The Shalimar garden putsch

The Kashmir Times, September 5, 2013 Opinion

The Shalimar garden putsch By Ravi Nair It is interesting that the Government of India and the Government of Jammu and Kashmir have not only accorded permission to a Zubin Mehta concert in Srinagar but are putting the state machinery at the beck and call of a command performance orchestrated by the German Ambassador in New Delhi. Herr Michael Steiner has an interesting past and present. It would have been useful if the policy pundits in New Delhi had done some sleuthing of their own rather than depended on their flatfoot department where intelligence is an oxymoron. Herr Steiner is not the average diplomat. Shooting into prominence in Prague in 1989 as a junior diplomat who helped East Germans across the wall of the then West German embassy in what was notionally still a Soviet satellite state, Czechoslovakia. It is indeed interesting to note how a junior diplomat in a Foreign Ministry known for its hierarchy and Prussian values of "Gehorsam "and "Ordnungssinn" obedience and a sense of order in plain English gave so much leeway to a junior diplomat when instructions were available literally a hop, step and jump away in Bonn, the then West German capital. His career graph clearly marks him out as special not only as an individual but the policies that he has espoused for Germany and more importantly Western European foreign policy whose engine lays in Berlin not Brussels, London or Paris. Mr. Steiner subsequently was deputy to Carl Bildt, the first high representative of the United Nations in Bosnia. In 2000, according to the New York Times, he outraged a Belgian diplomat by suggesting at a private gathering that ''we might walk into your country again'' if a Belgian minister did not shape up. According to the same NYT story, in 1999, he tried to force his way past security guards into a Rio conference without wearing his credentials, and was forced to the floor. The NYT adds that in 2001, he was "involved" in a bizarre contretemps over the leaking of a cable that described his blunt conversation with the Libyan leader, Col. Muammar el-Qaddafi, who appeared to admit responsibility for earlier terrorist acts. The memo, written by the German ambassador in Washington at the time, Jürgen Chrobog, included other details of a conversation between Mr. Schroder, the then German President and President Bush. It should not be forgotten that it was the same Herr Steiner who orchestrated the end of the isolation of Mr. Narendra Modi, the Gauleiter of Hindu Fundamentalism amongst the countries of the European Union. Mr. Steiner surreptitiously invited Gauleiter Modi to the German Embassy in January 2013 for a coven where all the other European worthies dipped their flags to the German Eagle. He is reported to have been key to getting his then boss, the German President to agree to the deployment of German troops in Afghanistan. This allegedly, in the face of opposition from the then Green Foreign Minister, Mr. Joschka Fischer in the German Coalition government. Steiner served as Special Representative for Afghanistan and Pakistan for the German Ministry of Foreign Affairs from 2010 to 2012 from where he came to New Delhi as ambassador. German interest in what is now known as the AF Pak region is not new. From the Treaty of Gandomak in 1879 and the Treaty of the Durand Line in 1893 the good Kaiser gave Calcutta, Delhi, Simla and London many sleepless nights. There are too many stories to recount here about the sparring that went on in the area between Imperial Germany and Imperial India under the British crown. German Industry then as Krupp and now as a clutch of armament manufacturers was not a disinterested participant in the great game. It would be useful if the pundits in Delhi visited the India office in London and reread the Viceroy's dispatches. If that is arduous, they could perhaps start with reading Hopkirk. The Germans hosting the Munich security conference each year have been hosting the Afghans, Pakistanis, Iranians and Indians not only to Bavarian beer and Brotzeit but also have been taking readings on their involvement in the area. According to Der Spiegel, Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND), in 2006 was intercepting and reading SPIEGEL reporter Susanne Koelbl's e-mail correspondence with Afghan Commerce Minister Amin Farhang. The BND leadership as early as 2005 had unofficial negotiations with certain representatives of the Taliban in Zurich. In November 2010, Steiner's Bavarian and BND connections were once again visible. Commentator, Ahmed Rashid, stated that secret talks were held with Taliban's Syed Tayyab Agha, long-term aide to Mullah Muhammad Omar. Also present was a prince from Qatar's ruling family, whom the Taliban had asked to be present. In late 2008, the BND was allegedly using employees of the German Agro Action (Welthungerhilfe) to obtain counterinsurgency intelligence. Agro Aid warned that this would endanger NGOs "neutrality. Hopefully, New Delhi is keeping its eyes and ears open on Germany's new found interest in Kashmir University, development, et al. Any one following German policies in the area should be aware, it is a forward policy. The US will leave in 2014 but according to Ulrich Kirsch, the head of the German Armed Forces Association -- the Bundeswehrverband, German combat troops should remain in Afghanistan for many years to come. The new cockpit of this century is this area where China, Russia, Iran, Pakistan and India meet and vie for influence. Mr. Zubin Mehta is also an interesting choice for Herr Steiner to invite to Kashmir. It is amazing how New Delhi has bought the orchestral composition written by the foreign policy wunderkind of Berlin. Mr. Mehta's programme in Srinagar we are told is to feature the music of Beethoven, Haydn and Tchaikovsky. It will be interesting to see if Wagner is the last minute inclusion with Gotterdammerung. The Hurriyat conference and civil society in Kashmir have missed the plot. It is New Delhi that should be fingering the worry beads. New Delhi is playing second fiddle. Ooops, sorry, second violin. (The author is a Delhi based analyst)

Ill portents from the Ordinance that never was

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Opinion Ill portents from the Ordinance that never was By Ravi Nair There is a certain vicarious glee in the decision to disallow Mr. Lalu Prasad to retain his parliamentary seat or contest elections, following his conviction in the Fodder Scam Case. The chatteratti has failed to comprehend that the issue is not the fate of Mr. Yadav. That will be determined by the superior courts. The real question is whether an individual's democratic right to vote and stand in elections can be extinguished before they have exhausted legal due process and exercised the judicial right of appeal. The Supreme Court judgments Chief Election Commissioner vs. Jan Chowkidar (2013) and Lily Thomas vs. Union of India (2013) create problematic precedents for the future of democracy in India. Aside from calls for case reviews from a few notable lawyers, public debate on the judicial pronouncements has been poor. This is despite the complexities posed, which run to the heart of future democratic polity in India. The Representation of People Act (RPA) disqualifies an individual sentenced to more than two years imprisonment from contesting in elections during his detention and for six years after his release. However, Section 8(4) stipulates "disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."This created a legal loophole allowing individuals to remain in legislatures when convicted of serious offences. In Lily Thomas vs. Union of India, a two- judge bench of the Supreme Court held the automatic protection of appellants in Section 8(4) of the RP Act is unconstitutional and struck it down. Henceforth, when a magistrate sentences an MLA or MP to over two year imprisonment, they will be automatically unseated. This closes the previous gap in the law. Mr. KN Bhatt, a former additional solicitor general of India, reacts succinctly, "Unwittingly, perhaps, the court has made a magistrate and a police officer the pivots of democracy… Merit apart, court is not empowered by the Constitution to make pronouncements of this type. Article 145(3) mandates that to decide any case involving a substantial question of law, as to the interpretation of the Constitution, the minimum number of judges who are to sit on the bench shall be five. In this case, interpretation of some important provisions of the Constitution were involved. Article 103 of the Constitution provides that the question of disqualification from the membership of the Houses "shall be referred to the President (or the Governor as the case may be, who after consultation with the Election Commission, will give his decision, which shall be final." He adds that in making their decision, the Court ignored the judgment of a larger bench, "In 2005 a five-judge bench of the Supreme Court considering 8(4) of the Representation of Peoples Act was in the Prabhakaran vs. P. Jayarajan case stated, "If a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House will stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor-edge thin majority where each member counts - and disqualification of even one member may have a deleterious effect on the functioning of the government - such reasons must have persuaded Parliament to classify the sitting members into a separate category." The case of Chief Election Commissioner vs. Jan Chowkidar (2013) examined Section 62(5) which states, "No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police." Otherwise, only persons named in the electoral roll can vote. Disqualifications are contained in Section 16 of the RP Act, 1950 and include people without Indian citizenships or of unsound mind. The Court concluded that individuals in jail are not eligible to be candidates in elections. This places in the mandate of the police and executive the power to potentially disqualify any individual from democratic processes. Police officers or any mandated body, whether individually or upon the command of the executive, may prevent a person from contesting an election by arresting them on any charge and releasing them the day after nominations are closed. This would prevent them from standing as an electoral candidate. Don't we know this from past experience in Kashmir? A potential mechanism to mitigate this risk would be to identify relevant cases and conduct day-to-day expeditious trials at all stages from the trial court to final appeal. This should be complemented by a perusal of relevant cases by a committee similar to the POTA Review Committee. This would ensure the charges were substantial and not inspired by extraneous reasons. It is true that public opinion is tired of petty and major corruption. Yet, there is little stomach for ending the executive caprice and impunity in all aspects of governance. This has too long been the root of not only corruption but the maladies afflicting India's body politic. Double standards on impunity and corruption remain frightening. The case of Capt Satish Sharma is instructive. In the 1995 Petrol Pump Allotment Case, the CBI closed 15 cases against him, as the Union Government did not give permission to prosecute him. In September 2009, the Chief Justice of the Supreme Court called for an amendment to the anti-corruption law that requires prior sanction is granted by a competent authority for the prosecution of a public servant. The Chief Justice observed that the provision contributed to, "a climate of impunity where the requisite sanction is either delayed or denied by higher executive authorities." This was supported by the then Law Minister, who suggested Constitutional provisions, Articles 310 and 311 which shield public servants from dismissal, removal or reduction in rank need to be revisited. In September 2013, the Central Bureau of Investigation (CBI) described as "blasphemous" the Government's contention that it needed to retain the power to approve investigation against senior bureaucrats even in court-monitored cases. This was during the Supreme Court's probe into the Coal Block Allocation scam which stretched from 2004 to 2009. The Attorney General argued that the CBI needed prior sanction from the government before probing any officer of the level of Joint Secretary and above even in court-monitored cases. This allegedly intended to protect honest officers from harassment. This is evidence of the quiet burial to the Supreme Court's pronouncement in the Vineet Narain case where the Court dismissed the executive's arguments. According to the Code of Criminal Procedure (CrPC) Section 197 and its current interpretation and implementation, courts may not hear a case against a public official unless the Central or State government gives authorization for said prosecution who attempt to submit an FIR further impedes the pursuit of justice. The prosecution of public officials requires government sanction and simply filing an FIR brings threats and intimidation. This makes it nigh impossible for an individual to sue the State or Central government for abuses. They can only receive compensation at the discretion of presiding judges. Victims of abuses have little incentive to bring cases to achieve vindication of their rights. In turn, public officials enjoy de facto immunity for serious human rights abuses and corruption. The Union cabinet has kowtowed to the pretender to the throne. Little did the scion of the Nehru Gandhi family know that the British sentenced his esteemed great grandfather, Jawaharlal Nehru and his feisty grandfather Feroze Gandhi for prison terms of over two years. The two-year sentence roll call is instructive, while being illustrative, Dr Rammanohar Lohia, Mr. Mahavir Tyagi of the Congress, one of the ablest Parliamentarians of Independent India, Pandit Bhagwat Dayal Sharma the first Chief Minister of Haryana, Lal Bahadur Shastri, Prime Minister of India, Gopinath Bordoloi the first Chief Minister of Assam, C Subramanium, an efficient Minister of Food and Agriculture, Abul Kalam Azad, another great son of India, our first Education Minister, K Kamaraj, Mr. Fakhruddin Ali Ahmed former President of India. One can only imagine the consequences if Indira Gandhi had been mandated with this power during the Emergency. George Fernandes or AK Roy amongst many would never have made it to Parliament. This is particularly the case as there are no legal provisions that differentiate political offences from others. The road to hell is paved by the good intentions of a clueless chatteratti. As an old rock band put it, "It is a bad moon rising, trouble on its way." (The author is a Delhi based analyst)

Opinion Civilian control over military

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Opinion Civilian control over military By Ravi Nair The naivety in the air about the military and Military Intelligence (MI) is astounding in the stories and discussion in the New Delhi print and electronic media. The usual tunnel vision on an issue that goes to the heart of the health of democracy in India is troubling to say the least. The issue is not the sight of a few retired Army generals and sundry other ranks on the podium at a recent political rally. The poster-boy of Hindu fundamentalism and a few retired loose cannons shooting their mouths off in Haryana is not by itself troubling. Serving service personnel have every right to elect their legislative representatives and ex-servicemen certainly have their democratic rights to participate more fully in democratic political processes once they are out of uniform. However, once they don civvies, they have no business to be flaunting their regimental caps or other military insignia in the public space at political rallies. This is kosher at regimental get-togethers and dinners not in the din of political contestation in a democratic republic. General BC Khanduri of the Bharatiya Janata Party has carefully navigated these waters. Referred to the media by his former military rank he is not known to have campaigned politically with his regimental cap. This is as it should be. It is evident that a weak and pusillanimous political and civilian leadership in the Defense Ministry is responsible for such liberties being taken by those who should know better. It has been an enduring fallacy to claim that senior brass hats in the Indian military establishment have not periodically nurtured political ambitions. Pandit Nehru was careful to send Geneal K M Cariappa to then faraway Australia as High Commissioner immediately after the General retired. Nehru was none too happy with the gratuitous advice he was offered on economic and political issues. The 1962 war with China had its moments of civilian-military tensions and it is to the credit of both that these differences were not allowed to cross red lines. The 1971 war saw a rare synergy between the political and military leadership. Mrs Indira Gandhi calling the political shots mindful of the military's autonomy on the timetable of military preparedness. It is to the eternal credit of General TN Raina that during the Emergency of 1975-1977, he carefully insulated the army from calls upon it to enforce the notorious period of authoritarianism by some quarters. The Ministry of Defence under the NDA Government quite correctly put to pasture Admiral Vishnu Bhagwat for questioning the primacy of civilian control. The UPA government sagaciously similarly put paid to General VK Singh's efforts to stay on longer. However, this is not about individuals. The increasing role of the Indian army in internal security duties far away from international borders is worrying. The number of ex army generals and intelligence chiefs being appointed as Governors taking essentially political decisions in political crises in a state does not augur well for the future of civilian control and demarcation of spaces in a democratic republic. The earlier Indian Express story about a convoy of tanks moving towards New Delhi in January 2013 spooking the civilian establishment tells its own tale. The allegations of secret funds being used to topple elected governments, the bugging of conversations of civilian political figures, the conjuring up of army organised NGOs needs to be probed expeditiously and transparently. The practice of using the army and its resources in issues of development and other civvy areas which are the eminent domain of civil administration are even more troubling. This in many ways is old hat for anyone following events closely not only in Kashmir but also Northeast India. The only surprise is that it too took so long for these subterranean undemocratic practices to be exposed to good antiseptic sunlight. There is an increased resort to force by the armed forces of the country, whether they are under the control of the Union Defence Ministry or the Union Home Ministry. Populist public discourse by ill informed television anchors is creating an ambience for militarised security solutions to what are essentially political problems. In the past, professional Generals like BC Joshi had been careful to remind us about the limits of army deployment, not only in the heartland but in all counter insurgency roles. Giving one a nightmare are other troubling memories. Excerpts of conversations between one Lt Col Shrikant Purohit and others accused in the 2008 Malegaon blasts published by Tehelka in 2008 is a case in point. The conversations from the laptop of one of the co-accused were used as evidence against Purohit, a Military Intelligence (MI) official arrested in 2009. Another retired Military Intelligence Officer Maj (retd) Ramesh Upadhyay was suspected of training those who assembled the bomb that went off in Malegaon. He also headed BJP's ex-servicemen cell according to Tehelka in another story published in January 2011. Tehelka could not have put it better in the two follow up stories, speaking of Col Purohit it asked, "Whether he was a spy who turned rogue owing to ideological reasons will need to be investigated. It is also quite surprising that the investigating agencies chose to close in on Purohit and Major Upadhyay while letting off the hook other army officials who were heard talking on the tape." In the follow up story in 2011, Tehelka queried "There are a total of eight army officers, retired and serving, named in the tapes. At least four of them have an MI background. Apart from Lt Col Purohit and Maj Upadhyay, who are now in jail, topping the list is Col (retd) Hasmukh Patel. A JNU graduate, Patel was commissioned into the Infantry Jat Regiment and later detailed with the MI. After 25 years in service, he retired in 2007 and joined Reliance. ….". Col Shailesh Raikar is a retired commandant. He is said to be a brilliant officer who belonged to the Maratha Regiment. According to the tapes, Raikar was commander of the Bhonsala Military Academy in Nashik. He allegedly provided academy facilities to Purohit and other Abhinav Bharat members for weapons training. He too is under the NIA scanner. Others named in the tapes are Col Aditya Bappaditya Dhar (Parachute Regiment, now retired); Brig Mathur (full name not known, but he was apparently posted at Deolali Cantonment near Nashik); Maj Nitin Joshi and Maj Prayag Modak (in both cases, regiment not known)…." What is galling is that Col. Srikant Prasad Purohit continues to receive full salary, all perks and allowances from the Army according to an RTI. Hello, Hello. Has the Defence Ministry heard of the dismissal procedures under the Army Act? And the enquiry by the National Investigation Agency (NIA) into any possible greater conspiracy has seemingly run out of steam and is now a damp squib. In 2009, well known lawyer, Nandita Haksar in her book "Rogue Agent" published by Penguin detailed the story of the Operation Leech masterminded by an Indian intelligence officer, Col Grewal resulting in the extrajudicial killings of 6 Burmese freedom fighters. The Defence Ministry ordered an enquiry to be done by the CBI. The CBI was diligent but was stonewalled by the Army. So much for accountability! And of course, Major Avtar Singh involved in the killing of Jalil Andrabi had no olive green tooth fairy! Not just extrajudicial killings, in December 2011, the Hindu reported that, "Military Intelligence paid hundreds of crores of rupees for outdated software..." The story like so many others was lost in the caverns of Sena Bhavan in New Delhi. The Institute of Defence Studies and Analysis (IDSA) produced a Task force report, "A case for Intelligence Reforms in India. Among the many recommendations the most important related to the legal status of these agencies. It recommended the introduction of "legislation in Parliament for laying down the charters, organisations; and provide a legal basis for different tiers of accountability - executive, financial and legislative." What this columnist said in December 2012 in the SAFMA journal is never truer. "There is a need for a statutory framework for South Asia's intelligence agencies to build effective oversight and accountability mechanisms. Whilst national security is highly important to public interest, it is only one of many competing interests to be balanced for effective governance." Amen. Or should I say, Roger and over. (The author is a Delhi based analyst) News Updated at : Tuesday, September 24, 2013 Virus protection software Synergies Dating Seniors Senior dating sites Intelligence Free international call Business Opportunities Retired Military Business Cards New Delhi Virus protection software Synergies The Indian Web page design Advice chat rooms free Dinners Public Speaking Windows media player Free international call Security Senior dating site Rupees The Indian Web page design

Delusion of democracy

The sentencing of Sri Lankan journalist J.S. Tissainayagam is only one example of the repression of the media in Sri Lanka. The South-Asian community as well as large sections of the international community have allowed themselves to be deluded by what one would call a willing suspension of disbelief. It shows how an allegedly democratically re-elected government has used a very authoritarian way to deal with all kinds of dissent.

http://ibnlive.in.com/news/human-rights-activists-rally-for-lankan-journo/100481-2.html

Multipurpose national ID cards: Some concerns

The celebratory mood regarding the Multipurpose National ID Card project needs to be tempered with some introspection as to how it might impact data protection and privacy rights. In the absence of data protection laws and effective privacy-related legislation, the risk of misuse of the information held by the State should not be underestimated. Further, since much of the data will be collected and processed by private companies, ensuring accountability will be difficult if strong safeguards are not in place.

My organization, the South Asia Human Rights Documentation Centre (SAHRDC), had raised some of these concerns in a 2007 article, reproduced below:

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Multi-Purpose National Identity Cards: Protection or restriction of rights?

In May 2007, the Indian Government launched a pilot project on Multi-purpose National Identity Card (MNIC) and issued cards in select regions of the country in contemplation of later implementing a nation-wide identification system. The Ministry of Home Affairs (MHA) claims the identification system will strengthen national security while facilitating efficiency in e-governance. The system will gather the personal data of Indian citizens—including gender, age, marital status, permanent address, names of family members—into a national register, the maintenance of which will be outsourced to a group of technology corporations. Each citizen will be assigned a specific number that will be used as a reference for various socio-economic databases including passports, driving licenses, and for accessing health care and education. The government hopes that the MNICs, which will require regular editing and maintenance, will ease interactions between the State and the citizen, and keep track of illegal immigrants. However, upon further examination of the MNIC system, it is clear that it has flaws that could jeopardise the fundamental rights of India’s citizens.

Impact on the right to privacy

The right to privacy of citizens will be greatly compromised if MNICs are made compulsory. Although there is sometimes a tension between individual privacy rights and national security, international law and India’s domestic law expressly set a standard in tort law and through constitutional law to protect an individual’s privacy from unlawful invasion. Under the International Covenant on Civil and Political Rights (ICCPR), ratified by India, an individual’s right to privacy is protected from arbitrary or unlawful interference by the state. The Supreme Court also held the right to privacy to be implicit under article 21 of the Indian Constitution in Rajgopal v. State of Tamil Nadu. Moreover, India has enacted a number of laws that provide some protection for privacy. For example the Hindu Marriage Act, the Copyright Act, Juvenile Justice (Care and Protection of Children) Act, 2000 and the Code of Criminal Procedure all place restrictions on the release of personal information.

Privacy is a key concern with respect to the MNIC scheme as all of an individual’s personal information will be stored in one database where the possibility of corruption and exploitation of data is far greater than when having the information disbursed. Risks that arise from this centralisation include possible errors in the collection of information, recording of inaccurate data, corruption of data from anonymous sources, and unauthorised access to or disclosure of personal information. Other countries with national identification systems have confronted numerous problems with similar risks such as trading and selling of information, and India, which has no generally established data protection laws such as the U.S. Federal Privacy Statute or the European Directive on Data Protection, is ill-equipped to deal with such problems. The centralised nature of data collection inherent in the MNIC proposal only heightens the risk of misuse of personal information and therefore potentially violates privacy rights.

In consideration of the risks involved in the creation of a centralised database of personal information, it is imperative that such a programme not be established without the proper mechanisms to ensure the security of each individual’s privacy rights. Unfortunately, India’s proposed MNIC programme lacks any provision for judicial review at the present time. Without credible and independent oversight, there is a risk of ‘mission creep’ for MNICs; the government may add features and additional data to the MNIC database bureaucratically and reflexively, without re-evaluating the effects on privacy in each instance.

Discrimination as an outcome

Furthermore, the implementation of a national identification system represents a vast increase in police power—a troubling prospect given the state of Indian policing and the excessive control of the Executive in its functioning. Indian police and other security forces have a history of abusing their power, from torturing those in their custody and setting up fake ‘encounter deaths’ to more mundane abuses like petty corruption and harassment. Such police abuses typically go unpunished. Thus it does not take a large leap of imagination to expect that some in the security services would abuse the MNIC programme—whether to discriminate against minorities, carry out arbitrary arrests and detentions, facilitate the targetting of opposition groups by political parties in power, and perhaps even blackmail people. According to Simon Davies of Privacy International, national ID cards in virtually every country where they have been introduced have facilitated discrimination. India need only consider the history of national identity cards in other countries and the history of police misconduct within its own borders to realise the potential threats that the MNIC scheme poses. Any perceived advantages of the MNIC programme must therefore be weighed against these very real costs.

As the former Privacy Commissioner for the Australian state of Victoria Paul Chadwick argued, the responsibility of proving whether one is acting lawfully or not should be on the state, not on the citizen. He gives examples of precautions taken to prevent abuse of police power in countries with centralised personal identification databases including parliamentary scrutiny, judicial review, statutory regulators, and protection for whistleblowers, but he argues that even these mechanisms are not enough to completely keep bureaucracies honest.

In the United States, there is at present a debate concerning the implementation of the REAL ID Act, which is meant to regulate all U.S. state-issued identification cards at a national level. As Professor Mark Rotenberg of Georgetown Law Center explained in a report to the Electronic Privacy Information Center, new stronger precautions are needed because of evidence of abuse of police power through security measures such as the REAL ID Act and the Patriot Act. Rotenberg suggests that an effective way to monitor how government uses the information it collects is to have entities independent of the government conduct oversight, and he adds that the potential abuse of police power will remain until there is effective judicial oversight of the use of the collected information.

Issue of access

Although a widely-implemented MNIC programme risks violating individual privacy rights and facilitating security forces’ violation of other fundamental rights, an MNIC programme that leaves some people outside its reach carries its own risks of denying human rights. The MHA seeks to make the possession of the card a prerequisite for citizens who wish to avail of certain governmental schemes, such as passports, driving licenses, health care, school enrolment and the like, in order to encourage all citizens to obtain one. Thus, no card, no services.

Switching to an MNIC system for the delivery of social services could result in the denial of fundamental rights of equality to Indians left without a card. Under Articles 13 and 14 of the Indian Constitution, the fundamental rights of citizens must be protected by the state, and the government is required to follow a policy consistent with the goals of equal opportunity and justice for all. Millions of Indians are at risk of never receiving MNICs and therefore may be excluded from accessing certain services, denied the freedom to travel, or prohibited from certain employment opportunities. The likelihood that MNICs will not reach all of India’s one billion plus citizens is high considering the government’s historic inability to account for everyone within the national borders. This is illustrated by the shortcomings of India’s electoral photo identity card (EPIC). According to records obtained from the Election Commission by the Hindustan Times, over 186 million Indian citizens eligible to vote do not posses EPICs even though the programme was created over a decade ago.

Proponents of the MNIC programme argue that people without MNICs could use alternative means of identification in order to obtain benefits until they are incorporated into the MNIC system. But those without MNICs—most likely the poor and members of tribal groups—would almost certainly also lack other sufficient forms of identification for the simple reason that they have never needed any. There is also the related issue concerning directive principles of the state policy in Part IV of the Indian Constitution. Among other things, the directive principles provide that the government should make laws with a view to ensuring for each citizen equal rights to an adequate livelihood, and social and economic equality and justice. Denying minority tribal groups or the rural poor certain government services and entitlements based on the lack of an MNIC is contrary to the guidelines set out by the directive principles. The net result of the MNIC programme may be a denial of access to government services in such a disproportionate and discriminatory manner that it would amount to violation of the fundamental right to equality.

Conclusion

The concerns mentioned above do not necessarily mean that India’s planned MNIC programme must be discarded, but they signal a need for oversight to protect the privacy and equality rights of India’s citizens from the inherent risks of a national database for personal information. Implementing and maintaining the MNIC system will generate high costs along with risks to safety, security, privacy, freedom, and liberty. MNICs should not become compulsory until there is an established judicial overview to ensure that the privacy rights of India’s citizens are not unlawfully violated. It is important that India confront and manage these risks and consider all alternatives before implementing the MNIC programme nationwide.

Source: Human Rights Features

Lalgarh: The futility of the law-and-order approach

It is disappointing to see that the preferred State approach to the recent events in Lalgarh in West Bengal continues to be framed in terms of ‘law and order’. Whatever happened to the Central government’s 'blueprint', drawn up less than two years ago, that had envisaged various development initiatives in addition to security-strengthening measures in order to counter the Naxalite insurgency?

In the following article, published in August 2007 in the Rights and Development Bulletin of the Centre for Development and Human Rights (New Delhi), I had argued for a human rights approach perspective on the Naxalite insurgency. The problem is knotty but not irreparable. But the State must first break out of its security-first mindset…

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The Naxalite Insurgency – Time for a New Strategy

In early October 2007, the Central government drew up a “blueprint” to counter Naxalism, the armed Maoist movement that is spread across nearly half of India’s states. The plan reportedly includes various development initiatives in addition to measures to strengthen the security set-up in those areas.[1] It can only be hoped that the development approach will be give adequate attention and emphasis.

The Naxalite insurgency, for the most part, has been conceptualised as a security issue. Using that approach, the Indian government has taken a number of measures to stamp out the insurgency, but the movement shows no signs of abating. It must be recognised that it is a social, economic, cultural, and political problem just as much as it is a security issue. It is an outgrowth of wider societal ills, and therein lies the crucial human rights dimension of the conflict.

Taking the state of Chhattisgarh as an example, this article will recommend a number of reforms which, taken together, would significantly undermine the appeal of armed revolution.

Education

Over the past decade, education in Chhattisgarh has improved substantially. Since the launch of the Education Guarantee Scheme (EGS), according to which a new school is opened whenever the parents of 30 or more children petition the state government to set one up, literacy has improved for both males and females, enrolment has gone up, and dropout rates have been reduced.[2] Around 255,303 children are currently enrolled in EGS schools.[3] This is clear evidence that Chhattisgarh is moving in the right direction.

It is absolutely essential that the government of Chhattisgarh preserve and further these positive developments. The most obvious way to accomplish this would be to continue the highly successful EGS, and to ensure that the schools opened under the scheme maintain a high standard of academic quality. High pupil-to-teacher ratios are a major obstacle to educational advancement, so the government should take active steps to increase the number of qualified teachers in the state. This can be accomplished by offering higher salaries and better benefits to teachers, as well as by putting greater emphasis on the development and recruitment of teachers within Chhattisgarh. It is also vitally important to ensure that schools remain distanced from the ongoing Naxalite conflict, and that school buildings are not used by security forces for shelter or for any other purpose.

Health

Improving public health in Chhattisgarh is a complex undertaking, yet this goal can be achieved through sustained attention and investment. The most glaring need is to provide universal access to medical care— because Chhattisgarh’s dense forests and poor infrastructure make transportation difficult, many rural-dwellers are not within reach of basic medical facilities or trained health professionals. One promising strategy for rectifying this situation would be the continuation and expansion of the local-level community health programmes that have been so successful in reducing infant mortality. Even where it is financially or logistically impractical to build a hospital, the government should ensure that each village has immediate access to trained doctors and nurses, as well as to basic medical equipment that can be used to provide at least a rudimentary level of care. Training more healthcare professionals would therefore be advisable, as would offering better compensation packages to doctors working in rural areas and working in concert with international bodies and NGOs to supply medical resources to neglected areas.

Land reform

Although the underlying causes of the Naxalite movement are complex and multifaceted, it is clear that conflicts over land are at its core. The vast majority of India’s rural poor is landless and enjoys very little upward mobility.[4] Overall, the landless and the near-landless (owning less than half an acre of land) make up 43 percent of rural Indian households[5], thus creating a steep socio-economic inequity that supplies much of the impetus for the Naxalite movement.

Tenancy reforms, and land reforms in general, have fallen well short of their objectives, and the consequent discontent of poor rural Indians has been vital to the Naxalite resurgence. Legal ambiguities, inadequate enforcement, and landlords’ practice of rotating tenants to prevent them from acquiring ownership rights are obstacles that must be tackled for land reform to succeed.

Forest rights

The issue of forest management has also long been contentious in India, pitting the interests of developers and industrialists against the rights of indigenous tribal communities that depend on forests for sustenance. The long struggle of indigenous peoples to preserve their rights over ancestral lands has played a pivotal role in the recent spread of the Naxalite movement— most new Naxal recruits are reported to be poor tribals.[6] In the hope of alleviating the problems facing forest-dwelling tribals, the Central government adopted the Provision of Panchayat Extension to Scheduled Areas Act (PESA) in 1996. Although PESA presented a bold reform package on paper, implementation has left much to be desired, with many state governments yet to operationalise the reforms that the Act was to have brought about.

Similarly, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 sought to improve upon the draft Scheduled Tribes (Recognition of Forest Rights) Bill. It rightly made the envisaged reform measures more inclusive. However, this, coupled with the later cut-off date and higher land ceiling, gives state governments and local elites more room to exploit the situation.[7] Moreover, it is likely to create or worsen local conflicts between tribal communities and non-tribal indigenous peoples, and between indigenous forest-dwellers and those who have only recently settled on forest land, often at the expense of the traditional inhabitants.[8] These problems will be worsened by the Act’s failure to create a voluntary resettlement programme for forest-dwellers who wish to relocate, a provision that might defuse nascent conflicts over forest lands.[9]

The 1988 National Forest Policy, PESA, and the 2006 Forest Rights Bill were all steps in the right direction, but until they are fully implemented and given more legal muscle to safeguard the rights of vulnerable forest-dwellers, the deep-rooted conflict over forest lands will continue to feed into the Naxalite insurgency.

Economic opportunities

A lack of economic opportunities in the countryside is one of the main spurs to the expansion of the Naxalite movement. Alienation arising from heavy-handed government and corporation-run development projects, coupled with endemic rural poverty, has given the Naxalite insurgency much of its forward thrust in recent years.[10]

The National Rural Employment Guarantee Act (NREGA) 2005, which was intended to improve the economic conditions of the rural poor, suffers from a number of practical difficulties. These are exacerbated by corruption, confusion and mismanagement, which brought the programme to a standstill in some states.[11] Careful revision and substantial improvements in the implementation of the NREGA, coupled with making credit available and affordable, would go a long way in reducing rural poverty and taking the edge off the armed Maoist campaign.

Rule of law

The foremost responsibility of a government is to provide security to its citizens, but democratic institutions lose their integrity when a government seeks to impose this security by extra-legal means. The government must come to the forefront and cut off its support for the unaccountable Salwa Judum militia. More than that, it must put a definitive end to the culture of impunity by which the Salwa Judum has thus far been allowed to operate. Special courts should be set up to examine and prosecute human rights abuses by Salwa Judum members, including but not limited to extrajudicial killings, illegal detentions, and torture.

Citizens must also be assured the full range of civil and political rights without which democracy would not be worthy of the name. One recent piece of legislation— the Chhattisgarh Special Public Security Act 2005— is sharply inimical to this end, and will only serve to clamp down on essential freedoms and exacerbate the climate of fear and arbitrariness that allows the Naxalite insurgency to thrive.

Conclusion

Because it is the product of a complex confluence of factors, the law-and-order approach, by itself, will not help erode the Naxalite armed movement. This does not, however, mean that the problem is irresolvable. Through a comprehensive, holistic, carefully crafted and implemented series of positive steps aimed at improving the conditions of its poorest citizens, the Indian government can chip away at the foundations of rural discontent upon which the movement is built.

Success in combating the Naxalites cannot be attained through strictly law enforcement means, and the government must therefore break out of its security-first mindset if it hopes to quash the insurgency. The Naxalite movement is shadowy, decentralized, and elusive: it cannot be overwhelmed with a crushing display of force. It will not die with a bang, but it might fade if the problems that fuel it are meaningfully addressed. That is why the human rights perspective on the Naxalite insurgency is so instructive: it illuminates the underlying causes of Naxalism rather than the effects. The Indian government would do well to analyse the problem through the lens of human rights, and use a broad-based, non-security strategy to resolve it.

Notes

1. Aloke Tikku, “Centre declares war on Naxals”, Hindustan Times, 3 October 2007.
2. United Nations Development Programme (UNDP) and Government of Chhattisgarh, “Human Development Report: Chhattisgarh 2005,” 2005, p. 104. Available at http://www.undp.org.in/index.php?option=com_content&task=view&id=239&Itemid=322.
3. Ibid.
4. Andrew Foster and Mark Rosenzweig, “Democratization and the distribution of local public goods in a poor rural economy,” Bureau for Research and Economic Analysis of Development (BREAD) Working Paper No. 10, January 2003, at p.3. Available at http://www.cid.harvard.edu/bread/papers/working/010.pdf (last accessed 15 October 2007).
5. Patralekha Chatterjee, “Land reform in India: Necessary but not sufficient to fight poverty,” D+C Development Cooperation, March 2002, at http://www.inwent.org/E+Z/1997-2002/de202-8.htm (last accessed 15 October 2007).
6. “A Spectre Haunting India,” Economist, 17 August 2006. Available at http://www.economist.com/world/asia/displaystory.cfm?story_id=7799247 (last accessed 15 October 2007).
7. Ashish Kothari, “Rights and promises,” Frontline 23(14), 15-28 July 2006. Available at http://www.flonnet.com/fl2314/stories/20060728000706400.htm.
8. Ibid.
9. Ibid.
10. Rajat Kumar Kujur, “Underdevelopment and Naxal movement,” Economic and Political Weekly, 18 February 2006.
11. “Staff shortage, delayed wages under NREGA in Ranchi,” The Financial Express, 25 June 2007. See also Manoj Prasad, “Corruption clouds UPA job scheme,” The Indian Express, 23 May 2007.