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The decision to commemorate the ‘surgical strike’ of 2016 goes against the grain of Indian tradition
Observing the politics of his day many years ago a wit in Britain is said to have remarked “Patriotism is the last resort of the scoundrel!” The wag in India would be forgiven if in a reference to political practice here he were to replace ‘patriotism’ in the bon mot with either ‘nationalism’ or ‘secularism’. Right now, however, it is the observation on the uses to which the former is often put that is all too relevant for this country.
Commemorating an action
Even as we have grown accustomed to election time being turned into silly season by rival political parties scrambling for attention, nothing could have prepared us for the latest missive from the University Grants Commission (UGC), a body originally conceived to nurture our institutions of higher education.
It is reported that the UGC has issued notice to the universities that they should prepare to commemorate the ‘surgical strike’ on India’s north-western border which we are informed had taken place on September 29, 2016.
This is disappointing to say the least, for we build public universities so that they hold up a mirror to ourselves, not so that they serve the interest of the government we elect. Public universities in a democracy are to be allowed independence from the government of the day and, equally important, its individual members must be assured freedom from the dictates of the majority within them. This is not a utopian proposal as much as something essential for the advancement of knowledge, to which our progress is tied.
As in the age-old dictum, “all is fair in love and war”, everything appears acceptable to this government as it prepares for the election of 2019 looming ahead. It has gambled on the value in its game plan of keeping alive the memory of India’s response to a cross-border intrusion in the recent past.
Two questions arise when we reflect upon the action that is to be commemorated. First, how significant was it? Second, is it a wise thing to do to bring details of a military action into the limelight? In the history of India’s defence engagements on the western front since 1947, the action in question is hardly the biggest or brightest.
War years and response
Surely, India’s response to the infiltrators from Pakistan who had invaded Kashmir in 1948 was more impressive. While, of course, the wars of 1965 and 1971 were far bigger, in 1948 India not only was struggling to find its feet after the trauma of Partition but also was a fledgling country beset with economic hardship. That in the midst of all this the Indian armed forces air-lifted to Srinagar were able to achieve what they did is remarkable, especially given the terrain. Only the political leadership of the time is accountable for why the action did not fully secure India’s borders by removing the invaders from the entire State of Jammu and Kashmir, an outcome believed to have been considered attainable by the then Brigadier, K.S. Thimayya, who had participated in the action and had asked for some more time to achieve the end.
In an inexplicable move, Nehru had vetoed this proposal and taken the matter to the United Nations. The Mountbattens, who were allowed to influence events in India for far longer than they deserved to, are believed to have had a role in this. But whatever is the truth, nothing that could have been achieved at the border in 2016 can match the action of 1948. Surely the people of India can see this, arousing scepticism over the motive for the commemoration of a mere ‘surgical strike’. None of India’s Prime Ministers had gloated over victory in war. Lal Bahadur Shastri’s humility helped him steer clear of this in 1965, and Indira Gandhi, not given to undue modesty, did not make capital out of the India-Pakistan war of 1971, which had left the adversary not just bloodied but halved. It was left to others to liken her to Durga. In their dignified silence, India’s former Prime Ministers had followed the practice of great leaders who refuse to glory in aggression. The countries of Europe remember the sacrifices of their soldiers in the two World Wars but they do so with restraint. Can it be said that they love their country less for merely wearing a flower for a day, not requiring their great universities to celebrate victory in war?
Having the edge
A second reason for avoiding public remembrance of the ‘surgical strike’ of 2016 would be that it undermines any advantage that may be possessed by India. While it may at times be necessary to pursue infiltrators to their lair, it can be strategically unwise to keep advertising your past actions. Here Oscar Wilde’s advice to the young that “one must always be a little improbable” is a good principle to follow even in matters of defence. The enemy should be left constantly guessing how you will react, so that you would be able to exact even greater damage when he attempts to hurt you the next time round. Politicians reveal their amateurishness in matters military when they boast in public of the deeds of our soldiers.
In general, it is unfortunate that India’s politicians are unable to make common cause when it comes to national security. Something of this kind is much needed in a matter that is being aired in our television debates right now. In a relatively rare moment of sanity emanating from them, an anchor suggested that henceforth defence acquisitions be made through bipartisan committees so that there is transparency. This would avoid the mud-slinging that we are left to witness over the Rafale deal and ensure that the national interest is upheld.
Above all, dragging our armed forces into a jingoistic nationalism to serve some narrow political end stems from an ignorance of India’s eternal tradition. Ashoka Maurya renounced violence after his victory at Kalinga and spent the rest of his life spreading the idea of non-violence. The Chandela kings, after victory in war, built exquisite temples at Khajuraho, leaving them for the use of their people. For a soldier to aspire to reward, whether of wealth or fame, was considered a fate far worse than death. This after all is the message of the Bhagavad Gita. Apparently some of India’s politicians are unaware of their inheritance.
A national spirit
Nations are imagined communities. They first arise in the minds of the people. The state can only tap into this national spirit; it cannot create it. Ashokan edicts in the four corners of the country, erected at a time when transporting people and communicating ideas was a Herculean task, testify to the fact that at least some Indians had imagined a community long ago. This imagination had revolved around ethical conduct and transcended cultural, linguistic and religious differences. Over two millennia later it was to erupt in the form of a national movement when Gandhi’s call to unite against a colonial power was instinctively heeded by millions of ordinary Indians. By the 21st century, Indians imagine themselves as a community, it may be said, of diverse nationalities. They must view with amusement the ersatz nationalism being manufactured over a routine action somewhere along India’s north-western border.
Missed opportunity or ill-timing?
The acrimony over the proposed Foreign Ministers’ meeting has set back India-Pakistan ties
That was quick. A quick cool breeze turning into a scorching slap of hot wind of the desert. We had a rocky start when the routine congratulatory letter by Indian Prime Minister Narendra Modi to Pakistan’s Prime Minister Imran Khan calling for constructive engagement was translated as the signal for resumption of dialogue. The Indian Ministry of External Affairs (MEA) wasted no time to embarrass Pakistan’s Foreign Office for its lack of capacity to understand the diplomatic language. Despite another facepalm over the contents of U.S. Secretary of State Mike Pompeo’s phone call with Mr. Khan, the Pakistan Foreign Office put up a brave face to ease the tension between the U.S. and Pakistan on the eve of Mr. Pompeo’s five-hour visit on September 5.
The pundits in Islamabad saw a prize for the patience. Besides the same ol’, same ol’ statements issued unilaterally from both sides, there was something special discussed on the sideline related to India and Pakistan. While the U.S. insisted on pulling the plug on India and Afghan-centric militants, Pakistan prodded the U.S. to push Delhi for positive engagement and a commitment to act positively should India accede to normalisation and finding mutually acceptable solutions to long-standing problems.
On the heels of the U.S. visit to the region, Mr. Khan sent Mr. Modi a letter, presumably to respond to his congratulatory letter but actually to bring a thaw into the frozen relationship. The letter might not be rich on style but did offer something to both countries. It offered Pakistan a face saver by mentioning Kashmir, Siachen and Sir Creek, while it offered India the possibility of resumption of trade and the T word. Pakistan was willing to talk about terrorism, Indians have always wanted to talk about it as they have maintained it as the main hindrance in the resumption of the comprehensive dialogue.
Back and forth
On Thursday, September 20, the MEA spokesperson acknowledged the letter from Mr. Khan, requesting a meeting of the two Foreign Ministers, Sushma Swaraj with Shah Mehmood Qureshi, and said a meeting would take place but should not be construed as the resumption of the dialogue process.
The U.S. Department of State wasted no time by welcoming the scheduled meeting in an almost condescending tone. Within 24 hours, the very next day the MEA Spokesman made a U-turn, cancelling the meeting. Had it been just the cancellation, it would have been taken lightly, but the direct accusation against Mr. Khan by naming him created a new crisis.
The Pakistan Tehreek-e-Insaf (PTI), the party now ruling Pakistan, had in the past used very harsh language against former Prime Minister Nawaz Sharif, who had contested the 2013 elections on the promise of improving relations with India. “Modi ka yaar gaddar (Modi’s friend is a traitor)” was a theme that ran for almost the entire campaign period against Mr. Sharif’s Pakistan Muslim League-Nawaz (PML-N) in the elections this summer. The PTI had accused the PML-N of establishing personal relations with Mr. Modi and doing personal business with him instead of promoting the national interests of Pakistan. The party had hit Mr. Sharif hard for Mr. Modi’s visit to Lahore in December 2015 and had blasted his government on an Indian businessman’s visit to Pakistan in April 2017.
With the controversial elections of July 25 behind him, Mr. Khan turned the corner. His first informal acceptance speech offered the olive branch to India. “If India moves one step, we will move two,” he said.
Islamabad was rife with rumours that he wanted to invite Mr. Modi besides his friends in Bollywood and cricket friends for his oath-taking ceremony on August 18.
Somehow Mr. Khan was prevented from inviting Mr. Modi, but one of his cricket buddies, Navjot Singh Sidhu, did turn up. While his seating arrangement and the japha (bear hug) with the Chief of Army Staff, General Qamar Javed Bajwa, created quite a stir in India, Pakistan government circles were bullish on the offer to open the Kartarpur border crossing for Sikh pilgrims. While The New York Times even suggested that the Pakistani military had tried to reach out to the Indian side to discuss outstanding issues, a story never denied by the military, the very ambiguity created a positive atmosphere before the scheduled meeting between the top diplomats of both countries on September 27.
All that changed on Friday, September 21, with the cancellation of the meeting that almost insulted the Pakistan PM. While the Pakistan Foreign Office and Mr. Qureshi expressed their disappointment, they stayed within the diplomatic ambit and did not attack the Indian side. That changed when Mr. Khan on Saturday, September 22, attacked Mr. Modi without naming him and chiding him as the small man holding a big office. As if that was not enough, the statement by the Indian Army Chief threatening Pakistan and the retaliatory statement by the Pakistan Army spokesperson has made the situation more toxic than the pre-election situation. We expect more fireworks in New York City during the UN General Assembly.
Will the two men in Delhi and Islamabad find a way untangle the relations should Mr. Modi continue to rule after the upcoming elections in India is a question that hangs in the air in both countries now. Politics is the art of the possible, and thankfully both Mr. Modi and Mr. Khan are politicians.
An indefensible ordinance
The triple talaq ordinance is likely to fail the test of judicial scrutiny on several grounds
An ordinance is a constitutionally sanctioned ad hoc mechanism by which critically urgent situations are met when Parliament or a State Assembly (as the case may be) is not in session and the government cannot afford to wait till it reassembles for fear of things becoming unmanageable if not legislatively redressed immediately.
Last week, the Union Cabinet, on the presumption that direful conditions prevail in the country due to the pervasiveness of instant triple talaq, convinced the President to promulgate the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. In the words of Union Law Minister Ravi Shankar Prasad, the “overpowering urgency and compelling necessity” that gave birth to this ordinance was that talaq-e-biddat continued unabated despite the Supreme Court’s order last year.
The fact is, excluding isolated cases, there is no documentary evidence to show that the incidence of instant triple talaq had reached alarming levels to warrant the hasty promulgation of a presidential ordinance. And as Article 123 of the Constitution requires the President to ensure the existence of circumstances “which render it necessary for him to take immediate action”, the Centre, in the interest of a fair debate, must make public the evidence presented to the President.
Poorly conceived and drafted
Nevertheless, the triple talaq ordinance is so poorly conceived and drafted that it is bound to fail the test of judicial scrutiny on several grounds. First, it could collapse under the weight of its internal contradictions. Section 2 (b) of the ordinance defines talaq-e-biddat as any form of talaq “having the effect of instantaneous and irrevocable divorce” but lays down in Section 3 that such a pronouncement in any form whatsoever “shall be void and illegal”. No explanation is offered as to how the pronouncement can be “void” and have “the effect of instantaneous and irrevocable divorce” at the same time. Besides, Section 4 mandates a three-year imprisonment and fine for this void act, and Section 7 declares it a cognisable and non-bailable offence. This fixation with talaq-e-biddat, even when it does not dissolve the marriage, is baffling.
Second, barring constitutional amendments under Article 368, Parliament is not competent to enact any law which is inconsistent with the fundamental rights enshrined in Part III of the Constitution. Article 13 (2) states: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Endorsing this, Article 123 (3) warns that if an ordinance “makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”
The ordinance, insofar as it arbitrarily curtails the personal liberty of a citizen without his having committed any offence, violates Part III of the Constitution, specifically Article 21 which states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It also goes against Article 19 which inter alia allows all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.”
Third, the Supreme Court in several cases, including Maneka Gandhi v. Union of India (1978) and K.S. Puttaswamy v. Union of India (2017), had made it clear that “law” means reasonable law, not any enacted piece. And a procedure established by it has to be fair, just and reasonable to avoid being struck down as unconstitutional. The ordinance fails on all these counts.
If by criminalising the mere pronouncement of the legally impotent formula talaq-talaq-talaq it violates the principle of substantive due process, the ordinance disregards procedural due process by laying down an iniquitous procedure for the “offender’s” imprisonment, bail, custody of his children and the amount he has to shell out as subsistence allowance to his wife even while serving a jail sentence. The unfairness, injustice and unreasonableness lie in the fact that the ordinance inflicts this torment on a citizen despite acknowledging the voidness of his pronouncement.
Fourth, Article 123 empowers the President to promulgate an ordinance only when urgent situations arise during the recess of Parliament. In the case of triple talaq, no such emergency came to light after the monsoon session ended. In fact, the triple talaq Bill passed in the Lok Sabha was already being debated across the country when the Centre, citing the reason of lack of consensus among parties, decided not to table the amended version of it in the Rajya Sabha during the monsoon session. This indicates that the Bill did not have the approval of the Upper House of Parliament. If despite this an ordinance resembling the untabled Bill has been promulgated, it lends credence to accusations that the legislature was undemocratically circumvented to serve the political interests of the ruling party.
The fact is, it makes no sense to bypass the parliamentary process because Article 123 (2) (a) demands that all ordinances be laid before both Houses of Parliament when Parliament reassembles. In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court ruled that tabling ordinances in Parliament (or a State Legislature) “is a mandatory constitutional obligation cast upon the government” because ultimately it is the legislature which determines “the need for, validity of and expediency to promulgate an ordinance.” And failure to table an ordinance before the legislature “is an abuse of the constitutional process” and a “serious dereliction of the constitutional obligation.” Therefore, one fails to understand the Union Cabinet’s wisdom in taking the ordinance route without discussing the triple talaq Bill in the Rajya Sabha. If it was due to the fear that the Bill would not have been approved, then the same fear exists for the ordinance because in all probability, the Rajya Sabha will reject it too, and the government would have achieved nothing except criminalising instant triple talaq for a short period of time till the winter session of Parliament starts.
A pointless ordinance
In this context, the Supreme Court’s pronouncement on the re-promulgation of ordinances assumes significance. In Krishna Kumar Singh, criticising the State of Bihar for re-promulgating ordinances without placing them before the legislature, the court declared that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.” The power to promulgate ordinances is subject to legislative control, it said, and does not make the President or the Governor “a parallel source of law making or an independent legislative authority.” As is obvious, the pointlessness and the indefensibility of the triple talaq ordinance stands out from every coign of vantage. One hopes that the President will examine the legal infirmities that the ordinance suffers from and consider withdrawing it at the earliest.
The power of a nudge
Including behavioural insights in policymaking is helpful
According to the Organisation for Economic Cooperation and Development, 202 institutions around the world are applying behavioural insights to public policy. While most of them are found in the U.S., the U.K., Europe and Australia, some are found in developing countries in West Asia, Africa and Latin America. These institutions partner with behavioural and social scientists and combine psychology, sociology, anthropology, and politics to understand human behaviour to design effective public policies.
Understanding a paradox
Why are governments including behavioural science in policymaking? Over the last few years, it has been observed that even the most well-intentioned public policy programmes fail to be adopted by people who would benefit from them the most. On the contrary, people repeatedly make decisions that serve neither their own interests nor of others. In India, for instance, despite access to toilets, open defecation remains a huge challenge. Finding answers to this paradox is where behavioural frameworks become relevant.
Until recently, it was assumed that individuals make rational choices, and the right incentives determine the “right choices”. But evidence suggests otherwise. People’s choices and decisions are not rational but determined by a far more complex set of psychological, cognitive and behavioural factors. Given their limited attention and computational capacity, people gravitate towards the status quo, which often results in a gap between the policy’s intent and action. It’s therefore not surprising that people discount the risk of stroke and “choose” not to invest in health insurance. Decisions also tend to be clouded because of societal perceptions and adherence to norms — for instance, girls are still married young. Understanding these barriers is leading to recalibration of public policy design. By including ‘nudges’ — small, easy and timely suggestions to influence behaviour — we understand implementation outcomes better.
There are a few aspects that could be considered while applying this science. One, the advantages of deploying these insights can only be reaped if national contexts and differences in socio-economic, cultural and political narratives are appreciated. So, while success stories from across the world showcase the potential of informed behavioural adjustments to policies, these can’t be simply emulated in developing countries. There first needs to be an analysis of social norms. One such effort is cognitive scientist Christine Legare’s work in Bihar, to improve the quality of health-care service delivery by front-line workers. It takes into account popular ‘rituals’, like keeping a baby away from the ground in a cot (palna), or marking decorations around her hearth (chulah), for transmitting messages that are culturally acceptable.
Improving health services
Second, behavioural science can be applied to large-scale programmes. The very nature of the science being imbued in a social and cultural context enables it to generate effective and sustained results to public service programmes. PENN SoNG is collating the analyses of core social motivators for open defecation and related behaviours in Tamil Nadu and Bihar with culturally appropriate social measures to convert toilet usage into a sustained habit.
Third, interventions that are designed using this science can reduce the intent-to-action gap. There is a plethora of tools like defaults, reminders, prompts, and incentives that can reduce poor adherence and increase compliance for sustained impact throughout the life of an intervention — for example, Kilkari, a mobile service by the government that delivers free, weekly and time-appropriate audio messages about pregnancy, childbirth and childcare directly to families’ mobile phones. It focuses on improving uptake of health services.
Lastly, data collected and evaluated from a behavioural insights approach can be used for better management of programme performances. Rigorous evaluation of behaviour is often missed while measuring programme performances, and often this missing data can help explain the limited impact of well-intended government programmes. The impressive work done by the Ministry of Rural Development, on monitoring the implementation of national flagship schemes through DISHA dashboards, can be leveraged for evaluating behavioural change on the ground. While DISHA does not include measures on behaviour, it measures implementation of programmes. It shows how India can benefit from the use of behavioural insights in policy decision-making.
Rethinking disaster management
The new climate reality is raising the bar on disaster resilience
It is time to stop thinking of the extreme weather events hitting us with increasing frequency as bolts from the blue. Kerala bravely endured the monsoon storms, but it would be a mistake to think that disasters of this magnitude are “once in a hundred year” events.
Weather disasters are being affected by climate change that is caused by humans. The devastation is worsened by the collective failure of governments and businesses to invest in building resilience despite the evidence on runaway climate change. The lesson from the Kerala floods, Hurricane Harvey (Houston, U.S., 2017) and Typhoon Haiyan (the Philippines, 2013) is that responses to disasters must be proactive, not just reactive.
First, reconstruction efforts must involve rebuilding in a better way. Climate proofing in Kerala calls for structures to be built with wind- and water-resistant materials. The higher cost will be more than offset by avoided repairs. Second, people need to relocate out of harm’s way. After Haiyan’s storm surges, distances from coastlines that were considered safe for settling were extended. During the 2015 floods, Chennai illustrated the price of unrestricted urban development. Third, early warning is vital. Because of investments in these systems, Cyclone Phailin (2013) claimed less than 40 lives in Odisha, whereas a superclyclone in 1999 in the State had killed 10,000 people. In Kerala, there was no timely forecast from national weather services. The State needs a reliable flood forecasting capability. Fourth, there needs to be tougher implementation of logging and mining regulations in fragile ecologies. Deforestation worsened the effects of Kerala’s floods and mudslides, as the report of the Western Ghats ecology expert panel 2011 had warned. Lastly, there is the climate conundrum: Wayanad, which just saw record rainfall, is expecting a severe drought. Kerala by itself has a small carbon footprint, but it can have a voice in helping one of the world’s largest carbon emitters reduce its carbon footprint.
The economic damage from global warming has global ramifications. The 2011 floods in Thailand’s economic heartland disrupted not just national, but global manufacturing value chains. The Kerala floods are estimated to have shaved off about 2.2% of the State’s GDP. Bolstering resilience must be central to recovery. Multilateral agencies including the World Bank and Asian Development Bank may be well-positioned to provide financing, which is vital when budgets are stretched, and, crucially, knowledge solutions to tackle climate disasters. Kerala gets high marks for its participatory approach to relief and rehabilitation. Invaluable as this is, the new climate reality is raising the bar on disaster resilience.