Negotiating With Power?

By Santosh Desai – The is the reason why filing a First Information Report in India is so difficult; the possibility of a negotiated settlement often takes precedence over the application of the law.

Power when dangled over these situations has a way of pushing those involved towards a negotiated understanding; not surprisingly, the powerful and connected have the upper hand in such a situation.

The preservation of status quo in an environment of rules requires both an exaggerated formalization of rules as well as a great willingness to bend these in order to get a desired outcome. The apparent intractability of the rules is used as an incentive nudging those involved towards a negotiated settlement.

The success of this gambit depends on the ability to move dramatically between a position that argues that the rules are completely fixed to one that allows for complete flexibility just this once.

The use of power to cement existing reality rather than to alter it seems to be the motivation at work here. In theory, rules are rules, and everyone is equal in the eyes of the law, no matter who is involved. In practice, this is far from being the case.

For starters, rules in India are constructed so that in many cases, it is virtually impossible to implement them blindly, so complex, onerous and far removed from reality are they. This makes rules contingent by necessity; and it is this flexibility in the application of rules that creates both corruption as well helps move things along.

But above all, it keeps a form of social order intact. The legislative and administrative systems in India are subservient to the social ecosystem, and work within its ambit. Power thus becomes a social instrument that needs to be brokered keeping the dominant interests in mind. The disinterested application of the law is not possible in a context where these interests take priority. Hierarchies are respected, networks are nurtured, money speaks loudly, and settlements are negotiated.

The idea of the ‘settlement’ which finds a measure of mutual self-interest being catered to is only thinly related to abstract notions of justice. The poor and weak ‘accept’ an unfair resolution because the alternative is much worse.

What are otherwise their rights become favors that they seek from the powerful for a price. The powerful build constituencies by creating a cumbersome system and then offering a way to navigate the same. more>


Junk today’s secularism

India needs a reinvented secularism 2.0 rooted in separation of religion and state
By Bhanu Dhamija – India’s ambitious experiment with freedom of religion has failed. Our insipid brand of secularism, based on states’ active engagement amid stated religious neutrality, has led to the appeasement of a few, but empowers none and brings injustice for all. Instead of uniting our society, it has fomented fragmentation and alienation among our diverse religious communities.

The Hindu majority has now risen against years of over-accommodation of the Muslim minority. This puts the country at risk of losing its tolerant and pluralistic democracy.

India today desperately needs a new definition of secularism, one based on freedom of religion, equality before law, and separation of religion and state. All of these requirements are essential for secularism to work in any country.

Indian secularism fails because it allows governments to grant religious freedoms, but not to treat religions equally.

The biggest failure in this regard began in the early years of the republic, when the government codified Hindu social customs into law but allowed Muslims to continue practicing Sharia law. For seven decades, the requirement of a uniform civil code has remained a Directive Principle in India’s Constitution.

Without constitutional restrictions on state sponsorship of religious activities, Indian secularism turned into a carte blanche for governments to do as they pleased. They began exploiting religious communities with special treatment, sops and populist slogans.

Today, the Modi wave among the Hindu majority has shattered the Nehruvian concept of secularism. And for good reasons; Nehru’s approach was impractical in its denial of all communal identities, and it was open to abuse by governments.

Now the majority is flexing its muscle and taking revenge for years of minority appeasement. This makes it all the more necessary that India adopt real secularism, lest the pendulum swing too far, and allow Hindu chauvinism to take over India’s democracy. more>


Forthcoming Supreme Court decision on right to privacy one of the most important legal decisions in the world this year

By Eben Moglen and Mishi Choudhary – Arguments before a nine-judge constitutional bench of the Supreme Court, which is at long last deciding whether Indian citizens have a fundamental right to privacy, have established two realities clearly.

First, the judges see the profound importance of any decision to create such a fundamental right. Second, they would like to know just what the outlines of this right should be.

Privacy is, as Brandeis and Warren said in 1894, “the right most valued by civilized men,” “the right to be left alone.”

But in our age, the age of the internet, the right to be left alone includes also the right not to be put out there, or exposed involuntarily. Forced disclosure of the information that comprises our identities, in the age of biometric identification, social profiles, and cashless economic transactions, damages an essential component of all personal liberties.

Whether the individual’s information is used on its own, or is analyzed, profiled, or linked in the “social graph” to that of other related persons, forced disclosure of personal information in today’s society creates power in the state which receives that information.

The importance of a fundamental right in our system is that it can only be enforced against the state. “Platform” social media companies receive voluntary disclosures of personal information in immense quantities every minute, but they are not subject to constitutional controls.

Moreover, though these corporates are indeed ubiquitous in our lives, they are not obligatory. In dealing with them, we still have choices. Only the power of the state can, in fact, compel us to expose ourselves more fully than we choose to do. The state can as well, of course, legislate to protect our privacy against private parties, and should do so.

India will, as a result of the Supreme Court’s judgment, take the lead among democracies in recognizing and enforcing its citizens’ fundamental right to privacy, or fall in line behind despotic societies in destroying it. more>


Preserve privacy

Threats to privacy have snowballed in the digital era, SC must act
Times of India – The creation of a nine-judge Supreme Court bench to decide whether right to privacy is a fundamental right focuses attention on an issue of critical importance in a digital era.

The right to privacy is not explicitly mentioned in the Constitution but Article 21 guaranteeing the protection of life and personal liberty does encompass various aspects of privacy.

Categorizing privacy as a fundamental right will grant it constitutional sanctity, and by implication, greater respect and compliance. But the government has opposed this classification citing two SC judgments, delivered in 1954 and 1962 that rejected a “fundamental right to privacy.”

Strong legal safeguards are needed against unauthorised access of databases and retention of data, data theft, and leak of private information.

The mushrooming of Aadhaar – initially pitched as a system to aid welfare transfers by eliminating impersonation and pilferage – into a Sisyphean identification system dictating every aspect of a citizen’s life is a valid cause for concern.

Similarly, SC is also hearing a petition questioning midstream changes in WhatsApp’s privacy policy that allowed it to share user data with its parent company Facebook.

Government mustn’t fear privacy. Making it a fundamental right will give governments, businesses and courts a definitive framework to facilitate Digital India. more>


Can India be First World?

We dream of leapfrogging to First World status, here’s how to do it in real life
By Sanjeev Sabhlok – What will it take for India to become a First World nation?

Such a question is about matters more important than mere economic growth.

It is about freedom, rule of law, justice, separation of religion and state. Such a question can reset our expectations and start a meaningful conversation about what we want to be as a nation.

It is time for us as a nation to step back and look at the big picture. The facts that face us are not pleasant.

Transparency International has ranked Indian governments as the most corrupt in the Asia-Pacific region. Our businesses, despite being one of the world’s best, continue to be let down by our governance system. We continue to rank close to the bottom on ease of doing business. We remain one of the least free countries in the world.

We do not protect private property. We do not have credible rule of law. The concept of justice is largely fictitious. There is very little infrastructure. Our school systems are dysfunctional. Vocational training is non-existent or of very low quality. And we continue to be one of the world’s poorest countries.

Second, we need to redesign our governance system. Today, neither ministers nor bureaucrats are accountable. They see themselves as rulers. We need to invert this mindset and hold our servant – the government – to account.

No First World country has India’s antediluvian, super-centralized IAS-type tenured service to govern everything. more>


At the root of all lynchings

Vigilantes don’t expect to be punished, victims don’t expect to get justice
By Amish Tripathi – Mob violence and vigilantism happens because the criminals expect to get away with it. Many victims don’t complain because they don’t expect justice to be done. And this happens because our criminal justice system is horribly inefficient.

According to government data, there are more than three crore cases pending in our judicial system. Justice VV Rao of Andhra Pradesh high court had said that at the normal rate of dispersal, it will take 320 years to clear the backlog in our courts! India is amongst the 10 worst countries in the world in terms of the percentage of under-trials as a proportion of total prisoners.

Many unfortunate people, who can’t possibly be tracked by TV studios in Mumbai and Delhi, continue to suffer systemic apathy.

This situation has led to the corruption of our society.

Why do the dis-empowered vote for criminals and strongmen?

Because they know that they will not get justice in a gummed up judicial system. So, the practical thing to do is to elect a strongman from your community and expect him/her to use political power to protect you.

The only long-term solution is a clean-up of the criminal justice system.

Police reforms (as ordered by the Supreme Court in 2006) must be implemented to give the force autonomy from political interference, better-trained and more manpower, and modern weapons. more>


There’s no justice when the system damns the defenseless

By Shobhaa De – This is where the problem starts. It appears to be a clear case of a desperate man giving vent to his impotent rage against a terrible system that often indicts victims and finishes off their lives before they get the chance to prove their innocence. Dilip Pendse could well have been one such victim.

When something like this happens, you begin to wonder, what sort of a twisted and cruel system is this? And why do we as a nation not address the monumental problems our clogged courts create — especially for law-abiding citizens, often caught in a maze of legal issues that drag on for decades… and eventually cost a few their precious lives?

There are far too many elephants in the room right now. But we remain in denial, justifying and glossing over anything and everything that causes discomfort. Pending litigations take their toll on countless citizens, and yet we blithely talk about justice and how lucky we in India are, to have such a superb legal system and a Constitution that protects us. Technically and on paper, this is accurate. But the reality of our lives is entirely different.

We have become so accustomed to this atrocious system, we merely shrug when we come across another case getting hopelessly derailed, another person suffering because of legal shenanigans.

There is very little faith left in the intention and ability of the state to protect its own. more>


Those who sow Hindu terror will reap Muslim terror

By SA Aiyar – A deadly mix of communalism and ultra-nationalism has stirred communal passions despite an absence of major riots. One more Muslim was killed by gau rakshaks in Jharkhand after Modi’s call for peace, showing how difficult it is to put the genie back into the bottle.

My fear is that, unless checked quickly, Hindu terror will be met with Muslim terror, and the country will go up in flames. If the state cannot protect Muslims, there is a high risk that they will devise their own armed squads for protection. Hindu-Muslim terror can escalate with the state a helpless spectator.

Modi wants to sell India to the world as a global manufacturing hub. That will not be possible if India’s fastest growing industry is lynch mobs. Economist Dani Rodrik has shown that the ability to manage internal conflicts is an important determinant of economic growth and prosperity. Since Independence, despite a thousand flaws, India has succeeded in managing its internal conflicts reasonably well, and reaped the corresponding social and economic dividends. That achievement is now in jeopardy. more>


Romeos to rakshaks: How violence became normal

By Pankaj Butalia – What neither the Prime Minister nor Rajiv Mehrishi will acknowledge is that hatred in human beings needs only a small trigger to turn violent — and the most effective violence is often self-righteous. So all the provocateur needs to do is provide a platform — it could be the train in 2002 or the cow in 2014. Once set in motion the instigator can easily disown his role in the affair.

A casual look at the emergence of new leaders of Bharatiya Janata Party over the past three decades reveals that violence has been the most effective stepping stone for many of them. There seems to be a pattern here whereby violence against disadvantaged groups, normally minorities, helps bring the individual to the notice of the party.

Once the goal is achieved, overt violence is renounced by the individual and we start to see the individual as a ‘normal politician’. The violence doesn’t end, however. It just gets outsourced to those lower in the hierarchy.

In 2002 this mantle of leadership through violence was taken up by the broad-shouldered Narendra Modi. By then he was a state chief minister and answerable to no one. He didn’t seem to have national ambitions and didn’t really care what the world thought of him as long as his core, aggressively Hindu-centric community didn’t desert him.

This changed once large corporate houses decided to back him as a ‘development man’ in 2011-12. Today, Modi is a statesman, above violence, and a man with a vision for the country. His image has a makeover. All violence is normalized. more>


If BJP wins 2019, will there be a 2024 election?

Don’t underestimate RSS opposition to the idea of India
By Salman Anees Soz – I believe RSS and BJP view the 2019 election as an important milestone in their desire to realize their long-standing dream of establishing a Hindu rashtra.

I believe the likelihood of India’s conversion to a Hindu rashtra has never been greater. Most government institutions are brittle. Indian democracy as we know it, stands at the precipice.

Two issues are of particular concern. First, there is very little acknowledgement of the possibility that there was always an alternative Hindutva idea of India and that it had significant support. Second, those of us opposed to Hindutva often do not look at the world from the perspective of its proponents. The game, however, has changed.

RSS is resolute in its “idea of India” as a quintessentially Hindu country. It has toiled hard for decades in pursuit of this vision. The Sangh Parivar has always had a core base of support. This leads me to believe that there was a section of Hindu society that felt aggrieved that after the creation of a country for Muslims, Hindus were denied their own country.

This grievance has simmered for decades as the Gandhi-Nehru vision prevailed and the first past the post system kept Hindutva forces from gaining power at the national level until 1998. The defeats of 2004 and 2009 delayed the project but the 2014 election finally provided a once-in-a-lifetime opportunity for Hindutva proponents. BJP had an aspirational narrative, an astute strategic approach, a compelling leader in Modi, boots on the ground and a real hunger for power. more>