Pakistan versus America

Looked at in any way, the situation is intriguing. Here is a country which is dependent on the United States and the world to the extent of an aid package of $4.4 billion in 2010 alone. It is besieged by jihadis from within. Yet, not only does it encourage jihadis to attack its neighbours, but its principal benefactor, the United States, as well. Indeed, now the US says that it is not merely encouragement, but Islamabad is providing direct support to the jihadis to not only attack American facilities in Afghanistan, but kill American soldiers. You would say that this behavior is crazy. Some would say that artful Pakistan is protecting its national interests, and  is merely as crazy as a fox. Others, however, would argue that Islamabad, is crazy, simply crazy.

Perfidy
There is an inevitable sense of schadenfreude in New Delhi as it watches the meltdown of United States’ relations with Pakistan. Since the mid-1950s, the gullible Americans have been part of Islamabad’s project of maintaining strategic parity with India. And now, as American officials directly accuse the Pakistan Army of being involved in attacks against their Embassy in Kabul, and their troops in Afghanistan, the chickens are truly coming home to roost.
An account in Tuesday’s New York Times describing how an American major was treacherously killed in 2007, as he was leaving a peace meeting with Pakistani officials, points to a pathological behaviour that goes well beyond a desire on Islamabad’s part to preserve its national interests in Afghanistan. Yet the Americans have been forbearing till now.




Analysts like Fred Kaplan claim that Admiral Mike Mullen only noted that the September 13 attack on the US Embassy and ISAF headquarters in Kabul was carried out “with ISI support.” That this did not mean that the ISI had foreknowledge of the attack.
However, Reuters put out an item citing Bruce Riedel, a former CIA analyst who has advised the Obama Administration on Afghanistan,  that the US had evidence that the attackers “were in telephone contact with people connected to Pakistan’s principal intelligence agency.” On Saturday, an unnamed Pentagon official told Washington Post that Admiral Mullen overstated his case about the Pakistani relationship with the Haqqanis.
There are three known attacks in Afghanistan where the US has traced the attackers’ links to the ISI: The  attack on the Indian Embassy in Kabul in July 2008,  on Kabul Bank in  Jalalabad in February this year and the assault on the Intercontinental Hotel in Kabul in June. There have been other attacks, such as the one  on the Hamid Guest House in February 2010 in which 9 Indians were among the 16 killed, which have had all the hallmarks of a proxy ISI strike.
Targeting Indians and Afghans is one thing, hitting  the headquarters of your long-time ally and aid-giver quite another. No matter how it seeks to fudge it, playing both sides in a war is a dangerous game, especially when you target a country which is much stronger than you are and which is under great political and economic stress.
Till now the US has swallowed its bile and sought to keep peace. Given the fact that 60 per cent of the supplies for the ISAF and US forces go through Pakistan, makes it difficult to contemplate alternatives. To an extent, the US has opened up the northern route through Russia and the Central Asian Republics. But its hostility towards Iran has blocked off an important overland route that could have matched that of Pakistan.
Islamabad claims it wants peace, but it has gone out of its way to foil every attempt by the Taliban to negotiate with the Afghan national government headed by Hamid Karzai. The February 2010 arrest of Mullah Baradar and the recent assassination of Burhanuddin Rabbani are just two of the instances that point to that policy. What Pakistan wants is a peace in which their proxy, the Haqqani network is the dominant actor.

Accountability
Pakistan has made a great play about how its responses have been the outcome of its national interests, particularly the threats to its sovereignty.  These are specious claims. In the post –United Nations environment, sovereignty is not absolute.
All those who have signed the UN Charter have ceded some of our sovereign rights and over time, we have ceded more through our commitments to various international agreements. Moreover as Christopher Hitchens has pointed out, Islamabad is also subject to UN Resolution 1368 that was passed in the wake of 9/11,  which reaffirmed the right to collective self defence and called on all states to bring the perpetrators of the attacks to justice. It also stressed that “those responsible for aiding, supporting or harbouring the perpetrators, organisers and sponsors of these acts will be held accountable.”
But there are limits to what the US will bear, even for keeping the supply routes open. As it is the convoys have suffered enormous loss from periodic attacks, many of them almost certainly initiated by the ISI. But the US is not likely to easily swallow direct attacks such as the ones we are witnessing in recent times. 
What would Pakistan do if the US gave it an ultimatum on the Haqqanis, saying that if Islamabad does not act, it would and very visibly begin building up forces for the purpose near North Waziristan? What if it got UN sanction to pursue that goal? Pakistan may think China will pull its chestnuts out of the fire, but given its past track record, and its generally ruthlessly pragmatic role, Beijing could well step aside and let Islamabad stew in its own juice.
 Pakistan is making a huge mistake if it thinks that all this is a matter of a year and the US will pull out and leave. That is unlikely under the present conditions. The US would not like to repeat a “departure from Saigon” moment with the Haqqanis firing AK-47s in celebration at departing helicopters from Bagram. Neither will it be sanguine about leaving Afghanistan to a motely crew who will allow terrorists to establish camps and train themselves for more missions against the US and the West.

India
Many wonder what India stands to gain, or lose, from the course of events. We lose a lot from a Pakistani meltdown triggered by the actions of the US. Failing Pakistan is one thing, a failed one quite another. You can be sure that if Islamabad takes on the US, it will indeed fail.
India’s interest is best served by a stable Pakistan, but one that is not a rogue actor on the international stage. However, a great deal of responsibility for bringing Pakistan down in a soft landing from the artificial altitude it has occupied in the last fifty years, rests with the United States. Sadly, after decades of pandering to Pakistan’s fantasies, it is the US which is having to contemplate the hard landing.
India should wish the Americans well, but be wary of any joint schemes of bringing Islamabad to heel. The US is two continents and an ocean away. But Pakistan is our neighbour and so we must pursue a policy which will not lead to any self-defeating long-term bitterness. As it is, there seems to be little clarity in the direction the US wishes to take.
Our Pakistan policy must display firmness, and even toughness, when needed, but also seek to be fair and accommodating, if required. Call it flexible containment, or engagement, if you will. There is no automatic congruence of interests between us and the Americans, though there is considerable room for coordination and cooperation.
Mail Today September 29, 2011

A suicidal path on nuclear energy

There seems to be something contrived in the anti-nuclear agitations that have come to life in the country. This is the time when the India’s enormous fifty-year old investments in nuclear energy, as well as diplomacy related to nuclear energy, are about to pay off. It is true that the Fukushima disaster has shaken up not just Japan, but the entire world. But any fair analysis of the incident would show that it was the outcome of a sequence of events, rather than one incident, a combination that is unlikely to recur in the future.
Because of India’s refusal to sign the Nuclear Non-proliferation Treaty, the Indian nuclear programme became subject to a series of embargoes organised by the United States. This led to a stunting of the programme, since our scientific community was unable to overcome the challenge. Even so, with the sheer passage of time, and some help from countries like France and Russia, India constructed a valuable nuclear estate whose crown jewel has been a fast breeder reactor which is being constructed at Kalpakkam, Tamil Nadu.
 
Motives
Parallel to this was the diplomacy undertaken by the NDA and UPA governments which eventually led to the United States calling off the international embargo against India and allowing India’s civil nuclear industry unhindered access to the world nuclear industry. This has enabled India to obtain scarce nuclear fuel from abroad, as well as reactor technology and the massive upfront investments that are needed for nuclear power plants.
There have always been people opposed to the use of nuclear energy in India. But their numbers could be counted on the fingers of one hand. Remarkably, the prominent nuclear abolitionists even today —Praful Bidwai and Achin Vanaik— date back three decades and more. But in recent times, there seems to be a resurgence of protest given the movements in Jaitapur in Maharashtra, Haripur in West Bengal and now Kudankulam in Tamil Nadu.





However, a closer look will reveal that the main cause for the protests is not so much nuclear energy, but other issues like the land acquisition process, dissatisfaction with development and unrelated political dynamics. Unlike, say, a coal-based thermal power plant, a nuclear plant requires much more land because of safety requirements. But in terms of risks, a big dam poses similar risk of killing thousands if it bursts.
But the protests against the nuclear plants have seen an unlikely coalition of forces ranging from the Left and Shiv Sena in the case of Jaitapur, to Vaiko and a clutch of church leaders in Kudankulam. By invoking safety and involving the traditional anti-nuclear groups, the movements have sought to seize the high moral ground.
A lot of the middle-class brain power is provided by broad based coalitions such as the National Alliance of People’s Movements which are against almost everything—multinational companies, big dams, the use of coal, land acquisition, big industry and World Trade Organisation and so on. Just where the money for many of their constituent NGOs comes from is not clear, but it is not a small sum. Increasingly associated with them are large public sector unions whose goal is to prevent a dismantling of their sector, regardless of economic developments or logic. Shiv Sena, Vaiko and many of the politicians have no reason to be associated in an anti-nuclear protest, other than to fish in troubled waters.
There is no doubt that the nuclear power industry in India has been inefficiently, even incompetently, run. This is in great measure due to the molly-coddling of the Department of Atomic Energy by the government. But for the last decade or so, when government became aware of the inability of the DAE to provide for the country’s nuclear power needs, things have changed and the nuclear deal was one outcome of this.
 
Power
The DAE has always hidden itself behind walls of secrecy. While this could be understood when it came to the nuclear weapons programme, there was no reason why the nuclear power programme could not have been as transparent as, say, the Indian space programme.
In great measure the problems that have arisen at the places where the country is seeking to build new power plants are a result of the inability of the country’s nuclear establishment to reach out to people and allay their fears. After Fukushima, this task has been even more compelling. Everyone who lives within 30 or 40 kilometres of a nuclear power plant should have real-time access to radiation data from there. The government has spoken of making the regulation of the Indian nuclear industry more effective and transparent, but till now nothing has happened.
Post-Fukushima there has been a lot of rethinking on nuclear power. But as of now only Germany has announced its withdrawal from the path of nuclear power. But it was on that track  well before Fukushima. The one reason for this is that countries realise that though there is some risk with nuclear power, there are also advantages. Principally they relate to the environment, since nuclear power is carbon free and it does not require a vast logistical chain of railway trains, tankers or pipelines to supply fuel to the power plant.
As a rich and technologically advanced country, Germany can have the luxury of doing without nuclear power. Even so, before it shut down 8 plants in March this year, nuclear power amounted to 23 per cent of its total requirement. Renewable energy already accounts for 17 per cent. In contrast, nuclear energy accounts for a measly 3 per cent of Indian electricity generation and renewable energy, 10.6 per cent.
Again, in contrast to Germany, or other advanced countries, the choice before India is not nuclear or renewable as the source, but power itself. Large parts of the country do not have electricity at all, and even those that have suffer from prolonged power cuts. Tamil Nadu whose assembly is set to pass a resolution against nuclear power has faced severe power shortages in the last two years bringing its booming industrial sector to a grinding halt.
 
Leadership
Industrial countries have been talking of a “nuclear renaissance” based on newer, much safer nuclear technology. As it is, they have already derived considerable benefits from nuclear power. Nearly 30 per cent of electricity in Japan still comes from nuclear energy, Switzerland 40 per cent, France 75 per cent, and the figures for the US are 20 per cent, even though no new nuclear reactor has been added in its system for decades.
India is on the threshold of its industrial era. But that is likely to be strangled if the alliance of anti-industrialisation and neo-Gandhian groups are able to ride on the people’s anger against land acquisition and underdevelopment to bring their utopian agenda to the fore. What we need is sober and hard-headed political leadership that is able to contain its populist impulses for a while to enable the country’s development agenda move ahead.
At the same time, we need to open ourselves up to viable alternatives, which could be in the area of nuclear energy, or any other form. There is, for example, the case of pebble bed reactors which are much safer and can use our abundant thorium resources.
Of course, this has to be within the paradigm of normal development, not a Gandhian regression of our society back to the villages, where life would once again be nasty, brutish and short.
Mail Today September 22, 2011

Where are the leaders when you need them ?

It is difficult to define what leadership is. Some may say it is the social influence you exercise to attain a particular goal, others say it is instinctive, exercised by the leader of a wolf pack or a silverback gorilla.
Others see it simply as a management skill, to be taught and learnt. Most people would put it down to influence, and throw in words like “charisma” for good measure. But they would also say that a leader has the ability to inspire others to do their best, or bring out the best in a people. It is not surprising that leadership often reveals itself in the midst of a crisis. This is the time you need that other great feature of a good leader— the ability to take risks and go beyond the seeming logic of events.
 
Abroad
Anna Hazare put it this way in his TV marathon of Tuesday evening, “Jab sankat hota hai to bhagwan ek aadmi khara kar deta hai (Whenever there is crisis God gives us the man)”. With self deprecating modesty he did say he was not sure whether he was the chosen one. Messiahs are, of course, part of the religions of the Book, sent to rescue frail mankind in their hour of crisis. But  messiahs are for believers, usually giving short shrift to the unbelievers. In another category, alas too frequently in history, is the Man on the Horseback who promises so much and eventually brings great misery.
Today, most of the world is in a crisis of sorts. Economies have tanked, jobs are scarce, politics are adrift, worse, there are countries at war. The blood and iron of a war has thrown up great leaders in the West — Pitt the Younger, Abraham Lincoln, Franklin Delano Roosevelt and Winston Churchill. Yet, strangely, the one thing that seems marked by its absence, is the lack of leadership everywhere—the US, India, Japan, Europe.
The 10-year old War against Terror seems to have had quite the opposite effect. It has shown up the leader of the Free World, George Bush, as a bumbler extraordinaire who single-handedly undermined the effort by veering off to fight a war against Iraq. So we have the quagmire in Afghanistan, and the new threats in Somalia and Yemen. If anyone’s leadership stands out in this period it is of the Amir ul Momineen, Mullah Omar.
For a while it appeared that Barack Obama, he of the soaring rhetoric, would seize the mantle of leadership. But sadly, he has been all talk. His team misread and mismanaged the US economic crisis and the result is another quagmire, this time at home. Of course, he has lacked that other thing that all good leaders must have: luck. With Europe also going into a tailspin and the Afghan war not making any headway, the Obama presidency seems doomed and can only be redeemed by the fact that his Republican challengers in the next elections are pygmies compared to even him.
The situation in Europe is no better. Leaders of UK, France or Germany seem to be helpless in the face of the slowly unfolding Eurozone crisis, layered upon the failure of their social policy defined by the word “multiculturalism”. David Cameron set out on his prime ministership with broad bold strokes, but the past six months seem to have reduced his swagger. He has lost the opportunity to reform the NHS, and the recent riots have put a question mark over his other social policies. Nicholas Sarkozy was mooted as a leadership icon when he was first elected but he has not worn his crown well. Polls suggest that resentment against Sarkozy’s leadership style and lack of results runs deep in his country.
Angela Merkel has never been the flashy leader of the Sarkozy variety. But her hesitation in dealing with the economic crisis has doomed her as well in the eyes of the electorate. The situation in Japan is too obvious to comment on. Here is a country that has had six prime ministers in the last five years.
 
India
You will not find great leadership elsewhere either. Vladimir Putin has belied the hopes that had accompanied his rise in Russia and the prospect of a renewed presidential term next year inspires little confidence in a country that seems to be drifting. Hu Jintao and Wen Jiabao have done well, but not so much as leaders in the class of Deng Xiaoping, being highly able bureaucratic caretakers who have taken China to great heights. The world still awaits a display of genuine leadership from China, whether on some difficult domestic issue, or the larger world where China has become so much more important.
In his first term, goaded perhaps by his Leftist “allies” the Indian Prime Minister Manmohan Singh displayed considerable leadership qualities in, for example, taking the Indo-US nuclear deal and pushing it through his party and parliament, providing a stable riot-free polity after the trauma of Gujarat 2002. In the second term we only see drift. Perhaps it is a function of his peculiar situation of being a leader without a party, or maybe age has caught up with him. Clearly, he seems to have lost two vital leadership ingredients—a fire in his belly and the stomach to take risks.
In the Opposition there are people who have leadership qualities. Two of them stand out, Mayawati and Narendra Modi. But, their record reveals deep flaws which does not bode well for the future, were they to be thrust in a larger role. Self-centred Mayawati has given little to her state in terms of good governance, not even to the Dalits.
On the other hand, while Modi has provided good governance in his state, he has a deep moral flaw arising from his handling of the 2002 Gujarat massacres. The issue is less whether Modi, then new to his job, planned the violence, but
more about his cynical use of the killings to consolidate his own position and
his very public lack of remorse for what happened.
 
Requirement
India can therefore partake of schadenfreude from the awareness that we are not the only ones who are suffering from a lack of leadership. But that does not alter our predicament, just as it does not give comfort to the Americans, the Japanese and the Europeans. But the needs of a desperately poor country, confronted with the opportunity of an era, are much greater.
Our leadership cannot just run the system, as the Chinese leaders have been doing, or allow it to run down as the Americans and Europeans are doing. They need to do things. Someone has to fix our education system whose products are unemployable, or agriculture which has been underperforming for the past two decades. Or, provide a health care system that will prevent the poor from being beggared, or move 400 million people from marginal agriculture to the factory in short order.
No doubt many of the unfortunates we have discussed would bemoan the circumstances into which they have been thrown— Nine Eleven, the financial crisis of 2008, the Eurozone debt crisis of 2009 and so on. They are good men, thrust into conditions they are not able to control or alter. But it is only such circumstances in which we look to our leaders and in which their qualities are tested.
For the present we can only await that leader and hope that we do not get someone who has a direct line to god, or a fuehrer determined to take us to his version of a Ram Rajya.
Mail Today September 21, 2011

Making sense of Wikileaks

The Indian media has devoted a great deal of space and air time on the revelations from the hundreds of cables that were put on the internet by Julian Assange and Co. What is it that fascinates about the information?  There are the odd comments on people and their foibles, but maybe it is the frank mirror they show to our society that’s so engaging. Or, it is the perverse thrill of reading something that was not meant for our eyes, the kind you get when you read someone else’s mail or eavesdrop on a conversation.
Had most of these documents come out, as they invariably do, after a period of ten or fifteen years, there would not have been much comment. After all, the United States publishes the declassified diplomatic papers in its turgid Foreign Relations of the United States series which is of interest mainly to the historian. But Wikileaks has given us a glimpse of the secret communication, between American diplomats in the field and their headquarters, about events that have occurred just the other day, dealing with the high and mighty like Rahul Gandhi, Mayawati and others, with a blunt forthrightness that you do not see in the Indian media.

Sweep
What is striking is the systematic manner in which the world’s sole superpower works to vacuum information about opinions, trends and events across the world. From September 5-8, 2008, for example, US diplomats were, to go by one cable, preoccupied, among other things, with the respiratory health of Indians because of an Indo-US working group on indoor air pollution (IAP) that was taking place in Chandigarh. Among the vicarious details that the cable revealed was that IAP kills between 400,000 and 2 million Indians each year. This is not something that has, notwithstanding its seriousness, exercised Indians themselves very much.
We must understand these cables are merely a record of diplomatic traffic. You will find in them some secrets, but you do not have the more secret CIA or Pentagon cables here. They are the bread and butter reports of diplomats, and you can be sure that Indian diplomats, too, send similar posts back home.
The problem is that our diplomatic service is so small that it cannot compete with the Americans, even on their own turf in, say, Bangladesh or Sri Lanka. Neither do they have the sweep of the Americans who wondered in February 2010 why the Indian MEA officer dealing with the UN has not heard that an Indian, Kamlesh Vikamsey, is a candidate to head the UN Office of Internal Oversight Services in New York. For its part, the Embassy in New Delhi got Vikamsey’s bio-data from the net and passed it on to Washington DC. Vikamsey is a well-known Mumbai-based chartered accountant who was once president of the Institute of Chartered Accountants of India (ICAI).
Since they are internal reports which were not meant to be made public, at least in the short term, there is every effort on the part of the writer to be objective. The American diplomats are quite professional and assiduous in seeking information on a particular subject. A cable, say, on the Sino-Indian border issue will contain a summary of the issue, official briefings from the Ministry of External Affairs, from the Chinese Embassy in New Delhi, professors from Jawaharlal Nehru University and, perhaps, a former diplomat.
The Indian cables are largely from the 2004 to February 2010 period, though there are the odd cables from 1985 from the US Embassy in Dublin and Ottawa, relating to the crash of AI 182 Boeing 747, caused by a terrorist bomb.
In the 2004-2010 period, the principal events of importance in India were, besides the political upheavals, terrorist violence, the expansion of Maoism, India-Pakistan engagement, the developments in Kashmir, Sino-Indian talks, and climate change. They also include the growing relationship between the US and India, covering the issue of terrorism and culminating in the Indo-US nuclear deal.

Bribery
The cable traffic shows foreign policy as  a conversation of the elite officials who make foreign policy. The cable that reveals that India was merely going through the motions of seeking David Coleman Headley’s extradition is not unusual. Sometimes, as the then National Security Adviser M K Narayanan seems to say, “the people” have to be kept away from  sensitive issues. For him, and for many of us, it was more than clear, given the course of the legal proceedings against Headley, that the US was unlikely to extradite him, and so there was little point in pressing the case in any but the most formal way.
There is, to my mind, just one cable that is truly revealing. It is the one relating to the activities of the Congress party in the run-up to the confidence vote in Parliament on July 21-22, 2008. The cable of July 17 refers to a meeting between a US officer and Captain Satish Sharma who revealed among other things that the Congress was trying to work through financier Sant Singh Chatwal to get the eight Akali Dal votes, but that had not worked. Besides a couple of other options, Sharma told the officer “that he was also exploring the possibility of trying to get former Prime Minister Vajpayee's son-in-law Ranjan Bhattacharya to speak to BJP representatives to try to divide the BJP ranks.”
And then comes the bombshell, “Sharma's political aide Nachiketa Kapur mentioned to an Embassy staff member in an aside on July 16 that Ajit Singh's RLD had been paid Rupees 10 crore (about $2.5 million) for each of their four MPs to support the government…. Kapur showed the Embassy employee two chests containing cash and said that around Rupees 50-60 crore (about $25 million) was lying around the house for use as pay-offs.”

Nihilism
Given what actually happened in the trust vote, and the Delhi Police’s investigations relating to Amar Singh, surely this is a valid lead that needs to be pursued. Not surprisingly, Captain Sharma has denied that he bribed any MPs, and to top it all, he went on to deny that he ever knew Nachiketa Kapur. This cable classified “secret”, signed by Deputy Chief of Mission Stephen White, would have in normal course been available for declassification only in July 2018. There is no apparent need or cause for the political officers of the embassy to have made up this tale. Of course, the obvious corollary from Kapur’s action of showing the Americans the money for the bribery, suggests that the US knew more about the source of the money than it is letting on. You don’t show chests of money to anyone, except an interested party, or partner investor.
Many have seen in Wikileaks the beginning of a trend towards demystifying government. It certainly marks the beginning of an era where information, because of its digital nature, can be leaked wholesale. But that does not mean it is a trend.
Neither is such a situation desirable. While governments need to be far more open than they are, they do need some room for maneuver, especially on interstate relations. Honesty and transparency in personal and public life is a good thing, but absolute honesty and openness would make life unbearable.
 Those who are involved with Wikileaks see themselves as campaigners against secrecy. But the blanket  and indeed indiscriminate leakage suggests they are not quite what they claim they are. They are not revolutionaries wanting to change society, but nihilists who do something without knowing what they really want.
(Voluntary disclosure: This writer figures in a handful of cables, but in his own view, in a fairly innocuous manner) Mail Today September 6, 2011
Mail Today September 6, 2011

The death sentence cannot be a lottery

Omar Abdullah is not wrong. Had the Jammu & Kashmir State Assembly passed a resolution recommending the commutation of the death sentence of Afzal Guru, convicted for his role in the conspiracy to attack Parliament in December 2001, the Bharatiya Janata Party— and a certain muscular TV channel— would have gone apoplectic. As it is, a mere tweet by Mr Abdullah posing that question has them frothing and foaming in the mouth.
Indians have this self-image of themselves as non-violent people. Never mind that we are like everyone else, and in certain circumstances—related to caste, religion and patriarchy— even more blood-thirsty than anyone else. It is another matter that the  bloodlust behind the strident calls for carrying out death sentences in some terrorism cases seems born out of frustration with our inability to tackle terrorism.
The Muslim Afzal Guru, who was involved in the Parliament House attack case, seems to be a specially chosen target of the Sangh Parivar, which is not particularly worked up about the efforts to commute the death sentences of Perarivalan, Santhan and Murugan, the Tamils convicted for the conspiracy to assassinate Rajiv Gandhi, in which 19 other people were killed, or of Devinder Pal Singh Bhullar of the Khalistan Liberation Force, responsible for the bombing outside the Youth Congress office  in Delhi that killed 9 people.
 
Commutation
The decision of the government to reject the mercy petitions of these three sets of people convicted of terrorist crimes has triggered a debate on death sentence in
the country.
The protagonists are divided along somewhat messy lines. For the sentence, are people who believe that all terrorists ought to hang, regardless of the level of their individual complicity in an act of terrorism. Another set of people are keen to have Afzal Guru hang, but are indifferent to the other two cases; then there is a small and active minority of activists and scholars who oppose the death penalty on principle. And finally we have the government which has cynically allowed the situation to drift to the point where any of these executions will have fraught consequences.
Our courts, on the other hand, have generally been very conservative in dishing out death sentences which they say must be awarded only for the “rarest of rare” cases— just what is “rare” is a hugely subjective matter, of course. Around the world, the death penalty is becoming rare.
The one big problem in doing away with the death penalty in India, is that the alternative to the penalty, though termed “life imprisonment”, usually means a ridiculous term of just 14 years in prison.
A person whose death sentence is upheld by a high court or the Supreme Court can usually avoid it by two means. The first is through commutation procedures built into the Indian Penal Code and the Code of Criminal Procedure. The  second is through the clemency powers of the President and  Governors, who exercise it through their respective council of ministers. In none of these cases is the judicial standard of adequate evidence or proper trial etc applied.
Since the commutation of a death sentence almost automatically means that the convict will serve an imprisonment of just 14 years many a sadistic killer and psychopath walks free when his death sentence is commuted, because he has already served the term during the pendency of his trial and appeals. This mostly arbitrary exercise of executive power ends up victimising the victim doubly—first their life is taken away arbitrarily, and then their killers are given a token sentence.
The fact that the executive has the right to commute a judicial sentence argues against the separation of powers, a fact that has been referred to many times by the apex court. But what has not been adequately stressed is the arbitrary manner in which this power is applied. There have been several instances of killers being pardoned in states because of their political connections.
 
Rare
The frustration of the courts was obvious in the Aloke Nath Dutta and others versus the State of West Bengal case, where a Bench of Justices S B Sinha and Dalveer Bhandari noted that “different criteria were being adopted by different benches of this Court” on what constituted “rarest of rare” and since no sentencing policy as such had been decided on, they decided in the case to commute the death sentence of the convict who had murdered his brother.
On the same day, an Amnesty International study pointed out, another Bench of Justices Arijit Pasayat and S.H. Kapadia confirmed the death penalty for the convict in the Bablu aka Mubarik Hussain versus the State of Rajasthan case which involved a man who had murdered his wife and four children. This is what led AI to comment that despite efforts at legislative reform and reform minded jurisprudence, “the death penalty continued to be a lethal lottery.”
Let me make a voluntary disclosure. I am not against the death sentence. On the contrary, I believe it should be used more often, especially in cases of brutal pre-planned murder involving the helpless, women and children. I certainly think that the perpetrators of the Manoj-Babli case in which a khap panchayat-led mob killed a young couple who married within some alleged gotra lines should have been hanged. But the Punjab and Haryana High Court which commuted their sentences to life imprisonment clearly thought otherwise.
 
Policy
I could be persuaded to join the cause of abolitionism if those who want to do away with the death penalty take up the issue of the wider reform needed in sentencing policy. Primary among these is to ensure that the lottery doesn’t work in favour of those who are well connected and those who, on commutation, find their death sentence magically transformed to a paltry 14 years’ imprisonment.
Judicial punishment must contain a mix of three elements—rehabilitation, retribution and deterrence. In some cases, especially in the matter of sex offenders and psychopaths, rehabilitation is simply not possible. Heinous crime requires stringent punishment and there are some people who the state must keep locked away for their natural life.
 In other cases, there is a need to balance all the elements. But this should be a matter for the judicial system to decide, not for some Council of Ministers or bureaucrats in the Union Home Ministry.
The Supreme Court has acknowledged the need for this balance, though only indirectly in the Murli Manohar Mishra aka Swami Shraddhananda case. In commuting his sentence, the court realised that this monstrous killer could well walk away having served 14 years. So it specified that life imprisonment in his case would mean imprisonment for his natural life and that he would not be entitled for any commutation. There have been other cases, too, where the court has specified sentences beyond the 14-year rule because it has witnessed the misuse of the commutation power by the state. The Court has, in the Kiranjit Kaur case, questioned the right of the governor to pardon three convicts.
The eight week stay on the execution of the three Tamils in the Rajiv case, and the Tamil Nadu state assembly resolution calling for the commutation of their sentence, pose new issues before the country. A presidential rejection of a clemency petition does not permit any room for further appeal. The issue is now in the political arena and it will have to be resolved there, but it cannot be done without reference to the other two persons on the death row. And that has its own consequences.
Mail Today September 1, 2011

Parliament needs to work to be taken seriously

There is something hubristic about the outcome of the stand-off between Anna Hazare and the government. It was just two years ago, when the United Progressive Alliance won the general elections and formed its second government. Shorn of the Left’s embrace, and buoyant over the handling of the global economic crisis, there were expectations that we were in some kind of a take-off stage. Today, we know better.
Actually, the Hazare stand-off represents the failure of the entire political class in the country, not just that of the UPA. And this crisis is manifested most by the functioning of the institution that has been shown up in the process— Parliament. Indeed, the government may have lost face and credibility, but so has  Parliament. A measure of its irrelevance was the fact that while the nation was riveted by the drama taking place in Ramlila Maidan, a bipartisan effort was being made by our parliamentarians to award themselves a “lal batti”, or red light beacon, for their cars on the pretext that it will enable them to carry out visits to natural calamities and accident sites.
 
Record
Doctors attending on Anna Hazare may say that he needs to be put on a drip, but actually, it is Parliament, not that old man in Ramlila Maidan who needs a life-support system. We are not talking about the criminals who populate the two Houses, or their increasingly plutocratic composition, but their very centrality to the political and governmental system of the country.
In his Tuesday letter, marking a conciliatory shift towards Mr Hazare, Prime Minister Manmohan Singh, somewhat nostalgically perhaps, declared that “we will have to keep in mind Parliamentary supremacy and constitutional obligations in matters of legislation. As a Government we respect and are responsible to the Will of the Indian People as represented by Parliament.” The United Progressive Alliance’s attitude towards Parliament is, of course, well known in the short shrift it gave to the monsoon session of 2008 where, at one point, it was alleged that cash was distributed by supporters of the ruling party to win a crucial no-confidence motion vote.
A new low of sorts was reached when, in the winter session of 2010, relations between the government and Opposition broke down. The government insisted that the PAC was good enough to examine the 2G issue, while the Opposition demanded a JPC, even though the chair of the PAC was a leading light of the BJP.  According to PRS Legislative Research figures, the Lok Sabha worked for just 7 hrs and 37 min, 5.5 per cent of the available time and the Rajya Sabha for 2 hrs and 44 min, a measly 2.4 per cent of the available time.
Actually, the budget session of Parliament this year began with promise. But in no time it got embroiled with the 2G issue and the demand for a JPC again. Then, it was cut short because of the state assembly elections in five states.
The figures from PRS Legislative Research on the current session of Parliament are striking. Half the monsoon session is over and the score goes this way: Bills listed for introduction, 32. Bills introduced, 7. Bills listed for passing, 35, bills passed, 2.
What did the Opposition achieve by disrupting Parliament? It achieved nothing. In taking a nihilist stance on the Lokpal-Jan Lokpal bill issue, the BJP has also been outflanked by the Anna Hazare movement, though they do not seem to realise it. For its part the government has managed to claw back into the game by doing what it should have done in the first place—appointing a heavyweight political negotiator, Pranab Mukherjee, to deal with Mr Hazare’s demands.
 
Hollowing
The issue is not merely Parliament’s sorry inability to get its act together, but the abdication of its constitutional responsibilities. According to the PRS, in the 15th Lok Sabha, only 13 per cent of the bills have been discussed for more than three hours. The majority, 48 per cent, were discussed for periods of 1-3 hours. Some 11 per cent of the legislation was discussed for between 30 minutes and an hour, while an astonishing 28 per cent of the legislation was given short shrift by being discussed for less than 30 minutes.
Now, of course, legislators will say that often a great deal of the work is done by the standing committees, and therefore there is no need for intense discussion on the issues in a particular legislation. But that would, in actual fact, be a travesty of the truth.
The problem, however, is that Parliament only stands at the head of an entire chain of devaluation of politics in the country—of  the party, the government, the Cabinet and the Prime Minister. It affects the BJP as much as it does the Congress. After all, weren’t the leaders of the party humiliated by the RSS which decided to foist Nitin Gadkari as its head after the 2009 election debacle? Had the party run the government, it, too, would have met the same fate as the Congress.
The Congress party’s hollowing has a long history which goes back to Indira Gandhi’s times. It routinely selected Chief Ministers who have little authority and now a Prime Minister who was nominated to office by the party president, not freely chosen by the Congress parliamentary party. The party president, who should have been the prime minister, calls the real shots and has put in place a National Advisory Council of the unelected, and possibly unelectable, to oversee the Union Council of Ministers.
 
Repair
The real challenge, then, is to rework the politics of the country and to do this, it would be a good idea to start from that key institution— Parliament. The people who can take the lead in doing the needful are our Parliamentarians themselves. Though populated in increasing measure by the criminal and the venal, the institution has enough authority and history to begin the process of self-repair. But for this, there is need for bipartisanship and a generous dose of introspection.
Perhaps after the Anna storm has blown over, the politicians may like to reflect on just why and how some people calling themselves “civil society” managed to interpose themselves between the people and the elected house of the people (Lok Sabha) that is supposed to represent them.
The one lesson they may learn is that Parliament is a place for discussion, negotiation and compromise, not confrontation and empty theatrics. That it is not the formal law of the Constitution, or the Speaker’s handbook, that can make Parliament supreme, but those who uphold its spirit through genuine public service.
Mail Today September 2, 2011