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How much funny is really funny? The debate over parody in copyright law

The rights that a work of parody might violate are the distribution rights over the work, right to publicise the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honour and reputation of the owner of the work.

Anurag Tiwary and Abhinav Narayan Jha

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The difference between parody and satire has not been accepted or developed by the Indian courts in the context of IP laws. This means that whether a work is a parody or a satire, the defence of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. 

Parody refers to a work that humorously and critically comments on existing work to expose the flaws of the original work. Parody, as a means of criticism, has been historically used by various people such as stand-up comedians, YouTubers, Bloggers, actors, authors, etc. to communicate a particular message or a point of view to their audience. This means that to create a successful parody, one has to, inevitably, use the original work. Since copyright law gives authors of original work certain exclusive rights, such as the right to reproduction, communication to the public, distribution rights, right to make derivative works, and other such rights associated with the work, parody turns out to be a violation of the rights granted to the copyright owner.

 The rights that a work of parody might therefore violate are the distribution rights over the work, right to publicize the work in a positive light, and the moral rights which are associated with the author. Moral rights essentially prohibit modification of the copyrighted work in a manner that injures the honor and reputation of the owner of the work.

 Parody issues generally come into play with tort law as well as criminal law, especially law on defamation. However, in this article, we’ll try and focus on the major IP issues that hover around the debate regarding parody.

 Copyright Law and its philosophy 

Copyright is a unique kind of property. Just like other Intellectual property, you cannot touch or feel it, but you certainly can protect the ‘creation of the mind’. However, the objective behind copyright law is to “strike a fine balance between monopolistic claims made by authors of original work and adequate protection to the Intellectual property to encourage further creative thought”. Such copyrighted work can therefore be used by third parties to encourage creativity – This is fair use. However, such use has to be reasonable and under certain conditions for specific purposes only. 

The Four Factor Test

 For a valid fair use claim, the defendant will have to satisfy what is commonly known as the “Four Factor Test”. Under the four-factor test, the consideration is: firstly, what was the purpose and character of your use of the copyrighted work. Secondly, the nature of the copyrighted work, which means that if the work is copyrighted then, what is the degree of protection that it deserves. Thirdly, the amount and substantiality of the portion of the work that was taken by you. This means that whether the amount of copying done by you was reasonable in relation to the purpose of copying and lastly, the effect that your use will have on the market of the owner. Will your use impact the potential market of the original work. 

Parody and Satire 

Indian laws treat parody and satire as one and the same. However, the position is different when one looks at the jurisprudence evolved by the courts of foreign Jurisdictions.

 In the United States, the courts have differentiated parody and satire to the extent that it impacts the defense of Fair Use under their copyright law. In Campbell v. Acuff-Rose Music, Inc (1994), the court differentiated between the two and held that “Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s imagination, whereas satire can stand on its own feet and so requires justification for the very act of borrowing.” Parody, according to the court, meant, “Second work by a different author that imitates the characteristic style of the first author … to ridicule or criticize the copied work.” However, satire meant a work in which “prevalent follies are assailed with ridicule or attacked with irony, derision or wit.” The Supreme Court of the United States, in this case, made it clear that while parody was entitled to the defense of fair use, satire was not.

 On the other hand, in May this year, the Delhi High Court had an interesting case before it. Netflix aired a web series on its platform named “Hasmukh” which is a dark comedy about a small-town boy who arrives at Mumbai to pursue his career in stand-up comedy. Something weird about Hasmukh, the protagonist, is that he can only successfully perform his act if he commits murders before his performances and makes jokes about his victims. During one of the episodes, Hasmukh has been shown to have had an upsetting experience with a lawyer. The lawyer is someone dishonest and greedy. During the same episode, the protagonist allegedly makes derogatory remarks against the entire legal fraternity. So, a suit was filed before the Delhi High Court seeking a stay against further airing the web series. The court in Ashutosh Dubey v. Netflix (2020) sat to decide whether the above situation amounted to freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Although the case was decided based on the above contention, the court made certain remarks on what a satire is. The court said, “Satire is a work of art. It is a literary work that ridicules its subjects through the use of techniques like exaggeration. It is a witty, ironic, and often exaggerated portrayal of a subject.”

 Another instance when the court considered the issue of satire was in the case of Indibily Creative Pvt. Ltd. vs. Govt. of West Bengal (2019). It was the Supreme Court that held that “A Satire is a literary genre where issues are held up to scorn by means of ridicule or irony. It is one of the most effective art forms.” The difference between Parody and satire has not been accepted or developed by the Indian courts in the context of IP Laws. This means that whether a work is a parody or a satire, the defense of fair use can be claimed by the defendants and the work shall also be entitled to claim separate copyright protection as well. This is because the courts in India have considered both these forms of expression as a work of art and have characterized them under artistic expression.

 Parody and Fair Use 

Parody is included under a category of works allowed under Section 52(1)(a)(ii) of the Copyright Act, 1957. This provision provides for ‘criticism or review, whether of that work or any other work.’ Parodies usually are essentially a criticism of original work and are therefore included in the list of works allowed in the above provision. However, it isn’t as simple as it sounds. The real problem starts when you have to prove that your work was a parody and not an infringement on the rights of the original copyright holder. 

To prove that your work is covered under parody, you have to satisfy two conditions which will essentially conclude as to whether it is covered under fair use or not. They are, Firstly, you must not have intended to compete with the copyright holder. This is also called the Market Substitution Test and Secondly, you must not have made ‘improper’ use of the original work. These conditions were laid down in the case of Blackwood and Sons Ltd. & Ors. v. A.N. Parasuraman & Ors. (1959)

 So, if you can prove that your work has not impacted the potential market of the original work and that the parody and the original work cater to two completely different sets of audiences, you would have passed the market substitution test. This is tricky because applying this rule strictly is impossible for the simple reason that one is not quite sure if the categorization of the audience can be done in the manner that this rule presupposes. If the court looks into the commercial gains made by the parody to see if the parodist has competed with the original author, then that too wouldn’t be an effective mechanism. Kris Ericson writes, that, even if the parody has made commercial gains by criticizing the original work it doesn’t mean that it has made inroads into its potential market. Infact, he goes on to mention that, it has indirectly helped the original copyright owner by publicizing the original work and for lesser-known works, it has served to make it more famous/popular. 

The Transformative Work Test

 To meet the difficulties that could arise while analyzing the first condition, the courts have evolved the “Transformative Work” Test. This test was also used in the Campbell case where the US Supreme Court held that the relevant question to decide in such circumstances is to see “to what extent the new work is transformative, i.e., to what extent the new work alters the original with new expression, meaning or message.” This test has therefore substantially downplayed the commercial use argument and if the parodist can show that his work is transformative, he would be entitled to fair use defense. However, what qualifies as a “transformation” under this test has to be decided by the court on a case-to-case basis.

 In Leibovitz v. Paramount Pictures Corporation (1998), the US Court of Appeals for the Second Circuit was faced with a dilemma. Leibovitz is a well-known photographer. Among her most famous works is the photograph of the actress Demi Moore. Moore was pregnant when the photo had been shot by Leibovitz. She was depicted nude with a serious facial expression. The photo was shot keeping in mind various aspects such as skin tone, body positioning, and lightning, among other things. The photograph gained popularity in very little time. Paramount pictures, sometime later, published a photograph of the actor Leslie Nielsen where the company had used the same concept behind Leibovitz’s photo. The company used the photo of a naked pregnant woman, which was shot using similar lightning, body positioning, etc. and superimposed the ‘smirking’ face of Nielsen in the place of the woman. Now, the question that the court had to decide upon was, whether this amounted to a transformative work at all. The court held that Paramount’s use was transformative because it had imitated the original work and had brought in a ‘comic effect or ridicule’ which was an addition to the original work. The court also held that Nielsen’s photo with a smirking face had a contrasting dissimilarity with the serious expression of Moore which may be perceived as commenting on the ‘pretentiousness’ of the original.

 In R.G. Anand v. M/s Deluxe Films (1978), the Supreme Court in India has held that “Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.”

 However, a work does not become a parody simply because there is humor inside it. If it is found that the parodist has tried to use a famous work to gain more commercial benefit by simply incorporating humor in the work, it wouldn’t be considered a parody. For instance, during the fag end of 2015, a US court was hearing an exciting case. The defendant, who was an apparel company, had used the iconic Superman logo on its T-shirt. The T-Shirts featured the word “Dad” in a superman-styled logo. They claimed that SuperDad T-Shirts by the defendant were an obvious parody of the Superman logo and therefore there is no likelihood of confusion that could be caused to the consumers. They infact claimed that the word ‘Dad’ was used to point out Superman’s ‘undue self-importance’. The court was sitting to decide on the motion to dismiss the complaint. The judge disagreed with the arguments of the defendant and held that although the defendant’s use of the word Dad is humorous, it is only to promote the t-shirts using the logo of the plaintiff, and therefore it is not a parody. 

What does the SupermanSuperDad fiasco show? It shows two things in particular. It shows how a defense of parody will only succeed if the work is not likely to confuse the consumers as to the source of the work. Secondly, it shows how parody has to be more than being just funny especially when the work is purely commercial in nature. It has to make some commentary on another’s work. The commentary must be meaningful and must not be simply to utilize someone else’s work to increase your sales. 

Parody and Moral Rights

 Moral Rights are inalienable rights granted to an author of a copyrighted work. They exist independently of Copyright. The author of an original copyrighted work, even after agreeing to alienate his exclusive economic rights, retains moral rights in his works which can be enforced when the need be. They give the right to the author to have the work attributed to him which is also known as the right to paternity. 

Moral Rights were included in Article 6bis of the Berne Convention way back in 1928. Section 57 of the Copyrights Act, 1957 grants protection against any act of distortion, mutilation, modification, or any other untoward act done to an author’s original work in which copyright exists. Acts which prejudice the honor or reputation of the creator of the work is read as a violation of the Right to Integrity, which also forms a part of Section 57.

 It is to be understood that parody directly infringes upon the moral rights of the author of an original work. This is because it is based on ridiculing and mocking the copyrighted work. This is where the second test to claim parody as fair use comes in. We do know that to claim fair use defense in parody, the parodist will have to prove that he did not use the original work in an ‘improper’ manner. But the test becomes difficult to theorize because of a lack of a clear definition of the word ‘improper’ and as to what it entails.

 Here, there are issues relating to freedom of speech and expression (argued by the parodist) as well as those related to defamation law and claim over one’s right to dignity (argued by the author of a copyrighted work). It is to be understood that freedom of speech and expression is not an unbridled right. It is infact a right with reasonable restrictions. This means that a parodist is not allowed to ridicule or attack the work such that it can be imputed to the author of the work. 

How can this distinction be made is a question of fact which the courts have to decide on a case-to-case basis. Usually, the courts apply what is called “The line of Creativity” principle. This principle draws a line between the parodist’s creative application of ideas and expressions to criticize the original work, and, the insult or humiliation intended towards the author of the original work. Such an inquiry is for the courts to do. But while doing such an inquiry the courts need to draw a distinction between innocent humor and defamation intended against the moral rights of an author.

 Notably, the Australian Supreme Court laid down the ‘bane and antidote Test’ in the case of Charleston & Smith vs. Newsgroup Newspaper Ltd (1995). The test laid down a rule that if any defamatory text or picture is accompanied by a disclaimer prescribing that the work has been used just for humor purposes then it must be taken only for humor purposes and nothing more or nothing else. This was a big development.

 The growth of new media technologies has increased the number of actors, standup comedians, bloggers, and other stakeholders in copyright law. The use of original copyrighted works, without the permission of the author of the work, has almost become a norm and a social and cultural behavior. This is all being done in the name of a joke or a parody. Majority of these contents violate the moral rights of authors of original works and are offensive. The rest use parody as a fair use defense for works that are purely aimed at commercial gain. Such infringements need to be regulated in an age of digital India to grant incentives for creators to create more works of artistic expression. The different tests adopted by the courts have to be applied equitably. In the longer run, this will further the goal of Intellectual Property to balance the rights of the Authors as well as those forming part of the citizenry. 

Anurag is a student of National Law University, Visakhapatnam and can be contacted at anuragtiwary66@gmail.com Abhinav is a student of law from Amity University, Noida and can be contacted at narayanabhinav14@gmail.com 

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Opinion

Transforming slums via upgradation and delisting: Odisha’s approach

The model for slum upgradation by Government of Odisha, utilising public resources during the ongoing pandemic and ensuring better preparedness against similar health crises in the future, has the potential to be scaled up to other states within the country.

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Slums are not a new phenomenon. They have been concomitant to increasing urbanisation and industrialisation as populations boomed. These pockets of informal settlements are characterised by overcrowding, insanitary, unhealthy, and dehumanising living conditions, insecure land tenure, lack of access to basic civic services, education, and healthcare, among others. While the challenges faced at the slum level are not new, the ongoing pandemic has exacerbated their substandard living conditions while preventing them from practising seemingly simple preventive measures such as frequent handwashing and maintaining social distancing, threatening more than one billion people worldwide in slums as well as in the non-slum urban areas at large. Those living in slums and informal settlements are also most vulnerable to the economic consequences of a widespread lockdown. The Covid-19 pandemic, through its various peaks, has further heightened the need for a more robust and immediate solution for improving the living condition and access to services in slums. Integrating slums within city fabric by slum upgradation has the potential to be one of the crucial interventions that can foster inclusive and resilient cities as we ‘build back better’.

The approach to slum upgrading has changed considerably from the 1950s to the 2000s. Beginning in 1972, the World Bank launched urban upgrading projects to improve services, infrastructure, and housing in hopes of reducing poverty and meeting basic needs (Corburn&Sverdlik, 2017). In the 2000s, the slum upgradation programmes became more comprehensive, calling for an enabling approach combining good policies, community participation, engagement of the private sector and strategies to prevent the future proliferation of slums. Through the years, slum upgrading initiatives in countries across the world like Bandung, Indonesia, and Vietnam, among others, have been considered relatively successful; however, upscaling projects from small neighbourhoods to the city and to the state scales remained a challenge.

Slum upgrading is a complex phenomenon as several interrelated components require to be addressed to implement it successfully. It is not simply about providing basic infrastructures or housing but also about integrating the economic, social, institutional, and community activities that are needed to turn around downward trends in an area. The two most important factors for a slum upgrading programme to be successful are strong political will on behalf of the government and a strong buy-in from communities. However, in most cases, achieving some coherence in the community, finding solutions for a wide range of needs and sustaining political will across government terms remain primary challenges.

ODISHA’S APPROACH TO THE CHALLENGE

Although one of the least urbanised states in India, Odisha grew at a rate double that of its overall population during the 2001-2011 period. Moreover, one in every four urban dwellers in Odisha was living in slums (Census 2011) and lacked access to basic infrastructure while occupying only 2-4% of the urban land. Against this background, Odisha embarked on its journey of providing land rights to slum dwellers and enacted the Odisha Land Rights to Slum Dwellers Act in September 2017, followed by the launch of Jaga Mission or the Odisha Liveable Habitat Mission in 2018. By 2021, the GoO distributed more than 70,000 land right certificates across 109 small and medium urban local bodies (ULBs) while according to more than 100,000 land entitlement certificates. 

However, as mentioned above, mere according land rights do not improve the living quality in these urban informal settings. The continuum of land rights, from de-jure to de-facto presented a range of opportunities to incrementally transform urban slums and the lives of the people who live there. Accordingly, a ‘Standard Operating Procedure (SOP) for Slum Upgrading and Delisting in Odisha’ was designed to integrate the urban poor settlements into the mainstream city fabric and transform the slums into liveable habitats called Biju Adarsh Colonies (BACs). It was launched on 28th September 2020 amidst the pandemic, and the work was initiated immediately. It intended to benefit the slum dwellers by jointly identifying with the communities the key infrastructure gaps and subsequently filling those gaps by process of upgradation. It focused on improving access to six civic infrastructures that is, i) in-house water supply, ii) paver roads, iii) pucca stormwater drainage, iv) street lights, v) individual household toilets (IHHL), vi) in-house electricity, and common social infrastructures i.e. vii) Parichaya, signature community centres viii) Open space development including ix) development of Childrens’ play areas. The state government’s effort through asset creation and improved service delivery aimed to address the demands of urbanisation and bridge the gap between developmental outcomes and the growing needs of people in the state. This, in turn, translated into increased infrastructure resilience and reduced vulnerability toward health risks like the ones posed by the ongoing pandemic. 

Community engagement has been one of the key features of the programme. By stimulating and fostering the capacity of community-based organisations namely the Slum Dwellers’ Association (SDA) and Self-Help Groups (SHGs), the government ensured that not only did they become the beneficiaries of the development but also becomes the partner in the process of development instilling a sense of ownership of the process. Moreover, the projects supported climate-sensitive infrastructure development by mandating paver blocks for new roads, LED bulbs for Street Lighting, construction of toilets with Septic Tank, and encouraging the use of solar-powered street lights. These technologies are expected to result in positive environmental impact by subsoil percolation & groundwater recharge, energy conservation, reduction in carbon footprint, groundwater contamination, waterbody contamination, and eventual decline in health hazards. 

COMPLEMENTARITY OF OTHER

INFRASTRUCTURE PROGRAMMES

Convergence with other ongoing state and central government schemes has been another key constituent of the program. Various government schemes like Urban Wage Employment Initiative (UWEI)/ Mukhyamantri Karma Tatapara Abhiyan Yojana (MUKTA), Buxi Jagabandhu Assured Water Supply to Habitations (BASUDHA), Swachh Bharat Mission (SBM), and UNNATI funded the public works component of the slum upgradation under JAGA Mission, covering all parts of the project. While the water supply component is complemented by Mission BASUDHA, which seeks to provide piped drinking water supply to all households in Odisha, Swachh Bharat Mission was leveraged for individual toilets and CT/PTs. It also went ahead to integrate community participation and wage employment scheme with the slum upgradation process to reduce social, economic, and infrastructural vulnerability among the urban poor. The participation was further bolstered by the UWEI scheme launched initially for six months as a COVID-19 response to provide livelihood opportunities to around 450,000 urban poor families. The scheme was converged with JAGA Mission to provide employment to the urban poor by engaging them in creating urban infrastructure for slum upgradation. It not only provided gainful livelihood opportunities to urban poor families during the ongoing pandemic but also created community assets, strengthened community institutions, enhanced ecological resilience, and applied innovative technologies to enhance the sustainability of welfare schemes and measures. 

WAY FORWARD

While slum upgrading benefits a city by fostering inclusion, promoting economic development, addressing overall city issues, and improving the quality of life of the urban poor, there remain other challenges with mainstreaming. The upgraded slums, most often than not, remain unaccounted for in the city planning exercise and the upgradation wears off with time perpetuating the slum-like situation. Odisha’s slum upgradation program is uniquely designed to tackle this challenge as well. The slums, once upgraded, are delisted and are integrated into the city fabric, thus bringing them within the purview of the statutory planning exercises. This is a step towards making the program sustainable in the long term.

Another major challenge is the sustained flow of funds, which the Odisha government also addresses by amending its Odisha Municipal Act-1950 and Odisha Municipal Corporation Act-2003 to provide for internal earmarking of 25% fund for urban poor under the head of capital expenditure in all ULBs of the State. This allocation of sum for delivering basic services and infrastructure to slums in the ULB budgets aims at providing for the fiscal requirements and planning needs for the urban poor in the state. Internal resource earmarking aimed to channelise the municipal spending to become inclusive and pro-poor in their approach and functioning.

Informal settlements typically suffer from a lack of access to basic civic and social amenities and remain characterised by dilapidated built structures—increasing their vulnerability considerably. Hence, building forward better from this pandemic will necessitate integrating slums within the city fabric, further fostering inclusive and resilient cities envisioned in the Sustainable Development Goals (SDGs) and the New Urban Agenda (NUA). With access to all basic infrastructures backed by a strong local body, communities can be more cohesive, more resilient, and better placed to confront economic and social challenges. The model for slum upgradation by GoO, utilising public resources during the ongoing pandemic and ensuring better preparedness against similar health crises in the future, has the potential to be scaled up to other states within the country. The partnership between government and community along with a demand-driven approach is the key to the success of programs like JAGA Mission. The only key to this upscaling is to build continued complementarity with other state and national level urban development programmes and develop community partnerships.

The writer is an Associate

Research Fellow of Centre for Policy Research (CPR). 

Building forward better from this pandemic will necessitate integrating slums within the city fabric, further fostering inclusive and resilient cities envisioned in the Sustainable Development Goals (SDGs) and the New Urban Agenda (NUA).

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UKRAINE IS NOT AFGHANISTAN, BUT…

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Ukraine-crisis is likely to be prolonged with a similar objective responsible for Afghanistan-war lasting for years. Geographically, culturally, histo rically and at numerous other levels, there is no comparison between Afghanistan-wars fought at different periods by United States as well as former Soviet Union and the ongoing Ukraine-war. Ukraine is not Afghanistan. The only similarity is that people have suffered and are suffering the most in both countries. But when superpower and/or major powers’ key interest is their own agenda, why should they be expected to be worry about grievances of common citizens in targeted countries?

Seriously, diplomatic promises, claims, assurances and so forth voiced by any power- which itself cannot claim to be above board in the same area- only sound hollow, including United States as well as Russia. Notwithstanding claims made by US and its allies about former’s aid to Ukraine, helping this country gain an upper edge against Russia, several key factors cannot be side-lined. It is astonishing, US waited for Russian strikes against Ukraine to begin and then started supplying weapons to latter. Weapons and not diplomatic cards have been (and are being) made use of. Secondly, this suggests a motive of Washington was and perhaps is continuance of Russian-Ukraine war. The limited or practically no importance being accorded to diplomatic negotiations for an end to this conflict indicates this. United States is apparently more concerned about continuance of Ukraine-crisis till Russia weakens more. It is equivalent to expecting history to repeat itself. Afghan-ploy was also responsible for collapse of Soviet Union.

Ukraine-crisis, it is feared, spells dangerous signals for other European countries. This refers to plans of Finland and Sweden to backtrack from their policies of military non-alignment and join NATO. Russian President Vladimir Putin has warned that such a move “would certainly provoke our response.” Notwithstanding diplomatic legitimacy and/or credibility of this stand, what needs greater attention is the havoc that even a minor military move from Russia against these countries can lead to. Chances of American soldiers stepping in to confront Russian soldiers to check such a move may be viewed as non-existent. Those talking of Ukraine-crisis leading to third World War had probably envisaged such a situation, that of American soldiers actually helping Ukraine.

Geographically, terrain of these countries, including Ukraine is different from that of Afghanistan. Besides, spill-over of Afghanistan-war’s negative impact into Pakistan cannot be forgotten. It is difficult to assume that rest of Europe would not be affected by continuance of Ukraine-crisis and if other countries are caught in similar situation. Geographical proximity of Finland and Sweden to Russia cannot be ignored.

Diplomatically, United States is close enough to issue periodic assurances and perhaps also help with weapons. But that’s it. It is high time that European countries judged the situation as per their standing and not as laid out by other powers. Rather than risk facing any war or war-like situation and/or waiting for any external power to decide their diplomatic strategy, it may be more practical of Finland as well as Sweden to have one-to-one talk with Moscow. Waiting for third world countries to help them out may take too long a time and perhaps only worsen the situation.

NATO-diplomacy, inclusion in NATO and other similar diplomatic vibes sound great. But their limitation in spelling peace and relief as well as not permitting conflicts to take place standout by continuation of Ukraine-crisis. Yes, claims have been made by Ukrainian soldiers about having “made it to border” with “enemy state.” Their counter-offensive operations have been described as a “success”. NATO countries are going all out to boost Ukraine’s confidence by appreciating its success against Russia. These are definitely great diplomatic moves but of limited relevance when war is showing no sign of coming to an end. Chances of it spreading further stand out too markedly to be ignored.

Once a war begins between neighbouring countries, prospects of it coming to a quick end may be viewed as remote unless they mutually agree to give greater importance to diplomacy. Ukraine is caught in this trap. United States probably wants this “war,” as suggested earlier, to further weaken Russia, which would according to speculations be viewed by Washington as a major victory. But at what cost?

– Nilofar Suhrawardy

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Why India-Japan relations matter in the 21st century

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One should make good people their friends. One who keeps good friends, benefits, and lives in peace. – Rig Veda

Time, when in a span of 15 days (March –April 2022), 11 high-level delegations from foreign countries (including the Chinese foreign minister) visited India, and India is visiting Japan to strengthen the Quad, showing the rise of a new economic coalition or something more or something else?

There have been murmurs on the sidelines about Quad Plus. What about Supply Chain Resilience Initiative? What is this Quad, Quad Plus, and why have Japanese ties become so relevant in recent times under the recent geopolitical environment?

Starting from the historic perspective, relations between India and Japan have been strong for centuries on account of Buddhism which originated in India and spread through entire Japan.

In the last century, in Auust 1942, one of the greatest Indian leaders, Netaji Subhas Chandra Bose formed the Indian National Army (INA) with Japanese support and the Japanese-captured Indian prisoners of war.

The offensive from this army (INA) and their grit along with Satyagraha from within led by Mahatma Gandhi, severe losses (suffered by Britishers in WW II), the huge quantum of debt (raised by the UK to fight the war), and the massive cost of maintenance of a plundered nation forced Britishers to give India Independence in 1947.

Just before the Indian Independence in Feb 1946, the soldiers, officers, and personnel who were captured by the Japanese belonging to the Royal Indian Navy (one of the bravest contingents of Indian fighting for Allied forces posing a strong opposition to the Japanese invasion in the Indian Ocean during World War II) and were eventually freed by Japanese (post-WW II) raised a revolt and organized a mutiny to overthrow British.

Indian hearts and Indians’ minds by now were aligned to India and Indian Independence and eventually, Independence came in.

Fast-forward 75 years to the present day, the official reason why the Prime Minister of India visited Japan was to be part of the second physical meeting of Quad. A group of 4 countries, the US, Japan, Australia, and India.

Initiated in 2007 and finally taking shape in 2017, Quad or the Quadrilateral Security Dialogue came into existence. Today what is perceived as “Asian NATO” the Core thought process of Quad came into existence in 2004 on account of the Boxing Day Tsunami that killed 2.28 lac people in 14 countries.

From a humble humanitarian helping hand approach Quad has turned now out to be a formidable force to contain the influence of the reign of China in the Asia Pacific region.

Over the last 2 decades with the rise of China, there has been a steep fall in allies China. All 4 founding or Core members of Quad have or continue to have challenging relations with China.

AUSTRALIA, INDIA & CHINA

Starting with Australia. Australia’s largest trading partner is China, Australia is the largest exporter to China (37%) by a mile (the second largest being Japan with 11% exports) and now Australia wishes to reduce its export dependence on China.

Why this change in mind, change in alignment, change in future strategy?

In May 2020, Australia called for an independent probe into the origins of the coronavirus pandemic, which emerged in the Chinese city of Wuhan, infuriating China. In April 2021, Australian Foreign Minister Marise Payne cancels two MOUs (Memorandum of Understanding) signed by the state of Victoria in 2018 and 2019 with China’s National Development and Reform Commission on Chinese participation in infrastructure projects under China’s Belt and Road initiatives.

In April 2022, Australian Minister for Defence Peter Dutton accused China of paying bribes to win international deals. Why this distrust, mistrust, and unease between Australia and China, When Australia’s largest output is absorbed by China?

It’s a long story in itself and it all started with espionage by Huawei – the largest manufacturer of telecom, equipment, smart devices, and consumer electronic items. On the recommendation from the Australian Security Intelligence Organization (ASIO) concerned with cyber security & espionage, in 2010, Australia’s National Broadband Network quietly rejected Huawei’s bids for the creation of the national broadband network. In 2018 Huawei and ZTE (Chinese telecom equipment manufacturer) were banned from constructing Australia’s 5G network and the saga started.

Once a friend, now a foe, seeking more de-alignment. Somebody’s loss is always somebody’s gain. As Australia was looking to de-align itself from China, India emerged as a formidable, credible, ethical, all-weather partner to Australia.

Swiftly, in April 2022, India strengthened its ties & alliance with Australia by signing the Economic Cooperation and Trade Agreement (ECTA) that aims at doubling bilateral trade in the next five years to USD 45-50 billion from USD 27 billion as of FY 22.

Presently India is Australia’s seventh-largest trading partner, Australia wants India to be top three export markets by 2035. ECTA was historic in the way that tariffs were removed on more than 85% of Australian goods exported to India. In return, Australia agreed to Indian terms of 96% of Indian goods arriving in Australia to be duty-free.

On the Oil side, India is tying deeply with UAE giving UAE companies equivalent status as compared to Indian businesses for sourcing done by the Indian government on the other hand, with Australia India is finding an ally that shares common insecurity & challenges with another Asian giant China.

Australia on an ongoing basis has backed the US, stating that there is ‘no legal basis to several Chinese claims in the disputed South China sea.

THE UNITED STATES, INDIA & CHINA

The US (United States of America), the second formidable partner in Quad wishes to control its trading partner China’s might and influence in the Asia Pacific region by Quad. Also, the US is an ally of Taiwan and in case of aggression by China to annex Taiwan which China believes is part of the People’s Republic of China will need assistance from Quad allies.

To make the geo-political situation a little more chaotic, a latest news coverage by a reputed publication suggested that the Chinese President, aged 68, is suffering from a cerebral aneurysm, a condition when a bulge forms in one of the blood vessels in the brain with a 50% probability of mortality and Chinese President publicly vowed in 2019 that Taiwan must and will be reunited with China and that China reserves the right to use the force. In such a scenario, the US finds India’s largest military as a natural ally against the largest military in the world.

INDIA

India welcomed its way into the Quad as it enabled India both in terms of economic ties as well as a forging formidable force in case of aggression. India had in the past and recently witnessed conflicts with China (in 2020) in the Galwan Valley, the Eastern region of Ladakh. For decades, India continues to fight and reclaim its rights and control over parts of Aksai Chin, Himachal Pradesh, Uttarakhand, Arunachal Pradesh, and Ladakh that are illegally controlled and occupied by China.

On the economic front, India had an import of 100 billion USD from China with India’s trade deficit with China clocking a whooping USD 69.38 billion in 2021. India surely wishes to replace this as quickly as it can. Quad surely can do wonders.

JAPAN, INDIA & CHINA

The next pillar of Quad, Japan has been India’s oldest ally in development, and both have deep social as well as historic links as covered in the earlier part of the note.

The Japanese investments in India touched USD 32 billion between 2000 and 2019, across all core sectors including automobile, electrical equipment, telecommunications, chemical, insurance, pharmaceutical, etc. What was done in 19 years, nearly one-third more (USD 42 billion) will be done in the next 5 years as investments by Japan in India (Intent & actions remain so)?

In 2014, India and Japan entered into a strategic global partnership, a unique and first of its kind in the world whereby it was agreed (other things as well) that in a specific period of the next 5 years Japan’s foreign direct investment and the number of Japanese companies operating in India to double and the target was met.

As India is important to Japan for its slow or DE growing economy with an aged population to rely on the huge market like India, India is dependent on Japan for its cheap capital to build infrastructure to grow its economy on a fast track and provide large scale employment to Indian Youth who need jobs to sustain the family and country.

China remains Japan’s largest trading partner but the conflict continues with China despite economic ties. The conflict started in 2012, when Japan nationalized the Senkaku islands (the Senkaku Islands are a group of uninhabited islands in the East), sparking widespread protests across China. Since then, China has affected a strategy of active non-acquiescence to Japan’s occupation of the islands.

Though Quad was largely formulated and constituted before Covid, Covid expedited the Vaccination diplomacy, Where Russia (not in the context of Quad) China, India, and the US-led the vaccine manufacturing largely.

In a couple of meetings virtually in 2020, South Korea, Vietnam, New Zealand, Brazil, and Israel, most of which are allies of the US took part and there have been murmurs of having these other nations, which share common anxiety against China can be brought in the group known as Quad Plus.

Covid was handled by all countries differently as per their capacity and wisdom and unique amongst it was and are China, where one witnessed zero-tolerance policy on something which is beyond human control.

Thus world which is largely dependent on China across most goods & services found India as a strong ally and thus came China + 1 policy for the world.

Witnessing the disruptions in the Supply chain caused by Covid and to handle any other equivalent situation better and reduce vulnerability and dependence on China, thus came the Supply Chain Resilience Initiative (SCRI) is a trilateral agreement that was led by Japan, Australia, and India. The core idea of this initiative was to create a “virtuous cycle” of strong, sustainable, balanced, and inclusive growth throughout the Indo-Pacific region by sharing best practices, investment promotion, and buyer-seller matching events for supply chain diversification.

Quad, Quad Plus, SCRI are some of the reasons why India visited Japan, but more importantly, to, strengthen ties to fast-track cheap capital flows into India from Japan so that India can continue to remain the Engine of growth for the World, clocking CAGR of 8% real GDP growth.

Interestingly Japan chose India from thousands of miles away as a partner for growth and a friend, and India relied upon a nation far away instead of its neighbours.

As one says, one cannot choose neighbours but surely can choose whom one remains friends with.

Siddhartha Rastogi, Managing Director & COO, Asset Management Vertical of a leading full-service Investment Bank. (The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official view or position of any company or sister concerns or Group company where the Author is presently employed.)

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RED LINES IN THE AGE OF TECH

Priya Sahgal

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Last week the India Foundation held a conclave on the MetaVerse. Speaking at the event which had a robot as a co-compere, Jyotiraditya Scindia, the Minister of Civil Aviation quipped that soon they would not be needing him to come and address the gathering, as there will come a time when a robot could come and deliver his speech. Taking up this train of thought, RSS leader Ram Madhav commented that since we are heading towards a world of Artificial General Intelligence there is a cause for worry as there is one crucial difference between robots and humans and this is intelligence with a heart. He commented that already there are cases of AI outguessing human intelligence, citing the example of Alpha Zero a chess engine developed by Deep Mind & Google search engines, that claims to defeat any chess player that ever lived. Hence there is a need to put checks and balances in place and draw some red lines. Madhav is right otherwise we could well be living in a world where we are shaped by tech instead of the other way around. (In fact, some would say, we are already halfway there).

Also speaking at the India Foundation conclave K Ananth Krishnan (TCS) pointed out that there are more smartphone owners in India than toothbrush owners. We are already in a dependent and needy (toxic is a better word) relationship with technology. In their book, The Art of Bitfulness, Nandan Nilekani and Tanuj Bhojwani, quote a December 2020 survey of 2000 smartphone users revealed that on an average users spent 6.9 hours on their phones every day; and most (46 %) pick up their phones at least five times in an hour-long conversation with friends. 84 % say they check their phones within 15 minutes of waking up.

It would be fair to state that the digital world has our undivided attention. And beckoning from the horizon is the Metaverse, a collective virtual shared space that we can inhabit by creating avatars or our virtual counterparts. By inhabit, they mean everything, from socialising to attending business meetings to even shopping. You can even experience the physical intimacy of a virtual hug or a handshake. You can also buy land and space on this metaverse that is being cultivated by tech giants such as FaceBook and Microsoft (only the latter calls its metaverse Mesh).

All this is very well but where does that leave our human avatars? What kind of discourse will we have where all our conversation will be governed by algorithms. Already with twitter replacing the physical townhall as the preferred forum for debate, we are in the danger of living in an algorithm bubble where we are shown only those posts that match our ideological beliefs. Facebook and Twitter have us wrapped in a bubble where we are shown only those posts that the algorithm thinks are best suited for us. We have already outsourced our search engine to them. Any further dependence will only be detrimental to our capacity for independent and free-thinking.

Digital platforms can also be misused to propagate a certain kind of narrative. If Facebook doesn’t want you to read a particular article it will simply set its algorithm in a way that will make the article harder to find on its search engine. Ditto for YouTube. Twitter can simply ban your account. So for better or (meta) worse, one must approach technology with all the trepidation and enthusiasm of handling a two-edged sword. 

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Gyanvapi sets Indian politics on a new course

It may be the beginning of a new judicial process that unravels the murky medieval Indian history marked by many demolitions of temples, atrocities, and killings.

Shivaji Sarkar

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A chance test case for Shringar Gauri puja outside, the survey for it, and the surprise discovery of Shivalinga— supposedly the creator and destructor at the old temple of Lord Vishwanath or Gyanvapi— is changing the political scenario with a religious fervor possibly giving a boost to the preparation for 2024 Lok Sabha elections.

Would it make the Congress effort at Udaipur futile and boost up the votary of Hindutva for a new stretch of political success? It definitely would firm up the religious thrust of Indian politics.

Varanasi is the city of Shiv. Adages are there that Shiv used to visit this city from his Himalayan home every year. None possibly expected that he would be found in the ablution tank in all his manifestation to energise his devotees. Nobody yet knows whether it is the lingam or not, but it has charged up the political atmosphere.

It may be the beginning of a new judicial process that unravels the murky medieval Indian history marked by many demolitions of temples, atrocities, and killings. The Gyanvapi can have an impact on at least ten different places, where the medieval rulers had taken recourse to the extreme brutality of converting religious structures and killing thousands. These are: Kashi Vishvanath (Gyanvapi) in the oldest living city of Varanasi; Krishna Janmabhoomi (Shahi Idgah); Rudra Mahalay in Patan, Gujarat; Bhojshala Saraswati Mandir (Kamal Maula mosque) at Bhoshala in MP; Adinath Temple (Adina mosque) at Pandua, West Bengal; Bhadra Kali Temple (Jama Masjid) in Ahmedabad, Gujarat; Vijay Temple (Bijamandal mosque) at Vidisha, MP; 27 Hindu and Jain temples (Quawwatal- ul- Islam) Qutb Minar complex; and Somnath and Ramjanmabhoomi temples that are now restored.

The Gyanvapi re-ignites the issue of what was supposed to have been settled with the judgment of the Ramjanmabhoomi temple by the Supreme Court. The five Supreme Court judges took note of the Places of Worship (Special Provisions) Act of 1991 that laid down that all shrines will be preserved as inherited by independent India on 15 August 1947. The law made an exception for Ayodhya as it was already an ongoing dispute. Nothing else was deserving of an exception, nor was it legally or constitutionally possible, the judges wrote.

The quick scenario change in the Gyanvapi incident may raise the question of the validity of the enactment of the Places of Worship Act by the Narasimha Rao government. Sentiments are high not only in Varanasi but all over. Seeming non-partisan people like PK Roy, former executive director, Airports authority of India in Kolkata; Lalima Aneja Dang, a senior radio producer; Priyadarshi Dutt, author, commentator; former editor of Doordarshan Prabhat Dabral are all charged and advising that it is prudent to settle and not react on this emotive issue. Former Vice Chancellor of Nagpur University SN Pathan and another Vice Chancellor Firoz Bakht Ahmed have appealed to the minorities to correct the steps and maintain harmony. Left-leaning Dabral says minorities must rethink despots like Aurangjeb and instead have consideration for the nation and sort it out.

The one common question the non-political elite ask is how could someone treat the revered Shivlinga with such contempt that they established the wash-tank above that. It is difficult to say whether it would have the same manifestation and feelings till elections or not. The sentiments expressed speak volumes of the hurt feelings.

The nation may recall that since 1949, the Babri structure in all purposes was a Ram temple. Emotive issues are not forgotten. That led to the demolition of the structure in 1992. The way now the Gyanvapi is flaring up with a non-issue on the plea for the right to worship Shringar Gauri images sculpted on the outer wall of the Gyanvapi, to the appointment of commissioners to the survey of the premises, and discovery of Shivlinga indicates that the issue of demolition by Aurangzeb on Sept 2, 1669, can widely impact the course of Indian politics.

The Hindutva-oriented parties will have ease in accessing the voters. Those not would have to find out the new political peg to remain relevant and vibrant.

It may start with Hyderabad’s Bhagyalakshmi temple. The TRS Chief Minister K Chandrasekhar Rao may have to take a stand on the crucial Bhagyalakshmi temple in the Charminar complex. Rao facing a pincer attack by Congress leader Rahul Gandhi and Home Minister Amit Shah will have to steer with deftness. The others and even MIM may pitch in to make the Telangana assembly elections interesting.

Whether Gujarat would like to rake up the Bhadrakali and Rudra Mahalaya issues, Madhya Pradesh ignites Vidisha and Bhojshala or not the development of the ensuing days would reveal. Maybe in MP and Gujarat, BJP might try to keep it on low fire but the opposition, also keen on proving loyalty to Hindus, can try sailing on it as BJP may look for a chance in Bengal to peg on Adinath, Pandua.

Alok Kumar, president of VHP, an eminent lawyer, is categorical: “There has been no change in the status of the religious structure since 1947, and Hindus have always performed puja at the site” calling it Gyanvyapi Mandir. VHP national spokesperson Vinod Bansal said the faces of those who were trying to “hide the truth” have been “painted black” with the “finding”.

The Congress two days back at the Udaipur Chintan meet supported the 1947 law regarding Gyanvapi. So far it has not come out with a similar supportive statement.

In the BJP only, Sangeet Som has threatened a replay of the 1992 ‘Babri demolition’. But the BJP is happy with the Varanasi court developments giving it time, to extend the restrictions at the Gyan Vapi. They being the rulers in UP are acting with caution so that the gains take them to the logical conclusion. Chief Minister Yogi Aditynath is personally observing each of the developments.

J&K PDP leader Mehbooba Mufti slammed the BJP for stoking the fire. It is simple. MIM leader Owaisi says he is ‘pained’.

The Gyanvapi will decide the religious fervor of Indian politics. The parties not aligned with BJP’s views have the challenge to tailor new strategies. The minorities are in dilemma. They are not keen on sailing with it or giving up but the voices within are advising not to get into another confrontation and solve it prudently.

Howsoever it develops, it would keep the Indian politics warm and parties would have to stir cautiously to chart their way to 2024 Lok Sabha and many assembly elections before that.

The churning continues and the nation hopes that solution would emerge for a prosperous, peaceful country.

It may start with Hyderabad’s Bhagyalakshmi temple. The Telangana Chief Minister K Chandrasekhar Rao may have to take a stand on the crucial Bhagyalakshmi temple in the Charminar complex. Rao, facing a pincer attack by Congress leader Rahul Gandhi and Home Minister Amit Shah, will have to steer with deftness.

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RAHUL’S IDEAS FOR INDIA ARE NOT WELL FORMED

Joyeeta Basu

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Rahul

Among the many comments that Rahul Gandhi made about India’s socio-political situation at a conclave called “Ideas for India” in England recently, a few shook up the political, media and social media space, particularly when he said that “India is not in a good place”, that it has been soaked in kerosene by the BJP and all it needs is a spark to ignite the whole country. Another gem was about how the Indian foreign policy establishment has become arrogant and does not listen to the Europeans—something apparently a European bureaucrat had complained to him. Then there was the reiteration of one of his pet theories, which he has voiced in India as well: that India is not a nation but a union of states; that “India didn’t develop top down but almost emerged bottom up”, with the model being developed by Mahatma Gandhi. “All these states—Maharashtra, Assam, Tamil Nadu—they got together and created a negotiated peace,” Mr Gandhi said. Apparently, the Constitution does not mention India as a nation. He also said that in India there was an attack on institutions, on the election system, and that states were no longer able to negotiate and talk. He used the term “negotiation” repeatedly in the speech. Then he talked about waging a “national ideological battle” where India has to be rescued from “the deep state” that is “chewing the Indian state, much like what happened in Pakistan”. Supporting the concern of a section in the US and the West about the apparent slide of democracy in India, Rahul Gandhi added that “Democracy in India is a global public good… If it collapses it will cause a problem for planet and that is what USA is realising.” His oft repeated charge that the BJP caters to only a handful of the rich was also mentioned. He also said his party will have to launch mass movements on unemployment and state level issues in coordination with “opposition friends”. He pitched his party as the first among equals, by saying that the fight is actually between “the national vision of the RSS and the national vision of the Congress”. When asked why the Congress was not winning elections when the country’s ruling party was so bad, Rahul’s answer was, it’s because of “polarization and the total control of the media”. Apparently, the media does not allow any Opposition voices to be heard. He also confidently predicted a massive level of social problem, and a mass upsurge, something like in Sri Lanka, unless the Opposition handled the situation. He also seemed suitably impressed by China’s “vision”, while saying that both India and the US lacked a vision.

It is not known which history book the former president of the Congress party has studied, but the books that the rest of the country has studied do not mention Maharashtra, Assam or Tamil Nadu negotiating peace with the Centre to form India. Last read, Maharashtra came into existence in 1960 and Tamil Nadu in 1969 and all these divisions were linguistic in nature and decided by the Centre. In fact, not only does the Preamble of the Indian Constitution mention the word nation, B.R. Ambedkar in 1948 was categorical about the drafting of the Constitution: “The Drafting Committee wanted to make it clear that though India was to be a federation, the Federation was not the result of an agreement by the States to join in a Federation and that the Federation not being the result of an agreement no State has the right to secede from it. The Federation is a Union because it is indestructible.” In other words, India’s nationhood is non-negotiable. So to suggest that there is some sort of a contract between the Centre and the states, which may get frayed over a period of time is dangerous. It is almost as if Rahul Gandhi has been schooled into India’s “non nationhood” by the ultra-left. And therein lies the problem. It is difficult to dismiss such statements as stemming from ignorance; instead it seems to have stemmed from a belief system that has spread a lot of anarchy globally through the decades. If the idea is to pander to some sort of sub-nationalism in the name of federalism, then it amounts to stoking a very divisive fire. This is already happening in states such as Bengal and Tamil Nadu, among others. “Federalism” is being used as an excuse by some state governments to run their own writ, sometimes in defiance of Central rules. As a result, every decision taken by the state government is being challenged in court and then overturned, West Bengal being a case in point.

Also, it is but natural that Opposition parties will criticise the ruling party. A strong Opposition is the hallmark of a strong democracy. But Opposition must be constructive too. Portraying India as a cauldron of hatred, where things are about to go up in flames, comes across as an obvious attempt to scare foreign investors away; and feeding into the confirmation bias of the West about India. Does Rahul Gandhi seriously not understand that such statements end up hurting his own country? Also, why blame the Indian media—which thrives on the cacophony of the Indian political space—and India’s institutions for your lack of electoral success, when your own party members, some of your closest colleagues, are deserting you accusing you of being non-serious about your party’s political future?

As for his views on Indian diplomacy, it is bizarre that a man who wants to be Prime Minister of a sovereign nation, thinks being subservient to Western interests is great foreign policy.

And now we hear that Rahul Gandhi is hobnobbing with leftist groups in Britain and holding closed door meetings in Cambridge to devise means and ways to dislodge the Central government. It is not known how Rahul Gandhi can devise a strategy to win India sitting in Britain, unless the grand plan emerging from such sessions is to ensure that India hurts as much as Sri Lanka has, so that the streets rise up in protest to get rid of the government.

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