Kashmir: Two Years On, the Judiciary is Standing Over the Bonfire of Constitutionalism

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.

Two years after the end of Article 370 of the constitution – which gave giving special rights to Jammu and Kashmir – and the demotion of the state to a Union territory, all we have is a bonfire of vanities. Expectations that militancy will be defeated in quick order have been belied by events on the ground. Almost every day we hear of  encounters in one or the other part of the region. Worse, the militancy, once dependent on Pakistani jihadis and weapons, has become stubbornly local.

In 2020, an estimated 163 locals were recruited into the insurgency, this year so far the estimate is 82.

Investment from other parts of the country has yet to flood into the Valley. Indeed, no person from outside the state has bought land in the UT, according to information provided by the Union Ministry of Home Affairs in March this year.

As for the return of Kashmiri Pandits, the Union government keeps putting out dodgy figures of those who have returned, but the reality is that in the present conditions few are likely to do so.

The conversion of the state to a Union territory and the removal of Article 370 were dubious decisions. The constitution has provision for promoting a Union territory to a state, but whether it can demote a constituent State of the Indian Union is questionable. 

As has been argued, if one state can be demoted to a Union territory, so by the same logic can the other states. This would lead to the absurdity of an India as a Union of Union territories, rather than a Union of states, which is basic to the structure of the Indian constitution.

As for the scrapping of Article 370, this was done through a clear sleight of hand. Under the constitution, the change could have been made by the J&K constituent assembly before it was dissolved in 1957, but it wasn’t. There was still, arguably, the option of doing it with the concurrence of  the state legislature. But the legislature itself was dissolved in November 2018, under dubious circumstances, well before its term had ended.

The Modi government took the specious plea that approval could be granted by the governor who, as is well known, is a creature of the Union government. Just how much legitimacy the action had became evident when large-scale repression was unleashed right after these decisions. Former chief ministers, ministers and party leaders were kept under detention for more than a year. Tens of hundreds were incarcerated to prevent protests and more than a thousand people still remain behind bars.

What the Union government did on August 5, 2019 was part of a political project. Removing Article 370 was aimed at fulfilling the BJP’s long-time political demand, but the demotion of the state to a Union territory was an exercise in malicious politics.

Also read: A Patch-Up Attempt on Kashmir Will Not Restore What Is Lost

Neither has basis in law or the constitution and it is surprising that a five-judge bench of the Supreme Court has yet to rule on some two dozen petitions challenging the validity of the J&K Reorganisation Act of 2019 (that turned the state two Union territories) and the Presidential Order nullifying Article 370 and 35A of the constitution.  The apex court seems to feel that time is not of the essence and has gone on record as saying that “the Supreme Court can always turn the clock back.”

But in the meantime, the Union government – acting through the UT administration – is busy creating facts on the ground through executive fiat to undermine any future court decision. More germane is that the people of the region are having to make do with the authority of unelected officials when, under the Indian constitution, they are entitled to a government that they have elected.

The Union government now says J&K could again be promoted to statehood and has initiated some kind of a political process by inviting top Kashmiri leaders for a meeting in New Delhi in June. There are few signs of any follow up.

This is not surprising. It is usually difficult to square a circle.Yet, that is exactly what the Modi government is attempting to do after trashing the constitution and the legitimate rights of the Kashmiri people. 

The Wire 7 August 2021

https://thewire.in/rights/kashmir-two-years-on-constitution

Limited Afghanistan role

In the last couple of weeks, a great deal has been written on Afghanistan. The American withdrawal, the Taliban offensive, Antony Blinken’s visit to New Delhi, have all shifted our minds to the developments there. The Afghan army chief, who was scheduled to visit, cancelled at the last minute, given the situation back home.

The Blinken visit would have seen intense discussions on the subject of Afghanistan. And no doubt, the theme would be the kind of role India can play in shoring up the Afghan government.

India should not see itself as a major actor, and play at best, a carefully limited role in the unfolding events in the country. We can provide technical backing to the Afghan National Security Forces (ANSF), perhaps some financial aid to the Kabul government, that’s all. In no way should we see, or allow ourselves to be set up, as competitors against Pakistan and China. That is something that geography decided, and politics, in the form of Pakistan, has confirmed. We have no land access to the country. Our limited access through Chabahar has been hampered by the state of poor relations between the US and Iran.

Estrangement with Iran and Russia has also limited American options to dependence on Pakistan for any viable Afghanistan policy. Given our own problems with Islamabad, this limits our room for manoeuvre. Washington may be working towards shaping some kind of entente between India and Pakistan, but this remains, as always, a work in progress. Any potential role India can play now is hampered by our increased closeness to Washington which impedes our ability to work in tandem with Iran and Russia to shape a common policy on Afghanistan.

There is a great deal of talk about how the Taliban have changed and how they could be brought into the governance system in the country and tamed. That is delusional. The Taliban are an ideological force who are unlikely to dilute their beliefs and ideas. It is simply not possible to fit them into the framework of a democratic government, which, for all its faults, the current government of Afghanistan is. As for their casual savagery, it is evident from reports that Reuters photographer Danish Siddiqui was either tortured to death or his remains deliberately mutilated. Either way, it provides little comfort for the unfolding future.

The Taliban have learnt their lessons in their long exile. Their diplomacy is more subtle and hence the outreach to China whose working principle is ‘non interference’ in the internal affairs of any country. The only thing Beijing is focused on is self-interest, which in this case is the need to insulate Xinjiang from Islamist radicalism. The Taliban may have tolerated radical movements like the al-Qaeda, the East Turkestan Liberation Front, the Islamic Movement of Tajikistan, or even the LeT and the JeM, but they have little interest in spreading their own ideas abroad, simply because those have emerged from the unique Pakhtun tribal culture.

Actually, the main reason why India should avoid any major commitment in that region is that there are greater priorities and challenges back home in the subcontinent. Primarily, they relate to the Chinese assertiveness on the borders. Even if we are able to achieve a status quo ante, as of April 2020 on the Line of Actual Control with China, things are not going to be the same again. The CBM regime built up so patiently between 1993-2012 is broken and is not likely to be restored soon.

In the meantime, Beijing has made important inroads into South Asia, particularly in Sri Lanka, Bangladesh and Nepal. The case of Sri Lanka is well known. But Bangladesh, too, appears to be developing denser ties with China.

In a recent paper for ORF, Sumanth Samsani has noted that net FDI from China has zoomed from $68 million in 2017, $506 million in 2018, to $1.159 billion in 2019. China has been particularly active in the country’s energy sector and has built several coal-based power plants, as well as bought three natural gas fields in the country. It is also financing the construction of the Payra Deep Sea port at a cost of $10-15 billion. Among the other infrastructure projects are the eight Bangladesh-China friendship bridges, an under-river tunnel, expansion of the Sylhet airport, and various highways and rail links, including that over the Padma river. And it is, by far, the largest supplier of defence equipment to the country.

At the end of April, China’s Defence Minister Gen Wei Fenghe toured Bangladesh and Sri Lanka. In the remarks in the Dhaka leg of his visit, there was a warning on the importance of countries in the neighbourhood resisting ‘powers from outside the region setting up military alliances in South Asia.’ This was shortly after the first Quad summit that was held through a teleconference.

Because of its weak economy and defence industry, India has not been able to convert its geographic and economic dominance in the subcontinent into political primacy, where in the words of Ashley Tellis, India ‘commands the consent, if not obedience, of its smaller neighbours.’ The state of our relationships with them still depends on who is ruling the country.

In these circumstances, instead of distant Afghanistan and Central Asia, India needs to focus sharply on its ability to shape, by coercion or economic attraction, the policies of its immediate South Asian neighbours. And we are not even talking about Pakistan.

The Tribune August 3, 2021

https://www.tribuneindia.com/news/comment/limited-afghanistan-role-292045

US-Russia Nuclear Talks: Untangling The Knots

The resumption of arms control talks between Russia and the US in Geneva on Wednesday seems like a flashback to the era of the Cold War. According to reports, US Deputy Secretary of State Wendy Sherman and Russian Deputy Foreign Minister Sergei Rybakov expressed satisfaction at the first round of discussions and have decided to reconvene in late September. They are now likely to determine topics that will be looked into by expert working groups.

These talks were agreed to by President Vladimir Putin of Russia and US President Joe Biden at their summit in June to promote strategic stability and “lay the groundwork for future arms control and risk reduction measures”.

The Agenda Is More Complex Now

The agenda between the two powers, who between them possess 90% of the nuclear weapons in the world, is now far more complex and difficult than it was in the past. The primary reason for this is the evolution of technology, which has devised numerous new and ingenious ways of delivering nuclear weapons against an adversary. These include AI-controlled weapons, possible cyberattacks on existing weapons and command and control systems, and highly manoeuvrable autonomous aerial or undersea weapons that can evade defences.

Traditional arms control limitations were first established by the Strategic Arms Reduction Treaty (START) to place verifiable limits on intercontinental ballistic missiles that the US and Russia could launch at each other. This was updated in 2011 and termed the ‘New START Treaty’. The treaty, which was set to expire in February 2021, involves 18 detailed onsite inspections per year for both sides and the exchange of data twice a year.

A Slew Of Failed Treaties

In the previous decades, arms limitation treaties have gone out the window. It began with the Anti-ballistic Missile (ABM) treaty that the George W. Bush Administration dumped in 2002. This was followed in 2019 by the Trump Administration announcing its withdrawal from the 1987 Intermediate Range Nuclear Forces (INF) Treaty.

Under the treaty aimed at stabilising the European front, ground-launched ballistic and cruise missiles with ranges of 500-5,500 km were banned, and this led to the elimination of over 2,600 missiles.

The Russian development of the 9M729 ground-launched cruise missile in 2014 began to worry the Americans. But by 2019 they had actually deployed it and this gave the Trump Administration an excuse to walk out of the INF treaty. Plans were made to abandon New START as well, but the incoming Biden administration called for its extension to February 4, 2026, and the Russians agreed. The two sides are seeking to use this time to work out a new agreement.

Biden has said that he wants to use New START as the basis for negotiating more arms control agreements, but the Americans have not quite spelt out what they could be and how they would deal with China.

At the time of terminating the INF agreement, the Trump Administration had said that they wanted the Chinese to join the negotiations as a third party, but Beijing has steadfastly refused to participate. China’s nuclear force is 300 or so weapons, which is paltry compared to the around 1,500 deployed and an equal number of undeployed weapons of Russia and the US.

The 'Mutual Assured Destruction' Approach

The key challenge now is untangling the different needs of the two parties and the evolution of technology. In 2019, there were also accusations from Washington that Russia was conducting a very low-yield nuclear weapons test. There have also been charges that Moscow is testing anti-satellite weapons. All these will feed into the talks that have now resumed.

The bottom-line in any nuclear strategy is the notion of Mutual Assured Destruction (MAD) and the threat to “do unto you what you have done to me”.

The Soviet Union and the US developed tens of thousands of weapons before they realised that this was unnecessary, and they steadily cut back their numbers through the START and INF treaties.

But from the 1980s onwards, the US also began shifting the goalposts in a major way by embarking on a ballistic missile shield, in a programme referred to popularly as “Star Wars”. This undermined the basic premise of MAD and began destabilising the START and INF agreements, because countries like Russia and China, who were American targets, and who, in turn, targeted the US, felt that with a missile shield, the US could gain a decisive advantage over them if it became invulnerable to their missiles.

Never mind that the technology did not work and Star Wars was abandoned for a more modest programme that would be able to take out individual missiles aimed by the so-called rogue states like North Korea and Iran. Even this technology is not perfect, but the US has not only pursued it but also actually deployed THAAD and Aegis missile defence systems in several countries. The Russians are worked up over deployments in Europe and the Chinese have made a major issue of the South Korean deployment.

A Complex Strategic Environment

Another matter of concern to both countries has been the US’s conventional arsenal of precision-guided munitions and its effort to create a system called the Prompt Global Strike, which can deliver a conventional warhead anywhere in the world, like an Intercontinental ballistic missile (ICBM).

So, both Russia and China have been developing missile and nuclear weapon delivery systems that can overcome the US missile defences, should they need to. In 2018, President Putin unveiled a range of weapons, which, he said, could penetrate US missile defences. Among these was a nuclear-powered cruise missile of unlimited range, the Sarmat heavy intercontinental missile, a long-range, nuclear-armed underwater drone, a hypersonic boost-glide vehicle Avangard, which can rapidly change its trajectory, and a hypersonic cruise missile called Kinzhal. The Chinese have been testing and have deployed the DF-17 missile tipped by a hypersonic boost-glide vehicle.

Another spoiler in the current situation is the hacking of US systems by suspected Russian-government hackers. The ability to break into American technology firms is viewed as a potential deal-breaker.

The talks underway are likely to discuss all these issues and see if the two countries can work out new ways to stabilise the already fraught strategic environment. China could still play a deal-breaker indirectly. The US’s counter A2/AD strategy in the western Pacific now plans to use land-based long-range missiles that were earlier banned by the INF. These could effectively turn the Chinese A2/AD strategy on its head by bottling up the PLA Navy within the first island chain.

So, while maintaining the New Start treaty indefinitely may have a reasonable prospect, reviving the INF may not. As for the other issues, it depends on the momentum the Sherman-Rybakov talks can generate.

The QUint July 31, 2021

https://www.thequint.com/voices/opinion/us-russia-nuclear-talks-untangling-the-knots#read-more#read-more

Blinken’s Message: India Must Step Up to Become a Reliable US Partner

As is usual in events such as the recent visit of the United States Secretary of State Antony Blinken to New Delhi, we only get sketchy details of the outcome. We do have official statements and the like, but they almost never tell the whole story.

We know that Blinken came to New Delhi, had meetings with External Affairs Minister S Jaishankar, National Security Advisor Ajit Doval, called on Prime Minister Narendra Modi, and then jetted off to Kuwait. But perhaps what happened outside the official meetings brings out the flavour of the brief visit better.

The most revealing is an interview he gave to Zakka Jacob of News18, where he clarified that the US vision of the Quadrilateral grouping (Quad) is that it “is not a military alliance” but “a group of like-minded democracies”, whose principal goals, currently, are to provide COVID-19 vaccines for the region, deal with climate change and assure maritime security to infrastructure projectsThis neatly sidesteps the Chinese critique of the Quad and raises uncomfortable questions for many in New Delhi who believe that it is a quasi-military alliance meant to pressure Beijing, which could ease India’s Ladakh predicament. Jacob pushed further, asking Blinken whether this implied that in a situation where one of the four member countries is attacked, “it doesn’t mean others are to rush in and protect it”. The Secretary said, “That’s correct.”

Meeting Civil Society, Punching Right Buttons

Blinken gave little ease, too, to New Delhi’s Manichean vision of the Afghan situation, which pits Pakistan and the Taliban against everyone else. In response to a question, he said that the “neighbouring countries of Afghanistan have an interest in the region”. Reading between the lines of his answer, it is clear that he sees the possibility of Pakistan, Iran, China and other countries collaborating to resolve the conflict, rather than aggravate it.

As a top US official on his maiden visit to New Delhi, Blinken made sure that he punched all the right buttons. So, he began the day with a meeting with a carefully selected set of “civil society” leaders, including lawyer Menaka Guruswamy, Director of the Tibet House in New Delhi Geshe Dorji Damdul, Inter-Faith Harmony Foundation of India founder Khwaja Iftikhar Ahmad, and representatives of the Ramakrishna Mission as well as Baha’i, Sikh and Christian NGOs.

The theme of the 45-minute roundtable was “Advancing Equitable, Inclusive and Sustainable Growth and Development”. But according to reports, the status of religious freedom, the passage of anti-conversion laws passed by some states, freedom of the press, farm protests, love jihad, minority rights, as well as the Pegasus surveillance issue were all raised during the discussion.

Blinken Raised Unpopular Issues

In his carefully chosen remarks, Blinken said, “We believe that all people deserve to have a voice in their government and be treated with respect, no matter who they are. These are fundamental tenets of democracies like ours, and our purpose is to give real meaning to these words and constantly renew our commitment to these ideals.’’ At the same time, he also praised India’s “free media, independent courts, a vibrant and free and fair electoral system”But Blinken did make it a point to laud civil society organisations, noting that successful democracies include “thriving” civil societies. The remarks were as much for the civil society as for the Modi government, which has been dismissive of such organisations and has harassed many of them on various pretexts.

New Delhi is unlikely to have taken too kindly to this well-publicised meeting, especially since the official spokesman had made it a point to criticise the comments of the US State Department officials, who had said that Blinken would raise issues related to human rights and media freedom during the visit. But India had little choice but to lump it.

Vaccine Claims At The Quad Summit

As for the official talks with Jaishankar, it is clear that two issues were salient — COVID-19 mitigation and the fast-changing situation in Afghanistan. The importance of the COVID-19 pandemic in the discussion was clear from Blinken’s announcement at the joint press briefing after his meeting with Jaishankar that the US would give India $25 million to support vaccination efforts. This would be over the $200 million already extended for strengthening supply chain logistics, dealing with misinformation and vaccine hesitancy, and training more health workers.

This gesture must be read in the context of India’s failure to live up to the expectations expressed in the March 2021 virtual summit of the Quad, which saw New Delhi as the hub of vaccine production to help the region. The fact that the US has had to dole out aid to India would have been a clear corrective to some views in Washington that New Delhi can play the role of a partner and contribute to US policy efforts in the region.

The simple conclusion could well be that the Modi government urgently needs to get its act together in terms of domestic governance and industrial and trade policy in order to become a contributor to the Indo-Pacific strategy, rather than a recipient.

India Remains a Key Player

Separately, the Chinese are unlikely to be happy with Blinken first meeting Geshe Dorji and then Ngodup Dongchung, a representative of the Central Tibetan Administration (CTA), the formal name for the Tibetan government in exile. It may be recalled that in November 2020, the White House had welcomed Lobsang Sangay, the then head of the CTA. It was the first meeting of its kind in six decades. A month later, the US Congress passed the Tibetan Policy and Support Act, which calls for the establishment of a US consulate in Lhasa and warns Beijing to stay away from the issue of the succession of the Dalai Lama.

None of this should detract from the importance of Blinken’s visit to India at this juncture. Clearly, the US views India as the potential lynchpin of its Asian policy and is willing to invest time and resources in helping it to move forward in that direction. A partnership with the world’s foremost power is an enormous opportunity for India and it must be ensured that the country has capable hands at the helm and a policy framework in place to utilise that opportunity.

The Quint July 29, 2021

https://www.thequint.com/voices/opinion/antony-blinkens-message-the-modi-govt-must-step-up-for-india-to-become-a-reliable-us-partner#read-more

Can Antony Blinken's India Visit Make Up for Jaishankar's Damp Squib in US?

US Secretary of State Antony Blinken will arrive in New Delhi on Tuesday for his maiden visit to India. The Union government is expected to lay out the red carpet for him through meetings with Prime Minister Narendra Modi, External Affairs Minister S. Jaishankar and National Security Adviser Ajit Doval, among others.

Referring to the visit, a US spokesman said Blinken would discuss a wide range of issues, including continuing cooperation on the COVID-19 response, “Indo-Pacific engagement, shared regional security interests, shared democratic values and addressing the climate crisis”.

“Shared regional security interests” may translate to the situation in Afghanistan. The state of affairs is causing considerable concern in New Delhi, which has been a strong supporter of the Afghan government that was established in the wake of the US invasion in 2001. Under the US security umbrella, India has poured in development aid worth $3 billion into the country.

India's Role in Afghanistan

India has strong memories of the Taliban’s perfidy, beginning with the dubious role it played in the hijack of the IC 814 in 1999. In the following years, it experienced a series of deadly attacks that were executed by the Taliban at the instance of Pakistan. These included the attacks in 2008 and 2009 on the Indian embassy in Kabul, on the Hamid Guest House housing Indian doctors in 2010, and against Indian consulates in Herat, Jalalabad and Mazar-e-Sharif. Therefore, India is likely to focus on the Pakistan-Taliban relationship in the discussions with Blinken, as well as on the continuing Pakistani support for terror activities against India, especially after the recent incidents involving armed drones.

The US official will also be briefed about the Indian efforts to assist the Afghans. In the coming days, India is likely to step up its support to the Afghan National Security Forces (ANSF) by providing technical assistance to its air force.

The efforts of the United Kingdom and the European Union to support the “rule of law” and “freedom of navigation” in the South China Sea, which suggest a growing coalition pushing back against China, have boosted the relevance of the Quad.

 

Border Issue with China

Dealing with China is another important item on the agenda. External Affairs Minister S. Jaishankar is expected to brief Blinken about his recent talks with their Chinese counterpart Wang Yi on the sidelines of the Shanghai Cooperation Organisation (SCO) foreign ministers’ meeting in Dushanbe. Observers have noted the clear dissonance between the positions of the two countries on the border issue, as revealed by the readouts of the two foreign ministries following the Jaishankar-Wang meeting.

After the successful first ‘Quad’ summit in March, which laid down an expansive agenda for the grouping, efforts are on to conduct an in-person event later this year. In the meantime, the efforts of the United Kingdom and the European Union to support the “rule of law” and “freedom of navigation” in the South China Sea, which suggest a growing coalition pushing back against China, have boosted the relevance of the Quad.

But New Delhi needs to note that the Biden administration’s China strategy is still under review and formulation. In the meantime, US officials have been taking positions that veer from the possibility of redefined engagement to strategic competition and selective cooperation.

Pegasus and 'Shared Democratic Values'

There is one more item on the Blinken agenda, “shared democratic values”, which suggests that the US Secretary of State is likely to take up the fallout of the Pegasus crisis. In a press briefing on Friday, Dean Thompson, Acting Assistant Secretary for South and Central Asian Affairs, said “the whole notion of using this type of technology against civil society, or regime critics, or journalists, or anybody like that through extrajudicial means is always concerning”.

The US approach to human rights issues is more or less formal. Considering that it counts Saudi Arabia as one of its close allies, it is hardly likely that the country will get worked up over the use of illiberal tactics such as Pegasus by the government in New Delhi.

But the Pegasus subject may be taken up only in passing. The US approach to human rights issues is more or less formal. Considering that it counts Saudi Arabia as one of its close allies, it is hardly likely that the country will get worked up over the use of illiberal tactics by the government in New Delhi, which is otherwise friendly to its agenda. New Delhi’s comment on the issue on Sunday displayed a needlessly defensive mindset.

American Goals in Afghanistan and the Indo-Pacific

On the Indo-US bilateral front, where trade in goods and services is flourishing, things look good; the same is true for the FDI relationship, even though India’s protectionist stance does not sit well with Washington. Defence trade and ties are flourishing as well. But this does not tell us much, since the India-China trade is also setting records and the US engagement with China in trade and investment continues apace.

But the big issue for Blinken and the US is whether New Delhi is in a position to play a larger role towards the American goals in Afghanistan and the Indo-Pacific. India’s failure to deliver on the Quad vaccine programme is an embarrassment, considering its earlier claims of emerging as a global vaccine powerhouse.

The US, which knows that India has a limited capacity in relation to the western Pacific, is keener to have New Delhi take up a greater burden in assisting the Afghan government. India, for its part, is not entirely enthusiastic, since it is one thing to issue declarations on the Indo-Pacific but quite another to be on the ground in war-torn Afghanistan.

Recalling Jaishankar's May visit to the US

Recall that Jaishankar’s visit to Washington in May this year was less than stellar — the Indian Minister did not get to meet the US President. India was then in the throes of a deadly second wave of COVID-19 infections. Jaishankar was in Washington to request assistance on the vaccine front, rather than announce action on an earlier promise to be the hub of the Quad’s vaccine distribution efforts.

As it is, the Indian economy has been limping since 2016, a situation that has been made worse by poor policy decisions of the Narendra Modi government. The COVID-19 pandemic put India under a negative economic growth of 7.3% in 2020, while also pushing tens of millions into poverty and setting back poverty alleviation programmes by a decade.

The Quint July 29, 2021

https://www.thequint.com/voices/opinion/can-us-secretary-of-state-anthony-blinkens-india-visit-make-up-for-jaishankars-damp-squib-in-us#read-more#read-more

Why India's Process for Authorising Surveillance on Citizens Is Deeply Flawed

Not surprisingly, the Modi government response to the charges unveiled by The Wire and other publications around the world relating to the use of Pegasus spyware to hack phones of private citizens is denial. Followed by the claim that all surveillance “for the purpose of national security” is done on the basis of “a well-established procedure” where checks and balances have been built in.

The ultimate joke in this somewhat surreal explanation was that it was delivered by IT minister Ashwini Vaishnaw on the very day he was named as a potential victim of surveillance.

Leaving aside the government’s refusal to acknowledge that hacking – which is what the delivery of spyware payloads through Pegasus involves – is a criminal offence for which there can be no lawful authorisation, the “well-established procedure” for surveillance that Vaishnaw speaks of is of little real value.

Formally, the government published the rules relating to the amended IT Act in 2009. The secretary in the home ministry in the Union and state governments is the “competent” authority, but a provision is also there to authorise joint secretaries of the Government of India to do the same. Further, it can be done by “prior approval” of “the head or the second senior-most officer of the security and law enforcement agency at the Central level” and of an officer “not below the rank of an inspector general of police….at the state or Union territory level”. So, clearly, quite a few people can authorise surveillance. No judicial approval is required.

Contrast this with the US, where US nationals cannot be snooped on without a judge’s warrant and surveillance of foreigners and their agents can only be done through an authorisation by one of the 11 courts set up under the Foreign Intelligence Surveillance Act (FISA) of 1978. FISA judges are appointed by the US Supreme Court.

Also read: Edward Snowden Calls For a Global Moratorium on Spyware Trade

By contrast, in India, the review mechanism comprises the home secretary’s fellow officers – the cabinet secretary and two other bureaucrats. This mechanism was established in 1951, when the country had just about one lakh landlines, and presumably a dozen would have been under surveillance. As it is, having one set of bureaucrats review the work of their colleagues is hardly the kind of oversight needed for this very sensitive subject.

An estimate from a few years back on an RTI query by Saikat Datta revealed that the total numbers of phones surveilled at the Union government level was 100,000 annually, which breaks down to 300 per day. Does the Union home secretary and his joint secretaries have the time to apply their mind on each application, as they should be doing on such a serious issue? Does the cabinet secretary have the time to conduct the review exercise relating to this volume of information?

It is more than likely that authorisations are backdated and the reviews are a mere formality. Since the government does not believe in transparency, you cannot expect to get the data as to how many instances of wrongdoing and error have been brought out through the review process.

Then, there is the issue of the intelligence agencies like R&AW and the Intelligence Bureau, which have not been constituted through any statute. They operate as a law unto their own and it is unlikely that they would share their activities with the Union home secretary or even the cabinet secretary.

India has fought a tough war against terrorism. There have been great successes, but also numerous injustices as evidenced by people wrongfully charged, jailed and even killed. In response to criticism, governments of the day complained about the lack of legal authority and have sought to arm themselves with increasingly draconian powers.

Yet, one feature of all governments since the 1980s has been the consistent misuse of these powers. This is the reason that the governments of the day were forced to abandon the Terrorism and Disruptive Activities (Prevention) Act (TADA) in 1995 and the Prevention of Terrorism Act (POTA) in 2004. And today, when we confront the indiscriminate, and possibly unlawful, use of the amended (in 2004 and 2019) Unlawful Activities (Prevention) Act (UAPA), we wonder when it will get its comeuppance.

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The same shoddy story pervades the use of draconian instruments of combating terrorism, such as lawful interception of communications. The exposés published by The Wire of the hacking of telephones of journalists, politicians and others  is only the latest example of how governments have trampled on the individual rights of citizens with the excuse of fighting terrorism.

Political use of intelligence

The record of governments snooping on citizens primarily for political reasons goes back to the 19th century. The process was begun by the British to check the national movement. But what is inexplicable was its continuance after independence. The one institution which defines this is the Intelligence Bureau, an outfit with no constitutional authority, but which has enormous resources and which violates the laws of the land at will because its serves a vital function of providing the party that runs the Union government in New Delhi information on its adversaries.

“Political” intelligence is the heart of IB, whereas it should have been counter-intelligence and counter-terrorism. Indeed, the CI department of the outfit is singularly weak, having exposed no significant foreign agents in the governmental system in the past 70 years.

But the IB is very good at political intelligence of a certain sort – tipping off the government as to what its adversaries are doing, who is meeting whom and saying what, and other salacious information which has no bearing on national security. This is more than evident from the list published by The Wire which shows an obsessive focus on journalists and politicians, without even any regard to their affiliations or political inclinations.

There are two aspects to the current surveillance controversy. The first is the illegal and possibly criminal action of planting information to implicate people in the Bhima Koregaon case, via a second process separate from Pegasus. The second is the “capture”, via spyware, of telephones of journalists and politicians to obtain information, more often than not, of a trivial nature.

It was only in 1997 that the Union government and Supreme Court found that the colonial-era Telegraph Act had no safeguards for citizens. The apex court concluded that the right to privacy, including telephone conversations, were covered by Article 21 of the Constitution and could not be curtailed except through a procedure under law. So the court issued a set of guidelines pending the government’s action. These were later incorporated into the Information Technology Act of 2000 whose actual working rules were notified in 2009.

The government keeps on repeating the mantra of “authorised interception”, but it is not very clear on just who authorises things and how. Likewise, it provides no information on the so-called review committee which is meant to be a safeguard for the public. Frankly they could safely do away with the review committee, since it has been put there only for show. India’s claims of being a vibrant democracy ring hollow if citizens are not even assured the basic right of privacy, something very fundamental to a human being.

While fighting crime and national security are important considerations for surveilling communications of suspect persons, a proper guarantee against misuse can only come through the legal system, and not the bureaucracy or the police.

There needs to be a simple principle put forward when the government comes up with draconian measures (whether it is in the use of the UAPA or interception of communications) – the penalties for misuse should be equally draconian. And, of course, the review mechanisms should have some integrity instead of being the joke they are right now.

The Wire July 21, 2021

https://thewire.in/government/pegasus-india-surveillance-authority