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The Hindu Notes for 10th September 2018

Too close for comfort?

Dialogue with the U.S. should not define India’s strategic future or its other bilateral relationships

The India-U.S. 2+2 meeting on September 6 between the Defence and Foreign Ministers of the two countries appeared to be a singularly one-sided affair. Washington was calling the shots, and New Delhi was trying to wriggle out of U.S. pressure without much success. The inaugural round of the 2+2 Dialogue is therefore ‘advantage U.S.’ While carefully analysing the outcomes of the talks and the future direction of India-U.S. relations, it is difficult to get overjoyed by heart-warming American phrases like “India is a consequential emerging partner” or Washington naming and shaming Pakistan. Let’s look at the bigger, more nuanced and consequential picture.

Buy American

Behind the carefully-constructed narrative of strategic rationales and geopolitical calculations underpinning India-U.S. relations, the American team came to New Delhi with an unambiguous sales pitch. Not that there wasn’t any strategic rationale to the high-level meeting, but the underlying American sales pitch was remarkable. Consider the U.S.’s insistence that India should bring down its oil imports from Iran to ‘zero’ in deference to the restrictions imposed by its unilateral withdrawal from the Iran nuclear deal. The U.S. also recommends that India buy American oil to make up the deficit. As a matter of fact, U.S. oil exports to India have more than doubled in the past year, thanks to the U.S. sanction fears, thereby helping a booming domestic crude oil industry. Notably, at the 2+2 meeting, the Indian side did not manage to get a waiver for importing Iranian crude.

Second, Washington seeks to impose the punitive provisions of a U.S. federal law called Countering America’s Adversaries Through Sanctions Act (CAATSA) on countries dealing with Russian defence and intelligence sectors, making it difficult for India to buy the much-needed S-400 missile system. For a country with close to 60% of its weapons systems originating from Russia, this would be a huge setback. Again, it’s clear the U.S. would like India to buy its weapons instead. There is still no clarity on whether India’s request for a “one-time waiver” was granted by the U.S. to buy Russian weapons at the 2+2 meeting; the joint statement is silent on this. If such a waiver was indeed not granted, it must be considered a major set-back.

In the run-up to the 2+2 meeting, the U.S. also put considerable pressure on India to reduce the bilateral trade deficit, which is in India’s favour, by buying more American goods.

Key security agreement

During the 2+2 meeting, the two countries also signed the Communications Compatibility and Security Agreement, or COMCASA. The agreement is one of three considered to be “foundational” for a viable India-U.S. military relationship. In 2016, India and the U.S. had signed the Logistics Exchange Memorandum of Agreement (LEMOA), allowing their militaries to replenish from the other’s bases. The third, the Basic Exchange and Cooperation Agreement for Geo-spatial Cooperation (BECA), is yet to be negotiated. It is necessary to take stock of the national security implications of these agreements.

The argument in favour of signing COMCASA is that it “will facilitate access to advanced defence systems and enable India to optimally utilise its existing U.S.-origin platforms”. India’s U.S.-sourced P-8I and C-130J aircraft had to use low-tech communication equipment as the U.S. could not provide India with such technologies due to domestic legal restrictions, unless India signed COMCASA. Moreover, in the absence of COMCASA, and the attendant high-tech equipment, the interoperability between Indian and U.S. forces would be severely hampered.

While there is some merit in this argument, given that the India-specific COMCASA is not a public document, we do not know the scope of the agreement. Therefore, the government needs to clarify several concerns. For one, there is the issue of visits by U.S. inspectors to Indian bases to carry out inspections on the COMCASA-safeguarded equipment sold to India.

Since we do not know how intrusive this inspection would be, it is useful to look at the language from a similar agreement signed between the U.S. and South Korea in 2008: “DoD [U.S. Department of Defence]-provided COMSEC [Communications Security] equipment and materials, including keying materials, will be installed and maintained only by authorized US personnel… For purposes of performing required maintenance and periodic inspections, authorized and duly identified US personnel will be permitted timely access to DoD-provided COMSEC equipment and material. DoD will, in cases when time and circumstances permit, notify MND [Republic of Korea’s Ministry for Defence] in advance in those instances when access by authorized US personnel is considered necessary.” (Emphasis added.)

No doubt, South Korea is a U.S. military ally, which India is not. So one hopes that the provisions of inspections would be less intrusive. But there is no getting away from the fact that COMCASA will apply end-use monitoring and reconfiguration restrictions on India as well. In any case, by signing COMCASA and by agreeing to reduce the purchase of Russian weapon systems (in line with CAATSA), India has implicitly accepted the extraterritorial application of U.S. law on itself. While it is true that the original End-Use Monitoring Agreement (EUMA) was agreed to between India and the U.S., in 2009, New Delhi has now taken the application of U.S. federal law on India to a completely new level. EUMA had reportedly ensured that U.S. inspectors would stay away from Indian bases: is that ensured under COMCASA as well? Moreover, did India push for a U.S. presidential waiver for receiving COMSEC equipment and materials without having to sign COMCASA?

There is also a related concern whether the installation of U.S. communication systems would compromise the secrecy of Indian military communication systems. Most importantly, it might also be useful to debate the utility of such India-U.S. agreements since, at the end of the day, the two countries are not likely to be deployed alongside each other in a conflict situation. The argument here is not that India should not make use of American assistance in strengthening its national security, but there should be more clarity on what it entails.

Balancing China

Even though the “Joint Statement on the Inaugural India-U.S. 2+2 Ministerial Dialogue” did not explicitly mention China, the section on the Indo-Pacific region implicitly referred to it. There is no denying the fact that the “China threat” is one of the major talking points between Washington and New Delhi today. While China is indeed a challenge, there is only so much India-U.S. cooperation can do to address that challenge for India. India is an Asian country, with several Southern Asian security challenges, and its ability to meet those challenges with the help of an offshore (and declining) superpower is at best limited, and counter-productive at worst.

The India-U.S. relationship shouldn’t be allowed to define India’s geopolitical character, strategic future or the limits of its other bilateral relationships. In a world that is far more chaotic than ever since Independence, India must keep its options open and be multi-aligned, even as the U.S. forms a key part in that scheme of things.

A greater transformation

In reading down Section 377, the Supreme Court has showed the way to deepen democracy

In its decision in Navtej Singh Johar v. Union of India last week, the Supreme Court has finally struck down the colonial-era law criminalising homosexuality and the lives of LGBTQ persons. In a 493-page verdict, with four concurring judgments, the court traversed the protections of fundamental rights in the Constitution to find that the provision violated the rights of LGBTQ persons to dignity, equality, privacy and expression.

‘Personal matters’

The judges were unequivocal that Section 377 of the Indian Penal Code cavalierly intruded into a zone of intimate decision which is entitled to constitutional protection. As Justice D.Y. Chandrachud put it, “the choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal.” And: “the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

The opinion of the Chief Justice of India, Dipak Misra, invoked Johann Wolfgang von Goethe, Arthur Schopenhauer and John Stuart Mill to stress the right to develop one’s individuality against the demands of social conformity. In the context of LGBTQ persons — where the struggle is often to assert one’s personhood in an isolating, ostracising environment in which heterosexuality is the norm — this constitutional protection given to intimate choices against the dictates of societal conformity cannot be overstated.

The judges were also clear that the guarantee of equality at its heart was the guarantee of equal citizenship. The criminalising ambit of Section 377 violated this guarantee as it “singles out people, by their private choices” and “marks them as less than citizens — or less than human”.

A stereotypical morality

The harm of Section 377 was not just that it prohibited a form of intimate and personal choice but that it encoded a stereotypical morality which has deep-ranging social effects. As Justice Chandrachud put it, Section 377 “perpetuates a certain culture”, based on “homophobic attitudes” which make “it impossible for victims to access justice”. The right not to be discriminated against on grounds of one’s sexual orientation is violated by the prejudicial stereotypes about the LGBTQ community fostered by Section 377. It is for this reason as well that Section 377 was read down by the judges.

This constitutional guarantee of the right to develop one’s personhood and the right to equal citizenship is firmly anchored in the notion of constitutional morality, as referenced by Justices Misra, R.F. Nariman and Chandrachud. The denial to LGBT persons of the right to dignity is incompatible with the morality of the Constitution. As Justice Chandrachud put it, “there is an unbridgeable divide between the moral values on which it [Section 377] is based and the values of the Constitution.”

The idea that majority opinion should prevail over the right to dignity and liberty of the minority was explicitly rejected. As Justice Nariman put it, “it is not left to majoritarian governments to prescribe what shall be orthodox in matters of social morality.”

By explicitly setting out the Court as a guarantor of minority rights, regardless of the opinion of “popular or legislative majorities”, the Court has signalled its determination to defend the Constitution. In a time when lynchings have become the order of the day and government remains a mute spectator, the role that the judiciary has to play in safeguarding the right to life of minorities of all stripes and hues cannot be overstated.

The logic of Navtej Singh Johar is anchored within what both Justices Misra and Chandrachud called “a transformative Constitution”. According to Justice Misra, “the purpose of having a constitution is to transform society” to “embrace therein” the “ideals of justice, liberty, equality and fraternity”. The mandate to transform society in allegiance to the Constitution is a task vested in the state, the judiciary and the citizen.

Continuing task

It is in this sense that we have to understand the work still to be done after this remarkable judgment. If a law has taken root in the social, cultural and legal consciousness, the challenge of extirpating the prejudice which the law has fostered is still immense. One has to only think of the prejudice and violence Denotified Tribes still face at the hands of the state and society even after the colonial-era Criminal Tribes Act was repealed in the late 1940s.

It is this immense task of combating the prejudicial attitudes encoded in Section 377 which has to continue. Justice Nariman was cognisant of this challenge and mandated the Union of India to give “wide publicity to the judgment” and conduct “sensitisation and awareness training for government officials and in particular police officials in the light of observations contained in the judgment”.

The implications of a transformative Constitution are wide ranging and its power can be harnessed by inter-caste, inter-religious and same sex couples, all of whom are battling a form of social morality which is at odds with the Constitution. In fact Justice Chandrachud called “the right to love not just a separate battle for LGBTQ individuals but a battle for us all”.

The court, through this decision, has harnessed the transformative power of the Constitution and amplified a way of thinking rooted in the values of respect for dignity, equality and fraternity. If this way of thinking, rooted as it in the struggle against forms of discrimination perpetrated by a conservative social morality, becomes more widely accepted, India will be less of a majoritarian democracy and more of a form of constitutional democracy.

Arvind Narrain is a founding member of the Alternative Law Forum in Bengaluru

Why not Dalit?

The government advisory on the use of the word shows its intent to further marginalise the community

In pre-Independence India and after 1947, during the several unyielding movements for justice for Dalits, multiple terms have been used to convey the idea of the caste system which B.R. Ambedkar described “as an ascending scale of reverence and descending scale of contempt.” We have been seeing the “descending scale of contempt” for thousands of years manifested in the worst manner possible in the practice of untouchability.

Terms over the years

The many movements launched by social reformers and activists against the caste system and against untouchability have used terms such as Antyajas, suppressed castes, pariahs, depressed castes, Dalits, Harijans, Ati Shudra and Adi Dravida. Jyotiba Phule is credited to have used the term Dalit. Even Mahatma Gandhi accepted the term Dalit when he wrote in 1927 that “from now on, we will describe Antyajas too as dalit.” Explaining that “the term was first used by Swami Shraddhanand”, Gandhi added that “Swami Vivekananda chose an English word having the same meaning. He described the untouchables not as ‘depressed’ but as ‘suppressed’ and quite rightly. They became, and remain, what they are because they were suppressed by the so-called upper classes.”

In 1931, many people disapproved of the use of the word Dalit. Mahatma Gandhi wrote in an article: “Formerly the name Antyaja was not felt as expressing contempt. The names Dhed and Bhangi were disliked. I think the term ‘Dalit’ was first used by the late Swami Shraddhanand. Now it seems that name also is not liked. The real explanation is that as long as the poison of untouchability exists in our society, any name that may be given will probably come to be disliked after some time. Hence the right thing to do is to get rid of that poison.” He added: “Though it is thus necessary to attack the root cause, if a better word than Antyaja or Dalit occurs to anyone he may send it to me.”

In the absence of a better word, Dalit has been the preferred word in the movements for justice for Dalits till now. It is well known that the term Harijan was coined by someone who was a victim of untouchability. He suggested that Gandhi use it to describe the so-called untouchables. That term was widely used during the freedom struggle and many, including Ambedkar, considered it humiliating and patronising. In 1946, Gandhi received a complaint from someone who wrote, “From the psychological point of view, I think the name ‘Harijan’ instils into the minds of the people to whom it is applied a feeling of inferiority, however sacred that name may be. This feeling is very difficult to wipe out from them — to whatever extent they are advanced — if they are always called ‘Harijan’. Similarly if a man in the street is asked about a ‘Harijan’, the first thing he will speak of is ‘untouchability and the Depressed Class’.”

Gandhi responded to that question by writing an article, “What is in a name?”, in which he said: “The name ‘Harijan’ has sacred associations. It was suggested by a Harijan as a substitute for Asprishya (untouchable), Dalita (depressed), or for the different categories of ‘untouchables’ such as Bhangis, Mehtars, Chamars, Pariahs, etc.” He added: “The Government officers put them in a schedule and, therefore, called them the Scheduled Classes, thus making confusion worse confounded.”

A term that denotes pain

The historical narrative conveys the point that many terms have been generated in the movements against caste. The British government did not prefer one term over another even as it put certain castes in a schedule and called them Scheduled Castes. Now, the confusion has become more pronounced with the Bharatiya Janata Party-led National Democratic Alliance government issuing an advisory to the media saying they “may refrain” from using the word Dalit, based on an order by the Nagpur Bench of the Bombay High Court. Previously, the Madhya Pradesh High Court had stated that it would “have no manner of doubt” that the government would “refrain from using the nomenclature ‘Dalit’ for the members belonging to Scheduled Castes and Scheduled Tribes as the same does not find mention in the Constitution of India or any statute.” This has caused hurt among the Dalits, who feel that the term is not offensive or violative of any law, and that such an advisory is not based on sound reasoning.

My book, Marx and Ambedkar — Continuing the Dialogue, co-authored with N. Muthumohan, discusses the Dalit question extensively. Gail Omvedt’s Dalits and the Democratic Revolution deals with Dalit issues. Can the government dare to dictate terms used in books, and in public discourse and analysis?

‘Dalit’ had become the preferred term in Maharashtra during the 1970s. The word Harijan is not used now (the government issued a circular to officials in 1982 saying they should not use the term while describing members of the Scheduled Castes). The word Dalit denotes the pain of all those who suffered because of the caste system; it defines their identity to launch struggles based on Ambedkar’s slogan: Educate, Organise, Agitate. The government’s advisory indicates its anti-Dalit posture. The term Dalit, used by Jyotiba Phule, Swami Shraddhananda, Gandhi, and Ambedkar, cannot be dismissed by an executive order. In fact, the seven-judge Bench of the Supreme Court in S.P. Gupta v. President of India (1981) had observed that society is “pulsating with urges of gender justice, worker justice, minorities justice, Dalit justice and equal justice between chronic un-equals.” In using the term “Dalit justice”, the Constitution Bench of the Supreme Court validated the use of the term Dalit. It is painful to state that what the present government is trying to do was not done even during British rule. Such an advisory sounds strange when no such demand has been made by any Dalit organisation or leader, and when the term is used by the Supreme Court.

Such an advisory at a time when the term Dalit is empowering Dalits in their relentless fight against the increasing levels of atrocities against them, and at a time of heightened Dalit consciousness in the country, only signals the intent of the government to further marginalise the community, which is being asked to conform to the identity determined by the government. This is unacceptable. The government should withdraw its circular and challenge the order passed by the Bombay High Court in the Supreme Court.

D. Raja is National Secretary of the Communist Party of India and a Member of Parliament

My favourite English-man

Justice V.R. Krishna Iyer’s writings shed light on parts of the law and the world that were hidden in plain sight

A few years ago, when I asked my father to recommend a judgment of the Supreme Court for me to read, he mentioned the CIT v. T.N. Aravinda Reddy (1979) case. Authored by Justice V.R. Krishna Iyer, the judgment is pure art. It is about two pages long and is prose that flirts with poetry. Take, for instance, the following: “The signification of a word of plural semantic shades may, in a given text, depend on the pressure of the context or other indicia. Absent such compelling mutation of sense, the speech of the lay is also the language of the law.” Thus, hundreds of pages in textbooks on the principles of statutory interpretation are magically reduced to two sentences.

The judgment also featured spicy embellishments. I wonder, for example, whether the following words directed towards the man in whose favour the matter was ultimately decided represent a compliment or a reprimand: “We have declined to hear Shri S.T. Desai's artillery fire although he was armed cap a pie with Mitakshara lore and law. A point of suffocating scholarship sometimes arrives in court when one nostalgically remembers the escapist verse, ‘Where ignorance is blist; ’Tis is folly to be wise.’ Amen!”

The felicity in his expression and the beauty of his language won me over. His writings proved that clarity and precision in the language need not always come at the cost of linguistic romance. With his masterful articulation, Iyer shined light on parts of the law and the world that were hidden in plain sight. This endeavour, it would appear, was the motive that pushed him to the literary heights that he reached.

This judgment is like a scripture to me in that every time I read it, I see something new. Had my father suggested any judgment other than this one, my language and perhaps my life would probably have been different. Even today, I often speak a sentence and wonder whether I could have framed it better.

To the critics of his style, D.A. Desai said of Iyer’s language, “It is not the language of those who praise simplicity in language on account of their inability to enjoy the vast expanse of the English dictionary.” Professor Richard Field of the Harvard Law School condoned the linguistic adventurism of Felix Frankfurter, as Associate Justice of the United States Supreme Court, when he said, “We don’t decry the vivid phrase,/ The erudite bravura,/ That give judicial mayonnaise/ A touch of Angostura.” Justice Michael Kirby of the Australian High Court described Iyer as “a poet writing in prose.” I cannot agree, for Iyer did not write his judgments, he composed them. For all this and more, he is my favourite English-man.

The writer is a chartered accountant in Bengaluru