Defining India’s minorities

July 14, 2007

 

Zoya Hasan

A meaningful conception of minorities would include sections of people who, on account of their non-dominant position in the country as a whole, are targets of discrimination and therefore deserving of special consideration.

The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to the National Commission for Minorities envisages a change in the way minorities are specified. The Cabinet has reportedly approved a proposal (May 2007) to define minorities State-wise in line with several Supreme Court judgments, most notably that in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in relation to a particular State/Union Territory by a presidential notification issued after consultation with the State Government; this will be in addition to the five minorities (Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the NCM Act, 1992. The new approach is not consistent with the understanding developed in the Constituent Assembly on the protection of minorities and the constitutional compact between the State and minority groups.

Although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is clear that the constitutional scheme envisages this to be determined at the national level. Periodic judicial interventions and categorisation has had major repercussions. Over the years, judicial pronouncements have sought to give a restricted meaning to minority rights by limiting them to education and defining minorities at the State level in terms of protection under Article 30 which provides religious minorities the right to set up educational institutions of their choice. The legitimation of a restrictive conception of minority rights can also be noticed, in this context, in the Central Government’s proposal to adopt a State-specific notion of minorities.

Supreme Court principle

In the 2002 judgment, in T.M.A. Pai Foundation & Others vs. the State of Karnataka and Ors, the Supreme Court deliberated on the various contentions that the Centre, State, or a particular region within a State may be considered as the basic unit for protection of the right of minorities to set up minority educational institutions, and whether a minority in a State would lose its minority status if within a particular region of the State it happened to be in a majority. The Court has set out the principle that minority status should be determined in relation to the population of the State and not to India as a whole. It ruled that as the reorganisation of the States in India had been effected on linguistic lines, for the purpose of determining a minority, the unit would be the State and not the whole of India. Thus, religious and linguistic minorities, who have been placed on a par in Article 30, have to be considered in terms of the State concerned. Not surprisingly, this issue surfaced again in Bal Patil (2004) and Srivastava (2007); these two judgments have further complicated the question of definition of minorities, as both these judgments relate, for the most part, to definitional issues. Bal Patil questioned the identity of Sikhs as a religious minority while Srivastava ruled that Muslims, by virtue of their numbers, cannot be considered a minority in Uttar Pradesh.

The principal rationale for State-specific minorities rests on the idea that the linguistic reorganisation of States necessitates that they be treated as the basic unit for determination of minorities. As both linguistic and religious minorities are covered under Article 30, both sets of minorities have to be State-specific. The linguistic reorganisation of States meant that, for the purpose of Article 30, linguistic minorities had to be determined in relation to the State because their language was not one of the official languages; other minorities are those whose mother tongue is an official language but who live outside the State(s) where the language is official.

In this sense, the linguistic reorganisation of States has a definite bearing on linguistic minorities because protection under Article 30 is available not only to the linguistic minorities sharing the major languages of the States, but also to speakers of the numerous languages that are not represented by any particular State on its own.

As regards religious minorities, linguistic reorganisation should not really matter in the exercise of their right to set up educational institutions of their choice or seek admission in such institutions or the exercise of other minority rights. In comparison to linguistic minorities, for whom the official language matters, there is no congruence between religious identity and State boundaries. For protection under Article 30, linguistic minorities make claims upon the States rather than the Centre, but this need not be so for religious minorities who are dispersed throughout India and whose identity is not linked to specific State(s). In this context, defining minorities at the State level would limit the notion of minorities, entailing as it does the adoption of an essentially statistical conception of minorities. Thus, a religious group, which is numerically smaller than the rest of the population of the State to which it belongs, would be entitled to be termed a minority in that State even though the group may be numerically in a majority in India as a whole and hence not lacking in power or voice in the decision-making structures. This will doubtless add to the list of minorities and extend the benefits of minority entitlements to these groups, even as it will deny the same benefits to groups that are minorities in accordance with nationally and internationally accepted definitions of minorities.

Scope for distortions

Such a State-specific conception of minorities will result in distortions in minority rights. If this rationale is extended, Hindus in Punjab who are a numerical minority there though they are a majority in relation to India as a whole will be entitled to minority protection there as indeed they would be in Jammu and Kashmir, Nagaland, Meghalaya, Mizoram, and Lakshadweep. To take another example, failing the statistical test, Sikhs in Punjab and Christians in the above States will be held to be a majority and consequently deprived of constitutionally sanctioned minority rights. In Punjab, the minority Hindus will be able to set up educational institutions of their choice and apparently Hindus from other States will be eligible for admission to these institutions unless admission is to be limited to minorities domiciled in the State.

By the same logic, Christian students will be ineligible for admission in minority educational institutions, such as St. Stephens College or Loyola College, as they will not have a domicile minority status there. In other words, eligibility for admissions to minority educational institutions will be limited to minorities domiciled in the States, and what is more, some minority community applicants will not be able to avail themselves of minority quotas outside their State(s) because they are not a minority in their own States.

At the heart of the current controversy is confusion about which groups qualify as minorities and regarding the nature of the unit of determination under this rubric. However, internationally, some agreement exists. Commonly cited characteristics that make groups distinctive and expose them to discrimination include religion, language, culture, and gender. There is also a unanimous opinion that the term ‘minority’ refers to a power relationship. In this, the size of a group may bear some relation to the degree of power it wields, but presumably because other factors are also involved in the equation, the relationship of group size is not all that significant.

Contrary to this widely accepted perception of minorities, the Government’s new proposal for State-specific minorities is driven by a statistical or numerical approach. The size of the group is not what should concern our policy-makers or those committed to eradication of inequity, prejudice, and discrimination. This is because numbers per se merely quantify and describe the proportion of a group in a population; they do not tell us anything about whether a particular minority group is powerful or powerless, advantaged or disadvantaged, represented or under-represented. A more meaningful conception of minority status would include sections of people who, on account of their non-dominant position in the country as a whole (not a specific State), and because of their religion, language, caste or gender, are targets of discrimination and therefore deserving of special consideration. The statistical approach disregards the crucial qualitative condition of vulnerability and disadvantage.

The numerical proportion of a population of a particular community in a State, distinguishable on religious grounds, cannot entitle it automatically to minority rights.

The temptation to treat minority educational rights as similar to other minority rights has limited the concept of minority rights to the ambit of Article 30 and to the operational details of administering minority educational institutions at the State level. Aside from matters that fall under the purview of Article 30 protection, on most other substantive issues of equity, identity, and security, religious minorities frequently lean on the Centre in the hope that it is less likely to fall under the sway of narrow sectarian concerns and will be guided by a constitutional vision and philosophy rooted in ideas of fairness, justice, and equity. In the circumstances, defining and confining the category ‘minority’ to States is not the best way forward; it would be far more helpful to recognise the comprehensive character of minority rights, in consonance with the demands of substantive equality, to include them by revisiting the concept of affirmative action. This would be in step with the slew of policies and measures currently under consideration to address the economic, social, and educational deprivation that minorities experience.

(Zoya Hasan is a Professor at Jawaharlal Nehru University.)

http://www.thehindu.com/todays-paper/tp-opinion/defining-indias-minorities/article1872744.ece

How Savarkar escaped the gallows

January 30, 2013

 

A.G. Noorani

MAY 27, 1948:At the Special Court in the Red Fort, Delhi, during the trial of the Mahatma Gandhi assassination, the accused (from left) Nathuram Vinayak Godse, Narayan Dattatraya Apte and Vishnu Ramkrishna Karkare. —PHOTO: THE HINDU PHOTO ARCHIVES

Immediately after Madanlal Pahwa’s failed attempt on Gandhi’s life on January 20, 1948, suspicion fixed on V.D. Savarkar as the brain behind the crime. Investigations confirmed the suspicion; evidence at the trial court all but proved his complicity. He, however, escaped with an acquittal.

Deputy Prime Minister Vallabhbhai Patel was convinced of his guilt. In 1969, a Commission of Inquiry set up on March 22, 1965 comprising a respected Judge of the Supreme Court, J.K. Kapur, concluded after a thorough probe: “All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group.”

Freedom At Midnight (1976) by Larry Collins and Dominique Lapierre contains a wealth of material since they had access to police and intelligence records besides recollections of key surviving players. Madanlal told the police after his arrest that he had met Savarkar before the attempt and also revealed Godse’s identity: “Hindu Rashtra, A Marathi daily of Poona. Editor: N.V. Godse, Proprietor N.D. Apte, a Savarkarite group newspaper.” The apparel left behind by Madanlal’s accomplices who fled after his failure bore one common laundry mark, the initials ‘N.V.G.’

No policeman could have wished for more. Collins and Lapierre remark that the “inquiry, so well begun, was now to be pursued in a manner so desultory, so ineffectual, as to inflame controversy three decades later.” The ineptness of senior officials in New Delhi was in contrast to the efficiency of the Bombay Police. Jamshid Naganvalla (32), Deputy Commissioner of Police, in charge of the Bombay CID Special Branch, was assigned the case by Bombay’s Home Minister, Morarji Desai, after Madanlal’s attempt. Convinced that Savarkar was behind that, he asked Morarji for permission to arrest him on the basis of Madanlal’s confession. Morarji angrily refused. Naganvalla’s Watchers Branch had kept Savarkar’s house under surveillance. Shortly after the assassination, Savarkar gave an undertaking to the police on February 22, 1948 not to take part in any “political public activity” for as long as was desired.

He was prosecuted all the same. The main witness against him was the approver Digamber Badge. Two other witnesses corroborated his version on his visits to Savarkar’s house. Judge Atma Charan found Badge to be a truthful witness.

On most points his version was corroborated “by independent evidence” but no corroboration was produced in court on his evidence that Godse and accomplice Narayan Apte visited Savarkar at his house on January 14 and 17, 1948. On each occasion Badge was asked to stay outside. On the second occasion he heard Savarkar’s encouraging words to Godse and Apte: “ Yashasvi houn ya ” (succeed and come). The two corroborating witnesses said no more than that the three had got down before the house; but it had two other residents besides. Since the law requires independent corroboration of an approver’s testimony, Savarkar was acquitted.

However, a year or two after Savarkar’s death, his bodyguard, Apte Ramchandra Kasar, and his secretary Gajanan Vishnu Damle, filled the loopholes before the Kapur Commission, which noted: “The statements of both these witnesses show that both Apte and Godse were frequent visitors of Savarkar at Bombay and at Conferences and at every meeting they are shown to have been with Savarkar…This evidence also shows that Karkare was also well known to Savarkar and was also a frequent visitor. Badge used to visit Savarkar. Dr. Parchure also visited him. All this shows that people who were subsequently involved in the murder of Mahatma Gandhi were all congregating some time or the other at Savarkar Sadan and sometimes had long interviews with Savarkar. It is significant that Karkare and Madanlal visited Savarkar before they left for Delhi and Apte and Godse visited him both before the bomb was thrown and also before the murder was committed and on each occasion they had long interviews. It is specially to be noticed that Godse and Apte were with him at public meetings held at various places in the years 1946, 1947 and 1948.”

Had the two testified in court, Savarkar would have been convicted. There was no ambiguity surrounding Godse’s and Apte’s visits to Savarkar on January 14 and 17, 1948. Kasar, Savarkar’s bodyguard, told the Commission that they visited him on or about January 23 or 24, after the bomb incident. Damle, Savarkar’s secretary, deposed that Godse and Apte saw Savarkar “in the middle of January and sat with him [Savarkar] in his garden.”

In his Crime Report No.1, Nagarvala had stated that “Savarkar was at the back of the conspiracy” and that “he was feigning illness.” Nagarvala’s letter of January 31, 1948, the day after the assassination, mentioned that Savarkar, Godse and Apte met for 40 minutes “on the eve of their departure to Delhi.” This he did on the strength of what Kasar and Damle had disclosed to him. “These two had access to the house of Savarkar without any restriction.” In short, Godse and Apte met Savarkar again, in the absence of Badge, and in addition to their meetings on January 14 and 17. Why they were not produced as witnesses in court is a mystery.

Vallabhbhai Patel was vindicated. He had written to Nehru on February 27, 1948: “I have kept myself almost in daily touch with the progress of the investigation regarding Bapu’s assassination case.” His conclusion was: “It was a fanatical wing of the Hindu Mahasabha directly under Savarkar that [hatched] the conspiracy and saw it through.”

Many years later, the BJP had his portrait hung in Parliament House.

http://www.thehindu.com/todays-paper/tp-opinion/how-savarkar-escaped-the-gallows/article4359044.ece

Jaitley slams ‘unsustainable’ taxes

New Delhi, November 22, 2014

 

‘If the government is not investor-friendly, people will start looking elsewhere’

 

Comments come in the wake of I-T department losing its battle against  Shell

Finance Minister Arun Jaitley on Friday said that an unsustainable tax demand would only earn the country a bad name as an investment destination. Mr. Jaitley’s comments come in the wake of the Income Tax department losing its battle against Shell in the Mumbai High Court.

“Unsustainable demand won’t get you taxes. Unsustainable demands in the books can show you in good glory, but eventually those taxes will be blocked in some judicial court proceedings... they would have only earned us a bad name as an investment destination,” Mr. Jaitley said at the HT Leadership Summit. He, however, maintained that those who are supposed to pay taxes must pay.

The Mumbai High Court order earlier this week went against the Income Tax department in its Rs.18,000 crore transfer pricing cases against oil major Shell India. The government is also engaged in a Rs. 20,000 crore tax dispute with British telecom major Vodafone.

Referring to retrospective amendments to the tax laws by the UPA government, Mr. Jaitley said, if the government was not investor-friendly, people would start looking elsewhere.

He further said making the taxation regime investor-friendly and streamlining the procedure for land acquisition were the big challenges facing the government.

The Minister, however, took comfort from the fact that taxation laws were the domain of the Lok Sabha in which the NDA has majority.

He said though the government had managed to get the mess concerning allocation of coal blocks cleared with ease, resolving other issues remained a challenge.

Asked which three specific reforms he would like to get passed in the coming winter session of Parliament, Mr. Jaitley said he would like the insurance Bill, coal laws and Goods and Services tax to be cleared. He said there were political risks to reforms..

“Reforms by themselves are not enough, if they have to survive politically, the blending [with politics] has to be adequately done by those involved,” Mr. Jaitley said. — PTI

 

http://www.thehindu.com/todays-paper/jaitley-slams-unsustainable-taxes/article6623652.ece

Far from sunny optimism

 

November 11, 2014

Updated: November 11, 2014 01:34 IST

Women still play only a disproportionately minor role in the economy. Picture shows women labourers on their way to work in Kochi. Photo: K. K. Mustafah

Some of India’s labour market regulations are a legacy of Fabian Socialism and colonial rule; others are a product of postcolonial bureaucracy, disincentivising economic growth

By 2050, India’s economy could be the third largest in the world, surpassed only by China and the U.S., according to a study undertaken by Goldman Sachs. In a 2003 analysis, Goldman Sachs economists Dominic Wilson and Roopa Purushothaman painted a dramatic picture of the future international economy. By 2050, they argued, the combined Gross Domestic Product of Brazil, Russia, India and China (which economist Jim O’Neill had grouped into the acronym BRIC in 2001) could surpass the combined GDP of the current richest economies. Central to the rise of the BRIC, the two economists agreed, would be the rise of India.

Indeed, at the time, India’s trajectory seemed stratospheric. Even when buffeted by the winds of financial crisis in 2007-2008, it managed to sustain growth and helped avert global economic depression. India, many analysts noted, possessed key components of what it would take to become a global economic power: a strong civil society, favourable demographics (including a relatively young workforce), an increasingly educated populace, and vast natural resources. Noting these and other factors, on his first trip to India in 2010, U.S. President Barack Obama declared, “The United States does not just believe, as some people say, that India is a rising power; we believe that India has already risen.”

Impediments to growth

Within four years, however, the situation has changed dramatically. The pace of reform had screeched to a standstill; rather than moving the country forward, the Congress became entangled in mismanagement and a series of corruption scandals, and resorted to economic populism to sustain its rule. Economic growth slowed to below five per cent.

In turn, many of those who had envisioned India’s future as a great economic power saw their projections fail. Far from the sunny optimism of the early 2000s, the country’s turn to failed statism naturally led to large-scale corruption and sclerotic growth.

Today, an opportunity exists for India to reclaim its future. In order to achieve the economic growth its people deserve, it must seize the moment by modernising its labour market.

Some of the current labour market regulations are a legacy of Fabian Socialism and colonial rule; others are a product of postcolonial bureaucracy. Either way, they are a clear disincentive to employment and growth.

Also Read: Reforming labour laws, creating livelihoods

Despite a large population, labour participation in the formal economy remains low. Women still play only a disproportionately minor role in the economy, large segments of the population remain cut off from the global market, and government mandates stifle labour sector growth.

In short, the regulatory burden is incompatible with building a modern society. For example, the Industrial Employment Act requires employers to submit information such as work hours and wages to the government ahead of time for approval. Moreover, the Act’s regulations constrain employers by providing little flexibility in updating employees’ work hours, training, or pay. Similarly, the Industrial Disputes Act (IDA) requires businesses to obtain government approval before firing large numbers of employees. In many instances, the process of doing so is lengthy and features copious red tape.

Foreign companies are also discouraged from investing in Indian enterprises by laws like the IDA. As a result, they prefer to take their businesses to other labour hubs that offer greater employment flexibility and fewer regulations.

Reform under way
Yet India’s potential should not be underestimated. As Prime Minister Narendra Modi has emphasised, further reform may be on the way. Moreover, some reform has already begun at the state level, with Rajasthan leading the charge as a regional leader in labour reform. Under the leadership of Chief Minister Vasundhara Raje, the State has passed a number of measures aimed at decreasing corporate regulations that inhibit efficient business practices. This liberalising impulse will make hiring, training, and firing easier for employers.

Whereas in the past the IDA required that government be notified if more than one hundred workers were being terminated, if the Rajasthan reforms are enacted, companies in the future will be able to terminate up to 300 employees without government approval. Moreover, representative trade unions will be held to stricter standards, with worker membership requirements doubling from 15 per cent to 30 per cent. The effect should be a more productive and dynamic workforce.

Rajasthan is also pushing regulatory streamlining through reform of the Contract Labour Act, which aims to put contract labourers on a similar footing as employees; and the Factories Act, which closely regulates operations of factory businesses. In Rajasthan, smaller and mid-sized businesses will be exempt from these regulations, allowing them to compete more effectively in the marketplace.

On a national scale, Bharatiya Janata Party (BJP) leaders hope that Mr. Modi will succeed in strengthening federalism, providing individual States more opportunities for reform. Progressive States like Rajasthan, or Mr. Modi’s own Gujarat, which put in place significant changes under his leadership, will not only be free to move forward with pro-employment measures but hopefully can act as a catalyst for the rest of the country too.

The BJP’s election manifesto promised to focus on national economic reform and development, with an emphasis on manufacturing. In his 2014 Independence Day speech, Mr. Modi invited global economy players to “‘Come, make in India,’ ‘Come, manufacture in India.’ Sell in any country of the world but manufacture here.” In an attempt to capitalise on India’s vast human resources, Mr. Modi also appealed to India’s large youth population.

In order to unleash the potential of the labour force, Mr. Modi has already pushed for a number of reforms, including the doubling of the hourly overtime limit. Also, in order to keep pace with global technological advances, the government has sponsored initiatives to increase Internet access across the nation, thereby augmenting business connectivity and improving technological literacy.

Though India has not lived up to some of its more optimistic development scenarios, its economic potential remains vast. With the right kinds of reforms mobilising its relatively young workforce, it can enjoy a prosperous future.

Also read: A new economic agenda

(Kenneth R. Weinstein is President and CEO of the Hudson Institute, a Washington DC-based think tank.)

http://www.thehindu.com/opinion/op-ed/commet-on-indias-labour-market-and-economic-growth/article6584155.ece

Reforming labour laws, creating livelihoods

October 30, 2014

Updated: November 4, 2014 01:23 IST

Mukul G. Asher

INCENTIVISING MANUFACTURING: Encouraging the manufacturing sector through initiatives like 'Make in India' is essential to generate productive employment. File photo from October 2011 shows workers fixing accessories at the Maruti plant in Manesar. Photo: Shanker Chakravarty

A consensus on the outcome-based approach adopted by the Modi government to labour reforms is emerging. As the benefits become apparent, more reforms would become feasible

Prime Minister Narendra Modi’s government has exhibited competence in formulating economic reform measures that are small but likely to have substantial positive impact on reviving growth, generating productive livelihoods, and addressing price rise. The government has tended not to view reforms in a particular scheme or a programme narrowly but has tried linking them with other schemes and programs which could positively impact the desired outcomes and create an environment of trust among the various stakeholders.

These welcome initiatives are also evident in the government’s moves to make labour markets more flexible to address employability gaps effectively. The government is explicitly linking labour reforms to improvement in ease of doing business — setting up the business, operating it as a going concern, and exit norms — so that the available human and material assets can be put to more productive use.

This is evident in the phrase used by the Rajasthan Chief Minister Vasundhara Raje to explain the government’s labour reform proposals — creating “a fertile habitat for jobs creation”.

The labour reforms are also, rightly, linked to improving worker benefits — like providing for a minimum pension under Employees’ Pension Scheme; making Provident and Pension Funds portable; and increasing the maximum work hours. There is also stress on easing the compliance burden for small and medium businesses, like by permitting self-certification in some areas; restricting the powers given to labour inspectors, and by modernising labour laws. Also, various initiatives to increase the skilled manpower include the amendment to the Apprenticeship Act, 1961 which was passed by the Lok Sabha in August this year but is pending before the Rajya Sabha and steps to modernise the governance of the Industrial Training Institutes (ITIs).

“Reforming labour laws to bring about moves such as permitting women to work in night shifts would improve gender equality”

Rethinking MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) to provide skills and create productive assets and perhaps linking it to apprenticeship programs in industry, plantations, and agriculture is also consistent with labour reforms, which encourages labour mobility.

The above approach builds support for the reform process, enhances trust in the government; and develops capacities and consensus for far deeper and wider reforms. It is also consistent with modern growth theory and evidence, and with sound public management principles.

The approach also enables the Union government to experiment with the concept of cooperative federalism where outcomes rather than narrow partisan political considerations govern Union-State relations. The decision to let the States retain revenue from proposed e-auctioning of coal blocks is consistent with this.

Demographically favourable
India is in a demographically favourable phase. This implies that the ratio of working age population to total population ratio is on the increase, leading to a need to provide productive livelihoods to the increasing number of young entering the workforce and also to those who are unemployed or under-employed.

India’s total labour force in 2011-12 is estimated to be about 480 million, only about 40 per cent of the total population. In particular, the participation of women is quite low at about one-third of the working age population — that in the 15-59 years category — while for men it is around four-fifth. Thus, reforming labour laws to bring about moves such as permitting women to work in night shifts, as has been proposed, would improve gender equality and, potentially, the economic growth.

Shifting labour from agriculture to non- agricultural occupations is essential and so is encouraging manufacturing — through initiatives such as ‘Make in India’. India’s employment elasticity was negative for the years 2009-10 and in 2011-12. This cannot be allowed to continue if the country’s economic progress is to be sustained and a certain social cohesion maintained.

Under the current constitutional provisions, labour is a subject in the Concurrent List. Individual States can amend labour laws. The Union government’s role is to forward them to the President. If the President assents, the States are free to implement the amended laws. This is the avenue States such as Rajasthan and Madhya Pradesh are likely to pursue to implement labour reforms. Uttar Pradesh, Himachal Pradesh, and Haryana, are reportedly considering labour reforms to attract investments. Also, with a BJP government having been elected in Maharashtra — an important State in terms of the economy as Mumbai is the financial and commercial Centre of the country — labour reforms are also likely to be initiated there.

This avenue of State initiation-Central consent-presidential acceptance permits initiation of context-specific labour reforms and allows experimentation and flexibility, making the costs of policy reversal less severe. It also encourages much needed accountability on the part of State governments in terms of livelihood outcomes.

As the BJP gets entrusted with the responsibility of governing more States, potential for constructive competition among States to produce the economic, social, and political environments necessary to generate productive livelihood increases. This will also help facilitate the passage of Union government’s labour reform legislation in the Rajya Sabha.

Constitutional amendment
An alternative avenue is to amend the Constitution so that labour primarily becomes a State subject. This merits further research and debate.

A consensus on the outcome-oriented approach adopted by the Modi-led government to labour reforms is emerging. As the benefits, particularly to workers and to businesses, become apparent, greater reforms are likely to become feasible. Here it is essential not to let ‘the best’ be the enemy of ‘the good’, and to keep focus on the 500 million workers in the labour force — not on just the workers who are members of trade unions — and on ease of doing business, particularly for small and medium businesses.

(Mukul G. Asher is Councillor at the Takshashila Institution and a Professorial Fellow at the Lee Kuan Yew School of Public Policy at the National University of Singapore.)

http://www.thehindu.com/opinion/op-ed/comment-reforming-labour-laws-creating-livelihoods/article6545494.ece

Putin blames politics for falling energy prices

 

Thu Nov 6, 2014 8:01pm GMT

* Falling energy prices hit Russia's economy

* Putin says politics prevailing on oil price

* Criticises Pacific trade pact that excludes China, Russia

By Vladimir Soldatkin and Timothy Heritage

MOSCOW, Nov 6 (Reuters) - President Vladimir Putin has suggested that the fall in global oil prices that is hurting Russia's economy was caused in part by political manipulation.

In an interview with Chinese media published on Thursday, Putin did not blame any particular country for the price drop, but some Russian political commentators have depicted it as a Saudi-U.S. plot against Moscow.

"Of course, the obvious reason for the decline in global oil prices is the slowdown in the rate of (global) economic growth which means energy consumption being reduced in a whole range of countries," Putin said, according to a text released by the Kremlin.

"In addition, a political component is always present in oil prices. Furthermore, at some moments of crisis it starts to feel like it is the politics that prevails in the pricing of energy resources."

The price of Russia's flagship Urals URL-E crude oil blend has fallen by about a quarter since the end of June, following the trend in global oil prices.

Trading at over $80 per barrel, it is well below the $114 required to balance the Russian budget. That will further weaken an economy already hurting from Western sanctions over the crisis in Ukraine.

Putin made his comments before going to an Asia-Pacific Economic Cooperation (APEC) summit in Beijing next week and a meeting of the Group of 20 major economies in Brisbane.

Underlining Russia's growing interest in building ties with Asia to ensure it is not isolated by the Western sanctions, Putin said the Asia-Pacific region was seen by Moscow as an increasingly important energy market.

"The steps taken by us ... envisage further diversification of the structure and growth sources of the Russian economy as well as the decrease of over-dependence on the European hydrocarbon market, among other things due to the growth in oil and gas exports to the countries of the Asia-Pacific region."

MAJOR REGIONAL PLAYERS

Russia supplies Europe with a third of its gas needs. It has already started pumping more oil to China, and aims to double the volumes this decade.

Russia's top gas producer, Gazprom, has also agreed to start shipping gas via a pipeline to China from 2019 and to eventually ship up to 38 billion cubic metres a year -- more than any single European country is buying from Russia.

Putin said Russia's relations with China had reached "the highest level of comprehensive equitable trust-based partnership and strategic interaction in their entire history."

By contrast, relations with the United States are at their lowest ebb since the Cold War, because of the crisis in Ukraine.

Both countries are members of APEC and the G20 but Washington says no formal face-to-face talks are scheduled between Putin and U.S. President Barack Obama though they could have an informal conversation on the sidelines.

In a new barb aimed at Obama, Putin criticised the proposed Trans-Pacific Partnership (TPP) free-trade trade pact that the U.S. administration is negotiating with a group of Pacific countries that includes Japan, but not China or Russia.

"Obviously, the Trans-Pacific Partnership is just another U.S. attempt to build an architecture of regional economic cooperation that the USA would benefit from," Putin said.

"At the same time, I believe that the absence of two major regional players such as Russia and China in its composition will not promote the establishment of effective trade and economic cooperation." (Editing by Robin Pomeroy)

 

http://af.reuters.com/article/energyOilNews/idAFL6N0SW7FD20141106?pageNumber=3&virtualBrandChannel=0&sp=true

Modi's Two Self-Goals In One Week

October 21, 2014 23:17 IST

Mani Shankar Aiyar

(Mani Shankar Aiyar is a Congress MP in the Rajya Sabha.)

When Narendra Modi steals other people's schemes and re-launches them as his own initiatives, this purloining of the heritage of others is but a reflection of the absence of anything in his heritage to proclaim as his own. But such larceny is as nothing compared to the havoc he wreaks when he begins to think for himself. Two examples of Modi's self- goals have struck this benighted nation in the week of 11-18 October.

The first was his Saansad Adarsh Gram Yojana (MPs' Model Village Programme). Pray, what business is it of MPs to establish model villages? Is that not the domain of the Panchayats? Launched on 11 October, the birth anniversary of Loknayak Jayaprakash Narayan, it mocks everything that JP stood for in wishing to insulate Panchayats from higher echelons of government, including interfering MPs and MLAs. I know Modi has little knowledge of what went before him but, had he cared to ask, someone might have handed him JP's "Swaraj for the People", priced at one rupee and published in 1961 by the Akhil Bharat Sarva Seva Sangh, Rajghat, Varanasi.

He would have read JP's passionate plea for empowering Panchayats far more effectively than had been achieved by Jawaharlal Nehru on the basis of the 1957 Balvantray Mehta Study Group recommendations. Clarifying that he was "indebted" to many but "most of all to Gandhiji", JP stressed his view, the same as the Mahatma's, "that as you proceed from the bottom level of government to the top, each higher level should have less and less functions and powers." Instead, he bemoaned, we had created an "inverted pyramid" from which it was necessary that the "broad upper levels" be "sawed off (and) brought down to earth so that the pyramid of democracy becomes a real pyramid - narrow at the top and broad at the bottom". In such a system, he said, "the people at each level would have the full opportunity to manage all those affairs that might pertain to that level."

So, what is an MP doing setting up "model villages" at the Panchayat level? At the level of the village panchayat, who more needs the "full opportunity to manage all those affairs that pertain to that level" than the Panchayats themselves? Had Modi been a JP follower, he would have started a Panchayat Adarsh Gram Yojana, ensuring that at least 50 lakhs a year is made available to every village in every panchayat every year so that within 10, perhaps even five years, every one of our 7,00,000 villages is made an "adarsh gram". Launching such a scheme on JP's birthday would have then been highly appropriate.

But to go against the grain of JP's thinking in asking legislators to do the executive's job of facilitating model villages, and that too by leaving it to MPs to decide which three of the 600 plus village panchayats in each constituency he is going to choose, is such a gross violation of everything that JP stood for that it adds insult to injury - that too on his birthday of all days - and amounts to transgressing the most dearly cherished principles that JP stood for. This is what happens when lesser human beings try to steal the clothes of the truly greater ones.

I also pity the MPs. At three villages every year over a five-year period, they would be left explaining to 585 of their 600 panchayats why they were not chosen, and the privilege extended only to 15 others. And how will the MP choose the 15 "adarsh grams"? In all probability, as a reward for votes cast for the MP. This will ensure the MP's defeat at the next election in all the other infuriated panchayats. If, on the other hand, he chooses to please three villages that did not vote for him, the fury of those who supported him last time but, in turn, were not supported by him, will lead to a stern reckoning at the next elections. Thus, both from the Panchayats' point-of-view, and from the MPs', this is truly a lose-lose scheme.

As JP said, "Swaraj from Below" means not a "procedural reform" but bringing "swaraj to the people" by ensuring "a real devolution of power and not a make-belief. It is possible," he warned, "to construct the outward structures of Panchayati Raj and to give it no substance. That would be like a body without a soul, dead from the start, a still-born child". Modi has made a "still-born child" of Panchayati Raj, "dead from the start", by devolving powers and funds to MPs and not Panchayats for the building of model villages.

Worse, to this farcical inauguration in Vigyan Bhawan, he had invited thousands of panchayat representatives, but instead of listening to what they had to say (as Dr. Manmohan Singh and Soniaji had done on a previous occasion when we celebrated the 15th anniversary of Panchayati Raj under my chairmanship in 2008), Modi rudely left the meeting immediately after making his speech and Minister Nitin Gadkari promptly dissolved the proceedings, abandoning the panchayat participants who came to me to complain bitterly about the treatment they had received at the hands of the Modi dispensation.

Next, we have the draft labour legislation tabled in the last session and procedural reforms announced on 16 October. The intended labour reforms signal Modi's pay-back time to the giant corporates who funded his hugely expensive election campaign. They have so infuriated organized labor that even the BJP-affiliated Bharat Mazdoor Sangh has joined its comrades in the Trades Union movement to issue a joint statement on 15 September 2014 decrying the failure of the Central Government to "push through" amendments to the relevant laws "without any consultations with them".

The joint statement explains painstakingly how "liberalizing the provisions of the Factories Act will imperil safety at the workplace (and) push the majority of factories out of its coverage". Further, the amendments proposed will result in "the principal employer and the contractor  becoming unaccountable for service conditions of the workers in a large number of enterprises." Moreover, the amendments proposed for the Apprentices Act "will pave the way for the replacement of contract/casual/temporary workers, and even regular workers, by comparatively low-paid apprentices" And the end-game will be the empowerment of employers to "retrench/lay off workers at will (and) resort to mass-scale contractorisation".

Is this how Modi proposes to promote industrialisation - as growth without jobs and decent employment? To secure an answer to these and other connected questions, the country's entire Trades Union movement is calling National Protest Day on 5 December. Modi has stirred the hornets' nest - and the country will have to pay the price in widespread industrial unrest.
With regard to Modi's "Shrameva Jayate Karyakram", trade unionist Gurudas Dasgupta has accused the Government of catering to the corporates so that "they can play hell." The moves are "anti-worker and pro-corporates". The CPM, for its part, has both pointed out that the Universal Account Number for EPF, which Modi is touting as his achievement, is no more than the finalisation of a programme that has long been in the works, but added that the new norms for implementation of labour laws "will only worsen the situation and encourage further violations by employers."

Prof KR Shyam Sundar of the Xavier Labour Research Institute, Jamshedpur, adds that the new procedures violate ILO's Labour Inspection Convention no. 81 by "centralizing inspections" and "controlling inspection visits from above" and regulating "inspection timings". We are likely to be hauled up in an international forum for Modi's rush to embrace his arch supporters. 

 

http://www.ndtv.com/article/opinion/mani-talk-modi-s-two-self-goals-in-one-week-610281

The limits of self-certification

November 6, 2014

Jesim Pais

Any discussion of industrial safety must reckon that the risk of accidents arising out of faulty maintenance is borne disproportionately by the workers

Sinned against:India has a dubious record when it comes to industrial safety. Picture shows family members of survivors of the Bhopal gas tragedy, one of the world’s worst industrial disasters, paying tribute to victims.— PHOTO: A.M. Faruqui

Prime Minister Narendra Modi, in his recent speech at the Shramev Jayate programme in Delhi, outlined his government’s approach to labour reforms. He began by appearing to take a pro-worker stand, urging those who mattered that workers be treated with respect and dignity. He then rightly made a strong plea for recognising that vocational and technical training has a pivotal contribution to make to industrial development, if not national development itself. While he was careful to recognise the contribution of workers to nation-building, the focus of his speech was on the various ills of the much-maligned inspector raj and the initiatives that his government plans to take to eliminate it.

Among others, he proposed the introduction and implementation of a self-certification scheme in a full-fledged manner. Self-certification has been around for a while in several States, though offered or implemented in different forms. To understand it in its proposed form, it may be useful to go back to Mr. Modi’s speech, where he gave an analogy of maintenance of a personal car versus that of a factory boiler.

He asked, “When we purchase a new car, do we require a government inspector to check if the brakes, the accelerator and the gears function as they should? No, we don’t. We very well know that to maintain our car, its brakes and gear box is in our own interest — it is a question of our own life and death.”

Mr. Modi then went on to suggest the same applied to the maintenance of a boiler in a factory. A factory owner knows it is a matter of life and death. Hence, we need to have confidence in him and trust that he is capable and will act responsibly. Therefore, he went on to say, the factory owner should be allowed to self-certify that his boiler functions properly and that the factory is compliant with respect to all standards.

Flaws in the argument

To begin with, there is a basic flaw in this argument. A personal car is not comparable to a factory and definitely not to a boiler in a factory. In the case of a personal car, there is clearly an inherent incentive for the owner to maintain it, while the same is not true for a boiler. Let me explain.

A personal car is used — and often driven — by its owner. Therefore, the risk of accidents or mishaps due to mechanical failures arising out of its poor maintenance is borne directly by the owner and his/her family.

In the case of a factory and, specifically, a boiler, it is the concerned workers who operate it. Therefore, any risk, life-threatening or otherwise, arising out of poor maintenance of the boiler is borne by workers. Only in very exceptional and rare cases, where the owner himself operates the boiler or positions his office near it, he shares this risk with the workers.

Even when it comes to benefits, it can be argued that in the case of a car it goes entirely to its owner. However, in the case of a factory boiler, while the main benefits go to the factory owner, the operator’s benefits are limited to his wages — a fraction of the total. On the other hand, the risk of accidents arising out of faulty maintenance is borne, disproportionately, by the worker. By equating a personal car with a factory boiler, the Prime Minister seems to have missed these rather elementary points of difference.

It is important to highlight another, more subtle, difference. It has to do with the safety standards. What could be considered safe for domestic operations need not be safe at the level of an industry. While, on average, a personal car is used only for a few hours a day, an average factory boiler is expected to work all 24 hours a day, 365 days a year. In that sense, a personal car and a factory boiler are not comparable. While it is possible that Mr. Modi did not have this difference in mind while making the analogy, it is important and needs to be pointed out.

The context in which a case is being made for self-certification system also needs to be understood. India has a dubious record when it comes to road safety and industrial safety. While in the case of many road accidents, the victims are the owners themselves, in the case of industrial accidents, it is mainly the workers. Further, at times, the victims also include unrelated third parties — like in the case of the Bhopal gas tragedy where most of them were neither owners nor workers but poor slum dwellers living in the vicinity of the factory. Thus, situations relating to industrial safety standards typically suffer from what economists call the problem of ‘moral hazard’.

At present, self-certification schemes — with similar features — are in operation in at least 10 States, including Andhra Pradesh, Gujarat, Maharashtra, Punjab, Rajasthan and Uttar Pradesh. They are voluntary — establishments who do not opt for them continue to operate under the existing labour regulatory standards. As a result, self-certification schemes have few takers.

Under-reporting of accidents

Mr. Modi’s announcement perhaps suggests taking self-certification to the next level in two distinct ways. First, the proposed scheme will be offered nationwide — across States and across industries. Second, it will water down the existing compliance requirements — norms that have made the existing self-certification schemes less attractive to factory owners.

These proposals are being made at a time when there is clear evidence to show that inspection standards relating to labour and industrial regulations have declined drastically in the last two decades.

Data on industrial safety and accidents suffer from serious under reporting. Non-fatal industrial accidents go unrecorded and unreported and only those involving deaths in registered enterprises and those that cannot be concealed at all are reported.

Despite this, data from National Crime Records Bureau show that in 2013, boiler explosion-related accidents alone led to 359 deaths in the country. Another 955 persons died in factory/machine-related accidents. Data also show an upward trend in both industrial mishaps and fatal accidents involving workers. Therefore, what a self-certification scheme is expected to achieve on this count is not clear.

It is understandable that an owner of a factory asks for less stringent regulations or even a lax system of self-certification. However, for a government looking for ways to take the country’s industrial growth and production standards to a higher level, the proposal to introduce a system of self-certification clearly displays lack of imagination. How the introduction of a self-certification scheme will succeed in increasing industrial production, productivity and occupational safety is questionable. If widely applied with less stringent compliance norms, it will only exacerbate the already precarious industrial safety situation in the country.

( Jesim Pais is Assistant Professor at the Institute for Studies in Industrial Development, New Delhi. )

For a government looking for ways to increase industrial growth, the self-certification proposal clearly displays lack of imagination

Exit Jayalalithaa

Volume 18 - Issue 20, Sep. 29 - Oct. 12, 2001
India's National Magazine
from the publishers of THE HINDU

---

Table of Contents

TAMIL NADU

 

In a landmark verdict, the Supreme Court quashes the appointment of Jayalalithaa as the Chief Minister of Tamil Nadu. In doing so, the court also settles questions with regard to the eligibility of a person convicted of an offence to hold such office.

V.VENKATESAN
in New Delhi

THE judgment of a five-member Constitution Bench of the Supreme Court quashing the appointment of Jayalalithaa as the Chief Minister of Tamil Nadu establishes a new orthodoxy: that constitutional legitimacy takes precedence over electoral legitimacy.

Jayalalithaa speaks to mediapersons after meeting Governor C. Rangarajan at the Raj Bhavan on September 21. (K. GAJENDRAN)

In the main judgment, delivered by Justice S.P. Bharucha, who also spoke for Justices Y.K. Sabharwal and Ruma Pal, the Bench held that a person who is disqualified from contesting elections to a legislative body cannot assume office in the executive branch of the government. It also held that membership of the legislature is a prerequisite for holding ministerial authority and the expedient clause that enables a non-member to assume office for a period of six months cannot be applied in the case of an individual who has been disqualified from contesting.

The Bench concluded that on the day Jayalalithaa was sworn in Chief Minister, she had been disqualified from membership of the legislature by reason of her convictions under the Prevention of Corruption Act (PCA) which had attracted terms of imprisonment in excess of two years. Under Section 8(3) of the Representation of the People Act (RPA), she was ineligible to contest the Assembly elections held in May.

The Bench interpreted Article 164(4) of the Constitution, which allows an individual to hold office as a Minister even without being a member of the legislature, to mean that such a person would be eligible to seek election. In the event of that person failing to secure a seat in the legislature within the stipulated time of six months, he or she would cease to be a Minister.

The Bench was confronted with two rival interpretations of Article 164(4). K.K. Venugopal, senior counsel for Jayalalithaa, suggested that the Article should be interpreted as it is, and since it is devoid of any qualifications or disqualifications, none could be read into it. In its final determination, however, the Bench ruled that this one clause of the Constitution cannot be read in isolation of the others. A Minister who secures appointment under Article 164(4) should satisfy the qualifications for membership of the legislature specified in Article 173 and should not suffer any of the disqualifications under Article 191 on the date of his or her appointment, it held.

The Bench added: "It would be unreasonable and anomalous to conclude that a Minister who is a member of the legislature is required to meet the constitutional standards of qualification and disqualification but that a Minister who is not a member of the legislature need not. Logically, the standards expected of a Minister who is not a member should be the same as, if not greater than, those required of a member." Drawing sustenance from the doctrine of the basic structure of the Constitution, the Bench held that it would be permissible for the court to read certain interpretations into the Constitution, based on its language, scheme and spirit. This doctrine was first articulated in the Supreme Court's judgment in the Keshavananda Bharati case in 1973, which pertained to Parliament's power to amend the Constitution.

Justice Bharucha's judgment is based on the reasoning that Jayalalithaa's appointment can be set aside without exploring the foundations of the decision of the person who appointed her. This has exempted the actions of the then Governor of Tamil Nadu, M. Fathima Beevi, from judicial scrutiny.

As the writ petitions only challenged Jayalalithaa's right to hold office as Chief Minister, the Bench claimed that it was not concerned with the Governor's exercise of discretion in swearing Jayalalithaa in. A writ of quo warranto lies against the person who, according to the petitioner, was not entitled to hold public office and has usurped one, explained Justice Brijesh Kumar in his concurring judgment. Article 361 of the Constitution exempts a Governor engaged in the discharge of her duties from judicial scrutiny, but there is no impediment against examining whether a person appointed by the Governor is actually entitled to hold that office, said Justice Brijesh Kumar.

The issue is a tricky one and certain experts have expressed concern that the Bench has yielded too much to the discretionary powers of the Governor.

Justice Bharucha, for instance, has observed: "We are in no doubt at all that if the Governor is asked by the majority party in the legislature to appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the Governor must, having due regard to the Constitution and the laws, to which he is subject, decline, and the exercise of discretion by him in this regard cannot be called into question." This means effectively that there is an asymmetry in the judiciary's power to correct an aberrant exercise of gubernatorial discretion. There is no corrective for the denial of a rightful claim, though the acceptance of a wrongful claim could be set right. If the Governor does appoint an ineligible person, the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings, the Bench made it clear. "That the Governor has made the appointment does not give the appointee any higher right to hold the appointment," the judgment held.

Justice Brijesh Kumar said in his judgment: "The choice of the majority party regarding its leader for appointment as Chief Minister is normally accepted, and rightly. But the contention that in all eventualities whatsoever the Governor is bound by the decision of the majority party is not a correct position. The Governor cannot be totally deprived of element of discretion in performance of duties of his office, if ever any such exigency may so demand its exercise."

Legal experts raised questions about this part of the judgment which gives enormous powers to the President or the Governor to deny the claim of a person duly elected as leader of the majority party to be appointed as the head of government, on the ground that the claimant suffered some disqualification or that all qualifications were not fulfilled. Though the Governor is obliged to show due regard for the Constitution and the laws, he could conceivably arrive at his own determination of legality in certain situations to deny the rightful claims of specific individuals to elected office. There would then be no judicial remedy available for the aggrieved person. Since Governors today are mostly political appointees of the party ruling at the Centre, they often carry overt and covert political agendas into their gubernatorial mansions. Rather than evade the entire question of gubernatorial discretion, the Bench, several legal experts believe, could have gone into the scope of judicial scrutiny over this exercise of power.

Justice Pattanaik sought to tackle this area of ambivalence in a separate but concurring judgment: "In a given case, if the alleged disqualification is dependent upon disputed questions of fact and evidence, the Governor may choose not to get into those disputed questions of fact and, therefore, could appoint such person as the Chief Minister or Minister." But he added that in a case like that of Jayalalithaa's, the Governor would be acting beyond his jurisdiction and against the constitutional inhibitions and norms in appointing a disqualified person as the Chief Minister on the sole reasoning that the majority of the elected members of the party have elected him or her as their leader.

Although it was not called upon to address directly the legal basis of Jayalalithaa's electoral disqualification, the Bench has dealt with some of the issues that have a bearing on this matter. Much of this debate has revolved around the issues of conviction and sentence: Can a conviction or sentence be held to have been waived or suspended during the process of judicial appeal? Would the presumption of innocence apply to an individual despite his or her conviction in a trial court, until the final judicial appeal is exhausted? On these issues, Justice Bharucha has expressed himself with great clarity.

He has said, for instance, that it is not within the power of the appellate court to suspend the sentence against a convicted person. It can only suspend the execution of the sentence pending the disposal of appeal. This does not alter the fact that the offender has been convicted of a grave offence. The suspension of the execution of the sentences, therefore, does not remove Jayalalithaa's disqualification, he reasoned. He also held that the Madras High Court had been in error when it purported to suspend the sentence against Jayalalithaa, rather than its execution.

As for the presumption of innocence, Justice Bharucha's findings are fairly unambiguous: "When a lower court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates and the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate court and the accused released on bail. If the appeal of the accused succeeds, the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial court."

IN his concurring judgment, Justice Pattanaik has made a fervent plea to Parliament to consider the question of bringing conviction under the PCA as a disqualification under Section 8(1) of the RPA so that such convicts are disqualified from contesting elections irrespective of the quantum of sentence. Very much the same concern - of raising the bar for those found guilty of corruption - prevailed when Justice Malai. Subramanian of the Madras High Court expressed his inability to suspend Jayalalithaa's conviction, as she has been convicted under the PCA. But it would be anomalous to raise only the bar for those convicted for corruption, while maintaining the existing qualifying requirements for those found guilty of political crimes, such as demolition of religious shrines or participation in communal riots.

A major flaw in the judgment would perhaps be with regard to its interpretation of Section 8(4) of the RPA, which provides for immunity from disqualification to sitting legislators, if they appeal against their conviction within three months of being found guilty by a trial court. Since the presumption of innocence ceases for non-legislators on conviction by a trial court, this effectively institutionalises a differential scale of rights: with legislators being more privileged than the common citizenry. This, in the opinion of several legal experts, is grossly violative of Article 14 of the Constitution, which guarantees equality before the law to all citizens.

In the narrow sense, the Bench was undoubtedly right in not going into this issue. As Justice Bharucha put it, there was no challenge to Section 8(4) of the RPA on the basis that it violated Article 14. He has, however, expressed his deep unease at the superior rights that it institutes for legislators. He has said that if there were a challenge to Section 8(4), it may be tenable to contend that legislators stand in a class apart from non-legislators, "but we need to express no final opinion". In any case, he concludes, if it were found to be violative of Article 14, it would be struck down in its entirety.

Venugopal had argued that in order to preserve uniformity among the sub-sections of Section 8 of the RPA and to prevent any apparent discrimination, the Bench could "read down" Sections 8(1), (2) and (3) to save the constitutionality of Section 8(4). That would mean accepting the simple solution that final conviction by the appellate court should be the criterion under which disqualification from contesting elections would be deemed to operate under Sections 8(1), (2) and (3). The Bench refused to concede his argument for two reasons: first, Section 8(4) opens with the words "notwithstanding anything" in sub-section (1), sub-section (2) and sub-section (3). And secondly, to apply the principle of Section 8(4) uniformly to all sub-sections would be reading up rather than reading down and this is not known to law.

The effect of the Bench's interpretation would be that the presumption of innocence would apply to a sitting member until the conviction was finally affirmed but in the case of a non-legislator the disqualification would operate on conviction by the court in the first instance. After all, the intention of the Select Committee of Parliament which considered the Representation of the People (No.2) Bill, 1950, was not to restrict immunity from disqualification because of conviction to sitting legislators, even though the language of the Bill failed to reflect this sentiment (Frontline, June 22, 2001).

Again, consistent with its fair interpretation of Article 164(1), the Bench could have restricted the applicability of Section 8(4) of the RPA to the legislators' current term, when they are convicted. Otherwise, the judgment implies that there is no judicial remedy if R. Balakrishna Pillai, who has been elected to the Kerala Assembly despite his conviction by a trial court during his previous term in the Assembly, becomes a Minister by virtue of his appeal against his conviction, even though Kerala Chief Minister A.K. Antony dropped the proposal to include him in his Cabinet reportedly on the advice of the Governor.

In holding Jayalalithaa's appointment illegal, the Bench, however, went by the doctrine of necessity, that certain actions are irreversible. This meant that all acts, otherwise legal and valid, performed between May 14 and September 21 - whether by Jayalalithaa as Chief Minister or by her government - would not be adversely affected.

The Bench pronounced itself unimpressed by the argument that the writ petitions for quo warranto fell outside its jurisdiction because no fundamental rights were involved. One of the petitions filed before it had spoken of a breach of Article 14 of the Constitution. Yet, this issue is not elaborated in necessary detail by the Bench. Neither is it clear why the Bench refused to go into the anomalies inherent in Section 8 of the RPA when it was examining the issue in the light of the fundamental right to equality before law. The Bench may have imagined that the violation of Article 14 was implicit and required no elaboration. Considering that the Bench dealt with a question of great constitutional importance, the reluctance to address the full scope of the issues before it does not appear to be a minor flaw.

http://www.frontline.in/static/html/fl1820/18201290.htm

Conviction will attract instant disqualification: legal experts

Sep 23, 2014 03:02 AM , By Sruthisagar Yamunan | 0 comments

After the Supreme Court verdict last year in Lily Thomas vs. Union of India, legislators have lost their protection from immediate disqualification

With a special court in Bangalore set to pronounce its verdict on September 27 in the disproportionate assets case involving Tamil Nadu Chief Minister Jayalalithaa, political and legal circles are agog with speculation on its possible fallout.

While it is obvious that the verdict in the 18-year-old case would have far-reaching political ramifications, it will also raise significant legal issues.

The immediate question that would arise is whether Ms. Jayalalithaa would be able to continue as Chief Minister in the event of conviction.

After the Supreme Court verdict last year in Lily Thomas vs. Union of India, striking down Section 8(4) of the Representation of the People Act, legislators have lost their protection from immediate disqualification. In the light of this ruling, Ms. Jayalalithaa will be disqualified as an MLA the moment conviction is awarded, say legal experts.

“Under the present law, conviction by the trial court will automatically result in removal from the House,” said K. Chandru, former judge of the Madras High Court.

Under the RPA, the Prevention of Corruption Act falls under a category of offences in which mere conviction, irrespective of duration of the jail term, will entail disqualification from contest.

According to Abhishek Sudhir, Assistant Director of the Centre for Public Law and Jurisprudence at Jindal Global Law School, the Supreme Court had made it clear in B.R. Kapoor vs. State of Tamil Nadu, a case which went into Ms. Jayalalithaa’s appointment as Chief Minister in 2001, that a person who is not eligible to become a legislator under the RPA cannot be sworn in Chief Minister.

“Ms. Jayalalithaa would have to step down as Chief Minister if disqualified as an MLA through conviction,” he said.

A senior Supreme Court lawyer, speaking on condition of anonymity, said even when an appeal is filed in the High Court against conviction, the disqualification would be operative, because normally only the sentence is suspended on appeal. However, if the conviction itself is stayed, it may result in suspension of disqualification.

“Such orders of stay on conviction are given in the rarest of rare cases. Once a conviction is stayed, the disqualification is also consequently suspended,” the senior lawyer said.

However, this does not mean that the person would be reinstated as a member of the Assembly for the same constituency. “Once a member is disqualified, the vacancy would be immediately notified by the Assembly Secretariat. So, on obtaining a stay on conviction, the person may have to contest again in the by-poll,” the lawyer said.

What would happen to the Cabinet and the government in case of disqualification of a Chief Minister?

Senior advocate K.M. Vijayan said the Council of Ministers would have to go as it was appointed on the advice of the Chief Minister.

Mr. Chandru said the legislature party would have to be convened to nominate a new leader. “It is immaterial if there will be a time lag in between [disqualification of a CM and election of new leader of the legislature party] since the Governor can function without the Cabinet for the time being,” he said. Of course, all these questions will become irrelevant in case Ms. Jayalalithaa is acquitted on September 27.

 

http://m.thehindu.com/news/national/tamil-nadu/conviction-will-attract-instant-disqualification-legal-experts/article6436598.ece/

Islam and its interpretations

September 29, 2014

 

Islam is often wrongly and wilfully portrayed as being somehow unique in having had a violent history. But what is unique about Islam is that while other religious movements, particularly Christianity, got over their early violent origins, it failed to move on and update its theological precepts

There has been no Islamic equivalent of  Enlightenment and Renaissance, and the Islamic mindset remains awkwardly out of step with historical progress and therefore with modern times.

What is Islam?

I know Islam’s critics will be dying to answer this question, but it is more important to hear it from Muslims themselves because, after all, it is their conflicting interpretations of Islam which are behind so much of the confusion and mayhem around the world. A religion of peace, yet a religion which is invoked to wreak such mindless violence. A religion which is said to accord dignity, respect and equality to women; yet a religion in which a woman’s testimony is only half as good as a man’s. A religion which exhorts its followers to gain knowledge even if it means “going to China”; yet some of whose most noisy campaigners despise knowledge and are prepared to kill little girls for attending school. And a religion which preaches tolerance and coexistence; yet which has become synonymous with hate and intolerance.

So, what is Islam really about?

Islamic theology

In his book, What Is History? , E.H. Carr urged people to read the historian before they read his or her history in order to get a sense of where that historian is coming from. Many Muslims will say that the same analogy applies to Islam: its interpretation depends on who is interpreting it. So, extremists will interpret it to suit their own agenda while moderate Muslims would offer a different interpretation. But the trouble with this explanation is that it is at odds with the claim that Islam is so perfect, that it is beyond debate or interpretation. Its teachings and edicts are meant to be immutable. Take it or leave it. This claim itself then takes a knock when we hear so many bewilderingly different interpretations that, let alone non-Muslims, even ordinary Muslims are left confused and frustrated. A healthy internal debate is one thing, but tawdry public disputes over the fundamentals of Islam — jihad , sharia, caliphate — is quite another.

What, then, is the problem?

To be fair, it is not entirely the fault of interpreters, and in this I include those who wilfully misinterpret it to promote their sectarian or extremist ideas. The potential for misinterpretation and misunderstanding lies in Islamic theology itself. The Koranic text is a minefield of ambiguity, allowing people to cherry-pick its equivocal and often contradictory verses to back their argument. Similarly, it is easy to manipulate Hadith (a compilation of Prophet Mohammad’s sayings and teachings), another major source of legitimacy for Islamic acts. This is because they are too numerous, were pronounced in vastly different situations, and compiled many years after his death with the result that their precise meaning was frequently lost in translation. Sometimes they were quoted outside the original context. They are routinely plucked out of context to support bizarre claims.

Then there is the problem of “inauthentic” Hadith — sayings attributed to the Prophet which he may or may not have uttered. Even many authentic Hadith have been found to be flawed because of misinterpretation or contextual errors.

On jihad

We have seen a great deal of quibbling over the meaning of jihad . Muslims insist that the “real” concept of jihad does not involve violence and bears no resemblance to Islamists’ interpretation of it. The “real” or “greater” jihad , they say, means a peaceful inner spiritual struggle. An armed struggle against an external enemy is regarded as “lesser” jihad and permitted only in specific circumstances — for example, in self-defence. Theoretically true. Yet, it is also true that around the dining table in Muslim households, the term jihad is invariably used in its violent sense and mentioned in the same breath as “kaafirs.” I grew up in an extremely liberal environment, but I don’t recall, in private conversations, jihad ever being referred to in its philosophical sense. In Indian Muslim discourse, the term normally used for personal struggles, whether social, economic or emotional, is “jaddo jehad” derived from Urdu.

Extremists can be accused of inventing circumstances that, in their opinion, would justify violent jihad , or of targeting the wrong “enemy,” and using appallingly brutal methods of executing their “ jihad. ” But they cannot be accused of inventing the notion of violent jihad itself. There is no denying the streak of violence which — according to distinguished British Pakistani Islamic scholar Ziauddin Sardar — is “inherent” in Islam. But that is not the point. All religions, especially those which set out to gain followers through proselytisation and to conquer empires, have violent histories. Campaigns to “Christianise” Pagan Europe in the Middle Ages were not always peaceful, and then, of course, there is the bloody history of Inquisition and the Crusades.

To a large extent, Islam is often wrongly and wilfully portrayed as being somehow unique in having had a violent history. But what is unique about Islam is that while other religious movements, particularly Christianity, got over their early violent origins, it failed to move on and update its theological precepts. There has been no Islamic equivalent of Enlightenment and Renaissance, and the Islamic mindset remains awkwardly out of step with historical progress, and therefore with modern times — a hiatus reinforced by attempts to assert an Islamic identity through beards and hijabs .

But to return to the question, “what is Islam?” ask any Muslim and they will solemnly enumerate all its nobler aspects: its emphasis on community and oneness which has made it the world’s fastest growing religion; its rejection of caste or class; the spirit of inquiry it fosters; its command not to bow to any temporal authority (thumbs down for authoritarianism and dictatorship); its stress on simple and spartan living; a unique system of zakat to prevent concentration of wealth in a few individual hands; a complete “no, no” to social and economic exploitation; and its egalitarianism. Prophet Mohammed personally oversaw huge reforms in the pre-Islamic slavery practices in Arabia and appointed a former Ethiopian slave, Bilal Ibn Ribah as the first Muezzin in Islam after helping him gain freedom.

Faces of Islam

Muslims will cite Koranic verses and Hadith to underline Islamic injunctions against violence; its command to treat women with respect and accord them equality; its message of tolerance, love, brotherhood, and its exhortation that we treat even our enemies with respect and try to win them over through love and persuasion rather than force. But this is one face of Islam. It also has another, less pleasant, face. For, the Islam preached by the Taliban and their fellow travellers is also Islam; and if you ask them, they will also cite Koranic verses and Hadith to back their claims. Their methods may be extreme but their philosophy does derive legitimately from the same Islamic theology that the good face of Islam does. Muslims must stop being in denial about it.

And this brings us back to what lies at the heart of the problem with Islam — namely the somewhat rough-and-ready nature of the fundamentals of Islamic sources, including the Koran, the central religious text of Islam comprising truths which, Muslims believe, were revealed to the Prophet by Allah from time to time until his death. The Koranic text, in the form of “ aayts ’’ (verses), is not thematically linked nor provides context with the result that an “ aayt ” which might have originated in a specific context is sometimes contradicted by another “ aayt ” on the subject but stated in a different context. This allows a free-for-all scramble for people to grab what might suit them in a given situation. Hence the confusion and the spectacle of extremists and their opponents both quoting the Koran in support of their positions. There is a similar confusion over Hadith, as explained earlier.

The way out is for an Islamic equivalent of the New Testament. Learned Islamic scholars need to put their heads together and present basic scriptures in a manner that the meaning and context of every “ aayt ” and every Hadith is made unambiguously clear, leaving no room for misinterpretation or misrepresentation. This annotated text should then be declared as the authorised version of Islamic beliefs. Otherwise, we will continue to struggle to understand what real Islam is while leaving the field open for fanatics to distort it at will.

(Hasan Suroor is the author of India’s Muslim Spring: Why Is Nobody Talking About It? E-mail: hasan.suroor@gmail.com )

 

http://www.thehindu.com/todays-paper/tp-opinion/islam-and-its-interpretations/article6455633.ece

The lost moral of Islam’s divide

June 21, 2014

Updated: June 21, 2014 00:41 IST

 

With the exception of the Quran, there are no religious or historical references that the Sunnis and Shias agree on

 

Shajahan Madampat

The Sunni-Shia divide is increasingly engulfing Muslim societies in many parts of the world in spasms of internecine violence. The latest developments in Iraq with the Islamic State of Iraq and [Greater] Syria (ISIS) making rapid advances towards Baghdad are an ominous reflection of the deepening of sectarian animosities within contemporary Islam. The potential impact of the current turbulence will be felt far beyond West Asia and North Africa. The developments also indicate — especially in light of the marginalisation of the Muslim Brotherhood and other mainstream Islamist outfits in Egypt, Syria and to a limited extent in Tunisia — that political Islam or Islamism will now be championed with much more lethal effect by groups that profess allegiance to radical Salafism, such as the ISIS.

Islamism, defined broadly, is an ideological construct based on a political reading of Islam in both its history and textuality. It argues that the primary duty of a Muslim is to strive for the establishment of an Islamic state, without which Islam will remain a ‘house half-built.’ Salafism (or Wahhabism) is a theologically puritanical approach that argues for a literal reading of the scriptures, shunning all accretions in matters of faith and life. What is common between the two, however, is that they both operate on a binary notion of the world.

The coming together of Salafism and Islamism is nothing new as al-Qaeda perfectly represented the merger of the otherwise irreconcilable worldviews of the two radical streams. In fact, Osama bin Laden and Ayman Al-Zawahiri personified this coming together of radical Salafism and uncompromising Islamism. The former’s worldview can be traced to the atavistic theology of the 18th century Saudi theologian-activist Sheikh Mohamed bin Abdul Wahhab, while the latter inherited the nihilistic fanaticism of the Egyptian Muslim Brotherhood icon Syed Qutub. But it is with the outbreak of civil war in Syria that we saw the ‘coming out’ of this dangerous concoction from its hideouts in Afghanistan, Yemen and North Africa. The giant strides they are now making in Iraq are indicative of the changing contours of Islamism on the one hand and the new-found role that this brand of Islamism invented for itself against the portentous backdrop of the Sunni-Shia divide.

Origin of the divide

The origin of this divide — the principal fault line within Islam — goes back 14 centuries to the very beginning of Islam. Interestingly, there was nothing religious about it at the beginning as it was a purely political dispute over which an entire theological and jurisprudential edifice was superimposed later on in order to canonise and perpetuate it into a distinctive clerical order. At the core of the dispute was an impassioned argument over whether the principle of succession in the nascent Muslim state should be dynastic or meritorious. The majority of Muslims in the early years of the faith chose merit over dynasty and argued that the prophet’s temporal and spiritual successors should be selected on the basis of their competence, seniority, knowledge and experience. A minority disagreed and said the basis of succession should be familial rather than meritorious. They believed the temporal and spiritual leadership of Muslim society should remain confined to the descendants of the prophet forever.

They thought Ali — the younger cousin and son-in-law of the prophet — deserved the honour, as he was not only a staunch companion of the prophet but also his closest family member by virtue of birth and marriage. Shia is an abbreviation for Shia’t Ali, the party of Ali, and is built around the victimhood of the prophet’s family following his death. The Sunnis do not dispute the importance of Ali and do not disparage him in any way; they consider him one of the greatest companions of the prophet along with the others, including the three other caliphs who preceded Ali in the seat of power. In a way, the difference between Sunni and Shia approaches to Ali is comparable to the difference between Islamic and Christian approaches to Jesus Christ. While both the religions converge on the greatness of Jesus as a man of God, they diverge on questions of his divinity and deification. Just as no Muslim will ever disparage Jesus, no Sunni will ever speak ill of Ali. Like in the case of the two Semitic religions, it was the differences and not the commonalities that were given accent throughout history, resulting in an entrenched culture of de-sacralisation and demonisation of the other on both sides. The fact that the two sects chose to follow totally different references in their respective approaches to jurisprudence and theology widened the gulf further over the centuries. With the exception of the Quran, which in any case has been susceptible to multiple and often contradictory interpretations, there are no religious or historical references that the Sunnis and Shias agree on.

Point of agreement

What is most interesting in this context is that both the sects agree on the need for an Islamic political system on earth. While the Islamists on both sides argue for the primacy of an Islamic state, the others express minor disagreements on questions of prioritising an Islamic state over those of building an Islamic society. No known mainstream religious organisation among both the sects rejects the idea of an Islamic majoritarian state as a desired eventuality. There is total consensus among all that justice will flourish only in such a state where the Sharia would replace all other sources and methods of legislation. What about justice for those who belong to other faiths or no faiths is a minor detail glossed over by self-righteous rhetoric.

This brings us to one of the most exasperating paradoxes in Islamic history. While the only consensus that ever existed across the sects in Islam has been on the desirability of (an immediate or eventual) Islamic state governed according to the Sharia, the principal divide of all times in Muslim society happened because there was no clear concept of a state or political system in Islam. It goes without saying that the method of electing the ruler is the most basic part of any political system, the absence of clarity on which triggered the first and foremost split among the Muslims. The festering wounds of that split continue to bleed the community to this day.

The Quran and the Prophet’s rich traditions left the choice of political systems or the nature of the state to the wisdom of the people and their circumstances. The followers, however, persisted with their delusional search for a theocratic utopia, denuding a faith of its humane core in the process. The Quran stressed on persuasion in matters of faith while the Islamists saw coercion (with the state being its ultimate and most legitimate instrument) as the only method for preservation of the faith. Iran will do all it can to stop the ISIS warriors in their tracks. ISIS will be happy to eradicate the Islamic Republic of Iran. But both will marshal the same set of arguments for the establishment and perpetuation of an Islamic state as well as for the disempowerment of each other in their respective spheres of influence.

In Iraq, for instance, Prime Minister Nouri Al-Maliki and his cohorts will be perfectly happy to replicate the Iranian Vilayat-e-Faqih model of state in Iraq and disenfranchise the Sunni minority. The ISIS will be delighted to establish their model of Islamic state and disenfranchise the Shia majority. Both parties will advance the same arguments to justify and Islamise their brutalities. Creation of a hell here in the name of the hereafter is the fundamental objective of all varieties of Islamism, despite their invocation of justice and divine will in every other sentence they write or speak.

(Shajahan Madampat is a cultural critic and commentator.)

 

http://www.thehindu.com/opinion/op-ed/the-lost-moral-of-islams-divide/article6134190.ece

Independence will be in jeopardy if parties place creed above country, says Pranab

 

Remembering Dr BR Ambedkar President Pranab Mukherjee pays tribute to the architect of India’s Constitution in New Delhi on Thursday. PTI

New Delhi, September 4:  

Amid the rising chorus of ‘Hindu’ being the cultural identity of all Indians, President Pranab Mukherjee on Thursday quoted BR Ambedkar to underline that “it is wrong for the majority to deny the existence of minorities”.

Delivering the BR Ambedkar Memorial Lecture on “Vision of India in 21st Cenury, as Envisaged by Dr Ambedkar”, the President emphasised the nation’s cultural and religious diversity. The Constitution guarantees equal rights to all citizens and prohibits discrimination of all kinds in social relations, he pointed out.

The lecture was organised by the Ambedkar Foundation under the Ministry of Social Justice and Empowerment.

“Dr Ambedkar believed that protection of minorities and their religion was of paramount importance. Thus, the Constitution gives each person the freedom of faith, religion and worship and gives the minorities freedom to manage their religious affairs. Dr Ambedkar justified such protection on the following grounds: ‘It is wrong for the majority to deny the existence of minorities. It is equally wrong for the minorities to perpetuate themselves. A solution must be found which will serve a double purpose. It must recognise the existence of minorities to start with’,” the President said.

Significantly, the President said Ambedkar had warned that if parties place “creed above country”, India’s independence will be in jeopardy.

“Let me conclude recalling Dr Ambedkar’s words from his address to the Constituent Assembly on November 25, 1949 — “In addition to our old enemies in the form of castes and creeds, we are going to have many political parties with diverse and opposing political creeds. Will Indians place the country above their creed or will they place creed above country? I do not know. But this much is certain that if the parties place creed above country, our independence will be put in jeopardy a second time and probably be lost forever,” said the President.

Raging controversy
Mukherjee’s emphasis on this aspect of Ambedkar’s vision for India was made in the wake of a raging controversy over RSS chief Mohan Bhagwat’s statement, “If inhabitants of England are English, Germany are Germans and USA are Americans then why all inhabitants of Hindustan are not known as Hindus?” The statement was apparently endorsed by Minority Affairs Minister Najma Heptullah.

(This article was published on September 4, 2014)

http://www.thehindubusinessline.com/news/politics/independence-will-be-in-jeopardy-if-parties-place-creed-above-country-says-pranab/article6380333.ece