August 2015 Archives

In Pakistan Too, Tough Times Lie Ahead for NGOs

The administration’s new rules are aimed at hobbling voluntary organisations which are doing good work

A meaningful public participation in the legislative process is a fundamental principle of legislative transparency. It is an effective tool to avoid enactment of laws by undemocratic or arbitrary regimes, keeping relevant stakeholders in dark. Citizen participation also helps to improve the quality of legislation by bringing the legitimate concerns of those affected by law to the notice of lawmakers in a timely manner.

In Pakistan, in April 2015, the draft of Prevention of Electronic Crimes Bill had to be withdrawn after widespread criticism as the National Assembly standing committee finalized the draft without taking Internet Service Providers (ISPs) and information technology industry into confidence. In the wake of the controversy surrounding the arbitrary suspension of operations of Save the Children organization, an inter-ministerial committee has been assigned the task to formulate fresh guidelines to regulate international non-governmental organizations (INGOs). But the element of public debate on the subject is missing as the committee or the concerned authority, the interior ministry, has not shared any details of the shape of future law.

It is being widely speculated in Pakistan that the new law will place stringent restrictions on the operation of foreign funded NGOs (INGOs) and also introduce cumbersome reporting procedures. Human Rights organisations may be the worst sufferers. The speculation appears not wide off the mark in view of the recent announcement of the government prescribing INGOs to work only in specified areas, pending a comprehensive regulatory framework. Previously, the INGOs had to sign a Memorandum of Understanding (MOU) with the Economic Affairs Division (EAD). Now, this responsibility has been shifted to the Interior Ministry and all INGOs have been required to complete a fresh registration process within three months. Under the new arrangements, applications of nine INGOs for no objection certificates (NOC) have been so far rejected. Just last week is that the Securities and Exchange Commission of Pakistan has started the process of license revocation of more than 20 INGOs, including that of the British Council.

The draft of Foreign Contributions Act 2015, which is likely to be presented before the federal cabinet any time, has put in place strict requirements for utilization of foreign funding by INGOs and vests the authorities with arbitrary powers to cancel the NOCs.

The three areas of major importance in respect of functioning of INGOs are: the procedure of registration; use of foreign resources; and accountability to the host state government. The international norm is that the procedure of registration should not be prohibitive. In majority of countries with liberal regimes, the registration takes place on notification to the concerned authority of the government. And if the authority rejects the application, it must give a detailed order, which is appealable. The present arrangement prescribes no means of grievance redressal in case of denial of NOC by the authority.

Hampering NGO operations

According to the Draft Foreign Contribution Act (FCA) 2015, any INGO seeking to utilize foreign assistance must register with the EAD. Further, the interior ministry, provincial/local departments and other stakeholders will vet such application. The whole process may take up to four months. This prior approval is absolutely unnecessary and will be tantamount to hampering the operations of INGOs. Instead of prior approval, a notification of details of foreign assistance to the concerned authority would be sufficient. The authority may object to such foreign funding within a stipulated period of notification. The objection must be based on clear and sound reasons. The INGO may also be required to submit an annual statement of its accounts, which is auditable by the state government.

Another requirement under the FCA 2015 is that the INGOs must specify the geographical area of their operations in advance. And the NOC of an INGO will be liable to cancellation if it operates outside the notified area. The state government has also been given the power to unilaterally terminate the license of an INGO after furnishing of a three months’ notice.

Undoubtedly the proposed FCA 2015 sets unjustified and onerous requirements for the operation of INGOs and should be revised before submission to the Parliament. The wiser course will be to put it on hold and allow the inter-ministerial committee to draft a single, all-encompassing law in this regard.

The working committee, headed by PM’s adviser on foreign affairs Tariq Fatemi, must clearly set out the objective of legislation, seek the feedback of INGOs and foreign donors, and make the draft of legislation public before submitting it for parliamentary approval. While finalising and debating the bill, the lawmakers should be guided by the principles enshrined in the constitutional framework and the international human rights instruments the country has ratified.

Article 22 of the ICCPR states that no restrictions may be placed on the exercise of freedom of association ‘other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others’. The goal of the new law should be two-fold: one, to facilitate the working of the INGOs; two, to ensure transparency in their activities and funding sources on the other. Nothing more, nothing less.

Given the concerns raised regarding advancement of hidden foreign agenda, there is no second opinion that a comprehensive law should be brought to regulate the registration and functioning of INGOs. But any attempt to impose arbitrary restrictions in the disguise of regulation will imply a violation of international commitments and attract criticism of the international community.

Nauman Asghar is a civil servant and columnist based in Pakistan.

Sound Pollution, the Not So Silent Killer

How ironic that we hold International Yoga day and preach the virtues of quiet meditation while being the loudest country on the planet.

Horn OK Please, no matter what. Credit: Meena Kadri/Flickr, CC BY-NC-ND, 2.0.

A recent New York Times article on the toxicity of Delhi’s air by a fleeing foreign correspondent fearful for his son’s life propelled the topic to international attention. As the national media had earlier reported, it is not as if the Indian authorities were unaware of the growing crises. A 2002-12 study commissioned by the Central Pollution Control Board showed that almost 43% of Delhi’s school children suffered from poor or restrictive lungs, and that 10-27% of them complained of headaches, eye irritation, nausea, palpitation and fatigue. However, this and other studies were never acted upon.

But in the current din around air toxicity, another equally lethal source of urban pollution has been completely ignored. The community centre near my residence is a constant reminder of this. Among other functions, the centre hosts wedding parties, which invariably begin late at night. The band attending the groom is intended not only to maximise his delusional self-importance but to ensure that his arrival is noted by all. There have been numerous occasions when the screeching noise pretending to be loud music has actually caused my windows to vibrate. When I mentioned this to a neighbor, she retorted, “forget windows, my entire body vibrates with discomfort.”

You certainly cannot stop weddings, nor can you complain if the groom chooses to trot in at midnight, but he and his party must be considerate that there are people trying to sleep, children who have to get up for school the next morning, senior citizens battling chronic diseases such as heart attacks or diabetes, and ordinary women and men eking out an existence in a dirty, polluted, toxic metropolis.

If its not a wedding then it could be a musical program that begins after 10 pm and goes on till almost dawn midweek, at noise levels that would embarrass the loudest discotheque or night club. Religious functions belt out gratingly garish ‘spiritual’ noise the entire night as if the Gods were stone deaf; this despite being repeatedly told in the scriptures that the Almighty resides within us. The noisy devotion of a handful is sheer torture for those cursed enough to be living in the vicinity. And this is to say nothing of the car horns, the roar of airplanes overhead and the screaming of tires as vehicles negotiate the narrow streets of a Delhi residential neighborhood.

The sounds are endless in this city and over the years have become louder and louder but there is absolutely no public concern. We have not only successfully made Delhi the most air-polluted city in the world, but we also must be the loudest city on the planet.

It is indeed ironic that the same people have set out to teach the world the salutatory effects of meditation with its accompanying quietness, and that we celebrated ‘Yoga Day’ without a thought for the noise that we generate night and day.

More than ample evidence has emerged that not unlike long-term particulate matter air pollution, long-term high ambient noise levels too independently accelerate atherosclerosis. In plain English, both air pollution and noise are capable of blocking your arteries, together and individually.

Numerous studies, like the Heinz Nixdorf Recall (HNR) Study published last year in the European Heart Journal have reported that high residential traffic exposure causes associated blockage of coronary arteries as also the large arterial conduits, along with narrowing of the microvasculature, as assessed by CT scans. The authors of the HNR study state that their data is robust enough to consider noise as a risk factor for atherosclerosis. They also found that unlike air pollution that particularly affects the young and people with coronary heart disease, nocturnal noise damaged every one, regardless of age or underlying disease.

Acute noise exposure in laboratory settings and the real-life environment increases heart rate, blood pressure and cardiac output. These acute effects are seen even at relatively low environmental noise levels when concentration, relaxation or sleep is disturbed. The stress of noise elicits sympathetic responses (fight-flight reactions) as well as release of corticosteroids. These responses do not need the involvement of the cortical brain (cognitive perception of noise) but operate at subcortical levels. Acute or chronic sleep restriction, or fragmentation of sleep has been associated with reduced insulin sensitivity, changes in appetite regulating hormones, increase in sympathetic tone and venous endothelial dysfunction. Epidemiological studies have reported habitual short sleep (less than six hours per night) is associated with obesity, diabetes, hypertension, cardiovascular disease and mortality.

The World Health Organization has estimated the health burden of environmental noise in terms of disability-adjusted life years (the number of years lost due to disability or death, a measure combining morbidity and mortality) for Western Europe. Annually, 45,000 years are lost due to noise-induced cognitive impairment in children, 903,000 due to noise-induced sleep disturbance, 61,000 due to noise-induced cardiovascular disease and 22,000 due to tinnitus. Additionally, noise-induced annoyance causes 587,000 disability-adjusted life years lost. Sadly, there is no data on the effect of noise on the Indian population but the European numbers should be cause enough for concern.

Quite a few studies have shown association of chronic noise and myocardial infarction. Chronic noise levels have been shown to increase myocardial infarction by as much as 46% in men, and more than 300% in women.

In 2000 and again in 2005, the Supreme Court of India laid down guidelines governing noise, while the Ministry of Environment and Forests framed the Noise Pollution (Regulation and Control) rules in 2000. These ban the use of loudspeakers between 10 pm and 6 am; they also mandate the decibel limits for industrial areas at 75 decibels, and for residential areas at 55 (day time), 45 (night time). There is, however, little or no implementation of the SC ruling. No law on noise pollution has been passed by the Parliament. Loudspeakers, therefore, continue to blare out the most horrific music deep into the night, often as late as 3-4 am.

I have the uncomfortable sense that it will yet again need an article in the Western press to make people hear amidst the cacophony. In the meantime, the main products we will Make in India – apart from noise pollution – are hypertension, diabetes and heart attacks, while rearing children who are physically and cognitively stunted.

Deepak Natarajan is a cardiologist in New Delhi.

Yakub Memon, Maya Kodnani and the ‘Chain of Action and Reaction’

We are not even prepared to recognise the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it.

The media tells us we should now have a sense of “closure” but in the wake of Yakub Memon’s execution, I, like many others, have been trying to understand the logic of why some criminals get hanged in India while others guilty of similar crimes don’t.

On the day Memon’s writ petition against his death warrant was dismissed by the Supreme Court, another bench decided that the assassins of former prime minister Rajiv Gandhi would not have to hang after all. The court, which had earlier commuted their sentence, rejected the government’s belated and somewhat half-hearted curative petition demanding that they be put to death.

By a curious coincidence, the Gujarat High Court has also just started hearing appeals in the Naroda Patiya case stemming from the Ahmedabad killings of March 2002. The trial court had convicted several persons connected with the sangh parivar for the cold-blooded massacre of nearly 100 Muslims. Among those sentenced was Maya Kodnani. She had been a minister in the state cabinet of Narendra Modi at the time she was arrested by the Supreme Court-appointed Special Investigation Team. Found guilty of leading the murderous mobs, Kodnani was sentenced to 28 years rigorous imprisonment and not death. The Gujarat government has taken the view that there is no need to seek the death penalty as there is (according to it) only indirect evidence linking her to the murders.

As a critic of the death penalty, I am as opposed to hanging Kodnani as I was to the execution of Memon (against whom, ironically, evidence showing his involvement in the heinous Bombay bombings was also only “indirect”). But I am curious about the social, judicial and, above all, political hierarchy of crimes that clearly exists in India and which determines both the course of prosecution and the nature of punishment that follows.

That there is such a hierarchy was obliquely confirmed by the Home Minister in Parliament the other day. During the debate on the Gurdaspur terrorist incident, Rajnath Singh attacked the Congress party for coining the term ‘Hindu terror’, and said this had served to distract the attention of the country away from actual terrorism, which, by his logic, is presumably non-Hindu.

The fact that the minister said this in the wake of Gurdaspur, where the terrorists had clearly crossed over from Pakistan, and barely a day after Memon was hanged, gave his argument a certain currency. Neither Memon nor the others held responsible for planning and executing the conspiracy were Hindu. The Shiv Sena-BJP government which came to power in Maharashtra after Justice B. Srikrishna had begun probing the December 1992-1993 Bombay riots first tried to disband his commission and then expanded its terms of reference to include the March 1993 blasts. What the commission established was that the bombs planted were a product of the riots which preceded them. They were, in other words, part of a ‘kriya pratikriya ki chain’, or ‘chain of action and reaction’ – to invoke the peculiar phrase Narendra Modi would use nine years later to link the mass killing of Muslims that was taking place across Gujarat to the burning of Hindu passengers at Godhra. “What I want is that there should be no action and no reaction,” Modi had added even as his state was burning, a curious wish list for a Chief Minister who could not undo the past but who definitely had the power to at least control the present.

As the Bombay riots and blasts – and Godhra fire and Ahmedabad inferno – show, Hindu terror and Muslim terror are twins and both are equally evil. There is, even in the Newtonian moral universe of ‘action and reaction’, a culpability that neither Memon nor Kodnani can evade. Yet one pays with his life while the other doesn’t. Both freely acted out their role in the ‘kriya-pratikriya ki chain’ but the same state that fought to take one life will now fight to save the other. Just as it fought to ensure the terrorists who led the mobs in Bombay in 1992-93 and Delhi in 1984 were never called to render account.

Memon’s execution, we are told, will help deter others from committing similar crimes but the effectiveness of this “deterrence” rests surely on what crimes are to be considered “similar”.

Shocked by the devastation of Hiroshima, whose 70^th anniversary falls this week, Judge Radhabinod Pal of the Tokyo Tribunal trying Japanese war criminals believed there was no possibility of justice if those responsible for the deliberate murder of civilians by atomic weapons were also not put in the dock. His was not an argument about moral equivalence but of the deterrent value of justice. Future war crimes could be prevented only if the Tribunal was willing to treat the dropping of nuclear bombs or the firebombing of entire cities on par with the atrocities that the Japanese militarists were rightly accused of committing.

Pal was overruled by the other Allied judges but this tension between victor’s justice and the rights of all victims to justice would later be resolved – at Geneva, the Hague and Rome – with the adoption of the Geneva Conventions (after World War II), the International Court of Justice advisory opinion on the illegality of nuclear weapons (in 1996), and the establishment of the International Criminal Court (in 1998).

In India, sadly, we are not even prepared to recognise the gravity of the crime of communal violence and treat it on par with terrorism, let alone adopt legal remedies to deal with it. It is our national failure to come up with a deterrent to mass violence that allowed the 1984 massacre of Sikhs to take place, followed by Hashimpura, the Babri Masjid, Bombay and then Gujarat. If the government wants to end this chain, it must turn justice from being a product of faith – in which minority victims don’t count – into an article of faith for India and its state institutions.

This is an expanded version of an an article that originally appeared in the Sunday Times of India on August 2, 2015

Featured Image: Michael Coghlan, CC 2.0

The Battle for a Right to Privacy Still Has a Long Way to Go

The Attorney General’s claim that the Right to Privacy in India is “vague” is sadly true

Credit: kylaborg/Flickr, CC BY 2.0.

It gives me no pleasure to say this: Attorney-General Mukul Rohatgi was not wrong when he told the Supreme Court of India on 23 July 2015 that the right to privacy was “vague” and Indians did not have it. I would like to respond to, but not entirely disagree with, Gautam Bhatia’s persuasive piece on July 28 in The Wire.

Let me be clear. Privacy is a foundational social value. An authoritative bench of the Supreme Court ought to unambiguously declare that Indians are protected from invasive state actions by a right to privacy. Such a right does indeed emanate from a structural reading of the Fundamental Rights, as the Supreme Court has hinted at in the past and as Bhatia has engagingly said.

But this is not enough – there is more to be said. Privacy is a mutable concept without a single meaning. Different variations of privacy are dissimilarly applied in unrelated situations. As a result, the ‘right to privacy’ is a misnomer because it conveys singularity. Instead there are multiple rights to privacy, some of them only distantly related. Because there are several distinct privacy rights, we must be careful to correctly match each privacy argument to its corresponding privacy right. But not all privacy rights are judicially recognised.

The Attorney-General’s claim of vagueness was made while defending the Aadhar project which collects biometric information from people. Such an exercise questions a specific right to privacy, which protects the integrity of bodily information. To test the validity of the Attorney-General’s assertion, we must examine the right to bodily privacy after distinguishing it from the general corpus of privacy rights.

Categorising privacy

There is a difference between the public right to privacy against the state and the private expectations of privacy we have against other people. This distinction eludes common conceptions of privacy and even, on occasion, the Supreme Court. As a public right, privacy protects people from unwarranted intrusion by the state. In India, this right is located in Article 21 of the Indian Constitution which guarantees the right to personal liberty.

The public right to privacy has three branches: the right against surveillance, the right to decisional autonomy, and the right against the collection of bodily information. But the state can deprive a person of these rights through a procedure that is just, fair, and reasonable.

Privacy and surveillance

The Attorney-General’s argument to refute the existence of the right to privacy relied upon cases that dealt with the limits of surveillance. Yet, the government has repeatedly denied the surveillance implications of the Aadhar project. Why is this important? Because invasive surveillance is permitted on the ground that it secures public safety, a superior competing value which is unconnected with Aadhar. Either the Attorney-General knowingly and strategically compared the Aadhar project to surveillance, or his reliance on surveillance privacy jurisprudence was misplaced.

However, the Indian right to privacy is strongest in respect of surveillance when compared, to decisional autonomy and bodily information. Despite this, it offers only a shadow of the protection the same right offers in other liberal democracies. The two Supreme Court cases the Attorney-General relied upon – MP Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962) – both accepted privacy was a legitimate concern for individuals but denied it was a right. In both cases, privacy was explicitly made subject to public safety.

Bhatia identifies a later case – Gobind v. State of Madhya Pradesh (1975), which the Attorney-General did not mention – as the source of India’s right to privacy. He is not wrong. On the eve of the Emergency, the Supreme Court moved past its previous reticence to positively locate the right to privacy in Article 21 of the Constitution. But the court made it clear that privacy was overshadowed by “compelling state interest”. The right to privacy from surveillance has since evolved, but it still submits easily to claims of national security and public safety, a weakness the Attorney-General and successive governments will no doubt exploit.

Privacy and autonomy

The right to privacy that protects fundamental personal decisions and lifestyle choices from community morals which are enforced by the state is weak in India. Unsurprisingly, the Attorney-General made no mention of this branch of privacy law. This right has flowered in America as the US Supreme Court has protected access to contraception, foetal abortion, consumption of pornography, and consensual homosexual sex. Such a right would probably also protect the private consumption of beef, if it were banned in America.

In India, the right is vague and confused. American decisional autonomy was first considered by the Indian Supreme Court in Gobind (1975), a surveillance case that did not concern anyone’s personal decisions, and has wrongly informed several Indian cases thereafter. On the sole occasion decisional autonomy was legitimately deployed to support a privacy right to consensual homosexual sex, it was inexplicably disregarded by the Supreme Court in 2013. These failures reveal both an inconsistent treatment of privacy as well as the near-total absence of a decisional privacy right in India.

Privacy of bodily information

The constitutional challenge to the Aadhar project questions the mass collection of biometric information by the state. This implicates a version of the right to privacy that is distinct from the preceding two, which regulate surveillance and protect lifestyle decisions.

India’s law on the forcible and invasive collection of information from the bodies and minds of persons does not appear to admit a strong privacy claim. The law continues to unfavourably pit privacy against competing interests such as public health, public morality, and public safety. In 2003, the Supreme Court weighed the right to bodily privacy against society’s claimed moral interest in protecting marital expectations. Public morality prevailed; a healthy person was forced to undergo a medical examination. Similarly in 2001, the Andhra Pradesh High Court brushed privacy aside to permit non-consensual HIV tests upon people “suspected” of having the disease.

The Supreme Court has also approved a decision of the House of Lords which permitted the perpetual and non-consensual retention of DNA profiles. As a bill to enable non-consensual DNA profiling nears Parliament, the Supreme Court’s past observations have worrying implications for the right to bodily privacy in India.

Finally, the forcible extraction of bodily substances for police investigations does not offend the right to privacy, the Supreme Court clarified in 2010. In fact the forcible administration of truth serums, lie detector tests, and brain mapping was struck down almost wholly by the right against self-incrimination, and only incidentally by the right to privacy.

In this light, it is difficult to find a realistic basis to counter the Attorney-General’s argument. The right to bodily privacy, which would ordinarily keep the Aadhar project at bay, is virtually non-existent. And other versions of the right to privacy have only limited application.

Privacy in tatters

Because of its disjointed development, the constitutional basis of the right to privacy in India remains muddy. Indian courts have yet to craft a privacy rights jurisprudence that responds to surveillance, morals-based denials of personal choices, and forcible collections of bodily information. There are wide gaps in the right to privacy through which the collection of biometric information for the Aadhar project could easily slip through, perhaps even be made compulsory.

Distressingly, the Attorney-General’s argument has currency. India’s right to privacy is vague, and is quite illusory in respect of bodily information such as fingerprints and iris scans. This does not mean we should capitulate. There is a substantial body of foreign privacy law which, when coupled with the procedural safeguards the Supreme Court has weaved into the Fundamental Rights, could be used to build a right to bodily privacy from the ground up. The future promises more litigation. This is good, because the right to privacy advances freedom.

Bhairav Acharya is a lawyer who works on free speech, privacy, and technology. He advises the Centre for Internet and Society. The views expressed here are his own.

The Kiwi’s Uniqueness Unravelled

The kiwi lives by the tip of its long beak.

Animals do the most amazing things. Read about them here in this series by Janaki Lenin.

The kiwi bird. Credit: New Zealand Birds Online.

The dumpy bird may look odd, but it is built to make the most of its nocturnal lifestyle. It scrounges along the forest floor, while tapping its long beak, much like a visually impaired person taps a cane. It probes the ground up to 12 cm. in depth, like an ibis would in water, and sniffs loudly. Unlike any other bird, its nostrils are at the tip of its bill. But the beak-end does much more than smell for fallen fruits. It also has numerous sensory pits called mechanoreceptors that feel earthworms and grubs wriggling underground. This sensitive bill-tip is the kiwi’s primary sense organ.

Unlike other night-time birds such as owls, it has tiny eyes. Owls fly and they have to see where they are going. The kiwi can’t fly since it has a pair of nubby, useless wings. It compromised sharp vision for acute hearing, touch, and smell. These unique adaptations became possible because of alterations to its genes. Little was known of these genetic changes until now.

A group of 15 molecular biologists from six institutions in four countries collaborated on this four-year project to sequence the kiwi’s genome, the largest bird genome to date.

They found the green and blue colour receptors in the bird’s eye were non-functional. So the kiwi has no colour vision. But it has more smell receptors than any other bird, enabling it to detect a wide range of odours. The biologists are silent on the genetic origin of the mechanoreceptors on the bill tip.

Diana LeDuc, the lead author of the study, told The Wire, “It would be impossible to look at the mechanoreceptors in the bill with the data we have. For that we would need to sequence the transcriptome [the set of all RNA molecules] of the bill mucosa, for example, to see exactly what genes are being expressed there.”

Other adaptations to life in the darkness include low energy metabolism. The researchers suggest that since large eyes require high metabolism, the kiwi’s low metabolism may be one reason for its small eyes.

Professor Emeritus Graham Martin, University of Birmingham, U.K., who specialises in sensory perception of birds, told the Wire, “I do not think it will hold up, since many birds with much higher metabolic rates than kiwi have small eye sizes. It seems much more likely that small eye size is a case of regressive evolution, as we have argued previously based upon evidence from brain and eye structure. Small eyes can never be as sensitive as large ones. It is always necessary to distinguish between sensitivity and resolution at night.”

The kiwi wasn’t always a denizen of the night. Millions of years ago, when its ancestor arrived in New Zealand, it hunted by day. But by then, the now-extinct, 3-metre-tall moa had already established itself, and hogged food during the day. The researchers say the chicken-sized kiwi was forced to become a creature of the night to survive. They peg these adaptations to have occurred around 35 million years ago, after the kiwi ancestor’s arrival in New Zealand and the kiwi adopting a night life.

Professor Martin says he thinks this is the most important insight of the paper. “However, whether this was a response to predatory pressure from the moa, or simply because the nocturnal habitat of the forest floor was an available foraging niche with many opportunities for food exploitation is not clear. It could just be that no other animals were exploiting this rich food source.”

Despite the uniqueness of the kiwi’s beak, it has one drawback. While the bird pokes its beak into the ground, the nostrils get plugged up, and the kiwi snorts loudly. Since it evolved on the predator-free islands of New Zealand, there was no need to be silent. However, these earthbound birds, with two nubby, useless wings, now have to contend with legions of dogs, cats, stoats, weasels, and ferrets brought by colonising Europeans. Although there are about 25,000 brown kiwis in North Island, the numbers have been falling for decades.

Since only 5% of the chicks make it to adulthood, New Zealand’s Department of Conservation runs an artificial incubation program called ‘Operation Nest Egg.’ It takes the 450-gram-eggs from wild nests and incubates them artificially. Chicks are reared until they reach 850 grams in weight before being released in the wild. At that size, at least the stoats won’t get them. DNA required for the study was extracted from the embryos of two such eggs of the brown kiwi.

Diana LeDuc said in a press release that her team found the diversity of the kiwi genome was as low as inbred birds, and further insights from the genome could aid conservation management strategies.

“Low genetic diversity and inbreeding leads to further population decline, because adaptation happens at a much lower pace,” she told The Wire. “Hence, making use of the genome, the diversity of that population can be determined, and an informed decision can be made in regard to how the different kiwi populations should be mixed.”

The world would be a poorer place if such an enigmatic unique bird were to disappear.

The paper, ‘Kiwi genome provides insights into evolution of a nocturnal lifestyle,’ was published in Genome Biology.

Janaki Lenin is the author of My Husband and Other Animals. She lives in a forest with snake-man Rom Whitaker and tweets at @janakilenin.

Nepal’s “Fast-Tracked” Constitutional Process Trades Rights for Speed

While broader consultation may take slightly longer than the “fast tracked” process, it will be a valuable investment if it results in a strong and lasting Constitution in Nepal.

Credit: blackwing_de/Flickr, CC BY 2.0.

In meetings with key Nepali politicians over the past few weeks, India’s President, Prime Minister and members of major political parties have voiced their support for the early finalisation and adoption of Nepal’s constitution. Prime Minister Modi asked Nepal to ensure that the constitution was drafted with the support of as many stakeholders as possible.

However, this advice seems to have been ignored given the manner in which the constitution-making process has been fast-tracked in Nepal. The process underway is seriously flawed, and has resulted in a draft that ignores important human rights obligations.

While continuing to support timely progress, India should encourage the authorities in Nepal to develop a legitimate and rights-respecting Constitution through an inclusive and participatory process.

Nepal’s constitutional drafters began their work over seven years ago, but the process stalled repeatedly due to political disagreements. However, the earthquake of April 25, 2015, combined with emerging consensus among the major political party elites, has meant that recent weeks have seen sudden progress towards the finalisation of a Constitution.

Nepal’s four major political parties reached an internal agreement on 9 June 2015, in which they avoided dealing with the contentious federalism issue by agreeing to leave the discussion on the territorial boundaries and names of the new federal entities to a federal commission to be established later.

The Constitution Drafting Committee was then asked to prepare a preliminary text of the Draft Constitution. Nepal’s Constituent Assembly (CA) endorsed this Draft Constitution on 7 July 2015, paving the way for ‘public consultation’ on the provisions of the Draft. The Committee on Public Relations and Opinion Collection was given 15 days starting 9 July 2015 to consult with and solicit views from the Nepali public throughout the country on the Draft Constitution, consolidate them, and produce a report for the CA. This period ended at the end of last week.

A two-week timeframe to read and respond to a constitutional document that is over 100 pages long is grossly inadequate. As reports have indicated, Nepali people in some regions were effectively given only two or three days to provide inputs. While a few groups and individuals managed to make submissions, in several other districts people protested the contents of the Draft, and the police responded with force. The monsoon rains further hampered public accessibility to meetings. It is also unclear whether and to what extent people living in remote areas and/or areas rendered inaccessible by the rains, persons affected by the earthquake, illiterate persons, non-Nepali speakers, and persons living with disabilities, including people who are vision-impaired, were consulted.

It is hard to imagine that the Committee on Public Relations and Opinion Collection was able to process in any detail the views and suggestions collected through the consultation and adequately analyse them within the mandated 15 days.

Furthermore, the Draft Constitution is substantively problematic and several rights are not adequately protected. The citizenship provisions are vague and discriminatory, and risk rendering people stateless, including by requiring that children born in Nepal may only obtain citizenship if both mother and father are Nepali citizens themselves. Non-citizens are excluded from key entitlements and protections.

The provisions on gender equality are controversial, with activists arguing that the current formulation does not guarantee the full range of women’s reproductive rights. Several economic and social rights are defined inadequately, thus not offering the protections required by international human rights law.

Allowance for restrictions on the rights to free speech, expression, information and press freedom, as well as the rights to freedom of association and assembly, are broad and vague and exceed what is permitted under international human rights standards. Provisions on remedy for human rights violations are lacking. And guarantees for securing judicial independence are weak and inadequate.

An inadequate consultative process means that people do not have the opportunity to point out these flaws, or to advocate for a Constitution that addresses the root causes of the past conflict and enhances respect and protection of all human rights. This also means that the Constitution, and the state structures it establishes, may lack necessary public legitimacy and ownership from the outset.

Ensuring genuine consultation and public participation in democratic processes – particularly the constitution-making process – is crucial for the legitimacy of the Constitution and the rule of law in democracies, and would be wholly consistent with Nepal’s obligations under international human rights law.

Public participation is particularly important given the constitutional history of Nepal. Nepal has had six Constitutions since 1948. Each of these Constitutions, whether authoritarian or democratic in nature, was promulgated without a participatory process. A major accomplishment of the 2006 Comprehensive Peace Agreement, which marked the end of the civil war in Nepal, was to commit to a Constitution that respected “people’s right to information, transparency and accountability” and “people’s participation”. While broader consultation may take slightly longer than the “fast tracked” process, it will be a valuable investment if it results in a strong and lasting Constitution.

India has a political and economic stake in a Nepal that is democratic, peaceful and prosperous. A Constitution developed on the basis of a genuine and inclusive participatory process is not just a human right. It also enhances the likelihood of popular ownership of the Constitution, which was lacking in Nepal’s previous Constitutions, thus improving the chances for peace and stability in the nation.

Nikhil Narayan is the Senior Legal Adviser in South Asia and Sanhita Ambast is the International Legal Advisor in South Asia, both at the International Commission of Jurists.

The Lament of the Half Golden Mongoose

A tale from the Mahabharat reminds us that the battles Teesta Setalvad is fighting are not about the Gujarat riots but about Rajdharma

Fighting the good fight

Is it possible that the State, which is supposed to protect the small fish against the big, may on occasion sympathise with murderous predatory fish roaming the territory? Is it possible that many may witness the hunt passively because it is politically expedient? One does not, of course, want to believe such things are possible, but the absence of other plausible explanations justifies considering it.

This is how Ved Vyas in his great epic, the Mahabharata, muses about an ancient fratricidal war that wiped out entire families. Truth, he finds, absolute truth, is the first casualty. In this epic, the family elders, great generals and diplomats and priests mutely watch the wilful dismantling of Rajdharma by the powerful. Their appalling, self-serving silence is broken by some of the smallest and most ordinary of creatures, which indict them for relegation of their Dharma. After all, it is hardly debatable that the state must exercise its monopoly of power to intervene swiftly and decisively while the butchering of men and the burning of women and children is going on. And the individual’s right to protection by the ruler must not be sacrificed to the god of popular sentiment.

Towards the end of the Mahabharata comes the tale of a strange mongoose sniffing around the area where a jubilant Pandava king, Yudhishthra (also known as Dharmaraj or the king of Dharma) has just performed the glorious Rajsuya Yagna signalling his arrival on the throne after a long war.

The lowly mongoose with half his fur of gleaming gold, comes to the site where the fire sacrifice has been performed and as the amused citizens watch, begins to roll in the ashes. While they are wondering at his strange behaviour, the mongoose stands shaking the ashes off his fur and cries, “Fie upon you, Dharmraj, for this your great Rajasuya Yagna is a sham! If you had really earned the blessings of the Gods, my remaining fur would have also turned to gold. Years ago, during a great drought I happened to be in the home of a hungry farmer and saw him and his family feed their last meal to an unknown starving beggar and court death. After witnessing this great act of self abnegation I rolled in the tiny patch where a few grains of the last meal lay scattered, and half my body that touched it turned to gold. I thought the rest of my fur would also turn to gold if I rolled in the remains of your regal Rajasuya Yagna. But nothing has happened. O Yudhishthir, you killed your Rajdharma when you killed your own brothers to get to the throne, so you may mount great and glorious rituals but they will not generate good will. Dharmaraj indeed!”

How the state failed in Gujarat

The mongoose’s ghost is roaming the streets of India once again in the shape of a woman called Teesta Setalvad. She is pursuing justice for the victims of the 2002 riots in Gujarat. In a country of over a billion she is among the few to ask the question the mongoose posed: Why did the state, despite its monopoly of power, fail in its most basic duty to protect so many from extreme violence and leave them to be slaughtered on the streets as the police watched mutely? She has, understandably, been facing the most suffocating pressures and ugly innuendoes for the past 13 years. But she and her brave band of supporters have not allowed that fratricidal carnage to be pushed out of public memory. Make no mistake. The criminal revision petition she has been chasing on behalf of Zakia Jafri is not just about the riots in a housing society where Zakia’s husband was dismembered and killed by a violent mob. It is about the much larger issue of Rajdharma or what the jurist Indira Jaising calls the Doctrine of Command Responsibility.

According to Hindu scriptures, final accountability for all great acts of sin or redemption, paap or punya, must lie with the leadership in the rajya; A raja becomes a raja only to uphold Rajdharma and to protect the people, not to do as he wills, says the sage Angiras to Mandhata.

It is not Teesta but Rajdharma, that is on trial. We need her just as India after the Mahabharata war needed that half golden mongoose.

Are Akshaya Patra Kitchens What They are Made Out to Be?

The midday meal scheme is an investment in India’s children and future. It seems unnecessary to let religious or other agendas get in the way of this.

Children in an Indian classroom. Credit: Yorick_R, CC 2.0

In recent years, NGOs have become increasingly involved in supplying meals to schools as part of the government’s midday meal scheme, particularly in large urban areas. Akshaya Patra is the largest of these, currently working in 10 states, feeding 1.4 million children each day. Centralised kitchens are vast and impressive. Huge quantities of food are produced in a mechanised manner and in hygienic conditions. The shiny kitchens contrast starkly with the decentralised model where, at best, the food is prepared in a simple kitchen and is cooked and distributed at the school by a local cook (usually a needy woman).

On the surface, it is thus tempting to laud organisations such as Akshaya Patra and endorse the centralised model. Tavleen Singh did just this in the Indian Express on July 19 when she recommended ‘a visit to any Akshaya Patra centre to see the difference between the school meals they provide and what government school kitchens provide’. I have spent the past nine months researching the midday meal scheme and take issue with this endorsement of Akshaya Patra. I believe we need to be cautious about such a simplistic acceptance of NGOs and centralised kitchens.

There are indeed many differences between the school meals provided by Akshaya Patra and school-based kitchens. Firstly, in decentralised kitchens you will find onion and garlic being used. Akshaya Patra does not use these ingredients for religious reasons. It is disconcerting that in a secular country, an organisation in partnership with the government is being allowed to dictate the menu according to the religion of its own promoters. For every Rs 7.40 Akshaya Patra spends per lunch per day, the government provides Rs 4.38. It is not clear why religion should be part of this government food security scheme.

More detrimentally, the NGO’s religious beliefs are also preventing the inclusion of eggs in the scheme in Rajasthan and other states such as Karnataka. Both the poor nutritional status of India’s children and the nutritional benefits of eggs are well documented. There is also a demand for eggs. In my research, I found that of 135 parents, 90% wanted their children to have eggs in school. A quarter of this sample were parents of children attending a school supplied by Akshaya Patra. It is not an absence of demand or even a lack of resources that is stopping these children from getting eggs, but the religious beliefs of the NGO’s promoters.

Secondly, in schools with a well-functioning midday meal scheme, you will find fruit being provided once a week. The weekly provision of fruit is stipulated in government guidelines and is desperately wanted by poor children who rarely consume fruit at home. Although providing fruit is a difficult task for many schools due to the meagre budget, most try. Yet, certainly in their Nathdwara and Jaipur kitchens, Akshaya Patra do not provide fruit at all. This is despite the considerable resources received from the government, CSR funding and donations.

Thirdly, in schools with a decentralised kitchen you will usually find hot and fresh food, cooked by local cooks according to local taste and preference. Visit schools where the food is provided by Akshaya Patra and you will find far blander food and piles of unwanted chapatis. Fresh chapatis at the Akshaya Patra kitchens are quite good. After they have been stored in a container for hours, they are almost inedible. In the centralised model, there is no space for local or cultural preference and no consideration of what people usually eat or want to eat.

Fourthly, in the villages of rural Rajasthan, you will find the needy, mostly Dalit women and often widows, employed as cooks. The work is hard and they receive an almost insulting Rs. 1000 per month, but it does provide a much-needed source of employment. When you centralise the kitchens, this source of rural employment is lost. Fewer people are employed, and preference is not given to the needy.

Further, the National Food Security Act stipulates that centralized kitchens can only operate in urban areas. Yet, for instance, the Akshaya Patra kitchen in Nathdwara supplies the whole block, in violation of the Act. This means that food is kept in containers for many hours before it is consumed raising food safety concerns. The model also prevents community participation.

These concerns extend to centralised kitchens in general. Kitchens run by NGOs are constantly being found to be inadequate and are closed down. For example, a centralised kitchen run by the Naandi Foundation used to supply food in Girwa block in Udaipur district. After many complaints from schools and parents about the quality of the food being provided, the kitchen was closed and the decentralised model was adopted. A 2013 parliamentary report raised questions over the funding of Akshaya Patra and ISKCON and the loss of employment for cook-cum- helpers. Moreover, the very recent CAG audit of the scheme found the suppliers in Delhi were not supplying enough food and in Karnataka ISCKON served 1.04 lakh kg less grain than required.

This is not to suggest that there are no problems with decentralised kitchens. Of course, there are. Time and time again I have witnessed schools without adequate cooking and storage facilities, schools not following the prescribed menus, schools struggling for money because the budget is too low and cooks not being paid on time. These problems need urgent attention, yet the recent budget cuts are likely to exacerbate them.

I am also not suggesting that there is no role for centralised kitchens in the midday meal scheme. Perhaps they have a role to play in large urban areas (although I do wonder whether a more localised system of collective kitchens run by local people might be the better way). Akshaya Patra provides hygienic food regularly and should be commended for this.

But, we need to be careful. Careful of letting seemingly benevolent NGOs supply food according to their own agendas, without regard for guidelines and without rigorous monitoring. Careful of losing sight of what and who the midday meal scheme is for. The midday meal scheme is an investment in India’s children and future. It seems unnecessary to let religious or other agendas get in the way of this.

Lana Whittaker is a PhD student at the University of Cambridge who is researching India’s midday meal scheme