Read The Hindu Notes of 02nd October 2018 for UPSC Civil Service Examination, State Civil Service Examination and other competitive Examination

The Hindu Notes for 02nd October 2018

The voice that is great within us

The crises in Indian democracy and in global politics send one immediately to consult Gandhi

Truth, Satya, was the central axis of the Gandhian system of thought and practice. For Mohandas Karamchand Gandhi, everything turned on Truth — satyagraha, swaraj, ahimsa, ashram, brahmacharya, yajna, charkha, khadi, and finally, moksha itself. In a fine introduction to a new critical edition of the Mahatma’s An Autobiography or The Story of My Experiments with Truth, Tridip Suhrud, closest to Gandhi among all contemporary scholars, lays out the intricate web of ideas arranged around the axial principle of Truth: “Truth is not merely that which we are expected to speak and follow. It is that which alone is, it is that of which all things are made, it is that which subsists by its own power, which alone is eternal.”

In a recent interview, Mr. Suhrud points out that Indians today continue to have “the need that he should always be available to us. When there is a crisis in our collective life, we expect Gandhi to provide an answer.” Both of Mr. Suhrud’s insights — that Truth is the key to Gandhi’s philosophy, and that we rely on Gandhi even decades after his death and long after his supposed lapse into political irrelevance — are essentially correct. I started making a note of the crises in Indian democracy and in global politics that sent one immediately to consult Gandhi.

Truth alone triumphs?

The ongoing controversy in the United States about the proposed appointment of Federal Judge Brett Kavanaugh to the U.S. Supreme Court as the nominee of the Republican Party, even as he stands accused of sexually assaulting Christine Blasey Ford, in 1982, when they were both teenagers, hinges exactly on the truth of her testimony versus his defence. Only one can be true. As became clear in the Senate hearings on September 27, the palpable veracity of Professor Ford’s account over Judge Kavanaugh’s denial would likely still not change the Republican Party’s nomination of him (the outcome of the proceedings, including an FBI investigation, is pending as this article goes to press).

Effectively, the U.S. appears on the verge of replacing Truth with perjury as an acceptable value, even in the apex court of the criminal-justice system, shaking the very bedrock of American constitutionalism. When Truth is rendered negotiable and dispensable, the balance of justice — in this case, between genders and between political parties — is disastrously upset. The scales tip wildly without any kind of mechanism to orient men and women or Democrats and Republicans back into an equitable relationship with one another within a shared political context that ought to be egalitarian and fair.

Like other democratic institutions in the Donald Trump presidency, the U.S. Supreme Court seems poised on the verge of destruction. Arguably Americans, too, could have recourse to Gandhi, though perhaps not in the way that we in India might. Mr. Suhrud describes how Gandhi strained to hear the “small, still voice” within himself, the voice belonging to one he called “antaryami”, “atma” or “God” — an inner prompt, the self as a guide and a compass – so that he could keep moving ever closer to Truth.

It was this voice that he followed, sometimes to the bafflement of others who could not hear it. This was the voice that made him undertake life-threatening fasts his health wouldn’t permit; withdraw from active politics at the most crucial junctures of India’s anti-colonial struggle; leave factual errors and narrative inconsistencies in texts he wrote after readers had pointed out obvious mistakes; and, most difficult to understand, embark on life-long ordeals of a sexual nature, involving not just his own celibacy and asceticism, but also that of his wife Kasturba, his fellow Ashramites, and his sons and their families.

Even close and loyal associates like Jawaharlal Nehru and Vallabhbhai Patel were often confounded by Gandhi’s actions and decisions; more sceptical and antagonistic peers like M.A. Jinnah and B.R. Ambedkar couldn’t make sense of his motivations at all. In his monumental new history, Gandhi: The Years that Changed the World, 1914-1948, Ramachandra Guha delves deep into these knotty episodes, where the voice of the Mahatma’s interior conscience and the compulsions of nationalist politics pull in opposite directions, and no power on earth is able to steer Gandhi away from his self-charted path towards Truth.

Mr. Guha calls Gandhi’s move to have his young grand-niece Manu sleep next to him, as he travelled through ravaged Hindu and Muslim settlements in Bihar and Bengal during the height of communal violence on the eve of Partition, “the strangest experiment”. No matter what the reactions of his colleagues, for Gandhi it was not strange, precisely because it was one of his ‘experiments with truth’ (in Gujarati, satya na prayogo).

Home and the world

Of late, many musicians in south India have faced vicious attacks from rightwing Hindutva groups for singing hymns and psalms, thereby allegedly hijacking “Hindu” Carnatic music for “Christian” evangelical aims. This despite the fact that the violin, central to the Carnatic system in modern times, is a European gift to Indian music, and both Christian and Muslim religious lyrics and poetry have been a constitutive part of the Carnatic repertoire throughout the 20th century, if not before.

Gandhi made great use of the Bible in his prayers, teachings, writings and Ashram liturgies. He was often accused of being a crypto-Christian. However, he flatly refused to give preference to the Vedas over the Bible. Mr. Suhrud quotes from Vol. 31 of the Collected Works: “He is no Sanatani Hindu who is narrow, bigoted and considers evil to be good if it has the sanction of antiquity and is to be found supported in any Sanskrit book.”

Outside India but not far from it, Indologist David Shulman has been reporting consistently on the brutal violence of hardline Zionist settlers as well as the Israeli army against unarmed Arab shepherds and villagers in the Jordan Valley. Mr. Guha delves into Gandhi’s difficult correspondence with philosopher Martin Buber and the intellectual J.L. Magnes in 1938-1939, just before the Kristallnacht. Gandhi advised European Jews to relocate to Palestine and make it their homeland only with the cooperation and goodwill of native Arabs, and not otherwise. This appalled even sympathetic Jews like Buber and Magnes, who had admired and supported Gandhi at the time of the Salt March in 1930, before the Nazi takeover of Germany.

How could Gandhi oppose the Zionist project, with Jews being sent to death camps in Hitler’s murderous regime? But now the tables are turned, and a rightwing Israeli state under Benjamin Netanyahu seems hell-bent on exterminating the Palestinians. Gandhi’s counter-intuitive Truth informs the civil disobedience, passive resistance and non-violent protest of both Arab and Jewish activists who oppose the continuing occupation and takeover of dwindling and defenceless Palestinian territories by bellicose Israeli forces.

The multilingual translator, editor and interpreter Suhrud (who works in all three of Gandhi’s languages, Gujarati, English and Hindustani, and has earlier produced a critical edition of Hind Swaraj), and the historian and biographer Guha (who has already written two other massive books in the past decade, about Gandhi in the first phase of his life, and about postcolonial India, “after Gandhi”), have together provided ample materials this year — leading up to the 150th anniversary of Gandhi’s birth in October 1869, and the 70th anniversary of his assassination in January 1948 — that we can continue to consult Gandhi on all manner of issues that may trouble our individual or collective conscience. It might have been “small” and “still” in his own perception, but even today, Gandhi’s is the voice that is great within us.

At Sabarimala, walking the extra mile

With all women allowed into the temple, the infrastructure has to be carefully revamped

The path-breaking verdict of the Supreme Court striking down the exclusion of women in the 10-50 age group from the Sabarimala temple in Kerala might have put to rest the long-raging question of gender discrimination. But that is not the end of the story. Several aspects of the pilgrimage have rested on the premise that there are no women around. Now that the situation is set to change, considerable flexibility and sensitivity are required to bring about a radical transformation in the management of Sabarimala.

Ground realities

Agencies of the Kerala government and the Travancore Devaswom Board (TDB) already have their hands full in restoring normalcy in the area that was affected by the flood-swollen Pampa river before the annual pilgrimage begins mid-November. With less than six weeks to go, the court ruling only introduces multi-dimensional consequences. The shrine is about 5 km inside the forest, and the difficult terrain is accessible only by foot. It offers basic facilities. However, accommodation at the Sannidhanam, where the shrine is located, is woefully inadequate. The dozen buildings and a few sparsely furnished cottages, that were built by sponsors nearly 50 years ago, offer accommodation to not more than 3,000 pilgrims at a time. Several thousand (male) pilgrims converging at the shrine normally huddle on sheets or mats spread in open spaces. Constructing more buildings now to accommodate more pilgrims, especially women, is not an available option, as land available with the TDB is quite limited. Now, to demand additional forest land for all this is tempting but not the most viable option in the long run.

Notes from the master plan

The Sabarimala Master Plan, which is premised on the acceptance of Sabarimala as a forest shrine located in the Periyar tiger reserve, does not contemplate the construction of new blocks at the Sannidhanam. Rather it advocates the demolition of all unnecessary buildings. The principle is to limit accommodation at the Sannidhanam by developing a base camp at Nilakkal and encouraging satellite camping centres en route. From the base camp, entry into Sabarimala is regulated. This way, pilgrims will have a smooth darshan and exit.

However, this is easier said than done. A growing number of pilgrims and the basic limitations thwart any such ideal scenario. In fact, the whole pilgrimage is regulated by the holy 18 steps that lead to the sanctum. Steep and narrow, they permit only a maximum of 90 persons in a minute. Even if entry is permitted throughout the day, the total number cannot be more than 1.2 lakh pilgrims. As the temple is not kept open 24 hours, this will effectively limit the number to around 50,000 — a small percentage of the number of pilgrims reaching Sabarimala every day. Thus queues are unavoidable. Under the Master Plan, queue complexes have been built for a comfortable waiting period but these have not been integrated properly with pilgrim management strategies. This has often led to a tedious wait, with little room for free movement — a factor that has often been the single largest cause of deaths. After the judicial verdict, there will have to be a considered decision about intermingling versus segregation of male and female pilgrims in these queues.

Winds of change

Today, policing at Sabarimala is more in the nature of crowd control than pilgrim management. With larger numbers of women pilgrims expected now, having women police alone will not help. The style of policing has to change drastically. The law and order approach till now, primarily because of its all-male nature (unruly at times), is no substitute for professional policing. The change has to be from one of control and regulation to that of facilitation and safety.

A new accommodation policy needs to be framed, toilets segregated, women staff engaged and several gender-specific requirements planned and provided for. With meticulous planning and professional management, using existing infrastructure is possible. However, the existing managerial and administrative ethos is inadequate to meet these challenges. Solutions can be found by admitting deficiencies and showing a willingness to embrace unfamiliar changes.

The TDB will be well within its rights to seek from the Supreme Court a preparatory time of a year before Sabarimala can be made gender-sensitive. The judgment has to be seen as an opportunity to change archaic practices and attitudes and usher in a new management culture. The TDB has to absorb the ramifications of the order and undertake planning with foresight. It will be a tragedy if this judgment becomes cause to undertake additional construction at the Sannidhanam. Large-scale modifications of existing buildings, a re-engineering of processes and much-needed training of staff in housekeeping, office management and counter management, etc. are the major tasks the TDB cannot shy away from. With the entry of women now a legally recognised right, its implementation has to be elegant and foolproof. Inadequate safeguards and preparations will only make a mockery of the verdict and validate the worst fears.

The algebra of dissent

To heed the conscience of the court, and hence the nation, we must honour dissenting judgments

Over the past few days in the Supreme Court we have seen some remarkable dissents: Justices Indu Malhotra in Sabarimala, D.Y. Chandrachud in the Activists case and Aadhaar, S. Abdul Nazeer in the Babri reference. Applying the logic of arithmetic, the majority won, the dissenters lost. The media and populist trains soon left the platform. But applying algebra will provide many more insights into both the concurring and dissenting judgments.

Reading a judgment

Some concurring judgments (for example, those of Justice Ashok Bhushan in the AAP v. Delhi LG case and Live Broadcasting case(Swapnil Tripathi v. Supreme Court) tend to repeat the majority, but most judgments, on either side, redeem themselves in some way or the other. Of course, we have to read them, sometimes with difficulty. The Basic Structure judgments (Kesavananda, 1973) were huge. The Aadhaar judgments offer competition. Our judges should write shorter and more pointed judgments.

Of course, in my view, at least two Chief Justices did not write their own judgments. One Chief Justice of India simply repeated arguments of the counsel for most of the judgment and then gave his reasoning in cursory paragraphs. Judgments have to be written with application of mind and reasoning. This is what I call both processual (to listen with care) and value (appreciate and reason with rigour) accountability. It is on this basis that the judiciary has a hallowed place in our democratic Constitution as a custodian of the rule of law and justice.

A history of dissent

In A.K. Gopalan v. State of Madras(1950), Justice Fazl Ali dissented, denying that ‘procedure established by law’ in the life and liberty provisions meant just any ‘law’, not due process. He ruled that fundamental rights cannot be put in isolated compartments but must be seen as a whole. Years later, it is Justice Ali’s view that prevails today. In State of Bombay v. Atma Ram (1951), Justices M. Patanjali Sastri and Sudhi RanjanDas dissented but abandoned their dissent. Justice K. Subba Rao’s dissents in various cases were exemplary in many areas of law. But he sustained his dissents to convert them into law. It was his majority view in Golaknath (1967) that eventually paved the way for the Basic Structure or Kesavananda case (1973) on the misuse of power. H.M. Seervai said that it was Justice J.L. Kapur’s dissent in the K.M. Nanavati case on the Governor’s pardoning power which caused him to write his magnum opus on the Constitution. Justice A.K. Sarkar was a great dissenter, indeed also Justice S.N. Sinha, but in most trajectories to no avail. Between 1950 and1970, I have counted 243 two-judgment dissents in addition to 63 multi-judgment dissents, with percentages varying for each year. The very fact that they are dissents justifies the petition in the Activists (Romila Thapar v. Union of India) case.

Chief Justice Dipak Misra invariably wrote the lead judgment in most of the legally cataclysmic judgments in the past few days. He wanted to be the lead voice with his penchant for self-expression in English inspiring him. But in three matters he did not write a judgment. In the reservations case (M. Nagaraj) he had to carry Justices Kurian Joseph and Rohinton Nariman – the latter wrote the judgment. This was court management. But in two cases, he became the swing vote. In the Activists case, he subscribed to Justice A.M. Khanwilkar’s majority judgment. Media reports that JusticeKhanwilkar was not slated to write a judgment are really irrelevant. A swing vote without judgment can be strong or evasive. We will never know and can only hazard an unintelligent, and much too speculative, guess, without insulting anyone.

Justice M. Hidayatullah could have hidden behind two judgments on acquisition and detention because he had genuinely made a mistake. It is a tribute to his candour that he added a short opinion to say that he had made a mistake to change his view. This was commendable.

What happens after dissent?

Judges who make significant dissents should not give up their stance unless they are convinced that they were wrong. The fact that arithmetic stands in their way in the future is not enough. Justice P.N. Bhagwati was of the view that High Court judges should not be transferred without consent. He sustained his dissent. We know that these transfers are often punitive or because of a spurious policy that arbitrary transfers are necessary for national integration. Arithmetic has prevented re-examination of this view.

In the Basic Structure (Kesavananda) case, four dissenters (A.N. Ray, M.H. Beg, S.N. Dwivedi, Y.V. Chandrachud) eventually agreed with the basic structure doctrine. Was this because they gave up or that they were converted to the new view? If it is a change of heart and mind, and blessed are those who are courageous enough, in such cases judges should frankly say so with a ‘Hidayatullah candour’ to help people understand.

Is politics involved?

There is judicial politics about majorities, concurring and dissenting views. It shows richness of discourse. But sometimes there is an allegation that some judges take partisan political views. The then Law Minister Mohan Kumaramangalam’s view of having committed judges is saddled with the suspicion that ‘commitment’ in Indira Gandhi’s context was not due to a constitutionally sustained ideology but commitment to the regime.

To adapt Justice K. Jagannatha Shetty’s words: “All judges are not expected to sing the same song.” (In America, we can identify political judges who support regime politics. For instance, Justice Brett Kavanaugh is regime-committed. Before retiring, Justice Sandra Day O’Connor became a perceptive swing vote. Fali Nariman’s phrase, “God help the Supreme Court,” certainly applies to the American Supreme Court now.)

During the hearing in some cases, it was “tolerably clear” (a loaded phrase I owe to Upendra Baxi) which way the two sides may divide. That judges may disclose themselves during hearing is not a bad thing as long as their mind is open till the end of the hearing. Some judges don’t do so. But while we cannot but accept these judgments, this should not mean respectful disagreements cannot be made.

What is involved are two discourses: the discourse of the judges which helps us to understand the law including the Constitution, the discourse of the public on the judgment without which neither democracy nor the rule of law can survive. Justice Lord Atkins, in a judgment, rightly pointed out that justice is not a cloistered virtue but should withstand the respectful scrutiny of people. What is disturbing is the reaction to some dissents, especially to Justice Indu Malhotra’s plausible dissent in Sabarimala. We must honour bona fide dissents which may rewrite the past for the future.

Enjoying exporter status, with no liability

The buying house transfers import risks to the manufacturer

The Punjab National Bank (PNB) grabbed headlines with a ₹13,000-crore loss on account of its high-profile client, Nirav Modi. Subsequently, lacunae were identified in the procedures of its foreign exchange transactions. An examination of the modus operandi revealed the ease with which a handful of employees could successfully subvert the internationally established SWIFT to the advantage of the jeweller. It would be well worth raising the question of whether this lackadaisical approach was an exception or whether bankers are easily influenced by the rich and powerful. Is our banking system jeopardising ‘Make in India’ because of its naïve understanding of cross-border financial transactions?

Exporters occupy pride of place as foreign exchange earners. It is well understood that an exporter is under an obligation to repatriate foreign exchange proceeds, against an order backed by a shipping bill as proof of shipment. Further, to make exports competitive, the government of India exempts the exporter from the burden of the Goods and Services Tax (GST). However, a closer scrutiny reveals anomalies that are weakening the domestic manufacturing sector.

An unequal playing field

At the epicentre are the banks misinterpreting the Foreign Exchange Management Act (FEMA) rules in favour of the buying houses, and thus creating an unequal playing field for the supporting manufacturer. The buying house does not have its own manufacturing unit and hence outsources execution of the export order to a supporting manufacturer. The manufacturer produces the goods, ships them to the destination outside India, and signs a declaration for repatriation of foreign exchange. The export documents are handed over to the buying house. Subsequently, the importer makes payment to the banker of the buying house.

However, the ground reality is that all documents, except the shipping bill, are transferred by the supporting manufacturer to the buying house. The buying house claims ‘exporter’ status, but without signing the repatriation declaration or possessing the shipping bill — the only proof of export. The banker of the buying house also accepts the payment of foreign exchange from the importer’s bank on the basis of a mere invoice, whereas rules do not allow it to even handle export documents without a shipping bill. Rule 11 of the Foreign Exchange Management (Export of Goods & Services) Regulations 2015 clearly specifies that all the export documents, including the shipping bill and repatriation declaration, must be transferred by the supporting manufacturer to the buying house. Obviously, banks are flouting a well-established rule. Further, such transactions can easily be used to launder money.

On the other hand, the supporting manufacturer is actually making a domestic sale to the buying house and thus must issue a GST-compliant invoice. The buying house, being an exporter, can then claim input credit from the government. Again, the reality is somewhat different. Since the supporting manufacturer is in possession of the shipping bill and signs the declaration of repatriation, he claims GST exemption based on his ‘exporter’ status.

The real ‘exporter’

At this stage, it is important to ask whether it is legally possible for two different entities to claim ‘exporter’ status for the same shipment. The supporting manufacturer is not the exporter since he does not have a contract with the importer. His banker cannot receive any payment in foreign exchange from the importer despite being in possession of the shipping bill and the repatriation declaration. The truth is that the buying house is transferring its liability and risk to the manufacturer, while continuing to enjoy the privilege of being an exporter.

The ramifications of this crisis of identity become clear when the overseas importer defaults on his payment. The supporting manufacturer, who has undertaken to bring in the foreign currency, actually has no legal right to enforce a claim against the importer. Business loss is inevitable for the manufacturer, with pending employee wages and bills, besides the added complication of the Reserve Bank of India (RBI) and the Enforcement Directorate chasing it. The government is easily misled and chases the domestic manufacturer, while the actual exporter, the nimble-footed buying house, makes a quick getaway.

While it may not be unusual for a buying house or a supporting manufacturer to break FEMA rules, what excuse do the banks have for favouring the buying house? Is the RBI being lax in the enforcement of rules? If ‘Make in India’ has to succeed, can the government afford to keep both exporters and supporting manufacturers outside the ‘One India, One Tax’ policy?