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Anshul is a Political Science and Law graduate from the University of Delhi. He is interested in political and legal developments in India and around the world and frequently writes on related themes. You can contact him on anshulkumarpandey [at] gmail [dot] com.

Wednesday, November 30, 2016

The Election of President Donald Trump

Note: In keeping with President-Elect Trump's utter disregard for facts, no links are being provided in the article below.

Defying all the poll predictions, controversial real estate business tycoon and television celebrity, Donald J. Trump, was elected as the 45th President of the United States on Wednesday, 9th November 2016. The date is important, as it will go down in history as the day on which one of the most remarkable events in the 21st Century took the world by surprise. A substantial number of world leaders seemed to be in a state of panic and confusion, as most of them had been preparing to congratulate Mrs. Clinton as the next President. However, in a spirit that has defined his entire career, The Donald, as he is known to the American public, defied all odds and traveled the narrow path to victory which led him to the White House.

Unconventional and Bitter Campaign

Mr. Trump was roundly slammed by the mainstream media, his Democratic Party opponents as well as colleagues within the Republican Party, for his outlandish policy proposals as well as controversial statements denigrating immigrants, women, minorities, veterans, the disabled etc. which led many to conclude that he did not possess the temperament, experience or the wisdom required for the post of the Commander in Chief of the American armed forces. To the majority of observers, his campaign seemed to be mired in endless controversy and on the verge of implosion, which suggested that either he was not serious about his bid to become the President or more dangerously, that he seriously believed in everything that he was advocating. His constant about turns on his own statements, coupled with a complete disregard for factual accuracy, flustered long time political observers on both the right and the left, who were shocked at the unprecedented show of callousness from a major party nominee. The general consensus, before going to the polls, largely among the educated and opinionated section of the American public, was that Mr. Trump was seeking to capitalize on a wave of resentment caused by the export of American jobs to other countries, fears regarding immigration, racial tensions and general stereotypes against anyone who was not a white male American. This was in stark contrast to the long line of preceding American Presidents, including incumbent President Barack Obama, who had sought the highest office of the country, by associating themselves with the shared values of the American people. One thing more that separated Donald Trump from all the recent Presidents was that he had no prior combat or political experience. He was a TV celebrity cum real estate business tycoon, who was perceived fit to entertain and not to govern.

Hobbled by deep distrust, extremely bad press, just a handful of endorsements, grim poll predictions and a lesser budget than his opponent, The Donald went around his rallies, telling people about the number of votes that he had polled in the primaries ('highest in the republican primary history'), denying the fact that his statements were controversial, denying climate change as a scientific fact, threatening to jail his opponent and promising 'extreme vetting' for immigrants coming from countries 'compromised by terrorism'. In short, he just remained himself. And, perhaps, therein lay his key to the oval office, because, in complete contrast, his opponent, Democratic Presidential Nominee Hillary Clinton, 'the most qualified candidate for the office of President in the United States History' according to President Barack Obama, came across as a darling of the 'establishment', never letting people know what she really thought and never uttering a word in public that was not scripted, and hence being 'fake'. Trump was the original bigot, Clinton was the fake saint.

A day before the polls, the election experts, political commentators, reporters, journalists, pollsters and vocal public opinion was convinced that Trump had a very very slim chance of becoming the President while Clinton was the favorite. There had been some last moment ups and downs with both the campaigns which had increased anxieties, but had done nothing to signal that the applecart has been completely upset.

Election Night

As the votes began to come in, people around the world settled down for some time to relive the moment from 2008, when Barack Obama had won the election against his Republican rival Sen. John McCain and had thus become the 1st African American President in the United States History. If Hillary Clinton were to win this election, which she very well was, the American people, women in particular, would have clinched another historic first, that of the election of the first female President of the United States. The added bonus seemed to be the satisfaction of seeing the loss of Donald Trump, who was smeared as the symbol of orthodox patriarchy, treating women as objects and workers as disposables, basking in the company of white supremascists and outright fascists, defying the established norms of his own party (not for good, for worse) and being an insufferable racist in general. If everything was to go down well with the results, liberal Americans would wake up the next day filled with pride and happiness.

One by one, as all 'battleground' states went to Donald Trump, pride, happiness and hope vanished from the faces of those supporting the Clinton campaign. By the time it had become clear that Mr. Trump was going to become the next President of the United States, Mrs. Clinton had locked herself in a hotel room, probably because her campaign had not thought it as important enough to draft a concession speech, and her many female supporters outside were reduced to tears in the face of the 'impossible'.

The people had spoken. Donald Trump was going to be the 45th President of the United States of America.

and Acceptance

The power of the verdict of the United States Presidential election was on full display as the markets around the world tumbled, world leaders scrambled to prepare a strategy of dealing with the incoming Trump Administration and people in America rioted on the streets, repulsed by the outcome. How could the impossible happen? How could the same states who had voted to elect President Barack Obama, now elect Donald Trump? How could the people trust such a xenophobic, racist, misogynist, run of the mill bigot? How could the people NOT trust Hillary Clinton, who had dedicated 30 years of her life fighting for them?

The answer was there for everyone to see, if only they wished to see it. The countryside of the United States was reeling with loss of jobs, reduction in standard of living, ageing infrastructure and hostility to immigration. By dismissing these claims as the claims of a racist, sexist, xenophobic - in short - politically incorrect mob, the Democratic Party alienated a large section of the working class of the country, trying to pursue a loftier 'global' agenda. While as a consolation it can be said that Mrs. Clinton polled nearly 2 million votes more than Mr. Trump, the fact is, there is no runner's up trophy in a Presidential Election. You either win or you lose. And Donald Trump had won according to the electoral college system that determined the winner of the race.

Soon, the focus shifted from the loss of Mrs. Clinton to the win of Mr. Trump. Was Donald Trump serious about pursuing the outlandish policies that he had vaguely outlined while running for the office of President? What all had he said about the specific issues that concerned other countries? No one had thought it worthy enough to listen to what Mr. Trump had to say on various issues of ancillary concern to the American public, as his remarks were always controversial and he wasn't winning anyway. Now that he had won, an American newspaper observed, the same kind of remarks, from now on, would determine troop movements and market sentiment.

Indo-US Ties under President Trump

The question of single most importance to an Indian observer is, how is President Trump going to conduct his Foreign Policy? What is going to be the future of Indo-US ties under his administration and what does India stand to gain, or, more importantly, lose, from such a foreign policy? 

The President-Elect has grumbled about the number of H1B visas being provided by the US, while those close to him have expressed dismay over the number of Asian CEOs in the Silicon Valley. However, in an event organized by the Republican Hindu Coalition, the President-Elect professed his admiration for "the Hindus" and Prime Minister Modi. He has promised that under his administration, India and America are going to be the "best friends".

In keeping with the President-Elect's campaign promise of fighting "radical Islam", India should use all available opportunities to shore up support against the proxy war being fought in Kashmir by Pakistan through the use of terrorism.Unlike any other President, President-Elect Trump has indulged in unprecedented behavior with respect to his policies and campaign promises and therefore it would be too early to comment upon the shape that Indo-US ties will take in the future. Only time will tell.

Tuesday, October 18, 2016

BRICS and the Art of Stonewalling

At the recently concluded BRICS Summit in Goa, China once again came to the rescue of its all weather ally Pakistan and stonewalled any attempts to name Pakistan based terrorist outfits JeM (Jaish E Mohammad) or LeT (Lashkar E Taiba) in the Goa Declaration, instead agreeing only to a watery reference of "relentless pursuit against terrorist groups so designated by the UN Security Council".  

However, India forcefully put forward its views on state sponsored terror with Prime Minister Narendra Modi describing it as the "mother ship of terrorism". Emphasizing that the growing arc of terrorism today threatens Middle East, West Asia, Europe and South Asia, India submitted that "the most serious direct threat to our eco-prosperity is terrorism". Slamming Pakistan even further, PM Modi said that the country not only shelters terrorists, but that it also nurtures the mindset of terrorism. 

These comments are in line with the strategy of isolating Pakistan diplomatically on international forums, adopted by the Indian government after the Uri terrorist attack. The gains from this strategy may not fructify overnight, as many in the mainstream media, habituated to a 'breaking news' culture, seem to think. The fact that BRICS grouping's main focus is on Investment, Trade, Energy and Infrastructure is not lost on anyone. By forcefully putting forth its views on cross border terrorism, India has sent out a clear signal that development cannot be delinked from security and that at least for the Indian government, development and security go hand in hand and are not mutually exclusive.

BIMSTEC to the Rescue

Displaying his unconventional style of conducting Foreign Policy, PM Modi extended an invite to six countries - Bangladesh, Bhutan, Nepal, Myanmar, Sri Lanka and Thailand, which are a part of Bay of Bengal Initiative for Multi Sectoral Technical and Economic Cooperation or the BIMSTEC grouping. While the Thai premier was unable to attend because of the recent demise of the Thai Monarch, all the other countries were represented by their leaders who welcomed the invite.

Not only did the BIMSTEC countries actively participate in the summit, they also endorsed India's stand on terrorism. In complete contrast to the Goa Declaration, the BIMSTEC Leaders' Retreat Outcome Document 2016 noted:
Recognizing that terrorism continues to remain the single most significant threat to peace and stability in our region, we reiterate our strong commitment to combat terrorism in all its forms and manifestations, and stress that there can be no justification for acts of terror on any grounds whatsoever. We condemn in the strongest terms the recent barbaric terror attacks in the region.We strongly believe that our fight against terrorism should not only seek to disrupt and eliminate terrorists, terror organizations and networks, but should also identify, hold accountable and take strong measures against States who encourage, support and finance terrorism, provide sanctuary to terrorists and terror groups, and falsely extol their virtues. There should be no glorification of terrorists as martyrs. We recognize the need for urgent measures to counter and prevent the spread of terrorism, violent extremism and radicalization. We express our determination to take concrete measures to step up cooperation and coordination among our law enforcement, intelligence and security organizations.
The language employed in the above mentioned document is forceful and checks all the right boxes for India. What was not so soothing, however, was the ambivalent stand taken by Russia.

The Tight Rope to Moscow

Considering the stiff opposition by China, and keeping in mind the national interest of Russia in the face of EU-US Sanctions, President Vladimir Putin did not stress too much on India's position on cross-border terrorism, but did not exclude it from his remarks either. At the end of his remarks in the restricted meeting with PM Modi, he said that "one of our priority issues is combating terrorism together".

The Indian Prime Minister sought to rekindle the warmth of time tested friendship that India enjoys with Russia by remarking that an old friend is better than two new ones. The joint statement released at the end of the meeting between the two leaders noted:
India and Russia recognize the threat posed by terrorism, and believe that the full implementation of the relevant UNSC resolutions, the UN Global Counter-Terrorism Strategy without application of any double standards or selectivity will be instrumental in countering this challenge.....They stressed the need to deny safe havens to terrorists and the importance of countering the spread of terrorist ideology as well as radicalisation leading to terrorism, stopping recruitment, preventing travel of terrorists and foreign terrorist fighters, strengthening border management and having effective legal assistance and extradition arrangements. Furthermore, stressing the need to have a strong international legal regime built on the principle of ‘zero tolerance for direct or indirect support of terrorism’, both sides called upon the international community to make sincere efforts towards the earliest conclusion of the Comprehensive Convention on International Terrorism (CCIT).
It is clear that India understands the need to balance the growth of its bilateral relations with the United States with the deft handling of relations with its old friends like Russia, because Moscow and Washington have many antagonistic positions on issues of global concern. The agreement to buy the S-400 ‘Triumf’ air defence systems from Russia, worth over $5 billion, and to collaborate in making four state of art frigates besides setting up a joint production facility for making Kamov helicopters, is an attempt to walk the tight rope of seasoned diplomacy.


Zhou Enlai famously said that all diplomacy is a continuation of war by other means. Although China's stonewalling of India's continued efforts to isolate Pakistan diplomatically on every international forum might not be a call for a diplomatic war, but it certainly is a thorn in the flesh for the bilateral relations between both the countries. The Indian government will be well advised to play its cards cautiously while dealing with Beijing, as there is more to gain through trade and cooperation rather than by annoying an increasingly assertive neighbor. Though China might continue to protect Pakistan from severe international backlash, India must continue its newfound strategy to isolate Islamabad, as it is an improvement upon the previous policy of passivity in the face of terror and is bound to yield substantial gains, sooner rather than later.     

Monday, September 19, 2016

Uri Attack: Hard Choices before India

In yet another example of cowardly proxy warfare promoted by the Pakistani Army and the Inter Services Intelligence (ISI) Directorate, four heavily armed militants infiltrated the Army Headquarters in Northern Kashmir's Uri Sector in the Baramulla District and killed 17 soldiers, in one of the worst attacks on the army in 26 years. The Indian Director General of Military Operations (DGMO) Lt Gen Ranbir Singh said
"All four killed were foreign terrorists and had some items with them which had Pakistani markings. Initial reports indicate that the slain terrorists belong to Jaish-e-Mohammed Tanzeem (militant group). Four AK-47 rifles and four under-barrel grenade launchers along with a large number of other war-like stores were recovered from them."

"Days of Strategic Restraint Over" 

The government and the ruling party both issued strong statements, with BJP General Secretary Ram Madhav asserting that the days of strategic restraint were over. He said:
"We feel that the time for strategic restraint is over. India needs to tackle this menace with a firm hand and we need to take proactive measures. That is why Prime Minister has said that perpetrators behind the attack shall not go unpunished. Terrorism is the policy instrument of cowards and in this case the footprint of involvement of our neighbour is all over there. They have been using terrorism as a state policy in the most cowardly manner to attack, maim and kill people, soldiers as well as civilians, in our territory."
The Prime Minister too condemned the attack and in a series of tweets asserted that the perpetrators of the attack will not go unpunished. The Home Minister, who was to visit the United States and Russia, cancelled his trip and called Pakistan a "terrorist state" and appealed for its global isolation.

The statements, coming from both the ruling party and the government, are unparalleled in their severity and point to the increasing escalation in the tensions between both India and Pakistan. Indeed, with an elected leader commanding an absolute majority at the center, India possesses the political will necessary to take swift and punitive action this time against Pakistan, "at a time and place of its choosing".  

The numbers provided by a report in the Economic Times are alarming with regard to infiltration of terrorists from across the border and demonstrate the extent to which India's patience has been stretched thin. For example, in 2011, there were 247 infiltration attempts, followed by 264 attempts in 2012, 277 attempts in 2013 and 221 attempts in 2014. 13 infiltrating terrorists were killed in 2012, followed by 38 in 2013, 52 in 2014 and 37 in 2015.

Death by a Thousand Cuts

Ever since it realized that it stands nowhere in terms of conventional warfare when it comes to India, a fact that led to its ignominious defeat in three wars, the Pakistani Army and the ISI seem to have perfected terrorism by non-state actors as a means of sub-conventional warfare, a strategy which has come to be known as "death by a thousand cuts". A dysfunctional and failed state apparatus in Pakistan has meant that while the Pakistani Army and the ISI execute their nefarious plans through their remote control of Pakistani Defense and Foreign Affairs, the civilian leadership is left to deflect the blame, obfuscate the issue and deny any wrongdoing.

In such a scenario, where the real power is exercised by the Army, talks with Pakistani Civilian Leadership are just a hogwash designed to keep India engaged while simultaneously inflicting multiple terror attacks in Jammu and Kashmir and Punjab to stoke militancy and unrest. Parity with India is an obsession in Pakistan and an economically, strategically as well as globally resurgent India does not help their strategic imperatives. In fact, Islamabad has repeatedly scuttled any attempts at establishing good relations between the two countries, either by sponsoring terrorism against India, ceding a part of its illegally held territory in Kashmir to China or by repeatedly trying to internationalize the issue of Jammu and Kashmir while carrying out massive human rights violations in its own province of Baluchistan.

It is for India to realize that it is futile to expect any major changes in Pakistan's attitude given that there is a diffusion of power between various stakeholders in Pakistan. 70 years of Pakistan's existence has shown that it is happy to remain a satellite state of one major power or the other (earlier it was the US and now its China) and that its leadership, both civilian and military, is motivated by personal pecuniary interests coupled with Indophobia, which rationalizes the existence of the state in the first place, and has no vision of an independent foreign policy or resolving domestic issues amicably. In short, the average Pakistani be damned but the Generals need their kick by instigating India. In an interview with Arnab Goswami of Times Now News Network, Prime Minister Modi admitted as much when he said that there are different forces working in Pakistan.

A House Divided

While the reaction among Indian media, political and strategic experts and civil society at large has been that of taking stringent action to stop the flow of terror from Pakistan, on the other hand there is the usual clique of naysayers who have characteristically put their numerous if's and but's in the debate.

Shivam Vij, writing in the Huffington Post, advises the Indian government not to engage Pakistan militarily as it could backfire. Among the reasons cited are "risk of war", "risk of failure", "international pressure", "economy" etc. In short, let there be status quo ante and what if our few soldiers are dying, we can absorb the losses. The Left Parties, are perpetually in favor of an unconditional political dialogue, even when their own Members of Parliament were humiliated by the separatist leadership on their recent visit to the state. I am constantly amazed by the fact that the Left Parties still have Members in the Parliament. This opinion piece by Mohammed Zeeshan in DailyO starts by stating that India can't effectively respond to Pakistan anyway, asks it to decide on a consistent course of action towards Islamabad and says that the only consistent course of action towards Islamabad is Track-II dialogue and maybe economic sanctions. But that's a big maybe.

It is this multiplicity of opinions in the face of terror that stopped successive governments since the outbreak of the militancy in Jammu and Kashmir since 1990 from taking any concrete steps against this proxy war. These governments were also hampered by the fact that all of them were coalition governments requiring endless debates and discussions, cajoling and cooing, to come to any conclusion. However, Prime Minister Modi has no such compulsions. The country has given him a decisive mandate with full majority in the Lok Sabha and the ball is now in his court and he has to make some hard choices if he wants to fulfill the election promises he made in the run up to the 2014 General Election.

Options Before Us

India must boldly consider moves that it has refused to consider so far fearing escalation and risk of failure. The dream to become a superpower can never become a reality without ensuring that the cardinal duty of a nation state is fulfilled, i.e. achieving security for all its citizens. Given below are some of the steps that India can consider while formulating its future strategy viz-a-viz Pakistan.

1. PoK is Indian Territory, Take Out Terrorist Camps: Kashmir formally acceded to India in 1947 but Governor-General Mountbatten made the accession conditional on a plebiscite. According to the resolution passed in the United Nations, a plebiscite could only take place when Pakistan vacated its troops from the region. Since it has not done so for the last six and a half decades, India should now treat the matter with an iron fist and carry out surgical strikes in the PoK to take out any terrorist camps being run in the region to spread militancy and unrest.

2. Scrap Article 370: It is only India's constitution which guaranteed full autonomy to the State of Jammu and Kashmir in the form of Article 370 which limited the center's role in the state to defense, foreign affairs and communications. Pakistan was not able to formulate its constitution for a long time and when it finally attempted to do so, it did not grant any autonomy to their side of Kashmir. The result was that although the demography in PoK has undergone a profound change since 1947, the demography of Indian Kashmir more or less remains the same (except for the exodus of Kashmiri Pandits in 1989). With no industries due to militancy and security situation in the state and not much tourism or trade either, the people of the valley unofficially live in a ghetto where Azadi is a chimera, poverty a reality and darkness is most probably the future.

3. Balochistan: India should maximize its efforts to fix the international spotlight on the massive human rights violations perpetrated by the Pakistani Army in Balochistan. It should patronize the human rights organizations working for Baloch Rights and grant citizenship to prominent Balochistani activists working for the cause. By increasing its contact and network among the Balochi activists, India can in future attempt to create similar militancy and unrest in Balochistan as exists in Kashmir today.

4. Disrupt Pakistan's Aid Infrastructure: Pakistan is a bankrupt state surviving on the aid distributed to it from numerous capitals across the world including the United States. India must bring its enormous international goodwill to bear upon these states (except China) and must categorically state that any aid to Pakistan will only go towards the funding of non-state actors and towards maintaining the luxurious lifestyles of Pakistani Generals, and hence should be stopped. India's diplomats are among the finest in the world and they would be able to bring results if given a clear mandate to do so.

5. Tackling the Dragon: China, Pakistan's all weather ally, should be handled in a different manner. It is no use grandstanding before a nation that has everything to gain by keeping the factors that fuel instability in the region alive. We must leave no stone un-turned in creating hurdles in the implementation of CPEC (China Pakistan Economic Corridor) while simultaneously baiting China in the South China Sea. We must make it even more difficult for Chinese businessmen to do business in India when we know that the money earned will only be used against us. We should also make it clear that China's strategic imperatives do not precede India's and that terror is not acceptable as a stratagem.  


The National Security Advisor Ajit Doval and Defense Minister Manohar Parrikar, celebrated as doers and men of their word, have lost their face before the public due to the repeated terror attacks taking place on the Indian soil and the failure to counter them. Their role in guiding the Prime minister as he contemplates the future course of action is going to be critical and can make or break their reputation in the time to come. It is hoped that the Indian leadership does not squander away the huge mandate accorded by the public to the government and wipes the menace of militancy and terrorism from its very roots.    

Sunday, September 18, 2016

All You Need To Know About The Bhanwari Devi Case That Led To The Formation Of The Vishakha Guidelines

This was published in Indiatimes

Sexual assault is a serious offense which has destroyed the reputation of many a public figure. Whether it's ex-TERI Chief Rakesh Pachauri here in India or comedian Bill Cosby in the United States, the offenders are swiftly isolated from the society, no matter how high they sit, and are brought to stand trial in the court of justice. However, it wasn’t always this way. The case of Vishakha v. State of Rajasthan in 1992 was the landmark case where the Supreme Court dealt with the question of safety of women from any kind of sexual harassment at the workplace and laid down detailed guidelines for the same.

Bhanwari Devi was a Saathin working in the Women’s Development Project of the Rajasthan Government. The state government had recently launched a campaign against child marriages and Bhanwari Devi took an active part in spreading the influence of this campaign in her area. She tried to stop the marriage of a one-year-old girl and was furiously resisted by the villagers. In 1992, she was raped by five villagers in front of her husband for her temerity to stop an evil practice from spreading further. The district court acquitted all the five accused.

The matter came before the Supreme Court via a Public Interest Litigation (PIL) filed by a group of NGOs by the name of “Vishakha” in which the petitioners urged for judicial intervention to make workplaces safer for women due to the legislative inactivity in this regard. The Supreme Court observed that India was already a signatory to Convention on elimination of All Forms of Discrimination Against Women (CEDAW) and held that international conventions are to be read into the fundamental rights to enlarge their scope and advance their objective. It thus read the provisions of CEDAW (signed by India in 1980) in Articles 14, 15, 19 and 21 of the Constitution and laid down binding guidelines to be followed by every private and public sector employer to ensure the dignity and safety of women in the place of employment.

This was a landmark step by the apex court as it strayed into the territory of the executive by issuing guidelines which were binding, and hence, were law. The judiciary cannot make the laws, it can only interpret them, but in Vishakha vs State of Rajasthan, the Supreme Court resisted such orthodox theoretical interpretation of separation of powers and proved that it would not hesitate to occupy the space vacated by the legislature by its inaction, to meet the ends of justice. For this, the Supreme Court earned a fair share of criticism with some critics citing this judgment as an example of judicial overreach.

However, the passage of time has proved that the Supreme Court was correct in intervening in this regard. Today, due to the power and reach of social media and other information networks, sexual harassment has emerged as a very serious issue in our public discourse. However, back in 1992, it had not acquired the sense of seriousness that it commands today. Fundamental Rights were supposed to be enforceable ‘vertically’ i.e. an individual could only enforce them against the state. But through this judgment, the apex court ruled that in some worthy instances, fundamental rights were also enforceable ‘horizontally’ i.e. by one individual against another.

While there have been numerous cases where women have secured justice and a safer work environment for themselves by pursuing litigation against employers indulging in sexual harassment, there have also been some cases where this shield accorded to women has been misused to file frivolous cases and to bargain for higher pay and promotions. Therefore these guidelines have come to be known as a “double edged sword” which can secure justice for worthy litigants and can also cause havoc for those abusing it to secure petty personal gains.

Meanwhile, the legislature has sought to shake off its decades-old attitude of treating such issues regarding the safety and dignity of women lightly. This is less because of a genuine awareness regarding such issues and more because of the fear of ceding their power to the judiciary. The 2012 Nirbhaya Gang Rape case has galvanised public support for enacting tough measures against the culprits indulging in this sort of sexually predatory behavior.

It is to be noted that even though more than 20 years after the judgment in the Vishakha case was passed, the parliament has still not passed a comprehensive legislation directed at combating sexual harassment against women at the workplace. It can only be hoped that our parliamentarians heed the developments in this regard and take urgent steps to ensure a welcoming environment for women in both public and private spaces of employment.

Saturday, July 9, 2016

The Next Step For LGBTQ Rights In India - Scrap Or Amend Section 377 From The IPC

This was published in Indiatimes

After the unexpected decision of the Supreme Court in Suresh Kumar Koushal v. Naz Foundation, where it recriminalised homosexuality, efforts have increased to either amend or scrap Section 377 from the Indian Penal Code. It is conceded even by members of the ruling dispensation that Section 377 violates the right to equality and right not to be discriminated on the basis of sex as well as right to life and liberty as enshrined in the constitution. Some of the steps taken in this regard are enumerated below.

Rights of Transgender Persons Bill, 2014

On April 24, 2015, The Rajya Sabha unanimously passed the Rights of Transgender Persons Bill, 2014, which provides for reservation in education and jobs, financial aid and social inclusion for transgenders. It is rare for any house of the parliament to pass a private member’s bill, and this particular bill, moved by DMK’s Tiruchi Siva, became the first bill in 45 years to be passed in the Rajya Sabha. The Government has also assured to bring an updated bill in the Lok Sabha after removing some technical anomalies.

Curative Petition on Sec 377 in Supreme Court

The Supreme Court is currently hearing oral submissions on a curative petition filed against its judgment recriminalising homosexuality. It is rare for the judges to hear oral submissions on a curative petition, and decisions on such petitions are taken usually after the judges confer with each other. However, this departure from practice is being seen as an acknowledgment by the apex court of the changing social realities. It is to be noted that the curative petition against Sec 377 is the last legal resort for the petitioners to get any relief on this issue.

Medical Opinion

Medical Opinion in India has undergone a radical change since the days when arguments were repeatedly advanced claiming homosexuality to be a disease that can be cured. The Indian Psychiatrists Association, in a statement released in February 2014, said that there is no evidence to substantiate the claim that homosexuality is a mental illness or a disease. Earlier in 2011, in representations before the Supreme Court, the Vice President of the Indian Medical Association submitted that homosexuality is not a disease or mental illness.

Emerging Political Consensus

In view of international developments with regard to the issue of homosexuality, political consensus in India is also slowly building up. From Arun Jaitley of the BJP to P. Chidambaram of the Congress, political leaders have expressed their opinions supporting homosexuality. The RSS too has climbed down from its earlier position of vehement opposition to the decriminalisation of homosexuality to maintaining ambiguity on the issue. The Aam Aadmi Party and the CPI(M) have outrightly demanded the reversal of the Supreme Court Judgment in Suresh Kumar Koushal v. Naz Foundation.

Pride Parades and Awareness Building

The most stringent opposition to homosexuality comes not from the legal or political circles, but from the society where it is still frowned upon. However, the LGBT community has taken a number of steps to spread awareness about same-sex couples and homosexual relationships, including the organisation of various pride parades in major Indian cities and constituting LGBT groups in many college campuses. Various internet magazines and radio channels are dedicated to covering LGBT issues and spreading their culture. LGBT issues have featured prominently in Bollywood films such as My Brother Nikhil, Honeymoon Travels Pvt. Ltd. and Aligarhleading to a slowly building acceptance of the community.

The Road Ahead

With major developed countries like the United States, Canada, United Kingdom, New Zealand, South Africa, France etc. legalising gay marriage and homosexuality in general, it would be tough for the Indian government to drag its feet any longer. One can reasonably expect the Supreme Court to either strike down Sec 377 or for the current parliament to pass a bill decriminalising homosexuality in the country. In short, the question is not of “if”, but more of “when”.

Monday, July 4, 2016

Everything You Need To Know About Section 377 Of Indian Penal Code And The Story So Far

This was published in Indiatimes

Section 377 of our constitution, introduced with the Indian Penal Code way back in 1860, criminalises sexual acts “against the order of the nature”. This Victorian era statute was struck down by the Delhi High Court in 2009 in the famous Naz Foundation case, but the decision was overturned on appeal by the Supreme Court in 2013, which reasoned that the matter relating to LGBT rights and decriminalisation of homosexuality should be left to the legislature.

There is widespread support for the scrapping of Section 377 among the enlightened sections of Indian society, including eminent lawyers, jurists, renowned writers, political activists, journalists, doctors, actors, producers, directors, teachers, students etc. The Supreme Court judgment overturning the Naz Foundation case has come in for heavy criticism as it runs against the history of the apex court acting as a champion of the underprivileged. 

What was the Naz Foundation Case?

In Naz Foundation vs Govt. of NCT of Delhi, the issue before the two-judge bench of the Delhi High Court was whether Section 377 of the Constitution violates the fundamental rights of the LGBT community and if so, should it be struck down as unconstitutional? And should homosexual acts between consenting adults be legalised?

The bench of Justices Ajit Prakash Shah and Justice S. Muralidhar answered in the affirmative and read down Section 377 holding that it violated Articles 14, 15 and 21 of the constitution, which guaranteed the right to equality before law, right not to be discriminated on the grounds of sex and right to life and liberty respectively.

The Appeal – Suresh Kumar Kaushal vs. Naz Foundation

In their appeal in the Supreme Court, the petitioners argued that Section 377 does not classify any particular group or gender and hence is not in violation of Articles 14, 15 and 21 of the Constitution. They also argued that if the High Court judgment was approved by the Supreme Court, “India’s social structure and institution of marriage will be detrimentally affected and it would cause young people to be tempted towards homosexual activities”. They finally submitted that the Supreme Court could not legislate and it should leave the matter of legality or illegality of Section 377 to the Parliament.

Sadly, the Supreme Court accepted the arguments advanced by the appellants and observed that Section 377 is the only law that criminalises pedophilia and crimes like sexual abuse and assault. It also reasoned that if Section 377 was a pre-constitutional statute and if it were in violation of any fundamental right, the framers of the constitution would not have included it in the first place. Based on such observations, the apex court overturned the decision of the Delhi High Court.

Subsequent developments

The decision by the Supreme Court was met with heavy criticism and a general outcry from the intelligentsia, but was welcomed by many religious groups. However, some religious organiaations have begun favoring decriminalisation of homosexuality keeping in view the worldwide trend of acceptance for the practice.

Congress MP Shashi Tharoor has introduced a private member’s bill twice in the Lok Sabha to decriminalise homosexuality, but has been unsuccessful in getting it passed. Many voices within the government, including Finance Minister Arun Jaitley, have favored decriminalisation of homosexuality. In February 2016, the Supreme Court agreed to review its decision in the Suresh Kumar Koushal case and referred the curative petitions filed against the decision to a five-judge constitution bench.

The LGBT community in India is no more a minuscule minority as was made out by the apex court in its judgment. It is a thriving community whose members include prominent public figures such as renowned author Vikram Seth, fashion designers Rohit Bal and Manish Arora, film directors Karan Johar and Onir etc. Today, there are various LGBT groups in college campuses across India, which are doing spectacular work in spreading awareness about the LGBT community and in combating homophobia.

As the practice of homosexuality starts getting acceptance worldwide, it is only a matter of time before the Parliament and the Supreme Court in India get rid of the Judeo-Christian morality imposed on the Indian public by Section 377 and give the LGBT community in India their right to lead their lives with dignity.

Thursday, June 9, 2016

Modi's Speech to US Congress: Culmination of Bipartisan Effort for Closer Indo-US Ties

As India's Prime Minister Narendra Modi travelled to Washington to address the joint sitting of the US Congress, becoming the fifth Indian Prime Minister to do so, Indo-US ties reached a new high in a saga of deepening cooperation between the two democracies. Banned for about 9 years from travelling to the United States, the Prime Minister must be credited for not holding a personal grudge and instead focusing on the advancement of India's national interest through closer cooperation with the United States, a policy which has been pursued strongly by his predecessors. Indeed, endorsement by the United States, Switzerland and Mexico for India's entry into the Nuclear Suppliers Group (NSG), an elite club of 48 nations governing trade in items used for nuclear technology, is the culmination of a coherent Foreign Policy followed in this regard by Prime Ministers Vajpayee and Manmohan Singh even in the face of strong opposition at home.

Hesitations of History 

Prime Minister Modi, in his 45 minute address to US Lawmakers, emphasised that Indo-US relations have overcome the hesitations of history. It is a poignant phrase which wonderfully captures the troubled relationship India and the United States shared at the time of the Cold War. A newly Independent India followed a policy of non-alignment as opposed to its neighbour and rival Pakistan, which opted to become a member of SEATO (South East Asia Treaty Organization) and CENTO (Central Treaty Organization), both military alliances modelled on the lines of NATO and lead by the US, for safeguarding its security interests. As time passed, India increasingly became close to the Soviet Union for its security needs, especially through the Treaty of Peace, Friendship and Cooperation signed in the backdrop of Indo-Pakistan war of 1971.

The ties plummeted to an all time low when India conducted its nuclear test in 1998. Codenamed Operation Smiling Buddha, the covert nature of the tests left the intelligence community in the west red faced and led its failure to detect Indian preparations for an imminent test being known as "intelligence failure of the decade". The United States and other European Nations imposed sanctions, which were lifted by President George W Bush in an effort to stitch together a global alliance against terrorism following the 9/11 attacks. Economic and Strategic cooperation between the two countries began to pick up given the converging geo-political interests and economic reforms at home, but India continued to be a victim of nuclear apartheid by reason of its being excluded from important institutions like the NSG and MTCR (Missile Technology Control Regime), denying it an opportunity to engage in trade of nuclear technology with other nations.

Indo-US Civil Nuclear Deal

What changed the contours of the relationship between the two countries was the hard push given to and the personal leadership shown with regard to the Indo-US Civil Nuclear Deal by Prime Minister Manmohan Singh in 2008. The soft-spoken Prime Minister who was accused of lacking real power and the ability to take decisions on his own, showed uncharacteristic defiance and stuck to his guns in order to support the Agreement with the United States, even risking his own government. The Left Parties famously withdrew support to the United Progressive Alliance, and the government was saved through the outside support of several regional parties. 

Manmohan Singh's leadership also benefited Indo-US relationship in the aftermath of the 2008 Global Financial Crisis, when he and President Obama developed personal rapport and a close working relationship. In his own address to the US Congress, Prime Minister Singh called India's non-proliferation track record as "impeccable" and said that the country neither has, nor will, support the proliferation of sensitive nuclear technology to third countries. He also gave a call for the end of nuclear apartheid against India and an early admission of India to NSG. In his speech to the Indian Parliament in 2010, President Barack Obama endorsed India's case for a permanent seat in the United Nations Security Council, thus taking one more step in the direction of strong Indo-US ties. 

Strategic Autonomy to Strategic Alliance

Prime Minister Narendra Modi, seeking to build on the progress made by his predecessors, has shifted the focus of Indian Foreign Policy from Strategic Autonomy to that of Strategic Alliance. This is a policy which is mindful of the rapidly changing geo-political realities in the region as evidenced by the strong and deepening partnership between China and Pakistan. Nations cannot change their geographies, but they cannot be tied down by their neighbours either. Modi seeks to develop India into a major manufacturing hub and needs enormous foreign direct investment to make that dream come true. The Indian Economy is a lone bright spot in the current global scenario with a growth rate of 7.5% and a young population with majority of its citizens below the age of 35 years. 

In his speech to the US lawmakers, Modi tried to leverage both these strong points and also made a case for closer economic and strategic cooperation and reiterated his focus on government's flagship initiatives like Skill India, Smart Cities, Digital India and building rail, road and port infrastructure. In agreeing to ratify the Paris Climate Change Deal in exchange for a US led push for India's entry into the NSG, the Prime Minister also displayed the Gujarati characteristic skill of striking a good bargain. His call for greater investment from US Businesses drew serious attention given the slowing down of the economy of China and increasing strains in US-China bilateral ties. 

A Roadblock Named China

One of the strategic objectives of a closer Indo-US relationship is to secure the freedom of navigation in the seas particularly in the Asia Pacific region. China's increasing assertiveness in the South China sea has seriously impacted the security considerations of the countries such as Japan and Australia. The United States has led an effort to check China's activities in the region and prevent a major conflict from taking place. Closer Indo-US ties would go a long way in counterbalancing China's influence in the region and maintaining a balance of power in the South Asian region. 

There are obvious implications. China is leading an effort to block the entry of India in the NSG, demanding that its ally Pakistan also be admitted under a "non-discriminatory approach" if India's entry is to be considered. This is obviously not possible since Pakistan has a horrible proliferation record (Iran and North Korea acquired nuclear technology from A Q Khan, father of Pakistan's nuclear program) and its entry into the NSG would render the body meaningless. 

As the United States gets ready to elect a new President, Prime Minister Modi will have to act to make sure that the gains made so far in the Indo-US ties continue to bear their fruits irrespective of the kind of administration that takes charge next. He must improve India's human rights record and continue to protect the interests of India's religious and ethnic minorities while delivering sustainable economic growth. The deepening relations between the world's oldest and the world's largest democracies will significantly benefit people of both the countries if allowed to blossom to their maximum potential.  

Wednesday, June 8, 2016

Everything You Need To Know About The KM Nanavati Case - How An Affair Turned Friends Into Foes

This was published in Indiatimes

This is a story involving an extra-marital affair that resulted in a murder. The trial of the murderer generated unprecedented media coverage and the circumstances in which the murder took place resulted in huge public sympathy for him. This is also one of the first cases through which the maverick lawyer, Mr. Ram Jethmalani, came into the limelight for the first time.

Kawas Maneckshaw Nanavati was an Indian Naval Officer who had settled in Mumbai with his English wife, Sylvia, and their two children. As his work required him to be away from his family for long periods of time, his wife began an affair with his friend Prem Ahuja. Sylvia wanted to divorce Nanavati and marry Ahuja, but he refused. Distraught by the refusal, she spilled the beans about the affair to Nanavati when he returned to his family.

Nanavati was enraged, but he did not show it. He dropped Sylvia and their two children to a nearby cinema hall, proceeded to the Naval Docks from where he withdrew his pistol and six cartridges on an excuse, finished his shift and went to Ahuja’s office. He did not find him there. He proceeded to Ahuja’s flat and confronted him there asking whether he would marry Sylvia and take in his children.

He refused.

Nanavati shot him dead.

After committing the murder, he proceeded to the Provost Marshal of the Western Naval Command, where he confessed to his crime. The Provost Marshal asked him to surrender before the Deputy Commissioner of Police, which he did. Nanavati was an upright, moral and patriotic officer who did not have any prior history of criminal activity. The jury that heard his trial was sympathetic to his suffering and declared him to ‘not guilty’ by a majority of 8-1.

Ram Jethmalani, a young lawyer at the time, was assisting the prosecution on the request of Ahuja’s sister Mamie Ahuja. The trial court judge found this verdict to be perverse and referred the matter to the High Court.

Throughout the trial, the Bombay Daily Blitz, which folded shop in the 90s, championed the cause of Nanavati. One copy of the magazine, which was usually priced at 25 paisa, was selling at 2 rupees per issue at the height of the trial. The coverage of the trial pitted the Parsi and Sindhi communities in the city against each other. When the matter reached the High Court, a sentence of life imprisonment was read out, upon which Nanavati preferred an appeal to the Supreme Court.

The Supreme Court confirmed the verdict of the High Court in November 1961. Blitz now went into an overdrive. It published a mercy petition in its pages, forcefully conveying the sentiments of the Parsi community which was wholly in favor of pardoning him. The rule of law and the demands of the society had clashed with each other. It was obvious that one had to bend in favor of the other.

Around the same time, Vijayalakshmi Pandit, newly appointed Governor of Bombay and sister of Prime Minister Jawaharlal Nehru, received a mercy petition from Bhai Pratap, a prominent Sindhi leader, in March 1962. Bhai Pratap had a business of import-export of sport goods and bureaucrats around her agreed that he could be pardoned. Pandit pounced on the chance. Bhai Pratap could be pardoned, she reasoned, after Nanavati had been pardoned. This way, both the Parsi and the Sindhi communities would get what they want. The proposal was conveyed to Jethmalani, who was asked to convince Mamie Ahuja for the same. She acceded to the government’s request.

Soon after being pardoned by the government, Nanavati left for Canada along with his wife and two children and was never heard of again. He died in 2003. Sylvia is still alive.

The case has inspired several Bollywood movies, plays and books including R K Nayar’s Ye Raaste Hain Pyaar Ke (1963) starring Sunil Dutt and Leela Naidu, Gulzar’s Achanak (1973) starring Vinod Khanna and Lily Chakraborty and Indra Sinha’s book The Death of Mr Love (2002). It is also rumored that Akshay Kumar and Neeraj Pandey’s latest offing Rustom, is based on the case. 

Even after 50 years, the Nanavati case continues to have a tremendous recall value among a public infamous for its short memory. The question that animated discussions in countless chai shops of Bombay at the time of the trial remains relevant till today - “What would you have done if you were in his shoes?”

Tuesday, May 31, 2016

The Darkest Hour In Indian Judicial History - When The Supreme Court Surrendered Its Autonomy During Emergency

This was published in Indiatimes

Today, most Indians have an implicit faith in the Supreme Court righting any wrongs done to any citizen by the government. But there was a dark period during the Emergency (1975-77) when even the Supreme Court bowed down to the diktats of the government and robbed the citizens of the country of their final hope of grievance redressal.

What was the case

ADM Jabalpur v. Shiv Kant Shukla, or the Habeas Corpus case as it came to be known, was a blot on the judiciary. No citizen had any right to move to the courts against any arbitrary action by the government, which resulted in the loss of his/her liberty or even life.

Four of the five judges on the Supreme Court bench came to this conclusion at a time when Mrs. Gandhi's emergency regime was rounding up opposition political figures, trade unionists, student leaders, civil society activists etc. and throwing them into jail for their crime of speaking up against the brutal emergency regime. This violated the most fundamental principles of democracy with impunity.

How it led to the making of draconian law

Chief Justice A N Ray, beholden to Mrs. Gandhi for his appointment as the Chief Justice after superseding other senior judges, chose to disregard the unanimous conclusion advanced by all the other high courts of the country on the same question. They all agreed that, even in the darkest period of political turmoil, a citizen could approach the high courts under Art. 226 of the Constitution for appropriate remedy through writ jurisdiction. CJI Ray chose to overrule all those judgments and closed the gate of the courts to the ordinary citizen of the country demanding justice in very unjust times.

The Judge who didn't budge 

Justice H R Khanna, the lone dissenting judge on the Supreme Court bench that decided ADM Jabalpur, paid the price for his dissent when he was superseded by Justice M H Beg for the post of Chief Justice. 

What's Habeas Corpus

The phrase "Habeas Corpus" means "have the body" and is usually used to challenge illegal detention by the government. Its roots can be traced back to the Magna Carta of England in 1215. When the SC decided to rob the citizens of the remedy through Habeas Corpus, it not only dealt a blow to the principles enshrined in our constitution, but also positioned itself against a legal principle dating back more than 750 years and recognised by all civilised democracies around the world.
How the case unfolded

Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. Soli Sorabjee and Mr. Anil Divan argued for the detainees. The government was represented by Attorney General Mr. Niren De. The Attorney General argued that the detainees had no right to move to the court under a writ of Habeas Corpus as all fundamental rights including Article 21 of the constitution were suspended during the emergency. This lead Justice Khanna to ask, "Article 21 also contains life. Would government arguments extend to it also?"

The Attorney General replied, "Even if life was to be taken illegally during the Emergency, the courts are helpless".

The Attorney General would later justify his outrageous defense of the Emergency with these words, "I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel." 

The Habeas Corpus case has been dubbed ”the biggest blow to the Supreme Court – by the Supreme Court” by the People's Union for Civil Liberties. Justice V R Krishna Iyer, an eminent jurist, called the judgment a disgrace at par with an American judgment that ruled that Negroes were slaves to be owned, not humans who could own. H M Seervai, another eminent jurist, said that through the judgment, the four Supreme Court justices had propounded the maxim "lawlessness be thou our law". 

As for Justice Khanna and his role during the gloomy days of the Emergency, these words from an editorial by the New York Times are more than enough to sum up the tale of one of the darkest cases in India's judicial history:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society, and the Indian Supreme Court’s decision appears close to utter surrender.

Friday, May 13, 2016

Everything You Need To Know About Aruna Shanbaug, Whose Case Led To India's Euthanasia Debate

This was published in Indiatimes

At some point in your life, through friends, popular media or your school or college, you must have come across the term "mercy killing". The legal term for mercy killing is euthanasia and the consequences of legalising it, have over time, become a heated debate among India's intellectual, political and legal circles. The case that led to this heated debate was that of Aruna Ramchandra Shanbaug v. Union of India.

Aruna Ramchandra Shanbaug was a nurse in the King Edwards Memorial Hospital in Mumbai when she was assaulted by a sweeper of the same hospital while changing her clothes in the hospital basement. During the assault, she was tied with a dog chain around her neck, which cut off oxygen supply from her brain and rendered her in a permanent vegetative state for the next 42 years.

From the day of the assault till the day she died, Aruna could only survive on mashed food. She could not move her hands or legs, could not talk or perform the basic functions of a human being. Journalist-Activist Pinky Virani, who had published a book regarding her case titled Aruna's Story, filed a writ petition under Article 32 before the Supreme Court of India, asking for the legalisation of euthanasia so that Aruna's continued suffering could be terminated by withdrawing medical support. She contended that the patient had been in a permanent vegetative state for the past many years and did not have any chance of recovery at all.

The Supreme Court accepted the petition and constituted a medical board to report back on Aruna's health and medical condition. The medical board, comprising three eminent doctors, reported that the patient was not brain dead and responded to some situations in her own way. They felt that there was no need for euthanasia in the case.

The staff at KEM Hospital and the Bombay Municipal Corporation filed their counter-petitions in the case, opposing euthanasia for Aruna. The nurses at KEM Hospital were quite happy to look after the patient and they had been doing that for years before petitioner Pinky Virani emerged on the scene. 

The court, while delivering its judgment, distinguished between active and passive euthanasia. Active euthanasia means killing a person through the use of lethal substance or force, and passive euthanasia means withdrawing or discontinuing medical support necessary for the continuation of life. The court rejected the plea for euthanasia for Aruna Shanbaug but legalised passive euthanasia in the country.

The reason any debate around euthanasia generates such a heated discussion is because while our constitution recognises the right to life with dignity, it does not recognise the right to die. Therefore, a debate regarding mercy killing is just not a debate regarding the legality of such a wish, but is also a debate about the morality and ethics of such an act. With the concept of euthanasia, law enters that complex territory of medical ethics which has even divided the medical fraternity sharply in the recent past.

Passive euthanasia did not remain legalised for long in India. In Common Cause v. Union of India, it was urged that the judgment of Aruna Ramchandra Shanbaug v Union of India was decided based on incorrect interpretation of the constitution bench's judgment in Gian Kaur v State of Punjab, and therefore it was referred to a larger constitutional bench for review and final judgment.

Aruna Shanbaug died in May 2015, but her case helped in shedding light on an extremely complex issue of medical ethics and law. Euthanasia is currently legal in the Netherlands, Switzerland and the United States. Will India join the list?

We'll have to wait and watch.