Tuesday, December 24, 2013

A NON-LEGAL DEBATE ON RESERVATIONS - Prasanna Timble

Navhind Times, December 15, 2013 

Typically, one salivates at the concept of a high paying secure cushioning of a government job. But then dawns the realisation that the government post is reserved for Scheduled Castes, Scheduled Tribes and Other Backward castes.
This makes most aspiring candidates angry, bitter and abusive. I do not wish to discuss legal provisions and Supreme Court decisions here. I only wish to refute the hollow arguments presented against reservations during our evening balcao talks.
The inherent ignorance and irrationality of arguments presented against reservations continues to amuse me. The most common argument is that reservations will destroy merit and bring in ‘low quality’ and incompetency; public sector will lose is lustre and so will the private sector because even though there are no reservations in the private sector, those who work there are products of the reservation riddled education system. They are incompetent, incapable and undeserving. 
And then there is the argument of fear: “They provide reservations in medical colleges and government hospitals. Would you put your health and safety in the hands of an incompetent doctor?” But when confronted, one is at loss of specific examples and statistical data to support this argument. Nor does one clarify on how private un-aided colleges charging huge capitation fees to NRIs for admissions would not dilute the system. It also needs to be underlined that reservations facilitate only entry into educational institutions. There is no reservation in terms of completion of professional programme, evaluation and results! 
Majority of the slightly educated youth blatantly declare that reservation should be based on economic criteria and not on caste. Apparently, caste-based reservation system would further divide the nation. It will be pertinent to mention that the problem of discrimination has not arisen because of discrimination based on economic status. It has arisen because of discrimination based on caste. Hence, logically speaking, making reservation based on economic criteria is a wrong antidote to the well understood problem. The intention of the Constituent Assembly for making provision for reservations in our Constitution is to give equal opportunity to members of backward class in order to empower them to overcome their initial disadvantage and compete with members of open competition candidates. It attempts to wipe away the isolation of certain segments of the society which was created by the evil caste system.
The half-hearted suggestion to make reservations based on economic status probably gives a faint hope to the non-reserved category that they could be considered for the government job which is not possible in case of caste-based reservations. Further, if caste-based reservation affects merit and would dilute the system then so does reservation based on economic status. Logically speaking, the argument asserting reservations on economic status contradicts the argument repudiating caste-based reservations.
The advantaged and advanced backward class, which is termed as the “creamy layer” is excluded from benefit of reservations which is afforded to socially and educationally backward classes under the Constitution of India. There is absolutely no denying the exclusion of creamy layer. When a person wishes to avail of the benefit of reservation, the rules prescribe that he/she should submit a ‘non creamy layer certificate’. It is true that one can obtain a fake “non-creamy layer” caste certificate for a small sum of money but that does not serve as an argument against reservation. As one can also obtain a fake degree certificate an unholy sum of money and it would be rather foolish to propose to abolish the education system for this reason. It would amount to throwing the baby out along with the bathwater!
Another common argument is that only rich kids belonging to affluent classes avail reservations. The real downtrodden are never benefitted. This is a baseless statement and statistics show otherwise. 
The anti-reservationists are of the opinion that Scheduled Castes, Scheduled Tribes and Other Backward Castes are evil sociopaths who do not wish to do any work and wish to get ahead in life without putting in their share of hard work. The message that is sent is that it doesn’t matter how hard working you are, you will always be judged and criticised if you have availed benefits of the reservation policy. How can a person reach his/her full capability when constantly criticised and judged? 
Apparently, if one belonging to the reserved category is hired, he will open the backdoor and sneak the rest of his “community” in. This anxiety seems to stem from hatred and prejudice towards communities which has been sown and has been simmering in the hearts of the so-called upper castes since the inception of the caste system. In conclusion to the foregoing forensic analysis, I feel that there exists complete denial of the problem itself. Anti-reservationists deny that discrimination ever happened in this country; hence, there is no need to compensate anyone. They are not ready to accept that certain castes deliberately kept certain other castes out of education and employment.
The problem of the SC, ST and OBCs will not be solved by giving them better facilities like sanitation, hospitals, free lunches and free books and waiting for a few generations of the communities to catch up. It can only be done through empowering them by incentive of reservation in education and employment which are basic needs for a person to live with human dignity. By providing an incentive of reservation in educational institutions, the Constitution of India provides an opportunity to the SC, ST, OBCs to gain an entry into the course. The candidate then undergoes the same rigour and training of the course as a candidate from non-reserved category. No relaxation is provided to the candidate during evaluation.
Incompetency of government officials can be attributed to non-accountability and corruption. Hiring reserved category candidates has little to do with it. A caste or class wise analysis of tainted officials, politicians and professionals would testify further.
One has to understand that it is not a race between two individuals of which one is more meritorious than the other but rather, a struggle between various classes of a society. All individuals belonging to different classes of the society cannot be expected to start the race at the same place. Un-equals cannot be treated equally. And lastly, reservations do not contradict the right to equality enshrined in the Constitution of India. Rather, it proposes a much greater concept of equality: Equity. Where equals are treated equally and unequals unequally. 
A final word. Patriotism and loyalty to Bharat should translate into love and concern for people. Hence, I feel that inclusive policies should be accepted and merit understood in the context of empowerment of the underprivileged. 

Saturday, February 16, 2013

No room for ‘others’


Nandini Sundar
The Hindustan Times,New Delhi, February 11, 2013
(Nandini Sundar teaches sociology at Delhi University.)

When Kashmiris say they don’t feel part of India, they are only reiterating a truth that Indian politicians and governments voice all the time. What else does it mean when politicians and large sections of the media talk of how happy ‘Indians’ are at the hanging of Afzal Guru, when his execution is touted as a cathartic closure for ‘India’.

The last time I checked, there was curfew in Kashmir and thousands of other justice-loving people were deeply unhappy at the secretive execution, and at the use of the death penalty to fulfil some atavistic blood lust. How else to read the judges’ pronouncement — even as they noted discrepancies in the police version of his guilt — that the hanging was required to satisfy the ‘collective conscience’?  In fact, Durkheim’s phrase ‘collective consciousness’ conceals the manufacture of consent through the media, the courts and other institutions. And contrary to his prediction that in an interdependent and complex society we would see a growth in reparative justice, in India, what we see is the growth of a vulgar retributive justice, where primal passions are deliberately inflamed to create a divide between ‘us’ and ‘them’.


‘Us’ in the context of contemporary India means the Bajrang Dal who distributed sweets to celebrate the hanging and blackened the faces of people with opposite views; it means the rightwing goons who groped and sexually abused female protesters outside a Delhi college last week with full police connivance.

But ‘us’ also includes the cynical coterie of Congress politicians who periodically decide to join the BJP bandwagon for electoral purposes. If opening the locks of the Babri Masjid and legislating against the Shah Bano judgement were permanent blots on Rajiv Gandhi’s claim to be secular, his son’s installation in the formal pecking order of the Congress has been accompanied by the opportunistic hanging of Afzal Guru.

Sonia Gandhi may have pleaded against the death penalty for Rajiv’s killers, but unless her party takes a principled position against the death penalty for all, this will seem like the rest of her liberal outreach programme, designed to ensure her own good name.

‘Them’ includes all the ordinary people of India — who have had their lands forcibly acquired, their homes burnt, their relatives killed  — in riots and pogroms. ‘Them’ are the seditious fisher folks of Kudankulam, the grave security threats who inhabit the mineral rich villages of Dantewada, the Naga elder and the Kashmiri woman.

And then there are some whose status as ‘us’ or ‘them’ depends on the political calculations of the day. Balwant Singh Rajoana, on death row for the assassination of former Punjab chief minister Beant Singh, may not be hanged because the Akali lobby is important to ‘us’.  But clearly it is not important enough for the victims of 1984 to get justice, in which case they fall into the ‘them’ category.

We are told that the ‘Law’ has taken its course, the ‘Law has come full circle’. Where is this law when the widows of Delhi 1984 are still waiting for justice — and people like HKL Bhagat have died before they could be hung (not that this was ever a worry for him); when the murderers of Gujarat 2002 are still roaming free, and having the EU and others cosy up to their government? Did the law come full circle when the murderers of Bathani Tola were acquitted? Where was the law when thousands of mass graves were uncovered in Kashmir and thousands ‘disappeared’; where is this law when women are raped and their rapist officers or jawans get full protection under the Armed Forces (Special Powers) Act (AFSPA)?


Deponents at the Verma Commission provided a number of cases in Kashmir where the courts had prima facie indicted army personnel, but the central government refused to give permission to prosecute. The Upendra Commission clearly found that Thangjam Manorama was raped and murdered by personnel of the Assam Rifles in Manipur, but not one person has been punished. In Chhattisgarh, young bravehearts who filed rape cases against special police forces with great difficulty  — resulting in arrest warrants against the accused  — are being coerced to take their statements back. But then, I forgot, Kashmiris, Manipuris, the adivasis of central India — are not ‘us’, they are not ‘Indian’.

When asked why the AFSPA is needed to protect armed personnel — since rape can never be done in the line of duty — high-ranking officers come on television to say that 99% of the charges against the army are false, and the women are put up to it by Maoists and militants. So shall we assume then, that the women of the North-east, of Kashmir and adivasi India are congenital liars? Or that the law is designed to ensure they are fair game, a welcome pastime in the ‘course of duty’? Or perhaps, more simply, these women are not ‘Indians’.

If to be Indian is to accept the death penalty, if to be Indian is to accept the unjust hanging of a tortured man born of a tortured and alienated people, if to be Indian is to accept the rapes of my sisters and the impunity of its officers, let me say in the words of the Turkish poet, Nazim Hikmet, “Yes, I am a traitor, if you are a patriot, if you are a defender of our homeland, I am a traitor to my homeland; I am a traitor to my country… if patriotism is the claws of your village lords, … if patriotism is the police club, if your allocations and your salaries are patriotism,… if patriotism is not escaping from our stinking black-minded ignorance, then I am a traitor.”

Saturday, January 26, 2013

Zero tolerance, please!


Sitaram Yechury
January 22, 2013
The Hindustan Times


Union home minister Sushilkumar Shinde’s comments on saffron terror at the recently concluded Chintan Shivir of the Congress in Jaipur has expectedly led to an uproar from the RSS/BJP camp. What must be of concern to the country is Hindutva terror, not Hindu terror. Clearly, no religious community, as a whole, can be held responsible for the terrorist activities of individuals embracing that religion. The same yardstick, however, should apply to other religions as well. However, not, according to the RSS. The RSS routinely adopts resolutions seeking to “curb Islamic terrorism with an iron hand”. This is not merely an expression of double standards. It reflects the ideological roots of converting the modern secular democratic republic of India into the RSS version of a ‘Hindu Rashtra’ based on rabid religious intolerance.

The home minister’s remarks appear to be based on investigations following the announcement made by the former Union home minister, in July 2010, to Parliament that the National Investigation Agency (NIA) will probe the terrorist attacks on the Samjhauta Express and examine the conspiracy behind the attack, including the links of the accused in terrorist attacks at Malegaon (September 8, 2006), Mecca Masjid in Hyderabad (May 18, 2007) and at the Ajmer dargah (October 11, 2007). Sixty-eight people were killed when bombs exploded in two coaches of the Delhi-Lahore Samjhauta Express around midnight of February 18, 2007.

Even earlier, the attention of the Centre was drawn to various reports linking some RSS affiliates with incidents of bomb blasts. At a meeting of the National Integration Council on October 13, 2008, I stated the following: “Police investigations in the past few years have noted the involvement of Bajrang Dal or other RSS organisations in various bomb blasts across the country — in 2003, in Parbani, Jalna and Jalgaon districts of Maharashtra; in 2005, in Mau district of Uttar Pradesh; in 2006, in Nanded; in January 2008, at the RSS office in Tenkasi, Tirunelveli; in August 2008, in Kanpur etc etc.”

Ignoring all this, the BJP has now demanded the sacking of the home minister. Its spokesman said: “If there were terrorists behind the bombings in Samjhauta, the government is free to take action against them. If some former swayamsevak of the Sangh parivar was involved, please act against them. But you cannot tarnish the image of a nationalist organisation.”

Thus they are once again proclaiming that such terrorist acts may be the result of actions by a few ‘deviant elements’ and insist that the organisation must not to be blamed. There is nothing original in such claims. This is precisely what was said about Nathuram Godse following the assassination of Mahatma Gandhi. Godse’s brother, however, is on record, in a media interview, to say that all brothers in the family were active members of the RSS. Announcing the ban on the RSS on February 4, 1948, former Union home minister Sardar Patel stated that “the objectionable and harmful activities of the Sangh have, however, continued unabated and the cult of violence sponsored and inspired by the activities of the Sangh has claimed many victims. The latest and the most precious to fall was Gandhiji himself”.

The history of the RSS and its methodology of functioning belies such theories of a differentiation between the ‘core’ and the ‘fringe’. The issue of imparting militant training to the Hindus and using violence as a political weapon by the RSS has a long history. It was Veer Savarkar (who advanced the two nation theory — Islamic and Hindu — full two years before MA Jinnah did) who gave the slogan “Hinduise all politics and militarise Hindudom”. Inspired by this, BS Moonje, mentor of RSS founder KB Hegdewar, travelled to Italy to meet the fascist dictator, Benito Mussolini. The meeting took place on March 19, 1931. Hegdewar’s personal diary notes of March 20 reveal his fascination and admiration of the manner in which Italian fascism was training its youth (read: storm-troopers) militarily.

After his return to India, Moonje established the Central Hindu Military Education Society at Nashik in 1935, the precursor to the Bhonsala Military School (now charged with imparting training to Hindutva terror) established in 1937. In 1939, Golwalkar took pride in Adolf Hitler’s purging of the Jews and said that it is “a good lesson for us in Hindustan to learn and profit by”. Subsequently, following the demolition of the Babri Masjid, the former Uttar Pradesh chief minister, who has recently re-joined the BJP, gloated over the fact that the karsevaks demolished in few hours while any contractor would have taken days to do.

As if to prove the point that different forms of terrorism feed and strengthen each other, the main accused in the 26/11 terrorist attacks in Mumbai, at present sheltered by Pakistan, Hafiz Saeed, has pounced on Shinde’s remarks as an endorsement of their politics of terror. Recollect, on the eve of 1999 general elections in India, the information secretary of the Lashkar-e-Taiba, when asked as to who should form the future government in India, said: “The BJP suits us. Within a year they have made us into a nuclear and missile power. Lashkar-e-Taiba is getting a good response because of the BJP’s statements. It is much better than before. We pray to God that they come to power again. Then we will emerge even stronger”. (Hindustan Times, July 19, 1999)

India must maintain that terrorism has no religion. It is simply anti-national and, hence, the country should display zero tolerance. Further, various forms of terrorism only feed and strengthen each other, seeking to destroy the very unity and integrity of our country.

Sitaram Yechury is CPI(M) Politburo member and Rajya Sabha MP
The views expressed by the author are personal




In Defence of ‘Uneducated’ Politicians

Prabhakar Timble, 19th September 2011,




POLITICS and politicians, though inseparable from democracy and people’s empowerment are treated as dirty words. Politicians are mocked, ridiculed and scorned.

Many might not have gone to school, but that does not mean that they are not educated. Successful managers gather the alphabets of business management in B-Schools whereas most corporate leaders and entrepreneurs might have never even heard of business schools. To use managerial jargon, political leadership demands skills in human relations, communications, public relations, time-management, public speaking and resource management. Field performance supported by visible results and responsiveness to customer (voter) needs are the managerial objectives to be achieved.



Informal School and LaboratoryPoliticians and political leaders in the making learn these skills in a different laboratory. This is learnt in the market, on the street and pavements, in lanes and by lanes, on grounds and ‘maidans’, in villages, slums and ghettos of the dispossessed and undernourished. Political leaders acquire the desired attitudes, skills and knowledge without going to formal institutions. And even if they go, these are just not taught there. These skills have more to do with common sense and street smartness. They do not form a part of the curriculum of formal education. The formally-educated and qualified might not have acquired the skills needed for political leadership. It’s not money alone and money only that takes one on the ladder of political leadership.
A politician has to be prepared for a life of service, accessible at all times. There are no fixed hours of work. There is no security of office or tenure with assured age of retirement and terminal benefits. They face compulsory termination at the end of every 5 years. They are evaluated by thousands or lakhs of examiners. Their question paper is unpredictable, not based on a pre-determined syllabus to be studied with text-books and reference materials. There are no minimum standards of passing. You either win or lose. There is no third option.
It is true that there are too many political parties and groups in our country. Hence, we have political leaders of all shades and of a variety of educational, social and economic backgrounds. Some type of social background including educational backwardness may not be digested by the forward classes, middle-class and the formally-educated. This disagreeableness is the main reason for many to demand educational qualifications for candidates to enter the portals of legislatures and grass-roots democratic institutions. However, we hardly realise that political literacy is different from acquiring a mere formal qualification in schools and universities.



Explosion of PoliticsIn many political discussions amongst youth reading in universities, I find the multi-party tradition in our country is singled out as a cause for the ills of the present electoral system. To my mind, multiplicity of political groups is inevitable with multiple caste and language identities, regional aspirations coupled with regional inequalities, insecurity perceived by minority groups and the inequality in wealth and opportunity. In fact, I would argue that this multiplicity has acted as a countervailing power on fundamentalism in different spheres. It acts as a speed breaker; thereby, balancing economic policies related to globalisation, privatisation and public sector dis-investment.
A two-party system would have been ruthless towards the disadvantaged and marginalised. The multiplicity has also opened platform and opportunities for participation of all sections and communities in politics, thereby deepening democracy. If we have managed to remain as a single nation with minimum internal threats and turmoil, it is because of the multiple parties which have provided a voice for the grievances of all. This is another angle to look at the multi-party system which pure academicians perceive as a demerit.



Less Educated’ will Usher ChangeNurturing vote banks is a very common charge levelled against the ‘uneducated’ politician. The educated elite blame the landless and the poor in the villages, the homeless and destitute in cities, minorities based on caste/religion and migrants as being responsible for the sway of questionable politicians. We look at slums, construction workers and hawkers as the culprits for polluting our cities and politics. Little do we realise that whatever cleanliness we find in our cities is because of the labour of the migrants. Despite exploitation by the educated and also by politicians who claim their support but never represent them, the underprivileged have mastered the art of survival, suffering and endurance.
Look at us and at them. We agitate if there is a power failure for 10 minutes. They endure even without power. A delayed train or flight is big news. They wait for hours at the bus stands for state corporation transport every day. The moment we turn the tap knob, we get water. If there is a failure for one hour, it would be depicted as a crisis. They are resigned to bring water in pots walking for miles. We sleep in bungalows and flats with air-conditioners and mosquito repellents. They are on pavements and dingy surroundings. They send their children to primary schools where there is no guarantee of toilets and teachers. We bull doze their occupations and livelihood. They still come to us for alternatives. Should we label them as vote banks and responsible for the mess we are in?
Having said all this, let me also reiterate that it is only such citizens and voters who can bring a change. We accuse them of falling prey to bribes by politicians. But, who bribes the politician? Is it anybody else other than the educated and professionals? We also indict the disadvantaged for goondaism and muscle power and politicians for offering them protection. This muscle power protects the educated and professionals and not the illiterate and underprivileged. This muscle protects the economic interests of the powerful as opposed to the less advantaged. How should I describe the educated in the political context? Are they non-vote banks? Or are they money lenders and bankers to the elected representatives?
Our educated politicians are gradually painting and adding two more words as dirty in their vocal dictionary- ‘secular’ and ‘intelligentsia’. It had started by describing this class as pseudo. The formally-educated are right in a way because the intelligentsia cannot go on fast with arrogance and aggression for swabhiman and sadhbhawana. Neither can the secular shout Vande Mataram and Bharat mata ki jaye with hatred in the heart and abuses on the tongue for fellow countrymen.

The lines of control


Karan Thapar 
January 19, 2013
The Hindustan Times


The beheading of an Indian soldier on the LoC and the mutilation of another were undoubtedly unacceptable and unpardonable. This was barbaric behaviour. The anger and revulsion it’s provoked is understandable. There’s no denying that. However, there’s one question we need to ask but  mainly failed to raise. Have we ever been guilty of similar behaviour ourselves?



From what I can tell the answer seems to be yes. On the 10th, The Hindu reported that last year, during a skirmish at Karnah, “Indian Special Forces responded by attacking a Pakistani forward post, killing several soldiers, and by the account of one military official which The Hindu could not corroborate independently, beheaded two.”


What makes this claim credible is that it’s reported by military sources who not only ought to know but would not denigrate the reputation of Indian soldiers.

Alas, there’s more evidence. This time from eye-witnesses.

In her ‘Confessions of a War Reporter’, published in June 2001 by Himal, a well-known Nepalese magazine, Barkha Dutt recounted how she witnessed a decapitated Pakistani soldier’s head at Kargil. This is what she wrote: “I had to look three times to make sure I was seeing right …  “Look again,” said the army colonel, in a tone that betrayed suppressed excitement. This time, I finally saw. It was a head, the disembodied face of a slain soldier nailed onto a tree. “The boys got it as a gift for the brigade,” said the colonel, softly, but proudly.”

Harinder Baweja, the editor (Investigation) of this paper, witnessed something similar. This is the account from her book A Soldier’s Diary, Kargil  — The Inside Story: “The experiences of 18 Garhwal show another side of the war … one of them took out his knife and slit the head of a Pakistani soldier in one stroke. The head was sent to Brigade Headquarters at Drass and pinned to a tree trunk … the enemy head, a grisly trophy, became an exhibition piece. Major General Puri came down from Mughalpura to see it. Other officers dropped in to Brigade Headquarters to take a look. So did some journalists … it was there pinned on the tree for anyone who could bear to look at it.”

So is this proof that Indian soldiers, both in the recent past and during Kargil, have done to Pakistanis what they did to our jawans last week? The Hindu report is clearly not proof.

On the other hand, what Barkha and Harinder saw seems like it. They are eye-witnesses. They’re highly regarded journalists. They have a reputation for telling the truth. More importantly, they have no reason to lie.

However, my intention is not to establish moral equivalence between Indian and Pakistani soldiers, although some might come to that conclusion. It’s to ask why did the media, other than The Hindu, not point this out? You can’t argue it was irrelevant information. More importantly, it would have put a different complexion on the decapitation of our soldiers. And, certainly, it would have tempered the furious discussions on television.

As journalists we owe our audience not just the truth but both sides of it when that’s pertinent. To not be evenhanded is to leave them half-informed.

In this instance, we whipped up passions when we should have helped audiences realise the LoC is a tough place, where brutal actions often happen and both sides retaliate in equally gruesome ways.

When tempers cool and time lends perspective, our audience won’t forgive us for half-truths.

Monday, January 9, 2012

Threat to Federalism from Lokpal Bill

BY SUDHANSHU RANJAN
The Navhind Times, 10/01/12

THE issue of federalism rocked the Lokpal bill. It has united the opposition parties and some allies of the Congress in the UPA-II which want the issue of Lokayukta to be left to the states. The Union tried to enact a central law to give effect to the UN Convention against Corruption to which India is a signatory.

These parties fulminated against the provision to set up the institution of Lokayukta in states under Article 253 of the Constitution which empowers Parliament to make law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference. They, instead, wanted such a law made under Article 252 under which Parliament can legislate for two or more states with their consent and the legislation may be adopted by any other state.


It will be pertinent to mention that under the Government of India Act, 1935, the Central Assembly was competent to enact laws to honour international treaties and agreements with other countries but such laws were not to apply to a state if they affected the state matters unless the Governor of the state had given his previous assent for legislating them. However, this provision was not retained in the Constitution. It was done as the precedent of Canada stared in the face of our Constitution makers. In Canada, the same question arose whether the Dominion Parliament was competent to implement treaties which deal with matters that fall within the jurisdiction of the province.


Federalism is a basic feature of the Constitution as held by the Supreme Court in S R Bommai versus Union (1994). It was for the first time that the presidential notification under Article 356 was tested on the touchstone of the basic structure doctrine though earlier only constitutional amendments were put to such a test. However, the Supreme Court has itself accepted it in a catena of decisions that India is a quasi-federal state, as described by K C Wheare. It is so because the Union has been bequeathed many overriding powers over the states. The most draconian of these powers is given under Article 356 under which the Union can dismiss any state government. Parliament can legislate for states in the national interest (Article 249) or during the pendency of Emergency (Article 250). Articles 252 and 253 are such provisions but the difference is that under Article 252, states are not enjoined to legislate but under Article 253, it is mandatory for states to make the law accordingly. Several laws have been made under Article 253 earlier also like The Administrative Tribunals Act, 1985; The Consumer Protection Act, 1986; The Protection of the Human Rights Act, 1993; The Right to Information Act, 2005, etc., but no brouhaha was created. State administrative tribunals, state consumer commissions, state human rights commissions, and state information commissions were set up due to the respective laws enacted by Parliament. However, in the present Lokpal bill, setting up of the office of Lokayukta by the state has been made optional. In such a case, some states may never create such an office as happened in the case of human rights commission.


Not much use was made of Article 253 for about two decades after the commencement of the Constitution, but recourse to it is being taken quite frequently since mid-1970s. Almost all legislations pertaining to environment have been made under it. Besides, laws relating to T.R.I.P.S. in conformity with WTO are being enacted under it. However, questions have been raised about the desirability and legality of the treaties becoming operative and binding without prior or subsequent participation of Parliament in their making. That is why, the National Commission to Review the Working of the Constitution (2002) recommended the involvement of people’s representatives in Parliament in the exercise of the treaty making power of the government as treaties may encroach upon the rights of the states or even of the Union.
Emergence of Sovereign Nation-States.


In fact, modern sovereign nation-states emerged in the wake of the treaty of Westphalia (1648) at the collapse of the Austro-German Holy Roman Empire. The first modern federal nation-state came into existence in 1787 in the aftermath of the failed experiment of The Articles of Confederation (1777) created by the Continental Congress. The attempt at confederation failed as the centre proved to be too weak to hold the states. So, a decade later, the Philadelphia Convention (1787) created a Constitution which was characterised by a sense of nationalities that was more regionalist than nationalist. Commenting on the US federal system in 1939, Harold Laski predicted the death of federalism saying that “the epoch of federalism was over, and that only a centralised system can effectively confront the problems of the new time”. But Laski was proved wrong and the end of the World War II witnessed the emergence of federal states in Africa and Asia after the yokes of imperialism were broken in different countries including India.
After independence, India opted for a strong centre to check fissiparous tendencies as the independence had been achieved at the cost of country’s vivisection and several provinces were crying hoarse for freedom. So, the Union was given many powers which should not have been given under normal circumstances as some of these powers legitimately belong to states. All-India services like the IAS, IPS, etc., are also an anathema to federalism as even the selection is done by the UPSC and officers are foisted on states. It is a unique feature of the Indian Constitution which is not found in any other country. But since it was adopted by the Constituent Assembly, and Sardar Patel spoke eloquently in its favour, not much noise was made. Still, four states had demanded the abolition of all-India services before the Sarkaria Commission. Similar is the case with the judiciary. The subordinate judiciary works under the High Court which is not set up by the state and its judges are appointed by the Centre.


However, there has been a paradigm shift after 1989 when the first coalition government took over at the Centre. Now, states have become quite powerful and regional satraps dictate terms to even Prime Minister. So, the Union government cannot crush the rights of states as was common under one-party rule. Now, there is no misuse of Article 356 which was earlier imposed at the drop of a hat. Therefore, states are quite strong and the Centre cannot misbehave with them. The anguish expressed by different parties over the encroachment of the jurisdiction of states is only shenanigans to block the anti-corruption law. It is a bitter truth that no party wants the Lokpal to be set up, and so, everyone has a coruscating argument to block it. Certain shibboleths are invoked time and again to put a fa├žade on the real intention. This is exactly the case with federalism.

Thursday, November 3, 2011

The Wages of War

Ramesh Thakur (Times of India, 3rd November 2011)
The writer is professor of international relations, Australian National University.

Two recent events have brought home some ugly truths. A Sri Lankan-origin Australian tried (unsuccessfully) to lay charges against the president of Sri Lanka, visiting Perth to attend the Commonwealth summit, for alleged war crimes in the war against the Tamil Tigers. Another former head of state Muammar Gaddafi was captured, wounded but alive, and, apparently, summa-rily executed.

A shocked and outraged 'international community' is demanding a full and credible investigation, just as it did with charges of war crimes by the victorious Sri Lankan armed forces. It is hard to know how much of this self-righteousness reflects the innocence of 'inner-city elites' about the realities of war, and how much is double standards bordering on racism.

War is nasty, brutish, and not always short.

The Sri Lankan civil war was very, very ugly. Spread over 26 years, it claimed 80,000 lives, including former Indian prime minister Rajiv Gandhi in 1991 and Sri Lanka's president Rana-singhe Premadasa in 1993. The Tigers, among the world's most ruthless terrorist organisations, pioneered the use of women suicide bombers and invented the explosive suicide belt. They recruited child soldiers and killed many civilians, including Tamils. In the final chaotic battles, civilians were held against their will by the Tigers. Many who tried to flee were shot - an act of depravity against their own to which even Hamas and Hezbollah, other practitioners of the art of using civilians as human shields, have not stooped.

The problem with Sri Lanka is not how they ended the last war but how they may be creating conditions for another civil war through vicious triumphalism.

The brutalisation and killing of Gaddafi laid bare the ugliness of a revolution. Since then, another 53 corpses, hands tied behind backs, have been dis-covered in Sirte. During the eight months of the fighting, the rebels too engaged in abductions, torture, killings and other atro-cities against loyalists.

It may be that the liberal conceit of wars regulated by laws and justice is a fantasy. It is not easy to see how the alternatives would have helped Libyans to put the past firmly behind them and focus on a better tomorrow. Gaddafi alive would scarcely have helped to bring closure to the Libyans. His swift execution may bring catharsis. Inter-national criminal prosecution of Gaddafi at The Hague in distant never-never land would have prolonged the Libyans' nightmare - thinkSlobodan Milosevic. Do we have the right and standing to judge whether this served their sense of justice and most urgent political needs going forward?

Had Gaddafi been shredded to death by one of the Nato strikes on Tripoli targeting his hideouts, would that have been any less gruesome and revolting? Why the calls for investigation into how Gaddafi died but not an unarmed Osama bin Laden? Why the insistence on investigations into the final days of Sri Lanka's military campaign but not into US actions in Fallujah in Iraq in 2004? Is President Mahinda Rajapaksa's presence at the Commonwealth Heads of GovernmentMeeting any more grotesque than Tony Blair being a peace envoy?

Images of Gaddafi's final moments have shocked because wars have been successfully sanitised and deodorised. A US-based operator can kill families in the AfPak badlands and Anwar al-Awlaki in Yemen by drone strikes, then drive home for a family meal; neither he nor we have to come to terms with the reality of torn limbs and destroyed lives.

Trophy photos with Gaddafi's corpse in a freezer seems macabre to us. Libyans, who suffered 42 years of his tyranny, formed long queues to see it. Those who live by terror shall be consumed by the furies of the formerly terrorised. This is no more perverse than celebrating victory in a war fought to protect civilians which claimed around 30,000 lives, compared to 1,000-2,000 pre-intervention.

War is bad. Sometimes it may be necessary. Then squeamishness is not an option. A bloodied and dazed Gaddafi is the face of war: washed in blood and bathed in brutality. 'Inter arma silent leges': in times of war, the law falls mute, notes Chicago law professor Eric Posner.

We want to let loose the dogs of war, but restrict them to barking and keep them from mauling and tearing their prey. The choice between the slaughter of the innocents by Gaddafi without intervention, and collateral civilian deaths plus complicity in the atrocities committed by rebels with intervention, was an unavoidable trade-off. Existing laws provide little guidance on the proper terms of the trade-off. We are all complicit in moral ambiguities.

Several conclusions. The rule of international law, human rights standards and international criminal justice institutions are meant to level the playing field between the rich and poor, powerful and weak. They are not additional sticks for western governments and NGOs to beat up on the rest. War should be waged very rarely. Westerners cannot impose moral and international criminal strictures on others but exempt themselves. If the standards are too stringent, they will be violated by military and/or political necessity. Those fighting ruthless opponents with no moral scruples, in chaotic conditions, deserve some slack.