bose (1894-1974) and Prasanta Chandra Mahalanobis (1893-1972). As a bystander watching the scientific scene in Bangalore between the 1970s and the end of the 20th century, I had the privilege of seeing, hearing and interacting with many individuals who greatly influenced their surroundings. In attempting to imitate Snow, I asked myself: “Can I write about the famous men of science whom I have seen in Bangalore over these decades?” For many years I contributed a fortnightly column to the journal Current Science, often penned in haste in the stillness of the night. In some of them I reflected on men I knew and quietly shed a tear at their passing. It is these men I would like to remember again, a quartet of great distinction who represent the many 91

facets of the growth of science in Karnataka and in India. Satish Dhawan (1920-2002), Sivaraj Ramaseshan (1923-2003), G.N. Ramachandran (1922-2001) and H. Narasimhaiah (1920-2005) were indeed “great contemporaries” (a term I borrow, unabashedly, from the title of Winston Churchill’s book) who were all born in the early 1920s and who left us between 2001 and 2005. They were men of varied backgrounds and widely differing temperaments, but they shared a deep and abiding commitment to the cause of promoting science in India. SATISH DHAWAN: INSTITUTION BUILDER

T H E H I N D U AR C H I V E S

K . M U RA LI KUM AR

They were men of varied backgrounds and widely differing temperaments who shared a deep and abiding commitment to promoting science in India.

SA TI SH DHA WA N.

When Dhawan made his entry into the IISc in 1951 as a member of the Aeronautical Engineering Department, the institution was entering a comfortable state of middle-aged somnolence. He rose dramatically to become its director in 1962 at the FRONTLINE . JUNE 9, 2017

During his long innings as IISc director, Satish Dhawan gently guided the transformation of an established academic institution. to a more collegial model that promised the prospect of collective decision-making on academic matters. During his long innings as its director, Satish Dhawan gently and, at times, unobtrusively guided the transformation of an established academic institution; a formidable task that required a clear vision, a firm resolve and an ability to persuade recalcitrant academics to tread a new path. Experience tells us that in our surroundings, when old institutions begin to falter, it is easier to contemplate setting up new ones; the hope is that this strategy sidesteps the difficult problem of effecting reform and change in institutions with set traditions.

BY S P E C I A L AR R A NG E M E NT

remarkably young age of 42. When he formally retired in 1981 he left an institution that had grown enormously in size and scope and was arguably the pre-eminent institute of science in the country, comparable with many in the developed nations of the West. Legend has it that Dhawan entered the institute as an extraordinarily dashing young man. I saw him when he left it, a remarkably handsome and distinguished figure exuding a quiet charm that was uniquely his. In this period he transformed the academic structure of the institute, moving it from a feudal departmental structure presided over by a single, powerful and most often, inhibitory professor

Dhawan’s administrative achievement at the IISC has faded into obscurity, dimmed by the lustre of his achievement in building up the Indian Space Research Organisation (ISRO) into the formidable undertaking it is today. Dhawan’s ability to attract men of unique and varied talents and his role in shepherding the two organisations he headed during this phase of explosive growth, a period that coincided with the development of mechanisms for largescale funding of academic science, must surely rank as one of his finest achievements. The IISc’s focus on research, nurtured carefully by Dhawan, deepened in later years, providing an institutional ambience that was clearly distinct from other institutions. Dhawan’s love for Bangalore and his attachment to the institute led inevitably to the choice of this city as the headquarters of ISRO. Vikram Sarabhai’s untimely death in 1971 catapulted Dhawan into a dual role, heading both ISRO and the institute for a decade. The space programme

S A T IS H D H A W A N (centre) with S. Ramaseshan (right) and Kausalya Ramaseshan. FRONTLINE . JUNE 9, 2017

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has had a wonderfully romantic history, with Satish Dhawan as the guiding force; in times of failure he shouldered responsibility, in the heady days of success he stood quietly on the sidelines. Dhawan’s ability to build an organisation whose success relied on teamwork, discipline and collective dedication was truly remarkable, particularly when one recognises that he was simultaneously guiding an institution such as the IISc, where individuality and idiosyncrasy were cherished qualities. My view of Satish Dhawan is necessarily circumscribed by the limited perspective from which I saw him. For a man of many facets, any historical assessment must, of course, come from a scholarly study of his life and times. But, at the distance from which I viewed him, separated by the gulf of age, position and discipline, Dhawan was a man who engendered immense respect by his grace of conduct. There was a shy air of reticence about him, uncommon in men who have experienced power and distinction.

TH E H I N DU ARC H I V E S

S. RAMASESHAN: MAN OF UNCOMMON TALENTS

S . R A M A SE S H A N .

Sivaraj Ramaseshan, who succeeded Dhawan at the institute, was an engaging personality and a man of uncommon talents. In a career

spanning over half a century, Ramaseshan carried out front-line research in physics and materials science. Optics, crystallography and high-pressure physics were among the disciplines where he made decisive and influential contributions. But he was far more than a researcher, lost in the technicalities of his chosen discipline. Ramaseshan was a builder of groups, institutions, scientific organisations and academies. He was the prime architect of a movement to enhance the prestige, visibility and content of scientific journals published from India. He was among the foremost popularisers of science in this country. To every sphere of his diverse activities Ramaseshan made a distinctive and lasting contribution. Ramaseshan was incurably romantic about science. Growing up in the heady days of the freedom movement and entering research in the early 1940s under the tutelage of his legendary uncle, C.V. Raman, had an indelible impact on the youthful Ramaseshan. His academic career began at the IISc, where he worked for his doctoral degree and as a member of the faculty of the physics department in the 1950s and the early 1960s. He was to return nearly two decades later to serve as the institution’s joint director (1979-81) and director (198184). In the intervening years, he established the physics department at the Indian Institute of Technology Madras and the Materials Science Division at the National Aeronautical Laboratory (NAL, now the National Aerospace Laboratories). The world-class materials programme he built at NAL has been a critical element in the development of indigenous capabilities in aerospace research. His personal research contributions, most notably his early work on anomalous dispersion methods in crystallography and his later research on condensed matter physics and materials, were characterised by deep physical intuition and a unique ability to see the heart of a problem. But, most remarkably, Ramaseshan 93

was to make the most significant contributions to many institutions at a time when his formal academic career drew to a close. In 1973, Ramaseshan was the motivating force in launching the physics journal Pramana, published by Indian Academy of Sciences. In 1978, he wrote at length on the problem of scientific journals in India. In a paragraph that will find many echoes today, he asked: “Can our journals help to produce an intellectual ferment so that the highest quality of science is produced in this country?” He added: “This can be done only if the culture of science is made to percolate deeply into the community. Only then can this metamorphosis take place. Can we help to revive our dying universities? Can we help our bright young students to pursue the excitement of creative science?” In 1989, Ramaseshan took over the editorship of Current Science. The journal, founded in 1932, had an illustrious past as a widely read interdisciplinary science journal. But it had fallen on hard times. Diminished circulation and decreasing visibility in India were problems Ramaseshan had to contend with. He brought to the task of rejuvenating Current Science a remarkable sense of purpose and boundless optimism. In reflecting on the life and times of Ramaseshan, I am drawn inevitably to two of his great contemporaries, G.N. Ramachandran and Satish Dhawan. For a brief period, in the transition years between the 1970s and 1980s, all three were at the IISc. They were three entirely different personalities, but they all bore the indelible stamp of greatness, collectively contributing to the growth of our science and our institutions. With Ramachandran, Ramaseshan shared deep interests in optics and crystallography. With Dhawan, he shared an abiding commitment to building and fostering the institutions on which this country’s progress depends. When C.V. Raman died in 1970 he left three institutions: the Raman Research Institute, the Indian Academy of Sciences and FRONTLINE . JUNE 9, 2017

the Current Science Association—all of which he had presided over for long periods of time. In the years that followed, Ramaseshan, more than anyone else, ensured that these organisations acquired a new and distinctive character which would ensure a bright and robust future.

TH E H IN DU A RC HI VE S

G.N. RAMACHANDRAN: BRILLIANT MIND

G . N . R A M A C H AN D RA N .

G.N. Ramachandran was undoubtedly one of the most remarkable men I have ever met. He was everything I had always imagined a creative scientist to be; brilliant, temperamental, unpredictable and childlike. When he died in Chennai on April 7, 2001, the curtains came down on one of the most remarkable chapters of modern science in India. Ramachandran began his journey in science when he joined the IISc in 1942 as a student in the electrical engineering department. He realised very quickly that his interest lay in physics, a subject then overwhelmingly dominated by the presence of C.V. Raman. In retrospect, it appears almost inevitable that Ramachandran would desert electrical engineering and embrace physics; an event that appears to have been accompanied by Raman’s soothing words (possibly apocryphal) to the professor of electrical engineering: “I am admitting FRONTLINE . JUNE 9, 2017

Ramachandran into my department as he is a bit too bright to be in yours.” Ramachandran was to eventually become the most distinguished of Raman’s students. In Bangalore, he first submitted a thesis titled “Optics of Heterogeneous Media” for an MSc degree of the University of Madras and later a doctoral thesis in 1947, which contained some of the earliest applications of X-ray diffraction to the study of crystal perfection. He spent two years in Cambridge, obtained a PhD working with W.A. Wooster, and returned to Bangalore in 1949 to begin an independent career as an assistant professor of physics, working in the X-ray diffraction laboratory that he was instrumental in building as a student. He did not stay long. The University of Madras beckoned with a professorship and the responsibility to head the department of physics. Ramachandran moved to Madras when he was just 30 to begin an extraordinary burst of scientific activity. In Madras, he flourished under the benign and supportive influence of an enlightened Vice Chancellor, A. Lakshmanaswami Mudaliar; the relationship was reminiscent of that between Ashutosh Mukherjee and C.V. Raman in Calcutta. The determination of the structure of the protein collagen (1954-1955) and his seminal contribution to the field of polypeptide and protein structures (1963) remain major milestones in the history of structural molecular biology and must rank as the finest examples of scientific research in post-independence India. Ramachandran had the remarkable ability to cut through unnecessary details and go straight to the heart of a problem. This quality, coupled with formidable physical insights and mathematical skills, allowed him to make many important contributions in biophysics and crystallography. He was widely honoured for his work in India and abroad. A dispassionate analysis of his life and work reveal that he did not, in large measure, get his due. But his active career was all too brief by modern standards. For the last 20 94

G. N.RAM AC HA NDRAN and

Rajalakshmi (Rajam) Ramachandran after the presentation of a Festschrift published by the Indian Academy of Sciences in 1991. years of his career, Ramachandran was not really visible internationally, reminding us of one of the ironies of modern science; achievement alone is not enough, packaging and marketing play an important role. In India, where administrative positions are often considered a mark of scientific success, Ramachandran was essentially an “outsider” to the establishment. We have yet to learn that idiosyncratic personalities often make the most original contributions to science. Ramachandran did all his work in India, following in the footsteps of his mentor, C.V. Raman. In the 1960s and the 1970s he did travel regularly to the United States, to the University of Chicago where he held a visiting professorship. In Madras, Ramachandran’s work brought an

unprecedented level of recognition to the university. The two international conferences he organised in 1963 and 1968 brought to Madras some of the most famous names in molecular biology and biophysics. Ramachandran returned to Bangalore to set up the molecular biophysics unit at the IISc in 1971. His move from Madras was catalysed by the deteriorating academic atmosphere of the university. Indeed, Ramachandran’s two decades at the University of Madras clearly showed that the highest levels of research could be practised within our university system. His departure signalled an impending change. We have all watched, with varying degrees of helplessness, the steady decay of science at the university level in India over the last few decades. In Bangalore, in the period between 1971 and 1979, Ramachandran fashioned a new department, which has since grown into a major centre of structural biology. Like many extraordinarily gifted

individuals, Ramachandran often had an uneasy relationship with his surroundings. It was not easy for him to tolerate mediocrity. Elevated to the formidable position of head of department at 30, he grew to be isolated from his colleagues, rarely establishing the easy academic relationships that make science a pleasure. But even at the height of his career, Ramachandran most enjoyed scientific discussion; unfortunately, his surroundings could rarely rise to the levels he demanded. His last years were troubled. Ramachandran has left behind a rich scientific legacy. His achievements will serve as a source of inspiration for generations to come. Ramachandran was undoubtedly one of the most outstanding scientists of our country and truly a jewel in the crown of India’s science. H. NARASIMHAIAH: A LIFE IN SCIENCE

BY SP E C I A L A R RA N G E M E NT

BY SP EC IA L A R RA NG EM ENT

HN was not a scientist or an academic administrator in the conventional mould, but he was a tenacious promoter of science education.

H. NA RA SIM HA IAH 95

Of the men I have chosen to remember, H. Narasimhaiah (HN to his legion of admirers) is in many ways the most remarkable. He was not a scientist or an academic administrator in the conventional mould. He was at all times the most tenacious promoter of science education that I have met, totally dedicated to his cause. According to legend, he walked to Bangalore in 1935 to join the National High School in Basavangudi. A year later, Mahatma Gandhi, on a visit to Bangalore, spoke to the young Narasimhaiah—a meeting that was to transform the boy into becoming a lifelong follower of Gandhi’s ideals. He obtained his BSc and MSc degrees from Central College, Bangalore, and joined National College, Basavangudi, in 1946. His career was interrupted by stints in prison at the Bangalore, Mysore and Yerwada jails during the Quit India movement. Later, he was to obtain a PhD in physics from Ohio State University. He served for several years as principal of National College and was later Vice Chancellor of Bangalore University (1972– 1977). During his long career as an educationist, HN remained completely committed to Gandhian ideals and the cause of promoting science and spreading a scientific temper among the people at large. He lived a life of extraordinary simplicity. A bachelor, he spent over half a century in a small room at the National College hostel. Always dressed in white khadi with a “Gandhi cap”, he seemed at times a figure from a chapter of Indian history that appears to be fading fast from public memory. His contributions to the National Education Society and its institutions were undoubtedly immense, but I believe FRONTLINE . JUNE 9, 2017

BY SP EC IA L A R RA NG EM ENT

A T T H E R A M A N R E S E A R CH I N S T ITU TE in Bengaluru during a lecture, (from left) M.G.K. Menon, Satish Dhawan,

A. Jayaraman and S. Ramaseshan. it is his indefatigable championship of the cause of promoting science that really extended his influence well beyond National College. I first met HN in the mid 1970s when I was invited to speak at the Science Forum, probably as a substitute for a truant speaker. Young, brash and undoubtedly arrogant, I encountered an entirely new world at National College. Simplicity and humility seemed to be prized virtues. Ever since, I have gone back repeatedly, never refusing an invitation to speak. I have often wondered at the gulf that separated my own concerns at the IISc from those of HN and his colleagues at National College. I seemed more worried about personal advancement and success; HN and his dedicated followers appeared to be driven by a nobler purpose. The Science Forum, for over three decades, has also conducted an “Annual Science Festival”, where lectures and film shows on science are held every day in the month of July. Year after year, some of Bangalore’s most senior and influential scientists spoke at this festival, drawn undoubtedly by HN’s personal charm and charisma. It was almost impossible to say no to him, although it was sometimes possible to negoFRONTLINE . JUNE 9, 2017

tiate on the date of a lecture. The last time I saw him was in July 2004 at the Science Festival. He had telephoned me in early June and announced simply: “July is coming.” He noted that it was the 50th anniversary of G.N. Ramachandran’s famous paper on the structure of collagen and suggested that I talk about Ramachandran and his contributions. I readily agreed since the topic was close to my heart. He was present, as always, at the Science Forum, frail and weakening but still determined to introduce the speaker. Before the talk, he offered me the Forum’s famed coffee, lukewarm and in a small cup which had seen better days, in surroundings simple enough to shame even the most insensitive. It was always a privilege to meet him. Talking to him was both humbling and ennobling. But, on this occasion, it was clear that he was fading. My one regret is my crippling inability to converse in Kannada, a language HN loved and used so effectively. Separated by barriers of age, lifestyle and language, I could only admire him from a distance, coming away enriched and inspired by every visit to the Science Forum. Narasimhaiah died almost exactly 57 years after his idol, Mahatma Gandhi. Throughout his life, HN 96

pursued the apparently contradictory visions of a Gandhian ideal and the task of promoting the public understanding of modern science. His formidable discipline, commitment and asceticism set him apart from the rest of us. Like Gandhi, he was an easy man to admire but difficult to follow. In Dhawan, Ramaseshan, Ramachandran, and Narasimhaiah, Bangalore had a formidable line-up of men who dominated the scientific landscape of the city for a long period. They were contemporaries in every sense but were uniquely distinct in their interests and styles. They were all completely dedicated to the cause of science in India, their commitment undoubtedly influenced by the fact that the prime years of their youth coincided with the heady period after Independence, which was dominated by the compelling vision of a resurgent India. They played full and magnificent innings, which bear retelling in the years to come. At a time when science in India needs fresh inspiration, we can do no better than remember them.� P. Balaram is professor emeritus and a former Director of the Indian Institute of Science, Bengaluru. He was the editor of the Indian scientific research journal Current Science from 1995 to 2013.

OB ITU AR Y

A class apart

S HAN KE R CH AK R AV A RT Y

Leila Seth (1930-2017), who had many firsts to her credit as a woman, will be remembered as a sensitive person who defied stereotypes all her life. BY Z I Y A U S S A L A M

J U S T IC E L E I L A S E T H , a 2009 picture.

LEILA SETH made it to the upper echelons of the judiciary at a time when breaking through the glass ceiling was virtually impossible in any sphere. An anecdote from the

early days of her career depicts how she defied stereotypes all her life. When she approached a senior lawyer to work with him, he advised her to go and get married. On being told 97

that she was already married, he is said to have advised her to start a family. “I have a child too,” Leila Seth replied softly. It failed to dissuade the senior lawyer from giving further FRONTLINE .

JUNE 9, 2017

She was one of the persons in the committee to review the anti-rape law. guidance. “It is not fair on the child not to have siblings....,” he went on. Leila Seth, then the mother of Shantum and Aradhana and Vikram Seth (the celebrated author), calmly replied: “I have three children.” With her uncanny knack for repartee, she had won a small battle without raising a din. It was to be her signature for the rest of her career, which saw her become the first woman judge of the Delhi High Court and the first woman Chief Justice of a High Court (Himachal Pradesh). Back in the 1980s, when some of her male colleagues at the Delhi High Court sought to introduce her by saying “Meet our lady judge”, she took exception. No judge is ever introduced with “Meet our male or gentleman judge”, she retorted. But she was not the domineering, braburning feminist; she was rooted in her moorings. Her autobiography, On Balance, is brutally honest about the good, the bad, the triumphs and the tumbles in her life. “Sometimes it’s quite hard to be honest. I wanted to be honest and I felt that unless I am, there is no point in writing it,” she said. She showed great sensitivity when she gave the manuscript of the autobiography to all her children before sending it to the publishers. She wanted no angry souls at home, the home she set up in Noida with much love and thought after a lifetime spent shifting residences in Lutyens’ Delhi. Through her book, her children discovered the Nana (maternal grandfather) they had never met, and the world, which hitherto knew her for her work in the legal domain, discovered a fine author. On Balance was on the bestseller list when it was first released in 2003. FRONTLINE . JUNE 9, 2017

She held her own whenever the odds got steep. Single-minded and focussed, she did not deign to “seek help” from anyone. Some five years ago, when she was well over 80, this writer spotted her waiting in the porch of a five-star hotel in Chennai where she had arrived for The Hindu Literature Festival, and asked her if she always travelled without an aide. She replied: “No. My husband is a bit old now. He cannot undertake all the exertion.” Two days later, she flew down to Kolkata for another lit fest. “My husband used to travel with me until recently. He is at home. But I had a commitment here, then have to honour another in Kolkata. Some organisers in Bangalore wanted me to come too. I said, not now, maybe in future. After the Kolkata meet, I want to be home. Premo [what she called her husband endearingly] will be waiting.” It reminded one of a decision she took in her career when she turned down the offer of being a judge at the Patna High Court because the city held no professional opportunities for her husband, then working with Bata. The decision to say no was not difficult for Leila Seth. After all, very early in her marriage, she refused to study divorce as a subject in England. “I promptly decided to drop the intention of studying divorce as a subject out of fear of its occurrence at home,” she quipped to a journalist. She went on to top the London Bar examination, becoming the first woman to do so. But Leila Seth would scoff at such gender stereotypes. She was a member of the 15th Law Commission of India and the Chair of the Commonwealth Human Rights Initiative for a long time. In the aftermath of the Nirbhaya incident, in which a 23year-old girl died after she was gangraped on a moving bus in Delhi in 2012, Leila Seth was one of the three persons the United Progressive Alliance government chose to review the anti-rape law and give it more teeth. Justice J.S. Verma and Senior Advocate Gopal Subramanium were the others in the committee, which did its job in a month. 98

As a member of the Law Commission, Leila Seth was responsible for the amendments to the Hindu Succession Act that gave equal rights to girls in a joint family’s property. Nevertheless, she was not so acquiescing of legal eagles, and when she felt strongly against a judgment she was not afraid of criticising it. For instance, when the Supreme Court refused to strike down Section 377 that makes consensual sex between two adult homosexuals an offence, she wrote in The New York Times: “My name is Leila Seth. I am eighty-three years old. I have been in a long and happy marriage of more than sixty years with my husband Premo, and am the mother of three children. The eldest, Vikram, is a writer. The second, Shantum, is a Buddhist teacher. The third, Aradhana, is an artist and filmmaker. But our eldest, Vikram, is now a criminal, an unapprehended felon….” Many years earlier, she needed time to understand the sexual predilection of her son. In her own quiet, understated ways she became a beacon of hope for the LGBT community. Many parents sought advice from her on coming to terms with the situation relating to their children. Yet, she was not one to take down the level of a debate by resorting to din. She said it as it was meant to be said—her son became a criminal in the eyes of the law by doing what he did in the privacy of his bedroom. What she did not say, though, was that the state had to stay out of people’s bedrooms. Indeed, in discussions and interviews, what she said was crucial and what she left unsaid was vital. Leila Seth was also a rare judge who kept herself abreast of the happenings in the world of children. For instance, she studied the effects of the popular television serial Shaktiman on youngsters. With We, the Children of India, she made the Preamble of the Constitution comprehensible to very young readers too. Leila Seth left her mark on everything she did, including in her well-thought-out decision to donate her organs after her death. �

ES SAY

THE ROOTS OF 2017 tains a letter by Kashmir’s ruler, Hari Singh, to President Rajendra Prasad from Pune in August 1952. He wrote: “Lord Mountbatten then urged me and my Prime Minister, Kak, not to make any declaration of Independence but to find out, in one way or another, the will of the people of Kashmir as soon as possible and to announce our intention by 14 August to send representatives accordingly to one Constituent Assembly or the other. Lord Mountbatten further told us that the newly created States Department was prepared to give an assurance that if Kashmir went to Pakistan, it would not be regarded as an unfriendly act by the Government of India. Lord Mountbatten stressed the dangerous situation in which Kashmir would find itself if it lacked the support of one of the two Dominions by the date of the transfer of power. The impression which I gathered from my talks with Lord Mountbatten who explained the situation with plans and maps was that, in his opinion, it was advisable for me to accede to Pakistan” (pages 297-298; emphasis added, throughout). Hari Singh proceeded to quote Prime Minister Jawaharlal Nehru’s letter to him dated July 5, 1952 in, which he said that he “felt that the people would prefer accession to India but the matter was delicate and not beyond dispute and therefore, the Government of India did not press for the accession of Jammu and Kashmir State [in

Lord Mountbatten did his best to work out a realistic solution regarding Kashmir in the months preceding and following the 1947 Partition, but first M.A. Jinnah and then Jawaharlal Nehru scuttled all moves to find a sane course of action. B Y A . G . N O O R A N I

“I

TH E H IN D U A RC H I V E S

MUST tell you honestly. I wanted Kashmir to join Pakistan,” Lord Mountbatten, free India’s first Governor General, confided to Larry Collins and Dominique Lapierre, authors of the bestseller Freedom At Midnight, when they interviewed him for the book. A record of the interviews with Mountbatten and some minutes of conferences were later published in 1984 in their book Mountbatten and Independent India (August 16, 1947–June 18, 1948, Vikas). The remark appears on page 39. I found it hard to believe that, but a recent book confirms it. A book published in 2011 (Maharaja Hari Singh, by Harbans Singh, Brahaspati Publications) con-

N E W D E L H I, J U N E 7 , 1 9 4 7: The historic meeting at which Viceroy Lord Mountbatten disclosed Britain’s “partition” plan

for India. With him are Jawaharlal Nehru, Lord Ismay, Adviser to the Viceroy, and M.A. Jinnah. 99

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1947] but suggested that the matter should be considered at a later stage when the people’s wishes could be ascertained in some form or the other and the suggestion was that some kind of a Constituent Assembly might be set up in the State to decide the question of accession as well as the questions” (page 316). Alan Campbell-Johnson, Mountbatten’s Press Attache, recorded: “He [Mountbatten] said that while urging the Maharaja to make up his mind about accession before the transfer of power, he had all along, from his visit in June onwards, exerted his whole influence to prevent him from acceding to one Dominion or the other without first taking steps to ascertain the will of his people by referendum, plebiscite, election, or even, if these methods were impracticable, by representative public meetings. When during the past forty-eight hours it became clear that the government were determined, against the military advice both of their own Chiefs of Staff and of himself, to send in troops in response to a request from Kashmir for aid, he returned to the charge about accession” (Mission with Mountbatten, page 224). It was Mountbatten who insisted on stipulating a reference to the people as a condition of Kashmir’s accession to India. Mountbatten knew the mood in Kashmir from the reports of the British Resident in the State and from officers in the British High Commission who were in the know. They all reported that the people were for accession to Pakistan (Partition Observed, Volumes 1 and 2, edited by Lionel Carter, Manohar, 2011). In the case of Kashmir, the implication of “the people’s wishes was obvious”. On October 25, 1947, Mountbatten told the Defence Committee of the Cabinet: “The question was whether temporary accession would help the people in general to side with India or whether it would only act as an irritant. There was bound to be propaganda to the effect that the accession was not temporary and tempers might be inflamed.” N. Gopalaswamy Ayyangar agreed with him—the people were not for accession to India. Mountbatten elaborated to the two authors, Collins and Lapierre, on his fateful meeting with Hari Singh in 1947. This is what he told Hari Singh: “‘I’ve come to tell you that if you decide to accede to Pakistan, they’ll think it a natural thing to do, because the majority of your populations are Muslims. It’ll not only cause no ill-feeling, but they’ll give you all the support and help they can.’ ‘I don’t want to accede to Pakistan on any account’, he said. ‘Well’, I said, ‘it’s up to you. I think you might be wise to accede, because the majority of your people are Muslims.’ Yes, he said, ‘but don’t forget that with Sheikh Abdullah, who’s madly pro-Nehru, most of my people would really wish to join India.’ “‘All right, then, in that case—join India! If you do, I will personally see that one or two divisions of infantry are sent up which will absolutely preserve the integrity of your boundaries. ‘I don’t want to join India either, because, if so, I would feel that perhaps that’s not what the people wanted. I want to be independent.’” FRONTLINE . JUNE 9, 2017

They agreed on a formula. “Get Kak, your Prime Minister, and we’ll talk about it. I’ll get my Resident and I’ve got my Private Secretary with me here [it was George Abell, I think] and you’ll have Kak, and you and me. Quite a small party, and we’ll then just formalise the agreement we’ve come to, and keep some notes. Then you’ll know where you are, and you’ll at least have the benefit of my advice, which you want. Then, if you follow it, you’ve got the backing of that advice and I’ll do what I can to help. If you disregard my advice, it’ll also be recorded. It’ll be up to you. “Thank you, he said, very good idea. And of course, on the last morning, when it was all set, we had everything decided, how to do it and it was quite simple. It was going to be: His Excellency and His Highness agree that Kashmir and Jammu would accede to one future Dominion or the other before the transfer of power on the 15th of August. It was noted that Kashmir acceding to Pakistan appeared the wisest course. If on the other hand, they decided to accede to India, the Indians would send up one or two infantry divisions to prevent interference. Pakistan might not like that decision, but they wouldn’t be able to interfere. In either case, there’d be no bloodshed. If H.H. didn’t wish to take the personal responsibility of making the decision, he could consult his people, either by a plebiscite or, if time did not permit, by a show of hands. … That was what I wanted to record, and then try and get him to express an opinion. But this last meeting never took place. An ADC [aide-de-camp] came and said H.H. was indisposed. It was, of course, absolute baloney.” Incidentally, the map annexed to the book Alan Campbell-Johnson’s Mission With Mountbatten, published in the early 1950s, shows Kashmir’s eastern boundary as “undefined”. Mountbatten urged Pakistan’s Prime Minister Liaquat Ali Khan to withdraw the invading tribesmen: “Can you imagine the Pakistanis being so stupid as not to withdraw the tribesmen? I told Liaquat, ‘All you’ve got to do is pull out. Have the plebiscite, and you’ll win. You’ll get in again. By refusing to pull out the tribesmen, you are playing into Nehru’s hands. He’s already got himself into trouble with his followers for risking a plebiscite on my account.’” (Recorded in the book by Collins and Lapierre.) THE FALLOUT OF RADCLIFFE’S AWARD

Mounbatten was asked by the two authors: “If the Radcliffe awards had not given Gurdaspur and two tahsils to India, would Kashmir have been justified in acceding to India?” He replied: “I think not, I always said in all the speeches I made about accession that there were certain geographical compulsions. I mean the idea that Junagadh could join with Pakistan, across all the other Kathiawar States, was just stupid. The idea that Hyderabad could join with Pakistan was equally stupid. Now there is just one question about Kashmir which didn’t arise and it’s a hypothetical one. In the case of Kashmir where the juxtaposition was so close that we could fly in very easily, this might have been an argument that was used. I might

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have been more hesitant about saying it but should probably not have mentioned it to this man at all. My own opinion is that if this had happened, we should have accepted, of course. It’s a terrible thing to say it, but it might have been a solution. I mean [Cyril John] Radcliffe let us in for an awful lot of trouble by making it possible for them to accede to India. If he hadn’t made that award, the Maharaja would really have had no option but to join Pakistan.” JINNAH FOILED MOUNTBATTEN’S EFFORTS

Mountbatten had a clear vision—Junagadh and Hyderabad to India and Kashmir to Pakistan. He pursued it consistently: he sparred with Mohammed Ali Jinnah on Junagadh, exerted every nerve to secure Hyderabad’s accession to India, fought as India’s Governor General to beat back Pakistan’s raiders but never for a moment wavered on his realistic understanding of the views of the people of Kashmir. He pursued it even after the State’s accession to India and after the raiders were driven back. It was Jinnah, who was Pakistan’s Governor General, who foiled Mountbatten’s efforts. Mountbatten presented to Jinnah written proposals for a settlement on November 1, 1947, at Government House, Lahore. Here is the full text of this neglected document. “Suggested proposals to Pakistan Government to form the basis of discussion: 1. It is of paramount importance, not only to the Government of India, Pakistan and Kashmir, but also to the cause of world peace, that the fighting in Kashmir should cease at the earliest possible moment. 2. The best, if not the only, hope of achieving this object is a very early meeting between accredited representatives of the two countries. 3. The Government of India, for their part, have no desire to maintain troops in Kashmir once the Valley is safe from attack and law and order have been restored.

AU GU ST 15, 194 7 : Jawaharlal Nehru being sworn in as

independent India’s first Prime Minister by Governor General Mountbatten. They are therefore prepared to give an undertaking to withdraw their troops immediately [after] the raiders have left the country and returned to their homes. 4. It is the sincere desire of the Government of India that a plebiscite should be held in Kashmir at the earliest possible date and in the fairest possible way. They suggest that UNO [United Nations Organisation] might be asked to provide supervisors for this plebiscite, and they are prepared to agree that a joint India-Pakistan force should hold the ring while the plebiscite is being held. 5. The Government of India suggests that both governments should agree on the form of the public announcement to be made in regard to the procedure for accession of those States in which this matter is in dispute. A draft is attached as a basis of discussion. 6. They suggest that the above proposals should be the subject of a round-table discussion at the earliest possible date.” (Sardar Patel’s Correspondence, page 81). DRAFT OF SUGGESTED AGREEMENT

The draft referred to in paragraph 5 read thus: “The Governments of India and Pakistan agree that, where the ruler of a State does not belong to the community to which the majority of his subjects belong, and where the State has not acceded to that Dominion whose majority community is the same as the State’s, the question of whether the State should finally accede to one or the other of the Dominions should in all cases be decided by an impartial reference to the will of the people” (Sardar Patel’s Correspondence, Vol.1, page 73). The proposal that “a joint India-Pakistan force should hold the ring while the plebiscite is being held” was never repeated. Mountbatten and Jinnah talked for three and a half

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hours. Jinnah agreed that in view of the communal composition of Junagadh and Kashmir “the States should go according to their majority population”. A plebiscite was “redundant”. Mountbatten’s note on their talks recorded: “Mr Jinnah then went on to say that he could not accept a formula if it was so drafted as to include Hyderabad, since he pointed out that Hyderabad did not wish to accede to either Dominion and he could not be a party to coercing them to accession….” The Prime Ministers of India and Pakistan exchanged telegrams on November 7 and 8, recording the proposals which their respective Governors General had made in Lahore. Nehru repeated the basic formula which Mountbatten had proposed (White Paper on Jammu & Kashmir 1948, page 62). MISSED OPPORTUNITY

India’s proposal was fully supported by Deputy Prime Minister Vallabhbhai Patel, who asked Liaquat Ali Khan at a meeting in New Delhi: “Why do you compare Junagadh with Kashmir? Talk of Hyderabad and Kashmir, and we could reach an agreement” (Chaudhari Muhammad Ali, The Emergence of Pakistan, 1967, page 299; The author was Secretary General of the Pakistan Cabinet). Patel revealed the proposal publicly in a speech at Junagadh on November 13, 1947: “Pakistan attempted to set off Kashmir against Junagadh. When we raised the question of settlement of this problem in a democratic way, Pakistan at once told us they could consider this matter if we applied that policy to Kashmir State. Our reply was that we would agree to Kashmir if they agree to Hyderabad.” A fine opportunity for a grand settlement was missed. Both Mountbatten and his Chief of Staff Lord Ismay pressed Jinnah to return their visit and come to Delhi as Mountbatten’s guest, at least for a day. The Quaid-eAzam would have returned to the city of his achievements as a head of state. The morale of Muslims in the city and beyond would have lifted. An overall settlement would have spared the subcontinent the bitterness which the endless Kashmir dispute has spread for decades to this day. Hyderabad would have been spared the invasion and the massacre that followed. In the deal, safeguards for the Muslim minority and the composite culture of Hyderabad could have been stipulated. Kashmiris would have lived in peace and with dignity. A democratic solution, rather than one based on force and duress, would have been accomplished. In a plebiscite Jammu and Kashmir would have voted for accession to Pakistan. No one then talked of a regional plebiscite. Jinnah’s oft-stated ideal of the two states living as friends would have been realised. The minorities’ fate would have been different. History would have taken a far saner course in a land that has known nothing but strife and bloodshed. That was not to be. Jinnah willed it otherwise. ROLE OF V.P. MENON

In all this, Mountbatten had the support of Rao Bahadur V.P. Menon, Secretary in the Ministry of States and FRONTLINE . JUNE 9, 2017

author of the definitive Transfer of Power in India and The Integration of Indian States. He was the right hand of Vallabhbhai Patel, the Deputy Prime Minister in charge of the States, and also a confidant of Mountbatten. He was able to prevent India from attacking Pakistan in September 1947 by tipping off Mountbatten, which Pakistanis do not acknowledge to this day. H.V. Hodson records in his book The Great Divide: Britain-India-Pakistan: “I [Mountbatten] was aware that, in the wider aspect, my own physical presence as Governor-General of India was the best insurance against an actual outbreak of war with Pakistan. To have compromised my position too far over the preliminary threat of war would have undermined my final position. I was therefore anxious to make it clear to my Government that I was not necessarily opposed to their taking all necessary precautions, military and otherwise, to safeguard their own legitimate interests. “A Cabinet meeting to consider the Junagadh situation was summoned for 5 p.m. on 17 September. I was informed that the members of the Cabinet had, prior to this meeting, decided among themselves that military action was the only answer.” Mountbatten had it reversed. A REALISTIC DIALOGUE

V.P. Menon shared Mountbatten’s vision—Junagadh and Hyderabad to India and Kashmir to Pakistan. At a meeting of the Joint Defence Council in New Delhi on November 8, 1947, the plebiscite question was discussed by V.P. Menon for India and Chaudhri Muhammad Ali for Pakistan, with Ismay holding a watching brief for Mountbatten. This was one of the most realistic IndiaPakistan negotiations ever conducted on Kashmir. During these talks, Chaudhri Muhammad Ali at one point asked whether a plebiscite was really called for at all as the entire State of Jammu & Kashmir (the plebiscite under consideration being for the whole State as a unit) must go to Pakistan in any case by virtue of its overwhelming Muslim majority. V.P. Menon replied that “he entirely agreed that Kashmir would go to Pakistan” but “emphasised that in view of what had passed, a formal plebiscite was essential”. The draft agreement contained a paragraph to the effect that neither government would accept the accession of a State whose ruler was of a different religion to the majority of his subjects without resorting to a plebiscite” (Alastair Lamb, Birth of a Tragedy, pages 149-150). JINNAH SHOT DOWN ACCORD

Jinnah shot down the draft accord, as Hasan Zaheer records in his book The Times and Trial of The Rawalpindi Conspiracy Case: “The Quaid-i-Azam also seems to have taken strong exception to the proposal as is evident from a cryptic entry dated 30 November made by him in his Notebook which reads: ‘Kashmir—no commitment—should be made—without my approval of terms of settlement. Mr Liaquat has agreed and promised to abide by this understanding.’ The date of the entry

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THE HINDU ARCHIVES

should have joined the Pakistan Union and the Government of India never desired the accession of Kashmir to the Union of India. But it was impossible for the Government of India to sit silently when Kashmir and Jammu were being raided and ruined by marauders and freebooters. In these circumstances, when the Maharaja applied for accession, Government of India readily agreed to the request, but as soon as peace was restored, they would leave Kashmir and ask the inhabitants to decide for themselves their future.” The collapse of the V.P. Menon-Chaudhari MuhammAd Ali accord did not inhibit Mountbatten from exerting himself to avoid a military solution. Hodson recalls in The Great Divide: “On the eve of Christmas the military news from the Kashmiri front was grave. The Governor General therefore spent Christmas Day composing a long letter to his Prime Minister. It ran to some 2,000 words.”

A U G U S T 15, 1 9 4 7: Mountbatten’s first address to

the Constituent Assembly after assuming office as Governor General.

MOUNTBATTEN’S LETTER TO NEHRU

is significant and can only be related to the 27 November Delhi negotiations. The Quaid’s annoyance might have been at the plan worked out in this session or the package deal of Hyderabad and Kashmir that was offered by Patel or both. The next entry on the same page of the Notebook, dated 16 December, lays down the absolute position of the Government of Pakistan; it reads ‘Nehru’s proposal fundamentally different. There is no common basis or ground. There can be no solution of satisfactory nature unless the India D. [Dominion] agrees to withdraw their troops and agree to replace the present administration by an Independent and impartial Regime and administration. With International Police and military forces to restore peace and maintain Law and Order. It is only then that the question of Plebiscite will have to be considered.’ “The Cabinet had decided on 30 December 1947 that no question of policy or principle would be decided except at a Cabinet meeting presided over by the Quaid-iAzam and that in the event of any difference of opinion between him and the Cabinet, the decision of the Quaid would be final and binding. Nehru, however, backed out from the 27 November proposals.” He thought India could defeat Pakistan militarily. V.P. Menon reaffirmed his vision during a discussion with a delegation from Hyderabad in New Delhi, on November 3, 1947. The following is taken from Records of Discussions on Hyderabad, Andhra Pradesh State Archives: “Mr Menon opened the discussion by making a reference to the Kashmir problem. He stated that the settled policy of the Government of India was that there should not be any further disintegration of the country after the partition and the States falling within the Dominion of India should go with that Dominion. Mr Menon further stated that the Government of India scrupulously followed this policy, but the Pakistan Government accepted the accession of Junagadh and this started the situation. As a matter of fact he believed that Kashmir

Hodson quotes three paragraphs from that letter. Here are more, hitherto unpublished, thanks to the archives. Mountbatten was against a military solution, which the offensive aimed at. He wrote: “This is an extract from the minutes of a Defence Committee meeting held on 4th November. ‘The Governor General drew attention to the risk which was inherent in Indian troops entering a predominantly Muslim area for liberation purposes. Such an area was likely to include both hostile persons and friends, including members of the National Conference. It was impossible to distinguish between the two and unfortunate incidents were likely to occur. In his opinion the sooner a solution was found to stop the fighting the better it would be. He remained with the view that representatives of the Government of India and Pakistan should get together at the earliest possible moment to discuss ways and means of stopping the fighting.’ … “During my absence in London this object changed. It then evidently became the purpose of the Government of India to attempt to impose their military will on the Poonch and Mirpur areas. No one can say for certain what proportion of the hostile element in the Poonch areas consists of persons who have come in from outside the State, and what proportion represents the local inhabitants. But I think that none will deny that the latter are in a large majority. I agree with you that it would be morally unjustifiable to try by force or arms to inflict our will on a predominantly Muslim population and I know that you feel that the plebiscite will ultimately settle the issue. But in the meanwhile how can we escape the charge of using military force against people who do not want to link their fortune with India. … “When I came back from my visit to Jaipur and Bombay last week I was much concerned to hear mentioned for I think the first time the possibility of the Government of India deciding to send forces into Pakistan itself so as to take possession of the ‘bases’ or ‘nerve centres’ from which the raiders are operating. I

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TH E H IN DU A RC HIVE S

L O N D O N , J U L Y 1 9 5 6 : Prime Minister Nehru with Lord

Mountbatten. have since heard this possibility mentioned on more than one occasion by yourself and other ministers. Each time I have heard you say it I have been more and more appalled. This reaction of mine is not of course inspired by military considerations but by the fact that it would mean war between India and Pakistan. Hence, his suggestion of reference to the U.N. in order to stop the fighting.” Mountbatten concluded sternly: “If you do not agree—and it is you not I who must decide the policy of the Government of India—with what I have written and the steps which I have suggested, I must put it to you that you owe it to me as your Governor General to tell me and to inform me what your long-term policy in regard to the future of this country and Kashmir is. You will forgive me I know for writing you so long a letter over Christmas. You may take it as an indication of my unhappiness at the way events are going.” HOW NEHRU FOILED AGREEMENT

The Kashmir dispute was referred to the U.N.’s Security Council on December 30, 1947. Its U.N. Commission for India and Pakistan came over only in mid 1948 and proved inept. Its successor was the brilliant Judge of the High Court of Australia, Sir Owen Dixon. He came within inches of success in 1950 but his efforts were foiled by Nehru. Patel was also opposed to a plebiscite. Sir Girija Shankar Bajpai, Secretary General of the Ministry of External Affairs, shared the general feeling that “if a State-wide plebiscite were held India would not obtain a majority”. Dixon suggested alternatives—from a regional plebiscite to one confined to the Valley after partitioning the rest. FRONTLINE . JUNE 9, 2017

By 1950, Vallabhbhai Patel was exasperated at the impasse. What is little known is that he was now ready for a compromise in order to get over the Kashmir dispute. He told Dixon on July 30, 1950: “Many of us think that it is rather disgraceful and does no credit to India that this matter should have dragged on … so long.” William Alan Reid, who has ably documented the Dixon mission, noted that “the Cabinet wanted a genuine settlement”—Patel was among those who did. Nehru opposed them all. Dixon was bitter. He felt that Nehru was “downright lying”. Dixon was scathing in his letters to his wife, Lady Dixon. He met Patel as well as C.R. Rajagopalachari. What U.S. Ambassador Lay Henderson reported to Secretary of State Dean Acheson on July 29, 1950, reveals a lot: “I learned yesterday through high and reliable Indian governmental sources following. … My informant who had been sent to me by one of most powerful political figures in India added that: “(a) Indian Cabinet was extremely anxious for settlement of Kashmir in near future on basis which will leave as little bitterness as possible. “(b) It was absolutely out of question, however, for India to permit Jammu with its heavy Hindu population and its geographical position to go to Pakistan. “(c) Cabinet believed only solution was that of partition-plebiscite as advanced by Dixon and believed that if Pakistan accepts this solution, GOI should be extremely liberal in making concessions—re-demilitarisation and U.N. control in Vale during plebiscite even though it was confident that plebiscite under such conditions would yield Vale to Pakistan. In other words, Cabinet prepared now to abandon idea of Vale going to India provided Jammu and Ladakh would be retained and decision re Vale would be based on plebiscite” (Foreign Relations of the United States, 1950, Volume V, page 1417). NEHRU WON, PATEL LOST

That “powerful” figure was Vallabhbhai Patel. His confidant and messenger was V.P. Menon. Patel was prepared to forego the Valley if India could get Jammu and Ladakh. Patel “Lost”. Nehru “won”. But at a terrible price which the country is paying today. A settlement in 1947 or in 1950 would have spared India and Pakistan a lot, especially the people of Kashmir. Events since have rendered plebiscite irrelevant but not the fact that the people have always rejected Indian rule from 1947 to 2017. They can and must be adjusted now, creatively, realistically; through an accord with Pakistan that covers West Kashmir also, including Gilgit. In retirement V.P. Menon bitterly admitted to H.V. Hodson, his predecessor as Reforms Commissioner, in 1964: “As for plebiscite we were absolutely, absolutely dishonest.” It is a terrible price which South Asia has paid for that dishonesty in the last nearly 70 years. Even if the revolt is crushed militarily, Kashmiris will continue to reject Indian rule. Only an India-Pakistan accord which reckons with their views as also the realities of 2017 can help. �

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Demonising Akbar The move to rename Akbar ka Quila in Ajmer is another step towards advancing the BJP’s agenda to paint the Mughal emperor in negative hues and aggrandise Rajput history. BY Z I Y A U S S A L A M THE era of Rajput aggrandisement and parallel diminution of the Mughals is upon us. Akbar, arguably the greatest of emperors who ruled over India, is the “New Age” Aurangzeb. For long perceived to be the originator of the modern Indian state’s concept of secularism with his policy of Sulh-i-kul (absolute peace), Akbar is now sought to be viewed afresh by the Bharatiya Janata Party (BJP) governments in Rajasthan and Uttar Pradesh. Union Home Minister Rajnath Singh pitched in to confer retrospective greatness on the Rajput ruler of Mewar, Rana Pratap, who was defeated by Akbar in the Battle of Haldighati in 1576. Lending his voice in Pali, Rajasthan, after unveiling a statue to mark the 477th birth anniversary of Rana Pratap, Rajnath Singh asked historians to look again at the contribution of Rana Pratap and wondered if the Rajput king should not be conferred with the title “great”. Incidentally, the term Maharana affixed to Rana Pratap means the Great Rana. Rana Pratap enjoyed the title even after he was defeated by the Mughals. Rajnath Singh’s attempt to refer to Rana Pratap as “a true statesman”, whose deeds “inspired the revolutionaries of 1857”, is part of a persistent effort to undermine the greatness of Akbar. Although Rajnath Singh’s words were measured, he did not dispute the honorific Akbar the Great. What he left unsaid was declared more forcefully by Yogi Adityanath, the Uttar Pradesh Chief Minister, who

seems to have found a new interest in things past. At a function to celebrate Rana Pratap’s birth anniversary in Uttar Pradesh, Yogi Adityanath said: “Maharana Pratap, Guru Gobind Singh and Chhatrapati Shivaji are our role models, and we must follow the path shown by them. Youngsters must learn a lesson from the self-respect and strength of character displayed by Maharana Pratap. Akbar, Aurangzeb and Babur were invaders. The sooner we accept the truth, the sooner all the problems of our country will vanish.” Akbar an invader? He was born in Amarkot; Aurangzaeb was born in Dahod, Gujarat. Babur, well, was an invader, but he came here on the invitation of Daulat Khan Lodi, the governor of Punjab. So, is Adityanath a bad student of history or is he just indulging in wilful vilification? Probably both. This certainly 10 5

takes forward the BJP’s agenda to paint Akbar in negative hues so as to augment the prowess and accomplishment of the Rajputs, Akbar’s contemporary princes of Rajasthan. Yogi Adityanath’s attempt to put Mughal kings on a par with invaders such as Mahmud Ghazni is similar to a proposal made in May 2016 to rename Akbar Road in New Delhi Maharana Pratap Road. What was said was obvious: give the Rajputs a place of honour. What was left unsaid was critical and objectionable: the greatest of the Mughals had no business having a road named after him in Delhi, which was once an important component of his empire. Incidentally, this proposal came close on the heels of renaming Aurangzeb Road in New Delhi after the late President Dr A.P.J. Abdul Kalam. Many read in the renaming of Aurangzeb Road the reiteration of the “good Muslim versus bad Muslim” debate. There are no such nuances this time as the BJP leadership appears to be keen to belittle the contribution of Akbar in nation building and project him as the newage Aurangzeb. It all stems from the idea of a Hindu Rashtra, a concept intolerant of everything non-Hindu. While tales of bigotry are yet to emerge around the man who famously married Rajput princesses and did not insist on their conversion to Islam, Akbar is certainly seen as a man who came second only to the Rajputs, and whose area of influence did not include modern-day Rajasthan. FRONTLINE . JUNE 9, 2017

Brick by brick, Akbar’s contribution is sought to be underplayed. The latest evidence of this emerges from the controversy surrounding the 16th century Akbar ka Quila in Ajmer, Rajasthan. The Mughal emperor’s name has been struck off from the fort on the verbal orders of the Subdivisional Magistrate. Contrary to the claims of the local BJP Member of the Legislative Assembly, Vasudev Devnani, that the fort was just called Ajmer Fort, the official gazette notifies it as Akbar ka Quila. Just as historians, whatever their academic or political leanings, have done down the ages. The move to rename Akbar ka Quila has left historians unimpressed. Syed Ali Nadeem Rezavi, who specialises in medieval Indian history, said: “Actually, we are living in a time which can be defined as post-history. It does not matter what the past tells us. Whatever happened in the past is now unimportant. What matters in these times of New India is what we perceive or feel, what and how it happened or should have happened, truth be damned. It is our perception which is important. This is the age of mythology. Even our Prime Minister claims that the Vedic Age was the age of supersonic jets.” He scoffs at the proposal to call Rana Pratap Maharana Pratap: “I won't be surprised if one of the ‘newage’ historians comes out to claim that Maharana Pratap, the Great, was a world conqueror and mlechha Akbar was his feudatory.” WELL-DESIGNED PLOY

The historian and researcher Abdul Azim Akhtar strips bare the factors behind the attempts to undermine Akbar. “The reason to attack Akbar with fabricated and distorted views from the lawmakers is a well-designed ploy to confuse the common man, as Akbar enjoys a good reputation among all Indians even centuries after he died. That is why television serials such as AkbarJodha enjoy better TRP ratings than an Indian Premier League match. Some people have a problem with Akbar because he was a great warrior, a great builder and a great huFRONTLINE . JUNE 9, 2017

manist. He does not fit in with the Muslim ruler stereotype. They hide the fact that Hakim Khan Sur was the commander of Maharana Pratap. They suppress the truth that it was not only Hemu who was defeated, but even the descendants of Sher Shah Suri were vanquished by Akbar. They do not want the world to know that the Afghans and Mughals were arch rivals until both were finished in the 19th century.” The attempt to underplay the work of Akbar goes beyond perception and cannot really be changed with a television serial. After all, a brick-and-mortar structure in Ajmer has just seen his name obliterated from its entrance. Rezavi argued: “Granted that the city of Ajmer and its fort predate the Mughals. Epigraphic evidence and sources, including bardic literature [as cited by the well-known historian Dashrath Sharma] show that they were probably founded by the Chahamanas [Chauhans] around the 11th century. However, the buildings within the present fort date back to Akbar’s period. If we believe Abul Fazl, the structures within the fort were constructed in 1570. It remained an important fort under Jehangir, who stayed there for a long period as Prince Salim.” Akhtar said: “Akbar laid the foundation stone of Amer Fort in Jaipur. Kayasthas [a Hindu caste] managed the accounts of the Mughals. Equal opportunity was ensured and an effort was made to please Hindus by inducting them in the army in large numbers and cementing matrimonial alliances.” Incidentally, Ebba Koch in her monumental work on Mughal architecture has painstakingly shown that the plan used in the Akbari structure in Ajmer is the same which under the Safavids was called the Hashtbihisht plan. This non-partite plan was used in Humayun’s Tomb and later in the Taj Mahal. Architectural features that are typical to Akbar’s era are also encountered there. Is not this new nomenclature of Akbar ka Quila part of “othering” Muslims to underplay their contribution to the nation’s history? First, 10 6

the alleged bigotry of Aurangzeb was highlighted and his grants to Hindu temples underplayed. Now, Akbar is treated the same way. Rezavi agreed: “Yes, these days serious attempts are being made at ‘othering’ Muslims, their culture and their history. Not only that, an attempt is on to create a new ‘Hindu’ who is straitjacketed into an image which actually is an antithesis to the known Hindu identity. He is a belligerent, intolerant and touch-me-not buffoon who is very different from an expansive, allencompassing and compassionate all-inclusive follower of a religion which was hard to define.” To freedom fighters, Akbar was a symbol of inclusiveness. He was an ideal. Now that those who did not have a role to play in the freedom struggle are occupying positions of authority in government, Akbar, as a natural corollary, is reduced to a footnote. “To the Hindu Mahasabha, which opposed the freedom movement, Akbar was anathema,” Rezavi said. “A Jesuit, Fr Monserrate, a contemporary of Akbar, had opined that by tolerating all faiths, Akbar was dismissing all religions. A Muslim zealot such as Badauni opposed Akbar. It is not surprising that today’s communalists, both Hindu and Muslim, hate Akbar. In Pakistan, a nation based on religion, Akbar is a villain. In India, for those who want to convert India into a mirror image of theocratic Pakistan, Akbar likewise is a villain. Akbar stressed on wisdom and rationalism. Those who believe in irrational-ism are bound to oppose Akbar!” As for Rana Pratap being an inspiration for revolutionaries, Nana Phadnavis and Rani of Jhansi gave the leadership of the 1857 war of independence to Bahadur Shah Zafar and not to Maratha Peshwas. Although advanced in years and not much more than a nominal ruler, in the minds of common Indians the Mughal king was still the emperor of the land. “Both Nana and the Rani were mujahids who then became shaheed! Where was the invocation to Rana Pratap or Shivaji?” Rezavi asked. �

L ITER AT UR E

Ray’s alter ego The appeal of Feluda, Satyajit Ray’s iconic Bengali detective, remains undiminished more than 50 years after he was created.

IN 1965, Satyajit Ray tried his hand at something new for Sandesh (the Bengali children’s magazine that he edited)—a detective story. It was serialised in three parts running from December that year to February 1966. Little did he realise at the time of writing the story Feludar Goendagiri (Feluda’s Sleuthing) that he was creating one of the most iconic and well-loved characters in Bengali literature, whose popularity would grow with every new generation of readers. Feluda, whose formal name is Prodosh Mitra, and his satellite and chronicler, his 14-year-old cousin Tapshe (proper name Tapesh), and their faithful friend, the comical and endearing crime fiction writer Jatayu (proper name Lalmohan Ganguly), have for more than half a century been an integral part of Bengali culture and are etched indelibly into the Bengali psyche. No post-Independence fictional character in Bengali literature has emerged till date that has had the kind of social impact as Satyajit Ray’s detective. Nearly 52 years later, a “Feluda” exhibition held in Kolkata by the Society for the Preservation of Satyajit Ray Archives on the occasion of the master film-maker’s 96th birth anniversary once again demonstrated that the dynamic detective Feluda’s appeal had remained undiminished. Both the young and the old thronged the Bengal Art Gallery, ICCR, where more than a hundred illustrations, photographs and posters of Feluda books and films were on display and

C OU R T E SY : S AN D I P R AY

BY S U H R I D S A N K A R C H A T T O P A D H Y A Y

THE FIRST MAGA ZINE story that launched Feluda, in 1965. Feluda went on

to become one of the best-loved Bengali literary characters. 107

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sale. Of particular interest to Satyajit Ray’s admirers and “Feluda” aficionados were the laminated photocopies of Satyajit Ray’s handwritten manuscripts, drafts, sketches and paintings, which hung alongside the pictures and posters. Pictures worth more than Rs.50,000 were sold to collectors on the very first day. THE BEGINNING

After the publication of the first story in Sandesh, Satyajit Ray himself was taken by surprise by the reception it got and the excitement it generated. He was flooded with letters not just from his target readership of children and teenagers but also from their parents. Satyajit Ray also realised that the story had led to a marked increase in Sandesh’s sales. Sandip Ray, Satyajit Ray’s son and an eminent film director, told Frontline: “My father was astonished. He felt the phone calls and letters he received for writing the Feluda story were more than he had ever received for his films. It was not just children who were writing, but their parents as well. They now wanted a bigger Feluda. Then he thought of the first novella, Badshahi Angti (The Emperor’s Ring), which was serialised in Sandesh for a year.” A phenomenon was born, and after that there was no turning back. Even 51 years later, Feluda books are still as popular as ever. “When I wrote my Feluda story,” Satyajit Ray was to write many years after creating him, “I scarcely imaFRONTLINE . JUNE 9, 2017

gined he would prove so popular, that I would be forced to write a Feluda novel every year. To write a whodunnit while keeping in mind a young readership is not an easy task because the stories have to be kept ‘clean’. No illicit love, no crime passionel, and only a modicum of violence.” This accounts for the fact that there are absolutely no women characters in the Feluda stories. However, the stories are set in such a manner that the complete absence of women is never conspicuous. What Satyajit Ray created was something unique, and that too at a time when there was a dearth of detective fiction in Bengali literature. Perhaps the most enduring aspect of the Feluda series is that it goes beyond the genre of detective fiction per se. A Feluda book is not just about crime and criminals; it is as much a travelogue, an adventure story, a source of interesting information and trivia about a diverse range of things—history, places, nature, literature, society and culture. Even though adults were equally addicted to the Feluda stories, Satyajit Ray always had children in mind when writing them, and so, in the subtle manner in which a truly great master works, he imparted education and knowledge while he entertained and thrilled. “To be quite honest I had never heard of the Renaissance painter Tintoretto until I read ‘Tintoretto’s Jesus’ [published in 1981]. There was no Internet at that time, so you can imagine the enorm10 8

ous amount of research that my father had to do,” said Sandip Ray. With words and illustrations Satyajit Ray created in just 35 stories and novellas immortal characters who have captured the imagination of generations of young readers. Feluda himself is a striking figure. He stands over six feet tall, with a commanding presence and masterful ways. He has a brilliant, analytical mind and is vastly read. Though a quintessential Bengali, he can hardly be called traditional or confined within the boundaries of an entrenched Bengali way of life. According to Sagnik Chatterjee, the maker of the documentary film Feluda: 50 Years of Ray’s Detective: “Feluda is rooted in Bengaliness, but his ideas and way of thinking are highly cosmopolitan and enlightened in a more European way. Feluda is that Bengali which all Bengalis want to be.” In some ways Ray was also subtly moulding the character of his young impressionable readers. The character of Feluda is presented from the perspective of the narrator—Tapshe. To Tapshe, the formidable detective Prodosh is his elder brother Feluda (da being the abbreviated form for dada, meaning elder brother). Felu dotes upon his much younger cousin but is at the same time a strict disciplinarian and a guide and teacher. Under Felu’s watchful eyes, Tapshe himself is turning out to be a strong and capable individual, with a deeply imbibed set of values and a growing

lu’s preferred brand of cigarette] if they took up the habit later, and they would see themselves as Feluda. In the stories there are references to ganja, charas, LSD, smuggling, etc. Ray never tried to hide these darker sides of society from young adults. But they are never made overt in the stories. This way, Satyajit Ray, through Feluda, also informed the young reader about the harsher realities and dangers prevalent in society.” According to Sandip Ray, Feluda

IN RAY’S OWN IMAGE

In fact, the actor Sabyasachi Chakraborty, who has played Feluda for both television and cinema since 1995, based his portrayal of the sleuth on Satyajit Ray himself, rather than his predecessor in the role, the legendary Soumitra Chatterjee, who played the role of Feluda in the Satyajit Ray-directed Sonar Kella (1974) and Joy Baba Felunath (1979). “I was asked not to watch the

C OU R T E SY : SA N DI P RAY

understanding of the world and the society around him. Felu is, in fact, the universal “dada”, mentoring the young without mollycoddling them. Sagnik Chatterjee told Frontline: “Ray never wrote Feluda from a moralistic point of view. There are a lot of things in the books which are actually taboo for children. For example, Feluda smokes, and he smokes [with] so much charisma that those kids who grew up reading or watching Feluda on screen would inevitably smoke a Charminar [Fe-

was his father’s alter ego. “Actually Feluda is my father. There is no doubt about it…. He has attributed to him many of his own traits, and his own personal likes and dislikes. Things that my father liked, Feluda also liked, and the same went for what he disliked, too. For instance, punctuality and time management— these were traits that my father was very particular about, and so was Feluda. Moreover, a perceptive reader can also find out by reading a Feluda book what Satyajit Ray was interested in at that time, for that would inevitably find its way into the story. That’s also perhaps why Feluda has remained a part of our lives for such a long time,” Sandip Ray said.

S A T YA J I T R A Y with his cast during the making of Joy Baba Felunath. 109

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CO UR TE SY: SA N DIP R A Y

R A Y A N D S O U M I T R A C H A T T E R J EE during the shooting of “Sonar Kella”.

earlier films and instead follow the books and the illustrations…. The only thing I did was try and emulate the way Satyajit Ray used to sit in his room, and the no-nonsense manner in which he used to speak,” Chakraborty told Frontline. Before playing the part, he had contacted Soumitra Chatterjee and asked him what Satyajit Ray had told him about playing Feluda. “Soumitra babu told me that Satyajit Ray had said that this man [Feluda] is very cerebral, show it in your eyes,” said Chakraborty. Interestingly, Satyajit Ray’s wife, Bijoya, was a greater fan of the crime story genre than he was, and it was at her suggestion that he tried his hand at writing a detective story. Satyajit Ray himself was more into science fiction. Sandip Ray said: “My father was a fan of Sherlock Holmes, but it was my mother who was a huge fan of crime fiction. It was she who suggested to my father to write a detective story, and he decided to give it a try. He would always consult my mother while writing. If he was satisfied with the first draft, he would copy the final draft and give it to my mother with a pencil to make necessary changes.” Satyajit Ray was a very fast writer and was able to complete a whole novella in just three to seven days. According to Partho Mukhopadhyay, who writes under the pen name Shekhar Mukhopadhyay and is the FRONTLINE . JUNE 9, 2017

author of the acclaimed crime novel Gajapati Niwas Rahashya (The Mystery of the Gajapati Abode), the sweeping quality in the Feluda novels and stories was perhaps due to the fact that Ray wrote them in the midst of his extremely busy schedule. “They are not long stories, and the action is fast-paced. The style of writing is such that it feels as if the writer himself is sitting in front of you and telling you the story. There is not so much cerebral work in solving the mysteries, as there is adventure and action,” Mukhopadhyay told Frontline. Sampa Sen, Professor of Bengali Literature at Hooghly Mohsin College, points to the language of Satyajit Ray as one of the reasons for the enduring popularity of the Feluda books. “The language is so easy

Feluda has remained a figure for all ages. His outlook and the nature of the stories keep him open to change. 11 0

and fluid and the action and plot are so taut that reading a Feluda book is like watching a film. There is also so much humour in the books, which is uniquely Bengali but at the same time universal. But most unique are the characters that Ray introduces in the Feluda adventures. These various interesting characters, who appear with their own idiosyncrasies and hobbies, not only add colour to the adventures but also ignite young minds with curiosity. This is something unique in the genre of Bengali detective fiction,” she said. NOD TO HOLMES

Satyajit Ray never denied the obvious debt to Sherlock Holmes. From the tall, aquiline features of the protagonist and his method of deduction to the chronicling of his adventures by his ever-present understudy, the shadow of Holmes is all too evident in Feluda. But it is a tipping of the hat and no more than that. For, Feluda may travel to London to solve a case, but you cannot place him anywhere outside the Bengali context. Moreover, unlike Holmes or Byomkesh Bakshi (the iconic Bengali detective created by Sharadindu Bandopadhyay in the 1930s), Feluda is not restricted to any particular period in history (preIndependence period for Byomkesh, and the late Victorian and Edwardian ages for Holmes). Though Satyajit Ray wrote the stories in the 1960s and 1970s, Feluda has remained a figure for all ages. His attitude and outlook and the nature of the stories keep him open to change. According to Mukhopadhyay, the fact that Feluda can be projected on any time period can also be a limitation of sorts. “In period pieces like Byomkesh and Sherlock Holmes, one gets a picture of the society prevalent in those days, which one does not get in Feluda,” he said. While the character of Feluda remains open to reinterpretation, the atmosphere of the Feluda books reflects the fast-fading old-world gentility of the educated Bengali middle-class family of the 1960s and the 1970s. The world changed very quickly after the onset of liberalisa-

SU HR ID SA NKA R C HA TT OPA DH Y A Y

RA Y’ S D RAWIN G of Feluda’s

bedroom for “Sonar Kella”.

C O UR TE SY: S AN DIP R AY

tion in the early 1990s, and so did the culture and literary scene of Bengal. The characters in Satyajit Ray’s Feluda books interact with a certain quiet, gentle dignity that would stand out as out of place today. It is a cultural world preceding the one dominated by TV soaps and commercials. While Satyajit Ray’s two Feluda films—Sonar Kella and Joy Baba Felunath—were made in the 1970s, the later films made by Sandip Ray place Feluda in contemporary settings. He brought back Feluda to the screen first as a television series in 1996, with Sabyasachi Chakraborty in the lead role, and subsequently as fulllength feature films. An entirely new generation was hooked. The older generation, for whom Soumitra Chatterjee was the definitive Feluda, also accepted Sabyasachi Chakraborty, and the legend continued. But Sandip Ray had to deal with certain problems that the changing times presented. For example, he could not make Feluda use the Internet, as that would make redundant the delightful character of Sidhu Jetha (jetha is one’s father’s elder brother), the old man with encyclopaedic knowledge whom Feluda was in the habit of consulting from time to time. Moreover, Sandip Ray has to be doubly careful as Feluda fanatics are extremely possessive of their favourite detective and hate any kind of tampering with either the storyline or the characters. “In one film [Bombayer Bombetey, or The Hooligans of Bombay, 2003] I show Feluda using a mobile phone. I was careful to show that he doesn’t own a mobile but knows how to operate it. I had placed the story not at the time it was written [1976] but in 2003. This was not acceptable to a section of the audience, and I had people writing to me asking why I gave Feluda a mobile phone. I find this kind of possessiveness very weird; but it exists, and so I have to be very careful, as everybody has made Feluda a part of their life,” said Sandip Ray. The illustrations, by way of sketches in the stories made by Satyajit Ray himself, are an equally

RA Y’ S IL LU ST RAT IO N for

“The Emperor’s Ring”. important part of the cult of Feluda and actually serve as directions for the films. Like Sidney Paget’s drawings of Sherlock Holmes that appeared with Arthur Conan Doyle’s stories in the Strand Magazine in the 1890s, the sketches of Feluda are a key factor in establishing his immediately recognisable image. ILLUSTRATIONS

Many Feluda fans saw in the illustrations more than a passing resemblance to the screen legend Soumitra Chatterjee, whose on-screen representation of the detective remains the most popular more than 40 years 11 1

since his last Feluda starrer. There is a section that is still convinced that Satyajit Ray conceived of the physical characteristics of Feluda with Soumitra Chatterjee in mind. This is a fallacy that Sandip Ray dispelled. He explained that for the first Feluda film, Sonar Kella, Satyajit Ray initially wanted a new face to play Feluda. He was looking for a mixture of Barun Chanda, Dhritiman Chatterjee, Soumitra Chatterjee and Subhendu Chattopadhyay, all screen actors of that period whom Ray used in his films. “He realised that the mixture he had in mind was impossible to get, and ultimately he chose Soumitra da,” said Sandip Ray. Initially the sketches in the stories were slightly comical, but as a result of the increasing fan mail, slowly that changed, and Feluda became smarter and more handsome in his bearings. According to Sandip Ray, the actor on whom Ray actually based his illustrations in the later books was Santosh Dutta, who played Jatayu, the loveable pulp detective story writer who accompanied Feluda and Tapshe in their adventures. “In the early stories, Jatayu looked very different in the illustrations. After Santosh Dutta portrayed him in Sonar Kella, my father felt compelled to change his sketches to make them look like him. Santosh da did something magical, and the film dictated the illustrations,” said Sandip Ray. Over the years the Feluda cult has grown. Every new Feluda film is an eagerly anticipated affair like a Christmas morning present or an approaching festival; people do research on the books and the characters and even to this day continue to form fan clubs on social media and in neighbourhoods and schools. But the most telling statement of the continuing appeal of Feluda is that of a 12-year-old boy staring at a picture in the Feluda exhibition gallery in 2017 and adjusting his hair and expression according to the sketch on the wall. One day he will grow up to be like Feluda; there is no doubt about that. In fact, he is already on his way. � FRONTLINE . JUNE 9, 2017

PH AR MA CE UTI CA LS

Ineffective remedy The Prime Minister’s plans to enact a law to ensure that doctors prescribed only generic drugs will not have the desired impact without comprehensive action to make medicines affordable to all. BY T . K . R A J A L A K S H M I

ON April 17, inaugurating a multispecialty hospital in Surat, Gujarat, Prime Minister Narendra Modi announced that his government would soon bring in a law to ensure that the medical fraternity prescribed only generic drugs and not branded ones. The underlying assumption behind this grandiose statement was that generics were cheaper than branded drugs and that the medical community was responsible for foisting exorbitant health costs on patients by prescribing branded drugs. What was missing in the speech, however, was the linkage between a pharma pricing policy and a rational drug policy— something that is viewed as fundamental to drug price regulation and to reducing the common man’s outof-pocket expenditure on health. The majority of drugs, including several life-saving drugs, are in any case out of the drug price control mechanism. On May 12, echoing the Prime Minister’s sentiments, Ananth Kumar, Union Minister for Chemicals and Fertilizers and Parliamentary Affairs, announced that health security for all would be achieved through the Pradhan Mantri Jan Aushadhi Pariyojana (PMJAP), which, he said would be “a silent revolution”. He told the media that it was mandatory as per the guidelines of the Medical Council of India (MCI) for registered practitioners to mention prominently the generic names of drugs along with brand FRONTLINE . JUNE 9, 2017

names. He did not reply to specific queries regarding bringing all medicines under the National List of Essential Medicines (NLEM). He said there were 1,320 Jan Aushadhi centres in 426 districts where government-procured generic medicines were sold at prices 50-90 per cent lower than the prices of their branded equivalents. Ironically, the supply and price fixation of medicines at these centres is the responsibility of the Bureau of Pharma PSUs of India (BPPI), located in the complex of the Indian Drugs and Pharmaceuticals Limited (IDPL), the largest pharma Central public sector undertaking (CPSU), which is slated for closure by the Central government. In fact, as reported by Frontline earlier (“Perilous prescription”, February 3, 2017), four more pharma CPSUs have been identified for closure. They include the profit-making Rajasthan Drugs & Pharmaceuticals Limited (RDPL). Prices of drugs have had little to do with them being branded or generic. The cost-based pricing policy that was in prevalence from 1979 to 2005 ensured that all drugs were priced reasonably and included the cost of raw materials, conversion and marketing, and commissions and other margins. On the recommendations of the Hathi Committee, the government issued the Drug Prices Control Order (DPCO), 1979, under the Essential Commodities Act. This brought all drugs under price control 11 2

and fixed the prices on the basis of the cost of production. Complementing this, public sector pharmaceutical units and the Indian Patent Act of 1970 enabled the pharmaceutical industry to produce the latest patented medicines using reverse technology. CIRCUMVENTING PRICE CONTROL

This cost-based pricing mechanism was diluted in favour of a marketbased pricing mechanism. First in 1987 and then in 1995, the number of drugs under price control came down while the markups went up. Each time a few medicines were brought under price control and the NLEM was expanded, a lot of publicity was generated. Yet, what went unnoticed was the manner in which pharmaceutical companies circumvented the impact of price control. An industry insider pointed out that as soon as some molecules were brought under price control, the company would stop production of the molecule and shift to its isomer (a molecule with the same molecular formula but with a different chemical structure) having the same property and the same brand name but which was excluded from the DPCO. For example, when the anti-allergic medicine cetirizine was brought under price control, the companies shifted to levocetirizine, an isomer, which was sold at a higher price. Likewise, when salbutamol was

MA NJ UN A T H KI RA N/ A F P

A G E N E R I C D R U G S T O R E at the Victoria Hospital in Bengaluru, a file

photograph. Prices of drugs have little to do with them being branded or generic. brought under price control, companies shifted to levosalbutamol. Moreover, the DPCO 2013 allowed the manufacturers of non-scheduled drugs to raise the prices of their brands or molecules by 10 per cent every year. The Federation of Medical and Sales Representatives’ Associations of India (FMRAI) strongly criticised the Prime Minister’s announcement, saying that it was anti-people and anti-poor. According to it, the decision would give a level playing field for patented drugs by breaking the backbone of existing brands. The difference between generic and branded drugs in the Indian context was actually a difference between patented and non-patented drugs, it said. Patented medicines faced competition from branded medicines in India; the latter helped keep the costs somewhat low. All medicines in India were generic but sold under different brand names. The difference was lingual. J.S. Majumdar, former general secretary of the FMRAI and an office-bearer of the Centre of Indian Trade Unions (CITU), said: “One should ask the Prime Minister how medicine prices are going to stay affordable and cheap if the market is allowed to determine the prices of medicines and the DPCO allows a 10

per cent increase each year. Generics do not translate into cheap medicines. Leading pharma producers determine the prices today. The government is earning huge amounts by way of an 8 per cent excise duty on the maximum retail price, which is much higher than the manufacturing cost. There should be no tax on the consumer for an essential service. Will this mode of taxation get changed under the new tax regime?” Under Indian laws, a pharmaceutical manufacturer was not permitted to advertise and publicly market the products. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, proscribed the direct and indirect promotion of medicines. It provided exemptions in the case of medicines sent to registered medical practitioners (RMPs), hospitals, chemists and pharmacists. The Sales Promotion Employees (Conditions of Service) Act of 1976 legally authorised the promotion of pharmaceutical products by sales promotion employees to RMPs, chemists, hospitals and pharmacists. Majumdar said there was no term called “branded generics”. This term was used mostly in the Indian context by pharmaceutical companies to describe medicines that were not patented but had an added value 11 3

which had to be established by trials. A “brand” was not a patented medicine. Nowhere in the Drugs and Cosmetics Act of 1940 was the term “branded generics” used. If at all, it was the government which had to come out with a law that banned the production and sale of medicines as brands. At the May 12 press briefing, Ananth Kumar upheld the right of manufacturers to “brand” their medicines. He said that he “could not stop anyone from buying a patented, branded or generic medicine”. Alok Ganguli, a former officebearer of the FMRAI, felt that the emphasis on generics prescription was a diversionary tactic. An artificial distinction between “generics” and “branded” medicines was sought to be made by multinationals eying emerging markets like India especially after the expiry of the term of their patented products. Former Chemicals and Fertilizers Minister Srikant Jena, in a written reply to Parliament in 2011, had stated that there was no distinction between generic and branded drugs. In 2005, the Indian Patent Act was amended to be made compliant with World Trade Organisation (WTO) standards. The earlier law did not allow product patents. Yet an amendment was inserted in Section 3(d) of the Act at the behest of the Left parties. Section 3 (d) restricts the grant of patent to inventions involving new forms of a known substance unless it differs significantly in properties with regard to efficacy. This guaranteed some protection against the misuse of the amended Act. Renewed concerns have been expressed on negotiations at the Regional Comprehensive Economic Partnership (RCEP), a free trade agreement among 16 Asian and Pacific countries. Gopal Dabade, coordinator with the All India Drug Action Network, told Frontline that access to “life-saving medicines” in most Asian developing countries was under direct threat because of intimidation from RCEP members. He said that one would wonder if it was “recolonisation”. “There is an increased focus at RCEP negotiations on intellectual FRONTLINE . JUNE 9, 2017

DPCO AND NLEM

The ostensible non-commercial intent in the Prime Minister’s speech was in stark contrast to the section on health in the draft Three Year Action Agenda of the NITI Aayog (2017-18 to 2019-20). In the subsection on access to medicines, the NITI Aayog has recommended that the Drug Price Control Order be delinked from the NLEM. This, apparently, is because a balanced approach towards regulation is required to achieve the twin objectives of access to effective medicines and building a strong pharmaceutical industry. The document also stated that there was a trade-off between lower prices on the one hand and quality medicines and discovery of breakthrough drugs on the other. Interestingly, the Prime Minister in his speech also referred to the PMJAP which made available medicines at cheap rates. However, the NITI Aayog draft has suggested a “review of the business model of the Jan Aushadhi stores as their rollout had been slow” in ensuring access to essential medicines. It has also recommended an e-pharmacy policy by 2017; upgrading of Schedule ‘M’ of the Drugs and Cosmetics Rules, 1945, to good manufacturing practices (GMP) FRONTLINE . JUNE 9, 2017

V. RA JU

property (IP) enforcement. The draft RCEP text on ‘IP enforcement’ omits several procedural guarantees, safeguards and protections available under WTO trade rules and are a blank cheque for abuse, with numerous provisions that will prevent the flow of generic medicines from producer to patient. The changes sought are TRIPS [Trade-Related Aspects of Intellectual Property Rights] plus measures, data exclusivity, removal or dilution of Section 3(d) of the Indian Patent Act and others. All these changes will put several million lives in peril,” he said. India is aptly known as the “pharmacy of developing countries” as it produces medicines at affordable prices for several developing countries. All this would be put to an end through the RCEP negotiations, Dabade told Frontline. The issue has not been discussed in Parliament to date.

AT A J AN A US HA DHI CE NT RE in Vijayawada. The NITI Aayog has suggested

a “review of the business model of the Jan Aushadhi stores”. levels of the World Health Organisation to increase pharmaceutical exports; and modification of the rules for the prescription of generic drugs, a point that was reiterated by Ananth Kumar. More worryingly, it has recommended a re-engineering of the approval process for clinical trials and market authorisation on the grounds that the current process was lengthy and complex, taking around two years compared with three months in Singapore. “Clinical trials also offer a huge commercial opportunity,” it stated. SJM ATTACKS NITI AAYOG

In a significant development, the Swadeshi Jagran Manch (SJM), an affiliate of the Rashtriya Swayamsewak Sangh, shot off an angry letter to the Prime Minister on April 29 that government departments were acting against the promises made by him with regard to affordable medicines for all. The target was the NITI Aayog and the Department of Pharmaceuticals (DOP). Authored by Ashwani Mahajan, co-convener of the SJM, the letter highlighted three concerns: the sale of essential medicines at exorbitant profits; the DOP’s collusion with pharma companies; and the NITI Aayog’s attempts to 11 4

sabotage the drug price control regime. The SJM said the formula of drug price fixation was not based on the principle of cost of production but was market-determined. The ceiling price of medicines is determined by calculating the simple average of the prices of brands that have a market share of 1 per cent or more. In the letter, a copy of which is available with Frontline, it was pointed out that the prices of essential medicines were still far too high and that pharmaceutical companies were making 500-4,000 per cent profits even after price controls. The SJM’s points are not new; organisations such as the All India Drug Action Network, the FMRAI, and the Jan Swasthya Abhiyaan have repeatedly demanded the restoration of the 1995 version of the Drug Price Control Order instead of the one in 2013, which introduced the market-based formula for price fixation. The SJM accused pharmaceutical companies of influencing the DOP and causing the change in the price-fixation formula of the DPCO in 2013. It commended the National Pharmaceutical Pricing Authority (NPPA) for its role in bringing coronary stents under price control

and decried the purported attempt of the NITI Aayog to dismantle the NPPA. The letter demanded that the NPPA be made into an autonomous body instead of keeping it as a subordinate body of the DOP. “These activities (of the NPPA) have not been liked by the above-mentioned Ministries and Secretaries, particularly the DOP, and plans are afoot to sabotage the NPPA, possibly by dismantling it altogether,” stated the letter. The NITI Aayog, it said, was also planning to frame a new drug policy and revamp DPCO 2013. The SJM cautioned that any such move on the part of the government to modify either the drug policy or DPCO 2013 would be ill-advised as the matter of price fixation was sub judice. The NITI Aayog, it said, had a “history of aligning with the vested interests in the relevant Ministries to dismantle the regime of price control and wind up the NPPA”. The SJM also criticised the health component of NITI Aayog’s draft three-year action plan. “It is now known that, ironically, a Committee for Ensuring Enhanced Accessibility of Drugs to the Poor has been formed on 31 March 2017 and chaired by the Joint Secretary (Pharma Policy), DOP. Its real purpose is to pander to the pharmaceutical companies, undermine the good work done by the NPPA and ultimately to abort any attempt to do effective price control and make medicines affordable in India,” the letter said. On April 21, as if on cue, the MCI issued a circular to deans and principals of medical colleges, directors

Doctors have been guarded in welcoming the Prime Minister’s announcement.

of hospitals, State medical councils and State Health Secretaries that all registered medical practitioners were required to comply with Clause 1.5 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulation, 2002, amended in 2016, which stated: “Every physician should prescribe drugs with generic names legibly and preferably in capital letters and he/ she shall ensure that there is a rational prescription and use of drugs.” Earlier, the clause had offered an option by stating that “every physician should, as far as possible, prescribe….” Not a single physician has been pulled up since the MCI’s amended notification of September 2016. It is also pointed out that the bulk of prescriptions were irrational and until all formulations, rational or otherwise, were brought under price control, any attempt to bring a law to get doctors to get prescribe generics was futile. Not surprisingly, doctors and their associations have been guarded in welcoming the Prime Minister’s announcement. The Indian Medical Association (IMA), the largest association representing doctors, in a statement issued by its president following an emergency meeting on the issue of prescription of generic names of medical drugs, spelt out that “the judgement to choose a rational drug and its format vests only with the RMPs…. This right of the medical profession is sacrosanct.” The statement issued by the IMA and the Federation of Medical Associations in India called on the government to strengthen “quality control mechanisms to ensure adherence to good manufacturing practices for patient safety” and added that “for a rational prescription, doctors should choose drugs genericgeneric or generic brand-based on quality, efficacy and economy”. Interestingly, it also recommended that the government should ban the differential pricing of a drug under different brand names (genericgeneric, generic-trade or generic brand) by one company, insisting that it should be a case of one chem11 5

ical drug, one company and one price. THE CORE ISSUE

The catch, if anything, lies in the price regulation of all drugs and, by implication, the onus is on the government and not on doctors. “Even if I prescribe a generic drug, what is going to prevent the pharmacist from selling the branded version of the same? As long as branded drugs and differential pricing is allowed for the same chemical, the problem will continue. How is the hapless consumer to know which is the most efficacious?” a leading orthopaedic surgeon and director of a private hospital told Frontline. S. Srinivasan of LOCOST, a non-profit medicine manufacturing unit in Vadodara, said that as generic medicines had low margins, it was unlikely that retail pharmacists would stock them. So even if a doctor prescribed a generic drug, there was nothing preventing the pharmacist from selling a branded one. More so, the announcement was nothing new. The government-appointed High Level Expert Committee on Universal Health Coverage had made recommendations to make generic drugs production and prescription more than five years ago. “All drugs have to be brought under price control, like it was earlier,” Dr G.S. Grewal, former president of the Punjab Medical Association, told Frontline. The Prime Minister’s announcement has been seen as a populist one akin, to his call for demonetisation of high-value notes. It was not long ago that the new National Health Policy was unveiled, which, among other things, highlighted the high out-ofpocket expenditure incurred on health by people. The Prime Minister also mentioned how his government had capped the prices of cardiac stents and brought around 700 medicines under price control. But it is also a fact that stents continue to be sold at high markups despite the price cap set by the NPPA. Prescribing generics alone as a measure to bring down the prices of medicines is at best a chimera. The real issue lies elsewhere. � FRONTLINE . JUNE 9, 2017

SPO RT

FERTILE GROUND

The passion the people in the north-eastern States have for football has given this region an overarching identity as the powerhouse of Indian football and helped clubs running on shoestring budgets scale heights. B Y S U S H A N T A T A L U K D A R I N G UW AHA TI

WHILE grappling with the complexities of competing identities, India’s north-eastern region has acquired an all-embracing identity as the powerhouse of Indian football. FRONTLINE . JUNE 9, 2017

When Aizawl FC from Mizoram scripted history on April 30 by becoming the first football club from the region to lift the country’s topflight football league title, the Hero 11 6

I-League championship, it also shared a larger success story with football lovers across the country. The story of how the passion and love the people in the north-eastern

FOR FOOTBALL Aizawl FC owner Robert Romawia Royte said, “a way of life”. Aizawl FC was crowned with the I-League title after it held Shillong Lajong FC of Meghalaya to a 1-1 draw in the last league match held in Shillong. Shillong Lajong FC is the first football club from the region to quality for the I-League. This north-east derby shattered the dream of Mohun Bagan, a giant in Indian football and a former champion of the I-league, of clinching the title this season. Aizawl FC was only a draw away from the league title when it beat Mohun Bagan 1-0 in the previous match.

PT I

SUCCESS STORIES

A I ZA W L FC P L AY E R S

celebrating after the club won the Hero I-League championship by beating Shillong Lajong FC, in Shillong on April 30. It is the first football club from the northeastern region to win the cup. States have for football shaped this overarching identity for the region and helped clubs with shoestring budgets scale heights. It is the story of a region where football is, as the

This is not the first football story the region has in its bag of success stories. The legendary footballer and physician Dr Talimeren Ao (19181998) from Nagaland was captain of India’s first national football team for the London Olympics in 1948. He also led the Indian Olympic contingent. The iconic footballer Baichung Bhutia from Sikkim led the Indian football team in seven international titles and is credited with being the country’s longest-serving football captain. He is also the first Indian player to play professional football in England. Another iconic and charismatic footballer from the region, Oinam Bembem Devi from Manipur, led the Indian women’s team to victory as captain in five international football tournaments. During her two-decade-long, illustrious career, the 37-year-old legend also became the first Indian woman footballer to play professionally abroad. Sports clubs in Guwahati—such as Maharana Club, Gauhati Town Club and Sporting Union—and Manipur played a key role in spotting football talent in the region in yes11 7

teryear and helping them nourish their talents, the veteran sports journalist Premadhar Sarma said. “The clubs in Guwahati would send its members to different educational institutions to find out if any young footballer from other parts of Assam or the region had enrolled for any course. Whenever such a footballer was spotted, the club members would do their best to convince them to play for their clubs,” he added. “The veteran footballer Animesh Ganguli of Maharana Club approached the football legend T. Ao when club members came to know that Ao had enrolled in the science stream in Cotton College [Guwahati]. Later, when he went to Kolkata to do a medical course, Sarat Das, a veteran footballer from Assam, then playing for Mohun Bagan, took him to the club, and Ao was inducted by Mohun Bagan to play as a defender. In 1948, he was made the captain of Mohun Bagan, and in the same year he was made the captain of the Indian team for the London Olympics. The Indian team under T. Ao’s captaincy stunned football lovers across the globe by playing barefoot in London Olympics,” Sarma said, recalling his acquaintance with the football legend. The likes of Aizawl FC and Shillong Lajong FC have produced hundreds of footballers with a professional edge who have been playing in various clubs in India. Twenty to 30 per cent of the players in the Indian football team come from this part of the country. The eight football teams that participated in the third edition of the Indian Super League (ISL), which was held last year, had 30 players from the north-eastern region. Girls and women from this region, too, not just boys and men, have FRONTLINE . JUNE 9, 2017

been dominating Indian football. Ten of the 20 members of the Indian women’s football team that played in the qualifying competition for the Under-16 Women’s Championship, a biennial women’s football tournament that the Asian Football Confederation (AFC) organises, were from the region. The team was selected from 30 players who underwent one month’s training in Patiala, Punjab. The Indian team won two of its four matches in the Group B pool, where it was clubbed alongside South Korea, Malaysia, The Philippines and Northern Marina Island, but it did not make it to the finals of the qualifying competition held in China last year. Two of the three goalkeepers in the Indian squad were from the region: Monika Devi from Manipur and Laxmita Reang from Tripura. Manipur has won 18 of the 20 Senior Women’s National Football Championships held. In sharp contrast to state-of-theart football arenas that are available in the rest of the country, for foot-

T HE H IN D U AR C H I V E S

JULY 31, 1948: Talimeren Ao (from

Nagaland), captain of India’s first national football team, and G. Robert, captain of the French team, at the start of the India-France match of the London Olympics. The Indians, who played barefoot, lost 2-1.

M. MOORTHY

R. RAGU

C H E N N A IY IN F C ’ S J E J E LAL PE KHL UA after he scored the first

KAMALA DEVI (from Manipur) in control

goal against FC Pune City at an Indian Super League match at Jawaharlal Nehru Stadium in Chennai on November 15, 2016. Lalpekhlua, currently a top Indian striker, is from Mizoram.

of the ball in the 12th South Asian Games football final played in Shillong on February 15, 2016.

ballers in the region virtually every patch of flat open space, even courtyards and empty streets in the hills, are practice grounds. Residents of hill towns and villages gather at these football venues in the midst of nature

to cheer footballers. A ball may get lost in a deep gorge at the edge of the venue if someone kicks it too long. “Football has been a popular game in Mizoram. It is a way of life in the entire north-east. Passion, love and craziness of the people for the game have helped Aizawl FC scale heights. Twenty per cent of the Indian football team is from Mizoram. Despite the absence of corporate funding, there is an abundance of players in Mizoram. This game is the best preventive against drug addiction. Parents want their wards to be with us so that the children do not fall prey to social evils like drug addiction or indulge in smoking or chewing of tobacco,” Royte said. Aizawl FC is a professional club that runs on a shoestring budget compared with big-ticket clubs, but it has initiated several projects to groom young talent in Mizoram as profesRAJIV GANDHI S TADIUM, Aizawl,

Mizoram. The I-League match between Aizawl FC and Mohun Bagan was played here on April 22. 119

sional footballers, with the motto “Catch Them Young”. The senior journalist David Laitphlang, who is also the vice president of the over 100-year-old Laban Sports Club in Shillong, said that the popularity of the game in Meghalaya had gone beyond the traditional love and passion for it. “Football has always been a favourite game for the people of Meghalaya. However, people from all walks of life have now started taking the game more seriously and exploring it as a preferred career option. Over a thousand kids turning up at the screening camp organised by Lajong Football Club Academy, which can accommodate 100 aspirants, is a pointer in that direction,” he said. Last year, Meghalaya Chief Minister Mukul Sangma announced his government’s plan to launch “Mission Football” with the aims of honing the skills of young talent and creating infrastructure to attract investment in football. Notwithstanding the rising popularity of the game and the splendid FRONTLINE .

JUNE 9, 2017

G.P. SAMPATH KUMAR

M U M BA I C I T Y FC ’ S A I B OR L AN G KHONGJEE (white, airborne) in action in an ISL match in the Fatorda stadium

AI F F

in Margao, Goa, against FC Goa on November 16, 2016. Khongjee is from Meghalaya.

O I N A M B E M B E M D E V I (in blue)

from Manipur, who led the Indian team to victory in five international football tournaments, in action in a match against Bahrain. FRONTLINE . JUNE 9, 2017

performance of players from the region, some recent developments in Indian football have cast a gloom of uncertainty over the game in the north-east. A merger of the Hero ILeague and the franchisee-based ISL has been proposed in order to create a unified top-flight league with 11 teams: eight ISL teams and three big-ticket clubs from the I-League, that is, Mohun Bagan, East Bengal and Bengaluru FC. The news doing the rounds was that one of the criteria the All Indian Football Federation (AIFF) and IMG-Reliance had set for the proposed league was that a club would have to pay a franchisee fee of Rs.15 crore to be part of the new league, the additional cost being on account of team building and expenses to run the club. The merger, had it happened, would have relegated Aizawl FC, the country’s champion, to the second division. Aizawl FC submitted a formal claim to the AIFF to continue in the top league even after such a merger. In case the club did not get a positive response from the AIFF, it planned 120

to make representations to the Prime Minister, the Union Sports Minister and to the president of the AFC. If these also failed to yield a positive result, the club said it would hold worldwide protests, including hunger strikes and demonstrations near AFC/FIFA offices and picketing of FIFA offices. After Aizawl FC submitted its claim, both Mohun Bagan and East Bengal submitted representations to the AIFF expressing their doubts about the merger. The AIFF has put the proposal on hold for at least the next two or three years. Football lovers in the region are looking for reassurances that corporates and celebrities of the Indian film industry will not make a push for the merger as it will distort the identity of the region and adversely impact its football clubs. If that happens, the popularity of the game in the region may erode and the resultant distorted identity of the region will only revive the mainland-versusthe periphery debate, which the game of football has overshadowed for now. �

TH E NIR BH AY A CASE

Death penalty debate A three-judge bench of the Supreme Court confirms the death sentences against the Nirbhaya case accused, arguing that their crime summoned a tsunami of shock in the collective conscience, and the verdict revives the debate on the death penalty. BY T . K . R A J A L A K S H M I IN the first week of May, two significant judgments were pronounced in cases of sexual violence against women, one by a three-judge bench of the Supreme Court and the other by the Bombay High Court. On May 5, the Supreme Court upheld the death sentence awarded by the Delhi High Court to four men convicted of the gang rape and murder of a 23-year-old physiotherapist in New Delhi on December 16, 2012. The previous day, the Bombay High Court awarded life imprisonment to 11 convicted persons found guilty of raping Bilkis Bano during the 2002 Gujarat pogrom. Bilkis Bano was pregnant when she was gang-raped. Her infant daughter and 14 members of her family were murdered by a communal mob seeking revenge for the Godhra train burning incident of February 27, 2002. The High Court refused to award the death penalty to three of the 11 convicts. The award of the maximum punishment set off a debate on the death penalty and its efficacy as a deterrent to crime. The apex court verdict also raised significant questions about the public and collective conscience as a determining factor for the award of the death sentence. The events of December 16, 2012, leading to the death of the young woman, who was referred to as Nirbhaya because of her determination to survive despite the brutal assault, led to national outrage and the setting up of a three-member com-

mission comprising the late Justice J.S. Verma, the late Justice Leila Seth and Solicitor General Gopal Subramanium, on December 23, 2012, to look into possible amendments to the criminal laws relating to sexual violence against women. The commission made several recommendations, one of which was fasttracking of cases of rape and other forms of sexual assault. The brutality of the Nirbhaya case, detailed in the judgment, led to a demand for the award of the death penalty to all the six convicts, including a juvenile. The victim, who suffered extensive internal injuries, died in a Singapore hospital two weeks after the incident. One of the accused, whose act of rape was established on the basis of forensic evidence as the most brutal, committed suicide in his prison cell a year after his incarceration. All six convicts belonged to poor sections of society and lived in slum clusters in the capital city. Their poverty, economic background, the age of their parents and dependants, the absence of criminal antecedents, their conduct in jail and the likelihood of their reformation were given as mitigating factors in the appeals. The prosecution’s argument was that the “present case amounts to devastation of social trust and completely destroys the collective behaviour and invites the indignation of society” and that a crime of this nature created a fear psychosis and definitely 12 1

fell in the category of “the rarest of rare cases”. The bare facts of the case, as detailed in the judgment and on the basis of statements of both the deceased girl and her friend, who was assaulted when he attempted to save her, left no one in doubt that the crime indeed was brutal in all its ramifications. The two of them were returning after seeing a movie and boarded a private bus where the ordeal began. After they were brutalised, with an iron rod as well, they were thrown out of the bus without any clothes on their bodies. As per the dying declaration of Nirbhaya and the statement of her friend-survivor, the convicts tried to run them over. Investigations revealed that they tried to destroy evidence by washing the bus and burning the clothes and divided the loot among themselves. On the basis of medical evidence, oral testimony and dying declarations, the judges concluded that the “casual manner with which she was treated and the devilish manner in which they played with her identity and dignity is humanly inconceivable”. The crime summoned a “tsunami of shock in the mind of the collective”, they said. Dismissing the appeal against the order of the High Court and affirming that the High Court had correctly confirmed the death penalty, Justices Dipak Misra, Ashok Bhushan and R. Bhanumathi concurred that the aggravating cirFRONTLINE . JUNE 9, 2017

MITIGATING FACTORS

Among the mitigating factors, it was argued that at least three of the accused had no criminal antecedents and were not hardened criminals, while a fourth one had been falsely implicated on account of being the brother of one of the main accused. Therefore, it was argued that the case need not fall in “the rarest of rare categories”. The apex court relied on some of its previous death penalty judgments in cases involving the rape of minors where the accused did not have any major criminal antecedents. The nature of the crime was used to determine the gravity of the punishment and to establish the aggravating circumstances. In Shyam Narain vs State (National Capital Territory of Delhi), while hearing an appeal against the death penalty awarded by a lower court to a man convicted of raping a four-yearold, the court observed that the case “irrefragably invites the extreme abhorrence and indignation of the collective. It is anathema to the social balance. In our view, it meets the test of the rarest of the rare case and we unhesitatingly so hold.” A review petition was filed but it was dismissed, where a single judge held, weighing the mitigating and aggravating factors, that despite the assertion that the convicted person had a blemish-free record in jail, the “barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years outweigh the mitigating circumstances now brought on record”. In another case (State of Maharashtra vs Barat Fakira Dhiwar), as the High Court had acquitted a person after he was awarded the death sentence by a lower court for the rape and murder of a minor, the apex court observed that it was perilously near the region of “the rarest of rare” but as the High Court had acquitted the accused, the apex court altered the sentence to life imprisonment. That courts had a duty when the colFRONTLINE . JUNE 9, 2017

lective conscience was shocked was illustrated in yet another judgment involving the rape and murder of a minor (Vasanta Sampat Dupare vs State of Maharashtra), where the apex court had observed that “when the crime is diabolical in nature and invites abhorrence of the collective, it shocks the judicial conscience and impels it to react keeping in view the collective conscience, cry of the community for justice and the intense indignation the manner in which the brutal crime is committed…. The criminality of the conduct of the appellant is not only depraved and debased, but can have a menacing effect on society. It is calamitous.” Justice Bhanumathi, who gave a separate but concurring judgment, observed: “While determining sentence in heinous crimes, judges ought to weigh its impact on society and impose adequate sentence considering the collective conscience or society’s cry for justice. While considering the imposition of appropriate punishment, courts should not only keep in view the rights of the criminal but also the rights of the victim and society at large.” She said that while the “continuing prominence of reformative approach in sentencing and India’s international obligations have been majorly instrumental in facilitating a visible shift in the court’s view towards restricting imposition of death sentence…. The small window of award of death sentence was left open in the category of ‘rarest of rare’ case in Bachan Singh vs the State of Punjab (1980) by a Constitution Bench where the death sentence was awarded.” She maintained that while dealing with sentencing, courts had applied the “crime test”, the “criminal test” and the “rarest of rare test” where “the tests examine whether society abhors such crimes and whether such crimes shock the conscience of society and attract intense and extreme indignation of the community”. Courts have further held that “where victims were helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a 12 2

PTI

cumstances outweighed the mitigating factors, as mentioned in the affidavits of the accused.

(C LO CKW IS E F ROM TO P L EFT )

Delhi gang rape convicts Akshay Thakur, Mukesh Singh, Vinay and Pawan Gupta, whose death sentences were confirmed by the Supreme Court on May 5. diabolic manner, the accused should be shown no remorse and death penalty should be awarded.” Her judgment listed a few cases where the courts had awarded the death penalty and recalled observations made by the apex court on crimes against women as not ordinary crimes committed in a fit of anger or for property but as social crimes that were capable of disrupting the social fabric and hence deriving harsher punishment. In Dhananjoy Chatterjee vs the State of West Bengal (1994), the court held that “the measure of punishment in a given case must depend on the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for

justice against the criminals.” There was a huge public outcry in the Dhananjoy Chatterjee case as in the Nirbhaya case. A security guard in Kolkata, Dhananjoy Chatterjee raped and murdered a 14-year-old girl in March 1990. There were other cases that did not trigger a public outcry, yet the death sentence was awarded in them. Justice Bhanumathi stated that the law had clearly set forth the sentencing policy, which had evolved over a period of time, and that the court was “required to draw a balance sheet of aggravating and mitigating circumstances attending to the commission of the offence and then to strike a balance between those aggravating and mitigating circumstances”. “Society’s reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of the public in the administration of the criminal justice system” she observed. Quoting another case (Om Prakash vs State of Haryana, 1999), she held that the court should respond to the “cry of society and to settle what would be a deterrent punishment for what was an apparently abominable crime”. The judge also noted that the incident “sparked public protest not only in Delhi but nationwide”. She also dwelt on the rising crimes against women as an area of concern pointing to an emergent need to study in depth the root of the problem and remedy the same through a strict law and order regime. COLLECTIVE CONSCIENCE

There is no doubt that the December 16 incident was an abomination. It is also a fact that the public outcry, the innumerable candlelight marches and the condemnation of the then political establishment initiated the need for a discourse on sexual violence against women, though it was one that began and stopped with the events of December 16. There was a demand that the juvenile, too, should

be subject to the same laws of trial and conviction as the other five and an impression was sought to be created that he was the most brutal of them all, a claim that was not supported by the investigation. The 400-odd-page verdict also did not indicate any particular instance of barbarity committed by the juvenile. The repeated references to the collective conscience did appear disquieting given the lynch mob tendency in cow and other vigilantism and the growing kangaroo court mentality of the public at large. It was another matter that there had not been any let-up in crimes against women. In fact, there were subsequent cases where the brutality, as in the case of the December 16 gang rape and murder, had been equally abhorrent in degree. The gang rape of a mentally disabled woman in Rohtak the following year and her brutalisation was reminiscent of Nirbhaya’s case. A more recent abomination took place on May 13, when a woman worker of a garment factory in Sonepat was raped, brutalised and killed in a similar manner. Women’s organisations have been perturbed by the increasing application of the “collective conscience” by self-styled vigilantes as well as its rationalised interpretation by the judiciary. They have been baffled as to why the same yardstick was not applied across various levels of the judiciary, especially in the case of Bilkis Bano, who was not only raped when she was pregnant but was made to witness the murder of her minor daughter and other family members. The All India Democratic Women’s Association welcomed the Supreme Court judgment and said that it was the certainty of conviction rather than the awarding of the death sentence that was important. It clarified that it was against the death penalty as it was “often arbitrarily asked for and given”. It pointed out that the Bilkis Bano case was equally barbaric and brutal, yet “the High Court awarded life sentence to the 11 accused persons” and the Central Bureau of Investigation did not 12 3

press for the death sentence. It held that several rape cases had occurred before and after the Nirbhaya case, but were not investigated or the accused prosecuted to obtain convictions and suitable punishments. All crimes against women needed to be dealt with expeditiously, it suggested. At a press conference in New Delhi, Bilkis Bano and her husband Yakub, a dairy farmer, welcomed the verdict in the Nirbhaya case and the Bombay High Court judgment but wondered why the plea for the death penalty in her case was commuted. Bhaiyalal Bhotmange, the lone survivor of the notorious Khairlanji case in Maharashtra, who passed away in January, must have wondered similarly why the death sentence awarded earlier was commuted to life imprisonment by the Bombay High Court in 2010 in his case. His wife and daughter were stripped and raped and killed by a mob in 2006. In October 2013, a Patna High Court bench, citing lack of evidence, acquitted all the 26 accused, including 16 who had been awarded the death penalty, for murdering 58 Dalits, including a child, in Laxmanpur Bathe in Jehanabad district of Bihar in December 2007. On May 9, 2017, a lower court awarded the death penalty to three persons for the gang rape and murder of a Pune techie in 2009. The death penalty is not a deterrent as global statistics show; neither do crimes against women come down following the award of the harshest form of punishment. According to the National Crime Records Bureau, the crime rate against women rose from 41.7 to 53.9 between 2011 and 2015. Delhi continues to wear the badge of crime capital, leading as it does with the highest rates of crimes against women, followed by Assam. The issue at hand is that the collective conscience might not get aroused in every case of atrocity against women and humanity in general; the objective of assuaging that and factoring it in awarding the harshest of punishments may not achieve the larger objective of building a sensitive and caring society. � FRONTLINE . JUNE 9, 2017

Infographics: T.S. Vijayanandan State-wise wind power installed capacity (MW)

Year-wise wind power installed capacity (MW)

1923

2312 2014-15

2016-17*

2079 2013-14

20 3423 0 9 2.. 5 0

1700 2012-13

2015-16

20 3197 0 9 2.. 5 0

1485 2008-09

2011-12

1663 2007-08

2349

1742 2006-07

2010-11

1716 2005-06

1565

1112 2004-05

2009-10

2523 up to 31.03.2004

98.70 Telangana

4.30

7694.33 Tamil Nadu

Others

4216.72 Rajasthan

4666.03

Cumulative Achievements

Wind Power

4,000

5,502.38

32,279.77

Solar Power

12,000

5,525.98

12,288.83

Small Hydropower

250

105.90

4,379.85

BioPower*

400

161.95

8,181.70

10

23.50

114.08

16,6600

11,319.71

57,244.23

Waste to Power Total

Off-grid and captive power Biomass

60

-

651.91

Biomass gasifiers

10

2.80

161.45

SPV systems

100

155.51

462.54

Total

187

171.07

1,468.95

12 5

6763

9013

2015-16

2016-17*

28700 2016-17*

Grid-interactive power

3744

26777 2015-16

2016-17 Achievement

1214-15

23444 2014-15

16-17 arget

2647

21132 2013-14

Target and achievement in renewable energy (MW)

2013-14

19052 2012-13

513

17532 up to 31.03.2012

up to 31.03.2012

1446

Year-wise solar power installed capacity cumulative growth (MW)

Trend in cumulative wind power installed capacity (MW)

2012-13

Maharashtra

2288.59

*Data upto 31-12-2016

M.P.

Kerala

Karnataka

43.50

3154.20

4441.57 Gujarat

Andhra Pradesh

2092.50

Data upto 31-12-2016

country is 49,130 MW at a height of 50 metres and 1,02,788 MW at 80 m. Andhra Pradesh, Gujarat, Karnataka, Maharashtra, Rajasthan and Tamil Nadu were identified as the States with high potential. In solar energy, Tamil Nadu topped the country in installed capacity with 1,591MW, followed by Rajasthan and Gujarat. Rajasthan, Jammu & Kashmir and Maharashtra were identified as States with high potential. The total installed capacity for power generation rose from 1,45,755 MW as on March 31, 2006 to 3,16,379 MW as on March 31, 2015, with thermal plants accounting for 71 per cent (2,24,674 MW). Estimated consumption went up from 4,11,887 GWh in 2005-06 to 9,48,328 GWh in 2014-15. Sectorwise consumption data from the Ministry of Statistics and Programme Implementation showed that in 2014-15, industry accounted for the largest share (44 per cent), followed by domestic use (23 per cent), agriculture (18 per cent) and commercial sectors (8 per cent). FRONTLINE . JUNE 9, 2017

E D UC ATIO N

Testing times NEET revives the debate in Tamil Nadu on the efficacy of a centralised examination for admission to medical and dental courses which may nullify the socio-economic objectives of the State, and on the quality of the State Board’s Plus Two syllabus. BY T . S . S U B R A M A N I A N RIGHT from its inception in 2010, the National Eligibility-cumEntrance Test (NEET) for admission to undergraduate and postgraduate medical and dental courses has been dogged by controversy, first over the Medical Council of India’s (MCI) jurisdiction in notifying, in December 2010, the conduct of a single entrance examination for admission to medical courses in government-run medical colleges, private medical colleges and deemed universities and, subsequently, when it became the Central government’s responsibility to make NEET mandatory, bypassing the interests of the States. Tamil Nadu has been in the forefront of the battle against it. The State government offered two arguments for seeking exemption from NEET: one, NEET demolished the level playing field created by it for students from rural areas through a fair and transparent system of admission to professional courses on the strength of marks scored by them in the Plus Two examination; two, that imposition of NEET was an assault on the federal structure of the Constitution and that it infringed upon the State’s rights and its admission policy for medical institutions. All the political parties in the State are united in their opposition to NEET. FRONTLINE . JUNE 9, 2017

NEET, a test conducted by the Central Board of Secondary Education (CBSE) based on its syllabus, was held on May 7, 2017. The examination was held for the first time in 2016. The Centre promulgated an ordinance on May 24, 2016, exempting Tamil Nadu and some other States from NEET in respect of government seats in government and private medical colleges for 2016. This year, all the States came under the purview of NEET. NEET aimed at ending the sale of Bachelor of Medicine and Bachelor of Surgery (MBBS) and Bachelor of Dental Surgery (BDS) seats in private medical colleges and deemed universities to the highest bidder and stop the commercialisation of higher medical education; sparing students the agony of preparing for multiple examinations for admissions to these courses at various centres; and creating a national pool of candidates eligible for admission to medical colleges and enabling meritorious students to become doctors. Union Health Minister J.P. Nadda went on record saying that the Centre was in favour of NEET to bring in transparency in the system of admission to medical colleges. The exam was conducted on May 7 under strict vigilance and followed a set of rules, which included a dress code. 12 6

When the MCI notified the conduct of NEET, in 2010, institutions such as the Christian Medical College, Vellore, Tamil Nadu, and the Andhra Pradesh and Tamil Nadu governments filed several cases in various courts in the country. On the MCI’s request, all these cases were transferred to the Supreme Court. In its order dated July 18, 2013, the Supreme Court quashed the notification, saying it had “no hesitation in holding that the Medical Council of India is not empowered under the [Indian Medical Council] 1956, Act, to actually conduct the NEET”. The MCI and others filed review petitions. On April 11, 2016, a Constitution Bench allowed these review petitions, recalled the July 18, 2013, judgment and directed the matter to be heard afresh. Subsequent to this, a non-governmental organisation called Sankalp Charitable Trust filed a writ petition in the Supreme Court seeking a mandamus to direct the Centre to conduct NEET for 201617. The Supreme Court, in its orders dated April 28, 2016, and May 9, 2016, directed the Centre to conduct NEET with immediate effect. So, NEET became mandatory for admission to medical courses. After the Lok Sabha passed the Indian Medical Council (Amendment) Bill, 2016, and the Dentists

M. SR IN A T H

S T U D E N TS C O M I N G O U T after

finishing the NEET exam at a school in Tiruchi. (Amendment) Bill, 2016, on July 19, 2016, NEET became the sole national test to admit students to medical courses. Thus, NEET has barred Tamil Nadu from admitting students to MBBS and BDS courses in government-run and private medical colleges on the basis of the marks that students obtained in Plus Two school leaving examinations. Until 2006, the State had its own entrance examination, called Tamil Nadu Professional Common Entrance Examination, for admission to medical and engineering courses. In 2006, after the Dravida Munnetra Kazhagam (DMK) came to power with M. Karunanidhi as Chief Minister, the examination was scrapped. The DMK government enacted the Tamil Nadu Admission in Professional Educational Institutions Act, 2006, making admissions to undergraduate engineering and medical courses purely on the basis of marks obtained by the students in the Plus Two examination. This was done by a centralised counselling method called the single window system. The Madras High Court and the Supreme Court upheld this law. From 2007 to 2017, this was the system

that prevailed in the State, until NEET was introduced. The late Chief Minister Jayalalithaa, in a letter dated October 8, 2015, to Prime Minister Narendra Modi, set out her government’s opposition to NEET, saying: “....A large number of socially and economically backward, meritorious rural students had benefited by the State government’s decision to abolish the Common Entrance Test.” NEET would nullify these socioeconomic objectives of the State, she argued. She told Modi that her government’s consistent stand was that rural students and those from poorer socio-economic backgrounds “were unable to compete with urban, elite students in such common tests, which are designed to favour the urban elite”. The rural students “lacked the resources to enrol in training institutions and access materials available to urban students”. In another letter to Modi, dated May 24, 2016, Jayalalithaa, while advancing her earlier arguments against NEET, flagged a new issue. In providing admissions to postgraduate medical courses, the State government gave preference to those doctors who served in rural areas, with special weightage for those working in hilly and tribal areas. The State government had also successfully obtained and enforced bonds from those completing their postgraduate medical education in government medical colleges to serve the State government for a minimum period [of two years], which had helped the State to meet its specialist medical manpower in government hospitals. But the introduction of NEET would “nullify” these socio-economic objectives of the State because the regulations of a national test might not have these enabling provisions, she said. After Jayalalithaa’s death on December 5, 2016, O. Panneerselvam, who was made Chief Minister, and Edappadi K. Palaniswami, who succeeded him, echoed Jayalalithaa’s standpoint on NEET in their letters to Modi. In his speech at the third Governing Council meet12 7

ing of NITI Aayog on April 23, 2017, Palaniswami asserted: “Tamil Nadu’s admission system protects the interests of students, particularly from the weaker sections and rural areas because such students cannot compete with the urban, elite students in Common Entrance Examinations. A large number of socially and economically backward, meritorious rural students have benefited by the Tamil Nadu government’s decision to abolish the Common Entrance Examinations.” AGAINST THE INTEREST OF STUDENTS

Headmasters of schools, both serving and retired, are unanimous on two issues. They said NEET would go against the interests of students from rural areas and other disadvantaged sections, for there were no coaching centres in villages and small towns to prepare them for NEET, and rural-based students would not be able to afford the hefty fees charged by coaching centres located in faraway towns and cities. Secondly, they blamed the government for failing to introduce a challenging State Board syllabus at the Plus One and Plus Two levels on a par with the CBSE syllabus. The State Board’s Plus Two syllabus had not been changed or upgraded since 2006, they said. The textbooks had also not been changed. Besides, while the State Board Plus Two examination was rotebased, which induced students “to cram, memorise and merely reproduce”, the CBSE examination system was application-oriented. They dealt with concepts. The CBSE questions were of “top quality” and induced students “to think”, the headmasters said. All of them stressed that while the State Board syllabus for Plus Two classes was “good”, there was a dire need to “upgrade” and “update” it. T. Padmanabhan, headmaster, Pennathur Subramaniam Higher Secondary School, Chennai, said rural students would definitely suffer under NEET because “they do not have exposure or means to update their knowledge”. Besides, there were no schools in rural areas that FRONTLINE . JUNE 9, 2017

offered the CBSE syllabus. “The State Board syllabus does not support the NEET system,” Padmanabhan said. The State Board syllabus for classes 11 and 12 “has not been updated periodically”, he said. Only the names of topics in some subjects underwent a change “but the content remains the same”. For instance, he said, the content of electronics was not rich. Padmanabhan, who teaches physics at the Plus Two level, suggested that Tamil Nadu be permitted to conduct a separate examination for admission to government medical colleges in the State. “Those who want admissions in medical colleges in other parts of the country can take NEET,” he said. T.P. Janakiraman, former Headmaster, DRBCCC Higher Secondary School, Perambur, Chennai, said “NEET is not fair” because students who studied the State Board syllabus “do not have the exposure” to meet the challenges posed by NEET questions. “Some weightage could have been given to students who have not been exposed to the CBSE syllabus,” he said. There could have been reservation this year for students of State Board schools, he said. Janakiraman, 86, said NEET was “a race among the unequals” in the sense that the standard of the CBSE syllabus was much higher than that of the State Board syllabus and students from rural areas had to compete with the privileged ones from urban areas. Both Janakiraman and P.S. Subramanian, former principal, St. Mary’s Matriculation Boys’ Higher Secondary School, Perambur, said separately that the bane of the State Board examination system was that it was memory based. Janakiraman, who was also the headmaster of DRBCCC Hindu Higher Secondary School at Tiruvallur, found fault with the State Board’s examination system which entailed that no question should be asked outside the syllabus. Besides, State Board examinations had “blueprints” for question papers in various subjects, Janakiraman said. The question paper setters were told “not to deviate” from the blueFRONTLINE . JUNE 9, 2017

prints and no question should be asked outside of the textbook. “So if we upgrade our syllabus and change the examination pattern, our students will do well,” he said. The Andhra Pradesh State Board has been constantly revising its syllabus and the majority of students who join the Indian Institutes of Technology [IITs] were from Andhra Pradesh. “We should definitely revise our syllabus,” Janakiraman said. Subramanian was clear that NEET was loaded against ruralbased students. “There are only a few coaching centres even in cities. There are none in rural areas. Where there are a lot of private schools, coaching centres may come up,” he said. But students from poor families would not be able to pay the exorbitant fees that these coaching institutions would charge. Subramanian, therefore, suggested that headmasters and senior teachers themselves take special classes and coach the students after 4 p.m. Teachers had to equip themselves for this. Students should prepare themselves to write NEET. “In NEET and CBSE examinations, the questions will not be direct. They will be application- and mathematics-oriented,” he said. He pointed out how the State Board students found the biology questions in NEET easy but said the questions in the physics and chemistry papers were tough because they were application-oriented. Fr L. Gilbert, headmaster, St. Bede’s Anglo-Indian Higher Secondary School, Chennai, also contended that rural students did not have enough opportunities to tackle NEET. “Some of the students feel that the State Board syllabus is not adequate to prepare for NEET,” he said. It had “only a few basics” in different subjects. The students themselves had to “build up” on those basics. “Actually, [the State Board Plus Two syllabus offered] no chance for an in-depth study” of the subjects, Fr Gilbert said. The general opinion and “the talk of the town” was that State Board students would not be able to crack NEET. State Education Minister K.A. 12 8

Sengottaiyan has promised to revamp the Plus Two syllabus to meet NEET requirements. P.B. Prince Gajendra Babu, general secretary of the State Platform for Common School System-Tamil Nadu (SPCSS-TN), attacked NEET on other grounds. He alleged that “the purpose of NEET is to satisfy GATS” [General Agreement on Trade in Services] and he was sure that NEET would destroy “the strongly built” public health system in Tamil Nadu. The State, from 2007, had been admitting students under the single window system to MBBS and BDS courses on the basis of the marks they had scored in the higher secondary examination and this had helped staff the primary health centres, taluk and district hospitals, and so on, with qualified medical doctors, he said. “So, for five years [two plus three years], a doctor is made available for government service. Most of the villages have PHCs and there are government doctors working there. Tamil Nadu is ranked high in public health care in various indices. India has given an offer letter to GATS that it will open up market access to education and health sectors,” Prince Gajendra Babu said. In GATS’ assessment, if private medical colleges and deemed universities had their own system of admission, rules and regulations in various States, it would be a hindrance to the market, he claimed. “So you bring in an all-India benchmark [like NEET]. Once you bring in such a benchmark, students can be admitted to any medical college in India and it will provide market access to the health sector.... That is the purpose of NEET. It is to satisfy GATS,” Prince Gajendra Babu argued. What is puzzling is that the two Bills passed by the State Assembly unanimously on January 31, 2017, seeking permanent exemption from NEET never made it to the President’s office for his assent. They were lying with the Union Home Ministry for three months. This fact came to light in a reply sent by the President’s Secretariat to a letter sent by T.K. Rangarajan, Communist Party of In-

Not so neat THOUSANDS of candidates in the four southern States endured a traumatic experience on May 7 when they appeared for NEET. If preparing for NEET itself was a tense experience, the frisking and the strict dress code that was enforced at the examination centres left the students and parents shocked. Girl students were asked to remove their earrings and other ornaments and leave their high-heeled shoes behind. At virtually every centre, security personnel shone torchlights into the ears of the candidates to detect hidden devices. What caught the national attention was the incident at Kunhimangalam in Kannur, Kerala, where a girl student was asked to remove her top inner wear when the metal detector beeped. S.S. Rajagopalan, the veteran educational activist, said: “Despite objections from several quarters, NEET has been conducted throughout the country. “The humiliation inflicted on students, especially girls, do not bring any credit to the administrators. NEET consists of 180 multiple-choice questions to be answered in just 180 minutes. Each question gives just a minute to respond. If reading and understanding the question takes half a minute, the response time is under 30 seconds, leaving no time for any malpractice. Body search was unwarranted and unwanted.” Rajagopalan added: “NEET was advertised as one examination for the whole country. But it is now known that several, different question papers were in use.” T.S. Subramanian

dia (Marxist) member of the Rajya Sabha, to the President on April 17. Rangarajan had forwarded a copy of the memorandum sent by Prince Gajendra Babu on the two Bills to the President. While the Tamil Nadu Admission to MBBS and BDS Courses Act, 2017, aimed at continuing admission on the basis of marks obtained in the higher secondary examination, the Tamil Nadu Admission to Postgraduate Courses in Medicine and Dentistry Act, 2017, aimed at continuing the extant system of admission to postgradaute courses in medicine and dentistry in the State. In his letter, Rangarajan pointed out that Tamil Nadu had the largest number of government-run medical colleges in the country and these 24 colleges charged a nominal fee, enabling even poor students to pursue medical education. The President’s Secretariat, in its reply to Rangarajan on April 20, said his letter had been forwarded to the Union Home Ministry for appropriate attention “as no such Bills/ordinances have been received so far for the assent of the President in this Secretariat”. Prince Gajendra Babu said: “The Centre, sitting on the Bills for the past three months, shows its disrespect to the Constitution.” Why the two Bills were never forwarded to the President’s Secretariat is a mystery. Justice D. Paranthaman, retired judge of the Madras High Court, called it “total deliberate inaction on the part of the Central government”. NEET was not concerned about the socially or educationally backward classes and it was concerned only about merit, Prince Gajendra Babu, said. “The affluent will completely occupy the medical colleges,” he alleged. On April 14, 2017, Nadda said the State government could consider giving reservation to rural students to allay their concerns. Tamil Nadu was well within its rights to provide special consideration to students from rural areas, he stressed. The fee structure for private and deemed universities would be decided by the State-level committee 12 9

headed by judges. He made it clear on July 19, 2016, that NEET would not disturb State quota. The State Governments could fill 85 per cent of the MBBS and BDS seats. “The all-India quota of 15 per cent set by the Supreme Court will remain as it is. The rest of the 85 per cent seats will remain with the States. Under NEET, we will write out the names of successful candidates, their domicile, rank and percentage and hand it over to the State, which can allot seats according to caste, creed and other aspects,” Nadda told the Lok Sabha. JUDGE’S CONCERN

But not everybody seems to be against NEET. On March 15, 2017, Justice N. Kirubakaran of the Madras High Court asked the State government: “Are you not ashamed to seek exemption from NEET?” The judge raised the question while hearing two petitions seeking directions to the State government to implement the Postgraduate Medical Education Regulations, 2000, and appropriate 50 per cent of the seats from private medical colleges so that they could be allotted to meritorious students who qualified for NEET 2017 through counselling. When the Additional Government Pleader, Rajagopalan, replied that the State Assembly had already passed a Bill seeking permanent exemption from NEET and that it was awaiting the President’s assent, Justice Kirubakaran wondered on what basis the exemption was sought. “Do you underestimate the ability of our students and the standard of education in Tamil Nadu? If it is so, can we conclude that Tamil Nadu has not provided standard education to its students?” he asked. Justice Kirubakaran highlighted another important issue pertaining to NEET when he said: “It is argued that NEET would affect the interests of rural students in pursuing medical courses, but I believe that other States who are not opposing NEET also have villages and rural students.” (The Hindu, Chennai edition, March 16, 2017) � FRONTLINE . JUNE 9, 2017

LET TE RS (“Art of defiance”, May 26). Using his access to the powers that be, Sri Sri Ravi Shankar was able to conduct the World Cultural Festival on the Yamuna floodplains despite objections from environmentalists and others. It was a private function, and hefty sums were charged for participation. The NGT is right in levying a hefty fine on AOL. In future, the NGT should forbid such functions in ecosensitive zones. India cannot afford to be careless with its natural resources.

Kashmir

H.N. RAMAKRISHNA NOVI, MICHIGAN, U.S.

S.S. Kannan KASHMIR’S hatred for the rulers at both the Centre and the State is widespread (Cover Story, May 26). There is a significant trust deficit in the new generation, which believes that the Central government is influenced by Hindutva. The security forces have had to bear the brunt of the public’s anger. The immediate need is to restore people’s trust in the administration so that the security forces can focus their attention on the external threat from Pakistan-aided terrorists. The government cannot ensure peace in the Valley through force but has to walk the extra mile to talk to dissidents and all the stakeholders. Only then can it bring the people of Kashmir back to the mainstream political life of India. N.C. SREEDHARAN KANNUR, KERALA

Kazi Nazrul Islam ONE cannot but regret the fact that being “misappropriated” is the fate of most icons (“Yet another falsity”, May 26). Incidentally, the Bangladesh government offers a handy instance of such “misappropriation”. It could not, or rather did not, rise above petty religious narrowness and arranged the burial of Kazi Nazrul Islam in the most indecent haste. In the fitness of things, his mortal remains should have been handed over to India for burial at his birthplace in Churulia, Paschim Bardhaman. RANJITKUMAR GHOSE HOOGHLY, WEST BENGAL

Art of Living IT is unfortunate that the AOL foundation is engaged in a slugfest with the NGT FRONTLINE . JUNE 9, 2017

THANK you for the article “A life of service” (May 26) with reference to my brother. I would like to clarify a point: Vice Chancellor S. Radhakrishnan of Benaras Hindu University did not allow the Army to enter the university campus. He only advised students to seek shelter outside as he could not keep the Army from entering the campus for long. S.S. RAJAGOPALAN CHENNAI

Lawlessness WHILE on the one hand Aadhaar has become the numero uno identity card for citizens, without which they will be denied the benefits and services offered by the government, on the other hand cow vigilantes and animal rights activities are preventing the cattle trade, dairy farming and even the legitimate slaughterhouse business (“Tricks of a trade”, May 26). Poor people in the minority community suffer when their livelihood is adversely affected in this changed atmosphere. The government should do something to change this situation. K.P. RAJAN MUMBAI

Maoist attack THE cold-blooded massacre of CRPF personnel in Chhattisgarh can be construed to be part of the Maoists’ nefarious strategy to thwart the government’s developmental initiatives and derail law and order (“Deadly attack, May 26). The incident exposed the Maoists’ scant regard for human life and is testimony to their ability to strike at will. While the growth of left-wing extremism over the 13 0

years can be attributed to the skewed policies of successive governments— which have led to poverty, unemployment and uneven development—the Maoists’ use of violence as a means to redress their grievances is unacceptable. One is baffled by the conspicuous silence maintained by activists who raise a hue and cry at the drop of a hat for the supposed human rights violations perpetrated by the armed forces in States such as Kashmir and Assam. The government’s top priority should be to hasten developmental initiatives and address the bread-and-butter issues of the the poor and the marginalised sections of society who live in the “red corridor”. B. SURESH KUMAR COIMBATORE, TAMIL NADU

THE Maoist movement is growing stronger and politicians seem to be at a loss in dealing with it. Further, the frequent attacks in Chhattisgarh has given the impression that the State government is helpless, which has emboldened the Maoists. Home Minister Rajnath Singh’s stock statement in reference to the attack would only make sense if the Centre in coordination with the State government first establishes the rule of law in Maoist-controlled areas and then addressed people’s legitimate grievances in a concerted manner. K.R. SRINVASAN SECUNDERABAD, TELANGANA

Communalism THE article “Loot and arson” (April 28) told a tragic tale of shame, unbefitting for a nation that boasts a secular Constitution and an ancient culture of tolerance and brotherhood. Such communal destruction and looting is sheer lawlessness. The perpetrators of such crimes get off scot-free and are appreciated as patriots and makers of a Hindu Rashtra by those who follow an exclusionist theory of hatred against minorities. The state must protect everyone equally. M.N. BHARTIYA ALTO PORVORIM, GOA

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