Month: March 2016

How Can Women Be Stopped if Men are Allowed in Temple, Says High Court

Under the Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956, stopping any person, male or female, from entering a temple can lead to a jail term of six months, the court reminds the government.

Mumbai: In a boost to gender equality campaign, the Bombay High Court today observed that if men are allowed in a place of worship then women should also be permitted as no law prevents them from doing so.

The high court while underlining the need for giving equal access to women also stated that any temple or person imposing restrictions can face a six-month jail term under a Maharashtra law, and asked the government to make a statement if it is worried about the sanctity of a deity.

The observations were made by a division bench of Chief Justice D H Waghela and Justice M S Sonak during the hearing of a PIL by senior advocate Nilima Vartak and activist Vidya Bal, challenging the bar on entry of women in the sanctum sanctorum of Shani Shingnapur temple in Ahmednagar district of Maharashtra.

“There is no law that prevents entry of women in any place. If you allow men then you should allow women also. If a male can go and pray before the deity then why not women? It is the state government’s duty to protect the rights of women,” Justice Waghela said.

“If it is the sanctity of the deity that you are worried about then let the government make such a statement.

Under the Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956, if any temple or person prohibits any person from entering a temple then he or she faces a six-month imprisonment,” the court said.

The court also said that the government should give wide publicity to the Act and issue circulars, informing the general public at large about the Act and its provisions.

The court directed government pleader Abhinandan Vagyani to take instructions and make a statement on April 1, on whether or not it will ensure that women will be allowed to enter the temple.

The petition seeks the entry of women not just into the temple but also inside its sanctum sanctorum.

The petition says that the prohibition is arbitrary, illegal and in violation of fundamental rights of citizens.

The debate over the issue in Maharashtra escalated after a woman last year tried to enter and offer prayers at the Shani Shingnapur temple, in ‘breach’ of the age-old practice of prohibiting entry of women

This had prompted the temple committee to suspend seven security men and the villagers to form purification rituals.

Subsequently, the Bhumata brigade led by Trupti Desai had on January 26 launched a high-voltage campaign to breach the ban at the temple and vowed to carry on with its movement for gender justice.

Keeping up the campaign against gender bias at places of worship, around 150 women under the banner of Bhumata Brigade had earlier this month left for the famous Trimbakeshwar temple in Nashik district seeking to break the bar on female devotees at the inner sanctum of the Lord Shiva shrine. Their attempts were, however, foiled by the police

How the Pakistani – and World Media – Have Covered the ‘Indian Spy’ Story

A survey of the press coverage of the alleged Indian spy captured by Pakistani authorities demonstrates that despite more or less balanced reports emerging from regional and western media outlets, Pakistani newspapers have taken his ‘confession’ while in Pakistani custody at face value, and not questioning whether some element of coercion might have been in play.

pap papersNew Delhi: A survey of the press coverage of the alleged Indian spy captured by Pakistani authorities demonstrates that despite more or less balanced reports emerging from regional and western media outlets, Pakistani newspapers have taken his ‘confession’ while in Pakistani custody at face value, not questioning whether some element of coercion might have been in play.

Pakistani coverage

The ‘confession’ of Kulbhushan Yadav is major news for a number of Pakistani media outlets – unlike India where most newspapers downplayed its importance. The news was first lead more or less in most papers, which reported at length on the details of his supposed intelligence assignments for RAW since 2003. ‘Indian spy admits RAW destabilising Pakistan’, was the Express-Tribune headline, ‘Indian spy confesses to terror acts in Gwadar’, was the headline of The News, ‘Yadav confesses to RAW terror role in Balochistan’, said The Nation, ‘Gwadar aur Karachi eham target, Bharti jasoos bol pada, aitharafi video jari’ (‘Gwadar and Karachi the main targets, India spy says in confessional video’) was how Jang, the leading Urdu daily reported the Tuesday’s presss conference where the video was released.

‘Capture of spy proves Indian interference in Pakistan: Army’ said Dawn, Pakistan’s most sober newspaper – its headline departing from the rest by attributing the information about Jadhav (and the assessment of his ‘confession’) to the army. The newspaper quoted the military spokesman as saying Jadhav’s confession “is solid proof of Indian state-sponsored terrorism”. The article reveals that the captured India will be ‘prosecuted as per the law of the land’ and decisions regarding consular access for Indian authorities will be taken at a later date.

The Daily Times presented the capture and confession of Yadav as a major coup for the Pakistani security authorities. The newspaper’s report claims that, ‘In past, Pakistan did arrest many an operative of RAW but never ever a serving officer of the rank of a lieutenant colonel has been nabbed’. The issue surrounding consular access is ignored but the information minister, Pervez Rashid is quoted saying that Pakistan had fulfilled its responsibility by conveying Yadav’s arrest to the Indian ambassador.

The News, the Express Tribune and others have published similar articles, each reiterating the stories that have emerged in Yadav’s video confession. Repeated emphasis is given to an alleged plot to target the Gwadar port in a bid to destabilise Chinese economic relations with Pakistan. Considerable attention is also given the fact that Yadav has claimed to be a serving officer in the Indian Navy, not due to retire until 2022.

The News is the only newspaper to run an editorial on the event,which, even though it conceded to not not knowing “the whole truth”, it saw as something with which Pakistan has “changed the usual equation of power in the region”.  Pakistan, “for once [is] in a position to be asking the questions rather than being forced to answer them”:

The point of releasing the video now must also have been to show the world that it is not just Pakistan that needs to investigate the role of its citizens in attacks on Indian soil; India will now have to reciprocate and investigate its alleged involvement in Balochistan. It is still too early right now to say with any certainty what the whole truth is. But with this one press conference we have changed the usual equation of power in the region and for once are in a position to be asking the questions rather than being forced to answer them.

In all papers a cautious line has been taken regarding the level of Iranian knowledge and involvement surrounding the fact that Yadav has admitted operating from Iranian soil, though The News, the English newspaper published by the influential Jang group, saw an explicit link:

What is more interesting for now is the timing, and more importantly, the announcement of his capture. It took place just one day before the visit of Iranian President Hassan Rouhani and a statement released by Pakistan said that we brought up the matter of RAW involvement in Balochistan. Rouhani, however, denied that it was ever mentioned. This contradiction is significant since Iran has always accused Pakistan of facilitating the cross-border movement of Sunni militants, something we can now pin on India. With an agreement on the gas pipeline nearing completion, it is important for us to pacify Iran.

It also appears that the significance of Pakistani intelligence officials accessing the site of the terror attack in Pathankot has been overshadowed in the media by the release of the video confession. Notably, yet perhaps unsurprisingly, the denial from Indian authorities that Yadav was a RAW agent, and concerns over the validity and authenticity of his confession, have not surfaced in the Pakistani newspaper reports surveyed.

However, in an editorial the Daily Times had a highly positive assessment of the JIT’s visit to Pathankot:

“Despite concerns by India’s opposition parties, the joint probe by Pakistani and Indian security officials can only be welcomed. It is an unprecedented development in the history of bilateral relations between the two neighbouring states who have always indulged in blame-game instead of adopting a better course of action of taking to task those who are responsible for fuelling tension between Islamabad and New Delhi. Instead of criticising this initiative, there is a need to welcome cooperation between the security agencies from both states. India needs to cooperate with Pakistan in finding further clues to those who were involved in spreading terrorism while Pakistan needs to take action against home-based militants. One thing must be clear that the issue of terrorism is a common challenge for both states and only joint efforts can yield positive results for the elimination of this threat. Both India and Pakistan should go ahead with the peace process and work on a common agenda of defeating peace spoilers.”

In its editorial, The News sought to link the Pathankot probe and the arrest of Jadhav, urging his confession be used “as leverage to ensure that India does not unnecessarily blame us for impeding the investigation”:

“Since we are now cooperating with India on the Pathankot investigation and our probe team has reached the site of the attack, we can use Yadav’s confession as leverage to ensure that India does not unnecessarily blame us for impeding the investigation. The point of releasing the video now must also have been to show the world that it is not just Pakistan that needs to investigate the role of its citizens in attacks on Indian soil; India will now have to reciprocate and investigate its alleged involvement in Balochistan.”

Notably, yet perhaps unsurprisingly, concerns over the validity of the video held by Indian officials who described it as ‘forged and doctored’ and representing ‘an internal game within the Pakistani establishment’, did not figure in the Pakistani newspaper reports though many websites noted by Wednesday evening that India had officially cast doubts on the confession.

Regional Coverage

Asian News InternationaI has reported that for Pakistan, the focus is on Iran, not India. The outlet has quoted the Director of Gilgit Baltistan National Congress, Senge Hasnan Sering, saying that it is not an issue of India but ‘an issue of how Pakistan is adjusting itself between Saudi Arabia and Iran’s developing strategic conflict’. Sering has said that capturing a RAW agent is a way to ‘embarrass’ Iran and ‘build pressure’ at a time when Pakistan ‘has to choose a side between Saudi Arabia and Iran’.

In an article covering the meeting between the Pakistani Chief of the Army Staff, General Raheel Sharif and the Iranian President Hassan Rouhani on the 28th March, the Sri Lanka Guardian has reported that the topic of the alleged Indian spy was not discussed. Rouhani is quoted saying, “The rumours start swirling whenever we come closer to Pakistan”. Although General Sharif requested that the Iranian President restrain the Indian Research and Analysis Wing (RAW) from using Iranian soil against Pakistan, Rouhani insisted that Tehran enjoyed brotherly relations with both Pakistan and India but cooperation with Pakistan ‘would benefit the entire region’.

Coverage in the Bangladeshi media has been sparse, with the Daily Star running a brief but balanced online article covering accusations, denials and concerns of the parties involved, most likely owing to the few concrete details available at present.

Western coverage

Western media coverage has been limited on the topic at the time of writing with searches on the websites of most major newspapers failing to return results on the issue.

The New York Times published an article on Tuesday covering the press conference given by the Pakistani military spokesman, Lt. Gen Asim Saleem Bajwa, where the confessional video of Kulbhushan Yadav was shown. Extensive coverage is given to the accusations levelled by the Pakistani authorities but only one short sentence covers the Indian response: ‘India has denied that Mr. Yadav is an intelligence operative.’ No mention is made of the doubts surrounding the validity of the confession and the Indian government’s accusations of ‘tutoring’. The article also highlighted the ‘notable timing’ of the release of the video on the same day that Pakistani investigators were given access to Pathankot, but the matter is not explored further.

On the other hand, the BBC has run the story with the headline ‘Delhi denies arrest of ‘Indian spy’ in Pakistan’. The article covers both the claims made by Pakistan authorities on Tuesday and the concern of the Indian foreign ministry that, despite requests, India has not been given consular access to an Indian national under detention in a foreign country, as is the accepted international practice.

India Must Tackle Global Concerns on the Independence of its Nuclear Regulator

India has managed to create a space for itself at the nuclear high table despite global apprehensions over its nuclear security policy. But it may be time to address these concerns.

India has managed to create a space for itself at the nuclear high table despite global apprehensions over its nuclear security policy. But it may be time to address these concerns.

File photo from 2009 of the Kudankulam nuclear power plant under construction. Credit: Kirstie Hansen / IAEA

File photo from 2009 of the Kudankulam nuclear power plant under construction. Credit: Kirstie Hansen / IAEA

Washington: Prime Minister Narendra Modi will attend the fourth Nuclear Security Summit this week with two basic aims – to mark India’s presence in the front row of responsible nuclear powers and to bolster its case for entering the clubs that do nuclear commerce from which it remains barred.

The main thrust of these summits, initiated by US President Barack Obama in 2010, has been to find ways to better secure all nuclear materials and sites, and prevent terrorists from getting anywhere close to them. The idea is to eliminate the potential for theft, sabotage or any other compromise in security through voluntary pledges, called “house gifts”, and joint efforts by like-minded countries, called “gift baskets.”

World leaders see the threat of nuclear terrorism as real since both al-Qaeda and ISIS are known to be in pursuit of radioactive material to make a “dirty bomb” by combining it with conventional explosives. Late last year, an AP investigation in southeastern Europe revealed the existence of a black market for nuclear materials.

The safety and security question

It can’t be good news that just as Modi is getting ready to hobnob with Obama, a nonpartisan US-based organisation has said India’s nuclear security and safety procedures leave a lot to be desired. The 2016 nuclear security index by the Nuclear Threat Initiative (NTI) ranks India low with an overall score of 46 on a scale of 100. Even though India scores high on certain metrics such as cyber security, response capabilities, on-site protection and compliance with UN resolutions, its overall ranking comes down due to one reason: India “does not yet have an independent regulatory agency, and it has regulations that lack key requirements for security materials.”

The only other countries with weapons-grade material and no independent oversight are North Korea and Iran. India is clearly not in good company. Even Pakistan has an independent regulatory agency, for which it scored a full 100 on the scale. But it has more political instability, corruption, governance deficit, cybersecurity problems and other issues, which brings its overall score down to a low 42.

When asked for comment, an Indian official dismissed the index, questioned its methodology and doubted its conclusions. Every country’s security protocol is its own and best executed and judged by insiders, he said.

Another official said the index is a motivated endeavour. Information on how India manages the regulatory scenario through the Atomic Energy Regulatory Board is available on its website. There is constant review and assessment through inspections.

The NTI index may not be the most accurate reflection of each country’s nuclear reality but it is regarded as a credible resource put together by a team of experts, most of whom are well known in their field.

It then becomes a delicate task for officials to explain how India takes nuclear security with utmost seriousness yet runs its nuclear programme in secrecy. The first can be achieved by joining the circle of summits like the one Obama is hosting this week, but the other raises more questions than any high-flying summitry can answer.

These questions keep bubbling through the subterranean world of nuclear experts whose opinions sometimes shape official thinking and influence outcomes to a greater degree than imagined. The difficulty India faces in becoming a member of the Nuclear Suppliers Group (NSG) can be partially attributed to low-grade hostility of the international nuclear community towards New Delhi.

This hostility among non-proliferation experts originated with the 2008 Indo-US civil nuclear deal, which legitimised India’s nuclear weapons programme for all practical purposes, much to their discomfort. The feeling that India got away too easily has sustained through the years.

The Obama administration, in sharp contrast to the Bush administration, has been lukewarm in taking the next steps after inking the nuclear deal and pushing India’s entry in the four export control regimes – the NSG, Missile Technology Control Regime, the Wassenaar Arrangement and the Australia Group.

Apart from publicly affirming that India is ready for the NSG, Washington hasn’t moved the ball much. But this may be changing as US officials realise it is a legacy issue that must be tackled in the time remaining, especially since India has completed the necessary steps to address complaints that the nuclear deal did not result in business for American companies.

In the meantime, China has managed to float the idea that India can’t come into the NSG without Pakistan. The idea originated in Islamabad and traveled to nuclear conferences where a few Washington nuclear experts sympathetic to Pakistan embraced it. Pakistan knows it can’t get into the NSG because of its history of proliferation, but by twinning itself with India it can try to delay or scuttle New Delhi’s candidacy.

Washington’s non-proliferation community working with key officials in the Obama administration last year also pushed for “normalising” Pakistan’s nuclear programme through a nuclear deal similar to the one with India, a proposal that made New Delhi see red. The idea was ultimately squashed in the face of opposition from various quarters, including the US Congress.

Time for a change?

India is at an important moment in its ongoing quest to be fully accepted and integrated into the global non-proliferation architecture as a responsible nuclear weapons power. So far it has managed to stand alone, bend the international community to its will with patient diplomacy, get the US on its side with the civil nuclear deal and create space for itself at the nuclear high table.

But perhaps it’s time to try a different tack and respond to the international community’s continuing concerns about the Indian policies governing nuclear security and why the lack of an independent regulatory authority should not matter.

George Perkovich, a nuclear expert at the Carnegie Endowment, says the “absence of a truly independent regulator who is not dependent financially or politically on people being regulated raises questions about democratic principles.”

“Culture of safety is not very big in India, yet people are expected to believe that the performance of state organisations in one aspect of national life (nuclear security) is far superior to other aspects of life,” he adds.

An Indian official countered, “Where is the culture of safety in the US with the number of guns in private hands? Can you then extrapolate that the US government can’t take care of its nuclear facilities? This is an absurd way to judge.”

Ironically, India has accepted the inadequacy of the AERB as a regulatory body by signalling its intention to create a more independent and robust Nuclear Safety Regulatory Authority. However, legislative moves to replace the AERB with the NSRA have been hanging fire the past five years.

Making Sense of the Uttarakhand HC Order on Assembly Floor Test

Those critical of the high court’s order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

Those critical of the high court’s order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

Uttarakhand Chief Minister Harish Rawat: Outmanoeuvred. Credit: PTI Photo

Harish Rawat. Credit: PTI

Uttarakhand high court judge U.C. Dhyani’s decision directing the convening of the state assembly  to take up a vote of confidence on the Harish Rawat’s government has raised questions of whether the judiciary has the power to do so.

To critics, Justice Dhyani’s direction upsets the doctrine of separation of powers, a basic feature of the Constitution. A closer examination of the issues involved, however, shows that the criticism is misplaced.

Justice Dhyani justified the direction, on two grounds.

First, the imposition of  President’s rule on March 27, he held, is a colourable exercise of power, because it aimed to frustrate Governor K. K. Paul’s direction on March 19 to the then chief minister to seek a vote of confidence from the assembly at the earliest, but not later than March 28.

If the Centre and the governor were on the same page, Paul could have revoked his direction to Rawat before the imposition of President’s rule and thereby answered the criticism of colourable exercise of power in the negative.

Although the central government relied on the report sent by the governor recommending President’s rule, the need to revoke his March 19 directive to Rawat was apparently not felt either by the Centre or Paul.

This technical lapse came as a blessing in disguise for the ousted chief minister, who persuaded Justice Dhyani to reach a prima facie conclusion that the imposition of President’s rule on March 27, a day prior to the scheduled trial of strength, was a colourable exercise of power.

Therefore, the fact remains that had the governor revoked his direction to Rawat to call a session of the house to prove his majority prior to the imposition of President’s rule, Justice Dhyani would not have found the Centre’s decision prima facie bad in law.

Remedying inconsistencies 

Secondly, although Justice Dhyani expressly refrained from ‘staying’ the President’s rule, as the government has not yet been heard on the merits of its decision, he justified the limited intervention because, as he held, the court should not sit as a mute spectator in the interregnum.

In other words, Justice Dhyani  clearly felt that failure to provide interim relief, as prayed for by the petitioners, would frustrate the end result, even if it is in their favour, and may even make the petition challenging the President’s rule infructuous.

The holding of a one-day session while the state is under President’s rule and the assembly is under suspended animation, may appear to be inconsistent. But the session is being called under the high court’s direction and supervision in order to correct the previous inconsistency of the Centre’s own making.

Justice Dhyani is justified in holding that this initial inconsistency – imposing President’s rule without revoking the governor’s direction – must be remedied.

Despite the popular usage of the phrase ‘suspended animation’, to refer to the state of the assembly during the President’s rule, the phrase does not figure in the president’s notification imposing President’s rule.

What has been suspended under President’s rule are Articles 163, 164 and 189(1). Article 163 deals with the council of ministers to aid and advice governor, while Article 164 deals with other provisions as to ministers. The suspension of these articles pose no problem in holding an assembly session.

However, it is Article 189(1) which could prove to be a hurdle. Article 189(1) says

Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such. The Speaker or Chairman or person acting as such, the provision further states, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.

The suspension of this article may suggest that a session of the assembly, even for the limited purpose of voting in a confidence motion, cannot be held when the state is under the President’s rule.

But Justice Dhyani appears to have assumed – inferred from a reading of the judgment and the Constitutional provisions that have been suspended – that if the result of the vote during the session is kept by the speaker in a sealed cover and submitted to the Court by the morning of April 1, as directed by him, there is no immediate “determination of the question by a majority of votes” as envisaged under the Article.

Justice Dhyani’s reasoning appears to be that the result of the vote could be retrospectively validated, if the court were to conclude that the imposition of President’s rule on March 27 was mala fide, and therefore, was void ab initio.

Other provisions suspended are consequential provisions and these do not come in the way of holding of the session for a limited purpose, as directed by the high court.

Those who are critical of the high court’s interim order must understand that it was an extraordinary intervention, necessitated by the Centre’s controversial decision to impose President’s rule in Uttarakhand.

The Constituent Assembly generally expected that Article 356 would be invoked in extreme situations and would not be utilised as a ‘surgical operation for a mere cold or catarrh’. Dr B.R. Ambedkar hoped that this provision ‘will never be called into operation’ and ‘would remain a dead letter’.

Ambedkar also assured the Constituent Assembly that ‘the first thing the President would do would be to issue a mere warning to a province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution….’

It is clear that the Centre did not follow these principles while imposing President’s rule in Uttarakhand. After all, the passage of the Appropriation Bill in the assembly on March 18 cannot be construed as an irremediable decision, even if it is found that it was not passed by majority. A procedural irregularity could have been corrected by the governor by sending a message to the assembly to pass it afresh.

Legal precedents

The Punchhi Commission on Centre-State Relations had found that the Article had been used 103 times as of 2009.

The Supreme Court’s judgment in SR Bommai v. Union of India (1994) lays down the definitive law on the subject. Article 356, the judges said in that ruling, can be invoked only in cases where non-compliance with the Constitution is of such a nature that it results in situations that create an impasse and are not capable of being remedied, and where the governance of the state has become impossible. Not every violation of the Constitution merits imposition of President’s rule in a state.

One of the important issues decided by the majority in the Bommai case is that state legislative assembly cannot be dissolved merely upon issue of presidential proclamation and before parliamentary approval is accorded as required under Article 356 (3).

The Court read this limitation into the article to place a check on the executive and to ensure that the grant of final relief does not become infructuous. Had the Court not held so in the Bommai case, the present government could have dissolved the Uttarakhand assembly alongside with the imposition of President’s rule.

In the immediate aftermath of the Bommai judgment, senior advocate and former Attorney General Soli Sorabjee wrote in a critique carried in the Journal of Supreme Court Cases:

“A  mere declaration of unconstitutionality without granting consequential relief would be a teasing illusion and in effect confer immunity upon unconstitutional action.  Moreover, judicial review in the absence of grant of full and effective relief would be a futile exercise.  The Pakistan judiciary has adopted a similar approach and granted full relief without any untoward consequences…

Any timorous retreat in future from the robust judicial activism reflected in Bommai will cause serious problems and lead to the pernicious consequence of one or more basic features of the Constitution being invoked to destroy another essential feature, Federalism”.

In Rameshwar Prasad v. Union of India, (2006), federalism suffered because of the Supreme Court’s failure to grant full and effective relief after finding the dissolution of the Bihar state assembly unconstitutional. The Court had missed the opportunity to provide interim relief by not restraining the Election Commission from holding of the next assembly elections during the hearing of the case. As a result, its judgment became an academic exercise, although it resulted in the resignation of Buta Singh, the governor of Bihar at that time.

As in the Uttarakhand case now, Singh had then alleged various allurements had been offered to win over elected representatives to cobble a majority and stake claim to form a government. He recommended the dissolution of the assembly to arrest this trend immediately. That the Supreme Court did not find merit in his reasoning should be a binding precedent for the high court to dismiss the Centre’s claim that it imposed President’s rule in Uttarakhand before the vote of confidence due to allegations of horse-trading.

More importantly, the Supreme Court in the Bommai case agreed with the view that the assembly was placed under suspended animation initially with the intention of providing time and space to political parties to explore the possibility of providing a majority government in the state. Therefore, Justice Dhyani can be said to have rightly used this reasoning to direct the holding of a special session of the assembly.

BJP contradicts previous position

Since coming to power at the Centre, the BJP appears to have forgotten its own suggestions to the Punchhi Commission on safeguards to make the use of Article 356 less arbitrary.

The party told the commission that safeguards corresponding in principle to clauses (7) and (8) of Article 352, which deals with the proclamation of emergency, should be incorporated in Article 356 to enable parliament to review continuance in force of a proclamation.

Clause 7 of Article 352 states:

Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.

Clause 8 of Article 352 states:

Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a  Proclamation issued under clause (1) or a Proclamation varying such Proclamation, –

  • To the Speaker, if the House is in session; or
  • To the President, if the House is not in session, a special sitting of the House shall be held within 14 days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.

That the BJP wanted similar safeguards in Article 356 speaks volumes of the party’s intention to make its use more transparent and less arbitrary.

The session, first directed to be held on March 31, has now been kept in abeyance till April 7, by the division bench of the high court, which heard the appeal by the Central government.

‘My Conscience Keeps Me Going’: Irom Sharmila

Irom Sharmila spoke to The Wire about her struggle, what keeps her going and recent developments in the country.

Irom Sharmila spoke to The Wire about her struggle, what keeps her going and recent developments in the country.

Irom Sharmila. Credit: Akhil Kumar

Irom Sharmila. Credit: Akhil Kumar

New Delhi: Acquitted by a session’s court in Delhi on Wednesday in a case of attempted suicide from 2006, Manipur’s ‘iron lady’ Irom Sharmila has been on hunger strike for the past 15 years demanding that the Armed Forces Special Powers Act be repealed. The 44-year-old has been in custody for almost that entire time, released and rearrested almost immediately every year so that she can be fed through a nasal tube. She has been charged multiple times with section 309 of the IPC for attempting to commit suicide, kept in custody for 365 days (the maximum punishment under section 309), released for a few days, and then rearrested with fresh charges under the same section. She has stated time and again that she is not guilty of the charges against her, as hers is a peaceful protest and not an attempt to end her own life.

Sharmila started her strike in November 2000 after 10 civilians were gunned down by Assam Rifles soldiers at a bus stop in Malom, Imphal.

In Delhi for a two-day hearing, the activist spoke to The Wire in her room in Manipur House on the first day of her hearing, March 29. A policewoman waited outside as activists, students and friends visited her though the day, showing their support. No video recording was allowed.

Irom Sharmila and Kanhaiya Kumar. Source: Facebook

Irom Sharmila and Kanhaiya Kumar. Source: Facebook

Students from the JNU students’ union also visited Sharmila earlier on the same day to express their solidarity. According to a Facebook post by JNUSU president Kanhaiya Kumar, Sharmila spoke to them about wanting to lead a normal life. “But the government does not want that,” she said to them. “That is why they aren’t removing black laws like AFSPA.”

Sharmila was positive about her day in court in her conversation with The Wire, and she has been proven right by the judgment that came in on March 30. “I told the defence counsel, this time let me speak and give my voice to the judge first. He agreed, so I gave my statement to the judge and spoke to my heart’s content. The judge, Harvinder Singh, listened to me patiently and with respect.”

But this case is not the centre of Sharmila’s struggle, and she wants to use her trip to Delhi to meet with the prime minister. “I really want to meet with him, irrespective of his mood. I want to influence him with my presence. I want to ask what kind of government this is, based on violence? What is their focus? The happiness index is declining in the country.”

“Human beings are all equal in the eyes of God,” she added. “The government need to make an effort to connect with discontented voices. Who is a terrorist? How do they come into being? As a society, we need to address the root causes of these issues. Using violence only represents a hollowness.”

Sharmila’s presence is calm and resolute, and perhaps explains how she has been able to keep up her fast for so long. “My conscience keeps me going,” Sharmila said. “People often want to know where my strength comes from – it is from my belief in a humanity where everyone lives with dignity, peace and love. Everyone should experience the wonders of life, we have to share these with each other.”

“I will go on with this struggle as long as AFSPA remains. I feel it is a mission from God. 1,528 fake encounter cases from Manipur are still pending in the Supreme Court.” Sharmila is pensive at times, even saying that her struggle has “matured”. But her hope hasn’t waned completely. “I’m still hoping for a victory, when I can finally celebrate with my life partner [referring to her fiancé Desmond Coutinho] and live a normal life again.”

Post-JNU, We Need a Fresh Debate on Higher Education

Because it funds public institutions, the government thinks its decision to intervene in academic and administrative matters is justified irrespective of lack of due process and the consequences.

Because it funds public institutions, the government thinks its decision to intervene in academic and administrative matters is justified irrespective of lack of due process and the consequences.

An aerial view of Jawaharlal Nehru University, New Delhi. Credit: seaview99/Flickr, CC BY-NC-SA 2.0

An aerial view of Jawaharlal Nehru University, New Delhi. Credit: seaview99/Flickr, CC BY-NC-SA 2.0

The JNU controversy has offered an opportunity to initiate a much-needed fresh conversation on higher education. This conversation is made all the more necessary because the country’s colleges and universities are in bad shape, with most of them quite broken. Unfortunately, however, perhaps or at least in part because key government officials have not shown themselves willing to acknowledge that there are problem areas which need immediate attention and radical reforms, we seem to be arguing and fighting about nearly everything else except higher education. In recent weeks, larger issues of nationalism, sedition, free speech, caste and others have taken centre-stage. In between, JNU has been made out to be a national nuisance of the highest order and even seemingly-sensible people like Chandan Mitra have come up with flighty suggestions such as shutting down the university, even if temporarily.

In all fairness, a few commentators have focused exclusively on higher education in addressing the JNU controversy, notably on issues such as the autonomy of universities and higher education subsidies. One hoped that, once the loud noises over the anti-nationalism of select groups of JNU students and faculty subsided over time, the government and its critics would both make common cause in engaging on higher education with the seriousness it deserves. However, given the government’s posturing and its overall record over the last one and a half years, including higher education, such optimism was perhaps unwarranted. With the police occupation of HCU, it is clear that we are headed for what seems to be a long drawn phase of greater confrontation and less dialogue between the government and its opponents.

What is there to debate?

Foremost among the many issues crying out loud for attention is the poor quality of education on offer at a majority of colleges and universities across the country, both public and private.

For the moment, let us ignore world university rankings and other international comparisons on which most Indian institutions fare quite poorly. The most frightening aspect of the quality problem shows up in employability numbers of college graduates across disciplines. It is estimated that over 75% of college graduates are unemployable. The numbers are dismal for popular areas such as engineering as well. According to a recent report, over 80 per cent of engineering graduates are unemployable.

With India set to become home to the largest student population in the world by 2025, if the employability numbers do not improve fast enough, the country will have to deal with hundreds of thousands of degreed-but-unemployed young women and men who will do more than just shout anti-national slogans. High levels of unemployment or underemployment among the young population – increasing numbers of whom will be packing worthless degrees since the gross enrolment ratio (GER) is rising at a steady clip – is more likely to lead to social protests of the kind we witnessed during the course of the recent Jat agitation in Haryana.

The other inevitable outcome of poor quality education is both a skills gap and skills shortage that threatens to become worse over time, especially in the more skill-intensive sectors of the economy. According to a government report, approximately 119 million additional skilled workers will be required in sectors such as construction, retail, transportation logistics, automobile, and handloom by 2022. If the mismatch between the demand and supply of skills continues to grow, the employment opportunities for the young population will remain limited, generating growing frustration and perhaps to intensification of social protests and conflict with the state. This could seriously hurt India’s growth story, reversing current narratives such as “India’s star shines bright”.

Government officials should seriously worry about the demographic liability that India’s young population may become and the consequences that would follow.

The current government’s emphasis on skilling India is no doubt a wonderful initiative but making it sufficiently successful will be a challenge for the country’s “flailing state” – a term used by Lant Pritchett to describe a state that is lacking in sufficient administrative capacity to deliver on policies – which has a poor-to-moderate record at effective implementation of policies.

It is also important to consider that it is unwise to divorce the task of skilling India from educating India. As Aashish Mehta points out, while education “is not synonymous with skills,” good quality education delivers “foundational skills” without which it may be difficult for individuals to acquire suitable vocational and professional skills.

Why is all this relevant to any discussion on or about JNU?

Whatever its failings, and there are quite a few, JNU is one of the few success stories in India’s higher education. The JNU controversy is therefore an opportunity to acknowledge that, whether or not free speech, anti-nationalism and sedition are as important as are made out by the government and its supporters, JNU provides affordable and good-quality education, something that most higher education institutions in the country fail to do. Also, and this is rather important in the Indian context, JNU is an incredibly diverse institution whose students and faculty have made substantial and lasting contributions to the nation. At the very least, its graduates are less likely to add to the numbers of the unemployable.

The starting point of the conversation on higher education, therefore, could perhaps be about how to build more JNU-like institutions and how to make JNU and other colleges and universities better. A discussion on the latter is extremely important too; JNU suffers from small and big weaknesses that must not be ignored or downplayed. Whatever its strengths, it is not among the world’s leading institutions. These are conversations that need to take place but perhaps never will, because we are keen to settle other more pressing matters first.

The autonomy question

One of the more contentious issues in the JNU controversy, and one that has been sidelined rather quickly, pertains to institutional autonomy.

According to reports, vice-chancellor M. Jagadesh Kumar set up a High-Level Enquiry Committee (HLEC) the next day after the incident of February 9 when “anti-national” slogans were raised during an event on the campus. However, the HLEC was quickly sidelined by the government’s decision to send in the troops to the JNU campus to arrest student leaders. Rather than coordinate its actions with those of the JNU administration, and perhaps wait for the HLEC to investigate the matter, the government chose to undermine the status of the office of the vice-chancellor arguably on (as it turned out) flimsy grounds. At least one right-wing commentator expressed hope that “the government would be more magnanimous, allowing the university to enquire and take any disciplinary action, rather than wading in and arresting students, thereby escalating this conflict.” Since then, the HLEC has submitted its report, which draws attention to the presence of outsiders, with their heads and faces covered, shouting anti-India slogans.

Even if we were to agree that the government was correct in arresting student leaders, the fact remains that the autonomy of India’s universities is routinely punctured both from above and increasingly from below for all sorts of reasons. In the case of JNU, it was over matters of sedition and national security; more commonly, it is about lesser issues such as the appointment of vice-chancellors and directors, or even over courses that should or should not be taught and course content. Indeed, the notion of institutional autonomy appears to frighten government officials. This is quite evident in the delays and negotiations over the IIM bill.

There are also many instances where the government pleads autonomy even when there is a strong case for intervention. For example, government officials kept nearly silent for several months over the serious and proved charges of plagiarism and academic fraud against the vice-chancellor of Pondicherry University. Action was taken against her only after considerable and sustained pressure by students and faculty of the university.  

The issue of autonomy of academic institutions is a matter that has been settled. The BJP’s actions at JNU suggest that the government is determined “to undermine autonomy and control the idea of learning itself.” The government calls the shots because it can, on the basis of the warped logic that because it funds public institutions, its decision to intervene, or not to, in academic and administrative matters are justified irrespective of lack of due process, existing rules and norms and of course, the consequences.

The issue of subsidies

Other than the issue of institutional autonomy, which crops up intermittently in discussions on higher education, the JNU controversy led T.V. Mohandas Pai to raise an issue which rarely comes up for discussion – higher education subsidies. Writing on the JNU controversy, he proposed:

As for JNU, it is time the government asked students to pay the full cost of education; in case students wish to focus on politics and not on their studies, there is no case for taxpayers to subsidise extreme views or an archaic Left.

Mr. Pai’s suggestion that higher education subsidies should be eliminated for institutions whose members subscribe to extreme views or pursue archaic Left politics is clearly biased; however, the issue of subsidies deserves attention.

It has been reported that the MHRD will soon take a decision on the recommendation of the Standing Committee of IIT Council (SCIC) to bring about a three-fold increase in the fees for IITs. A similar increase has already been recommended for the NITs. These hikes are based on the 2011 Anil Kakodkar Committee report, Taking IITs to Excellence and Greater Relevance, which had proposed that “the fee charged by the IITs should cover the full operational cost of education, which works out to be roughly 30% of the total current cost of education.”

It is time that a discussion on higher education subsidies for regular colleges and universities – including JNU and other central universities as well as state universities – also takes place, especially if the problem of poor quality education is to be addressed. Public institutions are cash-starved and they desperately need students and parents to contribute more. It is absurd that students and parents should be spending significantly large sums on private tuitions and on coaching institutes of all kinds than on college tuition. They need to contribute more to colleges and universities because they need the extra resources to improve the quality of education. Among other things, many desperately need more teachers but cannot hire because of resource constraints and make do with part-time faculty.

The issue is not one of maintaining the current level of subsidies or eliminating them entirely but of rationalising them, and not, as Mr. Pai would have it, on the basis of the views held by select students and faculty at particular institutions.

What happens next?

There are no signs that the government intends to back down from its agenda of tightly controlling the higher education sector. Some of the country’s best universities such as JNU and HCU have become sites for the government to more than just flex its muscles to show who is in charge. In the early stages of the JNU controversy, there was a slim possibility that it would scale down its overreaction. That hope has disappeared, almost.

With elections coming up over the next year or so in several states, electoral reversals for the BJP offer the only hope that the government will let public institutions breathe easy. Most political parties respond to electoral losses by changing course and softening their position on conflictual issues. However, others are known to harden their position under the same conditions. In the case of the BJP, losses in Delhi and Bihar typified the latter response. It is impossible to predict if it will act otherwise and moderate its position if it suffers significant losses in the coming state elections.

Pushkar is an assistant professor at the Department of Humanities and Social Sciences, BITS Pilani-Goa.

Time to Bid Farewell to the Great E-Commerce Discount?

In the new government rules, Amazon and Flipkart will be impacted negatively while Snapdeal and other ‘pure’ marketplaces will come out on top.

The new government rules regulating e-commerce marketplaces will impact Amazon and Flipkart negatively, while Snapdeal and other ‘pure’ marketplaces will come out on top.

The new DIPP guidelines seek to crack down on discounting while bringing clarity to the often confusing definition of what constitutes an e-commerce marketplace. Credit: hrp images, CC BY 2.0/Flickr

The new DIPP guidelines seek to crack down on discounting while bringing clarity to the often confusing definition of what constitutes an e-commerce marketplace. Credit: hrp images, CC BY 2.0/Flickr

New Delhi: The government, on late Tuesday evening, released a set of rules that ostensibly tackle the manner in which foreign direct investment can enter the e-commerce industry, but also take a hard look at the corporate structuring of the online retail sector and the impact that deep discounts have had on India’s traditional retail market.

Consequently, while Department of Industrial Promotion and Policy (DIPP) has allowed 100% foreign direct investment (FDI) in the marketplace model of e-commerce, the new guidelines also come with devastating consequences for two of the foundational pillars of India’s online retail industry.

The first biggest take-away is that the DIPP has effectively outlawed discounts, predatory pricing and those “big-billion sales” that fuelled consumer demand even as it burnt millions of dollars in venture capital money. In a list of conditions for companies that accept FDI and operate an e-commerce marketplace, the new guidelines state: “E-commerce entities providing marketplace will not directly or indirectly influence the sale price of goods or services and shall maintain a level playing field.”

The second blow involves the manner in which most e-commerce marketplaces such as Flipkart and Amazon have structured their seller base. To this, the DIPP has attached a condition that reads “An e-commerce entity should not permit more than 25% of the sales effected through its marketplace from one vendor or their group companies.”

Historical perspective: Corporate structuring

In order to understand why the new 25% rule is potentially game-changing regulation, it’s important to understand what exactly the government has announced. For one, it has reaffirmed the long-standing position of disallowing FDI in business-to-consumer e-commerce (B2C).

This has been the legal position of past Indian governments and was the regulatory position when companies such as Flipkart and Snapdeal started out as small start-ups. No FDI in B2C e-commerce means that foreign-funded players such as Flipkart couldn’t operate under an inventory-led model. An e-commerce company, if funded by foreign venture capital, could not simply buy merchandise from various wholesalers, stock that inventory in their own warehouse and then sell those items on a website to online shoppers.

A number of FEMA and FDI violation inquiries and cases prompted Flipkart and Snapdeal to shift from an inventory-led model to an e-commerce marketplace model. In the marketplace model, companies such as Flipkart and Snapdeal merely became an intermediary for sellers and shoppers. The online retailers themselves don’t own inventory.  Anybody from a mom-and-pop shop to a big electronics company like Samsung could earmark some inventory towards an e-commerce company and sell through Flipkart or Snapdeal to its customers.

Though an e-commerce marketplace model may not have been officially allowed, it was seen as a clever work-around that allowed companies to skirt FDI regulations while servicing the Indian market. When Amazon first launched in India, it launched through a marketplace-led, e-commerce model.

Here’s where things get interesting though. The problem with an e-commerce marketplace model is that the quality of service, shopping, delivery and overall customer satisfaction tends to be low. When any seller, regardless of quality, can sign up to be part of the Flipkart or Snapdeal marketplace, faulty delivery orders and fraud are likely to be common occurrences. The famous case of a man ordering a Samsung smartphone off of Snapdeal and receiving a bar of soap instead is a classic example of how marketplace-led models can go wrong.

In order to get around this, what Flipkart and Amazon have done is create a ‘primary seller’; a way of getting around the weaknesses of the marketplace model. For instance, for Amazon, Cloudtail India Pvt Ltd. is the biggest seller on Amazon India and according to some estimates contributes nearly 40% of the company’s sales. Who is behind Cloudtail India though? It’s a joint venture between former Infosys CEO N.R Narayana Murthy’s Catamaran Ventures and Amazon Inc.

On similar lines, Flipkart’s largest seller is WS Retail Services, an organization that can be traced back to Flipkart itself. In this manner, Flipkart and Amazon skirt the FDI regulations on inventory-led e-commerce models while overcoming the weaknesses of a pure marketplace model.

Where the new regulations kick in now is by specifically allowing 100% FDI in e-commerce marketplace, albeit with a rider that “no one vendor on the marketplace should be allowed to contribute more than 25% of the company’s overall sales”. This means that Amazon and Flipkart need to stop passing off a quasi-inventory-led model as a marketplace model. Instruments such as Cloudtail and WS Retail Services will slowly have to wind down and contribute less to the company’s sales, thus ideally resulting in a more level-playing field to India’s traditional retailers.

In a statement, the All India Online Vendors Association, a group of sellers that sell primarily on e-commerce marketplaces, state that the new 25% rule will allow online retail companies to widen their seller base.

“This will curb the malpractices of WS Retail, Vector E-commerce and Cloudtail whose agreements with e-commerce companies are not in public domain,” the statement says.

Amazon and Flipkart have, understandably, not yet officially commented on the new regulations, Snapdeal co-founder Kunal Bahl, on the other hand, has come out enthusiastically in favour of the new guidelines. In a tweet, Bahl said “Always a great feeling when you stick to the course that you believe in, pays off: Focusing on a pure marketplace and not doing inventory.”

Since 2012, Snapdeal preferred a more purer version of the marketplace model, eschewing measures such as propping up a primary seller. While this may have slowed its growth and resulted in quality concerns, it also means it has less overhead and requires less capital to grow. Consequently, the new 25% seller rule will not affect it as much as Flipkart and Amazon.

Discounts disappear!

The second major impact, primarily to consumers, has been the issue of discounts and predatory pricing.

In a strikingly, anti-free market approach, the new guidelines state that online retailers can’t “directly or indirectly” influence the price of goods and services. While this phrasing may sound a little peculiar, it’s been laid out as such in order to deal with the innumerable ways that online retailers fund discounts in the current industry.

The Mint, for instance, details out how Amazon funds discounts by its sellers through a method called ’promotional funding’. E-tailers such as Amazon informally recommend a price that sellers on marketplace should quote while selling a certain time, but doesn’t actually ask them to adopt that particular price. When sellers do fix that suggested price, they can send a “debit note” to Amazon that covers the cost of discounts that they give on a specific item. Amazon then quietly refunds its sellers.

It is unclear at this point though whether other methods of discounts such as ‘cashbacks’ — of which online payment service and marketplace Paytm is a big pusher — will also be viewed as indirect methods of influencing the prices of goods and services.

One way of viewing the DIPP’s note is, therefore, to see it as a way of urging the Competition Commission of India into taking a more proactive stance in making sure there is no predatory pricing. While this is certainly a big blow for online Indian shoppers, who have been weaned away from the offline retail model through low prices, it also offers e-tailers a chance to switch off the money spout; though there is very little reason to believe all online retailers will toe the line and not look for creative workarounds instead.

“This will be a nightmare when it comes to compliance. It would be far better to properly and consistently allow FDI into offline, traditional multi-brand retail. That’s a proper way of bring about a level-playing field,” a top executive of an Indian online retailer told The Wire.

Liability and being an intermediary

These new regulations, on the whole, look to correct the shoddy structuring of the e-commerce industry as a whole, while also laying out methods in which e-commerce marketplaces should interact with their customers. While some of these steps, such as the move to ban discounts, are protectionist in nature, other conditions that come attached to FDI approval are contradictory in nature.

Two conditions in the new guidelines, for instance, state that: “Any warranty/guarantee of goods and services sold will be the responsibility of the seller.. Post sales, delivery of goods to the customers and customer satisfaction will be the responsibility of the seller.”

This essentially means that the guidelines view e-commerce marketplaces strictly as a technological mediator and absolve them of legal liability. If a customer receives a bar of soap instead of a smartphone, they will find it difficult to hold Flipkart or Snapdeal liable.

While online retailers are unlikely to take this to heart, considering that quality of service and delivery is a competitive advantage in the e-commerce industry, it does mean that sellers on e-commerce marketplaces will have to step up and take greater responsibility and not hide behind the Flipkart or Snapdeal brand name.

The decision to give greater responsibility to the seller seems odd when considering how various state governments have viewed Ola and Uber as a technological mediator. In these cases, radio-taxi licences are given out to online taxi companies only after they establish strict background checks and institute safety-call centres in each city that can be used to track down erroneous drivers and receive complaints.

We Are a Day Away from a Small-Time Politician’s Threat to Kill Kanhaiya but Delhi Police Won’t Act

A Meerut-based politician has threatened to shoot the JNU student leader on March 31. So why hasn’t action been taken against him yet?

A Meerut-based politician has threatened to shoot the JNU student leader on March 31. So why hasn’t action been taken against him yet?

Kanhaiya Kumar was attacked by lawyers while being escorted into court. Credit: NDTV screengrab

Kanhaiya Kumar was attacked by lawyers while being escorted into the Patiala house courts on February 17. Credit: NDTV screengrab

New Delhi: Ever since he was charged and arrested with sedition in February, JNU students’ union president Kanhaiya Kumar has had to face all sorts of violence. His troubles seem far from over, however. Most recently, a Meerut-based politician has threatened to shoot him on the JNU campus if he does not leave the national capital by the end of March.

Threat to kill apparently serious

What makes this “ultimatum” of Amit Jani, who has been associated with the Uttar Pradesh Navnirman Sena, serious, is the fact that in the past he has always carried out his threats.

As Jani himself told The Wire, “I have not made a hundred commitments in my life. There have been just about four, but every time, I have stood by my word.”

He proceeded to elaborate: “Whether it was about vandalizing Mayawati’s statues, or not allowing Rahul Gandhi to speak at Meerut in 2009 for a full half hour, as he had called the people of U.P. ‘beggars,’ I have stood by each promise, and have even gone to jail as a result. I opposed Shiv Sena when it attacked North Indians in Maharashtra. We attacked their offices and nearly 20 FIRs were filed against us. I also opposed Azam Khan on several issues.”

Jani is clear about what he wants to do. On March 28, he made his threat public through a Facebook post. It stated:

“There are just four days left in the ultimatum of leaving Delhi. Tell us, countrymen, should we get them bombed? All preparations have been made. Boys are ready and so are the weapons! We will do it silently, without any information so that they do not disappear like Owaisi… I swear it on Maa Bhagwati, I would leave politics if I am unable to get them shot in JNU.”

On the same day, Facebook blocked Jani’s page with the message – “The page you requested cannot be displayed right now. It may be temporarily unavailable, the link you clicked on may be broken or expired, or you may not have permission to view this page.”

Even so, Jani’s post received over a thousand likes and comments and was shared widely.

And despite its content and popularity, the Delhi Police has not taken cognizance of the threat.

When asked why the police have not taken suo motu cognizance of the threat to kill the student leader, an officer at the Vasant Kunj North police station said that he had received no complaint, and added that the police would only be able to act if a complaint was lodged.

For his part, Jani insisted that while Kanhaiya was charged with sedition and arrested for the developments on the JNU campus on February 9, no action has been taken against him for criticising the Indian army and allegedly speaking against the goddess Durga. He told The Wire: “They have not even registered a case in these matters and I want to avenge this mistake. I have threatened to shoot Kanhaiya unless he leaves Delhi by March 31.”

Shedding light on his state of mind, Jani further said that he has been troubled by the developments over the past few years and has now lost interest in his business and family.  “When anti-national slogans were raised in JNU, I felt what was going on in the country. I am an ordinary man. I am a stupid aam aadmi. I feel angry. I am very sensitive. I become happy and sad at small incidents,” he explained. “So I wrote about it on Facebook.”

Asked why he wants to take the law into his own hands, Jani responded: “The key difference between me and those who do not have faith in the system is that after this shootout, I will not run, I will not hide. I will not run away from the judicial process. I will face the case.”

Clearly oblivious to the consequences of his actions, Jani said: “I am prepared to go to jail. Sher Singh Rana killed Phoolan Devi and admitted to the crime. So will I. The issue is not of my organisation. I know that if there is a shootout in JNU then I will go to jail … I will be booked for either murder or attempt to murder.”

Violence against Kanhaiya began in the Patiala House courts

Ever since he was arrested for sedition in February, Kanhaiya has had to face violence from right-wing vigilantes.

The first attack on Kanhaiya took place on February 16 in the Patiala House courts premises, by lawyers both inside and outside the courtroom, including a BJP legislator.

A few days after this attack on February 22, a sting by a news channel captured three lawyers confirming that they had indeed assaulted Kanhaiya Subsequently, on February 27, another video emerged, this time filmed by advocate Haren Rawal, who was part of the team sent by the Supreme Court on February 17 to assess the situation at Patiala House courts. In Rawal’s video, Kanhaiya claimed that one of the lawyers who had attacked him inside the courtroom was allowed by the police to leave.

Though the video footage of the Patiala House courts attack shows several lawyers attacking Kanhaiya, the police have acted against only three of them so far. Two of these three lawyers, furthermore, were arrested only after the sting that showed them bragging about their assault on Kanhaiya was released.

Outlandish rewards for harming Kanhaiya

Following the release of Kanhaiya from Tihar Jail on March 2, some small-time politicians issued a reward to anyone who could physically harm him.

Kuldeep Varshney, a Bharatiya Janata Yuva Morcha leader in Badaun, Uttar Pradesh, announced a reward of Rs 5 lakh to anyone cutting off Kanhaiya’s tongue. Varshney was subsequently suspended for six years from the primary membership of the party.

On March 5, posters that read – “Whosoever shoots JNU Students’ Union president and seditionist Kanhaiya will be rewarded Rs. 11 lakh on the behalf of Purvanchal Sena,” were found pasted on a wall near Press Club of India and at bus stops and metro stations in New Delhi. They carried the mobile number and name of Adarsh Sharma, and identified him as the president of Purvanchal Sena.

Curiously, the Delhi police initially thought of charging him with only  “defacement of public property.”

Two days later, on March 7, they arrested Adarsh Sharma and booked him on charges of abetment of an offence, punishable with imprisonment; public mischief; criminal intimidation and forgery. The police said that Sharma had put out the posters to gain publicity, as he had not received any media attention when he contested the elections for the Purvanchal Mahapanchayat. Earlier, he had also contested the assembly election from Nangloi Jat in West Delhi.

Interestingly, Sharma offered a reward of Rs 11 lakh but had only Rs 150 in his bank account at the time, and also owed several months’ rent to his landlord.

Jani’s threat latest in a long series

On March 10, Kanhaiya was manhandled and abused at the JNU administrative block by a man who accused him of being a traitor and “anti-Army.” The man, identified as Vikas Chaudhary, a resident of Ghaziabad in neighbouring Uttar Pradesh, later said he wanted to “teach Kanhaiya a lesson” for, allegedly abusing the army, accusing soldiers of committing rapes in Jammu and Kashmir, raising anti-India slogans and supporting anti-nationals.

Then, two weeks later, on March 24, Kanhaiya was attacked in Hyderabad while there to protest against the return of the vice-chancellor of the University of Hyderabad, Appa Rao. This time a piece of footwear was hurled at him by a cow protection activist, Naresh Kumar, just before he was about to address a conference. Fortunately for Kanhaiya, the slipper missed its mark.

Through all these attacks and threats, Kanhaiya has put up a brave face. But, naturally, his family have been concerned about his safety. On March 8, Kanhaiya’s grandfather Bal Krishna Singh moved a court in Begusarai district of Bihar demanding action against Adarsh Sharma and Kuldeep Varshney.

With Jani’s threat looming large and the Delhi Police still not acting on it, Kanhaiya and his supporters have no option but to fend for themselves.

Many Issues Stand in the Way of India, the EU Agreeing on a Free Trade Deal in Brussels

India needs to bring about comprehensive structural and legal reforms to negotiate a balanced free trade agreement.

India needs to bring about comprehensive structural and legal reforms to negotiate a balanced free trade agreement.

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Many issues need to be resolved before India and the EU can ink a free trade deal. Credit: PTI

International trade and foreign investment have come to occupy pivotal roles in international relations today. For India and the EU, this holds true too. Thus, what is likely to dominate the 13th India-EU Summit at Brussels is discussions on the pending India-EU Free Trade Agreement (FTA).

India and the EU first started negotiations in 2007 on an FTA to cover trade in goods, services, intellectual property and foreign investment. However, 13 rounds of negotiations have not yielded a treaty to regulate trade and investment between the two sides.

Some analysts argue that it is in India’s interest to conclude an FTA with the EU in order to mitigate some of the export losses that it may suffer on account of trade diversion due to mega FTAs like the Trans Pacific Partnership, a trade treaty between 12 countries who together account for more than 50% of global GDP.

Whether India will gain from an FTA with the EU depends entirely on the nature of the FTA signed between the two sides. Will the ongoing summit provide an opportunity to revitalise the moribund trade and investment talks?

The question is pertinent for India as well as the EU. A preferential access to the European market is critical in view of India’s exports falling continuously for past 15 months. India’s exports to the EU contracted by around 4.5% to $49.3 billion in 2014-15. For the EU, greater access to the Indian market is equally critical in view of the economic slowdown in Europe.

Tariffs, intellectual property issues

Any major breakthrough in the FTA talks is contingent upon India and the EU agreeing on many issues, which continue to put a spoke in discussions.

First, in terms of trade in goods, any FTA tries to bring down the tariff rates from the most favoured nation (MFN) rates. In fact, one of the major demands of the EU is that India should lower its tariff rates on European automobiles and wines and spirits. A lowering of tariffs may well result in greater trade with the EU, but for India this may mean more imports than exports. There will be a greater opening in the Indian market for European goods than in the European market for Indian goods. EU tariff rates are already quite low and thus, apart from sectors like textiles and fisheries, India’s exports to the region might not increase significantly if tariffs are cut.

In goods trade, the real issue for India is non-tariff barriers such as sanitary and phytosanitary measures, and technical barriers to trade. The EU has been imposing stringent labeling requirements and trademark norms, for instance, which have dented India’s exports. About two years ago, India’s export of Alphonso mangoes to the EU suffered due to stringent non-tariff barriers.

Second, in terms of trade in services, for India to benefit from an FTA with the EU, it needs strong binding promises by the EU on liberalising trade in services especially for the supply of services in what are known as modes 1 and 4.

Mode 1, as defined in the General Agreement on Trade in Services under the WTO, covers a range of outsourcing activities such as business, knowledge and legal process outsourcing. According to one estimate, Europe is a $45 billion potential outsourcing opportunity for Indian IT vendors. Thus, a legal commitment by the EU to outsource would immensely help India by creating many jobs. Mode 4 covers temporary movement of natural persons. Liberalisation under mode 4 would mean the EU allowing more Indian professionals preferential access to the European labour market, which could boost remittances from the EU to India. However, given the high unemployment rates in the EU due to economic slowdown, one is not sure to what extent the EU is willing to make commitments to liberalise trade in services.

Third, in the area of intellectual property (IP), the major disagreement is regarding IP protection standards. The EU is keen that India should adopt stringent IP protection standards even if that means going beyond the WTO specified standards that all countries, including India and the EU, have multilaterally agreed. India will not and should not agree to additional protection measures as this could compromise public health and raise other compelling concerns. This is a deeply disturbing trend seen in many FTA negotiations, where developed countries shift negotiations on IP standards from the WTO and World Intellectual Property Organisation to FTAs.

The problem of India’s model BIT

India’s new model bilateral investment treaty (BIT) is another major contentious issue, especially for foreign investment.

Stung by foreign investors suing India under different Indian BITs, India adopted a defensive model BIT in 2015, and would hope to use it as the basis to negotiate the investment chapter in the FTA.

The model BIT does not contain an MFN provision, excludes taxation measures, and makes it mandatory for foreign investors to exhaust domestic judicial and administrative remedies for at least a period of five years before pursing a claim under international law.

Given the experiences of major European companies such as Vodafone and Cairn, who are battling the imposition of retrospective taxes by India, the EU is deeply concerned about the protection of its investments in India. It is quite unlikely the EU will accept any proposal that might be detrimental to the interests of their foreign investors.

In fact, these provisions in the Indian model BIT also go against Indian companies who are investors in the EU.

Another major issue is that India already has a BIT with many European countries such as the UK, Germany and the Netherlands, and also with East European countries. What would be the fate of these investment treaties if the India-EU FTA were to become a reality?

Internal reforms needed

Notwithstanding these sticky issues, given the fact that negotiations at the WTO are stalled, India has no option but to play the FTA game with the EU and other countries to reap the benefits of international trade.

Whether India is able to protect its interests depends on its ability to negotiate balanced treaties. Equally, it depends on India being able to bring about comprehensive structural and legal reforms, such as making it easier to do business and imposing a single, comprehensive goods and services tax.

Till these reforms are carried out, it will be difficult for Indian goods and services to become globally competitive and harvest the benefits that a balanced FTA may offer.

Prabhash Ranjan is an assistant professor of law at South Asian University. (pranjan1278@gmail.com)

Freedom Under Fire: Beaten Up for Not Saying Bharat Mata; Professor Suspended; Kanhaiya Talk Stopped

A round-up of news, mostly bad but some good, on the rights front from India.

A round-up of news, mostly bad but some good, on the rights front from India.

Freedom of expression is your right. Credit: rhinman/Flickr, CC BY 2.0.

Credit: rhinman/Flickr, CC BY 2.0.

Madrasa students beaten up in Delhi for not saying ‘Bharat mata ki jai’

Three Muslim boys aged between 17 and 21, Dikash, Ajmal and Naeem, were allegedly thrashed by a group of men at a park in Delhi’s Begumpur area for not saying ‘Bharat mata ki jai’. One of the boys has sustained a fracture, Hindustan Times reported. In his statement to the police, Dilkash said that he along with his friends were taking a stroll in the park when five men came and hit them from behind. They started abusing them and ordered them to chant the slogan. When they refused, the men started beating them up. The boys then managed to run away to the mosque where they study in the madrasa, they said.

According to a Times of India report, police officials have said that the boys did not mention the slogan in their statement and they found out about it from other sources. A case has been filed under IPC sections 323 (voluntarily causing hurt), 325 (voluntarily causing grievous hurt) and 341 (wrongful restraint). The FIR was registered on 29 March, though the incident occurred on March 26. According to The Hindu, police officers claimed that this delay was because they were waiting for medical reports. The students have identified two of the attackers who live in the neighbourhood.

Kanhaiya’s AMU visit cancelled after opposition from right-wing groups

Jawaharlal Nehru University students’ union president Kanhaiya Kumar was meant to visit Aligarh Muslim University on April 2 to speak at a convention on nationalism, but the trip has been cancelled following protests from Hindutva groups and the ABVP, The Hindu reported. Sources said the university administration told the organisers they wanted to avoid “possible controversy as the right wing groups had been trying to create controversies with regard to the university and target it over baseless and completely false accusations”.

Ranchi professor suspended for inviting ‘mentor of anti-nationals’ from JNU

Associate professor at the Central University of Jharkhand (CUJ) Shreya Bhattacharji has been suspended by the vice-chancellor for inviting JNU professor NM Panini to an event marking Sardar Patel’s birth anniversary, Indian Express reported. The suspension order states: “Prof Panini is considered as mentor of the group of students of JNU, who were involved in anti-national activities in JNU campus recently. As such, the invitation to Prof Panini by Dr Shreya Bhattacharji, without examining his credentials, led to widespread criticism from different quarters of the society as a result of which not only the image of the University was tarnished as well as the reputation of the Vice-Chancellor was put on stake”. It also refers to Panini as “a person of disputed integrity”.

Panini, however, claims that the VC had also extended an invitation to him, but later said that the event was cancelled.

Editor’s Guild report on Chhattisgarh: ‘Journalists under attack by state, non-state actors’

In a report on recent arrests of journalists in Chhattisgarh and threats to journalists, the Editor’s Guild fact-finding team has said that the region is fast becoming a conflict zone and journalists are “under attack by state and non-state actors”, Indian Express reported. The report goes on to say: “There is a general perception that every single journalist is under the government scanner and all their activities are under surveillance. They hesitate to discuss anything over the phone because, as they say, ‘the police is listening to every word we speak’”. The Editor’s Guild report also added that government officials have “categorically denied these charges”.

The report expressed a special concern towards stringers, as they are often “appointed without any formalities” and disowned once they are “seen as a liability”.

Hrithik Roshan’s “affair with the pope” comment gets him into legal trouble

Hrithik Roshan has been served a criminal notice under section 295A of the IPC over a social media comment he made on the pope. According to an NDTV report, the notice has been sent by Abraham Mathai, all-India president of the Indian Christian Voice. The notice reads: “Our client Dr Abraham Mathai, who is a Christian by birth and faith … is extremely hurt by your disobedient and inexcusable comments, which has hurt the religious feelings and sentiments of majority of Christians across the world”.

In January this year, Roshan tweeted: “Ther r more chances of me having had an affair with d Pope dan any of d (Im sure wonderful)women d media hs ben naming (sic)”. The actor was referring to reports of his alleged affair with Kangana Ranaut.

Supreme Court dismisses plea against Bangladeshi author Taslima Nasreen 

The Supreme Court on Monday refused to entertain a plea seeking deportation of controversial Bangladeshi author Taslima Nasreen and cancellation of her visa given by the Indian government, Indian Express reported. The appeal was filed by NGO ‘All India Human Rights and Social Justice Front’, alleging that she has been violating the Foreigners Order, 1948 and the Foreigners Act, 1946 by airing her views without prior permission. “Do you think we have don’t have any other work to do,” the judges said while dismissing the plea.

Do you know of any other incident we should highlight in this column? Write to me at jahnavi@cms.thewire.in.