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.

Conclusion

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.     

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.  

Conclusion

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.    

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.

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”.

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.