Archive for the ‘public policy’ Category

The Four Sins of the Delhi Police

One dislikes passing judgment on others, mindful of the Biblical saying “judge not lest ye be judged”. And yet a time comes when it is difficult to be dispassionate, particularly when there is organised violence aimed at creating fear and poisoning relations between India’s two largest religious communities. What makes the recent horror in North-East Delhi totally unforgivable, especially for those of us who have served in one of the two All India Services (IAS/IPS), is the complete abdication of its statutory duties by the Delhi Police. The events of the last week of February 2020 were the tragic denouement of a sequence of happenings over the past two months, as the Delhi Police slipped deeper and deeper into the mire of partisanship and extremely unprofessional functioning, when one was left wondering if the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC) were applicable in the National Capital Region of Delhi. We can list the four instances, culminating in the recent violence, when the Delhi Police gave short shrift to the criminal laws of the land and, indeed, to the very Constitution they are sworn to uphold.

It all started with the entry of the police into the Jamia campus on 15 December 2019. Even presuming grave provocation from the students, the videos of the library assault (not denied or controverted officially) point to a mentality in the guardians of law and order of “teaching a lesson” to students. All the canons of law and order maintenance enshrined in India’s criminal laws do not permit the police to use force to an extent greater than is needed to restore normalcy. The videos show helmeted policemen using lathis on students sitting in the library, who were certainly not engaged in any violent act. Even if they were wanted for any previous transgressions of the law, they could have been arrested following the usual procedure. By this one irresponsible action, the Delhi Police set off a chain reaction that has since reverberated across University campuses throughout the country.

The second instance of police apathy was even more inexcusable. The JNU was invaded by gangs of armed thugs on the evening of 5 January 2020. The same police which raided the Jamia Campus without any request from the Jamia authorities decided to stay put at the JNU gate even when there was enough evidence (on social and electronic media) that cognizable offences involving danger to life and property were being committed within the campus. What makes the entire episode ludicrous is the fact that, two months after the incident, no FIRs have been registered against a single goon who indulged in violence and vandalism; instead, the only FIRs that have been lodged have been against the victims of the assault.

Act 3 of this sordid drama took place in late January/early February 2020 during the elections to the Delhi Assembly. Three violations of the Election Commission’s Model Code of Conduct, two by elected Members of Parliament (one of them a Minister in the Government of India) and one by a BJP candidate, merited action under the IPC. But even though all three of them were slapped with limited campaign bans by the Election Commission, the Delhi Police did not invoke Sections 153A/295A of the IPC, which would have served as a salutary reminder to politicians not to resort to incendiary campaigning to win votes. The failure of the Delhi Police to rein in the political class when they were presented with a golden opportunity laid the seeds for the bitter harvest that followed in the last week of February.

The final nail in the coffin was hammered in when Kapil Mishra, the same local politician indicted earlier by the Election Commission (and who lost the elections) decided to refurbish his standing by giving an ultimatum to the anti-CAA/NPR protesters in N-E Delhi to remove their blockage of public spaces, failing which the threat of direct action was given. The resultant outbreak of violence spiraled into full-fledged arson and murder. It is here that the conduct of the Delhi Police comes in for the most criticism. With protests across the city over the past two months, the police should have been alert to nip any violence in the bud. Preventive action against criminal elements, presumably taken during the elections, should have been continued with thereafter, given the ongoing protests. Delhi’s borders with neighbouring states, especially UP, should have been sealed to prevent infiltration of outsiders. But what was damningly on view over three days was the inaction (at best) and complicity (at worst) of the police. Given the fate of all postmortems into riots in India, one is doubtful whether the truth will emerge in the future. But intrepid young journalists have captured on camera roving gangs indulging in assault and arson. That the violence ceased once there was a show of force is a clear indication that it was a case of “too little, too late” as far as the Delhi Police was concerned.

Three basic lessons in law and order maintenance were ignored by the Delhi Police:

  • Making it clear from the outset that the police is in control: At no stage should politicians, their henchmen and anti-social elements get the feeling that they can operate in violation of the law. The JNU incident had already infused confidence in some groups that the police would not act against them, even when they indulged in violence. Strong preventive action under the CrPC and the local police laws, externment from Delhi of certain criminal elements and, where required, use of draconian laws like the National Security Act would have sent a clear message to those intent on disturbing the public peace.
  • Zero tolerance for offences posing a threat to person and property: From my own experience, I can aver that unless incidents of assault and arson are dealt with firmly and promptly, they tend to snowball into a free for all between members of different communities. Lathi charges are normally enough to cool down even impetuous hotheads; however, on occasions, stronger action, such as police firing, may be required to restore order in a short timeframe and reduce casualties.
  • Leading from the spot: By far the most crucial element in law and order policing is the quality of leadership. The leader must inspire confidence in his/her force by being on the street. DMs and SPs in the districts and Police Commissioners / Joint and Addl. Commissioners must be in the thick of the fray. It was inexcusable that senior police officers from the Police Commissioner downwards were not visible till Day 3 of the disturbances in even one of the many videos shot from the scenes of arson and assault. A leaderless police force then took the path of least resistance since there was no one in authority to spur it to action.

The Delhi Police has suffered serious damage to its image and self-esteem. A new Commissioner has taken charge. It is now time for the Delhi Police to assert its authority and make it clear that it will not tolerate violations of the law from any quarter. It is also time for all governments, including the central government, which supervises the Delhi Police, to act on the 2006 directions of the Supreme Court in the Prakash Singh case, aimed at professionalising the police and insulating them from political interference. Above all, it is time for my fellow colleagues in the two All-India Services charged with the maintenance of law and public order to reaffirm their complete faith in and loyalty to the Constitution of India and rise above all sectarian considerations in discharging their duties honestly and diligently.

(The edited version of this blog is carried in the 5 March 2020 edition of the Deccan Herald)

 

 

Jeenaa Yahaan Marnaa Yahaan

(The full forms of the acronyms used in this blog are given at the end for easy reference)

Like a pesky earworm, the words of songs from Raj Kapoor’s Mera Naam Joker keep reverberating in my ears nowadays when I sit down to pen my blogs. If it was Jaane Kahaan Gaye Voh Din that resonated with me when I wrote my last blog, the present blog brought to mind that priceless masterpiece Jeenaa Yahaan Marnaa Yahaan. Lest my reader think that I am engulfed in maudlin sentimentality, let me emphasise that there is a logic to the use of these titles. My last blog reflected my dismay at the state of affairs in India’s district/police administration. The present blog focuses on the issue uppermost in the minds of most, if not all, of India’s 1.3 plus billion inhabitants. Yes, I refer to the CAA-NPR-NRIC triad, which has occasioned intense but non-violent protests on a scale not seen for many years.

Thanks to the wisdom and humanity of the politicians at the helm of India’s governance in the years after her independence, India went in for a liberal interpretation of citizenship, based on the jus soli principle, i.e, birth in India after 26 January 1950 was deemed to qualify one for Indian citizenship. The first blow to this principle came in 1987 in the wake of the Assam Accord. From 1 July 1987, birth in India was not a sufficient condition for citizenship: one parent also had to be a citizen of India by birth. This meant a move towards the concept of jus sanguinis in defining citizenship, with descent, rather than birth alone, being the defining criterion for citizenship. The second, and far more telling, move towards a more constricted definition of citizenship came with the 2003 Act. Not only was one parent required to be a citizen of India, there was the additional stipulation that, at the time of birth, the other parent should not have been an “illegal migrant” (defined as a foreigner who entered India without valid documents or who, with valid documents, overstayed in India beyond the permitted period). It is instructive to note that the 1987 and 2003 changes in the definition of “citizenship by birth” in the 1955 Act, as well as the 2003 Rules seemed to enjoy a broad consensus across the political spectrum. Not only did the previous UPA government go along with all these provisions, it even toyed with the idea of the NPR followed by the NRIC before carrying out the NPR exercise in 2010 and then dropping the idea of the NRIC in favour of the Aadhaar exercise.

It is the third move in 2019 to amend the 1955 Act that has finally set the cat among the pigeons. Efforts since 2016 to amend the 1955 Act to provide fast track access to Indian citizenship to “persecuted” persons belonging to specific countries (Pakistan, Bangladesh, Afghanistan) had been stymied by the inability to get the legislation through the Rajya Sabha; support from non-BJP parties, which either did not understand the implications of the legislation or chose to support it out of their own political calculations saw it enacted within the space of three days in December 2019.

A reading of the CAA reveals nothing about granting fast track citizenship to “persecuted” minorities from the three countries in our neighbourhood. While this view may have been put forth in the Statement of Objects and Reasons of the CAB, its absence in the CAA is puzzling. Even if the word “persecuted” finds its way into the Rules to be enacted to give effect to the CAA, determining whether or not a claimant for Indian citizenship has indeed  been persecuted in his/her former country will be very difficult. There is also the issue of the claims of refugees from other countries in the neighbourhood – Shias/Ahmadiyyas from Pakistan, Tamils from Sri Lanka, Rohingyas from Myanmar – which will fall through the sieve. Not only, therefore, are there serious issues relating to the CAA violating the principles of equality and secularism (parts of the inviolable basic structure of the Constitution of India), there is also the moral indefensibility of a statute that seeks to pick and choose who among the residents of India’s neighbouring countries is eligible for Indian citizenship. In any case, the process had already commenced from 2015: in a set of four notifications issued quietly between September 2015 and September 2016 under the 1955 Act, illegal migrants from the religious communities from Afghanistan, Bangladesh and Pakistan now covered under the CAA had already been exempted “from the adverse penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 and rules or notifications made thereunder” (as stated in the same Statement of Objects and Reasons at the time of introduction of the CAB in Parliament). These notifications exempted such classes of “illegal immigrants” from prosecution and also provided for their obtaining long-term visas  to stay in India. A government that wanted to favour specific groups from certain countries could well have exercised its existing powers on a case by case basis without highlighting the exclusion of India’s largest minority religion.

It, therefore, appears that the BJP wanted to ensure that the NRC process in Assam does not affect the large number of Hindus who had been declared “illegal immigrants” under that exercise. In the process, the government and the party ruling at the centre ended up with a double whammy. The indigenous people of Assam have made it clear for over forty years that they are opposed to migration from across the international border, irrespective of the religion of the migrant. Even the exclusion of tribal and Inner Permit line areas in the North East from the ambit of CAA has not assuaged feelings, especially in Upper Assam. At the same time, the exclusion of Muslims from the CAA has occasioned a different sort of apprehension in India’s largest minority. This is linked to the feeling among Indian Muslims that they have been at the receiving end of many events over the past five years – the beef ban and consequent lynching of Muslim dairy farmers, the love jihad crusade of Hindu vigilante groups, the opposition to the performance of namaaz in public places and, in general, a vitiated level of public discourse which questions the loyalty to India of the Muslim community.

Brutus may have seen the tide in the affairs of men, taken at the flood, leading on to fortune. Unfortunately, for the central government, the tide has come in at a rather inopportune time. The CAB was on the anvil from 2016. Had it been passed at that time, when the NPR and NRIC were nowhere on the horizon, the three issues may not have been linked together. There are also various events since the middle of 2019 which have heightened the sense of insecurity in Indian Muslims. The abrogation of Article 370 of the Constitution of India and the virtual shutdown of Kashmir since August 2019 followed by the Supreme Court decision in the Ayodhya matter had already caused deep unease in the community. The reports of human suffering occasioned by the Assam NRC as lakhs of people ran from pillar to post to establish their rights to Indian citizenship were compounded by the belligerent statements from those at the highest levels of the central government that the NRC would be extended to the entire country, coupled with accounts of detention centres coming up in different parts of the country. These developments, linked with the CAA’s specific exclusion of Muslims, raised fears that the CAA-NPR-NRIC combination could see substantial segments of the Muslim community losing their Indian citizenship.

While the central government has been reiterating that the CAA is intended only to enable those from the three neighbouring countries get fast track citizenship, the NPR-NRIC provisions (enunciated in the 2003 Rules), which allow for a government functionary at a fairly junior level to raise doubts about the citizenship status of a person, give cause for apprehensions. As of date, there is still no clarity as to what documents, if any, will be required to establish one’s citizenship. In a country where birth registration systems have been notoriously lax in the past (though improving now), proving the fact of one’s birth in India could prove well-nigh impossible, more so if the standard documents, such as passports and voter identity cards, are not acceptable as proof of citizenship.

This is not the place to raise all the issues relating to the difficulties in proving one’s citizenship. Suffice to say that, post-1991, the Indian populace was getting used to not having to stand in queues for every facility, a feature of the forty years prior to 1991 for getting access to milk, kerosene, landline telephones and LPG connections. This habit was revived in the post-demonetisation phase from November 2016, when every resident of India stood for hours in queues to be able to draw cash from banks. One certainly hopes and prays that the NPR-NRIC exercise, wherever implemented, does not lead to interminable queues in front of tahsil and municipal offices as people seek to prove their Indian citizenship. Political parties and governments have their own reasons for carrying through this onerous exercise. The aam aurat/aadmi just wants to carry on with the business of daily life and securing her/his roti, kapda and makaan. For her/him, what is relevant is this line sung by Mukesh:

 

जीना यहाँ मरना यहाँ इसके सिवा जाना कहाँ

 

1955 Act: Citizenship Act, 1955

2003 Act: Citizenship (Amendment) Act, 2003

2003 Rules: Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003

BJP: Bharatiya Janata Party

CAA: Citizenship (Amendment) Act, 2019

CAB: Citizenship (Amendment) Bill, 2019

NRC: National Register of Citizens

NRIC: National Register of Indian Citizens

NPR: National Population Register

UPA: United Progressive Alliance

 

Model Code of Conduct for elections – the use of cards

After nearly thirty years of participating in the conduct and supervision of Indian elections and observing elections at national, state and local levels since 1971, I am struck by the abyss into which debate has descended in the 2019 general elections as well as the open challenge thrown to the authority of the Election Commission of India by all political parties and candidates, especially the ruling party at the centre. What is even more dismaying than the “in your face” behaviour of the political class has been the servile responses of sections of the bureaucracy, the latter constituting, in my view, a far more serious threat to democratic norms.

Standards of decent discourse have virtually vanished from the Indian political firmament and the present elections confirm this depressing phenomenon. Humans have been classified as termites and sections of them have been threatened with expulsion from the country. Blatant appeals have been made to divisive religious sentiments and politicians have gone so far as to warn voters of the consequences of not voting for them. The sacrifices made by security forces are being made to serve as election fodder. Vicious personal attacks are the order of the day and serial offenders from previous elections are displaying their dubious talents freely. Equally galling has been the brazen promotion of a single personality through multiple media modes without any hint of embarrassment or concern for conventions. We have also been treated to the disgusting spectacle of a self-styled Sadhvi denigrating the memory of a police officer who lost his life in the Mumbai 26/11 attacks.

2019 also marks, in pronounced fashion, the entry of the disease of political partisanship into the bureaucracy. In previous elections, it was the normal practice to transfer officers who had done adequate time in their current postings as well as those perceived as unduly close to those in power. But the need to move officers at the topmost levels of the police and civil services after the election process got under way points to the rot in the steel frame. Three top functionaries of the NITI Aayog, the central government’s top policy think tank, have, through electronic and social media, expressed views and displayed achievements which have the effect of supporting the government of the day and downplaying its opponents. The NITI Aayog is reported to have asked district collectors, who are the fulcrum of the election process, to furnish information on the achievements in different government programmes for use by the Prime Minister in his election speeches. A serving Air chief makes a public statement about the Balakot air strike and, for good measure, also drags in the controversial Rafale aircraft into his observations. In a first for India’s highest bureaucracy, the attitude of its central Department of Revenue in not keeping the Election Commission apprised in advance of income tax raids on political personalities has been castigated by the Election Commission as “insolent”. To cap it all, a junior functionary of the Union Home Ministry wakes up from slumber after many years to ask the leader of the opposition Indian National Congress to prove his nationality. It almost makes one wonder whether government departments have been awakened like Kumbhakarna only at the time of electoral battle.

Even though the Model Code of Conduct has a moral rather than punitive force, Article 324 of the Constitution of India, backed by various Supreme Court rulings, gives the Election Commission wide powers to enforce its writ in grey areas where the law is silent. Taking an analogy from the game of field hockey, it makes sense to enforce the three card rule: a green card for minor fouls, a yellow card for more serious infractions (with suspensions for repeat offences) and a summary send-off on being shown a red card. The Election Commission should devise its own sets of cards, one set for unruly politicians and another set for errant bureaucrats.

The green card rule for politicians would involve censure of the offensive act with or without fine. This will not deter the “thick-skinned” among the tribe but would serve as a warning that their conduct is under close watch. Another offence would have the effect of moving them to the yellow card category, which could see bans on campaigning by the concerned individual, ranging from a few days to a total ban for the entire election period, depending on the gravity of the offence. The red card would come into play when the candidate/politician commits a really serious offence, like open incitement to violence or indulging in major criminal offences. It would involve the cancellation of elections in that particular constituency, with these elections being held a couple of months after the completion of the election process under close supervision of the Election Commission and with heavy deployment of security forces.

The bureaucracy’s “three card” rule would more or less conform to the disciplinary proceedings which are presently initiated against government personnel. Officials who are green-carded would be censured, the censure being reflected in their annual confidential reports, with impact on future promotions. The yellow card would involve imposition of punishments like withholding of pay increments for a certain period or reduction to a lower time-scale of pay, grade, post or service for a specified period (without cumulative effect). Major penalties (the “red card”) would range from loss of seniority to compulsory retirement to dismissal from service. Such action by the Election Commission would be taken in consultation with the concerned government, with confirmation by the appropriate Public Service Commission.

Of course, judicious and strict enforcement of the “three card” rule would require a strong and impartial referee who does not hesitate to blow the whistle when needed and to flash the relevant card. Sanctions against erring politicians/bureaucrats need to be promptly enforced to serve as a warning to potential transgressors. Most importantly, the teams (political parties/governments) themselves need to introspect on whether they should retain such players (politicians/bureaucrats). If all concerned do not abide by the rules of the game, elections will descend into anarchy, with the danger of the eventual demise of democracy.

We don’t need Chowkidars

On my innumerable trips from Pune to Aurangabad and vice versa, I have sometimes taken a detour off the highway to the village of Shani Shinganapur. Located in the district of Ahmednagar, this village is home to a highly venerated temple of Shani, the planet-god who evokes immense fear in devout Hindus and whose propitiation is considered essential to progress in life. But what marks out this village, apart from the recent decision to admit women to the shrine, is the fact that there are no doors to houses in the village. This is based on a popular myth that anyone committing theft in the village is visited with the direst of consequences by Shani Maharaj.

Unfortunately, those committing theft/dacoity elsewhere in the country do not seem to fear adverse results for their actions, which is why the institution of chowkidars (guards) is a well-established one in every rural and urban habitation, right from the days of the British Raj. This hallowed heritage is now sought to be appropriated by the members of the political party ruling the country. Visit the Twitter website and you will see that ruling party functionaries, from the Prime Minister downwards, have prefixed “Chowkidar” to their names. Not content with this gesture, the Prime Minister has invited all fellow citizens of India to take the following pledge and join the Chowkidari movement: “As a citizen who loves India, I shall do my best to defeat corruption, dirt, poverty and terrorism and help create a new India which is strong, secure and prosperous.”

While dirt, poverty and terrorism have deep-rooted causes which are beyond the competencies of a chowkidar, the chord that is sought to be struck with the common citizen relates presumably to that old bugbear: corruption. Fair enough, except that here we are dealing with white-collar crime, not its blue-collar or no-collar versions, which would cover, say, a factory worker stealing some goods from the workplace or a petty burglar forcing his entry into a house, both of which the chowkidar is eminently equipped to handle. “Corruption” in its modern Indian avatar relates to the propensity of the dispenser of a scarce commodity (whether a good or service) to extract economic rent for making available the commodity at a price higher than its stated official or market price. If the followers of the Chowkidar movement really mean to remove corruption, they must eschew the noxious habits of mamool or lanjam, those lubricants which grease the wheels of public service delivery. Since it would be highly optimistic to predict a dramatic sea-change in attitudes in a public inured to years of petty (and mighty) corruption, maybe we should see what those in power have done over the past many years to cut corruption at its roots. The results, sadly, are dismal.

Let us start with the Lokpal and Lokayuktas Act. Enacted on the first day of 2014, the Lokpal is just now being appointed after five years, that too after the Government of India received a rap on the knuckles from the Supreme Court. To date, most states have not appointed Lokayuktas; in those which have, there is no news of any major effort to prosecute wrongdoing by those in power, barring Karnataka, which has, in the past, seen a sitting Chief Minister being unseated based on a Lokayukta indictment. Given the past record, the provisions in the 2013 Act for Inquiry Wings and Special Courts do not give much cause for cheer, being a case of more old wine in recycled bottles. The list of failed or partial prosecutions over the past decade give no reason for sudden optimism, be it the CWG scam, the Adarsh imbroglio, the 2G prosecution or even the coal scam. In the last-named case, the only ones to go behind bars on a technicality in the Prevention of Corruption Act (which has since been repealed but which, alas, could not help them) are hapless officers who were manning the Coal Ministry in Delhi at the relevant time. Whether telecom or coal, the judicial verdict seems to have been that the politicians in charge were innocent. Having spent thirty years in government, including in a key economic ministry in the Government of India, I find this conclusion very difficult to swallow. My pessimistic forecast is that we will continue to see years of inconclusive investigations, interminable court proceedings and unsatisfactory convictions.

Changes in rules and procedures governing the allocation of scarce resources, including natural resources, are again conspicuous by their absence. If governments at the centre and the states were serious about checking corruption, especially at the highest political levels, what is needed is the removal of all decision-making powers on procurements and allocations (ranging from coal/oil-gas blocks, defence equipment and spectrum to schools, private universities and food supplies) from the Ministries at the centre and the states and a grim determination to clamp down on political interference in such decisions. State governments are even more prone to this evil. The February 2019 decision of the Supreme Court striking down the award of tenders in 2016 by the Government of Maharashtra for Take Home rations for supplementary nutrition to pregnant/nursing mothers and children under three years of age is a glaring instance where the same firms/entities continue to be favoured regardless of the regime in power.

The present ruling dispensation, despite its protestations about curbing corruption, has taken no steps in this direction. Merely keeping power brokers away from the corridors of North/South Block and Shastri Bhavan is not enough; there are enough meeting places elsewhere in the world. The electoral bonds scheme introduced in 2018 provides a fertile breeding ground for corruption, with identities of both donors and donees (political parties) remaining anonymous. Rupee-laden suitcases or even bank transfers are no longer required; a transfer from an offshore account, with anonymity guaranteed, for favours rendered will do the trick.

Ease of doing business rolls glibly off the tongues of politicians and policy-makers in the India of 2019. Visit a Regional Transport Office (RTO) in any state for a driving licence or a municipality for a building permission and you will be struck by the ease with which business is done in these offices. Portia’s famous speech in The Merchant of Venice on the quality of mercy could apply just as well to corruption as to the quality of mercy: “…It is twice blest; It blesseth him that gives and him that takes…”  Amendments in 2018 to the Prevention of Corruption Act provide for complaints by a person, who is compelled to give “undue advantage”, within seven days of giving such undue advantage. While we are yet to see how this provision works in practice, it is debatable if this will induce bribe-givers to come forward to report bribes, given that they will have to go through the subsequent legal chakravyuha of proving that they were indeed compelled to offer the bribe. In any case, unless processes for licences and permits are time bound with limited areas for discretion and with clearly stated reasons for refusal, removal of petty corruption will remain a pipe dream.

I am not condoning the present state of affairs. All I wish to aver is that unless there is utmost respect for the rule of law and the fear of prompt retribution, corruption is not going to wither away. Doing away with corruption does not require chowkidars, it requires honest thanedars and conscientious nyaya-devatas who will prosecute offenders and deliver timely justice. Till that day dawns, the citizen should use the most effective weapon available to her: she should remorselessly vote out the corrupt politician and hold the government of the day to account. The conventional saying “यथा राजा तथा प्रजा” has to be stood on its head in India of 2019. It should now read “यथा प्रजा तथा राजा”: as are the citizens, so will be the rulers. People get the governments they deserve: if they want a straightforward, corruption-free existence, they must put their political representatives on notice.

Running with the Hares, Hunting with the Hounds – A Dangerous Game

I know it has become a pastime, especially among those sympathetic to or following the present ruling dispensation, to lay the blame for all India’s ills at the door of the Indian National Congress and its presiding deities, the Nehru-Gandhi family. We may pass over the apparent errors of India’s first Prime Minister, including his neglect of primary education and agriculture and his obsession with the public sector, not to mention his disastrous tryst with the Chinese, relying on incompetent advisers. But what, even for true-blue liberals, is not so forgettable are the errors of commission and omission over the last forty years, which have landed the country in crisis after crisis. In trying to be all things to all people, the Congress has been withering away, in the best traditions of Marx’s Communist state.

Let us start with its missteps in Punjab in the late 1970s/early 1980s, followed by the Shah Bano-Ram Janmabhoomi fiascos of the 1980s. Catering to what it thought were specific constituencies, the Congress played with fire and, as expected, sustained severe burns. It forfeited the support of the Sikhs after the storming of the Golden Temple and the pogrom of Sikhs in Delhi in 1984 and alienated moderate Muslims with its anti-woman stance in the Shah Bano case. It then provided oxygen to a weakened BJP by opening the locks of the Ram Temple, followed by a spell of masterly inaction when the Babri Masjid was being demolished. The electorate rightly banished it to the boondocks for eight years, till its return in 2004.

But this blog is not about the past; it is about how the Congress party refuses to learn from its past mistakes. Four recent incidents highlight its continued bumbling and raise serious doubts in the mind of the swing voter about the capabilities of this party to govern the country for the next five years. After managing to secure power in three Hindi heartland states, one would have hoped that the new broom would sweep clean. But there seems to be no effort (at least not in public view) or intention to implement the rule of law in dealing with vigilante rowdyism. Following up on the prosecution of lynchers would have sent a clear message to those who indulged in murder under previous ruling regimes. Not only was this not done, there was the recent incident of film personality Naseeruddin Shah being prevented from participating in the Ajmer Literature Festival. The Chief Minister tweeted weakly about his commitment to the rule of law. But there was no firm police action to make it clear to the protesting hoodlums that their nonsense would not be tolerated. Added to this is the continued ambivalence of the new Congress governments on the “beef ban”. The Rajasthan government seems to have gone further. Newspaper reports speak of its efforts to felicitate those who shelter cows; there is no discussion on reviving the cattle industry and restoring the livelihoods of millions from the minority and disadvantaged communities, while guaranteeing protection to the cow, if the intention was to assuage majority community feelings as well.

The approach to the Sabarimala issue highlights a similar lack of conviction. The party of Mahatma Gandhi and Jawaharlal Nehru is not able to come out with unequivocal support for the right of women to worship at the shrine even after a Supreme Court judgement. Nor is it able to provide a public forum for a reasoned discussion on possible solutions. Caught between the Scylla of belief and the Charybdis of the rule of law, the party has surrendered its moral authority to regressive religious forces. In the process, it has ensured that it will gain the support of neither the pro-changers (especially its women segments) or the conservative no-changers.

A strong enunciation of its belief in the right to equality of all humans by the Congress would have gone down well with the liberal intelligentsia and India’s largest minority community as regards the hasty attempts by the present central government to introduce the Citizenship Amendment Bill. This travesty of a legislation which seeks to confer inferior status on a particular community should have been roundly condemned and public opinion should have been built up against it. Instead, the Congress Party chose to boycott the vote in the Lok Sabha instead of voting against it: yet another opportunity lost to reiterate its clear support for minorities.

Most laughable has been the denunciation of the sedition provisions in India’s criminal laws by a spokesperson of the Congress party, who has also been Law Minister in the previous UPA government. Congress governments of the past have never been chary of using this execrable provision. Sedition cases are now being lodged against students, intellectuals and journalists. Congress governments never tried to do away with this colonial anachronism. In fact, they introduced even more draconian legislation that hit at the liberty of the individual. The Unlawful Activities (Prevention) Act, 1967 (UAPA) was first passed during Congress rule and most amendments stiffening its provisions have been enacted by Congress governments. It has been used against social activists rather than terrorists and seems designed more to stifle freedom of expression and association rather than tackle terrorism. For the Congress party to shed crocodile tears when these laws are misused by police under the present ruling dispensation represents the height of hypocrisy.

Nor has there been any real commitment to administrative, judicial or police reforms on the part of the Congress party. The Reports of the Second Administrative Reforms Commission were ignored by the very Congress government that set it up. India’s governance systems are hamstrung by outmoded management structures and criminal justice (and police) reforms are not even on the horizon. No party, including the Congress, has shown any enthusiasm for the institutions of the Lokpal and Lokayukta, raising serious questions about their commitment to eradicate corruption.

There appears to be no realisation that a political party needs a base of committed voters. This requires the articulation of a clear ideology and adherence to a set of specific principles. These ideological positions also attract an adequate mass of swing voters who are not committed to any specific party but vote on the basis of the programmes that a particular party espouses. Given its past mistakes and the absence of committed cadres, it is little wonder that the Congress party has had a virtual no-show in a number of states in the last general elections. Subsequent disenchantment with the BJP may have yielded seats to the Congress in a number of states, but it should not be forgotten that it could not retain power in the state of Karnataka on its own strength. Even today, the loyalty of its legislators in Karnataka remains suspect, compelling its party managers to resort to resorts to keep the flock together.

Cobbling together a mirage of coalitions is not the route to political power for the Congress. Too many of the players in the political parties that make a great show of unity today have gone through the experiences of unhappy (and uneasy) past cohabitations. Nor have any of these parties inspired confidence in the public regarding the values they stand for. The animals in India’s Animal Farm may then decide to continue with Farmer Jones rather than opt for Napoleon if, the more things change, the more they remain the same.

Cutting to the chase

ये दाग़ दाग़ उजाला, ये शब-गज़ीदा सहर

वो इन्तज़ार था जिस का, ये वो सहर तो नहीं  “

This feeble blemished light, this dawn mangled by night,

This is not the morning we had all so longed for” (Faiz Ahmed Faiz)

 

Three incontrovertible facts emerge from the latest bovine related lynching in India’s lynch district of Alwar:

  • Rakbar Khan was in the dairy profession
  • Rakbar Khan was murdered on the night of 20/21 July 2018 within the boundaries of Alwar district
  • Rakbar Khan leaves behind a large family with no visible means of support.

I find it necessary to state the above facts because I am never sure nowadays when fiction will rear its Hydra-like head, especially with Twitter trolls on the prowl. There is a numbing sensation of déjà vu, as yet another bovine-related lynching enters the statistics. Notwithstanding the Supreme Court admonitions, the pious statements of union government ministers and the incessant analysis on TV and in print media, we, as a people, seem to be asserting that lynching is our birthright.

Why am I less than sanguine that things will change for the better? Six reasons inform my pessimism:

  • The role of the police is getting more and more questionable, especially in states like Rajasthan. One Gagandeep Singh in Uttarakhand does not a summer make. Sometime before the latest lynching, we were informed that the Rajasthan police have found no evidence against six of the alleged perpetrators of the Pehlu Khan lynching, although they were named by him before his death. It is also puzzling why the statement of the dying person was not recorded before a Magistrate under Section 164 of the Criminal Procedure Code. If no evidence of actual commission of the offence is made out against the accused, there is every likelihood that they may be acquitted. Final result: one murder, zero conviction.
  • Apologists for the accused, in states from Rajasthan to Jharkhand, claim that those accused/convicted were not actually part of the lynch mob but were innocent bystanders. If the police discount both dying statements of the deceased and video evidence, there is no way anyone can be convicted. Even where the local police, as in the Kathua (Jammu) and Ramgarh (Jharkhand) cases, carries out a thorough investigation, justice is sought to be delayed by the demand for the investigation to be handed over to the Central Bureau of Investigation.
  • A mindset has been encouraged in the general public that any apprehension in their minds about the commission of an unlawful act, especially related to cattle, justifies lynching. This has been exacerbated by the mindless enactment of laws in state after state outlawing the sale of beef. Regulations on cattle trade were also sought to be stupidly enforced but withdrawn once there was public outcry and judicial intervention. My friend Harsh Mander has pointed out that the Meo Muslim community in the Mewat region of Haryana have traditionally been in the dairy trade. The virtual pogrom against members of this community when they seek to acquire and transport cattle would seem to be a vicious campaign to deny them their livelihood. Add a potent mixture of love jihad to this and murderous mobs can acquire nationwide licence to kill.
  • Any effort to painstakingly put together data on lynching incidents, relating to causes, community background of the victims and actual convictions, is immediately dismissed by apologists of the ruling establishment as partisan. The latest to face this ire has been the IndiaSpend site for its documentation of the frequency of lynchings since 2010.
  • Well-meaning advice to the government on tackling this menace suffers from the same attribution of motives. Former civil servants are allegedly supporters of the previous ruling dispensation (never mind that they suffered under them) or are peeved because they were denied the loaves and fishes of office after retirement (never mind that no evidence of any such link is given in even one individual case). The feeling is that a lie, if repeated often enough, will be deemed to be the truth by the public.
  • Finally, the actions and statements of prominent members of the ruling party over the past four years have emboldened those who feel their actions are beyond the pale of law. Bland statements by the Prime Minister and Union Ministers on the law taking its course have cut no ice with the rank and file, who continue to issue irresponsible statements without being reined in by their leaders. The latest culprits are a Minister in the Jharkhand government and a senior ruling party functionary in the same state (in the Swami Agnivesh assault case) and a Union Minister (after the latest Alwar lynching).

I am not (as yet) a subscriber to conspiracy theories or to deep, hidden motives behind the actions of politicians who are not thinking beyond the next elections. But, as a citizen of the great Indian experiment in democracy and as an active participant in public service for over three decades, I feel I must stand up for the basic values and ideals that motivated me and my colleagues in the civil services to give of our best to the people of India during our careers. After seeing how things have evolved over the recent past and how justice has more often than not been denied to those at the receiving end of violence and injustice, I am firmly of the view that we must now come to the point. Justice must not only be done but must be seen to be done. With this objective, I offer my own two bits on what needs to be done to restore faith of the families of lynch victims in the rule of law:

  • Lynching, that is mob violence directed against a person or persons, needs to be codified in the Indian Penal Code (IPC). The issue is too grave and urgent to leave it to states to pass their own legislations. It needs to be specified that all persons comprising the crowd at a lynching site will be deemed to have acted with a common intention (as defined in Section 34 of the IPC) and will, as abettors, be liable for the same punishment as the actual perpetrators (presuming that culpability of the latter can be established in a mob situation). All such persons should be liable for the same punishment as prescribed in the IPC for causing death, grievous hurt, etc.
  • Sections 217 to 223 of the IPC must be rigorously invoked against police personnel who try to save perpetrators of lynching offences by doctoring/falsifying First Information Reports, deliberately destroying evidence, etc. Needless to say, police personnel who are present at the site of a lynching and do not use all the resources at their disposal for prevention of the lynching (which they are authorised to by law) should, in addition to the punishment for public servants mentioned above, also be culpable for the offence committed and punished accordingly. Removal of such elements from the police force would also send out a very strong message.
  • Section 51 of the Bombay Police Act, 1951 empowers the District Magistrate to fix compensation payable to affected parties in cases where unlawful assemblies result in death/serious injuries to persons. The compensation amount can be recovered from all inhabitants in a particular area or from specific classes of persons. Forcible recovery methods, as in case of land revenue arrears, can be employed to realise this compensation amount. Such a measure will not only discourage public participation in such offences but may also help in advance intimation being given to the police by parties who do not wish to be held liable. In the present case in Alwar, such compensation would provide much needed succour to a poor family which has lost its breadwinner.
  • Administrative responsibility must be fixed for such acts, especially where they recur in a particular area. In the present case, there are good grounds for seeking the resignation of the Rajasthan Home Minister under whose watch a series of incidents, which have shocked the conscience of all right-thinking citizens, have taken place over the past couple of years and whose police have not been able to convincingly bring to a final conclusion even one case of lynching thus far. More than just administrative responsibility, a case is also made out for the ruling party to take action against its Union Minister who has tried to draw a parallel between the spate of lynchings and attempts to defame the Prime Minister. The utterances of the Jharkhand Minister, who sought to deflect the seriousness of the assault on Swami Agnivesh by commenting on his character and antecedents, are equally reprehensible. Such statements by responsible state functionaries, who have sworn to function in accordance with the Constitution of India, reduce the sanctity of the rule of law.

Democracy is always a tender plant that needs to be nurtured carefully. The responsibility for its nurture falls most on those entrusted by the people of this country with ensuring their safety and security. The time is past for delivering homilies. Justice, in accordance with the rule of law, has to be delivered speedily and efficiently. Let not the present ruling dispensation go down in history as one which destroyed the people’s faith in democracy and the rule of law.

 

Promote Unity, Not Divisiveness

India, the world’s largest democracy, is fast imitating the century-old experience of the world’s oldest democracy, the USA, where lynchings are concerned. The spokesmen and apologists of the political party which is in power at the centre and in most of the states (‘the ruling party’) where these reprehensible, horrifying incidents have taken place in the past few years, will no doubt insist that this phenomenon predates their accession to power, notwithstanding the growing frequency of these incidents since the accession to power of the ruling party, as clearly brought out in the IndiaSpend Report. They will blame social media for the spreading of rumours and disown responsibility of any group patronised by them. What gives the lie to such protestations of innocence are the statements made by members of the ruling party in the electronic and social media when such incidents take place. The most recent case of vigilante extralegal violence involves the assault on Swami Agnivesh, the social crusader, at Pakur in Jharkhand, a state known for its peaceable residents but now bidding for top place in Lynchistan’s Hall of Shame. Who can foretell what unfortunate consequences could have arisen from one or two more ill-directed blows at a man in his eighth decade of life? And yet, two members of the ruling party had the gall to openly comment on how the Swami had it coming to him, apart from trotting out false reasons for his visit to Jharkhand. But then, consistency in speech and action has never been the forte of the ruling party.

Nor have the ruling party spokespersons distinguished themselves in panel discussions on national television programmes. After fifty former civil servants (including yours truly) issued a public statement condemning the felicitation by a Union Minister of convicts out on bail in a lynching-murder case, his party apologist (an advocate to boot) sought to justify the act by harping on the need to honour public sentiments, however vile they might be. After the Swami Agnivesh episode, another advocate-apologist for the ruling party sought to highlight “provocation” as an extenuating circumstance. Even in the surreal atmosphere we exist in today, their arguments strain the bounds of one’s credulity. As a law graduate and a former civil servant who has decided innumerable quasi-judicial cases, I have to take recourse to the self-defence provisions in the Indian Penal Code (IPC) to rebut their fatuous contentions.

Since they are not claiming (hopefully) that the lynchers are under twelve years of age, of unsound mind or have been intoxicated against their will, the only protection from punishment for causing death or serious injury under the IPC arises where the right of self-defence is exercised against offences aimed at causing harm to body (one’s own or others) or property. Even here, Section 100 of the IPC qualifies the use of force in self-defence, restricting it to instances where death, grievous hurt, rape, kidnapping, etc. are reasonably apprehended by the one who exercises the right of self-defence. In no case of lynching reported over the past four years have any of these provisions of the IPC been satisfied. Even if there has been any violation of any other law of the land, no legal provision allows one human to cause death/injury to another, except in the very limited instances mentioned above.

Which is why the Supreme Court came down heavily on the union and state governments for their failure to curb the growing incidents of lynching, ironically on the very day Swami Agnivesh was attacked. But the problem is that, in this case, it requires three (not two) hands to clap. The Supreme Court has clapped, but there are two more hands which must join in if any sound is to be heard. Parliament has to find time, aside from its internecine wranglings, to pass legislation that effectively tackles the menace of lynching, whether by adding sections to the IPC or by enacting a separate Act. But it is the third hand that will determine if the clap is heard loud and clear. This is the thoroughgoing implementation of anti-lynching provisions by the criminal justice system in the various states of India. Notwithstanding the confidence being exuded by our Union Law Minister, only one lynch case seems to have concluded so far (in Jharkhand) but other cases like the Dadri and Alwar cases are still going on. That cases have been lodged against the victims is testimony to the perversity of state action and to its lack of will in checking murderous mobs. Given shoddy police investigations, interminable trial processes and innumerable appeals, there is every reason to apprehend that future lynchers are unlikely to be deterred, more so when they see the support they are likely to get from the state and political formations.

The saddest consequence of state apathy, if not connivance, in condoning lynching incidents is the licence it gives to any group to resort to assault and murder. The recipients of this vigilante “justice” are innocent persons, often from minority and disadvantaged groups. The mob has been brainwashed to see their victims as the dreaded “other”, fed by the poison of irresponsible media reporting and cynical political manipulation. It started with alleged beef-eaters/cow-smugglers (Dadri, Alwar, etc.), moved on to alleged child-lifters (Dhule, Bidar, etc.) and now extends to critics of the present dispensation (Pakur). That there exists a poisonous streak in Indian society is borne out by the reports of the Karwan-e-Mohabbat, spearheaded by that tireless crusader, Harsh Mander. This poison has been fanned and spread by the intemperate, deliberate use of language to deepen public insecurity. When politics ceases to be a mission (as it was for the first generation of independent India’s politicians) and becomes an amoral business, power and pelf dictate all actions and the devil take the hindmost.

Drawing on American experience of nearly a century ago, three responses are crucial if India is to stop its descent down the slippery path of private vengeance. Firstly, the moral authority of the state (which has suffered grievously in recent decades) needs to be reasserted. As a former district magistrate, I can safely assert that where the District Magistrate and Superintendent of Police (or Commissioner of Police in metropolitan areas) were determined not to let anyone take the law into their hands and where they enjoyed public respect because of their honest, impartial conduct, riots rarely happened, or, if they did, were promptly nipped in the bud. I have personally observed how the no-nonsense conduct of a Chief Minister like Vasantdada Patil in Maharashtra ensured almost no violence against the sizeable population of Sikhs in Maharashtra in the aftermath of the Indira Gandhi assassination, even while Delhi burnt. The pogroms in 1984 (Delhi), 1993 (Mumbai) and 2002 (Ahmedabad) are illustrative of what happens when the state is complicit, covertly or overtly, in the commission of violence by one section of society against another. Firm administrative actions, followed by quick convictions of the guilty, reassure the victims that justice has been done while sending a message to hate-filled groups that extralegal violence will not be tolerated.

The second effort has to focus on the expression of revulsion at such acts in a way that discourages those who encourage, silently or openly, their commission, while pontificating on their commitment to the rule of law. The mass media has an important role to play, by highlighting the violation of law by lynch mobs rather than indulging in whataboutery or “victim fault finding”. Opinion makers and, indeed, civil society has a role to play as well. Channels and publications that seek to justify or whitewash such horrendous incidents should be exposed and patronage to them should be withdrawn. Society should clearly indicate to certain of its influential members that their condonation of such illegitimate violence will lead to their exclusion from public fora and social gatherings. Election campaigns should highlight the track record of prospective candidates with regard to their encouragement of criminality in sections of society.

But the final, and most important, step lies in the change in attitudes in those who govern. The phrase यथा राजा तथा प्रजा has never had a greater resonance than today. Unless those chosen to govern model their thoughts, words and actions on the Constitution they have sworn by, they will never be able to set an example to society. Let us not forget that the Preamble to the Constitution seeks to secure justice, liberty, equality and fraternity for all citizens aimed at assuring individual dignity and the unity and integrity of the nation. At every step, those in power must measure their actions against the touchstone of the values enshrined in the Preamble. They must take their cue from the Vedas and Upanishads which stress the oneness of the universe and the priceless verse of Sant Kabir:

 

कस्तूरी कुंडल बसे, मृग ढूँढत बन माहि |

ज्यो घट घट राम है, दुनिया देखे नाही |

(The musk is in the deer, but it seeks it not within itself; it runs through the forest in its quest. Similarly, God (humanity) is everywhere but the world is not able to see this)