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An agenda for
engagement A broom and a nudge |
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Modi-Xi summit in
perspective
A yearning for pork
chops
Of encounter
killings, SC & human rights
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A broom and a nudge A
significant section of the country's ruling elite will today wield the broom - albeit a spanking new one, in white-collar clothes. They will be responding to Prime Minister Modi's call for a clean India on the occasion of Gandhi
Jayanti. Of course, many among the recalcitrant bureaucracy don't see it as a call, but an order on the launch of the Swachchha Bharat
Abhiyan, another of the campaign-mode initiatives of a Prime Minister who likes to promise big. The immediate point of concern on the day seems to be the loss of a 'holiday' for government employees as well as a large number of students and teachers. But there is a host of questions the initiative raises. Foremost among the concerns is the filth India seems to live in, which everyone will agree is unacceptable. Second is the debate over launching initiatives as campaigns, or as a simple matter of governance. Third is the Prime Minister's penchant for forcing his audience to engage with him directly over what he sees as priority. The cleanliness campaign may be assessed at three levels. First, people's homes: As charity generally begins at home, this is a place where much motivation is not required. Second, at the level of cities, towns and villages. This is where civic systems and infrastructure matter, and not how you and I behave. The third area is public spaces such as bus stands and marketplaces. This is where people's conduct matters, and therefore the (only) sphere where the campaign may help. The call to streets is thus more about making an emotional appeal than serving a material purpose. A lot of this was also seen in the Prime Minister's US visit, where he made much of the Ganga clean-up campaign and India's commitment to climate and environment. The facts are that the government has told the Supreme Court that cleaning the river will take 18 years and the country's stand at the UN on environment was essentially that ‘developing countries’ don’t have the same responsibility as the developed. Reel life versus real life?
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Happiness is good health and a bad memory. — Ingrid Bergman
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Capture of German merchantmen Usury in India
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Modi-Xi summit in perspective
RODERICK MACFARQUHAR, Professor of history and political science at Harvard, is an internationally respected authority on China. Way back in the 1980s he had published a three-volume account of the origins of the Cultural Revolution in that country. In the last of these volumes he had an elaborate chapter tellingly titled “Mao’s India War”. He did not refrain from pointing out what had gone wrong on the Indian side but was masterly in refuting Neville Maxwell’s perverse thesis that the brief but brutal border war in the high Himalayas in 1962 was “India's China War”. The reason I am stating all this is that in a highly noteworthy recent interview he has not only put in perspective the September 17-19 summit between Prime Minister Narendra Modi and the visiting Chinese President Xi Jinping but also pointed out what it really means to the future of relations between these two Asian giants. This should be compulsory reading for all Indians interested in China, and especially for those with any say in the making of New Delhi’s China policy. Even at the height of bonhomie and warmth between the two leaders on the riverfront of Sabarmati in Ahmedabad — with the honoured guest clad in an Indian-style jacket presented by Modi — many in this country had felt troubled. For exactly at that time a serious and large Chinese incursion into the Chumar area in the Ladakh region to the south of the Line of Actual Control was taking place. The number of Chinese troops on Indian territory was as large as 1,000. To his credit, Modi ordered that 1,500 Indian soldiers should face the intruders. Some Indians tried to comfort themselves with the notion that the unacceptable incident might be the handiwork of the People’s Liberation Army commanders acting on their own. This was absurd. For it had been clear for some time that Xi, the most powerful President of China since Deng Xioping, controlled the PLA. He was the Chairman of the Military Affairs Commissions of both the Chinese Communist Party and the government. Modi publicly took up the border issue and at the joint press conference, demanding its “early solution” as well as clarification of the LAC to avoid repeated incidents like the one at Chumar then taking place. Xi did not reply at the same forum but used his address to the Indian Council of World Affairs to plug the standard Chinese line: that the border issue was left by history and that both China and India were competent enough to settle minor incidents that occurred because claims on where the LAC lay differed. Macfarquhar confirms this analysis and adds that Xi has repeatedly emphasised the party leadership of the military. Making excessive concessions to India would not be in keeping with the “profile Xi has established with the Chinese public, which is as a strong nationalist leader”. What the eminent Sinologist had to say further needs to be quoted fully and underscored. “If my reading is right, Xi was basically telling Modi that you may be a strong leader, but I am telling you that we have got the advantage of the terrain on the border and we can exploit it”. What Macfarquhar did not say but is a reality we cannot afford to overlook is that the Chinese do not consider us to be in the same league as they. Furthermore, they are proud of the tremendous difference between their economic and military power and India’s. This does not mean that China either wants or needs a war with this country. What it does want and would try to ensure is that this country, like every other, is unable to challenge or undermine Chinese territorial sovereignty, strategic interests and core concerns. For this reason China is carefully watching the outcome of Prime Minister Modi’s talks with President Obama just as it has watched the development of close relationship between India and Japan after Modi’s visit to Kyoto and Tokyo. India has its own compulsions. It prefers to be a strategic partner of the United States but not an ally. Japan needs India as a major Asian ally and has the US as a “back-up”. Japan has begun to be worried about the safety of its massive investments in China. That should explain why its promise of investing $35 billion in India over five years is much greater than China’s $20-billion commitment over the same period. Yet China does want greater economic engagement with India while retaining its ability to crack the whip on the disputed India-China border when necessary. One instrument for this is China’s comprehensive help and support - including in nuclear and missiles arena — to its “all-weather friend”, Pakistan. On the other hand, Xi has promised to support India’s claim to be a full member of the Shanghai Cooperation Organisation of which China and Russia are the leading members. One more area where China will find it necessary to be on the same page as India is the post-US Afghanistan where a new government has taken over. Uighur rebels in Xinjiang are getting a lot of support from the Islamists on the Afghan-Pakistan border. Policymakers in South Block will do well to pay heed to Macfarquhar's view that chances of a boundary agreement between India and China are “very slim”. Quite apart from the fact that the Chinese are totally opposed to making any big concessions, they have already indicated that it is no longer the question of a “swap” that Zhou En-lai had proposed in 1960 under which India could have the McMahon Line in the Northeast by ceding Aksai Chin in Ladakh to China. The Chinese are now demanding the Tawang area even though they are claiming the entire Arunachal Pradesh. This India cannot accept. Any hope that there might be a clarification and confirmation of the LAC is also unrealistic. For the present confusion suits Beijing very well.
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A yearning for pork chops In one such home, there was a very pretty girl, half Irish, half Indian. The Bursar's son first befriended her by bringing her pork chops, which she loved, from his mother’s kitchen, and then seduced her. She became pregnant and was bundled off to a convent in Calcutta. She gave birth to a baby boy, who was put out for adoption, and she was married off to an elderly Muslim widower. He was good to her and they had a baby girl. The only shortcoming was that, being in a Muslim household, she was denied her favourite pork chops. The man died. The girl lost no time in getting married to a Muslim businessman. He as a kind man and took her mother in as well. The family took both the women in with open hearts and gave them a lot of space. The one strict taboo was on pork and alcohol. The mother adjusted well but was troubled by her intense longing for pork chops. She would dream of biting into a plump, juicy pork chop and then wake up with a start, knowing it was a hopeless dream. Were she to indulge in her fantasy, she would lose the security of her son-in-law’s home. In the meantime, her son grew up to be a famous and successful artist, who was now doing portraits of the royal family. Like most adopted children, he felt a strong urge to meet his biological parents. His father, as big a scoundrel as ever, immediately tried to borrow a thousand pounds from him. The son now turned his attention on his mother. With her family's permission, he took her out to lunch. He looked into her face, held her hand in both of his, and told her that he realised the difficulties she had been through and that these had now all come to end. She had been looking abstractedly into the distance. Suddenly she turned to him and asked: “Could I have some pork chops?” The chops arrived and as she chewed on them a blissful smile spread over her face. He prattled on about the luxuries that he would give her, the best of clothes, the best of food and a splendid home. “Will you come with me?” he asked anxiously. She looked back at him, a beatific smile wreathing her face and asked: “Will you give me pork chops?” He was shocked out of the idyllic dreams that he had been weaving for the future. The tears came to his eyes as he felt the full force of her long years of deprivation, symbolised by her yearning for pork chops. “I promise you, you can have all the pork chops in the world.”
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Of encounter killings, SC & human rights The recent judgment of the Supreme Court laying down guidelines for the police to follow before and after encounter killings will impact the authority and scope of the National Human Rights Commission
On the September 23, 2014, the Supreme Court issued its judgment in a petition filed in 1999 by the PUCL, laying down 16 guidelines. These have been declared as law under Article 141 of the Constitution, for the police to follow before and after action that leads to the deaths euphemistically described as "encounter killings". Since a police that can get away with murder will commit every lesser crime as well, and violate other human rights, stopping this barbarity has been a priority for the National Human Rights Commission (NHRC) and a few brave NGOs. They have ploughed a lonely furrow, and while it is good that the Supreme Court has now stepped in, it is a serious concern that, while most of its guidelines do not go beyond those of the NHRC, others will make it much harder for the Commission to monitor investigations, to conduct its inquiries, or to offer redress.
These problems stem from the Court's fifth guideline, that the "involvement of the NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to the NHRC or the State Human Rights Commission, as the case may be." In its 10th guideline, the Court has laid down that, "Six monthly statements of all cases where deaths have occurred in police firing must be sent to the NHRC by DGPs." Read together, as the police are likely to do, this means that DGPs simply have to send a report every six months to the NHRC, as until 2010, its guidelines required them to do. It was an anomaly that all deaths in jails, most of which are from natural causes, had to be reported to the Commission within 48 hours, whereas it accepted a delay of six months after an encounter. Lost vital evidence
Not only was it much harder to initiate an inquiry after such a long gap, in which vital evidence would be lost, it was also impossible to establish that indeed the DGPs were collating and sending data on all encounter deaths in their states. The Commission then revised its guidelines to require the SPs concerned to report to it within 48 hours deaths in police action in their jurisdiction. Since this made officers personally accountable, they have complied. For reasons not at all clear, the Supreme Court has turned the clock back. The Court's fifth guideline, of course, requires information to be sent "without any delay" to the NHRC or an SHRC, but this is vague. What constitutes delay? More than 48 hours, as the NHRC holds, or more than six months, the deadline the Court lays down in its tenth guideline? Is this "information" meant to be actionable? If it is, the NHRC can do nothing on it until it receives the six-monthly statement, which will contain the reports which are essential for any meaningful action. What is worse, the police can now choose to send the immediate information either to the NHRC or the SHRC. This will have disastrous consequences. Very few SHRCs can or do investigate encounter deaths thoroughly. In several cases where the NHRC has held that the encounters were fake, the State has reported that its SHRC had also taken cognizance, and closed its files, accepting the magisterial inquiry and police report without question. As the NHRC became more rigorous in its examination of encounter killings from the late 2000s, some police forces started to report deaths first to the local SHRC, and to the NHRC only after the SHRC had taken cognisance. This was to pre-empt investigation by the NHRC, which, under Section 36 (a) of the Protection of Human Rights Act, is debarred from taking up a case of which an SHRC has taken prior cognizance. This practice will now become rampant, with the police claiming that they are acting in accordance with the law as now laid down by the Supreme Court. The NHRC will simply get the six-monthly reports, which for it, the victims, and the cause of justice, would be pointless, since it could not act on them. The Supreme Court has taken this view because it believes that the NHRC need not be involved "unless there is serious doubt about independent and impartial investigation." Firstly, this circumscribes, and almost abrogates, the power conferred on the NHRC by the Protection of Human Rights Act to "enquire suo motu, or on a petition presented to it by a victim or any person on his behalf" into any complaint of a violation of human rights or abetment thereof, or negligence in the prevention of such violation by a public servant. Secondly, it does not spell out in whose mind the doubt must arise, or what the threshold of scepticism should be, before the Commission can intervene.The NHRC has found that almost every encounter raises serious doubts. Magisterial inquiries, except in a few states in the South, are perfunctory; they rely entirely on the statements of the police, and seldom analyse other evidence or the implications of its absence. Investigations by the police are a travesty. The inquiries the CID carries out under the NHRC's guidelines, and at its prodding, are often cynically biased. In several cases, after receiving CID reports absolving policemen, the NHRC has summoned the investigating officers and raised questions which they had either ignored, or to which they had no reply. SC guidelines Given this sorry record, states will leap to obey the letter of the Supreme Court's guidelines. They will conclude their investigations within six months, file the final report to the court, and convey this twice a year, as the Supreme Court asks them to do, to the NHRC, which will then be hamstrung, both because the SHRC would in most cases have taken prior cognizance (and may have closed the case) or because the court concerned had accepted the final report. Wary of the NHRC's increasingly strict scrutiny over the last few years, the police in most states had cut back sharply on encounter killings. With the NHRC off their backs, normal business may be resumed. The Supreme Court has, of course, laid down in its 15th guideline that "No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/recommended only when the gallantry of the concerned officers is established beyond doubt." Reviewing awards This is a long-standing guideline of the NHRC, issued to take away a venal temptation for these killings, but which it found almost impossible to implement. More than a year usually elapses before it gets all the reports it needs for a final determination; by then, armed with the absolution given by a magisterial inquiry, a state has usually conferred the award. In some of these cases, having established that the encounter was fake, the NHRC has asked for the award to be reviewed, and met a stone wall. The court's guideline would have been effective if it stipulated that these rewards could be given only after the NHRC had agreed that the encounter was genuine. Now, however, this will be almost impossible, since the NHRC is likely to be side-lined or bypassed by the court's other guidelines in the investigation of deaths in encounters. Relief for the next of kin A final point of worry. The NHRC has always held that after any extra-judicial killing committed by public servants, two duties devolve upon the State — to punish the offenders and to offer redress to the family of the victim. It was rarely able to get the State to act against policemen, but, invoking its power under Section 18 of the Act to recommend both compensation and interim relief, it was much more successful in providing some relief, usually Rs 5 lakh, for the next of kin. In its 12th guideline, however, the Supreme Court has laid down that "As regards compensation to be granted to the dependants of the victim who suffered death in a police encounter, the scheme provided under Section 357A of the Code must be applied." In future, then, compensation would have to wait until a court holds that guilt had been established. That will be in the rarest of rare cases; in most cases, there will be no prosecution, and therefore no sentence, even though the Supreme Court has laid down in its second and eighth guidelines that an FIR must be filed on these deaths, and "after full investigation into the incident, the report should be sent to the competent court under Section 173 of the Code". Hypocrisy of the police That is exactly what happens now; the police do indeed file FIRs, under Section 307 of the IPC — attempt to murder — and Sections 25 and 27 of the Arms Act — the possession of prohibited weapons and their use. What is investigated is the claim that the dead man or men had tried to murder the policemen who had killed them in self-defence; since the accused are dead, the court is told that charges are not being pressed and the final report usually accepted without challenge. There is nothing in the judgement that will force the police to change this cruel hypocrisy, because the only institution that exposed it, the NHRC, will now be kept out from the investigation of the bulk of these cases. Sadly, not only will it be unable to expose this vicious and continuing charade, it will not even be able to offer relief to those desolated by these murders. The bereaved, often also made destitute, will be denied even this partial solace. That is a huge pity. Safeguarding rights
— The writer is a former Member, National Human Rights Commission and a former Indian diplomat
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