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Opinion

Chances rise of a Saudi-Israeli accord

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After the United Arab Emirates, Bahrain and Sudan have established diplomatic ties with the Jewish state of Israel, will it now be the turn of the Kingdom of Saudi Arabia to do so? The signs are auspicious.

There was a time that the kingdom functioned as one of the two key centres of radical Islamism, the other being Iran, in the Middle East. Its religious establishment invested billions of dollars into like-minded organizations around the world to wipe out the pluralist version of Islam and replace it with some singular, fanatical, one religion. In the 9/11 episode, 15 of the 19 hijackers were from Saudi Arabia. Later, several thousand Saudis joined the Islamic State. The Saudi government allegedly funded some notorious Islamic State fighters. The kingdom had little respect for the rights of its own citizens, women and minorities in particular.

The Saudi scenario is no longer so. Saudi Crown Prince Mohammad bin Salman, the country’s de facto ruler, wants to project modernist, democratic ideas. MBS has, of late, encouraged the kingdom’s religious education system to replace its “extremist narratives of Islam” with “moderate ones”. Following him, the Imam and Khateeb of Masjid Al Haram in Mecca and chief of the General Presidency for the Affairs of the two Holy Mosques, Abdulrahman as Sudais now stresses that the Prophet Muhammad had friendly relations with the Jewish people. In the past, the same Sudais would describe the Jewish people as the “killers of prophets,” “the scum of the earth,” “monkeys and pigs,” and so on.

In 1947, Saudi Arabia voted against Israel in the United Nations Partition Plan for Palestine. It sent its troops to fight against Israel in the 1948 and 1973 wars. In contrast, in recent years, there have been extensive behind-the-scenes diplomatic and intelligence cooperation between Riyadh and Jerusalem. Saudi and Israeli officers have met in the joint war room coordinated by Jordan and the United States.

Also, the dominant mood across the public spectrum in Saudi Arabia is in favour of economic development and regional peace. It favours normalization of relations with Israel. With the advent of the communication revolution and social media, more and more people in Saudi Arabia are now coming to know about the real secular, benevolent nature of Israel. They seem to be convinced that Saudi Arabia’s normalization of ties with the Jewish state would pave the way for stronger political, economic, and military cooperation among the nations in the Middle East and foster multi-faceted development in the entire region.

Sources say that but for the tacit consent of the Saudi Kingdom, the United Arab Emirates, Bahrain and Sudan would not have established ties with Israel. Riyadh has warm relations with all these nations. When the UAE signed the US-brokered Abraham Accord with Israel, Saudi Arabia and Bahrain approved it by opening their airspaces to flights from the Jewish state.

Earlier, when the Saudis decided to sever their ties with Iran (after Iranian demonstrators set on fire the Saudi embassy in Tehran in protest over the execution of a Shia cleric), the United Arab Emirates, Bahrain and Sudan followed suit .

Saudi Arabia and the UAE share extensive political and cultural ties with each other. They collaborated closely during the 2017-18 Qatar diplomatic crisis and backed anti-Muslim Brotherhood regimes in Libya, Tunisia and Egypt.

Saudi troops helped Bahrain quash mass anti-government protests in 2011. Pertinently, Bahrain had been waiting for a conducive regional atmosphere to have diplomatic ties with Israel. Bahrain has been home to many Jewish people. It was the first and, so far, the only Arab state to appoint a Jewish person as its ambassador to the United States.

There has been a sea change in Saudi-Sudan ties since the 2015 Yemeni civil war. Sudan expelled Iranian diplomats from the country and sent troops to fight alongside Saudi troops in Yemen against the Houthis. Sudan is no longer under an authoritarian regime led by Omar Bashir who had come to power in a military coup in 1989.

Most importantly, Saudi Arabia and Israel perceive common threats in Iran, Turkey, Hezbollah and the Islamist extremist insurgents. In September 2019, Iran attacked Saudi oil-producing facilities and paralysed a considerable part of its oil industry. The reformers in the kingdom may be calculating that diplomatic relationship with Israel, arguably the most powerful military power in the region, could be the best answer to meet this threat.

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Opinion

FARMERS’ ANGER COULD WIDEN PUNJAB-HARYANA DIFFERENCES

Pankaj Vohra

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FARMERS’ ANGER COULD WIDEN PUNJAB-HARYANA DIFFERENCES

The attempts to prevent Punjab farmers from entering the national capital, to protest against the recently enacted farm laws by the Centre, could escalate into a major confrontation between the two neighbouring states. The decision of the Haryana government (which was reversed on Friday) to seal its borders, in order to deny free passage to the agitators, was not in the interest of either of the states, as well the democratic traditions which have been followed in this country so far. The entire issue has been poorly dealt with by the Centre, which should have taken the initiative in addressing the grievances, or at least commencing a dialogue with the kisan leaders. The Haryana farmers as well as those from western Uttar Pradesh, are equally anguished, and it is evident that the state government’s action could be totally counter-productive, and needlessly impact the stability of the Manohar Lal Khattar dispensation.

The sealing of the borders had resulted in a spat between the two Chief Ministers, with Captain Amarinder Singh condemning any kind of coercion on farmers, who had not violated any law to go to the national capital. There are several outstanding issues which have strained the relations in the past between the Haryana and Punjab governments. The demand for Chandigarh as the state capital and the contentious matter of the Sutlej-Yamuna link canal were used by vested interests to foment trouble during the period of heightened militancy in the border state. If politics comes into play, these issues would crop up again, thereby disturbing the peace and harmony with which the people of the two regions, once a part of larger Punjab, have existed. Pakistan has always been looking for opportunities to create problems in the sensitive states, and any kind of nefarious designs should not be allowed to succeed.

There are indications that the Haryana government took the decision of thwarting the farmers› march at the behest of the Centre. If it is so, whoever sent the suggestion was himself ill-advised. It was only some days ago that the Punjab CM had directly intervened to convince the farmers to lift their rail blockade, which was affecting supplies as well as passenger traffic to another sensitive area of Jammu and Kashmir. This gesture of goodwill by the farmers should have been reciprocated by the Centre in the same spirit. There is no reason why the farmers cannot be given assurances which would assuage them and go a long way in withdrawing the agitation.

Former Prime Minister Lal Bahadur Shastri had during the peak of the India-Pakistan conflict in 1965, equated the farmers with our soldiers by coining the slogan, “Jai Jawan, Jai Kisan”. He realised that both segments contributed to the overall security of the nation. Farmers by giving us food security and the Jawans by protecting us from our enemies. When the Centre deals with the farmers, the basic fact should never be forgotten that they are our valued citizens, and not pawns in any political game. If political parties are backing their demands now, it is solely because there is realisation that they are genuine concerns. This situation would never have arisen if the Centre, while preparing the draft of the farm bills, had taken the representatives of the farming community on board.

Larger consultations always lead to more acceptable solutions. There should be no more delay and the Centre must not allow matters to deteriorate. Laws gain sanctity if they are backed by rationale and reason which are not in variance with the ground realities. The dialogue must begin.

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Opinion

Requirements for admissibility of electronic evidence

The IT Act is based on the United Nations Commission on International Trade Law and the Model Law on
Electronic Commerce. The primary purpose of the Information Technology Act 2000 is to provide legal
recognition to electronic commerce and to facilitate filing of electronic records with the government.

Siddhant Mishra

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INTRODUCTION

The advancement of computers, the social influence of information technology and the ability to store information in digital form have all required Indian law to be amended to include provisions on the appreciation of digital evidence. In 2000 Parliament enacted the Information Technology (IT) Act 2000, which amended the existing Indian statutes to allow for the admissibility of digital evidence. The IT Act is based on the United Nations Commission on International Trade Law Model Law on Electronic Commerce. The primary purpose of the Information Technology Act 2000 is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government. The IT Act also penalizes various cyber-crimes and provides strict punishments (imprisonment terms up to 10 years and compensation up to Rs 1 crore). The IT Act was amended by the Negotiable Instruments (Amendments and Miscellaneous Provisions) Act, 2002. This introduced the concept of electronic cheques and truncated cheques.

ELECTRONIC EVIDENCE IN THE INDIAN EVIDENCE ACT 1872, INDIAN PENAL CODE 1860

Changes Incorporated to the Evidence Act 1872 Although the Evidence Act has been in force for many years, it has often been amended to acknowledge important developments. Amendments have been made to the Evidence Act 1872 to introduce the admissibility of both electronic records and paper-based documents.

DEFINITION OF EVIDENCE

The definition of ‘evidence’ has been amended to include electronic records. Evidence can be in oral or documentary form. The definition of ‘documentary evidence’ has been amended to include all documents, including electronic records produced for inspection by the court. The term ‘electronic records’ has been given the same meaning as that assigned to it under the IT Act, which provides for “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”.

ADMISSIONS

The definition of admission has been changed to include a statement in oral, documentary or electronic form which suggests an inference to any fact at issue or of relevance. Section 22A has been inserted into the Evidence Act which provides for the relevancy of oral evidence regarding the contents of electronic records. It provides that oral admissions regarding the contents of electronic records are not relevant unless the genuineness of the electronic records produced is in question.

STATEMENT AS A PART OF ELECTRONIC RECORD When any statement is part of an electronic record, the evidence of the electronic record must be given as the court considers it necessary in that particular case to understand fully the nature and effect of the statement and the circumstances under which it was made. Section 39 deals with statements that form part of a longer statement, a conversation or part of an isolated document, or statements that are contained in a document that forms part of a book or series of letters or papers. Admissibility of the Electronic Evidence New Sections 65A and 65B are introduced to the Evidence Act under the Second Schedule to the IT Act, 2000. Section 5 of the Evidence Act provides that evidence can be given regarding only facts that are at issue or of relevance. Section 136 empowers a judge to decide on the admissibility of the evidence. Section 65A provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B. Section 65B provides that notwithstanding anything contained in the Evidence Act, any information contained in an electronic record (i.e., the contents of a document or communication printed on paper that has been stored, recorded and copied in optical or magnetic media produced by a computer (‘computer output’)), is deemed to be a document and is admissible in evidence without further proof of the original’s production, provided that the conditions set out in Section 65B(2) to (5) are satisfied. These provisions shall be analysed further in detail.

PRESUMPTIONS REGARDING ELECTRONIC EVIDENCE

A fact which is relevant and admissible need not be construed as a proven fact. The judge must appreciate the fact in order to conclude that it is a proven fact. The exception to this general rule is the existence of certain facts specified in the Evidence Act that can be presumed by the court. The Evidence Act has been amended to introduce various presumptions regarding digital evidence under Sections 81A, 85A, 85B, 85C, 88A and 90A.

CHANGES INCORPORATED IN THE INDIAN PENAL CODE 1860

A number of offences were introduced under the provisions of the First Schedule of the IT Act, which amended the Penal Code with respect to offences for the production of documents that have been amended to include electronic records. The range of additional includes: Section 172, Indian Penal Code: Absconding to avoid the production of a document or electronic record in, a court. Section 173, Indian Penal Code: Intentionally preventing the service of summons, notice or proclamation to produce a document or electronic record in a court Section 175, Indian Penal Code: Intentionally omitting to produce or deliver up the document or electronic record to any public servant Sections 192 and 193, Indian Penal Code: Fabricating false evidence by making a false entry in an electronic record or making any electronic record containing a false statement, and intending the false entry or statement to appear in evidence in judicial proceedings Section 204, Indian Penal Code: The destruction of an electronic record where a person hides or destroys an electronic record or obliterates or renders illegible the whole or part of an electronic record with the intention of preventing the record from being produced or used as evidence Sections 463 and 465, Indian Penal Code- Making any false electronic record.

ADMISSIBILITY OF THE ELECTRONIC RECORDS IN THE INDIAN EVIDENCE ACT

Among all the changes made in the provisions of the Indian Evidence Act 1872 thus recognizing the electronic records as a document u/s. 3 and electronic signatures under, the most important provisions are sections 65A and 65B of the Act. Section 65A lays down the special provisions as to the evidence relating to electronic record and Section 65B deals with the admissibility thereof. Section 65A provides that the contents of an electronic record may be proved in accordance with the provisions in section 65B.

ADMISSIBILITY OF ELECTRONIC RECORDS Section 65B.

Admissibility of electronic records:

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether— by a combination of computers operating over that period; or by different computers operating in succession over that period; or by different combinations of computers operating in succession over that period; or in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,— identifying the electronic record containing the statement and describing the manner in which it was produced; giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section: information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation- For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

JUDICIAL DICTA ON THE ADMISSIBILITY OF ELECTRONIC EVIDENCE

In Jagjit Singh v State of Haryana the speaker of the Legislative Assembly of the State of Haryana disqualified a member for defection. While hearing the matter the Supreme Court considered the appreciation of digital evidence in the form of interview transcripts from the Zee News television channel, the Aaj Tak television channel and the Haryana News of Punjab Today television channel. The court determined that the electronic evidence placed on record was admissible and upheld the reliance placed by the speaker on the recorded interview when reaching the conclusion that the voices recorded on the CD were those of the persons taking action.

In the case of State (NCT of Delhi) v Navjot Sandhu an appeal was preferred against conviction following the attack on Parliament on December 13 2001, in which five heavily armed persons entered the Parliament House Complex and killed nine people, including eight security personnel and one gardener, and injured 16 people, including 13 security men. This case dealt with the proof and admissibility of mobile telephone call records. While considering the appeal against the accused for attacking Parliament, a submission was made on behalf of the accused that no reliance could be placed on the mobile telephone call records, because the prosecution had failed to produce the relevant certificate under Section 65B(4) of the Evidence Act. The Supreme Court concluded that a crossexamination of the competent witness acquainted with the functioning of the computer during the relevant time and the manner in which the printouts of the call records were taken was sufficient to prove the call records.

The Court observed that: “According to Section 63, secondary evidence means and includes, among other things, “copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies”. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the Court. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Sections 63 & 65. It may be that the certificate containing the details in sub-Section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.”

 Thus the Supreme Court made a remarkable observation when it held that although the requirements of Section 65B cannot be fulfilled, but then secondary evidence can always be given under Section 63 and 65 of the Evidence Act.

State of Maharashtra v Dr Praful B Desai involved the question of whether a witness can be examined by means of a video conference. The Supreme Court observed that video conferencing is an advancement of science and technology which permits seeing, hearing and talking with someone who is not physically present with the same facility and ease as if they were physically present. The legal requirement for the presence of the witness does not mean actual physical presence. The court allowed the examination of a witness through video conferencing and concluded that there is no reason why the examination of a witness by video conferencing should not be an essential part of electronic evidence.

In Dharambir vs. Central Bureau of Investigation, The court arrived at the conclusion that when Section 65-B talks of an electronic record produced by a computer referred to as the computer output, it would also include a hard disc in which information was stored or was earlier stored or continues to be stored. It distinguished as there being two levels of an electronic record. One is the hard disc which once used itself becomes an electronic record in relation to the information regarding the changes the hard disc has been subject to and which information is retrievable from the hard disc by using a software program. The other level of electronic record is the active accessible information recorded in the hard disc in the form of a text file, or sound file or a video file etc. Such information that is accessible can be converted or copied as such to another magnetic or electronic device like a CD, pen drive etc. Even a blank hard disc which contains no information but was once used for recording information can also be copied by producing a cloned had or a mirror image.

Supreme Court in S. Ravindra Bhat and V. Ramasubramanian, vide judgment dated July 14, 2020, overruled the Shafhi Mohammad case for being in teeth of the judgment in Anvar P. V. Further, judgment in Tomaso Bruno was declared per incuriam, for not laying down the law correctly and the legal position was clarified as under:

The certificate required under Section 65B(4) of the Act is a condition precedent to admissibility of evidence by way of electronic record. Oral evidence in place of such certificate cannot possibly suffice as Section 65B(4) of the Act is a mandatory requirement of the law.

The non-obstante provision of Section 65B(1) of the Act makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this regard, Sections 62 to 65 being irrelevant for this purpose.

The law laid down in Anvar P. V. does not need to be revisited. However, last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is to be read without the words “under Section 62 of the Evidence Act…”

The required certificate under Section 65B(4) of the Act is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. Such proof however, cannot be adduced if the device cannot be physically brought to court in cases where the computer happens to be a part of a “computer system” or “computer network”. In such case, the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4) of the Act.

Where the requisite certificate has been sought from the person or the authority concerned, and the person or authority either refuses to give such certificate, or does not reply to such demand, the party asking for such certificate can apply to the court for its production under Section 165 of the Evidence Act, Order XVI of the Code of Civil Procedure or Section 91 and 349 of the Code of Criminal Procedure. Once such an application is made to the court, and the court directs that the requisite certificate be produced by the person to whom it sends a summons in this regard, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate.

The court observed that Section 65B is silent with regard to the stage at which such certificate is be furnished to the court. It was observed in  Anvar’s case  that such certificate must accompany the electronic record when the same is produced in evidence. This is when such certificate could be procured by the person seeking to rely upon an electronic record. In cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the judge conducting the trial must summon the person(s) under Section 65B(4) and require that such certificate be given by such person(s) exercising discretion depending upon facts of each case. This ought to be done when the electronic record is produced in evidence without the requisite certificate. In so far as criminal trials are concerned, the requisite certificate can be directed to be produced by the court at any stage, so that information contained in electronic form can be relied upon in evidence.

Furthermore, the court issued general directions to cellular companies and internet service providers to maintain CDRs and other relevant records for the concerned period in a segregated and secure manner if a particular CDR or other record is seized during investigation in the said period. Concerned parties can then summon such records at the stage of defense evidence, or in the event such data is required to cross-examine a particular witness.

Lastly, Supreme Court was of the view that suitable rules and directions should be framed in exercise of the Information Technology Act, 2000, for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption.

Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed after considering the report of the committee constituted by the Chief Justice›s Conference in April 2016.

Siddhant Mishra – Advocate at Lucknow High Court

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Legally Speaking

71st birthday of Indian Constitution

I feel that the Constitution is workable, it is flexible and it is strong enough to hold the country together both in
peacetime and in wartime. Indeed, if I may say so, if things go wrong under the new Constitution, the reason will
not be that we had a bad Constitution. What we will have to say is that Man was vile,’ says Dr B.R. Ambedkar.

MUNEEB RASHID MALIK

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The Ministry of Social Justice and Empowerment on 19th November, 2015, notified the decision of the Government of India to celebrate the 26th day of November every year as the Constitution Day to promote constitutional values among citizens. Before the issuance of the notification, November 26th was celebrated as the National Law Day to honour the 207 members of the Constituent Assembly. Therefore, Constitution Day is celebrated in our country on 26th November every year now to commemorate the adoption of the Constitution of India. The Constituent Assembly of India adopted the Constitution on 26th November, 1949 which came into effect from 26th January, 1950. Justice Krishna Iyer once aptly enunciated that the Indian Constitution is the cornerstone of a liberated nation which lays the grand foundation of a great people’s political edifice of governance and spells out the fundamental rights and socialistic aspirations of the vast masses long inhibited by an imperialist ethos. It creates a trinity of democratic instrumentalities with checks and balances, parliamentary in structure, quasi-federal in character. An independent judiciary, an accountable Parliament at the Centre and like legislatures at the State level, a powerful Election Commission and fearless, critical Comptroller and Auditor General provide a paramountcy of democracy, at once responsible and responsive. Judicial review of State action, public finance auditable by a constitutional authority, obligation to seek fresh mandate through general elections with the adult franchise, accountability, direct and indirect, to the people in several ways, — these are fundamental in the governance of the country. The people, though free, have fundamental duties mandated by Art. 51A of the Constitution to exercise which, as in cases of environmental and ecological preservation, compassion for living creatures, protection of the value of composite culture, the authority of judicial writ power may be moved in aid.

The Constituent Assembly took a total of two years, eleven months and seventeen days to complete the Constitution. The Constituent Assembly considered a total of 2473 amendments proposed to the Draft Constitution from 9th December, 1946 to 26th November, 1949. Dr. Rajendra Prasad, the President of the Constituent Assembly confirmed the Constitution and fifteen articles were immediately given effect to on 26th November, 1949, which were, the provisions of Citizenship, Oath and affirmation by the President, Election, Definitions, Interpretation, Powers of the President to remove difficulties and the short title of the Constitution. The rest of the provisions came into effect from 26th January, 1950 and the working of the Constituent Assembly came to a stop. The preamble, a part of the Constitution, also came into force on 26th January, 1950, which presents the intention of the framers of the Constitution and the principles of the nation. The President in his address, on 26th November, 1949, talked about the Judiciary and enunciated that we have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Court’s independent of the influence of the Executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of Executive from Judicial functions and placing the magistracy which deals with criminal cases on similar footing as Civil Courts.

The Fundamental Rights enshrined in Part III of the Constitution represent the basic values enriched by the people and the object of the fundamental rights is to ensure the inviolability of certain essential rights against political vicissitudes. Fundamental rights are not distinct but are mutually exclusive, as has been held by the Supreme Court in a catena of judgments. Dr. B.R. Ambedkar while highlighting the central importance of Article 32 of the Constitution stated that I am very glad that the majority of those who spoke on this article have realised the importance and significance of this article. If I was asked to name any particular article in this Constitution as the most important – an article without which the Constitution would be a nullity – I could not refer to any other article except this one. It is the very essence of the Constitution and the very heart of it and I am glad that the House has realised its importance. Dr. B.R. Ambedkar, in his speech on November 25, 1949, stated that if we wish to maintain democracy not merely in form, but also in fact, what must we do?

“The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us. The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not “to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions”. There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O’Connel, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country. For in India, Bhakti or what may be called the path of devotion or hero-worship, plays a part in its politics unequalled in magnitude by the part it plays in the politics of any other country in the world. Bhakti in religion may be a road to the salvation of the soul. But in politics, Bhakti or hero-worship is a sure road to degradation and to eventual dictatorship. The third thing we must do is not to be content with mere political democracy. We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.”

As we celebrate the 71st birthday of the Constitution, it will be apposite to remind ourselves of the objectives of the Constitution. We must draw our attention towards the basic principles of law in our society and call to mind the purpose which the law has in view to serve in a country governed by rule of law envisaged by the Constitution. Fundamental rights and fundamental duties have to be given equal importance. Fundamental duties, though non-justiciable, are rules of law. In Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625, the Supreme Court observed that there may be rule which imposes obligation on an individual or authority and yet it may not be enforceable in a court of law and therefore not give rise to a corresponding right in another person. But it would still be a legal rule because it prescribes a norm of conduct to be followed by such individual or authority. The law may provide a mechanism for enforcement of this obligation, but the existence of the obligation does not depend upon the creation of such mechanism. The obligation exists prior to and independent of the mechanism of enforcement. A rule imposing an obligation or duty would not therefore cease to be a rule of law because there is no regular judicial or quasi-judicial machinery to enforce its command. Such a rule would exist despite of any problem relating to its enforcement. Otherwise the conventions of Constitution and even rules of international law would no longer be liable to be regarded as rules of law. It is our duty to abide by the Constitution and carry out our fundamental duties effectively for instilling a sense of obligation and discipline amongst ourselves. We have to fulfil the objectives of law to dispense social justice to the people of our country. The Judiciary has played a magnificent role in upholding the Constitution and must always travel on the same path of delivering justice constructively. Article 51-A (j) obliges us to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement. Therefore, on the Constitution Day, let us pledge to uphold the Constitution and also remember the words of Earl Warren, Former Chief Justice of the United States, when he said:- “Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence, we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved, we should add them permanently to our storehouse of treasures.”

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Opinion

Who will step into Ahmed Patel’s shoes?

Priya Sahgal

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Ahmed Patel’s demise has left a crucial gap in the Congress. Apart from his personality, it also has a lot to do with the kind of role he played, that of a trouble shooter and a bridge between various factions of the Congress. Not to mention being a bridge between the allies and 3 Janpath as well. It is this void the Congress will find hard to fill.

Of course, with the rise of Team Rahul he had already begun taking his first few steps backwards. Rahul has his own trio of trouble shooters—K.C. Venugopal, Rajeev Satava and Randeep Surjewala. Will any or all of these be able to fill the gap that Patel has left? We saw them in action during the Ashok Gehlot versus Sachin Pilot crisis and in the end, it was Priyanka Gandhi who stepped in to placate Sachin Pilot and Ahmed Patel had a word with Gehlot to tone down. That’s what the party needs, someone senior who can tell them when to take it down a notch or two. This kind of heft comes with seniority but more than that with credibility.

Sources indicate that many are trying to fill this gap—from Kamal Nath and Digvijaya Singh to Ashok Gehlot himself. Before his revolt, Ghulam Nabi Azad too would have been a strong contender for this role. But I don’t see any of these names being successful for one simple reason: The mantle has also been passed on from Sonia to Rahul. It is now up to Rahul to see whom he would like in the role of both political advisor and troubleshooter. He may very well choose between Venugopal and Surjewala but if you ask me—as someone who has been covering the Congress for nearly three decades—he would be well advised to go with Priyanka Gandhi. For one, she has his complete trust and that is important. In her condolence note, Sonia Gandhi described Ahmed Patel as a “faithful comrade, irreplaceable colleague and friend”. If there was one person within the party whose loyalty she was sure of, it was Ahmed Patel. Her son too needs someone like this and who better than his sister Priyanka. She may lack Patel’s experience and rapport with allies but she has a connect within the party and there are many who see her as a sort of Brand Custodian. Even the 23 leaders who wrote raising concerns about the leadership vacuum within the party would be willing to follow her leadership. 

Whoever the Congress chooses, it has to decide fast. For on the other side, playing the same role for Prime Minister Narendra Modi is Home Minister Amit Shah. If the Congress wants to give itself any kind of a fighting chance against the BJP in the next general elections, it needs to put its house in order. Certainly, Priyanka is no match for Amit Shah. It would be hard to see who is within the Congress, though in his last battle with Shah, it was Ahmed Patel who had the upper hand. The tragedy is that the party doesn’t have another Ahmed, but could Priyanka be groomed to become one? She has the right instincts. 

One has also heard whispers of the party contemplating CWC elections and even elections to the post of the party president. One has also heard an equal number of whispers claiming that this is all a stalling tactic, the CWC has just been nominated and before long, Rahul too will be “nominated” as party chief. Or else he will go in for a proxy, such as either Surjewala or Venugopal. The concern in nominating a proxy is that if the new party chief is not Rahul himself then the G23 would definitely push for elections with one of them putting his or her hat in the ring.

For now, the flux continues. At a time when the party can least afford to waste any time, there are too many vacancies to be filled, too many gaps to be papered over. Perhaps Ahmed Bhai’s demise may give it the push it so badly needed—his last service to the party may well be a wake-up call to stop to start fending for itself. Is the Congress leadership listening?

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Opinion

Homi Bhabha: The architect of India’s atomic dreams

Dr Homi Jehangir Bhabha, by single-handedly creating TIFR and BARC, two of India’s most significant scientific institutions, ensured that the atomic dominion he established for his nation would participate in every scientific feat of the future. Today, TIFR is in its seventy-fifth year and India is a world leader in thorium research and development.

Bhuvan Lall

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On Tuesday, 21 August 2012, Alpine rescuer Arnaud Christmann and his neighbour Jules Berger stood on the snow-covered slopes of the Bossons Glacier beneath the southwest face of Mont Blanc, Western Europe’s highest mountain. The two Frenchmen discovered a well-preserved grey coloured jute bag near an aircraft wheel. The nine-kilo sack read Ministry of External Affairs, New Delhi. The Indian embassy in Paris was handed the diplomatic pouch by Captain Emmanuel Vegas of the high mountain Gendarmerie platoon of Chamonix. Tucked inside the bag full of history were Indian newspapers, some regular mail, and calendars of 1966. At the end of the summer of 2016, another Indian diplomatic bag resurfaced in the Alps. Then a portion of a folder emerged with the faded initials H.J.B. embossed on it.

Over half a century ago, at 07:00 GMT on Monday, 24 January 1966, Air India’s Flight 101 began its scheduled descent into Geneva over the Alps. The recently married Captain Joe de Souza, one of Air India’s experienced pilots, radioed verifying everything was all right. The next minute the flight vanished off the radar screen and air traffic control at Geneva panicked. With no response from the plane, the control tower got progressively more hysterical. Over a decade earlier, on 3 November 1950, an Air India aircraft had crashed into Mont Blanc. A helicopter was now rushed to the last known position of the plane. Hours later, the rescue team battling the weather confirmed that the Boeing 707 had crashed at an elevation of 15,585 feet into a rock shoulder called Rocher de la Tournette on Mont Blanc. Due to poor visibility on the peak there was virtually no hope of survivors. Ice drifts and snowstorms silently claimed the lifeless bodies of the one hundred and seventeen passengers in the Alps.

Among the lives abruptly extinguished was India’s most distinguished scientist Dr Homi Jehangir Bhabha who was the chairman of the Atomic Energy Commission. India’s top nuclear scientist’s death in the air crash came just days after Prime Minister Lal Bahadur Shastri had inexplicably passed away on 11 January in Tashkent. Even though a pilot in the vicinity reported seeing a black cloud possibly due to an explosion, the general explanation for the air tragedy indicated human error. The exact cause was never established. The Alps have also not yet delivered further clues to this mystery of history.

Born on 30 October 1909 to a rich aristocratic Parsi family of Bombay (Mumbai now), Homi J. Bhabha hardly slept as a small boy. A leading European child specialist after assessing the youngster told his parents that he had a fascinating mind that kept ticking away. The doctor predicted Bhabha was a genius in the making. At eighteen the handsome and super brilliant youngster enrolled at Gonville and Caius College, Cambridge University to study Mechanical Engineering with plans to join Tata Steel as a metallurgist. But at Cambridge besides conducting the orchestra, the man with a mind of his own fell passionately in love with Physics. The rebellious Indian was accepted as a research student at Ernest Rutherford’s Cavendish Laboratory. He computed the interaction between the electron and its antimatter (positron). It was named Bhabha Scattering in his honour. In 1935, he obtained a PhD from Cambridge for his paper, The Absorption of Cosmic Radiation. Soon thereafter he gained the respect of the world’s most eminent physicists and associated with masterminds like Enrico Fermi, Wolfgang Pauli, Paul Dirac and Niels Bohr. His twelve years of work in Europe were enough for him to gain a lasting worldwide reputation as a theoretical physicist. But this was just the beginning.

On 3 September 1939, when Europe went to war, Bhabha was vacationing in India and couldn’t return to Cambridge. He accepted the offer from Nobel Laureate Dr C.V. Raman, the Director of the Indian Institute of Science, Bangalore, (Bengaluru now), to be a reader in physics. Here he met the amazing Vikram Sarabhai; decades later they laid the foundation for India’s remarkably successful space program. During his years at IIS, Bhabha recognised the role modern science could play in a nation steeped in poverty and superstition and that became his life’s mission. Bhabha, an elected fellow of the Royal Society and the winner of the Adams Prize and the Hopkins Prize, was distinct from other scientists of his era. His plans for India as a leader in the field of atomic energy were extraordinarily grand. His friend, the industrialist J.R.D. Tata assisted with a grant of Rs 80,000 from the Sir Dorab Tata Trust, and in June 1945 Bhabha established an institution called the Tata Institute for Fundamental Research (TIFR). The visionary founder-director referred to his brainchild as “the cradle of the Indian nuclear energy program” and conceived TIFR as a first-rate world-class center comparable to MIT and Cambridge.

After 15 August 1947, with the world entering the atomic age, Bhabha was convinced that the newly independent nation had the potential to get into the exclusive nuclear club. In Prime Minister Jawaharlal Nehru he found a fellow traveler. The two had fortuitously met earlier during a sea voyage. If Nehru stressed on scientific temper in India it was Bhabha who gave it a physical structure. On 10 August 1948, Nehru founded the Indian Atomic Energy Commission with Bhabha as its Chairman. Now he was in charge of top-secret research for the nuclear technology project that competed with the rest of the world. Within a few years, on a 1,200‐acre hilly track along Bombay’s southeast harbor called Trombay, hundreds of Indian scientists were studying uranium and thorium in the state of the art and futuristic Atomic Research Establishment lifting India out of centuries of scientific backwardness. Spearheading the completely indigenous nuclear program at the temple of modern India, Bhabha told his associate Dr Raja Ramanna, “We must have the capability. We should first prove ourselves and then talk of Gandhi, non-violence, and a world without nuclear weapons.”

The Western press published bristling editorials and denounced India’s atomic ambitions. Bhabha overflowing with innovation nevertheless strove onwards and stated, “My success will not depend on what A or B thinks of me. My success will be what I make of my work.” His exceptional standing in the scientific community of the world ensured that Nobel Laureates and prominent physicists frequently visited India and irrigated the Indian minds. A classic photograph from that era shows an elegantly dressed Bhabha in conversation with Albert Einstein, Hideki Yukawa, and John Wheeler as they walked through Marquand Park in Princeton, New Jersey. Right through the 1950s Bhabha was repeatedly nominated for the Nobel Prize in Physics and was a successful nominator as all the three persons proposed by him received the Nobel Prize.

In 1954, the charismatic Indian was conferred with Padma Bhushan award for outstanding contributions to nuclear science. Bhabha’s enterprise and nationalistic thinking also inspired a reverse brain drain and scores of prominent Indians relocated back to India to work at TIFR and the Atomic Research Establishment (BARC now). United Nations Secretary General Dag Hammarskjold selected Bhabha as the President of the first international conference on the Peaceful Uses of Atomic Energy organized in Geneva. He was also appointed one of the Governors of the International Atomic Energy Agency (IAEA) at Vienna. Nonetheless the scientific wizard of India derived his greatest sense of intellectual achievement by publishing sixty-six original papers. He wanted to probe ideas for which there were no words.

Beyond the domain of science, Bhabha’s remarkable mind extended into the realm of art. Music fueled his life. He was proficient in playing both the violin and the piano and loved Beethoven’s ninth symphony. Musician Mehli Mehta consistently visited his home along with his infant son, Zubin. A painting kit accompanied Bhabha on his travels. His figure drawings in charcoal and pencil were outstanding. He pioneered appreciation of contemporary Indian art and was among the earliest to invest in the works of the Progressive Artists Group. An admirer of Maqbool Fida Hussain’s works, Bhabha not only inaugurated his first exhibition but also drew an impressive portrait of the young artist. In addition, he was also an amateur botanist, designer of gardens and a technically competent architect. During his trips to New Delhi, he spent time examining the city’s monuments and public parks. Sir C.V. Raman fascinated with Bhabha’s laser like focus on both cutting-edge science and the arts described him as “the modern equivalent of Leonardo da Vinci”. The multifaceted man disclosed, “Since I cannot increase the content of life by increasing its duration, I will increase it by increasing its intensity… increasing the intensity of my consciousness and life”.

Then the shocking military humiliation of 1962 in the Himalayas and the subsequent death of Nehru set off a chain‐reaction in India. The nation started rearming and concentrating on military preparedness. After China conducted a nuclear test on 16 October 1964 at the Lop Nur test site, the Government of India decided to exercise its nuclear testing option. Bhabha made a famous speech on All India Radio on 26 October 1964 about self-reliance where he argued; “atomic weapons give a State possessing them in adequate numbers a deterrent power against attack from a much stronger State”. He claimed that he would need just eighteen months to deliver India’s own atomic bomb. On 27 November 1964, Prime Minister Shastri sanctioned the Subterranean Nuclear Explosion Project and Bhabha led the effort to capture the awesome fire of the sun for his country’s defense.

Fourteen months later, on 23 January 1966, heading to Vienna to address a meeting of the IAEA, Bhabha, the fifty-six-year-old lifelong bachelor, boarded the ill-fated Air India flight. The next morning Geneva airport announced the news of the catastrophic crash. At the Bhabha residence on Little Gibbs Road, Malabar Hill in Bombay, his younger brother Jamshed received the heartbreaking phone call about the disaster in the Alps. Homi’s mother Meherbai never really got over the tragedy of losing her son. It was one of the saddest days for India and its scientific community. Many scientists at TIFR and in Trombay wept openly. Indira Gandhi, who had just been sworn in as India’s third Prime Minister, termed Bhabha’s demise as a personal loss and J.R.D. Tata remembered his friend as, “Scientist, engineer, master-builder, and administrator, steeped in humanities, in art and music, Homi was a truly complete man”.

Scientists across the world were shocked that a future Nobel Prize winner, and one of the most brilliant brains had perished in a plane crash. J. Robert Oppenheimer, remarked, “Dr Bhabha will be sorely missed as a scientist” and The New York Times recorded, “He was more than a scientist. A universal man, he believed that nothing human was alien to him… He was a gifted artist himself”.

After the towering genius’s unnatural death India’s impressively large nuclear establishment was left without a commander. Bhabha held a great deal of strategic information in his head and none of that could be retrieved now. For a moment, the Renaissance man’s lifelong dream of making India a nuclear power seemed frozen. Nevertheless, a group of seventy-five Indian scientists inspired by the trailblazer began working towards achieving the critical mass. Sarabhai who replaced Bhabha said that he had left islands of self-confidence in a country beset by a thousand problems.

The victory in the Bangladesh War of 1971 influenced India’s resolve to test a nuclear device and secure its national borders forever. Dr Homi Sethna, Dr Nag Chaudhuri and Dr Raja Ramanna received the go-ahead from the Prime Minister on 7 September 1972. Then eighteen months later, early morning on Saturday, 18 May 1974, one of the many unlisted phones at the Prime Minister’s home in Lutyens’ Delhi rang piercingly. Indira Gandhi was waiting for this call. A voice on the crackling phone line from 350 miles southwest of New Delhi at the Pokhran testing range informed her, “The Buddha is smiling”. This was the coded message indicating that India had successfully conducted its first nuclear test.

The Indian scientists had ensured Bhabha’s dream was realised. The news that India had secretly conducted an underground nuclear test stunned the world. This was the first confirmed test by a nation that was not a permanent member of the United Nations Security Council. Almost immediately there were both advocates and opponents of India’s nuclear deterrence. Western press castigated India as an impoverished nation squandering its financial resources.

One senior Indian official stung by foreign criticism reportedly stated, “Our priorities are our own business. They’re not determined in Washington, or Moscow… Did you tell the Chinese what their priorities should be when they exploded the bomb in 1964?” History, of course, has vindicated India’s position. Across the nation, torchlight processions celebrated the achievements of the father of India’s nuclear programmw. The crowds screamed, “Homi Bhabha Zindabad”.

Dr Homi J. Bhabha, by single-handedly creating TIFR and BARC, two of India’s most significant scientific institutions ensured that the atomic dominion he established for his nation would participate in every scientific feat of the future. Today TIFR is in its seventy-fifth year and India is a world leader in thorium research and development. Homi Bhabha Zindabad, indeed.

Bhuvan Lall is the author of ‘The Man India Missed The Most: Subhas Chandra Bose’ and ‘The Great Indian Genius: Har Dayal’. He is currently writing the biography of Sardar Patel. He can be contacted at writerlall@gmail.com.

Bhuvan Lall is the author of ‘The Man India Missed The Most: Subhas Chandra Bose’ and ‘The Great Indian Genius: Har Dayal’. He is currently writing the biography of Sardar Patel. He can be contacted at writerlall@gmail.com.

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Pakistan should stop its fake narrative against India

Joyeeta Basu

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Something very intriguing is going on in Pakistan, which could have been dismissed as amusing but for the seriousness with which even the supposedly mainstream media in that country is peddling the fake narrative of “India-backed terrorism”. A quick glance through articles written by even well-respected geopolitical analysts in the Pakistani press will invariably locate mentions of the ISI-inspired canard of “Indian terrorism”. This media narrative has to be seen as an extension of the sudden spurt in Pakistani activities to promote internationally the fiction of India being a terror-sponsoring nation. Its failure to do so in the Kulbhushan Jadhav case has not deterred Pakistan. Instead, its activities have gained momentum in recent months. Consensus is growing in India about this being a result of the additional push to such efforts being given by Pakistan Prime Minister Imran Khan’s “new” advisor on national security, Moeed Yusuf. Last year, Pakistan had gone to the UN to get four Indian nationals sanctioned as terrorists by the United Nations Security Council resolution 1267. All four names were knocked out by the sanctions sub-committee—two in September this year and two earlier. Not having learnt its lesson, Pakistan has now fielded its Foreign Minister, Shah Mahmood Qureshi and the Director-General of Inter-Services Public Relations (ISPR)—ISI’s publicity wing—Major General Babar Iftikhar to release a dossier with the most ludicrous allegations against India. Pakistan presented the dossier to the UN Secretary General, António Guterres, this week, and the buzz is that it will present it to the incoming Joe Biden administration in the United States as well. It is a different matter though that the dossier being presented is being trashed by diplomatic and intelligence circles as full of outlandish claims and factual errors—even spelling errors!—and hence without an iota of truth.

This push also can be seen in the context of the exercise in propaganda mounted by Pakistan, post India’s abrogation of Article 370 in August 2019, and the rhetoric that Imran Khan often indulges in comparing India with Nazi Germany. It has to be admitted that when it came to managing the messaging post the Article 370 move and the passage of the Citizenship Amendment Act, the Indian government was rather late in realising that the narrative was getting hijacked, at least in mainstream western media, by the Pakistanis. In fact, Imran Khan went almost unchallenged in the US during his visit to the UNGA meeting in 2019, when he went around accusing India of the worst human rights crimes possible. The relative success that he got at least in the western media space, and also in a small segment of the US political space, would have emboldened him to believe that he can actually succeed in painting India as a terror state. But given the lack of interest even in the traditionally anti-India western legacy media, the whole exercise seems to have flopped—which does not mean that Imran Khan will stop trying. One of the main reasons he was selected as the Prime Minister by the military was the hope that he would be able to charm the West into getting Pakistan off the FATF grey list and loosen the purse strings of western nations and international institutions, apart from putting up a believable case against India on Kashmir and minorities. But the ageing playboy’s fading charm was not enough to rescue Pakistan, which continues to be on the FATF grey list. And now its economic situation is so grave that it had to run to the G20 this week to seek a debt relief of $800 million, in the company of 76 impoverished African countries—a G20, of which India is a part, and now the host of the 2023 summit! At least this should settle the case for those who still try to hyphenate India with Pakistan.

In short, Imran Khan has no choice but to continue with his ridiculous exercise against India, as that is one way of constantly burnishing his anti India credentials with the military, which is his boss. As the Opposition comes on the same platform of the Pakistan Democratic Movement, and mounts pressure on Imran Khan’s government, as well as on the military establishment, and as Pakistan slips into a state of penury, the anti-India noise will come in handy as a diversion to appease the domestic audience. Amidst this, even though Pakistan is at best an irritating sideshow for India, New Delhi should never lose sight of the fact the nuisance that Islamabad/Rawalpindi can be, especially when the latter has successfully sold to the Chinese the tall tale that it can be an effective counter to India.

Pakistan is a history sheeter, which has scorched its own record books by becoming the font of global terrorism and by perpetrating the worst kind of violence against its minorities. That Pakistan actually believes it can accuse India of all the crimes that it itself is guilty of, proves how highly this basket case of a country thinks of itself. It’s time it stopped punching above its weight.

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