Devika Balakrishnan, a 14-year-old daughter of a daily wage labourer in Kerala committed suicide on 1st June of this year since she was unable to attend online classes because she did not have access to the internet or television. In another incident, 14-year-old boy from Chennai also committed suicide for same reason.
These disgraceful incidents were seen as a product of failure of government to ensure means of internet connectivity to masses. It was also surmised from these incidents that ‘Digital Divide’ and ‘Digital Inequality’ have negative impact on people belonging to downtrodden section of society.
Covid-19 pandemic brought unprecedented compulsions to stay indoors due to inherent contagiousness and pervasive nature of the disease. In order to keep continuing daily chores as before, it was utmost important to replace physical connectivity with virtual connectivity. Internet connectivity played a crucial role in achieving such objectives which were constrained by physical connectivity due to impending pandemic.
PENETRATION OF INTERNET
At global level, more than 60 percent of the total world population have access to internet. But this percentage varies from country to country as developed countries like USA and Scandinavian countries more than 80 percent people have access to internet when compared with least developed countries where only around 20 percent population can access internet.
India is the second largest internet using country after China with around 700 million internet users. However, penetration rate in India is only about 40% compared to 80% in case of USA. In a reply to a question in Rajya Sabha, Sanjay Dhotre, Minister of State for Communications, Education, and Electronics & Information Technology, said Broadband penetration in rural India is limited to a mere 29.2 per cent, as on 31 March 2020.
‘The Indian Telecom Services Performance Indicators’ report of TRAI dated 30 June 2020 cited that Bihar (21.69), Uttar Pradesh (21.64), Jammu & Kashmir (16.58), Madhya Pradesh (23.88), and West Bengal (25) are the states that have the least number of internet subscribers per 100 persons.
A CASE FOR RIGHT TO INTERNET
Like any other infrastructural connectivity, internet connectivity is of vital importance for development of human being in the age of information and technology. The necessity of internet and its access to all populace in judicial manner cannot be ensured until and unless it is guaranteed by state itself. State plays pivotal role in granting equal access to communication technology and can ensure equal opportunities of development to all citizens.
Citing all these reasons, in 2016, the United Nations Human Rights Council General Assembly articulated access to the Internet an essential human right by releasing a non-binding resolution condemning intentional disruption of internet access by governments. The same resolution reaffirmed that “the same rights people have offline must also be protected online” in particular the freedom of expression covered under article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Several countries like Costa Rica, Finland, France, Estonia, Greece and Spain have adopted laws that require the state to work to ensure the internet access is broadly available or preventing the state from unreasonably restricting an individual’s access to information and internet.
INDIAN CONSTITUTION AND RIGHT TO INTERNET
Constitution of India is the sovereign law of land and part three of the it enumerated various justiciable rights which are of indispensable nature in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individual. Although, right to internet has not explicitly been mentioned in constitution, it has been construed under ambit of various rights incidental to freedom, equality and right to dignified life.
Indian constitution is a profound blend of virtuous principles enshrined in various constitutions across the world. It tries to strike harmonious balance of rigidity offered by US constitution and flexibility offered by British constitution. This envisaged flexibility in constitution meant to incorporate changes owing to prevailing need of time.
Right to internet incorporated in the Constitution and it evolved as a product of various judicial pronouncements from time to time which are in nature equal force of statutory provisions. The Constitution called Supreme Court of India as a ‘Custodian’ and ‘Guardian’ of constitution. Higher Judiciary (High courts and Supreme Courts) entrusted to oversee execution laws in consistent with constitutional values in the country.
FREEDOM OF EXPRESSION THROUGH INTERNET
Article 19(1)(a) of the constitution of India guarantees freedom of speech and expression which inherently include right to access and distribution of information. K.M. Munshi while drafting the Constitution held that “freedom of speech and expression constitute the essence of democracy”. In People’s Union of Civil Liberties v. Union of India case, Supreme Court held that, ‘Freedom here means the right to express one’s opinions freely by word of mouth, writing, printing, picture, or in any other manner’. In Shreya Singhal v. Union of India, the Supreme Court recognised the internet as an essential medium to further the constitutional right to freedom of speech and expression.
This issue came again on forefront on 5th August, 2019 when the special status of Jammu and Kashmir granted under Article 370 of the Constitution of India was revoked by a Presidential Order. Due to possibility of exacerbating law and order problem in the valley, internet services were suspended prior to promulgation of the Presidential Order. Several writ petitions were filed before Supreme Court including one by Anuradha Bhasin, the then editor of daily Kashmir Times demanding restoration of internet access inter alia calling for judicial review of the internet shutdown order in Jammu and Kashmir.
In Anuradha Bhasin v. Union of India case, the Supreme Court held that expression of one’s views and practicing any profession through the internet is a protected right under Articles 19(1)(a) and 19(1)(g).The Court also went on to elucidate that such online speech can only be impeded under the recognized restrictions under Article 19(2) and Article 19(6) and that the proper standard of review would be the test of proportionality.
In judgement Supreme Court observed that,
Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.
Freedom of speech and expression guaranteed under Article 19(1)(a) can only be restricted with reasonable restrictions only on eight grounds mentioned in Article 19(2) viz. in the interests of the sovereignty and integrity of India or the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
In S. Rangarajan Etc v. P. Jagjivan Ram case, Supreme Court observed that exercise of conditions in article 19(2) for curbing freedom of speech and expression should not be based on convenience but on necessity. Further court concluded this list of grounds is exhaustive one so that state must not encroach over freedom of speech and expression of citizens beyond these eight grounds.
Therefore, the Supreme Court extended the proportionality test which was earlier applicable to judging legality of curbing freedom of speech and expression laid down in Justice K.S.Puttaswamy(Retd) v. Union Of India to internet disruptions. This four-pronged proportionality test include firstly, the restriction should serve a legitimate goal, Secondly. it must be a suitable means of furthering this goal, Thirdly, there must not be any less restrictive but equally effective alternative and Fourthly the measure must not have a disproportionate impact on the right-holder. Court further held that ‘…Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.’
FREEDOM OF OCCUPATION, TRADE AND BUSINESS WITH INTERNET
Since last few years e-commerce offering viable option of trading to people having limited capital and resources at their disposal. E-commerce industry becoming more and more popular in recent years. In the latest rankings of the world’s top websites illustrate the dramatic rise of Asia’s ecommerce platforms. In its latest list, Alexa ranked China’s Tmall in third place in the global website rankings – that’s ahead of both Facebook and Baidu.
Article 19(1)(g) guarantees freedom of occupation trade and business subject to restrictions laid down under article 19(6) of the constitution. In Chintaman Rao v. State of Madhya Pradesh Supreme Court held that, the phrase “reasonable restriction” under Article 19(6) connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. This restricts power of state from doing any unreasonable activity which directly or indirectly circumvent freedom of occupation, trade and business with internet.
In Anuradha Bhasin v. Union of India and Others. The Supreme Court held that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection and therefore is requisite to Article 19 of the Constitution subject to reasonable restrictions. Suspending Internet service not only obstruct conducting online businesses but also deprive individual from their source of livelihood.
RIGHT TO LIFE WITH DIGNITY AND INTERNET
Article 21 of the Indian Constitution reads as “No person shall be deprived of his life or personal liberty except according to a procedure established by law”. This right is so sacrosanct that can not be infringed even in the state of emergency. According to Justice P. N. Bhagwati, Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Justice V. R. Krishna Iyer has characterized Article 21 as “the procedural magna carta protective of life and liberty”.
Over the years, arena of Article 21 substantially expanded through interpretational judgements of Supreme court and various High courts to accommodate various aspects of life that needs to protected for ensuring dignified life of individual. It incorporated Right to livelihood, right to health, right to pollution free air, right to live a quality life, right to go abroad, right to privacy, right against solitary confinement, right against delayed execution, right to shelter and right against custodial death after enactment of constitution.
Right to internet can be construed as an inherent part of Article 21 from various judgements. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that, By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
Right to access internet came again in limelight when petitioner, Faheema Shirin, a female student at Sree Narayaguru College who was residing at the Women’s Hostel run by the college. She was expelled from hostel on a ground that she was using internet beyond permissible hours mandated by college authorities.
In this Faheema Shirin v. State of Kerala case, Single judge bench led by Justice P. V. Asha held that right to internet is part of right to life with dignity which emanates from right to privacy and right to education in the light of development of students and their learning process. Hon’ble justice observed that, “the enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge. They should be left to choose the time for using mobile phones. The only restriction that can be imposed should not cause any disturbance to other students.”
Court came to these conclusions by referring to international conventions and directive principles. Here relying on Vishaka & Others v. State of Rajasthan & Others court held that,
“the international conventions and norms are to be read into the fundamental rights guaranteed in the Constitution of India in the absence of enacted domestic law occupying the fields when there is no inconsistency between them” in the light of Articles 51(c) and 253 of the Constitution of India. Accordingly, the Court concluded that “the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.”
Another landmark judgement of Supreme Court came in the case of Foundation for Media Professionals v. Union Territory of Jammu and Kashmir popularly known as 4G case which sought restoration of 4G internet services in Union territory of Jammu and Kashmir. Here court concluded that there should have been balance between national interest and human rights and every move of restoration such human right should be qualified with national interest.
HOW RIGHT TO INTERNET CAN MAKE CHANGE
Internet has opened a new world for many people around the world since it is a manifestation of never-ending innovation and creativity. It brought world much closer and integrated multiple cultures through fusion of information and made territorial boundaries almost oblivious.
According to International Telecommunication Union (ITU) Measuring digital development: Facts and figures 2019 report, more than 4.1 billion people were using internet in 2019 with 5.1% growth from previous year. There are more than 3 billion social media users worldwide. With right to internet, state can ensure bridging ‘Digital Divide’ gap between those who have access to internet and those who don’t have such access.
Recognition of right to internet would facilitate state to promote Digital literacy and get rid of digital inequality which is evident from the fact that more than 70 percent of rural population do not have broadband internet access. In a difficult time like global pandemic, the internet is not just a medium of expression but a key element of access to healthcare, public information, education policy, and an offshoot of the right to life. So, it can contribute affirmatively in efficient implementation of policies in critical times.
Internet access can significantly contribute in accelerating all social development objectives and targets of the Sustainable Development Goals. Digital India Programme, which aims to transform India into digitally empowered society and knowledge economy has nine pillars, of which six are directly related to internet access.
THE OTHER SIDE
Despite numerous positive aspects of granting right to internet, there are some issues that needs to be addressed before effectuating any step further in this direction. Right to access internet is a freedom at its core and no freedom can be absolute one. It should be subject to rules and regulations framed in good faith.
There are also some legal complications of incorporation of right to internet since there is no consensus where to compartmentalise this right. Such complexity can burden judiciary with litigations and have potential to hamper its implementation in good faith. State can resort to technical tactics of “Bandwidth throttling” to vitiate purpose of granting this right.
In recent times, many countries have attracted opprobrium for the sheer number of internet clampdowns imposed. For protecting any such move by any authority, it is necessary that such right to be recognised at global level and encapsulated in constitution of each country.
Internet has been so embedded in the lives of people, acting as the main way for information exchange, that to deny access to everyone in the world is a breach of human rights. It is in fact the undiscovered ocean of information and in present the greatest supplier of knowledge. Right to internet access and digital literacy will alleviate situation and allow citizen to avail better opportunity and lifestyle.
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DIGITAL INNOVATIONS CAN DEMOCRATISE EDUCATION IN INDIA
Education is the backbone of any country be it developed, developing, or underdeveloped. A crucial role has been played by education in technological advancements and imparting skills and awareness. People have realised the importance of education for a better living. Innovative initiatives like free primary education, mid-day meals, and other facilities at school have encouraged the unprivileged to send their children to schools.
Since the schools and colleges have been shut for more than two years, the majority of students have minimal access to education considering several factors like lack of access to resources, poor internet, absence of strict measures, and so on. Due to these obvious issues, most of the students have unlearned what they had learned over the years. A long-term outlook of digital innovations in education will truly democratize education in India.
Numerous novel ways are being devised, experimented with, and adopted by the stakeholders in order to attempt to deliver the highest quality education to students. Digital innovations delivering education at scale can solve issues to democratize education in a developing country like India. This model seamlessly integrates digital capabilities along with physical assets.
BLENDED LEARNING APPROACH
We as citizens of India should equally contribute to solving the gaping education crisis that emerged during the pandemic. We need to put our shoulders to the wheel and create a system where students don’t just have to learn via e-books and audio-visual lessons but also have access to physical resources and centers nearby in order to take hands-on training that can’t be attained by sitting at home. Such innovations will help students to continue pursuing education. This blended learning approach would enhance their learning experience, inspire them to explore, and foment innovation.
The process of blended learning has democratized education in several sectors of our society. Educational technologies (edtechs) are playing a crucial role in democratizing education in India, they went the extra mile to help learners amid the pandemic. The pandemic has demonstrated that parents and teachers are adopting a more practical approach to imparting education. Curriculum designs are now personalized and more practiser-oriented paving the way for the continuation of the hybrid mode of learning.
INNOVATION IN TEACHING METHODOLOGY
High-quality content is abundant in education, even our teachers can be trained online and get access to high-quality global training. Also, the teachers are now coming up with more innovative ways to deliver lectures to students via Augmented Reality (AR), and Virtual Reality (VR). This way digital innovations can successfully enable a higher literacy rate across India. A nation with a higher literacy rate will lead to a lower unemployment rate and improved GDP growth.
The creation of free standardized content would prove beneficial for learners to grasp knowledge. The medium to disseminate it could be the widely used mediums like radio, televisions, etc. To support the traditional teaching method, parents, volunteers, and senior students are joining their heads in supporting the continuity in the learning process. Apart from this, redefining the term ‘teacher’ and decentralizing community-based solutions can create a new learning model.
The writer is the Co-founder and CEO, Careerera.
Why we need humanitarian law in disaster management
The origin of humanitarian law suggests its close linkage to human sensitivities. Law is an outcome of collective rationality of ‘we the people’, which is the real sovereign.
In one of the consultative meetings of the World Food Programme on disaster management organised by Sphere India recently, somebody raised objections to the role of humanitarian law in disaster management on the logic that this is already a part of the regular legal responsibility of governments. Should this be or not be? How would governments demand compliance to humanitarian responsibilities (not law) of the State when their own track record on human rights has always been a concern?
The dilemma reminds me of Hamlet’s soliloquy “To be, or not to be” in contemplating death and suicide or bemoan the suffering due to the pain and unfairness of life? Hamlet’s mind, while envisaging an answer to the question, muses on… “Whether it’s nobler in the mind to suffer, The slings and arrows of outrageous fortune… The heartache, and the thousand natural shocks, that flesh is heir to… For in that sleep of death, what dreams may come, When we have shuffled off this mortal coil, Must give us pause…” He reconciled that the alternative to suffering was worse. The humanitarian laws or its robust cousin, the human rights laws, are alternatives to a charitable State where charity finds meaning only within the province of the State so the logic for alternatives becomes strong.
It would be clear in subsequent arguments that by questioning humanitarian laws in disaster management, one would prevent deepening government action and resilience building at the most vulnerable levels. The UN Charter prohibits war and use of force to resolve conflicts. Should then nations stop war preparations and formulation of rules that regulate and terminate armed conflicts? Wars have not been completely outlawed as wars in the shape of internal armed conflicts continue incessantly. So a mere existence of rules and Acts on disaster management does not prevent the State from bypassing, overlooking, or skirting liabilities related to human rights. Whatever happened to the rural poor migrant workers during the pandemic is a public tragedy.
Those who built the big cities and special economic zones which filled State treasuries with FDI and FII, built smart cities, and a stamp of progress across the country’s metal road network was made to flee from cities without any help and on top of it, a Chief Minister treating them as pathogens even sprayed them with sanitising chemicals as a condition to any further mobility. These citizens of India have been given rights to the free passage under Article 19 of the Constitution and also protected against starvation, death, disease and abusive action by government authorities under Article 21. Yet it was all done against a vulnerable poor with disproportionate power against the State.
Jurisprudential evidence depicting the stark reality of legal abuse of vulnerable sections by States is enormous. NATO bombed Yugoslavia in the early morning of 23rd April 1999 in response to the conflict in Kosovo region of Serbia. The bombing killed 16 people in the radio and television station, Radio Televizije Srbije (RTS) in Belgrade. Six citizens, who approached the Grand Chamber of the European Court of Human Rights, were the daughters of the first and second applicants, the sons of the third and fourth applicants and the husband of the fifth applicant who were killed, and the sixth applicant who was injured. They alleged violations of Article 2 (Right to Life), Article 10 (Freedom of Expression) and Article 13 (Right to an Effective Remedy) of the European Convention.
The court dismissed their claim by taking an extremely narrow and limited recourse to a pre-colonial law which segregated between ‘insiders’ and ‘outsiders’ rather than adopting the true spirit defined in The Convention for the Protection of Human Rights and Freedoms, more commonly known as the European Convention of Human Rights, which explicitly states in its Preamble that one of its purposes is to “take the first steps for the collective enforcement of certain rights stated in the Universal Declaration.” This is one of the most misconstrued and egregious cases in the history of humanitarian law but on the other hand, just a few years later this court actually evolved to match the spirit of human rights.
Soon after, a group of citizens approached the same European Commission under the same Article 2 of the European Convention to allege that the State failed in its responsibility to provide them protection against natural hazards that caused deaths in Tyrnauz during July 2000. The court, in addressing this case of Budayeva vs Russia 2008, turned to State failure, first in maintaining mud-protection engineering facilities, notably to restore the mud-retention dam damaged in 1999 and to clear the mud-retention collector blocked by the leftover debris, secondly, in maintaining a public warning (or Early Warning System) about the approaching disaster that would help to avoid casualties, injuries and mass panic.
In contrast to the previously referred Bankovic case, the court ordered that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement, in respect of non-pecuniary damage, plus any tax that may be chargeable on these amounts:
(i) EUR 30,000 (thirty thousand euros) to the first applicant;
(ii) EUR 15,000 (fifteen thousand euros) to the second applicant;
(iii) EUR 10,000 (ten thousand euros) to each of the third, the fourth, the fifth, and the sixth applicants;
(iv) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
The origin of humanitarian and human rights law tells a touching mission of humans with higher than normal sensitivity towards life. During the mid-nineteenth century, Europe’s two goriest battles of Solferino (1859) and the Crimean War (1853-1856) the traditional aristocratic frame of the Army that always stood up to block humanitarian legal reforms gave way. Both these wars were iconic failures in their planning strategies and in medical aid. An author of Russian history Alexis S. Troubetzkoy (2006) describes the Crimean War as ‘a notoriously incompetent international butchery’ by the French alliance with Ottoman Empire, UK and Sardinia against lone Russia.
The cause of the war was to protect Christian minorities in Palestine which was part of the Ottoman Empire. This deadly war led by Napoleon III provoked rules for the care of the vulnerable in wars. The two English nurses Florence Nightingale and Mary Seacole were described as great healers who left behind any best surgeon in care and treatment of wounded in the battlefield. The Solferino battle saw the same military alliance standing against the Austrian army which abandoned its position by afternoon as the haunted battlefield was strewn with 6,000 dead and 40,000 injured crying for help which was nowhere possible.
Henry Dunant’s account as a war reporter shocked the conscience of the civilised world but it was this account that launched (i) International Committee of Red Cross and Red Crescent Society (ii) creation of humanitarian law to protect the vulnerable due to wars or human calamities. The Geneva Conventions also grew from a minimalist to broader terrain starting with the first in 1864 for military victims of warfare to the second in 1899 for wounded and sick in sea warfare, in 1929 on prisoners of war, in 1949 on war victims, combined with Protocols additional to Geneva Conventions in 1977.
While both the International Humanitarian Law (IHL) and the Human Rights Law (HRL) prescribe to the protection of life, health and dignity to human beings, the former focuses on obligations of the State towards war victims but the latter indicates those primordial rights inherent in human beings that define and limit boundaries of State power. It is believed that the two are complementary as HRL does not stop during wars nor does IHL turn away when other warlike devastating disasters occur.
The origin of humanitarian law suggests its close linkage to human sensitivities. Law is an outcome of collective rationality of ‘we the people’ which is the real sovereign. Any constitution, however voluminous or concise such as the Indian Constitution with 448 articles in 25 parts and 12 schedules, US Constitution with just seven Articles or the UK Constitution with none, would not assign a threshold for government’s observance of humanitarian law. This field is growing with human knowledge and sensitivities. The identification of the vulnerable and their vulnerabilities increase with evolving human sensitivity as that which started with wounded soldiers today extends to enemy spies and victims of civil wars, racism and religious minorities.
As the dust of ignorance and biases gradually gets wiped off, the same civilisations, which killed and persecuted lepers, women, slaves, Blacks, disabled, and atheists, become human rights campaigners. Since sensitivity is a constantly evolving domain of humanity, it is likely to evolve further and discover more areas of abuse and cruelty to be prohibited by law. Notwithstanding the Non-Human Rights Project, which had petitioned before the US Supreme Court on rights of animals against their encaging, abuse and experimentation, Justice Barbara Jaffe of the Manhattan Supreme Court even granted a writ of habeas corpus on behalf of two non-human plaintiffs, Hercules and Leo – chimpanzees used for medical experiments at Stony Brook University on Long Island. Several rulings from Indian courts have acknowledged the rights of pet and homeless stray animals.
Courts in India have bestowed rights to even rivers and trees notwithstanding eyes which shut on sobbing and screaming hens transported in stuffed cages, disrobed in markets like public rape of young girls. I cannot insist that law be made to reclaim hen’s legal protection against what I see as a crime as ‘this is my sensitivity, may not be yours’ but I retain my right to sustain my level of sensitivity that suggests co-existence, will set a direction for evolution in law. Despite a nation with an embedded philosophy of Buddhism, Vaishnavism and Jainism proscribing animal slaughter, brutality, and their enslavement, yet it took our Constitution three decades to add two austere words ‘compassion’ and ‘coexistence’ in Articles 48-A and 51-A and that too as mere suggestive guidelines, not as law. This reveals the inertia of the State towards ideals belonging to higher sensitivities in contrast to authority driven diktats.
Why humanitarian law and, for that reason, why women’s law, environmental law or law for the differently-abled? Under what law would the State take note of the fact and also make houses for the 15% homeless human population (2011 census) with 4 lakh children and 8 crore dogs and cats on streets (Report of State of Pet Homelessness Index 2020) shivering in freezing temperatures and enduring rains and winds in the open. Their death is also insignificant to governments. In 2020, except for Delhi, Maharashtra and Kerala, those 16 States with 40% homeless made no mention of them on the contrary have forcefully evicted more than 2,60,000 people with homes in 2017 alone for city beautification and infrastructural development projects. The 2022 World Inequality Report uncovers how global inequality has been exacerbated due to the Covid-19 pandemic in which the top 1% took 38% of all additional wealth accumulated since 1995 with an acceleration in 2020.
As James Madison wrote in The Federalist Papers, “If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on the government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed and the next place, oblige it to control itself.” So how would citizens oblige the government to control itself? That is where a need for ‘rule of law’ enters body polity justifying humanitarian laws as an indispensable prerequisite in war, in peace and in disasters.
The author acknowledges with thanks inputs from the rich discussion she had with two colleagues from JNU, Dr P. Puneeth and Dr Deepa Kansra.
The author is president of Network Asia Pacific Disaster Research Group (NDRG), Senior Fellow at the Institute of Social Sciences (ISS), and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.
As James Madison wrote in The Federalist Papers, “If men were angels, no government would be necessary. If angels were to govern men, neither internal nor external controls on the government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed and the next place, oblige it to control itself.” So how would citizens oblige the government to control itself? That is where a need for “rule of law” enters body polity justifying humanitarian laws as an indispensable prerequisite in war, in peace and in disasters.
DESPITE COVID, ELECTION FEVER RIDES HIGH
Election fever is at an all-time high in the five states that are slated to go to the polls. In the build-up to the assembly elections, it was the farmers’ bill that was high on everyone’s radar, especially when these were rolled back. They were supposed to impact the elections both in Punjab and Uttar Pradesh. As the elections drew closer, one finds that these are not making the same kind of headlines. One reason for this is of course that these have been rolled back. The second is that in Punjab where this was a hot ticket issue, the BJP is not really a player. Every other party has come out in support of the farmers’ protests in their own way, be it the Aam Admi Party, the Akali Dal that walked out of the NDA on this issue, and the Congress. As for Western Uttar Pradesh, the farmers’ protests, low MSPs are an issue specially in the sugar cane belt. But since it’s the hind heartland, caste equations also have equal heft, as do religious divides. For the SP and the RJD, getting the Jats and Muslims to vote together on the same issues, overcoming the communal faultlines will be a challenge.
Moreover, let’s not forget that these elections are taking place during Covid times. The economic downturn of successive lockdowns has taken its toll on everyone. Hence the promise of 300 units of free electricity has hit a chord both with Arvind Kejriwal’s voters in Punjab and Akhilesh Yadav’s voters in Uttar Pradesh. Other parties have followed suit. What is also interesting is that the PM’s security breach has not blown up into a big-ticket issue despite the BJP playing it up both on social media and on the ground.
If we take a look at the two big high profile states, Punjab and Uttar Pradesh, we see that four different parties are dominating the election narrative. The state of Uttar Pradesh is witnessing a high voltage battle between the BJP and Samajwadi Party; while the AAP & Congress appear to have the edge in Punjab. In UP the narrative is one of Kamandal Vs Mandal, while in Punjab both parties are fighting to prove which one is the real aam admi. While Kejriwal has dibs on that tagline, Congress Chief Minister Charanjit Singh Channi is out to prove that he is more of a people’s person. He gives interviews on charpais, in a mustard field, he stops his cavalcade to help accident victims, and reaches out to protestors in the streets. Plus he is a Dalit face, taking the edge away from Kejriwal’s promise to prop up a Dalit Chief ministerial candidate from AAP.
To distract from the fact that he was going back on his word, the AAP held a referendum amongst the people of Punjab and came up with Bhagwat Mann, the party MP from Sangrur as its CM face. In fact, Mann was also the party’s state president but he resigned in 2018 when Kejriwal apologised to the Akali Dal leader Bikram Majithia for alleging he was involved in drug trade. A stand-up comic, Mann is the party’s star campaigner, he gets the crowds but this is the first time his leadership mettle will be tested. However, this is clear. If the AAP does come to power, it will be Kejriwal himself who will be running the state and not Mann. This is evident from the AAP campaign which says Ik Mauka Kejriwal Nu (give Kejriwal a chance). And the manifesto that he is taking to the people of Punjab is the Delhi Model of Governance.
This has put pressure on Congress to announce its CM face – whether it shall be Channi or the PCC Chief Navjyot Singh Sidhu. A Sidhu Vs Mann fight would make great TRPs as both are stand-up comics and come up with great oneliners. However if the Congress props Channi then it will be Kejriwal who will take him on, and both will play up the optics of being an aam admi.
In the end, it’s the poll season and despite these being Covid times, it’s also a time for some old-fashioned politics.
A campus murder, an errant actor and acquittal of a bishop
On Friday Kottayam Additional Sessions Judge acquitted Father Franco Milakkal, the former Jalandhar Bishop of the Catholic Church, of all charges in the alleged rape of a nun.
A cold-blooded murder that ended on a farcical note, a high-voltage murder plot that is turning murkier by the day, a bomber of a sensational acquittal of a bishop— It was an eventful week for Kerala and the Left Front government. The murder of a 21-year-old engineering student-supporter of the ruling CPM’s student wing Students Federation of India on Monday sent shockwaves across the state and paved way for a slanging match between the CPM and the opposition Congress but degenerated into a Thiruvathirakali, a traditional Kerala dance form, that made the CPM see red. By Wednesday, the murder had been pushed back with a popular film actor, who is under trial for his role in a high-profile abduction and rape of a colleague actress, being framed on charges of conspiracy to kill the investigation officer probing his case. By Friday, a sessions court judge in central Kottayam dropped a bombshell by letting free a bishop charged with multiple rape of a nun in a nunnery in Kuravilangad, 45-minutes drive from Kottayam town, over a period of two years. All three incidents put the government and the ruling CPM at the centrestage even as Chief Minister Pinarayi Vijayan set off to the US for medical treatment.
The murder of the young engineering student was most foul, no doubt about that. But what followed the return of politics of murder on the campus was demeaning. Within hours of the murder, a prominent Youth Congress leader of the area was arrested and as the investigation began the CPM accused the current Congress leadership of plotting the murder and declared martyrdom for the student, Dheeraj Rajendran, who is barely known outside his friend circle in the college in Idukki. The Congress president K Sudhakaran, not given to niceties, shocked Kerala by saying that the CPM had “intentionally grabbed this martyrdom. They are not sad, but happy about it.”
But before the all-round condemnation died down, the decision of the CPM to take the body of the SFI activist by road – the funeral procession was supposed to stop at every prominent town to give floral tributes to the slain student– to his native Thaliparambu in CPM stronghold Kannur raised many eyebrows. It was clear that the party was out to capitalise the murder to the fullest, like one squzzes a lemon to take out the last drop of juice. Out came the news that overnight CPM had bought eight cents of land next to Rajendran’s house at Pattapara village in Thaliparambu. Rajendran’s body was cremated with “full party honours” there early Wednesday with the CPM announcing erection of a memorial there. Kannur is littered with such memorials, most of them lying uncared for. But the party, over the years, had made a killing in the name of raising funds for such memorials. But the hypocrisy of the CPM came to full light when it was revealed that as the funeral procession crawled its way, in state capital Thiruvananthapuram party functionaries were enjoying a Thiruvathirakali performed by 502 party women supporters singing paeans for Comrade Pinarayi Vijayan. a la North Korea’s Kim Jong-un. Not only was it in violation of Covid norms prevailing in the state, but also it was an insult to the memory of the young student for whom the party was supposedly grieving. Such is the stuff politics is made of in Kerala. The trial against popular cine actor Dilip for his involvement in the abduction-rape of a fellow actress way back in February 2017 has been on closing stages when a new allegation against the actor plotting the murder of an investigation officer has come up. This has now paved the way to the reopening of the case where almost all the prosecution witnesses had turned hostile over the years. But this has put the focus straight on the state government which is sitting on the report of a commission it had set up to look into the shady dealing in the state film industry in the wake of the assault on the actress. The Justice Hema commission of which two-time Urvasi winner renowned actress Sharada is a member submitted a 300-page report to Chief Minister Pinarayi Vijayan on December 31, 2019. However, the government was sitting over it for the past two years on the contention that the report is “too explosive and dangerous” and would put the “reputation of many bigwigs at stake”. As questions on who all the government was trying to shield were raised in the light of new revelations against Dilip, the government on Wednesday constituted a three-member panel to further study the Hema commission report. This has come as a cruel joke on all those actresses who have been fighting for justice for their colleague. The government has to clear the air of suspicion surrounding the case.
But the icing of the cake came on Friday when Kottayam Additional Sessions Judge acquitted Father Franco Milakkal, the former Jalandhar Bishop of the Catholic Church, of all charges in the alleged rape of a nun. There was outrage and celebration (crackers and distribution of sweets) at the same time as a divided Kerala tried to live through the verdict. Unlike in the actor’s case not one of the 37 witnesses turned hostile despite the lure of money and threat from the Church. Still the court found no concrete evidence to convict the bishop, though the full report is yet to be released. “This is a case in which the grain and chaff are inextricably mixed up. It is impossible to separate the grain from the chaff,” the court said. The order further said that “this court is unable to place reliance on the solitary testimony of PWI (Primary Witness) and to hold the accused guilty of the offenses charged against him.”
It was on June 27, 2018, that a nun, currently residing at the St Francis Mission House, Kuravilangad, had approached the District Police chief, Kottayam, with a complaint against Bishop Franco Mulakkal. As per the prosecution’s case, Bishop Franco had raped and forced her to have unnatural sex on many occasions between 2014 and 2017. The Church vehemently denied the charges and stood solidly behind the Bishop. The Church even tried to depict the nun as a ‘loose woman.’ The Left Front government, too, fearing backlash from the community, tried to ignore the case. It took five sisters from Kuravilangad House to stage a dharna in Kochi, forcing the government to act. Soon after, a special investigation team was formed, which arrested Mulakkal after several rounds of questioning. Subsequently, he was removed from the post of bishop. After weeks in judicial custody, Mulakkal secured bail from the Kerala High Court. Still the Church and the Bishop used their money power to silence the protesters. A month after the rape trial begun, the police officer who investigated the charges was summarily transferred, triggering allegations that the move was aimed at weakening the case. A key witness, also a priest, died in mysterious circumstances. A prominent casualty being Sister Lucy Kalappurakkal who was in the forefront of the agitation for justice for the nun, being a part of the Save Our Sisters Forum (SOS), an outfit formed in the wake of the nuns’ protest, was expelled from the Franciscan Christ Congregation (FCC). She is still fighting her case, refusing to quit the congregation. Even as the SOS is determined to move the higher court, the government is yet to react. Pinarayi Vijayan as Home minister has to take the final call. The next 60 days, the time given for further filing of petitions, is crucial for the nuns who, as some say, are worse than those Dalit and Adivasi women violated day after day.
OVERHEARD: Now, Chinese leader Xi Jinping can breathe easy (On CPM Politburo member, S Ramachandran Pillai’s comment that attacks on China in India is actually aimed at the CPM)
The trial against popular cine actor Dilip for his involvement in the abduction-rape of a fellow actress way back in February 2017 has been on closing stages when a new allegation against the actor plotting the murder of an investigation officer has come up. This has now paved the way to the reopening of the case where almost all the prosecution witnesses had turned hostile over the years. But this has put the focus straight on the state government which is sitting on the report of a commission it had set up to look into the shady dealing in the state film industry in the wake of the assault on the actress.
BRAHMOS DEAL IS A SIGNIFICANT STEP TOWARDS AATMANIRBHAR BHARAT
It’s of immense significance that India has got the order to supply the Brahmos supersonic missile to Philippines. It is significant for both domestic industry and for India’s broader strategic interests. Prime Minister Narendra Modi has kept an ambitious target of reaching $5 billion (roughly Rs 35,000 crore) exports in defence and related goods by 2025. For defence production, the target is $25 billion by 2025. The government says that it is building a robust defence infrastructure based on the three pillars of research and development, public and private defence production, and defence exports. There is no doubt that defence production has got a major push from Prime Minister Narendra Modi’s government. A lot of steps have been taken including the corporatisation of Ordnance Factory Board (OFB), the setting up of two Defence Industrial Corridors in Tamil Nadu and Uttar Pradesh, raising the FDI limit in the defence sector to 74% if it is through the automatic route and 100% if such investment takes the government route. The government has also formulated a draft Defence Production and Export Promotion Policy 2020. It has prioritised procurement from domestic industries. The role of the PSUs in delaying production has been curtailed with active participation of private players in the defence sector. Several such reformatory steps have been taken to reorganise the defence sector and the numbers are picking up. From defence exports worth a little over Rs 1,500 cr in 2016-2017, the defence export bucket has increased to nearly Rs 8,500 cr in 2020-2021—a part of this was the “big ticket” $100 million order bagged by L&T in 2016 to design and manufacture high speed patrol vessels for the Vietnam Border Guard. All this is a huge step towards bolstering domestic industry, which was ignored by successive governments over the decades.
It is in this context that the Brahmos deal worth $375 million (Rs 2,270 cr) has to be seen. It’s a small step in the direction India can take to become a defence exporter from one of the largest buyers of defence equipment, but a step nonetheless. The best thing about the Brahmos is, one of the world’s fastest supersonic missiles with 95% accuracy, and which can operate from land, air and water, including from submarines, is now 90% Indian, with dependence on critical components from Russia reduced to the minimum. The buzz is that even Vietnam and Indonesia have shown an interest in Brahmos. Defence experts say that it is not just Brahmos, even the Akash surface-to-air missile and the Tejas light combat aircraft among others may find buyers abroad. Hence, this is an area where a lot can be achieved in terms of realising India’s potential and making it a $5 trillion economy inside the next couple of years.
As for the South China Sea countries that are the first line of defence against a malign power, it is in India’s broader strategic interest to arm them with missiles, and thus help them reduce the gulf that exists between them and China militarily. This can be a part of India’s strategy of containing China, apart from increasing India’s influence in the region, which can have a likely positive impact on trade with the ASEAN countries. India does not need to be the “security provider” for the South China Sea countries. Apparently, that role is “reserved” for the United States. However, the US has been failing in its job, if Philippines’ experience in 2012 is anything to go by, when US did not do anything to help it during the standoff with China over the Scarborough Shoal. This is one of the reasons why countries in the region are sceptical about the US. This scepticism has been aggravated because of the manner in which the Afghanistan pullout happened. So there is a possibility of this region becoming a major importer of defence equipment in the near future. There is no reason why India should not get a share of that market.
Modi phobia has blinded Gregory Stanton and Co
The earlier predictions of the ‘Genocide Watch’ founder on Kashmir, Assam and CAA too were proved wrong, and nobody in India takes Gregory Stanton seriously.
Anti-India non-State actors are ganging up in the United States to paint India as a dangerous place. Islamists and Leftists have joined hands with Dr Gregory Stanton—the renowned professor on genocide—to say that India is inching closer to genocide. He warned a Congressional hearing on 12th January of an impending genocide of Muslims in India.
It may ring familiar since sometime back anti-India forces had roped in singer Rihanna and environmentalist sensation Greta Thunberg to tweet on farmers’ issue in India. While Indians did not take Rihanna or Thunberg seriously, one does not know if these two were victims of propaganda or greed.
I was aghast at this comment. What could be the motive for Stanton to stick his neck out? He has already predicted that India is on the eight stage which is just one step away from genocide. The basis of his immediate provocation is objectionable utterances by some participants at the Dharma Sansad in Haridwar against Muslims. The State has acted in terms of lodging an FIR and arresting the accused and the Supreme Court has been keeping an eye on the action by the State.
But nobody in India is losing sleep over what happened in Haridwar for the simple reason that India is too big and resilient to allow such incidents to disturb the social fabric. The same way the country had absorbed the statement of Akbaruddin Owaisi of the AIMIM who had said that if police is removed for 15 minutes, Muslims will finish 100 crore Hindus. Although the speech is used in debate to show communal polarisation, nobody takes the statement seriously.
Everyone in India knows that the sadhus at the so-called Dharam Sansad had no locus standi in terms of their affiliation with the BJP or even the Sangh Parivar. It is doubtful if they could be called a credible representative organisation of the Hindu angst. A similar incident had happened at Jantar Mantar where people had shouted anti-Muslim slogans and some arrests were made. But now that the Dharam Sansad has got into international prominence, it may also be inquired whether they became a victim of international conspiracy. There are a number of organisations working hand-in-glove to create such a situation and then to use that to defame the country.
Stanton’s argument is that the Prime Minister did not condemn the incident. Ridiculous to expect that Narendra Modi would go on issuing condemnation one after the other only to embolden such happenings. The law of the State should act and Stanton was not briefed properly to know that law and order in India is not the subject of the Prime Minister but of the various State governments. It is only when the States fail in the task that the Central government intervenes.
An average Indian who does not normally react to such international propaganda thinking this will subside, would be shocked to hear that Stanton’s ‘Genocide Watch’ has compared the situation to Rwanda in the 1990s and Myanmar (due to Rohingya Muslims). To speak in such derogatory terms for a thriving democracy which has robust institutions of checks and balances would be considered sacrilege by any Indian citizen worth his salt.
Stanton was proved wrong earlier so far as his prediction for India is concerned and he may be nursing his wounds because of that. While addressing an audience of Congressional and US Government officials at a briefing titled “Ground Reports on Kashmir and NRC” in Washington DC on 12 December 2019, he said: “Preparation for a genocide is definitely underway in India.” He claimed that Muslims were being persecuted in Assam and Kashmir and described this as the stage just before the genocidal stage in his famous “10-Stage Genocide Process”. These things never happened. In the Assembly elections last year, the BJP-led National Democratic Alliance won 75 of the 126 seats in Assam to the Congress’ 50 and formed the government for a second time.
The problem is that Stanton is in bad company. An independent research would give him a different picture about India. He has ganged up with the likes of Teesta Setalvad who tried her best to malign Narendra Modi but failed miserably. The might of Amnesty International, that was caught red-handed committing fraud in India, is now with these people along with other organisations that work for Muslim cause such as the Indian-American Muslim Council (IAMC). The IAMC has already asked Indian Muslims settled in different States of the US to influence their representative for Congressional hearings on the status of Muslims in India.
The Indian government has banned thousands of NGOs from taking foreign funds since they refused to comply with the Indian legal system. Some international NGOs thought they were powerful and they could bend the government but they have failed. Amnesty had imagined that the United Kingdom would come to its rescue but the UK, which is rule bound, would not do anything to ask India to bend its laws. All these NGOs, rubbed by the Modi government on the wrong side, have an axe to grind and are trying to show their power of mischief. They are likely to do similar things in the European Parliament in an attempt to defame the Modi government. Not that this would make much of a difference to either Modi or India, but the fangs of these organisations are getting exposed.
Stanton is a Modi hater. Even in his speech released on various social media platforms, he minces no words to demonstrate his hatred. He intentionally referred to Gujarat riots of 2002 and said that Modi as the Chief Minister did nothing. He even said that “Modi encouraged those massacres”. The facts are to the contrary. Army was called within 24 hours, the shortest span in the history of riots in India, and no inquiry has found Modi not doing anything. Stanton is cocking a snook at the Indian judiciary since Modi has been held not-guilty by Indian courts.
Let us see another statement of Stanton. He criticised Modi for revoking the special status of Jammu and Kashmir in 2019 and for passing the Citizenship Amendment Act (CAA). To him, the revocation was intended at restoring Hindu domination. He found that the CAA was aimed at targeting Muslims. Both are false. Revoking Article 370 has been one of the core ideological issues of the BJP since the party considered it divisive and had been advocating complete integration of the State with India. And the CAA is intended to grant citizenship rights to those persecuted minorities that had come to India from Pakistan, Afghanistan and Bangladesh. Clearly Stanton has been bought over by the Islamist narrative. He claimed that 200 million Muslims would be victims of the CAA.
Stanton’s real pain is visible when he says that the Indian Constitution was devised to make India a secular country and not a country based on Hindutva. He complements the Congress for maintaining the secular character of India in the initial years after Independence.
“What we have now though, an actual member of the RSS (Rashtriya Swayamsevak Sangh) — this extremist, Hindutva-oriented group — Mr Modi as [the] prime minister of India. So, what we have here is an extremist who has taken over the government,” he said. Batting for Congress and attacking Modi is an old trick adopted by many RSS-BJP haters.
Now we know why he is in a bad company. This is because he is suffering from Modi phobia. Calling the Indian Prime Minister an ‘extremist’ would not be appreciated by any world leader who has interacted with Modi. He has earned friends and has impressed them with his commitment to democracy and development. Stanton’s utterances are an affront to the honour and dignity of an average Indian who sees hope in their Prime Minister, Narendra Modi.
There are some people and vested interests that always wanted the Indian poor to suffer. Health card for the poor, a bank account for them where they get direct benefits through electronic transfer of funds and a free ration so that they don’t die of hunger have helped Modi emerge as the messiah of the poor. His schemes do not discriminate between Hindus and Muslims. These things don’t suit the Western narrative.
He has reined in corruption and given a level playing field to people who want to take the country forward. India is now home to the third largest number of Startup Unicorns after the United States and China. It will soon have 100 such unicorns each valued with a minimum value of USD 1 billion.
The pain of anti-India forces is the country is progressing despite being an area of potential conflict. The prophets of doom are being proved wrong. The incidents of terrorism have come down and Hindus and Muslims are trying to settle their issues through intellectual discourse. Genocide Watch also intends to influence the decision of MNCs which may be planning big investment in India now that the honeymoon with China appears to be almost over. India under Modi is a very attractive destination for these investors. FDI inflow during the last seven years (2014-21) was USD 440.27 billion which was 58 per cent of the total FDI inflow of USD 763.83 billion in the last 21 years. This is despite the pandemic.
Where does this leave Stanton and his likes? The West and Europe are shy of facing the charge of being Islamophobic. They have not been able to work out a full-proof mosaic society, where Muslims, a miniscule minority there, do not face discrimination. India is working well despite having a Muslim minority that has more population than any caste Hindu group. So, it makes sense for people like Stanton to take up the cause of some Muslims in the US who may be charged up by the motivated narrative that goes out from India. This would at least save Stanton from not being labelled Islamophobic. But they have to be wary of Modi phobia too. This blinds your vision and forces you to go wrong.
The writer is the author of ‘Narendra Modi: the GameChanger’. A former journalist, he is a member of BJP’s media relations department and represents the party as spokesperson while participating in television debates. The views expressed are personal.
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