July 2015 Archives

There is a Precedent for Pranab Mukherjee to Grant Clemency to Yakub Memon

This is the text of the letter Gopalkrishna Gandhi, ex-West Bengal Governor and former Secretary to President K.R. Narayanan (1997-2002), has sent to President Pranab Mukherjee today, July 29, 2015:

At this point in time, when the nation is paying solemn tribute to former President (Dr.) APJ Abdul Kalam whose conscientious opposition to the death penalty is widely known I urge you to reconsider the rejection of Yakub Memon’s mercy plea.

In fact, President Kalam had, as recently as earlier this month, expressed his opposition to the concept of capital punishment. He expressed this opinion to the Law Commission, which has been holding deliberations regarding the desirability and efficacy of the death penalty.

It would, I suggest, be a fitting tribute to the humane legacy of President Kalam to grant Yakub Memon his life, for which course there are also other compelling reasons.

It was in 1997 that Dr. Shankar Dayal Sharma the President of India, upon an appeal by Mahashweta Devi and other eminent citizens granted reprieve to two boys from Andhra Pradesh, though their own mercy petitions had earlier been rejected by the President’s office.

The reprieve in that case came virtually on the eve of their scheduled execution, and established the supreme constituent power of the President of India under Article 73 of the Constitution, to reverse his earlier decision, and heed voices of conscience to commute a death sentence.

Yakub Memon submitted to Indian jurisdiction, when he may quite easily have evaded justice. A respected officer of Indian intelligence has spoken of his cooperation with the law, thus rendering the death penalty completely inappropriate in his case. Former Supreme Court judges have openly said that his execution would be unjust.

Public protestations of this nature and from such quarters are rare. They must give us pause, for whether or not there was a secret understanding with Memon that is being disregarded, a doubt would irretrievably be cast on India’s integrity of process if in the face of this, Yakub Memon is executed.

As many as 300 persons from all walks of life including former judges, lawyers, politicians and others have appealed to Your Excellency.

The head of the Indian republic, as President K R Narayanan memorably said, is guided by the prerogatives the Constitution gives him, and the privilege of intervention which his vast moral influence confers on him . I understand that this is also the broad position in law as enunciated in the Kehar Singh judgment of the Constitution Bench of the Supreme Court.

Less than a fortnight ago, the Law Commission of India held a day long consultation on Capital Punishment. I cannot say what conclusions the Law Commission will draw from these deliberations. I can, however, suggest that this, and other cases where mercy is sought will be understood more fully once the deliberations of the Commission are received.

I am sharing this letter with the press as this is a matter of urgent, general and public interest.

Listen: The Journey to Pluto Began Because Scientists Disagreed With a Postage Stamp

The story of a 29-cent US Postal Service stamp that inspired scientists to undertake the journey to Pluto

The 29-cent Pluto ‘Not Yet Explored’ U.S. stamp. Source: USPS/collectSPACE

On July 15, 2015 (IST), NASA’s New Horizons prove flew past Pluto, becoming the first spacecraft to do so. Much has been said about this nine-year, 4.8-billion km journey. However, this is the little-known story of the early years of Pluto’s exploration plan; the story of an innocuous US postage stamp that branded Pluto as “Not Yet Explored”, and how it fired up scientists’ desire to reach the dwarf planet.

This is the latest episode of The Intersection, a fortnightly podcast on Audiomatic. For more such podcasts visit audiomatic.in.

Not Straining the Quality of Mercy

The Supreme Court must heed the voices calling for a halt to the impending execution of Yakub Memon.

The Supreme Court must heed the voices calling for a halt to the impending execution of Yakub Memon

File photo of Yakub Memon. Credit: PTI

Yakub Memon was found guilty by a TADA court in Bombay of several acts in connection with the Bombay blasts of 1993. Along with 10 others, he was given the sentence of death. In appeal, the Supreme Court commuted the death sentence of the others to life imprisonment; the sentence on Yakub was confirmed on July 30, 2013. A review petition was dismissed by the Supreme Court on April 9, 2014. A curative petition met the same fate on July 21, 2015. In between, on April 11, 2014, his petition for mercy was rejected by the President of India.

Despite these legal processes having been followed, why is there still an air of doubt and a fear of miscarriage of justice in the minds of so many, including several eminent persons?

The foremost reason now is the disclosure of B. Raman’s August 2007 letter to rediff.com, for which he was a columnist. Raman was head of the Counter-Terrorism Division at the Research and Analysis Wing (RAW) when Yakub was brought back to India in 1994. Raman played a key role in bringing the fugitive to India and interrogating him. According to Raman, Yakub was, in fact, informally picked up in Nepal but his formal arrest was shown as being made in Delhi; Yakub had apparently gone to Kathmandu to seek advice on whether he and other members of his family should return to India and surrender to the Indian police. More importantly, Raman says that Yakub handed over a veritable treasure trove of information regarding the activities of those involved in planning and executing the operation. This included his own brother Tiger Memon and the Pakistani government. Without this information, India could not have made out a strong case against Islamabad, Dawood Ibrahim and Tiger Memon.

Raman set his views down in writing shortly after the TADA judge handed out the death sentence. Raman stated that the mitigating factors and circumstances of Yakub cooperating with the investigating agencies had not been highlighted by the prosecution before the TADA court, and that these should save him from the death penalty. It is also noteworthy that Yakub’s wife also came back to India along with their newly born child, as did other members of his family.

In the aftermath of his conviction, Yakub, a Chartered Accountant by profession, has been a model of a reformed person. He has secured an MA in English Literature in 2013 and an MA in Political Science in 2014. His fellow inmates speak highly of him, and say that he helped them in preparing their petitions; jail authorities say that he is a well liked inmate who worked as a language instructor. These aspects of subsequent conduct deserved to be weighed in the scales for deciding whether to sustain the death penalty.

Some other factors cause unease; in recent statements the government’s prosecutor, Ujjwal Nigam has shown a propensity to be seen as someone who goes all out to secure the maximum punishment. It is disturbing to think that the facts of how Yakub came to be in custody and the considerable assistance he rendered to the government may not have been given their due prominence. The Maharashtra government has now revealed a certain state of mind when it fixed as the date of his hanging July 30, which is Yakub’s birthday. This is sheer cruelty. Telling a man he is to die on the date he was born is like a negation of one’s life. It is also cruelty that when his family remembers his birthday, they must also overlay it automatically with his death.

One more aspect deserves mentioning. Yakub’s curative petition was dismissed on July 21, 2015. The next day, he filed a petition for clemency before the Governor of Maharashtra (the earlier petition for mercy dismissed by the President had been filed by Yakub’s brother). On the following day, the Chief Justice of India, hearing an unrelated matter, wondered aloud in court how this petition to the Governor could be entertained; it would, he said, cause embarrassment to the President of India who had rejected the mercy petition. With respect, perhaps his Lordship should have refrained from making this remark. A man on death row will naturally petition any authority, even if the chance of redress is miniscule. Whatever infinitesimal chance Yakub had of the Governor considering his case may have receded with that authority paying heed to the words of the Chief Justice.

Yakub may well deserve the finding of guilt. The courts may well have rendered the correct judgments in the different cases and petitions, with the material available to them. However, the taking of a life is a matter which also concerns society. In his celebrated poem, which ends with the words “send not to know, for whom the bell tolls, it tolls for thee”, John Donne also said “each man’s death diminishes me”. If today a section of the people in India feel that Yakub’s execution diminishes them, and diminishes the country, their appeal must be heeded.

Sriram Panchu is a Senior Advocate at the Madras High Court.

Why the US is Wrong to Always Push Liberalisation in Africa

Unhindered by any larger scheme to ‘open up’ African markets, China has shown itself to be a more useful partner for countries looking to create domestic productive capacity

Barack Obama greets audience members after a speech in Nairobi, Kenya, on Monday. Credit: Peter Souza, White House

Many of the commentators on President Barack Obama’s visit to Kenya and Ethiopia have tended to overstate the degree to which the trip marks a significant shift in US economic policy in Africa. While the gesture certainly signals a transformation in the administration’s perception of the importance of strengthening US trade ties in Africa, the overarching economic strategy it now seeks to employ is far from novel.

In an effort to counteract growing criticisms that the US continues to lag far behind Africa’s leading trading partners, the Obama administration has rolled out several important recent initiatives to increase the US’s presence on the continent. The Power Africa initiative launched in 2013, for example, is off to a good start, aiming to bring electricity to 60 million African households and businesses. It has helped provide partial financing and technical assistance to existing national plans to develop one of the continent’s largest wind farms in Kenya, natural gas power plants in Nigeria and Ghana, and a geothermal plant in Ethiopia.

Initiatives like Power Africa are certainly a step in the right direction, demonstrating that the US’s economic strategy in Africa has shifted from the outdated donor-recipient model towards one based on local initiative and mutual partnership. But a closer look reveals that the programme, with its combination of policy reform nudges and spurts of private capital investment, differs little from the liberalising agenda – a strategy intended to open up local markets and scale down national governance structures – that has dominated American policy in Africa for decades.

Stunted by foreign competition

Irrespective of what little employment opportunities they might create and the financing they might provide, initiatives like Power Africa are unable to tackle the overarching obstacles to development in Africa – weak local industry and lack of diversification. Indeed, these two issues are intimately related, as the growth of ‘stepping-stone’ sectors such as petty manufacturing – famously the catalyst for take-off in many south east Asian economies – combined with good governance, can often support the growth of other important sectors, such as banking. When the growth of such industries is stunted by foreign competition, the amount of capital available within the country for financing the diversification of the economy slowly dries up, as foreign stake-holders usually have little interest in the types of long-term projects necessary to bring about such diversification.

Coupled with an overall economic policy that works to significantly further weaken local industries by opening them up to the global economy before they are ready to withstand international competition, initiatives like Power Africa ultimately make it much more difficult for local actors to contribute to the diversification and strengthening of their local economies. In short, so long as they are embedded within the background of this larger overall thrust of US economic policy in Africa, initiatives like Power Africa, particularly in the face of more favourable Chinese alternatives, will soon fade into irrelevance.

Indeed, in contrast to the mainstream view in the US, there is something to be learned from the Chinese approach to development in certain countries. To say the least, China’s role in Africa has been controversial – and critics are right to point out that Chinese businesses do often negotiate unbalanced deals, unfairly maximising their profits at the detriment of local communities, whenever they have been able to get away with it. But, on the other hand, commentators have overwhelmingly failed to acknowledge that in those countries with a strong enough government to leverage a favourable deal, Chinese investors are playing a positive role in the development of industry, infrastructure, and importantly, human capital.

China’s role

For example, China’s involvement in Ethiopia, currently the fastest growing economy in Africa, is particularly intensive. Chinese companies have played crucial roles in large-scale investment projects such as the building of the new African Union headquarters, the new Addis Ababa Metro rail-system, and the national telecom network. In addition, Chinese businesses are investing heavily in local industries, perhaps best exemplified by the Huajian shoe factory on the outskirts of the Ethiopian capital, which employs more than three thousand workers, out of which an astonishing 96% are locals.

Unhindered by any larger scheme to ‘open up’ the Ethiopian market, and governed by a mutually beneficial Bilateral Investment Treaty, Chinese economic policy in Ethiopia, and the enormous influx of capital it has engendered, has been an enormous help in tackling precisely the aforementioned hurdles of weak local industries and an undiversified economy.

Of course, not all locals view Chinese investment, and the associated growing pains of development, in a positive light. However, many of the misconceptions about Chinese firms could be addressed through better public relations, transparency, and safeguards against corruption. In short, China is not an angel nor a demon. Where local governance is weak, China takes advantage (as in Angola). But in the case of Kenya, and perhaps more so Ethiopia, where governance is fairly strong, China is undoubtedly party to two mutually beneficial relationships.

Moreover, China’s role in strengthening countries like Ethiopia, and laying the foundation for a healthy long-term economic and political relationship, will only become increasingly lucrative as the latter becomes more and more prosperous, and thus more inclined to slowly open up the economy as it finds the chances of its industries being able to compete internationally are at an adequate level.

As implied by the above, liberalisation is by no means inherently ‘bad.’ To the contrary, in developed nations with strong local industries capable of competing internationally, it can greatly help sharpen the efficiency of the local economy, forcing it to focus on what it does well and shed what others do better. The problem with the current US economic policy in Africa, however, is that it is pushing the cart before the horse, advocating the liberalisation of economies that are not yet internally stable, let alone capable of competing internationally. In other words, liberalisation ought to be seen as the outcome of development, and not its catalyst.

Accordingly, the restructuring of US economic policy around this principle would be of much greater value to Kenya, Ethiopia and the African continent at large than a presidential visit ever could. If the US continues to uphold liberalisation as a one-size-fits-all solution to development, it will soon find itself outcompeted and largely irrelevant as a major economic partner in Africa – a huge missed opportunity for Americans and Africans alike.

Meena Oberdick is a senior pre-law student at Columbia University. She has a year of professional experience working in the field of human rights law.

Abel Araya is a senior pre-law student at Columbia University. Born in Ethiopia and raised in Sweden, Abel has a keen interest in contributing towards the development of his home country.

My Memories of APJ Abdul Kalam

‘We had tried to fix him up a couple of times with girls suggested by friends. But he always chickened out in the last minute.’

The young APJ Abdul Kalam at ISRO in the 1960s. Credit: PIB

I met Kalam for the first time in July 1970 when I arrived in Trivandrum soon after I got married. I had heard a lot about him, of course, as he and my husband, Aravamudan (known throughout ISRO as Dan) were friends since 1963. They also lived next door to each other in a lodge in Trivandrum. Dan and he belonged to a select group of young scientists who had been sent to NASA by Vikram Sarabhai to be trained in space technology. Dan had stayed for a year. Kalam had come back a little earlier. But I had heard all about their exploits on Wallops Island in Washington.

Soon I became a part of Dan’s group of bachelor friends from the Indra Bhavan Lodge in Trivandrum. Kalam was the one who organised a welcome dinner for me at Mascot Hotel and when I decided to resume my journalistic writing he was the one who lent me his personal portable typewriter which he had brought back with him from Washington.

Dan and Kalam would share with me their stories of bachelorhood in Trivandrum where there was nowhere to go in the evening. They would wander about the streets of the city, they said, and for lack of a better name they dubbed it their Sanitary Inspection rounds! Many, many years later, Kalam became President of India. When we called to congratulate him, I asked whether he had ever imagined during those “sanitary inspection” days that he would become the President. He laughed and said “Not in my wildest dreams! I would have laughed if anyone had told me that!”

Those early days were relatively carefree. The work at Thumba had yet to pick up pace and Dan and I had not started a family. We would go in the evenings to the Rocket Recreation Club which Dan and Kalam and some other pioneering young men had set up in an old colonial bungalow called Ingeldene. There we would play shuttle and table tennis and take “bonji” bets …bonji being the nickname for lime juice in Trivandrum. Kalam would turn up in our house on many Sundays to have home-made dosa or rasam and his very favourite potato fry made South Indian style. Since he was a vegetarian too, he really loved the food in our house. Later we would sit and talk about books…especially his favourite Atlas Shrugged.

Work picked up, he moved out of ISRO, we got involved in our own lives and slowly the bonds loosened. We built our house in a colony with other colleagues. He still lived in Indra Bhavan. We had tried to fix him up a couple of times with girls suggested by friends. But he always chickened out in the last minute. In the mid 1980s he moved out first to Bangalore, then Hyderabad and finally Delhi as the Defence Advisor. We met him occasionally. Dan moved on to become Director of the Srihraikota Range and we would spend time with Kalam when he visited.

And then of course he became President. Soon after that we visited him at Rashtrapati Bhavan. I was researching my book Disappearing Daughters on sex selective abortion. He was so excited by the idea that he immediately offered to write a foreword. Not only that. When the book finally came out, he released it at Rashtrapati Bhavan and also got us to stay with him as his guests for a week.

Those were wonderful days again when we relived our Trivandrum youth while walking in the Rose Garden or sitting next to the musical fountain sipping the “bonji” he had got specially made. He even served fried potatoes in a small dinner he hosted for us and proudly told me he had taught the cooks to make it the way he liked it.

He was a simple man. A genuine person, who never changed his lifestyle even in the Rashtrapati Bhavan. Everyone could relate to him at a very personal level and therein lay his popularity and greatness.

My last glimpse of him was at the Jaipur Literary Festival where, thanks to his rock star image I could not even get past the throngs of young people to say hello to him. Later on the phone in Delhi he sounded tired but happy. The young he said were the ones who gave him energy to go on.

Sorry, Mr. Attorney-General, We Do Actually Have a Constitutional Right to Privacy

The right to privacy flows from a structural reading of the Fundamental Rights chapter, and has been established as an integral part of constitutional jurisprudence over the last 30 years.

The right to privacy flows from a structural reading of the Constitution’s Fundamental Rights chapter, and has been an integral part of our jurisprudence over the last 30 years

Headgear and Underwear. Photograph by Meena Kadri, CC 2.0

On Thursday, while defending the government’s controversial Unique Identification (UID) program, the Attorney-General of India informed a bench of the Supreme Court that Indian citizens have no constitutional right to privacy.

The Attorney-General’s argument was a response to the claim of the UID’s opponents, which is that it provides insufficient safeguards to protect individual privacy. Its ramifications, however, are much broader. Privacy concerns are central to a new DNA profiling bill that will soon be tabled before Parliament. Additionally, in an age of mass surveillance programs such as the Central Monitoring System and the Netra, which exist in a shadowy, extra-legal realm sans parliamentary debate or statutory sanction, the questions of whether and to what extent Indians have a constitutional right to privacy are critical and urgent.

If the Attorney-General is right, then citizens have no independent claim against intrusive surveillance, data mining, or DNA profiling but must depend upon Parliament to pass a long-stalled Privacy Bill into law. If the Attorney-General is wrong, however, then from the interception of my emails or the storage of my DNA, the government is constrained by the Constitution at every step, whether it is an executive action, or a parliamentary law.

Written and unwritten constitutions

At first blush, the Attorney-General’s argument might sound intuitively plausible. A quick glance at the Fundamental Rights chapter of the Constitution reveals no mention of the word “privacy”, or anything that looks like a “right to privacy”.

Constitutions, however, are more than just literal readings of texts whose meanings must be deemed to have been fixed for all time at the moment of their creation. The limited foresight of the framers, who were men and women of their own time, and indeed, the limits of language itself, require constitutions to be interpreted so that they remain meaningful across varying historical, political and social contexts. For this reason, the American constitutional scholar, Akhil Amar, has famously posited that there are two constitutions that exist beside each other: the “written constitution”, which is the physical document that we see, touch or read – and the “unwritten constitution”, which is constitutional law not contained in the text, but which arises out of the structure and relationships between different parts of the constitution, and the interpretation that judges have given to the constitution over the years, as they have struggled to apply it to their own time and place.

If we think a little deeply about our own Constitution, we will see that without a strong right to privacy, many of the rights guaranteed by the written Constitution will be entirely meaningless. The rights to freedom of expression, freedom of association, freedom of movement, personal liberty, and the freedom of conscience, all need the breathing space of privacy to survive and flourish. Overarching surveillance not only breeds conformity, but chills speech and association, as people increasingly begin to self-censor and dissociate themselves from politically or socially unpopular relationships. Privacy is that part of the unwritten constitution that structures and makes meaningful the great guarantees of our written Constitution, and is therefore as much a right as the latter.

Thirty years of consistent jurisprudence

The Indian Supreme Court case that established a constitutional right to privacy proceeded along this line of reasoning. In Gobind vs Madhya Pradesh, the petitioner challenged certain police regulations under cover of which the local police were constantly surveilling his house, paying him domiciliary visits, and forcing him to report every time he exited or entered his village. While reading down the regulations, the Supreme Court observed that “rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists.” In other words, the court located privacy as implicit in the concept of “ordered liberty”, holding that it was a necessary pre-requisite for effective enjoyment of all that was guaranteed to the individual by the Fundamental Rights chapter of the Constitution.

In the 30 years since Gobind was decided, the Supreme Court has developed a rich and complex jurisprudence around the right to privacy, and pressed it into service in some of the most important civil rights cases of the last decades. The right to privacy has been invoked to limit state surveillance, curtail intrusion into personal details such as bank data, and hold unconstitutional invasive interrogation techniques such as narco-analysis. The court has made it clear that if it wishes to infringe the right to privacy, the state must demonstrate a compelling interest, and must also show that its policy is “narrowly tailored” – i.e., that it restricts our rights only to the extent necessary to serve its goal.

Two ideas of fundamental rights

What then was the basis of the Attorney-General’s claim, apart from a crudely literal reading of the Constitution? He relied upon two cases: M.P. Sharma vs Satish Chandra, decided by the Supreme Court in 1954, and Kharak Singh vs State of UP, decided in 1962. In M.P. Sharma, which was a case about the right against self-incrimination (contained in Article 20(3) of the Constitution), the Supreme Court observed that because the Indian Constitution had no provision analogous to the American Fourth Amendment, which prohibited unreasonable searches or seizures, a right to privacy could not be read into Article 20(3). In Kharak Singh, where the facts were remarkably similar to Gobind, the court noted that because there was no guaranteed right to privacy, surveillance of a person’s movements could not be said to be an unconstitutional violation of his freedom of movement under Article 19(1)(d) of the Constitution. Since both M.P. Sharma and Kharak Singh had a “higher bench strength” (i.e., more judges) than Gobind, and therefore bound the latter, the Attorney-General argued that at best, the position of law is contradictory, and must be resolved afresh by a new bench of the Supreme Court that has enough judges to either affirm or overturn the judgments in M.P. Sharma and Kharak Singh.

However, as senior lawyers Shyam Divan and Gopal Subramaniam pointed out in response, M.P. Sharma and Kharak Singh were decided in an age where the Supreme Court held a very different view of fundamental rights than it does now. In the 1950s and 1960s, the Supreme Court believed that every right was separate and isolated from each other, with its own unique content. There could be no overlap, for instance, between the Article 19(1)(d) right to freedom of movement, and the Article 21 right to personal liberty. When a legal provision was challenged, the Supreme Court would first examine which right was implicated most closely, and then decide whether it was violated or not.

But in 1970, in the Bank Nationalisation Case, an 11-judge bench of the Supreme Court abandoned this hermetic view of fundamental rights, holding fundamental rights were not mutually exclusive. This position was affirmed in the famous Maneka Gandhi Case, where the court observed that Article 14 (equality), 19 (fundamental freedoms) and 21 (life and personal liberty) were all interrelated, and that the understanding of one could hardly be complete without reference to the others. This was the position when Gobind came up before the Supreme Court in 1986.

We can now see why the Attorney-General’s reliance upon M.P. Sharma and Kharak Singh is misplaced. The right to privacy, by its very nature, is not found in one specific provision (although the Supreme Court has “read it into” Article 21’s right to personal liberty), but arises out of the structure of the Fundamental Rights chapter. The structural reading of fundamental rights was only inaugurated by the court in 1970, long after the decisions in M.P. Sharma and Kharak Singh. In fact, in Kharak Singh, after observing that the freedom of movement was not hampered by surveillance, the court then noted that it was “not necessary” for it to consider the petitioner’s Article 21 claim. This iron-clad separation of the freedom of movement (Article 19(1)(d)) and personal liberty (Article 21) was abandoned by the court in 1970, and with it, the very basis of Kharak Singh.

A right to Privacy

There is, in conclusion, no warrant for the Attorney-General’s argument that Indian citizens have no right to privacy. The right to privacy flows from a structural reading of the Fundamental Rights chapter, and has been established as an integral part of constitutional jurisprudence over the last 30 years. It is essential to any meaningful enjoyment of the expressly guaranteed rights in the Constitution. And the cases relied upon by the Attorney-General for his argument cleave to a philosophy of rights that the Supreme Court abandoned 45 years ago.

Gautam Bhatia is a Delhi-based lawyer and legal academic.

Centre Bypasses Law to Restart Work on Polavaram Project

Chhattisgarh and Odisha were kept in the dark, statutory public hearings weren’t held, and clearances were never sought in the two states

Union Minister Prakash Javadekar. Source: YouTube Screengrab

Without completing the statutory public hearings in Odisha and Chhattisgarh, Environment, Forests and Climate Change Minister Prakash Javadekar has done away with a stop-work order against the Polavaram dam, allowing construction work to resume.

He did so at the personal request of Andhra Pradesh Chief Minister Chandrababu Naidu, an ally of the Bharatiya Janata Party (BJP), and without informing Odisha and Chhattisgarh. Also, the orders of the environment ministry have not been put in the public domain.

The project is expected to displace about 200,000 and affect 300 villages, according to the 2010 environmental clearance order which uses data of 2001 population of these villages. The population over the decade and a half has risen considerably. It is to irrigate about 300,000 ha of agricultural land, store 550 million cubic metres of water and generate 960 Mw of power.

The project is to be built on the Godavari in Andhra Pradesh. But the water is expected to inundate many tribal villages in Odisha and Chhattisgarh, too. Construction has to be carried out for the project in these states, too.

A July 3 letter by Javadekar to Naidu, reviewed by Business Standard, reads: “I have your letter dated April 25 regarding continuation of works of the Indira Sagar Polavaram project in Andhra Pradesh. I have got the matter examined in my ministry… with the anticipation that the pending public hearing will be resolved through discussions and persistent engagement with Odisha and Chhattisgarh, my ministry has taken the decision to keep the ‘stop-work order’ in abeyance for a period of a year. A copy of the office memorandum in this regard is enclosed for your information.”

The letter attaches executive orders from joint secretary Biswanath Sinha, dated June 23. It says, “This ministry has decided to keep the stop-work order in abeyance for a period of a year.” It conceded public hearings hadn’t been carried out in the two states and that both had approached the Supreme Court against the project and the verdicts were pending. The order is marked to principal secretary (irrigation) in the Andhra Pradesh government.

Baijendra Kumar, principal secretary to the Chhattisgarh chief minister, told Business Standard, “We have not been informed of this order. We have filed a plea in the Supreme Court against the project. Mandatory public hearings have not been conducted in the state. Sometimes, they say four villages in our state will be submerged and sometimes they say 40. How can we know the exact situation till studies are done and public hearings are carried out in our state as well? We are surprised how the Centre keeps permitting work be carried out like this. The project has been almost completed like this, illegally.”

Pradeep Kumar Jena, Odisha’s water resources secretary, confirmed the state hadn’t been informed of the decision, though the Centre was aware the state had taken strong objections to the project.

While Chhattisgarh has a BJP government, headed by Chief Minister Raman Singh, Odisha has a Biju Janata Dal government, under Chief Minister Naveen Patnaik.

A detailed questionnaire sent to Javadekar did not elicit a response till the time of going to print.

Oddly, the executive order from his ministry reads, “During the first three-six months of this period of one year, the government of Andhra Pradesh shall ensure public hearings are conducted in the states of Chhattisgarh and Odisha and submit the outcome of the public hearings to the environment ministry.” This is despite the fact that public hearings in the two states cannot be organised by the Andhra Pradesh government; these have to be carried out by the respective state government, through the state pollution control board concerned.

The Environment Protection Act makes it mandatory for public hearings to be held for all areas impacted by a project. Only after the hearings can an environment-impact assessment be conducted. A positive appraisal of the assessment permits the Centre to give a nod. Construction on the project can take place only after this and other clearances.

In 2005, the Andhra Pradesh government secured a clearance for the project component falling within its territory. In 2010, the state sought clearance for the parts of the project in the two other states. The Union environment ministry gave its approval that year. However, in 2011, it issued a stop-work order when Chhattisgarh and Odisha protested that their areas would also be impacted, adding no studies or hearings had been conducted. Subsequently, the two approached the Supreme Court separately against the project.

The executive order of the environment ministry says, “The government of Andhra Pradesh has assured it will bring about changes in the design and operating parameters of the project in case warranted as a result of public hearings in Chhattisgarh and Odisha and such changes would be carried out in consultation with the CWC (Central Water Commission) and the consent of all states. In that case, change in design or/and operating parameters might be required to ensure the area falling in the states of Chhattisgarh and Odisha does not come under submergence due to impounding of the project reservoir.”

It wasn’t explained how the project could be retrofited once near completion.

An executive order of the ministry has to operate within the legal provisions of the environmental laws governing clearances. The law provides only for a prior-informed consent for the project. The ministry order says a similar order to let work on the Polavaram project continue had been issued on January 1, 2014, for six months.

Business Standard had asked the environment minister under what provisions and on what legal grounds the stop-work order for the Polavaram project had been withdrawn, and whether Chhattisgarh and Odisha had been consulted on the matter before the decision or informed of it after the decision was taken.

This article originally appeared in Business Standard.

Judges Divided So Yakub Memon Plea Referred to Larger Bench

New Delhi: The Supreme Court has referred to a larger bench the plea of Yakub Abdul Razak Memon seeking stay of his scheduled execution on July 30 in 1993 Mumbai blasts case.

Justices A R Dave and Kurian Joseph differed on the issue of entertaining the plea of Memon, the sole death row convict in the case.

While Justice Dave refused to stay the death warrant for July 30, Justice Kurian said Memon’s capital punishment will not be executed as schduled.

In the common order, the matter has been referred to the Chief Justice of India, who will take a call at 4 PM on the issue.

Justice Dave, while dismissing Memon’s plea, left it for the Maharashtra Governor to take a call on the clemency plea made by him.

Justice Kurian said the curative petition of Memon needs to be heard afresh as it was dismissed without following correct procedure and rules laid down by the Supreme Court.

He said defect in deciding the curative petition needs to be cured otherwise there will be clear violation of the Right to Life of the convict under Article 21 of the Constitution.

Justice Kurian said the error is apparent on the face in deciding the curative petition. This court under the Constitution is for the protection of life of a person, it is not helpless and courts like the Supreme Court should not be rendered powerless, he added.

Senior advocates, including Attorney General Mukul Rohatgi, appearing for either side, said that there will be no order in law if one judge stays death warrant and the other doesn’t.

The judges were therefore of the view that the Chief Justice would constitute a bench and keep the matter for hearing tomorrow itself.

How the Supreme Court Became Our Last Hope for Justice in the Vyapam Scam

Lead counsel representing the whistleblowers explains why the case had to be taken out of the hands of the Madhya Pradesh government

Police cane charge Youth Congress activists during a protest at the residence of Madhya Pradesh Chief Minister Shivraj Singh Chouhan, over Vyapam Scam in Bhopal on Thursday. PTI Photo

Madhya Pradesh continues to be rattled by the revelations of Vyapam, a non-ending saga of the state’s connivance with corruption on a scale hitherto unthinkable. Vyapam has come to be known as a multi-billion rupee homegrown illicit business engineered with state support and patronage. It is the largest scam engulfing the highest and the mightiest of the state. The word stands for Hindi shorthand of the Madhya Pradesh Professional Examination Board but it is now an acronym for the practice of procuring illegal admissions in government and private medical and dental colleges and jobs in government services on a magnitude never seen before. Vyapam also involved selection of candidates for various departments in the state of Madhya Pradesh including in Police, Forest, Excise, Weight & Measures and Revenue, patwaris, teachers, the Dairy Federation etc. during the period 2007-2013 in an estimated 1,40,000 posts.

Over the past 30 days, I have come to believe there is finally light at the end of the tunnel. On June 3, I was screaming that something was going wrong but nobody was listening. Hindustan Times carried my article, ‘Vyapam Scam: A theatre of the absurd in Madhya Pradesh’. By that time, nearly 40 deaths related to or connected with Vyapam had been reported. In Madhya Pradesh, the mood was melancholic, with people helplessly watching the last embers of hope extinguishing. Time was running out for the final challenge before the last date fixed for closure of investigations by the Supreme Court. We were gearing up to take on the Vyapam Goliath. The only partners in this last lap of our crusade were the four whistleblowers namely, Anand Rai, Ashish Chaturvedi, Prashant Pandey and Ajay Dubey. We were also ably assisted by a young team of selfless lawyers spear headed by Vaibhav Srivastava.

Supreme Court steps in

For us, the last hope was the Supreme Court of India. July 15th was the deadline fixed for filing charge-sheets in the Vyapam cases for the STF (Special Task Force). So we collated all relevant facts by the end of June 2015 on behalf of the whistleblowers and Congress leader Digvijaya Singh. The Apex Court reopened on July 1. Amazingly, the reopening of the court coincided with the sad and unfortunate deaths of more young people including journalist Akshay Singh. In the first week of July, Vyapam occupied national attention and laid bare the state’s involvement in this macabre tragedy.

Vyapam was no more a distant story of misery of 7.5 crore people of Madhya Pradesh. It was now perceived as a public shame, a sordid state-sponsored scam next to which Bollywood pot-boilders paled into insignificance. It had mystery, the involvement of high functionaries, financial gains running into billions, and a line of deaths in most suspicious circumstances leaving the nation benumbed. Young people were dying of sudden heart attacks, liver failure, road accidents, suicides, hanging and multifarious other ways for which nobody seemed to have an answer.

The state of Madhya Pradesh through its mouthpiece, the STF, found nothing unusual in these deaths. The matter reached the High Court of Madhya Pradesh at Jabalpur; but here we found the proceedings bereft of empathetic contemplation. In these circumstances, petitions were filed before the Supreme Court under Article 32 of the Constitution. The petitions were mentioned for urgent listing before the Chief Justice of India on July 7 and here it evoked instant response. The apex court ordered listed all Petitions relating to Vyapam scam and deaths on July 9, 2015. A significant statement by Chief Justice H. L. Dattu at the time of accepting the mentioning request, was “Let there be no more deaths, we will address the issue.” The storyline of a death a day changed with these soothing words of compassion and empathy. Providentially, since July 7, there has been no report of the death of anyone associated with Vyapam.

The pressure on the state government to order a fair probe was enormous. Only two days earlier, the Chief Minister of the state and the Home Minister of India had outrightly refused to countenance any demand to hand over Vyapam investigation to the CBI. They found no wrong or unfairness in the investigation of the STF. But within 48 hours there was a change of heart; what brought this change was the Supreme Court’s direction to hear the matter on July 9. Within hours of the Supreme Court’s statement on July 7, the Chief Minister decided to move the High Court at Jabalpur for transfer of the investigation to the CBI, forgetting that the matter was directed to be listed by the apex court for hearing within 48 hours. Naturally, the decision of the state government to approach the High Court received flak from all quarters.

Finally, hope of justice

‘July the 9th’ will remain etched in the memory of the 7.5 crore people of Madhya Pradesh as a day of hope resurrected. This day not only heralded justice for the whistleblowers and counsels representing them, but it was and will always be remembered as the day of the victory of the people of of the state who were starving for justice to be done, and done visibly. “Justice may be delayed but not denied” emerged as a founding truth. There was immense relief and satisfaction in the country when the Supreme Court directed a CBI enquiry in Vyapam-related cases. It also sent shockwaves amongst the rank and file of the ruling clique of the state, which so far had enjoyed the comfort of control and immunity from any investigation.

The STF’s investigation was known more for its cover-up rather than any pro-active effort to garner truth. On that day, the apex court also issued notice on a petition filed by Sanjay Shukla and some public-spirited lawyers from Gwalior who were not willing to countenance a Governor linked to the scam. The Union government, which in the past had on the flimsiest of pretexts, dismissed or forced the resignation of a long line of Governors saw no sin in continuing with a Governor in Madhya Pradesh against whom an FIR was registered by STF on February 24, 2015. The least I can say is that our founding fathers led by Dr. B. R. Ambedkar, the architect of the Constitution, may have never anticipated a Governor continuing as head of the state with a criminal FIR under Sections 120(b), 420, 467, 468 and provisions of Prevention of Corruption Act against him.

Madhya Pradesh at this stage is at its lowest ebb. It has never seen a moral decline of this magnitude. The state’s growth story, superficially created through advertisements and clever marketing stands exposed. A collective rot has set in. It may take years to repair the damage but the first step for any such repair is to hold those who symbolise or have contributed to this rot to judicial account.

Vivek K. Tankha is a Senior Advocate, a Former Additional Solicitor General of India and a former Advocate General of Madhya Pradesh

Featured image by Meena Kadri, CC 2.0

Masaan and the Vulnerable Body of Desire

Even one such film a year is enough to keep alive our interest in the new, exciting movement and moment in Indian cinema.

Richa Chadha, as Devi, in a scene from Masaan

The Hindi title of the film Masaan is an inflection of the Sanskrit word ‘shamshaan‘, which means crematorium. Kabir used the word ‘masaan’ in one of his radical compositions on Holi. The ghats of Banaras, which are also crematoriums, resonate with the inflections inflicted by Hindu society. To be precise, the inflection is that of caste, and the kinds of labour that differentiate the Brahmin and the Dalit.

For Devi Pathak’s father, who represents the upper caste as a Sanskrit pandit and who now performs the last rites, or the sacred ritual for the dead, salvation is the salvation of the soul. For Deepak Chaudhary’s father, a ‘dom’, who represents people of the ‘untouchable’ caste who burn the dead, salvation means the proper and complete disintegration of the body to help the soul escape. Only the ‘untouchables’ see the body as it is, a brittle framework of bones and flesh sticking to each other that needs to be ruthlessly crushed by fire. In their language, the word ‘atman’, or soul, gains an ironic ring: No Hindu soul can escape the body without the untouchable’s labour.

The mantras, or hymns, provide a sacred law, but beyond that law, the profane act of burning the dead by people who are kept out of the sacred law – that alone provides the route for the soul’s salvation. The sacred law of the soul, its Brahminical contours, can work only if the inflection of the profane is allowed within it. That profanity is however admitted through exclusion. The bodies of those who burn the Hindu body are as untouchable as the dead body that passes beyond the sacred ritual. Every lifeless Hindu body, by that logic, becomes untouchable by law, thrown outside it, and finds itself in the realm of untouchability. So all Hindus, touchable by birth become untouchable once they die. But what about those like Deepak who are untouchable by birth? By what cunning was such a law insurrected? By a violent contradiction of the law: Those who help the souls of the pure reach salvation are impure by their act.

In a rare dramatic scene, when the upper caste Shaalu keeps prodding Deepak to reveal where he lives, he suddenly loses his cool and blurts out the occupation of his caste with all the brutalised angst of social segregation. He describes his proximity to the daily sight and smell of disintegrating skulls. Deepak’s outburst is precisely the opposite of the cold illogic of the law that creates it.

Vicky Kaushal, as Deepak, in a scene from Masaan

Shaalu and Deepak are separated within a social space through a stigmatised division of labour. For Shaalu, who is in love with Deepak, that division is immaterial. There is something more liberating, more becoming, in that love, than her being a Hindu upper caste. It holds true for all such allegiance to love that has no regard for caste distinctions. When Shaalu and Deepak kiss each other at a lonely bank, they transcend the law of segregation, and become desiring bodies. As desiring bodies they are not subjects of any law, including being any part of the secular law of citizenry. For as we see in the film’s parallel story of Devi and her lover, Piyush – who are brutally interrupted by the police in the middle of coitus – the citizen’s body can be suddenly rendered illegal at a vulnerable moment by the trick of law.

Law knows punishment, not desire

The secular law of the state is suspicious of desiring bodies, and treating a woman having sex with her lover secretly in a hotel as a prostitute is a clear indication of the mindset of that law. The police are able to harass them after they come to know the girl is not a prostitute, precisely because the girl has gone from being the moral property of family and society to being the property of the secular law that betrays her the moment it discovers her in vulnerable circumstances.

Devi’s body becomes the source of the law’s illegal sustenance through intimidation. The secular law of the state not only fails to protect its citizenry but uses the citizen’s body for unfair practices. The rights of the citizen’s body is a myth because the body is still trapped within the moral laws of society while the citizen, as an abstract law bearer having rights of her own, can be subjected to unfair treatment the moment she transgresses that moral law. The police have no qualms about filming Devi’s body and using it to destroy her social status. The law can reverse its role to punish the desiring body. For law does not know desire, but punishment. The body of law is a non-body, out to control the citizen’s body. Does the citizen own her own body? No, the rights of her desiring body are annulled by the cunning of law. The citizen’s body is not allowed to be her own. If you escape social law, the secular law of the state, in connivance with the former, gets you. No exit, to use the bleak Sartrean phrase.

The film captures another aspect very beautifully: The body as a shaky subject of desire, shaken by its moment of unfolding amidst layers of social, cultural and psychological repressions.

Love has to be recovered against the admonitions of law, where bodies can express themselves disregarding the history of law and the law of history

When Devi and her lover stand before each other, their bodies shake as they kiss. When Deepak kisses Shaalu, there is an expression of hesitation and embarrassment on Shaalu’s face, for this was the crossing of another river, travelling into another remote bank of desire, where her body is breaking away from old laws and embracing the law of her own body.

In both cases, the desiring subjects emerge into a newness whose resonances are not merely individual but also social, cultural and moral. Love has to be recovered against the admonitions of law, where bodies can express themselves disregarding the history of law and the law of history. Shaalu’s language of love is mediated by Urdu poets – Ghalib, Akbar Allahabadi, Bashir Badr and Nida Fazli. In a society where families teach you of caste, poets teach you the opposite – of love. Deepak, an engineering student who knows nothing of poetry, who is literate but not literary, however knows of love’s metaphorical language, as he releases a red balloon into the dark sky. It is a poetic act in the middle of a religious festival. Such festivals are about young people across castes falling in love and breaking religious laws. As Deepak’s red balloon soars up, a similar one, Shaalu’s, goes up in response. This beautiful moment throbs with the awareness that beauty is always in danger of being crushed, hence it best thrives in secret.

Questions at the heart of life

The other unique aspect of Masaan is how it raises political questions by moving into the domain of the existential.

After the death of Devi’s lover, she confronts her condition not through rebellion but by introspecting on the depth of her loss. She remains fiercely independent and takes her own course, but remains close to the bank of her trauma. And Deepak, after losing his lover through a terrible accident of fate, is an inconsolable river flowing beside the burning ghats of Banaras. He asks the most unanswerable question to his friends, his body crumbling in pain: Will this unending suffering ever end? No one can answer the question because there is no answer in sight. It is a question that desires solace, not truth.

Finally, both Devi and Deepak find some semblance of life after moving away from their respective homes to another city. But the river stays with them as it changes course along with the course of their lives. And their meeting looks written in the stars, as much as in water. The existential turn in the film’s story also takes us to questions at the heart of life: How to live after passing through a trauma? How to confront the everyday in the midst of loss? The existential is very much within the political. For questions of life are questions that oppression and fate leave you with. Devi and Deepak have to newly confront their relationship with the world and negotiate with the boundaries of other laws.

Director Neeraj Ghaywan and Varun Grover, with whom he co-wrote the screenplay, seem to have worked in close tandem, having managed to infuse the film with the most telling sights and sounds of Banaras and its ghats. The dialogues belong effortlessly to the everyday as much as the powerfully portrayed ordinariness of the characters sit well with the milieu. If Richa Chadda as Devi conveys her conflicted state through her body, Vicky Kaushal’s finely tuned, delicate rawness as Deepak is a surprise, and Pankaj Tripathi holds his reins well. Avinash Arun Dhaware’s camera is as evocative as the film’s tortured soul. Even one such film a year is enough to keep alive our interest in the new, exciting movement and moment in Indian cinema.

Manash Bhattacharjee is a poet, writer, translator and political science scholar from JNU. His first collection of poetry, Ghalib’s Tomb and Other Poems (2013), was published by The London Magazine. He is currently Adjunct Professor in the School of Culture and Creative Expressions at Ambedkar University, New Delhi