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Thanks to Article 370, Kashmir is Not Yet Independent

Adhir Ranjan Chaudhury has raised an important question in Lok Sabha: Is Kashmir an internal matter of India? The question has been raised in the context of the dispute raised by India before the United Nations, which makes Pakistan an interested party in Kashmir. This is indeed a factual position and the UN still monitors Kashmir. However, even if there was no involvement of the UN in Kashmir, it wouldn’t have been an internal matter of India.

Kashmir was an independent state, which relinquished its sovereignty only partially to India. It formed a separate constituent assembly, which was formally dissolved after fulfilling its purpose. The Indian Constitution applies to Kashmir only through the operation of Article 370 of the Indian Constitution. There is no other legal way for India to interact with Kashmir. The constituent assembly of Jammu & Kashmir (J&K), however, didn’t have the power to declare Kashmir a fully independent state not forming part of Union of India under Article 1 of the Indian Constitution. The power to declare Kashmir free rested solely with the Indian president on the recommendation of the constituent assembly of J&K under Article 370(3) of the Indian Constitution. However, since there was still a scope of Kashmir gaining freedom from Indian control under Article 370(3), Article 370 was deemed to be a temporary provision. The constituent assembly of Kashmir dissolved in 1956. Since there was no scope of Kashmir gaining a completely independent status in 1956, for the external aggression threat that Kashmir faced continued unabated, the constituent assembly didn’t recommend abrogation of Article 370 before its dissolution, and Article 370 thus gained permanent status. This was a boon for India because India then became the master-cum-guardian of Kashmir, which fiduciary relationship it has used persistently to keep Kashmir dependent upon itself. However, the separatist voices in Kashmir, who never accepted Article 370 at the first place, continued to militate against India. Now let us look at what has changed in India-Kashmir relationship after 5th August, 2019.

Well, fortunately for India, nothing has changed, and that’s only because the less intelligent people of BJP, the ruling party, have committed so many illegalities that all their executions have been rendered null and void. Had they acted legally, Kashmir would have gained independence from India yesterday. So, let me first state what was the legal way of making Kashmir independent. First and foremost, Kashmir should have constituted a new constituent assembly, which should have then recommended the abrogation of Article 370 of the Indian Constitution to the president of India. Thereafter, the president should have declared Article 370 quashed. Now let us see what has been done. The president of India vide “The Constitution (Application to Jammu and Kashmir) Order, 2019” superseding “The Constitution (Application to Jammu and Kashmir) Order, 1954” extended the whole of Indian Constitution to Kashmir and, of course, quashed Art 35A giving power to the J&K legislative assembly to define permanent resident of Kashmir. The above also claimed to amend the Indian Constitution by substituting “legislative assembly” for “constituent assembly” in Article 370(3) in Indian Constitution, by construing reference to Sadar-i-Riyasat of J&K as reference to Governor of J&K, by internalizing the external reference to Indian Constitution in reference to J&K, and by enlarging the scope of the word “Government” in reference to J&K.

First, “The Constitution (Application to Jammu and Kashmir) Order, 1954” is under challenge in Supreme Court of India for being illegal, for it amended the constitution by a mere presidential order. Now that litigation would become infructuous, but “The Constitution (Application to Jammu and Kashmir) Order, 2019” would be challenged on the very same ground. Secondly, the extension of the whole of Indian Constitution to J&K and the amendments in the constitution thereof tantamount to implied annulment of J&K Constitution, which is non-est as no constitution of the world can annul another constitution by making changes in itself. Thirdly, the substitution of “constituent assembly” with “legislative assembly” in Article 370(3) of the Indian Constitution is complete non-sense. The role of the two is entirely different. Constituent assembly cease to operate after fulfilling its function whereas legislative assembly has to pass laws perennially. If legislative assembly is to be equated to constituent assembly, there would be a new constitution everyday. This amendment is laughable. Only a BJP minister could have though of it. I think they thought they would surreptitiously revive the constituent assembly of J&K though its legislative assembly and make it recommend abrogation of Article 370 to the president, which, ironically, would have meant complete independence of Kashmir. However, the present Indian government has no respect for law. Their sole aim is to fully acquire J&K without the will of Kashmiris. This they intended to achieve by re-organising J&K into two union territories; i.e., Ladakh and J&K. The re-organisation of J&K has no legal basis whatsoever. If India thinks their deemed abrogation of Article 370 has given them authority to change the territorial boundaries of J&K, they are sadly mistaken. Abrogation of Article 370, which I repeat has not happened, would have rather made Kashmir independent from the control of India.

However, at the same time, India does have the power to do whatever it wants to do with Kashmir. That is only because it has successfully run an international propaganda that Kashmir is an internal matter of India even though the true legal position is altogether different. Another reason for Indian success is an almost non-existent political leadership in Kashmir. All moderate leaders of Kashmir, whether separatists or otherwise, are under the protection of Indian government, and those who are not, are mostly closely connected to Pakistan. Even militants have meagre presence in Kashmir irrespective of Indian claims. However, the general public in Kashmir is badly dissatisfied. India wants to patronize them, and they snub any such Indian attempt. The latest by India is also in sync with the same patronizing attitude. They first want to rape and then marry assuming that the bride is always faithful. This will not end soon. You can’t isolate anybody for too very long however much the targeting. Kashmiris are even otherwise smart people. It is generally difficult to lead smart people. But, sooner or later, the smarter among the smart become leaders, and a strong Kashmiri leader would also emerge, sooner or later. The carrot and stick patronizing of India can’t succeed for too long. Most of the ill-feelings perpetrate as a result of denial of justice. There is still hope because the recent actions of India have not been tested in a court of law. I hope the better sense will prevail there.

P. S. Please read the following tweet thread in conjunction with the above article: https://twitter.com/Ankur_Mutreja/status/1161168206783868928

AADHAAR Judgment Analysis

AADHAAR judgment analysis

My only objective of this AADHAAR judgment analysis is to consolidate arguments on the question of punishment in case of any contempt of court proceedings and to highlight errors apparent on the face of record in the judgment. I am only analysing the majority judgment by Sikri J. I have committed multiple contempt of court in my tweets dated 26.09.2018 at the following address: https://mobile.twitter.com/i/status/1044931638881341440. Interested persons can read them. I have called CJI a terrorist, part of the judgment a joke, judgment on the whole a conspiracy of executive plus judiciary to force AADHAAR, and the judges subscribing to the majority judgment as legally illiterate.

The main issues with respect to AADHAAR were twofold: 1. Collection of biometric information, especially IRIS, is an attack on privacy and 2. The biometric information so collected along with other demographic and personal information at such a large-scale for identification of people, can be misused by the government in setting up a surveillance state. It has been noted in the judgment that petitioners conceded that the collection of biometric info per se may not infringe privacy. (I don’t know how it could be so conceded, but the court is not bound by the admissions of parties when the issue involved is of such enormous public interest. In fact, the court should have suo moto converted these petitions into PILs and allowed general public to present their submissions through a court appointed amicus curiae.) The above two concerns arose in the context of AADHAAR Act. Another legislation making AADHAAR mandatory is section 139AA of the Income Tax Act. In reference to section 139AA, the concern was slightly different. The first concern with respect to infringement of privacy by collection of biometric information was same, but the second concern with respect to surveillance state was absent as section 139AA has limited aim of protecting revenue, which it intends to achieve by linking PAN to AADHAAR, thereby protecting revenue lost due to duplication of or non-mentioning of PAN numbers.

Any enquiry into privacy infringement is carried out in three stages: 1. enquiry as to existence of a legislation infringing privacy, 2. enquiry as to legitimate state interest in bringing into force such a legislation, & 3. enquiry as to the proportionality of infringement of privacy to the state interest intended to be achieved through the legislation. Strictly speaking, the concern of surveillance state is part of the third stage of the enquiry, i.e. proportionality. However, the court dealt with it separately, albeit reminding itself time and again that the two concerns of surveillance state and proportionality are inter-linked. My main issue is with respect to treatment of section 139AA in the judgment. However, it can’t be tackled without referring to the judgment with respect to the AADHAAR Act. Moreover, I have charged judiciary with conspiracy, which has been done mainly in reference to judgment with respect to the AADHAAR Act, so the relevant aspects from both parts of the judgment are discussed hereinbelow.

As far as the infringement of privacy by collection of biometric information is concerned, there was an argument from the respondent that the collection of biometric information doesn’t raise any expectation of privacy as the information collected, i.e. fingerprint plus IRIS, was minimal info, and that the same is already being collected for issuing other documents like passport, driving licence, etc. The contention of no expectation of privacy was rejected with respect to the AADHAAR Act holding that the information was not only being collected but also being processed for the purpose of authentication and the valid privacy concerns can arise thereon, and also that the state was collecting this data for further processing and therefore enquiry into the issue of proportionality has to be carried out in any case. However, the contention was upheld with respect to section 139AA, I. T. Act, though not in so many words, but the keen reading of para 420 of the judgment will make it obvious. The observation of the court that fingerprint and IRIS is minimal info is an error apparent on the face of the record. Simple reading of para 53(1) & 54(4)(b) of the judgment makes it abundantly clear that fingerprint and IRIS are being used alternatively, not jointly, to identify a person. Thus either fingerprint or IRIS, not both together, is minimal info. The submission of the respondent that the said minimal info was already being collected for issuing other documents like passport and driving licence, is a white lie. I can vouch that no IRIS is collected for obtaining driving licence as I have recently got my driving licence renewed. And as per my belief from the information obtained from the internet, there is no biometric requirement whatsoever at present with respect to passports. There were talks of incorporating AADHAAR into the airport management system, but the same can’t be done now as the judgment under analysis has limited the scope of AADHAAR Act only to “benefits” and “services” read ejesdum generis to “subsidies.” In fact, the UK has shelved IRIS after 2011. Some Muslim countries like UAE, Jordan and Pakistan are using IRIS only for limited purpose. The USA is using it in a limited sphere for crime detection. Canada and Netherland are using it for a limited purpose at airports. No country, whosoever, is using IRIS at a scale that India is using it under AADHAAR. (Please visit this Wikipedia page: https://en.m.wikipedia.org/wiki/Iris_recognition.) This part of judgment has been obtained by the respondent by playing fraud upon the court, which qualifies as an error apparent on the face of the record. If it is to be assumed that the court took judicial notice of this fact, then also it is an error apparent as judicial notice has been taken on wrong presumption of facts.

Even though the court clearly reached a finding that there is no infringement of privacy by linking AADHAAR to PAN, yet it analysed privacy infringement in reference to section 139AA. However, it was only for namesake. There can be no doubt about the existence of section 139AA of the Income Tax Act, thus the first enquiry was obviously answered in affirmative. The second enquiry about legitimate state interest was also answered in affirmative holding protection of revenue as legitimate state interest, which I am not disputing as there is no error apparent in reaching such a conclusion. However, enquiry with respect to proportionality was just not carried out at all. The judgment discusses the concept of proportionality in great length at different places. I am quoting hereinbelow from para 360 of the judgment:

The cost or burdens of the measure must not clearly exceed the likely benefits, which can be described as ‘ends’ or ‘ends-benefits’ proportionality.

The likely benefit from linking of AADHAAR and PAN is a few crores of extra revenue. However, the burden of the measure is infringement of privacy by collection of IRIS of around 30 crores PAN holders as of 2017, of which 5 crores file returns. This means the 25 crores PAN holders who have obtained PANs for reasons other than filing returns will be unnecessarily burdened with infringement of privacy without any nexus with the benefit of protection of revenue, and secondly, even of those 5 crores who file returns, the duplicate or fake PAN holders detected by the government were only 11 lakhs as in 2017 as per this news reports:
http://www.freepressjournal.in/india/over-11-lakh-pan-cards-deactivated-this-is-how-to-check-if-yours-is-valid/1117041. A similar figure of 10.52 lakh individual fake card holders was also provided to the court. The court mentioned this figure in paragraph 126 of the earlier Bijoy Viswam judgment quoted in para 422 of the judgment under analyses. However, it didn’t carry out any proportionality analysis in accordance with the above quoted portions of para 360 of the judgment. The analysis is however simple and straight forward. Even if we were to assume the detection of fake PANs will increase five times (though de-monetisation figures released by RBI tell there is hardly any black money in India), you can’t infringe privacy of 30 crores people to detect 50 lakhs PAN, which would lead to an increased revenue of a few hundred crores at the best. This linking of AADHAAR and PAN is deja vu of de-monetisation. If the court had carried out any analysis whatsoever, it would have been an error of law, but the missing analysis is conspicuous by its absence in the judgment, but a finding has been reached favouring proportionality. This is no reasoned judgment and tantamount to an error apparent on the face of the record. In reference to the above, in my tweets, I have questioned the legal acumen of the judges subscribing to the judgment under analysis by asking them if they even understand the meaning of proportionality. This tantamount to calling them legally illiterate. In fact, such an analysis needed to be carried out while discussing manifest arbitrariness under article 14 as well, but there the court quoted Bijoy Viswam on “intelligible differentia”. I have called it a joke in my tweets.

Last but not the least, in my tweets, I have called the judgment on the whole a conspiracy of the executive plus judiciary to force AADHAAR, which tantamount to corruption, and therefore I called the CJI, who subscribed to the judgment under analysis, a terrorist. Let me state in what context such contemptuous statements have been made.

I have a serious issue with the presentation made by the UIDAI before the court as such tantamount to the determination of facts sans cross-examination: questions asked by the petitioners’ counsels were not cross-examination questions. However, irrespective of the illegality of the judgement with respect to the AADHAAR Act, its effect is fine because “benefits” and “services” in section 7 & 8 of the AADHAAR Act have been read down to be ejesdum generis to “subsidies”, thereby narrowing the operation of AADHAAR Act to only the marginalised sections of the society. This per se would have alleviated the surveillance concerns if all AADHAARS except those of the marginalised sections had been cancelled. But no AADHAAR has been cancelled inspite of multiple opportunities to do so.

As per the PIB release dt. 04.04.2016, UIDAI issued 100th crore AADHAAR on the even date (http://pib.nic.in/newsite/PrintRelease.aspx?relid=138555), which was only a few days after the AADHHAR Act was notified. So, the majority of AADHAARs were issued illegally before the notification of the AADHAAR Act. Section 59 of the AADHAAR Act makes all these illegal AADHAARs legal. The interesting thing is that the AADHAAR Act was passed as a money bill, and thus all illegally issued AADHAARs were made legal by Lok Sabha alone! In the portions of the judgment dealing with the challenge to the AADHAAR Act on the question of it having been passed as a money bill, there is no reference to section 59. I am not a tax expert, but it’s unpalatable that section 59 can be passed as a money bill. Btw, the arguing counsel wrt this issue was the ex-FM, under whose regime post 2012, the process of issuing illegal AADHAARs continued unabated. I find it a serious conflict of interest. The fact judiciary didn’t ask the ex-FM to recuse points towards a conspiracy.

In any case, there was a separate challenge to section 59 on the premise that pre-2016 AADHAARs were issued sans consent and section 59 can’t validate them retrospectively. The challenge was rejected, but an alternative proposition was made that those who were issued AADHAARs sans consent could opt out of AADHAAR enrolment now. I find it very convenient for the government to issue illegal AADHAARs first and then validate them retrospectively, and then the court gives the option to opt out, which option would of course will never be exercised because of the ignorance clubbed with the inertia created by the mandatory linking of AADHAAR with PAN. How can court be so oblivious to practical realities? Informed consent means consent given with complete knowledge. Where is the scope for a common man to gain knowledge of such technicalities as laid out in the judgment? I doubt if even lawyers and professors of law have understood the judgment. (I was reading one article by a law professor on this judgment. He says, in the judgment, there was a balancing act between the larger public interest of safeguarding the interests of the marginalised man and the privacy rights of the public at large; the media has also been reporting likewise; BJP spokespersons were obviously the pioneers of this propaganda; however, there was no such balancing act between the larger public interest and the privacy rights; the balancing act was between the right to privacy — the autonomy value of dignity — and the right to food, shelter, and employment — the community value of dignity — of the same marginalised man.) If lawyers and professors can’t understand such technicalities, and when the BJP government has a clear motive to force AADHAAR as made out in the present FM’s statement in the Parliament, the callous treatment to the crucial question of consent in a judgment dealing with privacy, only hints at a conspiracy between the executive and the judiciary to force AADHAAR on the ignorant public.

However, the story doesn’t end here. Before the passing of the AADHAAR Act, some interim orders were passed restraining the government from making AADHAAR mandatory except for a few benefits and services in the nature of subsidies. However, once the AADHAAR Act was passed, the mandatory linking of AADHAAR was extended left, right, and centre, including for mobile connections and bank accounts. People started receiving threatening phone calls from these entities forcing them to obtain AADHAARs. Automated phone calls would sing benefits of linking AADHAAR calling it mandatory nevertheless. PayTMs and Airtels made it mandatory to link AADHAAR to open bank accounts with them — I think even now it’s mandatory. Policemen started asking for AADHAARs of all and sundry as of right (no rule or notification was issued as such for police identification through AADHAAR, but the police is the last one to follow law and the first one to force autocratic tools; so, when they become the protagonists, you know it’s surveillance and nothing else). Of course, except for a few obstinate souls like me, everybody got AADHAAR. However, the judgment has now read down “benefits” and “services” and quashed rule 9 of the Money Laundering Rules and the relevant circular dt. 23.03.2017 of the Department of Telecommunication, which made AADHAAR linking mandatory for bank accounts and mobile connections respectively. The natural corollary of such quashing and reading down of “benefits” and “services” should have been quashing of the AADHAARS issued post passage of these rules and circulars. It is well established principle of law that where permitted use and illegal use can’t be separated, both uses have to go. But, of course, the court did nothing of the sort and also didn’t take any action against the respondents for contempt of court. The court held the said acts were done under the AADHAAR Act and were thus not contempt. In other words, the earlier interim orders passed before the AADHAAR Act ceased to have effect after passing of the AADHAAR Act. The simple question is why new orders were not passed substituting the earlier orders while earlier orders were being infringed with impunity. Even if the same were not passed, it is basic principle of law that at the time of the final judgment all status quos are restored. If the court as big as the Supreme Court of India doesn’t follow this basic a principle, the only indication is that of conspiracy of the executive and the judiciary to force AADHAAR on the ignorant public.

I have already made up my mind to leave this country unless at least IRIS is removed from the biometric info requirement for obtaining AADHAAR. I have no intention to file a review petition, nor do I want to face contempt because either way I will lose on the time in unnecessary litigation with no hope of justice. However, if I am forced to face contempt proceedings, this article is my only defence against the award of punishment: contempt is admitted.

Book Review of “Why I am Hindu” by Shashi Tharoor

Why I am hindu

“Why I am Hindu?” presented me with a partial opportunity to gauge Hinduism of the Congress. Tharoor may not be the representative thought on Hinduism in the Congress — in fact I know the Congress is majorly influenced by Kashmiri Saivism, of which the book tells almost nothing — but his is the only well articulated one at the moment. Moreover, he was deemed to have borrowed from the other influential Hindu voices in the Congress, which he has indeed done in reference to Gandhi, Radhakrishnan and Karan Singh. In the first part of the book, he has tried explaining Hinduism per se; in the second, he has dealt with Hindutva; and in the third, he has generally expressed the hope for the future. The core message of the book is that Hinduism is a pluralistic religion, which is being converted into a monolithic one by the Hindutva proponents, thereby attacking the very religion per se. He evidences pluralism by presence of various sects and praxis in Hinduism, which have outgrown Vedas/Upanishads and made the religion so tolerant and accepting as to even accept practices of Abrahamic religions; Islam, Christianity, and Judaism; into itself thereby grafting the pluralism of Hindu religion into the Indian constitution (my intrepretation, but let any smart journalist quiz him on this, and he will surrender).

Let me state at the outset, I am alarmed. Why I am so needs some elaboration on my understanding of Hinduism. If one would read Dr. Radhakrishnan on Upanishads, one would learn Upanishads are the core of Hindu philosophy, which have been interpreted luxuriously by latter philosophers to derive numerous sects even standing in contradiction to each other. But all have survived because Upanishads are internally incoherent and ambiguous leading to several interpretations. In fact, Tharoor has not discussed all possible interpretations of Upanishads as animating various sects. He has more or less restricted himself to Vedanta interpretation, which by far is also the philosophical core of the Hindutva proponents in reference to Hindu religion per se. Thus there is hardly any difference between Tharoor and Hindutva proponents in the understanding of Hinduism. The difference is only in its practice. Hindutva proponents are militant practitioners and Tharoor is a mild practitioner. At the end of the book, he has shared an anecdote in which his IT friend compares Hinduism to an operating system, on which many applications have been developed, thus making a comprehensive integrated computing system. Unfortunately, Hinduism is just not that. Vedas and Upanishads have rather developed gradually over a long period of time like Linux but by developers who have not followed any programming rules or ethics. Nobody cares about Vedas anymore, for they were just ritualistic procedures, but Upanishadic philosophy has carried on to build many unrelated and even incompatible systems. So, yes there is pluralism, but it is not inherently cohesive and is vulnerable to attack from Hindutva proponents, who have transformed Hinduism, a religion, into a source of well-bound culture attractive for a nationalism school curriculum, where pluralistic Hindusim just doesn’t hold any appeal.

But why am I alarmed? I am alarmed because Tharoor and Hindutva proponents are actually on the same train, it’s just that Hindutva proponents are running towards the engine thinking this will make their journey shorter. My problem is that the destination is same, of which I am ignorant. However, if I join the dots, I see a possibility of Hindu Rashtra even under the Congress rule. The basic requirement of Hindu Rashtra is the backdoor or front door entry of Dharma, a uniquely Hindu concept, in the Indian constitution. The Tharoorian Congress can not allow front door entry but won’t mind a back door one, for Dharma is deemed to be considered a proper and eligible candidate for determining national life by the Congress if the constitutional pluralism — known as secularism in law books — is maintained (I tweeted two pages from Tharoor’s book yesterday, the tweets are enclosed at the end of this review). But I claim that the idea of secularism in Indian constitution is nothing but grafting of pluralistic Hinduism into the Indian constitution (and for which I challenge any smart journalist to quiz Tharoor once again with the perspective that he is a Hindu reincarnation of some smart Congressi freedom fighter, who had access to drafters of the constitution). And if my claim is true, the backdoor entry of Dharma is also possible.

But what is my problem with Dharma? Well…my problem is that I pretty well understand Dharma as deciphered from Gita, the holy book of Hindus, as a tool for propagation of slavery. Dharma is very simply speaking performance of one’s duty as decided by one’s nature in dedication to god sans any expectations in return. The nature is decided by god mostly manifested in the Varna system. In other words, one is required to surrender one’s individuality, self-determination and rights to the god’s system. In Gita, the god is Krishna, but in Vedanta, the god is an invisible abstract notion. So, in practice, in a nationalistic system, the ruling elites would become gods and enslave citizens/subjects in the name of Dharma. I agree there are other interpretations of Upanishads, so would be there of Dharma, but this is the dominating one.

In the end, let me state this book is not a perfectly correct account of Hinduism, which I attribute strictly to Tharoor the politician. Tharoor has gone to the extent of calling Hinduism an individualistic religion to enhance its marketing appeal to the global audience, but of course it is not — Vedanta is certainly not; Patanjali Yoga does speak of personal God, but I have not read it much, and nor do I think Tharoor meant that when he spoke of Hinduism as a universal religion for he hardly spoke on Yoga in the book. Like Hindutva proponents, he has also included Buddhism, Jainism, Sikhism, and even Charvaka in Hindusim, which I find condescending — Charvaka was not even a religion; it was just Humanism. His intrepretation of Karma is also erroneous. He has linked it to achievement whereas the very concept of Karma repels achievement motive. It is a concept seeking renunciation of fruits of labour for attaining oneness with god. The failure to do so leads to re-birth, but the sacrifice done with right wisdom, i. e. sans expectations, leads to moksha.

A word of advice to Tharoor: Choose a career because, but for politics, you are an amazing author.

Why I am hindu

 

Why I am hindu

 

Karnataka Elections’ Ramification for Left

Karnataka Elections' Ramification for Left

The tweet by the Kerala tourism inviting Karnataka MLAs to Kochi resorts was witty indeed, but was it just witty or more than that? Kerala tourism deleted the tweet subsequently. Why? Some regional newspaper say the tweet was criticised as being in bad taste. I doubt it. All I know it garnered 10,000+ likes. Anyways, soon the Kochi resorts did become the political destinations of last resort. However, the bus change its route abruptly to Hyderabad, as it seems lured by Mamta Banerjee. Many a times I get lured into boarding the metro to Connaught Place when my destination should normally be Preet Vihar: I wish it were Pretty Vihar instead. But I don’t think Kumaraswamy has such p(r)etty problems: her wife is quite pretty. So, the reason has to be found elsewhere.

The Left is on a downward slide since eternity now. All its Bengali voters seem to be shifting towards BJP. However, Mamta Banerjee’s issues with the Left transcends politics. I don’t see the two of them coming together ever. The Left has stronger presence amongst regional players and has been able to thwart Mamta Banerjee’s attempts to forge regional alliances in the past. But things are different this time. Mamta Banerjee has been pro-active in talking to regional players: Kejriwal, Lalu, Akhilesh, KCR, et al. Mayawati has now forged an alliance with Akhilesh; so, it was easy for Kumaraswamy, Mayawati’s partner, to tilt towards Mamta. In any case, any prudent politician would have done it. Except for Kejriwal, I don’t think any other regional party would now accommodate Left at the cost of Mamta.

But why Kejriwal? Well…my reason is cynical. I think Kejriwal & Co. is the agent of the US led corporates, who strongly favour Sanghi ideology, and was set up with a specific purpose of first defeating the Congress and secondly destroying socialism. Of course, AAPians are closet Sanghis. The best way to eliminate an ideology is to make it redundant. When people stop seeing any difference between Sanghism and Socialism, as is the case with the AAP, you obviously don’t care much if the two merge together under some umbrella ideology. And the umbrella ideology is nothing but tweaked Sanghism. I have a strong apprehension that the Left along with AAP may enter into some kind of subtle understanding with Sanghis in 2019 unless Socialism of the Left is resilient enough: JNU communism is not.

So, this is the ramification of the Karnataka elections for the Left. They have three choices before them for 2019: 1. Forge a pre-poll alliance with the Congress; 2. Enter into a subtle understanding with the Sanghis; 3. Forget about 2019 and concentrate on 2024 by emerging as a third alternative grounded in strong dalit, labour, peasants and literati (not twitterati) electorate. Going by the present trend, I see them opting for the second option especially because they have started supporting AAP blindly in everything, good or bad, and have started emulating them to gain media attention without understanding AAP got it because they are the agents of the corporate.

Just for record, in Delhi district courts, where the Left has negligible presence, the Left is often seen collaborating with the Sanghis. However, let me warn I am a loner and don’t talk gossip, so I might have very well misintrepreted the case. I hope so because I would very much like to be a good writer, which certainly can’t happen in the prevalent atmosphere of dominant Sanghism, where shouting “dus ka sau” is considered more honourable than reading and writing books.

Judge Loya Judgment Analysis

Judge Loya Judgment

Judge Loya judgment has been rendered on a group of petitions seeking investigation into the death of Judge Loya. The only issue in the case was whether the inquest report prepared u/s 174 CrPC closing the case on the finding that the death was due to natural causes, was correct. Let me state at the outset that out of 118 pages of the judgment, 117 pages are pure noise.

There wasn’t any need to refer to the Caravan articles (I have observed Justice Chadrachud has a liking for journalistic articles, but let me state journalism has ceased to be professional: most of it, especially opinions, is motivated, frivolous and fake). In fact, the reference to these articles has contextualized the misconceived argument of the state that the petitions were filed on the basis of Caravan articles, which context was otherwise absent. Indeed, there were discrepancies in the articles and they couldn’t have been the sole basis of any judicial proceedings. If such an attempt was made by any of the petitioners, it was unfortunate.

The extensive reference to “discreet enquiry” carried out by State intelligence in consequence of the Caravan articles was also misplaced. The “discreet enquiry” has no basis. There was nothing on record to show that the enquiry was carried out after reaching even a preliminary opinion that inquest report was erroneous. In fact, it is pretty clear the “discreet enquiry” was carried out purely as a political tool to substantiate the findings of the inquest report. Indeed the enquiry was motivated and should have been rejected outright by the Supreme Court.

Much was made out in the media about the judgment giving undue importance to the statement recorded by the four judges in the “discreet enquiry”. I must say the substantial portion of the judgment deals with the statements of the four judges, but there is only one sentence which is relevant. The sentence is as quoted: “The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation.” Para q of the statement by Judge Modak raises doubt about there being no pre-meditation. He has been extremely polite towards judicial posts in his testimony except for para q, where he has referred to Judge Loya as “Loya”. The sentence seems to be pretty emotional and truthful, but the same raises doubt about the rest of the testimony. I would say testimony of any person who has undergone legal training can’t be trusted without cross-examination. But anyways, all these things are irrelevant as the reliance on these testimonies on the basis of misplaced reliance on “discreet enquiry” itself is misplaced. I would say relying on “discreet enquiry” is error apparent for the judgment proceeds on the premise that “discreet enquiry”, which by it’s very nature was supposed to test the null hypothesis that inquest enquiry was correct, can be legally used to supplement the inquest enquiry.

Now coming to the inquest enquiry per se. The judgment has not discussed anything about it except for explaining the scope of inquest enquiry. It has not answered whether the inquest inquiry per se was carried out correctly and comprehensively enough. In the whole judgment, there is only one statement with respect to the inquest inquiry, which is as under-quoted:

The inquest panchnama notes the condition of the dead body and does not find any mark of injury or assault.

It is rather distressing that this mockery has happened in the Supreme Court of India. The highest court of land could write just one sentence of relevance in the whole judgment. Prashant Bhushan tried bringing on record the opinion of Dr. Kaul with respect to the ECG report, which was countered by the state with a counter medical opinion. Though even this was not per se relevant, but it provided at least some opportunity to the Supreme Court to seek neutral expert opinion on the issue, but instead of doing that, the court suspected the bonafide of Prashant Bhushan. So what if he was appearing in robe! Ask him to remove his robe and appear as petitioner-in-person if you want to be so strict about rules, but why reject something so material to the issue at hand for no good reason?

I am actually surprised that such irrelevant proceedings took place in Supreme Court on such a vital issue. I suspect the state came with an agenda to substitute grossly inadequate, almost non-existent, inquest report with a pre-meditated and motivated “discreet inquiry to achieve a fait accompli, and it has indeed succeeded in it. This was indeed a conspiracy; the subtle pleading of V. Giri through his junior, was probably the crux of the matter, which was sidelined with a single statement that there is nothing on record or pleadings to draw such an inference. I am sorry the conduct of “discreet enquiry” per se is the relevant material on record.

Well…I reiterate what I stated in one my tweets that this matter should go to the UN — though the reason this time is different but stronger. In yet another tweet yesterday, I mentioned the judgment is not egregious. I am not sure if I can maintain it any more — thankfully I am not a Photoshop expert, else I might have ended up committing gross contempt of court by reproducing the chaplet elsewhere.

All Sex Is Mild Rape

Rape

Some people call rape even more heinous than murder. They opine rape is manifestation of political dominance of the stronger males over weaker females. They consider rape as nothing more than violence. As per the commonly accepted definition of rape, penetration of foreign substance into any of the orifices of the female body by the dominating male sans consent is rape. Consent could be expressed or implied.

So, the differentiator is consent. If the female denies her consent, it becomes rape, else it is sexual intercourse. I agree forced penetration sans consent is expression of violence, but I am not sure if the mere lack of consent makes it so violent that the sexual element ceases to exist altogether. It is probably the institutionalization of rape in India as a source of political domination of higher classes over weaker classes (including castes) that has made rape lose its sexual texture. In other words, rape has become a name synonymous with social oppression of weaker class through its even more vulnerable sub-class, i. e. women. However, what if a weak woman of a lower class grants consent in lieu light of financial or other favour. Or, in other words, she offers herself up for prostitution. Does it ceases to be rape then? Similarly, what if a young girl of a lower class gives consent to marriage with an old man from the higher class to avoid persecution. Does it ceases to be rape then? I will keep the answers in suspension for sometime and discuss rape from a completely different perspective, a purely sexual perspective.

Sexual intercourse is an unrestrained physical activity of fantastical possibilities. Most people don’t realize these possibilities. But those who do, also do realize that there just can’t be any sexual intercourse without at least some physical domination of one member by another. It could be either male or female. If the sexual intercourse is a group activity, then permutations and combinations can run havoc. It is just not possible to seek consent for all these fantastical possibilities. I know some legal systems give lots of emphasis to the woman’s consent, but such an emphasis only make things comical. Moreover, when sexual intercourse is a mutual action between partners I wonder how the consent of only one gender can be emphasised to create the offence of rape. The offence of rape should obviously be a gender neutral offence. And to what degree the consent of either gender has to be emphasised is a sociocultural, not a political, question. Thus the consent has nothing to do with political domination of one gender by another. I would rather categorize rape as mild rape and strong rape and make only the second category punishable, for as already stated there just can’t be any pleasurable sexual intercourse without at least some element of physical domination in it.

Now I think it’s time to answer the above questions. I say not only in India but the world over women have been subjected to institutionalized domination through marriage. In fact, the Old Hindu Marriage Law even recognized marriage through abduction. Thinkers have still called marriage institutionalized prostitution, but none has dared called it institutionalized rape. So, at least one question is answered, i. e. sexual intercourse in marriage under duress to avoid persecution is not rape. Marriage may be declared void later, but till the time it happens, consent is deemed operative. People want marital rape to be introduced as an offence, but frankly I don’t understand how it will work out when there is presumption of consent in marriage. If there is no presumption of consent, why marry at all? Well…this brings me to the the bigger question of validity of marriage per se, but I am not going on a tangent. It is safe to assume that, in majority of sociocultural systems, marriage does carry at least some presumption of consent. When and how that presumption stands rebutted is a matter of detail. At least in India, there is a very strong unrebuttable presumption of consent in marriage.

Coming to the second question. Prostitution in most cases is indeed akin to rape. Not leaving a person with any choice but to submit is nothing but rape. Yet, some countries/state recognize prostitution to the extent of allowing trafficking. India doesn’t allow immoral trafficking, but prostitution is not illegal in India. So, unless it becomes obvious that the female is prostituting herself under duress, the consent is presumed in prostitution as well. It is true that in most cases the client gets to know immediately that the girl sitting naked in front of him is an object of his oppression, but he still executes his lust in lieu light of the money he pays to her. Whether this can ever be treated a valid business transaction is a question that society needs to answer, which I am afraid the society has ignored forever. However, nudging the society to answer this question is beyond my self-assigned brief in this article. So, I accept the presumption with a heavy heart with a compensation that I have never knowingly entered into such a business transaction.

So, when neither marriage nor prostitution is institutionalized rape, how can political domination of weaker class by stronger class be institutionalized rape. Each case is a separate sexual act, and each forced sexual intercourse sans consent tantamount to rape. There is no scope to see anything further in it in terms of rape. If political domination of weaker class manifests itself in mass rape of females, it calls for a separate offence, which could indeed be a an offence more heinous than murder. But our legal system doesn’t recognize such an offense till now. What do we do about it — I will support anybody sitting on a hunger strike for it. Hang all rapists! Certainly not because then you never know when some Swati Maliwal or Farooq Abdullah (still assuming rape is a gender neutral offense) will sit on a hunger strike to demand death penalty for biting ears instead of kissing lips as agreed upon.

Ethical Validity of Euthanasia Judgment

Ethical Validity of Euthanasia Judgment

The Supreme Court of India in it’s recent judgement in Common Cause has included the right to dignified death by withholding/withdrawing medical treatment in case of terminal illness requiring prolonged treatment or subjection to life support systems with incurability or no hope of curability, as part of Article 21 of the Indian Constitution. The above exercise of choice to die is commonly known as passive euthanasia. Further, the Supreme Court has issued directions/guidelines for recognition and exercise of this right through advance consent or through the consent of the next friend/close family. The directions/guidelines have been issued u/a 142 of the Constitution r/w Vishakha judgment. In past when a similar judgment was rendered in Aruna Shaunbaug, I had criticized the judgment as illegal. I can undertake a similar exercise again thereby reaching a similar conclusion but am not interested in obfuscating the momentous question of ethical validity of euthanasia in legal niceties. I made a terse tweet yesterday commenting on the judgment. The same can be expanded to reach a conclusion similar to that I reached in Aruna Shaunbaug. I am reproducing the tweet below, but, as already stated, I have no interest in legally analysing this judgement.

The momentous question is of course the ethical validity of passive euthanasia. I believe in manifestation of dignity through self-determination, not only in humans but also in animals, plants and even robots. I also believe privacy, as understood as a right to create and protect a zone of repose for making self-determining choices, as an essential ingredient of dignity and vice-versa. Passive euthanasia giving a choice to an individual to make a decision about non-continuation of life is certainly part of dignity and privacy both, but the important question is information available to the individual to make the choice. Is it possible for an individual to make a choice about withdrawing/withholding treatment without experiencing the terminal illness first-hand in his own unique circumstances. Can such a choice be made in advance through a “living will” just on the basis of academic knowledge of sufferings undergone by subjecting oneself to life support systems or prolonged treatments? Furthermore, is this academic knowledge sacrosanct, which can never change? Of course, not. So, it means one way or the other the advance consent of an individual would be subjected to the judgment of assumed guardians whether in the form of the State or the physicians or the next friends/guardians. In the present context, the Supreme Court has indeed not recognized the concept of “living will” and has made the advance consent of an individual subject to the judgment of the physicians, the executive through the collector concerned, the judiciary through the judicial magistrate concerned, and the guardian/close relative/next friend. In fact, it is such a cumbersome and long-winded procedure that the guardian/close relative/next friend would rather find it convenient to withdraw consent (unless of course he has some vested interest in the death of the individual). I don’t think there is any exercise of a choice to die in such a cumbersome procedure. If at all, there is only one instance when an individual would be able to exercise this right himself, and that would be when though terminally ill he would still be in a position to withdraw or confirm the consent at the time of the illness without any prejudice emanating from his psychological condition, ignorance, etc.

My rationale for reaching the above conclusion is simple and straight forward. The very concept of an individual precludes the exercise of his right through another person, however close he or she may be. The State can definitely not substitute for an individual with respect to the exercise of his right to life when it has no power to grant or deny life post the Privacy judgment, wherein ADM Jabalpur has been overruled (it is the right time for the anti death penalty lobby to strike). It is unfortunate but true that the very precious right to life extending to right to die vide passive euthanasia is but non-executable except in one instance elaborated above. I need not argue with respect to a scenario where no advance consent has been formulated as prescribed in the judgment, for all that is stated above will apply with full force in case of substitution of an individual’s consent by that of the guardian/close family/next friend.

The above situation has arisen because the Supreme Court has failed to understand the concept of death per se. Survival is a decision of a free conscious-mind, but extinction is forced by external factors. So, I don’t think there is a crystalized right of individuals to die as the decision to die is never made in a zone of repose. Of course, I have contradicted myself with respect to what I have stated above but only to a salutary effect. Passive euthanasia to avoid suffering also emanate from the inability of the society of physicians to ameliorate the suffering of individuals due to some unfortunate illnesses. However, the physicians can’t be punished for this inability by taking away their precious right to save lives. Yes, saving lives is not a duty but a right of the physicians u/a 21 of the constitution, which right has been taken away  by this judgment through unfortunate misinterpretation of death.

What Kerala CPI(M) Can Learn from the Tripura Elections Results!

Tripura elections results

My answer to the question vide the above caption is NOTHING.

Whatever I am writing below will rationalize my answer with the presumption that Tripura election results are genuine; i.e., there was no EVM manipulation, no booth capturing, no bribery of voters, no hypnosis of voters (ok that’s going too far, but…whatever).

I have visited both Tripura (Agartala) and Kerala (Kochi). In fact, I published a travelogue, Kerala Hugged, after visiting Kerala, which I kept distributing free to anybody with a pretty smile; I am extending the offer again for a fortnight; so, if you have a pretty smile, send me a smiley and the book will be yours. Ok…the winks a la Priya Prakash will also do.

There was a huge difference between the communism of the two States. Tripura and Kerala both had narrow streets lined up with big houses, but Tripura’s residences had built up huge boundary walls overpowering the narrow streets whereas, in Kerala, the easement rights of necessity from one property to another was a norm. Urban transportation as well as fooding options in Tripura were limited whereas Kerala was lavish with options. People in Tripura as well as in Kerala were friendly, but I did find signs of resistance to outsiders in Tripura but none at all in Kerala. Tripura was unclean like any other city whereas Kerala was pristine. Long presence of NRI culture in Kerala had reduced generational gap opening up outlets for expression of aspirational values: there was perceptible Epicureanism in Kerala whereas Agartala was strongly religious showing deep tolerance for public nuisance.

But the above may or may not need to affect the political strategy. At the most, these may corroborate my reasons below. The main reason for no political correlation between Tripura and Kerala is the difference in the role played by the Congress in the two States. In Kerala, the Congress is strong and active whereas, in Tripura, the Congress was dull and depleting. Also, the voter base of the Congress in Kerala is mainly minorities, who, as a rule, don’t vote for the BJP. So, it won’t be possible for the BJP to substitute for the Congress in Kerala. Indeed, Kerala also has the strong presence of the RSS in the State, and there is also a strong possibility of mass migration of Hindus from the Left to the BJP, but that would be en dehors de the Congress. Till now, the BJP has not found any clean outlet for infusing Hindutva politics in Kerala. The attempts have been strongly resisted with gore. Kerala, for the Left, is like Gujarat for the BJP. To beat the BJP in Gujarat, you need to better them in Hindutva, in which audacious adventure Rahul Gandhi has recently failed. But bettering the Left in Kerala would require shedding Hindutva, which may just not be possible for the BJP. They might have attempted it in the North East by promoting beef, etc, but that has hardly helped them: they have not gained anything in Meghalaya, and in Nagaland they have actually lost to NPF+; it is only thanks to the ever deceitful JD(U) that they might form the government in Nagaland. Will they try such a large-scale strategy in Kerala? I don’t think so. Yes…they might convert SNDP and the likes into political organisations and forge an alliance with them thereafter, but that would not be the same as the strategy adopted by them in Tripura.

However, I do maintain, wherever there are Hindus, the BJP will make inroads sooner or later. So, if at all any lessons have to be learned from the Tripura debacle, the Kerala CPI(M) needs to be wary of the Hindu appeasement policy of Manik Sarkar. Hinduism/Hindutva promotion, however meek, will only benefit the BJP. I would rather advice the Kerala CPI(M) to proactively tackle the BJP’s Hindutva by developing a large-scale program for promotion of atheism. Rest can ALL remain the same (but with better sensitiveness towards tribals).

P.S. There is another strong difference, possibly the strongest, between Tripura and Kerala: Kerala doesn’t have a history of deployment of armed forces in the State whereas AFSPA has only been lifted recently from Tripura. But I don’t know how to categorize it.

Protestor’s Market

It is necessary and important that a stable daily market wage rate of professional protestors be established for the benefit of the business, who presently pay disproportionately high rates to activists and politiicans for launching fabricated protests through their captive corporate media. Indeed the business has made heavy inroads into the market APNE AAP, but their grip on the market has not yet crystalized. AADHAAR may give them ready access to processable data, but separating professional protestors from dabblers would still require reservation of avoidable resources at high opportunity cost. It is therefore proposed that an online network of professional protestors be created with offerings ranging from permanent unemployment protests to ad-hoc semen protests at stable and affordable market rates.

Why the Night Is So Noisy Today?

All are asleep, but he is awake.
Nobody except night talks to him, so he is awake.
Nobody except he listens to her, so he is awake.

Her story is dark for her color is black.
Her language is silence for all have slept.
Her attitude is vile for she never loves.

He follows her always bound by his unrequited love.
She snubs him always ditching him silently in the dreamland.
But why the night is so noisy today? Has she finally found her love? Or…?