*How Democracies Wither:  The BJP’s Constitutional Coup d’état in Kashmir

“History, in one stroke,” declared the Indian Express on August 6th in a large headline extending across the width of the newspaper.  That, we may say, was an objective rendering of the decision taken by the BJP-led Government of India to remove the “special” status occupied by Jammu & Kashmir over the last seven decades and, in its own estimation, truly “integrate” it into the Union of India.  Though the word “historic” has been utterly trivialized in contemporary discourse, who can doubt, whatever the shade of one’s political views, that August 5th marks a “historic” or red-letter day in the history of the Republic?  But, on a less objective note, the lines from Hamlet may resonate strongly for some:  “Foul deeds will rise, / Though all the earth o’erwhelm them, to men’s eyes” (I.ii.256).

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A deed most foul has been done.  A veil has come down upon Kashmir, but it shall surely lift—even if there will be no suhaagraat, no night of consummation.  The country has been overwhelmed and, for the present, few understand, and even fewer are willing to accept, that a constitutional coup d’état has taken place in India.  The very idea of a constitutional coup will be foreign to those who are accustomed to thinking of a coup as the overthrow of a democratically elected government and, more likely, the imposition of a dictatorship or military rule.  Coups bring to mind tanks on streets, subterfuge, massive misinformation, and fallen heads—a nasty affair.  It has already been argued by the present government and its supporters that everything that was done by the Centre was within the parameters of the law and that Parliament has only exercised its sovereignty.  A bill was introduced to bifurcate the State of Jammu & Kashmir into two Union Territories, one (J & K) with a Legislative Assembly and one (Ladakh) without, and the bill was passed by the required majority both in the Rajya Sabha and Lok Sabha.  On this view, the BJP has, if anything, done everything within its power to affirm and even embellish the sovereignty of Parliament, and all talk of a “constitutional coup” should be construed as nonsense.

Let us, however, first consider only the circumstances—and not the legal conundrums—under which Kashmir was blanketed into such darkness that overnight a State of the Union was wiped out and ceased to exist as such.  Misinformation would be a mild word to describe how the Centre prepared for the coup by describing, in vaguely worded statements, some “terrorist” threats of which it had received information that compelled it to cancel, for the first time in living memory, the Amarnath Yatra, order tourists to leave the Valley, and move in more troops into what is already the most heavily fortified piece of territory in the world.  The word “terrorist” has, of course, become a license for the most egregious offenses—more often than not, by the state, and not merely in India.  The state has only to shout the word “terrorist” and everyone is expected to become compliant, submissive, and patriotic.

On late Sunday, August 4th, the government took the next steps necessary to pull off the constitutional coup.  In the stealth of the night, it placed democratically elected leaders under house arrest.  Then, in the hours following, it placed the Valley under lockdown.  All internet, mobile, and landline connections with Kashmir were snapped:  the reader might like to think of quarantine being imposed, not just on a mere few suspected of harboring a contagious disease, but on an entire population of some 12 million.  Section 144 of the Criminal Procedure Code, which imposes curbs on people assembling together and owes its origins, not surprisingly, to colonial-era legislation, was brought into effect.  Yet more troops were airlifted into Kashmir—as if there weren’t enough over the 600,000 or more Indian army soldiers, CRPF, and BSF who have already turned the state into a heavenly paradise for large-scale corruption, all of course overlooked in the name of “national security”.  This is, need it be said, exactly how a clandestine state operates—a state, in other words, that bears no responsibility to its citizens.

It would take the Home Minister to put the constitutional touches to the coup.  Much has been written in the last few days on whether the actions of the Centre will withstand the scrutiny of the Supreme Court.  It cannot be said that the present Supreme Court inspires much confidence in those who believe in democratic values and the unfettered reign of the “rule of law”. Since many others have commented on the legal questions, it will suffice to make only two points which touch on the question of what I have termed a constitutional coup d’état.  First, unlike other States or Union Territories to which J & K has been likened, for instance with respect to the question of restrictions on the sale of land or property to non-residents or “foreigners”, J & K is distinct in that its relationship to India is also and uniquely governed by the Instrument of Accession which Maharaja Hari Singh signed on 26 October 1947.  “Nothing in this Instrument shall be deemed to commit me”, states Article 7 of the Instrument signed by Hari Singh, “in any way to acceptance of any future constitution of India . . .”, by which it is meant in part that there is nothing which warrants the argument that J & K must necessarily be subject to the Constitution of India.

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Secondly, we must understand the sleight of hand by which the Home Minister was able to argue that it had followed the letter of the Constitution.  One particular provision (sec 3) of Article 370 makes possible an amendment, but it stipulates in no uncertain terms that “the recommendation of the Constituent Assembly of the State . . . shall be necessary before the President issues such a notification.”  The Constituent Assembly of the State of J & K, it should be noted, was dissolved—not merely adjourned—on 17 November 1956.  Thus the legislative body without which the President of India is not empowered to make a decision does not exist.  The Centre took upon itself to argue that, in lieu of the Constituent Assembly, the State Assembly of J & K could well serve the purpose—except that, rather conveniently, since J & K has been under Governor’s or Central Rule, it then devolved upon the Parliament of India, as the next highest sovereign body, to take the matter into its hands.  And so the constitutional coup was accomplished.

Constitutional coups are, if anything, more dangerous than the classic type of putsch where the dismissal of a government and “regime change”, or the replacement of one type of dictatorship by another, takes place in the open.  Even many who are critical of the BJP and its aggressive championing of Hindu supremacy, however much it may be disguised by platitudes about an “inclusive society”, or the utterly pedestrian and insincere slogan of “sabka saath sabka vikas sabka vishwas” (everyone’s support, everyone’s development, the trust of all), have been taken in by the coup effected by the Centre.  Indeed, it is possible to argue that the BJP is far from being the only party that was hostile to Articles 370 and 35(A), and students of Indian politics are well aware of the fact that many of the provisions of Article 370 had been hollowed out over the years.  J & K has also been under Governor’s rule on previous occasions.  (For all practical purposes, President’s Rule and Governor’s Rule are the same, except that, since many provisions of the Constitution of India were not applicable to J & K, the state was placed under Governor’s Rule.)  Why, then, some will argue, should a ruckus be made over the Centre’s arrogation to itself of the right to dismantle the State of Jammu & Kashmir, create two new “Union Territories”, and ensure that the Constitution of India applies to this state as much as it does to every other state of the Union?

What makes a constitutional coup far more dangerous in certain circumstances to the survival of a democracy than the common army-led putsch or dictatorship is the fact that it obscures the vital question of the relationship of means to ends.  However much the Centre may have felt justified in abrogating Articles 370 and 35(A), the fundamental question of the sovereignty of the people, on which the idea of a Republic rides, cannot be dodged.  The people of Kashmir were, needless to say, not consulted in the least; to the contrary, they have been isolated, much like hardened criminals who are placed in an isolation cell.  A democracy is also to be distinguished from other forms of government in its attentiveness to people and common citizens; in a different language, it is distinguished by its sensitivity to means.  It is all the more ironic that a constitutional coup d’état should have taken place in India, since it is difficult to think of anyone else in modern history who was more attentive to the question of means than Mohandas Gandhi, the so-called “Father of the Nation”. Gandhi went so far as to argue that it was enough that those who were in politics paid attention to the means.  The present government, on the other hand, is dedicated to the proposition that ends alone matter:  only the faint-hearted, the romantics, the idealists, and the effeminate think of means.  The constitutional coup effected by the BJP is yet another one of its orchestrated blows to eviscerate the memory and legacy of Mohandas Gandhi.

First published on 9 August by ABP, here:  https://www.abplive.in/blog/how-democracies-wither-the-bjps-constitutional-coup-detat-1050840

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*Fidelity to the Constitution of India:  An Illiterate Muslim Woman and Her Relentless Search for Justice

Do not be surprised if you never heard the name of Bilkis Bano. Much of the world is unlikely to have heard her name.  From a conventional standpoint, she has absolutely no claim on the world’s attention.  She is a Muslim woman of little education and from a working-class background.  She commands neither looks nor wealth.  It is all but inconceivable that she would ever have a “wardrobe failure”, if only because she has barely enough to wear.  If all this were not enough to make her into a non-entity in a world that is dazzled only by riches, the inanities of ‘celebrity culture’—ask the Kardashian sisters, and they could write a modern-day epic with their thousands of mindless exploits, still counting—or “achievements” as these are usually understood, Bilkis Bano is also “damaged goods”.

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Bilkis Bano with her husband, Yakub Rasool, at a press conference in New Delhi, April 2019.

The year was 2002.  Muslims were being slaughtered in Gujarat.  Its Chief Minister at the time, Narendra Modi, later claimed before a special investigative team that he was unaware of the hundreds of killings that were taking place practically under his nose.  Thousands of people were injured, killed, maimed, wounded in spirit; few suffered as much as Bilkis Bano, a 21-year old who on March 3 was gang-raped in her village home near Ahmedabad while she was seven months pregnant.  Bano’s 3-year old was also killed before her very eyes.  Altogether 14 members of her family were murdered.  Bano was left alive, as the killers thought, to nurse her wounds—and, more importantly, to serve as a palpable reminder to members of her community of how they should mind their place in a predominantly Hindu society.

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In January 2008, nearly six years after Bilkis Bano was abandoned by her rapists as among the living dead, a special court convicted 11 men of murder, rape, and criminal conspiracy and sentenced them to life imprisonment.  I then argued in an editorial piece, “Mother Courage”, for the Hindustan Times (4 February 2008) that Bilkis Bano be awarded the Bharat Ratna [literally, “Jewel of India”], which is the highest civilian honor available to an Indian citizen and had thus far only been conferred on fewer than 40 people since its inception in 1954.  “In the loud din being heard these days over the emergence of a new, young, and confident India, typified as much by India’s cricketing triumphs as by the launch of a dream car for the ‘common man’ and brash talk of India as a global power,” I wrote at that time, “Bilkis represents a genuine ray of hope that there is something to live for in the idea of Indian democracy.”

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Bilkis Bano with her husband and daughter a year ago in New Delhi, shortly before a Supreme Court hearing. Credit: Shome Basu.

My argument would have seemed bizarre to those who are aware that the Bharat Ratna is supposed to be conferred on those who have rendered exceptionally meritorious public service to the nation or whose accomplishments do the nation proud.  Many of its recipients have doubtless been worthy of this supreme civilian honor, among them eminent practitioners of the arts such as Satyajit Ray, M. S. Subbulakshmi, Lata Mangeshkar, and Ustad Bismillah Khan. Close to half of the awardees of the Bharat Ratna, including six former Prime Ministers, held high political office.  It is understandable that the luminaries so honored should include Jawaharlal Nehru, who served as the country’s first Prime Minister for seventeen years but whose formidable place within the struggle for independence is equally indisputable.  One need not even speak of his large and rather rich corpus of writings and his mastery of English prose.  Nevertheless, it is worth asking why the notion of “public service of the highest order” has been so narrowly defined as to preponderantly favor those who, as holders of elected office, were perforce performing their duties—and sometimes, to be candid, abusing the privileges of their office.  The real question is not whether all recipients of the Bharat Ratna honored for “public service” have been worthy of the honor, but whether holders of office, who are getting recognition enough, should at all be rewarded.

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So what might qualify Bilkis Bano, an illiterate woman, for the Bharat Ratna?  Where most others in her situation would have succumbed and fled to safety, Bano filed a First Information Report (FIR), something that people in her position are rarely able to do so, and thus compelled the police—and, later, the Central Bureau of Investigation (CBI)—to open an investigation against the suspects.  We must weigh her remarkable resolve against the fact that the middle class in Gujarat would, just months after the pogrom against the Muslims, vote Mr. Modi back into power, which he would certainly have interpreted as an endorsement of the chilling culture of authoritarianism and militant Hindu nationalism which he encouraged in his home state and which he has since then carried over into the rest of India.  Mr. Modi has spoken of the Gujarat “model of development”, but the state which gave the world Mohandas Gandhi has in the last two decades become India’s laboratory for seeding new modes of barbaric hatred.  Some portions of India, judging from the news in last few years, seem intent on emulating Gujarat’s model of hate.  In her quest for justice, Bano received not an iota of assistance from the state government; to the contrary, since her life was under constant threat, she had to move more than a dozen times, and her apprehensions that witnesses could be harmed and the evidence tampered with were doubtless well-grounded. Her lawyers successfully had the court case, which commenced in Ahmedabad, shifted to Mumbai.

The trial dragged on but Bano was not one to be intimidated.  Few would have thought her likely to have such resilience. I have already spoken of what transpired in 2008:  though her rapists and the killers who snatched members of her family from her were convicted, the court found the evidence inadequate to convict either the policemen who characteristically failed to come to her aid or the doctors who tampered with the medical evidence.  Yet Bano persisted:  finally, in July 2017, a court convicted seven policemen and doctors of criminal negligence in the performance of their duties.

Bilkis Bano is now, this week, once again in the news.  Her quest for justice, it appears, has finally come to an end.  The Supreme Court of India has directed the state government of Gujarat to pay her Rs 50 lakhs (nearly $72,000), provide her with a job, and furnish her accommodation. For every Bilkis Bano who has prevailed, there are tens of thousands of ordinary women and men in India whose sufferings have not even entered the history books.  While the ruling in the Supreme Court might justly be celebrated, dozens of other cases languish in the courts.  Nevertheless, for the moment we must be focused on how we might understand the singular achievement of Bilkis Bano.  Though Bilkis is not a lettered woman, she recognized that the communal outlook is so deeply entrenched in Gujarat that no institution of either state or civil society can be said to be free of its grip or reach.  She did not wilt under rigorous and aggressive cross-examination by the defence, unflinchingly identified all the accused in court, and could not be cowed into abandoning or contradicting her testimony.

Remarkable as all that is, there is still something more exceptional about Bilkis Bano.  The rich in India have been opting out of the state over the course of the last two decades, except of course in the matter of receiving subsidies in the form of tax breaks, easy access to credit lines, and so on.  They certainly have no use for the Constitution of India.  Bano’s courage, dedication to the truth, and faith in the judicial system offer a faint glimmer of hope that Indian democracy is not entirely moribund.  It appears that her husband and lawyers stood by her through the long dark years while she struggled for justice, but the greater marvel is that Bano sustained her faith in the Constitution of India when all the odds were stacked against her.   The Constitution is the only document that every Indian can stand by, and perhaps that may one of the many reasons why so few are willing to put their trust in it.  The educated in India should take some lessons from Bilkis Bano.

There is not the remotest possibility that Bilkis Bano will receive even the slightest recognition from the Gujarat Government or even the Government of India. It will be easier for a camel to pass through the eye of an needle than for her to be conferred the Bharat Ratna.  I would not be surprised if the Gujarat Government, which has abandoned the slightest semblance of decency or moral probity, found some way to dodge, dilute, or desecrate the orders of the Supreme Court.  But, whatever the outcome, it is more than a minor relief to know that at least one Indian citizen, and that too a person who is unlikely to appear on any one’s mental horizon, is prepared to defend the Constitution of India with her life.

 

 

 

*Decriminalizing Homosexuality in India

(in three or four parts)

Part I:  Free at Last:  A Supreme Court verdict for LGBT Identity

Thursday’s decision of the Indian Supreme Court to decriminalize homosexuality is justly being celebrated as a historic moment in the country’s modern history.  Section 377 of the Indian Penal Code, which dates back to 1860 and in its elements was drafted by a commission in the 1830s headed by none other than Thomas Macaulay, made voluntary “carnal intercourse against the order of nature with any man, woman or animal” an offence punishable “with imprisonment for life”.  The Delhi High Court in 2009 [Naz Foundation v. Government of NCT of Delhihad given the LGBT community a lease on life in ruling that Section 377 could not be applied to consensual sex between homosexuals, but on appeal to the Supreme Court the high court was reversed in 2013.  In overturning its earlier decision, the Supreme Court in Thursday’s ruling admitted that it had made an egregious mistake and, quite unusually, tendered an apology to “members of the community for the delay in ensuring their rights.”  The Court noted that, in its earlier decision, it had been swayed by the fact that only “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders”, and had come to the false conclusion that the rights of such a minority could not be permitted to fashion the laws for an entire country.  However, the Supreme Court now holds that though a majority may be entitled to govern, it cannot abrogate the rights of a minority, whatever its numerical strength.  The Supreme Court has admitted that it had abrogated not only the right of privacy of LGBT people, but even the fundamental rights guaranteed to them under the Constitution.

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A Rainbow Pride Walk in Kolkata. Copyright:  Debajyoti Chakraborty/NurPhoto via Getty Images.

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LGBTQ community people, with a rainbow flag, celebrate the Supreme Court verdict which decriminalises consensual gay sex, in Bengaluru, Thursday, Sept 6, 2018. (PTI Photo)
Source: https://www.deccanherald.com/national/lgbtq-rights-activists-welcome-691377.html

 

The euphoria being experienced in the LGBT is understandable.  The bold headlines carried by the country’s leading newspapers on Friday tell the story in outline.  The Times of India opined that India had been “ushered into the 21st Century” and they headlined the story thus:  “Independence Day-II.”  The Hindustan Times could, however, muster little more than “Rainbow Nation”:  noting that “Justice is Served”, they characterized the Court’s decision as a “Landmark Ruling” that had been given all the more weight in that all the five justices concurred.  The Indian Express was far bolder with its headline, “Love at First Sight”, above a photograph of two well-dressed petitioners kissing on the cheek.  The Hindi-language Navbharat Times was inventive, expressing the verdict in the formula “377=0”, explaining that the court had rendered Section 377 nought. One might continue in this vein: from all the available evidence, parties had broken out across the country’s metropolitan centers.  A friend sent me an article from the South China Morning Post:  the photographs accompanying the article show men and women holding tearful celebrations as the verdict was being read out and over the course of the day.

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People belonging to the LGBT community celebrating after the Supreme Court’s decriminalization of consensual homosexual sex at an NGO in Mumbai, India, September 6, 2018. Photo:  Reuters.
Source:  Deccan Herald (newspaper)

 

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A portion of the judgment of Chief Justice Deepak Mishra where he quotes from the philosopher John Rawls.

 

The 495-page judgment of the Court, rendered as four different if concurring opinions, is not likely to be read by more than a few lawyers and scholars, law students, and activists, and there will be time enough to ponder over the finer points of the Court’s reasoning.  Nevertheless, there are activists who are already cognizant of the fact that the road ahead is littered with shards of glass.  Conservative elements in all the religious communities have already pronounced their opposition to the judgment but there is no element of surprise here at all.  There are a large number of people who will continue to remain hostile to members of the LGBT community; but it is also quite likely that a large number of people, whose attitude is perhaps best described as indifference, will in time come to accept the Supreme Court’s opinion as the settled law of the land.  Even among many of those who are educated, and often of liberal dispensation, the feeling persists that in a country such as India there are far more pressing issues than the elimination of Section 377—not only the threat to Fundamental Rights enshrined in the Constitution under the present political dispensation, but the crushing poverty of much of India’s countryside, the grave problem of large unemployment, the pandemic of violence against women, the suicides of over 300,000 farmers, and so on.

What is certainly striking in the coverage of the Court’s decision thus far, and in the pictures that have been posted, is that the celebrations appear to have been held entirely in urban areas, and most of those in metropolises such as Delhi, Bangalore, and Mumbai.  No one has argued that Section 377 was not without an impact in the metropolises, but the educated middle classes have, in this matter as in most others, protections which would have been denied to those with fewer privileges in life.  Prosecutions under this section have been comparatively uncommon: according to figures maintained by the National Crime Records Bureau, in 2015 fewer than 1,500 arrests were made.  One cannot minimize the immense psychological hold that Section 377 had over large segments of the LGBT community, giving rise to fear and silence on their part and, conversely, emboldening not only a largely corrupt police but many who sought to blackmail LGBT people.  At the same time, we shall have to ask how, and in what respect, the abolition of the most egregious portions of Section 377 impacts rural India where half of the country still lives.  In raising this question, I am not at all adverting to the common liberal view that the countryside is more conservative and therefore less progressive.  If by conservative one means, for example, that the pace of social change in the countryside is slower, than that is doubtless true of India’s hundreds of thousands of villages; however, the same countryside has, mercifully, been much less prone to accept the communal narratives of the Indian past which are now destroying India, though the extremist Hindus who are these days accustomed to acting with impunity are doing everything to communalize the country’s rural populations.  What is most pertinent is that in rural India one cannot quite escape one’s identity:  a person may proclaim herself a Christian or a lesbian one day, but those identities do not become accepted merely because they have been affirmed.  Above all this is of course the consideration, common to every part of the country, that the law can outlaw certain forms of discrimination, as the Supreme Court has now wisely done in holding Section 377 (except with respect to the provisions about the unlawfulness of bestiality, or sex between a human and an animal) contrary to the Constitution, but it cannot make people have affection for those who are deemed ‘different’.

(to be continued)