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The Hindu Notes for 10 August 2018

Perils of historical amnesia

Critics of Article 35A forget that it was introduced to bring J&K closer to India, not tear it further apart

The irony of today’s India is that while our politics is looking towards our history more often than ever before, we are also becoming comfortable with its constant manipulation. The controversial Article 35A of the Constitution, which is currently being challenged in the Supreme Court, is a case in point. Its critics have argued that the Article affords Jammu and Kashmir undue powers, particularly by preventing non-State residents to own land in the State. The media has largely gone along with this explanation, often portraying the debate as a question of “special status” of Jammu and Kashmir and the Article as some sort of unusual concession to the State. In fact, the fundamental purpose of Article 35A, when it was introduced in 1954 as part of a Presidential Order, was the exact opposite: instead of giving the state a “special status”, it was designed to take autonomy away from it.

A larger package

The Article was introduced in May 1954 as part of a larger Presidential Order package, which made several additions to the Constitution (not just Article 35A). The overall gist of this Order was to give the Government of India enormously more powers over the State than it had enjoyed before. For the first time, India’s fundamental rights and directive principles were applicable to Jammu and Kashmir and the State’s finances were integrated with India. Importantly, the Order also extended the Indian Supreme Court’s jurisdiction over certain aspects of Jammu and Kashmir.

Just as crucially, the Order had come about only after the Jammu and Kashmir government had agreed to it and passed a similar legislation in its own Constituent Assembly, making it clear that these powers were Jammu and Kashmir’s to give, not India’s to take. In fact, at the time of its introduction, the Order was celebrated in India as a great step towards bringing Jammu and Kashmir closer into the Union of India. Even the Hindu right-wing leaders had hailed it as a “commendable step”. No eyebrows were raised over the minor issue of Article 35A, which made up a very small component of the Order.

Of course, the larger problem is that after decades of confusion and purposeful obfuscation, we tend to forget that initially Kashmir was conceived as a State with “special status”. The controversial Instrument of Accession signed by Maharaja Hari Singh in 1947 which brought the State into the Union of India gave New Delhi control only over Kashmir’s defence, foreign policy and communications. On all other matters, the State government retained powers. On the spectrum of autonomy, Jammu and Kashmir lay somewhere between, say, Bihar, a fully integrated State of India, and Bhutan, which enjoyed limited sovereignty under the protection of India. India’s tenuous grasp over Jammu and Kashmir was further complicated by New Delhi’s international commitment to hold a plebiscite in the State to decide its eventual fate.

It is because of this weak India-Kashmir constitutional link that Sheikh Abdullah became “Prime Minister” of Kashmir; the State had its own Constituent Assembly and flag; there were customs checks between India and the State; the Supreme Court did not have jurisdiction over key issues in the State; Kashmir militia was constituted as a separate force; and Srinagar tried to send its own trade commissioners to foreign countries. With the coming into effect of the Indian Constitution in January 1950, New Delhi’s powers over Jammu and Kashmir were defined more clearly through a Presidential Order (a predecessor of 1954 Order). However, just in the areas of defence, foreign affairs and communications was Jammu and Kashmir put on the same footing as the rest of India. On issues of commerce, audit, judiciary, elections and finance, there were considerable modifications. India’s fundamental rights and directive principles were not applicable in Jammu and Kashmir at all.

The Delhi Agreement

Only in 1952, after the international clamour for an immediate plebiscite had somewhat subsided, did Jawaharlal Nehru invite Abdullah to discuss how India and Jammu and Kashmir could be more closely integrated. The result was the 1952 Delhi Agreement which, contrary to popular belief, still fell short of the 1954 Presidential Order. For instance, the 1952 agreement did not finalise financial integration and required the fundamental rights and citizenship to be granted to the State’s residents via the State Legislature.

Before the Delhi Agreement could be implemented, the situation was altered radically because of three factors. First, any plans for an immediate Plebiscite were abandoned in 1954, which strengthened New Delhi’s hand. Second, in 1953, Nehru faced a nationwide campaign from the Hindu right-wing demanding greater integration of Kashmir. And finally, and perhaps most importantly, in August 1953, Abdullah was arrested and replaced by Bakshi Ghulam Mohammed, who was far more amenable to integration with India.

So, in January 1954, New Delhi negotiated a new agreement with Bakshi, which was passed by the Kashmir Constituent Assembly in February, and eventually introduced through Presidential Order in May. However, it still left the State with enormous autonomy. Foremost, all “residuary powers” rested with the State legislature. The State government could detain people who did not enjoy the right to appeal to the Supreme Court. It also retained its controversial land reforms measures and the final authority over any alteration of the State’s boundaries. Among its lesser known provisions at the time was Article 35A, a holdover from the colonial era.

It took another 70 years of successive governments steadily chipping away at Jammu and Kashmir’s autonomy to bring it to today, when the only meaningful “special status” that it enjoys is Article 35A. Almost all of State’s other autonomous powers have been subsumed by New Delhi. Today’s debate over the Article should be seen as part of this larger decades-long process of the State’s integration into India, sometimes through legal means and sometimes through outright fiat.

Vestige of a broken promise

To be sure, the whole project of federal nation-building requires constant negotiation between the nation state and its components. Arguably, India’s efforts to bring Kashmir into its fold can be told as part of such a story. However, such efforts need to have an underpinning of at least some kind transparent democratic process. Should Article 35A be removed, it must be removed as an expression of the will of the people, through a political process which includes the people of Jammu and Kashmir in the discussion. Or, in the very least, it has to be remembered that the Article is not some special concession to Jammu and Kashmir but the last vestige of a broken promise that India had made to it decades ago.

Sandeep Bhardwaj is a research associate with the Centre for Policy Research, New Delhi

Questions of faith at Ayodhya

We need to carefully understand the issues before the Supreme Court

This refers to A. Faizur Rahman’s article “The essentiality of mosques” (The Hindu, August 7, 2018). He says that the Supreme Court needs to reconsider the Ismail Faruqui verdict, in which it stated that a mosque is not essential to Islam. Instead of arguing his case, Mr. Rahman blandly states: “A reading of the Koran and authentic traditions of the Prophet make clear the significance of the mosque in Islam.” This is, at best, a circular argument and, at worst, a terrible obfuscation.

Misreading the Constitution

It is also a misreading of the Constitution of India to state, as the writer does, that Articles 25 and 26 guarantee Muslims an unfettered fundamental right to pray in a mosque. Fundamental rights in our Constitution are not absolute, and are subject to reasonable restrictions of morality, health, and public order.

It is now established that Babri Masjid was a structure constructed by invaders, and after demolishing a pre-existing temple. The Supreme Court in 1994 had directed the Allahabad High Court to verify this by scientific methods.

The High Court then asked the Archaeological Survey of India (ASI) to determine and verify this fact. A team of two top archaeologists, B.B. Lal and K.K. Mohammed, in 2002 deployed the most scientific tools and unanimously concluded that there was indeed an extensive temple complex in ruins under the site where the Babri Masjid structure had stood.

The High Court accepted this finding and relied on the same in depth in its 2010 judgment of 1,000 printed pages, now available in three bound volumes. It is this judgment that the Sunni Waqf Board has appealed against in the Supreme Court.

Before the Supreme Court today are two sets of petitions being considered. The first is a civil suit appeal against the High Court judgment, viz., on questions of who the “disputed” Ayodhya site belongs to. The second is my writ petition seeking enforcement of my fundamental right to pray at the site where Rama was born. Many devout Hindus believe that Bhagwan Sri Rama was born at a particular spot in Ayodhya, the then capital of a flourishing kingdom of the Suryavamsa dynasty.


Rama is venerated as Maryada Purushottam and worshipped by Hindus in the north as an avatar of Vishnu, while some Tamil saints known as Nayanmars and Alwars composed many hymns and songs dedicated to his divinity. In that sense, Sri Rama was the first truly national king of India, supra region, supra varna or jati. That is why the poet Mohammed Iqbal called him ‘Imam-e-Hind’.

The exact spot of the palace where Rama was born has been — and remains — firmly identified in the Hindu mind and is held sacred. This is the very area where stood, from 1528 till December 6, 1992, a structure that came to be known as Babri Masjid, put up by Babar’s commander, Mir Baqi.

Posed as it is, my petition should prevail in the Supreme Court since my fundamental right is a superior right in law compared to the ordinary right to property as claimed by the Sunni Waqf Board.

It is thus to forestall the superior right of worship at Ram Janmabhoomi from prevailing, and to buy time till the next general elections, that the lawyers engaged by the Sunni Waqf Board have introduced this new prayer (which was not raised at the High Court level), of setting up a larger Constitution Bench to reconsider the 1994 five-judge Constitution Bench judgment that a mosque is not “an essential part” of the Islamic religion. This is also the view of prominent Islamic scholars.

To argue otherwise, as Mr. Rahman does, is nothing but a part of a legal strategy to obfuscate and delay the apex court judgment.

Subramanian Swamy is a member of the Rajya Sabha and a former Union Law Minister

Does the anti-trafficking Bill address trafficking?

The Bill goes beyond criminalisation; it tries to combat the organised nature of trafficking

India took a giant step towards the protection of its women and children when the Criminal Law (Amendment) Act was passed by the Lok Sabha in 2013. Section 370 of the Indian Penal Code (IPC) was substituted with Sections 370 and 370A, which defined trafficking and laid out the punishment for it. However, mere criminalisation of trafficking is not enough — several laws have not been implemented in letter and spirit in the absence of a comprehensive legislative framework. In the case of trafficking, data show that despite the 2013 law, there has been an increase in the number of victims of human trafficking. It is to tackle this menace that the comprehensive Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, was passed. Instead of mere criminalisation, the Bill seeks to systematically combat the organised nature of trafficking.

Multipronged approach

The Bill ties together the approaches of prevention, rescue and rehabilitation to create a robust policy framework against trafficking. It places at its core the rights and welfare of victims of human trafficking. There are aggravated forms of trafficking which have been introduced, such as trafficking for the purpose of begging, or bearing a child, or for the purpose of marriage or under the pretext of marriage by administering narcotic drugs, hormones, or chemical substances for the purposes of early sexual maturity, and so on. Under the Bill, prosecution under these offences will be made timely and efficient by special public prosecutors.

The Bill provides protection to witnesses. It also seeks to maintain the confidentiality of victims by recording their statements through video conferencing and by in camera proceedings. It states that there will be time-bound trials and repatriation of victims.

A rehabilitation fund has been introduced for the first time. This will be used for the physical, psychological and social well-being of victims. The Bill seeks to build the capacity of victims by providing capital, infrastructure, education and skill development to empower them to access justice and to prevent further trafficking.

For the first time, the National Anti-Trafficking Bureau will coordinate with authorities in foreign countries and international organisations, and facilitate inter-State and trans-border transfer of evidence and materials. It will strengthen the intelligence apparatus to improve the collection, collation and dissemination of operational intelligence. The Bureau will also coordinate actions and enforcement by various bodies or authorities established under this Bill. There will be State and District Anti-Trafficking Committees which will arrange for appropriate training and sensitisation of functionaries of all personnel.

It is crucial to note that trafficking is an organised crime. In order to break the organised nexus, at the national and international levels, the Bill proposes attachment and forfeiture of property and to remit the proceeds of crime in the rehabilitation fund. It will also freeze bank accounts of those whose funds have been utilised to facilitate trafficking. By doing this, the Bill handicaps the organised trafficking networks.

Systematic surveillance

The Bureau will also develop and monitor a database on every crime under this Act. Such systematic surveillance of offenders will, in about three years, not only help prevent trafficking but pre-empt it. The Bill does its bit. Now we must all come together to use it to deliver justice.

Most clauses have little to do with trafficking and more do to with imposing surveillance

The Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, fails in its fundamental purpose, i.e. it does not address the issue of trafficking.

Let us first be clear on what we understand by trafficking. ‘Traffic’ means to trade something. It’s a transaction, and refers to the act of buying and selling. ‘Traffic’ or ‘trafficking’ is not wrong per se, but it is pejorative when the transaction involves prohibited goods such as narcotics or firearms or if it involves people. Article 23 of the Constitution prohibits “traffic in human beings and forced labour”. This means that human beings cannot be bought and sold.

Proscribes legitimate activity

Barring one provision of the anti-trafficking Bill which criminalises the act of “buying or selling a person for a consideration,” the rest of the clauses do not address this aspect at all. They either criminalise acts that are already punishable under other laws or proscribe activities that are not only legitimate but also constitutionally protected. An example of the former is the ‘new’ offence of “trafficking for the purpose of begging”. Employing or causing someone to beg is already a criminal offence under anti-begging laws. Similarly, unauthorised immigration of citizens and foreigners is dealt with under the Passports Act, 1967, and the Foreigners Act, 1946, respectively. There is nothing novel in the proposed offence of “encouraging or abetting any person to migrate illegally into India or Indians in to some other country”. Besides, illegal migration does not involve elements of ‘trade’ in human beings or trafficking. To term it an “aggravated form of trafficking” is questionable in itself.

The Bill also states that “whoever solicits or publicises electronically, taking or distributing obscene photographs or videos or providing materials or soliciting or guiding tourists or using agents or any other form which may lead to (emphasis mine) the trafficking of a person shall be punished with rigorous imprisonment.” This means that no trafficking needs to take place; a remote possibility is sufficient to prosecute persons and shut down websites. It is important to remember that similar provisions of the Information Technology Act, 2000, were struck down by the Supreme Court for being vague and over-broad. Most clauses of the Bill have little to do with trafficking and more do to with imposing surveillance and restricting freedoms through punitive overkill.

Interplay with existing laws

The rhetoric around the Bill will also dissipate when we understand its interplay with existing laws, which have not been overruled or repealed. The anti-trafficking Bill relies on Section 370 of the IPC to define and establish that an offence of trafficking of persons has taken place. Section 370 was introduced in 2013 on the recommendation of the Justice Verma Committee. In order to try offences under the Bill, the prosecution will have to first prove the subsections of Section 370, which are that the victim was transported, recruited, harboured, received or transferred for the purposes of exploiting her/him by using force, abduction, deception, or by abuse of power. Only then will the provisions of the Bill take effect.

For the police and the courts, implementing the numerous anti-trafficking laws will be a nightmare. Only persons accused of trafficking will benefit from the legal mess. It is common knowledge that if more laws are applied, the easier it will be to find loopholes and secure an acquittal. How is this a leap or an advance in anti-trafficking legislation?

The Bill is well-intentioned and has some positive features, but is a wasted opportunity

The anti-trafficking Bill aims to solve an institutionalised socioeconomic problem with a ‘crime and punishment’ model, relying on police stations, courts and jails.

First, the positive features. The fact that the Ministry of Women and Child Development revised the Bill many times before arriving at the final version indicates its genuine intention to bring out a good legislation. The following sections of the Bill are satisfactory: search and seizure; rescue and medical examination of persons; and safety, care and protection of persons rescued. Punishment for omission of duty can be welcomed too, if it does not omit the government officials, including the police, from its ambit.

Drawbacks of the Bill

Having said that, the Bill is silent on many types of trafficking, such as trafficking for supply chains, commercial surrogacy, clinical trials, human organ trade, intergenerational trafficking, orphanage tourism and sex tourism. It also doesn’t incorporate the long-pending demands for ‘demand reduction’ and ‘non-institutionalised rehabilitation’.

Instead of strengthening the existing anti-trafficking laws, the Bill calls for another law, one that is uncalled-for and sloppily drafted. The Bill clashes with existing laws, which will lead to confusion.

In an age when an institutional approach for victim care is rapidly discredited and the demand for non-institutional approach is growing, the Bill adds two more unnecessary and vaguely defined institutions: protection homes and rehabilitation homes.

The term ‘victim’ appears several times in the Bill but is shoddily defined. Through Section 59, the Bill overrides a better definition of ‘victim’ given in the Code of Criminal Procedure.Going by the established practice, a victim is one who is ‘rescued’ by the raiding police. So, those rescued by NGOs, parents, friends, and so on are not victims.

Rescue and rehabilitation

Going by the public statements of an activist championing the Bill, traffickers get themselves ‘rescued’ by the police so that they can keep an eye on the rescued victims and silence them. In the absence of clarity, such traffickers who operate hand in glove with the police will be the first to get themselves ‘rescued’ and claim hefty compensations, rehabilitation, small capital for business, and worse, an absurd immunity for committing serious offences that are punishable. Such traffickers can simply plead to have committed the crime under threat or “undue personal influence”, as provided in the Bill. In South Asia, often a trafficker is a person known to the victims. Section 2(x) makes such traffickers eligible for several benefits, independent of arrests, trial or its outcome.

How it is possible to expedite justice when the government is mandated by the Bill to merely issue a circular notifying the existing sessions courts as designated courts is not clear. No new courts or judges are mentioned. The district courts are neither exclusively dedicated to trafficking cases nor will they address such cases on priority. This move will only undo the gains of the past many decades of evolving more sensitive and specialised courts such as Immoral Traffic (Prevention) Act courts, Protection of Children from Sexual Offences courts, and family courts. The drafters of the Bill don’t understand rehabilitation. Section 30 (5) makes the rehabilitation fund available to the bureaucracy for the purposes of prevention, protection, prosecution. The Bill is by a well-intentioned Ministry with wrong advisers, but is a wasted opportunity.

Firm but gentle grasp

Indian education needs to get past the obsession with conventions

On July 2, the Madras High Court directed the Indian Institute of Technology, Kanpur to redo its rank list for this year’s IIT Joint Entrance Examination. This followed from a writ petition filed by a student who contended it was not fair to give equal preference to those who had properly followed the instructions in the question paper and those who hadn’t. As per the instructions, all numerical answers had to be rounded off to the second decimal place. Therefore, the petitioner contended, even if the answer was an integer, say, 7, it had to be written as 7.00.

The court allowed this contention and ruled that those who had followed the instructions correctly would have to be ranked above those who did not do so. When IIT Kanpur appealed this decision, a division bench of the Madras High Court stayed the previous order calling it “unwarranted”.

This debate raises the philosophical question of what the role of education is. Is it to train students to follow rules or is it to stimulate them to ponder and deduce the sense behind the lessons? Science and scientific method suggest that the latter is closer to the true purpose of education, particularly because the appeal of accuracy and reproducibility far outweighs the power of rules.

For example, consider the study of units and measurements. The International System of Units has, as base units, seven members including second, metre, kilogram, ampere, kelvin, mole and candela. Measurements of base units are defined according to agreed standards maintained by the International Bureau for Weights and Measures.

For instance, while the unit of time is the second, how long exactly is the second? The answer: “It is the duration of 9,192,631,770 periods of the radiation corresponding to the transition between the two hyperfine levels of the ground state of Caesium 133.” Compare this to its earlier definition as 1/86,400 of a mean solar day – which, while having an appeal for its apparent simplicity, is much harder to precisely measure or check for being a standard value.

The exact length of one metre was the distance between two marks on a rod made of a platinum-iridium alloy securely housed in Paris. This artefact was retired long ago. As D.K. Aswal of National Physical Laboratory, Delhi, writes in an article in Current Science, since 1960, the metre has been defined in terms of the wavelength of light from krypton 86 radiation, hence, is derivable from nature. This dispensed with the need for the platinum-iridium rod.

The obsession with conventions is not the only problem with the Indian attitude to education, but it is an issue that must be tackled if we wish to move ahead. In this venture, the firm but light, and entirely alterable, grasp that science has on conventions can serve as a guiding sign.

The writer covers science for The Hindu