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Why we should not forget the ‘Right to be Forgotten’

In a recent judgement, Madras High Court’s Justice N. Anand Venkatesh said that even a person accused of committing an offence and who has been subsequently acquitted from all charges will be entitled to redacting his name from the order passed by court in order to protect his Right of Privacy.

GAJANAN KHERGAMKER

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That a law is expected to be in sync with the need of the hour is a given. That it must—and ultimately, as a rule—catch up with the need is an integral part of the very nature of jurisprudence. That it, till then, cannot, is the unavoidable issue in contention. During this period, there’s academic and media reportage of the need, analysis of the offence that needs to be addressed, deliberation over the lacunae in the system, and then formulation of legislation to tackle the issue. This period, from the time the need of the hour is identified till the letter of the law formulated, comprises a grey area. In this interlude, the law cannot catch up with the offender simply because the act is not, for practical purposes, an offence in the eyes of law.

Controls on the Internet, censorship of Over The Top (OTT) content, accountability of social media platforms and streaming partners, all come under this grey area, till legislation is ultimately put in place to provide checks and balances. Till then, there’s discussion, deliberation and debate on rights and liabilities, on freedoms and liberties. It’s only when a sprinkling of stakeholders, mostly powerful, begin to move court that an issue is perceived as vital and the need to address it through interventional judgement first and then pertinent legislation, identified.

In an undated video that went viral recently, a young girl was recorded slapping a taxi driver on a busy street in Uttar Pradesh capital city Lucknow, even breaking his mobile by hurling it to the ground while hitting him repeatedly. The video sent ripples across social media. The taxi driver was seen requesting bystanders to call policewomen to the scene, “Aaplog mahila police bulaye (Please call the women police).” But the girl continued to assault him repeatedly and that too in full view of a traffic policeman at the spot. The taxi driver went on, to reportedly be kept in a lockup by the police for a full day and charged with nuisance. It was only after the issue went viral and overwhelming public demand that a complaint was lodged against the woman.

On being asked about how he felt, the taxi driver maintained that justice would be met following the complaint but was worried about how his self esteem would be restored. After all, the video of him being slapped over and over again had already gone viral on the Internet. And that is the issue in question which needs a resolution.

While the taxi driver will seek justice in his matter after following the due process and obtaining it, he may not have the resources to move court and press for removal of the video from online fora.

It may be recalled that in 2015, a student of Delhi’s St Stephen’s College, Jasleen Kaur, posted a picture of Sarvjeet Singh Bedi on social media and called him a harasser. The image of Sarvjeet went viral on social media and he was christened ‘Delhi ka Darinda’ for an act he hadn’t committed. Sarvjeet immediately lost his job, a criminal case was filed against him in Delhi and he was arrested within days of the incident. The charges levelled against him were serious. He was charged with Section 354A that refers to sexual harassment, Section 506 for criminal intimidation, and Section 509 for insulting the modesty of a woman.

Four years later, Sarvjeet Singh Bedi was announced “not guilty” by a Delhi court. During the court hearings since 2015, Jasleen Kaur had been absent, her family said that she moved to Canada after the ‹molestation incident›. Jasleen did apologise to the court later for her absence, citing academic commitments, but the damage had been done.

A year later, Sarvjeet filed a civil suit for defamation and sought damages for malicious prosecution and, in 2021, a Criminal Appeal maintaining his prime years were lost owing to the malicious complaint.

Then, even the National Broadcasting Standards Authority (NBSA) had said, “Broadcasters cannot condemn as guilty persons accused of having committed a crime or offence when the matter is still under investigation or where the court is yet to decide upon the guilt or otherwise of the accused.”

A television channel that had reported on the issue, squarely placing the blame on Sarvjeet without a trial, was fined Rs 50,000 for reporting the incident in a biased manner and asked to apologise.

Yet, with regard to the damaging post and ensuing comments across social media platforms accusing him of being the perpetrator in a social media trial, there was little he could do then…or now. And, the maligning persists to date.

It may be pertinent here to note that in September 2012, a five-judge Supreme Court bench headed by the then Chief Justice S.H. Kapadia, while ruling on whether reporting on a trial can be postponed to ensure a fair trial, had said, “Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a democratic system of government. Underlying our Constitutional system are several important values, all of which help to guarantee our liberties, but in ways that sometimes conflict. Under our Constitution, probably, no values are absolute. All important values, therefore, must be qualified and balanced against other important, and often competing, values. This process of definition, qualification, and balancing is as much required concerning the value of freedom of expression as it is for other values. Consequently, free speech, in appropriate cases, has got to correlate with a fair trial. It also follows that in an appropriate case, one right (say freedom of expression) may have to yield to the other right like the right to a fair trial.”

This lays down the constitutional principle allowing aggrieved parties to seek from appropriate courts the postponement of the publication of court hearings.

Last month, reality show celebrity Ashutosh Kaushik filed a writ petition in Delhi High Court with an application for ‘The Right To Be Forgotten’ directing respondents namely, the Union of India, Press Council of India, Press Information Bureau, Electronic Media Monitoring Centre, and Google to remove his videos, photos, articles from various online platforms as the same were “engendering a detrimental effect on his life and personal liberty.”

Saharanpur-born Ashutosh Kaushik, following his first win at the MTV Hero Honda Roadies Season 5 in 2007, went on to win Big Boss Season 2 in the very next year and then made a series of appearances in television shows and even a few movies.  

It may be recalled that the performer was in the news in 2009 when he was held by the Mumbai traffic police for drunken driving. About ten days after Kaushik’s arrest, the Metropolitan Magistrate Court sentenced him to one-day imprisonment, imposed a fine of Rs 3,100, and suspended his driving licence for two years. Kaushik was then charged for drunken driving, not wearing a helmet, not carrying his driving licence, and failing to obey the police officers on duty.

His petition, twelve years later, says that he “had to suffer utmost psychological pain for his diminutive acts, which were erroneously committed a decade ago as the recorded videos, photos, articles of the same are available on various search engines/online platforms.”

In the petition, Kaushik says: “People should not be indefinitely reminded of their past mistakes. Even when information is lawfully in the public domain or originally shared by the individual with his or her consent, people have a right to make mistakes without being haunted by them indefinitely. This is already recognised by the law in relation to spent convictions; the same should be true in the digital environment.”

Kaushik’s is the latest in the line of petitions that have been tackled by courts across India even the Supreme Court that have underlined the need to recognise the ‘Right to be Forgotten’ in judgements that have formed viable precedents in legal history.

The pertinent legislation—the Personal Data Protection Bill—brought to Parliament first in 2019 and passed on to the Joint Parliamentary Committee (JPC) for examination at the time by BJP MP Meenakshi Lekhi was expected to undergo “complete transformation.” However, the draft bill was opposed by social media firms, experts and even ministers for having “too many loopholes to be effective and beneficial” for both users and companies.

Now, the JPC is expected to submit the report in the first week of the Winter Session that commences in the last week of November 2021. And, till then, the issue of personal data protection will have to be tackled by judicial precedent.

In a recent judgement with far-reaching consequences, Madras High Court’s Justice N. Anand Venkatesh, referring to the Supreme Court’s judgement in the Puttaswamy vs Union of India case, recognising the Right To Privacy as a Fundamental Right that can be traced to Article 21 of the Indian Constitution, said that even a person accused of committing an offence and who has been subsequently acquitted from all charges will be entitled to redacting his name from the order passed by Court in order to protect his Right of Privacy.

“Today, the world is literally under the grips of social media. The background of a person is assessed by everyone by entering the name in Google search and collecting the information. There is no assurance that the information that is secured from Google is authentic. However, it creates the first impression, and depending upon the data that is provided, it will make or mar the characteristics of a person in the eyes of the society,” Justice Venkatesh further said.

Now the judgement tackles the gist of the issue of privacy and recognises the dangers of Google and impressions formed that could mar the characteristics of a person in the eyes of the society. That said, it’s time the judiciary now weighs the benefits of retaining information regarding one who has even successfully completed a sentence following a charge of an offence against the risks. Rehabilitation is an integral part of the punishment and retaining damaging information online also till uncertain perpetuity may only thwart the process.

The Right to be Forgotten runs collateral to the Right to Life but must be thrown open to legal scrutiny and analysis to apply to a wide range of situations that go even beyond ongoing trials and acquittals. The need to mandate procedural processes enable final judgements—of both conviction and acquittal—direct news-aggregators and social media platforms to update versions to the latest, authenticated version and/or delete all mention and reference to parties unless authenticated by a judicial process, will emerge in time.

The benefits of the Right to Privacy, the Right to be Forgotten as well as consent to redact material are, now, accorded to those who have been acquitted. For the purpose of publication in the media and general information for the public, the revelation of one’s identity, civil and/or criminal actions, litigation and judgements may be highly punitive in effect over and above what is legally permitted. The benefits of divulging such information may be offset by the risks of punishing even an ‘accused’ over and beyond his legal punishment of ‘imprisonment’ and/or ‘fine.’ Issues of ethics, legality, and culpability will come into play should the players proceed with the media coverage.

The Right to be Forgotten has been upheld by the Court of Justice of the European Union which, in May 2014, ruled against Google in a case brought by a Spanish man, Mario Costeja González. Mario had requested the removal of a link to a digitised1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid.

At first, he tried to have the article removed by complaining to the Spanish Agency of data protection, which rejected the claim on the grounds that it was lawful and accurate yet accepted a complaint against Google and asked Google to remove the results. Google went ahead and sued in the Spanish Audiencia Nacional (National High Court) which, in turn, referred a series of questions to the European Court of Justice.

The court ruled that search engines are responsible for the content they point to and, concurrently, Google was required to comply with EU data privacy laws. Incidentally, on the very first day of compliance only, Google received 12,000 requests to have personal details removed from its search engine. The judgement, however, is binding only on EU member states and not to the rest of the world.

Ironically, the issue of the Right to be Forgotten is a twin-edged one. The Right to be Forgotten Case in the Court of Justice of the European Union finds mention in over 40,000 instances across the Internet even sparks myriad comments on the case that had started off to do just the opposite.

In a paradoxical situation, the petitioner despite having won the case was denied the right to suppress links to comments about that case by the Spanish Data Protection Authority (DPA) that considered the ruling, comments, and facts behind it, of ‘public interest’. Ashutosh Kaushik may well be known in history for his petition to erase mention of the facts that could persist till perpetuity owing to a similar interpretation of the law.

The writer is an editor, solicitor, and a filmmaker. Views expressed are personal.

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Opinion

LEVERAGING NON-VERBAL COMMUNICATION WITH SUCCESS ON DIGITAL PLATFORMS

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Man has been using language— both verbal and nonverbal— as a tool of communication for centuries that allowed him to interact with the environment and to regulate his social behavior. Nonverbal communication adds to the information as communicated through verbal format using multiple channels like facial expression, vocalizations, artefacts, gestures, spacing etc. According to experts, a substantial portion of our communication is nonverbal that makes up 65–70 percent of the social meaning of a conversation. It is one of the most pervasive phenomena of our everyday life that accompanies us mostly unconsciously every minute of the day. The body sends a continuous flow of cues/signals, consciously or unconsciously, unravelling innermost feelings and thoughts, personalities, moods, often, more powerfully than with their words. It is therefore agreed that nonverbal behaviour provides fertile ground towards effective and efficient information transference, especially, nonverbal communication could be the most reliable source of information in situations where verbal communications are untrustworthy, ambiguous, or otherwise difficult to interpret. Freud, remarked that people watchers who watch/observe people can ensure themselves that no person can keep secrets from them, “If their lips are silent, their fingertips chat, betrayal oozes from every pore of their body”.

There is not one single universal nonverbal language. Different societies all over the world show widely differing behavior patterns making nonverbal communication a culture specific. In England, the nose tap gesture is a signal for conspiracy or secrecy, but in Italy the meaning changes and it becomes a friendly warning. Similarly, although most people in the world understand the movement of the head up and down to mean “yes” or “I agree,” this is not the case with Bulgaria. In fact, there are few factors that tend to have the greatest impact on interactions when crossing cultures. For instance, spatial relations and tactile communication are used differently in different nations. Americans, Germans, or Chinese, for example, tend to prefer larger amounts of personal space than do some Latin Americans, Italians, or Middle-Easterners. Likewise, there are cultures where during conversations touching on the arm, shoulders, or greetings with hugs or kisses etc. is very common, however, during conversations, in cultures of “keep your hands to yourself” touching is virtually non-existent and if it does occur, it can be a major faux pas. Further, mostly in some occidental cultures, direct eye contact is the way to go—it suggests confidence, respect, and interest in what the other person is saying. To look away may suggest being suspicious, shifty, and untrustworthy in most situations while as, it is just the opposite in oriental cultures where people expect and appreciate indirect eye contact when interacting.

Thus it evident that the nonverbal behaviour of an individual is profoundly influenced and regulated by the culture of a country. Misinterpretation of nonverbal cues at times can result into serious repercussions misunderstandings among people. Today, in the globalized world, where businesses are conducted across different countries, often, employees will be expected to listen to and communicate with diverse workforce who may come from different cultures displaying specific nonverbal behaviour that may not necessarily match with the nonverbal code of yours. Therefore, it becomes imperative for professionals operating globally, to study norms of interaction through a detailed examination of spoken and nonverbal interaction in the native and target language and are required to adapt their nonverbal behaviours to accommodate a particular international audience. This knowledge of nonverbal differentials across cultures will become a highly valued asset in a global community.

The recent outbreak of Covid-19 around the globe forced businesses to shift from traditional offices to physical to remote to hybrid way of working. People are wondering how can they substitute the lack of the richness of communication and body language inherent in face-to-face interactions on virtual platforms. However, the rules remain the same for telecommuters as well. The virtual conversations can be enriched the same way as the physical interaction by using the illustrator movements including gestures or other natural manners that accompany words that add meaning to verbal communication. While these body movements may not have a meaning that can be pinpointed, they serve to embellish/ contradict/substitute or complement a person’s words. Similarly, one can use affect display- such as the facial movements that can indicate disgust, anger, or amusement or a number of other emotions. Again, in any business or sales situations, people who are listening can apply regulator actions like they may nod and move their head in an interested manner, urging the speaker either to continue or explain or repeat. Further, non-verbal messages can be communicated in an online environment by means of the use of emoticons and bolded and italicized text. In order to portray anger, all capital letters can be used.

In the age of the virtual communication, nonverbal cues often speak louder than our words. Right kind of energy levels, speaking with passion, the tone matching the intent of the message could prove to be infectious on the screen as well.

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Opinion

Millennials, relationships, and the pandemic

The Wimpy Kid is in a way a metaphor for how younger people across the world have become more indoor oriented because of technology. If technology had made millennials more housebound, the arrival of this new deadly virus has compounded the problem.

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There are two ways that our changing world has affected relationships for everyone but more especially for millennials. Relationships with the family, with friends, and even romances are affected. The first cause for this is the advancement of technology and the second is the Covid-19 pandemic. Even before the pandemic, the new technologies had shaped our world, and particularly affected the world of the millennials.

Youngsters these days spend a lot of time online on Facebook and Instagram aside from other platforms. On the one hand, this is great for relationships for you could conceivably connect with someone on the other side of the planet who shares similar interests. At the same there is the danger of ignoring the here and now— and I don’t only mean bringing your smartphone to the dinner table. You don’t want to keep the people who are part of your daily life, be it parents, friends or siblings, waiting endlessly, while you excitedly track down how many likes and shares you are getting for a particular post or engage with someone living in another city or country.

I remember picking up one of the Wimpy Kid books for my niece from the airport, which I read during the course of a flight from Dubai to Delhi. Now this particular book has an interesting storyline. The Wimpy Kid’s mother feels that her kids are too immersed in their smartphones and tablets; and so, she decides that one day in a week the family will have togetherness time and all electronic devices ranging from the smartphone down to the TV will be shut down. Incidentally Sapiens author Yuval Noah Harari, made a similar suggestion a few months ago. Anyhow, coming back to the Wimpy Kid, the story has a very interesting, and to my mind, appropriate twist towards the end. The mother cannot find the Wimpy Kid who has wandered off into the forest, but she manages to track him down through a tracking device she had installed in one of his shoes. Meaning that we cannot get rid of this technology; it is there to stay.

The Wimpy Kid is in a way a metaphor for how younger people across the world have become more indoor oriented because of technology. If technology had made millennials more housebound, the arrival of this new deadly virus has compounded the problem. Earlier parents may have been telling their children to leave their computer and go out and play a game or sport. Now they say, it’s better if you stay at home, and if you do go out wear a mask and keep a safe distance from others.

I recently met my nephew Dhruv and his wife Aarushi after a long time. Now Dhruv got married just a month before the onset of the pandemic. Both of them are working professionals and they were both asked by their companies to work from home, the same as I myself have been doing, in my job with the United Nations. When I asked Dhruv how they were doing he said something interesting. He said, “We are together all the time, 24 7, day and night, seven days a week. With this much proximity if you can still manage to like being together, it means that your relationship is really working.”

Dhruv and Aarushi were lucky, but the news has not been so good all around. Young and old married couples around the world have found it a challenge to be together all the time. In France there were so many cases of domestic violence as a result of enforced togetherness that the President ordered various hotels to be commissioned that could serve as places for women to stay in – women who had been abused or beaten by their husbands. Too much physical togetherness can be a problem but for some millennials, the problem was just the reverse. It was to get to physically meet their girlfriend or boyfriend, as the case may be during the time of Covid-19 restrictions. During the worst phase of the pandemic, when meeting people was discouraged, I came across this case in my neighborhood, where the boy told his girlfriend: “Let’s meet up at Mother Diary. We can chat with each other while we are in the queue, shopping for vegetables.”

Where do millennials go to for advice on relationship issues? In the past they could have confided in an elder but these days they often hesitate because the times we are living in are so different from those when their elders were young. Their viewpoints, and world view are also often very different. There are online resources millennials can turn to, or they could take advice from friends but one other place to turn to for advice and learning is books.

My new novel Star-Crossed Lovers in the Blue: Love in the Time of Corona, discusses some of the challenges faced by millennials. In fact, the story itself is about how the two main protagonists in the story, the merman Arj and the mermaid Utir, overcome various problems and obstacles to be together again. In the words of a reviewer, the story talks about love, joy, sadness, anger, trust, fear, mystery, everything in parts. The novel takes the reader through a roller coaster of emotions and discusses important issues concerning relationships, including the importance of trust. For instance, Arj is heartbroken when the love of his life, Utir apparently betrays him, but somewhere, deep-down, he trusts that she would not have done what she did unless there had been a compelling reason for her to do so. It is this very trust that takes him across the world’s oceans in search of Utir, and a potential happy-ending. No spoilers here!

The writer is the author of the book, Star-Crossed Lovers in the Blue. The views expressed are personal.

I remember picking up one of the Wimpy Kid books for my niece from the airport, which I read during the course of a flight from Dubai to Delhi. Now this particular book has an interesting storyline. The Wimpy Kid’s mother feels that her kids are too immersed in their smartphones and tablets; and so, she decides that one day in a week the family will have togetherness time and all electronic devices ranging from the smartphone down to the TV will be shut down. Incidentally Sapiens author Yuval Noah Harari, made a similar suggestion a few months ago. Anyhow, coming back to the Wimpy Kid, the story has a very interesting, and to my mind, appropriate twist towards the end. The mother cannot find the Wimpy Kid who has wandered off into the forest, but she manages to track him down through a tracking device she had installed in one of his shoes. Meaning that we cannot get rid of this technology; it is there to stay.

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Opinion

US MUST SANCTION PAKISTAN

Joyeeta Basu

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US Secretary of State Antony Blinken’s statement that some of Pakistan’s interests were conflicting with that of the United States and that Washington would reconsider its ties with Islamabad, are of immense significance. His was the first public pronouncement of the Joe Biden administration’s Pakistan policy. President Biden’s phone call to Pakistan Prime Minister Imran Khan, which he and his men have been publicly hankering for, is yet to materialize, even after nine months of Biden being in office. This should give an inkling that not all is well between the two countries. But what was unsaid, was finally said at the Congressional hearing, where Pakistan came in for severe criticism for the role it has played for decades to keep Afghanistan on the brink, while nurturing and using all sorts of terrorist groups to serve its own interests. Blinken was clear that Pakistan has been “involved in harbouring members of the Taliban, including the Haqqanis”.

Blinken also said, “What we have to look at is an insistence that every country, to include Pakistan, make good on the expectations that the international community has of what is required of a Taliban-led government if it’s to receive any legitimacy of any kind or any support… So Pakistan needs to line up with a broad majority of the international community in working toward those ends and in upholding those expectations.” Valid words. But how far is the US willing to go to punish Pakistan for the “duplicitous” role it has played—and still plays—specifically, by “using the US to defeat the US in Afghanistan”, as one of ISI’s ex chiefs, Hamid Gul had boasted? There is no reason to believe that a rogue country such as Pakistan will “line up with a broad majority of the international community” on the issue of Afghanistan, and thus give up the leverage it has acquired by installing a terrorist regime in Kabul. Instead, with the PRC as its backer, it now feels even more emboldened to continue with its misadventures. No US administration has taken any substantial action—except for some token aid cuts—against a rogue Pakistan, and this in spite of the perpetrator of 9/11, Osama Bin Laden found on Pakistani territory, right on the Pakistani military’s doorstep. Bizarrely, as the perusal of some recent articles in the US media show, even the discovery of Laden is now sought to be spun, at least by a section, as having resulted from Pakistan’s cooperation with the US. The US has publicly expressed its displeasure with Pakistan earlier as well, but when it comes to the brass tacks, Pakistan is still the US’ Major Non Nato Ally (MNNA), and thus eligible for special financial and military largesse. Public opprobrium has never translated into action from the US. Thus, Pakistan has got away with murder, every time. In fact, such was Pakistan’s confidence in US inaction—and in its own ability to gull the US—that it was, until recently, hoping even to come out of FATF’s grey list, because it was “helping” Washington to pull out American troops from Afghanistan.

However, this time it may not be so easy for GHQ Rawalpindi to get off the hook, in spite of the backing from the US Democratic Party’s pro-Wahhabi “progressive”—in reality, radical and regressive—fringe. This time Pakistan may have crossed the red line of “defeating” the US in a battlefield the superpower had invested itself for two decades. Ironically, things may not have come to such a pass for Pakistan, if Imran Khan and Company had not resorted to exulting over US’ exit from Afghanistan; or the GHQ had not inserted its pet terrorists such as the Haqqanis in the Taliban government. There is too much public scrutiny now of the role Pakistan has played, as evident from the severe criticism it received in the Congressional hearing. Also, no US President wants his people to see him as having been taken for a ride.

In spite of all this, if the US again falls into the trap of employing the arsonist to douse the Afghan fire, then it will have only itself to blame. Blinken must make good his promise to “reconsider ties” with Pakistan. A slight rap on the knuckles will not do, maybe by removing Pakistan’s Major Non Nato Ally (MNNA) status, or something similar. The need of the hour is sanctioning Pakistan and that is the process that the US must initiate.

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Opinion

Thoughts on the International Day of Democracy

UN’s most powerful organ, the Security Council is a face of unrepresentative and imperious decision making at United Nations which blatantly ignored even some most compelling demands made during the pandemic by nations beyond its five permanent members. So what provokes this world body to declare a day of democracy?

Amita Singh

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United Nations had declared 15th September as the International Day of Democracy way back in 2007. What made UNO to declare such a day when it has itself mostly failed to abide by the concerns of democracy around the world and across decades? Freedom House data has already shown that a global deterioration of democratic concerns is sweeping through the world like a tornado and democracies have been sinking into authoritarianism, militias or rule by mercenaries. Take for example the latest barefaced defiance of all UN resolutions in Afghanistan by just a small rustic group of medieval terrorists called Talibans, legitimized and made big by UN’s highest funding nation USA to smoothly squash civilian population, dump Geneva Conventions and human rights. UNO is repeatedly guillotined by powerful nations which are legitimizing their undemocratic decisions in many ways. UN’s most powerful organ, the Security Council is a face of unrepresentative and imperious decision making at United Nations which blatantly ignored even some most compelling demands made during the pandemic by nations beyond its five permanent members. So what provokes this world body to declare a day of democracy?

The Declaration came exactly twenty years after the Inter-Parliamentary Union (IPU) adopted a Universal Declaration on Democracy in 1997. IPU is an international organization that has an observer status in United Nations. It is composed of world parliaments, parliamentarians and later several civil society organizations also joined in. IPU promotes democratic governance, gender parity amongst legislatures, empowers youth for political participation and ensures that nations adopt sustainable development in their models of progress. The 1997 Declaration was well researched as slippages in the democratic functioning of governments were abound. It also affirms principles of democracy, exercise of democratic government, and international scope of democracy. There exists a historical link to this declaration of 1997 which and can be traced back to people’s struggles during the 1980s against the stifling of democratic processes by authoritarian regimes. In 1988 a peaceful revolution in the Philippines called ‘People Power Revolution’ which was also called the EDSA Revolution getting this name from manila’s most prominent highway ‘Epifano de los Santos Avenue’ blocked by people to overthrow a 20-year dictatorship of Ferdinand Marcos. In Philippines, an innovative democratic model of governance was brought up through a movement of an International Conference of New or Restored Democracies (ICNRD) under the initiative of President Corazon C.Aquino of Philippines. In ICNRD’s international meet at Doha in 2006 this new model of democratic governance with a tripartite structure having three essentials participatory pillars ie; governments, parliaments, and civil society was explicitly recognized by the United Nations General Assembly resolution 60/253 of 2 May 2006. This movement of new and restored democracies acknowledged the fact that if even a single pillar of governance is weakened, democracy would derail. A year before the declaration of Democracy Day in 2006, another small Himalayan Kingdom state Nepal experienced what is known as ‘Nepal’s Magna Carta’ of 18th May 2006 when the Parliament unanimously voted to strip the King of his discretionary superior powers over people’s representatives. This day was hailed in Nepal as a ‘Democracy Day’ when all power that was vested in the King came under the power of people’s parliament including the 90,000 troops that the king controlled and in return all assets of monarchy became taxable.

Ironically, Qatar which a day ago had gone to meet the Taliban was given a lead by United Nations in 2006 to draft a text for a resolution on the democracy day by UN General Assembly. Finally, on 8th November 2007, the final resolution, titled, ‘Support by the United Nations system of Government efforts to promote and consolidate new or restored democracies’ was unanimously adopted by all UN member states to declare 15th September as an International Day of Democracy.

The Day of Democracy comes with an annual theme. Interestingly, the theme for 2019 was ‘participation’ and it talked of improving democracy by looking into institutional access and partnering with governments. Nevertheless, in 2020 it reverted to focus on basic concerns of democracy and selected a theme ‘2020 COVID-19: A Spotlight on Democracy’. In a very arbitrary frame of governance that lashed world events during the pandemic, there were raised concerns on due process of law, respect for international legal standards and right to access justice during crisis period which was being denied by democratic governments. In India as well, the execution of colonial era’s draconian ‘Epidemic Diseases Act 1897’ proved forbidding and humiliating to the underprivileged as they were denied transportation to reach their homes and one chief minister even allowed its administration to wash them with sanitizing chemicals as they enter a city. The 2021 theme remained undecided for long but then the focus garnered around the importance of ‘parliamentary oversight’ to maintain adequate checks and balance in any healthy democracy. It indicates that parliaments across the world have been failing to address their key role of maintaining a parliamentary oversight over an executive or a due process of law which should be followed in sustaining democracy. So, fear is that Parliaments which are a creation of democracy are now becoming threats to democracy.

A parliamentary system is a fusion of legislature and executive since leader of a majority party in Parliament is designated as the Prime Minister who then constitutes his Cabinet. Art 75 in the Constitution establishes that ‘pleasure of the President’ is the condition for a Minister to hold office and the Council of Ministers is collectively responsible to the House. There are mutual checks and balances to establish intra-institutional controls. There are several Parliamentary Committees including the Standing Committees which are constituted in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business. These Committees especially Finance Committees such as the Estimates, Public Accounts, and Public Undertaking Committees are powerful committees to check the government’s overreach as well as the health of administrative systems during emergencies such as the pandemic. Judiciary remains independent and due to separation of power maintains its independent status of a watchdog of democracy. The former CJI Ranjan Gogoi emphasized the judiciary’s watchdog role in several public speeches that he delivered but on retirement he accepted being nominated to the Rajya Sabha. Watchdogs do not accept bones from those they are supposed to guard against. This relationship of greed with power was well brought out by former High Court Judge B.Kemal Pasha in his response to allegations against judiciary’s role in multi-crore Rafale deal. He said that judiciary should have ‘backbone’ to continue as the watchdog of the Constitution. He was referring to Art 142 under which the Supreme Court has immense power for judicial activism yet it said they have no power to intervene in the deal.The article 142 says, ‘The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India …….’This is how our Constitution was formulated by brilliant and experienced minds but a few ideological vanguards like Sai Deepak in a latest talk show with Shashi Tharoor boldly declares that to protect this ‘Constitution at the expense of civilization is grave injustice’. Many who do not understand the balancing act of our Constitution also fail to understand that civilization is sustained because of this balance which they are trying to disturb.

Democracy’s lungful of oxygen comes from its respect for human rights. While the Day of Democracy focuses on ‘parliamentary oversight’ it is nothing but an assurance to people that they would be safe and justice would be done. Parliament is a primary forum for protecting human rights but its only on its failure that judiciary and civil society has to barge in. The Universal Declaration of Human Rights 1948 captures this relationship of democracy and human rights in Art 21 (3), “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

The last perplexing question on democracy emerges from Art 21(3) mentioned above. This article is merely reflecting an 1861 model of John Stuart Mill’s ‘Representative Democracy’ which continued to be popular in post -second world war explorations of Comparative Politics Movement in the non-western world. These studies conducted in emerging post-colonial nations experimenting with their cultural frames of democracies saw elections as a primary representative act of democracy as even that appeared difficult. Seventy five years later with fairly well informed voters and high paced technology it is now well established that to think of elections as an assurance of democracy is merely stamping a procedure which has become a ritual. It rarely gets converted to substantive democracy in which those who elect also control their representatives through institutions of accountability and information dissemination. Much has been done to prevent substantive democracy through ordinances, notifications and laws which shrink space for public discourse and twist democracy into a one way ratchet. This has now raised questions of ‘democratic backsliding’ in which governments ritually hold timely free and fair elections through an independent election commission nonetheless institutions for the participation of people and voicing their concerns are locked up and enforcement agencies have personnel policies which turn exceptional clause of discretion into regular norm to appoint compliant officials. In a world governed by cyber interaction and veiled opinions, winning an election against poor and minimally educated may just be a sort of a digital craft in which a prowling cat can be presented as a gentle generous lion. Now that this obstinate pandemic has put everyone from primary school kids to the top governance officials over on-line internet based information, one would fail to imagine now what intellectual disaster is cumulatively going to stand against democracies in times to come.

Democracy is short-term representative governance and a long-term substantive life based upon a due process of law, access to justice, freedom of expression, and protection of human rights including gender rights. Freedom of expression may give some shape to substantive democracy but laws on inculcating ethics and integrity are weakening. Democracies have no viable alternative other than repression and surveillance. Unless this Day of Democracy is rightly observed we may continue to repeat Plato’s words that democracy is where donkeys march on roads with flags claiming to be perfect democrats.

The author is president, NDRG, and former Professor of Administrative Reforms and Emergency Governance at JNU. The views expressed are personal.

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FREEDOM FIGHTERS DON’T DESERVE TO BE KEPT MERELY LANGUISHING IN HISTORY BOOKS

Priya Sahgal

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On September 14th Prime Minister Narendra Modi made a trip to Aligarh to lay the foundation stone of a university named after Raja Mahendra Pratap, a Jat icon and yet another freedom fighter who did not get his due during earlier regimes. Whether it was the quest for the 17 percent Jat vote in the state that is set to go to polls early next year, or part of the BJP’s larger game plan to rediscover and honour leaders other than those belonging to the Nehru-Gandhi dynasty; it was a recognition that was long overdue. As Mahendra Pratap’s great-grandson Charat Pratap Singh told the media, when he first heard about the project, “Der Aaye Durusth Aaye” (better late than never). Although Charat added that for the family it was not about politics, but giving respect where it is due, one cannot ignore the fact that all this is happening against the backdrop of a largely Jat lead farmers’ agitation in Western Uttar Pradesh; and that too a few months before the UP polls.

But back to the larger point. Without going into the current debate of cancel culture and rewriting history textbooks, there has been a glaring omission as to how some of our greatest freedom fighters have not been given their due honour. Take Raja Mahendra Pratap’s case for instance— he was an alumnus of the Muhammadan Anglo Oriental Collegiate School which now has been renamed as the Aligarh Muslim University. Influenced by the speeches of Bal Gangadhar Tilak and Dadabhai Naoroji, he became entrenched in the Swadeshi movement and declared a jihad against the British rule, leading to the British declaring a bounty on his head. In 1915, he set up the first Provisional Government of India in Afghanistan as its President. This served as the Indian Government in exile during World War I from Kabul in 1915. In fact, as PM Modi told us at the event, it was after consultation with other revolutionaries and freedom fighters, Lala Hardiyal and Shyamji Krishna Varma that he went to Afghanistan. Later he also established the Executive Board of India in Japan in 1940.

Back in India, he contested the Lok Sabha elections in 1957 from Mathura defeating the Jan Sangh’s Atal Behari Vajpayee. Known for his social reform and his work for the downtrodden, he was also deeply influenced by Gandhiji and a firm believer in non-violence. Raja Mahendra Pratap was also nominated for the Nobel Peace Prize in 1932. He also donated a sizeable chunk of land to his alumni the AMU in 1929. (Later in 2019 the UP Chief Minister Yogi Adityanath had asked that the university be renamed after the late Jat leader).

There is a reason for this digression into his bio data, because as I mentioned earlier, not much is known about the Jat King and freedom fighter. It is only now, after the Modi government decided to honour him that the media reached out to his family, and of course the internet, to find out what they could about this legendary personality. I have to confess, I have a personal reason for doing the same. Mahendra Pratap’s great grand-daughter, Meeta Pratap studied with me at the Welhams Girls’ School in Dehradun. For seven years we shared a dorm, discussed Doscos & Daphne Du Maurier, fudged our maths books, and mugged our history books. But, we were never told about the role that one of our classmate’s great grandfather played in our freedom struggle; and I am sure many like him are left languishing on the sidelines of history. Many more that we need to remember, honour and thank.

As readers of this column know I have often disagreed with the Prime Minister, but he has a point when he says there are so many who have struggled and sacrifised for our country but it is unfortunate that the ‘Gen Next’ is not told about their struggle and their stories. He has also promised that his government will make an `imaandar’ (honest) attempt to give these leaders their due. As he added, it is important for any youth who dreams big to know about Raja Mahendra Pratap for he spent every moment of his life in service of our country, first during the freedom struggle and later on through his philanthropy. Given that this is the 75th year of our independance, one hopes that many other such iconic stalwarts would be given their long overdue prominence and rescued from the dust of history.

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Kerala’s new woes: Narco terrorism and love jihad

Kerala Catholic bishop’s claim of ‘narcotics jihad’ is becoming a political flashpoint across the nation. To ensure peace and stability in the region, Kerala government has to take cognisance of the issues. If it does not, Centre should intervene, lest things go out of hand. 

Satish Kumar

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The Love Jihad has become the itching menace in Kerala. When the issue was raised by RSS, most of the liberal intellectuals called it political offshoots. This time it has been raised by a Catholic bishop. Mar Joseph Kallarangatt, Bishop of Palai, has come out categorically, accusing a section of the Muslim community of targeting Christians girls through Love Jihad and ‘Narcotic Jihad’. These groups, according to him, have been using different strategies to run the show. Pointing to a sharp rise in cases of young Christian women being subjected to abuse or religious conversion after eloping with men from other community, the Bishop warned that these “jihadists” had already cast their nets over places including schools, colleges, training centers and even commercial centers. Regarding the “Narcotic Jihad”, the Bishop said the rising number of drug cases were a pointer to the practice’s existence. “These gangs operate out of the ice-cream or soft drinks parlors and restaurants run by jihadists and deploy different types of narcotics as a tool to destroy non-Muslims. These facts are reinforced by the rising cases of rave parties. The incidents of religious hatred in the domain of art and culture, programs that seek to cast aspersions on other religions, the business strategies like halal food, major real estate deals at inflated prices, parallel telephone exchange, armory shops are all part of larger scheming.

Five years earlier, the Hadiya case brought this issue to light. Many secular fronts and liberal thinkers wrote that it was an imagined story by right wing organizations. As things moved, and courts took cognizance of the matter, things became more transparent. National Investigation Agency (NIA) found the involvement of a team who are involved in the process of conversion of Hindu and Christian girls to Islam.

Jihad is an Arabic word, which is closely associated with Islam and its history. Jihad literally means making a determined effort to oppose something or achieve an ideal or a noble goal. However, with the rise of extremism in many countries, it is now being used rather negatively to denote the use of violence. The word ‘Love Jihad’ is a rather recent development. This manifestation of Jihad means using love and sex to convert people to Islam or establishing dominance over them. Love Jihad or Romeo Jihad is a process under which young Muslim boys and men target young girls for conversion into Islam by pretending as real lovers. In December, 2009, Justice KT Sankaran of Kerala High Court found indications of forceful conversions.

The radical Islamist organization Popular Front of India (PFI) has deep roots in Kerala. After the ban on Students Islamic Movement of India (SIMI), a radical Islamist organization namely National Democratic Front (NDF) was formed. Simultaneously Abdul Nassar Madani launched a Muslim outfit called Islamic Seva Sangh (ISS). The PFI is an umbrella organization of various political and non-political entities and trusts like Campus Front of India, All India Imam Council Confederation of Human Rights Organization. According to a Home Ministry dossier, the PFI has around 60,000 regular members and 85,000 sympathizers in Kerala. Sathya Sarani Islamic Dawa Institute, a mysterious Islamic coversion centre also comes under the PFI.

MODERNITY AND ISLAMIC RADICALIZATION

Post-Independence India acquired a unique conceptualization of modernity. The marriage of a Hindu girl with Muslim boy was considered a great leap of modernity. The Nehruvian socialists in the name of secularism corroborated and were planted in campuses. To a large extent, the divisive agenda worked. It was more systematic because Kerala was under the political system of Left, or the Congress, or both combined. The change of political system at the center took it seriously. The issue was picked up by RSS. Many leaders of the organization went to Northern parts of Kerala and highlighted the matter with the Home Ministry. Ultimately the ISIS recruitments and radicalization caught the attention of the nation.

FACTORS OF RADICALIZATION

Kerala is not a poor state. The mushrooming of Islamic organizations narrates a different story. Youth of Kerala have been migrating to Gulf and other Islamic countries. Many of them move to Afghanistan, Saudi Arabia, Yemen and several other countries. The funds from Saudi Arabia started flowing in. The funds were systematically used to wean the minds of youth. Over period of time, some of the northern districts of Kerala adapted the lifestyles of Arabs. Girls started wearing Arab dress code with burqa. Schools and colleges mushroomed with bearded males. TV evangelists like Zakir Naik became the most popular figure in the state. These were the early signals of radicalization of a state which was doing much better than any state of the country. In all cases, Muslim youths are radicalized by the educated class of Muslims such as Islamic clerics, Islamist editors, and mosque leaders. Hindu and Christians cannot open their shops during Ramzan. Charitable and black money pumped in Kerala in a major way, and mosques and churches are receiving lots of it. All NGOs of Islamists organizations have links with political parties.

They enjoy influences and power over them. On similar lines, Popular Front of India, (PFI) has been taking over control of mosques and some Muslims under its umbrella.

RADICALIZATION THROUGH ORGANIZATIONS

The Mujahid movement preaches a puritan version of Islam and opposes Sufi practices. It is from their corpus of ideas that grew the radical Islamist group National Development Front (NFD), now known as PFI which has roots in the Students Islamic Movement of India (SIMI) a banned militant group which seceded from the Jamaat-e-Islami. By 1980 the Kerala branch of SIMI had declared slogans such as ‘destroy nationalism, reinstate caliphate’. Newspapers like Madhyamam, which is published by the Jammat-e-Islami, are radicalizing Muslim youngsters— radicalization proposing to establish an Islamic state. They create hate wave against the Hindu culture, and there is an attempt to wean away Muslim youngsters from local society.

COCKTAIL OF COMMUNISTS AND JIHADIS

Marxists are also rationalizing Islamic extremism. Marxism thrives on poverty. But Kerala is not poor. In Muslim dominated regions like Kozhikode, Malappuram and Kasargod, there is sign of Arabic culture percolating down. Keralite restaurants advertise Arabic foods. Northern Kerala looks like a mini-Pakistan. Dattatreya Hosabale, General Secretary of RSS said, “There is definitely some nexus between Jihadi terrorists operating in Tamil Nadu, Karnataka and Kerala and the Communist Party of India (Marxisit) cadres”.

The same logic was endorsed by a historian. Tarek Fatah, author of Pakistani origin, once said “The alliance between Islamist and Leftists-Sharia’h-Bolshevism is a dangerous threat to free speech and democracy”.

ITS POLITICAL IMPLICATIONS

There are reports of Maoists joining hands with Jihadis. The experiment of alliances between CPI (M) and the Jihadis in Kerala succeed in forming a counter against the nationalist forces, its impact will be disastrous not only for India but for the entire world. The outfits have links with the Lashkar-e-Toiba and the Hizbul Mujahedeen. PFI has network with National Development Front (Kerala), Manitha Neethi Pasarai (Tamil Nadu), Karnatka Forum for dignity (Karnatka), and all organizations with radical ideology. Several other organizations splashed in other states like Peace Educational Foundation (Kerala), Jamait ul Muflihaat (Hyderabad), Discover Islam Education Trust (Bengaluru), Tauheed Educational Trust (Bihar), Islamic Research and Dawah Centre (Mumbai), Islamic Information Centre (Mumbai) have emerged during the last few years, which have provided direct access to indoctrination materials.

Nonetheless, the declaration by the Bishop is a reality. It has been said time and again that Kerala is slipping into the hands of terror groups. Love Jihad is a tool. The aim is to strengthen Islamic terror groups, meandering along with Maoist forces. Since the Indian subcontinent is facing the heat of Taliban occupying the driving seat in Afghanistan and flagging off Islamic terror signals, these issues will have larger implications. Therefore, between Kerala and Kashmir, there is a link.

The recent revelation by Bishop must be taken seriously by the state government. If it does not, the center must make a solid move to contain it.

Satish Kumar is Professor of Political Science at IGNOU, New Delhi. The views expressed here are his personal.

Jihad is an Arabic word, which is closely associated with Islam and its history. Jihad literally means making a determined effort to oppose something or achieve an ideal or a noble goal. However, with the rise of extremism in many countries, it is now being used rather negatively to denote the use of violence.

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