Read The Hindu Notes of 20th September 2018 for UPSC Civil Service Examination, State Civil Service Examination and other competitive Examination

The Hindu Notes for 20th September 2018

Guilt by association and insinuation

A recap of the Saibaba case shows just how urgently the UAPA needs to be read down

  • In the 1950s, the U.S. was gripped by an anti-communist hysteria that is now known as “McCarthyism”, after Senator Joseph McCarthy, its chief propagandist. McCarthyism was characterised by blacklists and harassment, investigations and inquiries, dismissals from employment, and sometimes arrests and imprisonment of persons suspected of having left-wing sympathies. Many of these activities took place under cover of broadly-worded and vaguely drafted laws, and were sanctioned by judges who were hardly immune from the corrosive public mood at the time.

    • Pathological approach

  • Senator McCarthy was ultimately brought down, and McCarthyism has since become a byword for persecution of dissent and state paranoia. However, noting the prevalence of McCarthyist cycles in the lives of contemporary democracies, the American legal scholar, Vincent Blasi, proposed taking a “pathological approach” towards the constitutional right of freedom of speech and expression. Prof. Blasi argued that courts must interpret the right to free speech so that it can “do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically.” This means that laws and statutes allowing wide discretion to state agencies and to judges should be interpreted narrowly, and judicial doctrines marking the line between criminal conduct and the permissible exercise of fundamental rights should be clear and specific. In this way, he believed, the rule of law would act as a protector of individual liberty and a constraint upon state power in those times when the temptation to view dissent as treason was at its highest.
  • The ongoing case before the Supreme Court, pertaining to the arrests of numerous activists on the ground of their having links with Naxalism, has brought to the fore the operation of a law that goes directly contrary to Prof. Blasi’s pathological approach: the Unlawful Activities (Prevention) Act. Much has been written about the UAPA’s draconian procedures: pre-charge sheet detention for up to six months, the near-impossibility of getting bail, and the inordinate length of an average trial, effectively leading to years of incarceration before a final acquittal. The problem with the UAPA, however, is not simply the manner in which it sanctions the long-term deprivation of personal liberty even before an individual is found guilty. Equally seriously, what the UAPA deems criminal is phrased in such broad and vague terms that a finding of guilt or innocence itself entails an extraordinary amount of discretion. This discretion is vested both in the prosecution (when it builds up its case against the accused), and in the trial judge who hears and decides the case.

    • The Saibaba judgment

  • To understand how this works in practice, consider the recent, high-profile case of Professor G.N. Saibaba. In March 2017, the Sessions Judge at Gadchiroli convicted Prof. Saibaba — along with five other persons — under various provisions of the UAPA, and sentenced him to life imprisonment. The accusations against him included criminal conspiracy to wage war against the government, membership of the banned Communist Party of India (Maoist) and its “front organisation” (the Revolutionary Democratic Front), an intention to facilitate and abet the commission of terrorist activities, and so on.
  • In order to prove Prof. Saibaba’s “membership” of the banned organisation and its “front”, the primary inculpatory material included, for example, interviews in which he had discussed the history of the communist movement, his attendance at a public meeting where government policy had been criticised and the release of political prisoners had been demanded, his offer (as part of a team of persons) to mediate between the government and the Maoists, and copies of various pamphlets and videos that already existed on the Internet. The Gadchiroli Sessions Court put great store by this material as demonstrating Prof. Saibaba’s membership of, and involvement in, the activities of the CPI (Maoist) and the RDF.
  • In addition, the court also held that Prof. Saibaba operated under different pseudonyms while carrying out his work. It formed this opinion by noting that, in some incriminating letters, a Naxal operative called “Prakash” had been referred to as handicapped, and also that — at one point — his hard-disk had crashed. Since Prof. Saibaba was also handicapped, and one of the external hard-drives seized from him was not working, the court held that Prof. Saibaba was Prakash. Similarly, part of the evidence included a 2007 RDF letter claiming that Prof. Saibaba was handling certain parts of the country, and a 2013 CPI (Maoist) document claiming that an individual called “Chetan” was handling those parts. On this basis, it was held that Prof. Saibaba was also Chetan.

    • The fault in the UAPA

  • No doubt, the Sessions Court’s analysis of the evidence, and the conclusions that it drew, will be tested by the appellate courts. However, the core issue is not how the judge examined the evidence before him, but how the UAPA facilitates and encourages judges to draw sweeping conclusions of criminality on the basis of thin and, at best, suggestive material. In his critique of the Saibaba judgment, the criminal lawyer, Abhinav Sekhri, points out three ways in which this happens. First, the UAPA does not define what a “front organisation” is, or what makes an organisation a “front” of a banned unlawful or terrorist group. The wording of the UAPA, with references to “any combination of persons”, is vague and unhelpful. Second, the UAPA uses a number of broad terms that overlap with each other. Section 20 criminalises “membership” of a terrorist organisation; Section 38 uses the terms “associating” or “professing to be associated” with a terrorist organisation; and Section 39 criminalises “support” to a terrorist organisation, and includes “inviting” support as well as organising a “meeting” to support the terrorist organisation. And third, the UAPA punishes both “unlawful activities” and “terrorist acts”, but the definitions tend to overlap (and, in the Saibaba case, convictions were returned under both definitions for the same conduct).
  • Our criminal legal system is based upon the idea of individual responsibility: I am guilty for a clearly-defined offence that I have committed (either by acting or, in some cases, failing to act). The UAPA, however, takes us into the shadowy, McCarthyist world of banned organisations and “fronts” of banned organisations, “membership” and “association” (even a “profession” of association), “support” and “inviting support”. With terms like these, there is little wonder that even judges see pseudonyms seven years apart, conspiracies and code names, and the possession of literature, books and documents as damning. With its loose language and ambiguous words, the UAPA creates a climate in which the focus shifts from individuals and crimes to groups and ideologies.
  • There have been some judicial attempts to push back against this climate. The Supreme Court has held, for example, that the word “membership” has to be restricted to active incitement of violence (and not possession of books or attendance at meetings). In a famous judgment granting bail to members of the Kabir Kala Manch, the Bombay High Court applied this standard, and specifically rejected the prosecution’s argument that it was the “ideology” itself that was contagious. However, such judgments are few and far between, and the dominant approach remains one that is antithetical to individual liberty, and deeply McCarthyist in character.
  • Back in 1952, while debating the extension of the Preventive Detention Act, Syama Prasad Mookerjee protested that while preventive detention may be justified in some extreme circumstances, “you cannot just treat it as sandesh and rasgulla that you make it a normal part of the law of the land and start relishing it.” There is now enough evidence to suggest that our state has begun to relish the crackdown on dissent under the cover of combating terrorism. It is time for citizens and courts to ensure a dialling down. Interpreting the provisions of the UAPA through the lens of Prof. Blasi’s pathological principle might be a good start.
  • Gautam Bhatia is a Delhi-based lawyer

Preparing for the floods

Kerala has a unique opportunity to put in place climate-resilient water management

  • The recent floods in Kerala saw heroic rescues from raging rivers swollen by unprecedented rains — and the opening of shutters of major dams. There were allegations of ‘human blunders’ while the government said it could have done little else. The truth is that India has not learnt its lessons from recent floods, in Assam, Bihar and Tamil Nadu, and without addressing the underlying causes, history will repeat itself; if not in Kerala, elsewhere.
  • Three factors stand out.

    • Reluctant dam managers

    In Kerala, as elsewhere, more flooding was caused by emergency releases from dams that were full. Despite forecasts of more rain, there were no controlled releases. World Bank analysis while preparing the National Hydrology Project (NHP) in 2015 showed that although weather forecasts are more accurate now, dam managers (especially bureaucrats) are reluctant to authorise advance controlled releases.

  • This is partly because operating schedules are not based on predicted rainfall. These usually specify that dams must be filled up as soon as possible (because rain is not guaranteed later in the season) and must be full by the end of the monsoon (for the summer). But the world has moved to dynamic reservoir operations based on weather forecasts. While Bhakra dam’s managers switched to this after much persuasion, others in India have not because of the memory of notoriously inaccurate weather forecasts.
  • The political leadership and the bureaucracy too do not tolerate mistakes. Therefore, dam managers are reluctant to risk their careers and order controlled releases in advance.
  • The NHP is improving hydro-meteorological and weather forecasting systems across India but unless dam managers feel free to take credible risks, these will not be used for dynamic reservoir operations. A ‘plan B’ is also needed for water scarcities such as basin-scale water modelling and analysis supporting contingency planning (inter-basin transfers, linking canals to intermediate storage structures, and water re-allocation to higher-priority uses). None of these exist in India today.

    • Blocked waterways

  • In the badly-affected Tiruvanvandoor area of Chengannur in Kerala, none of the 23 small streams (Pravinkoodu to Tiruvanvandoor area) and a larger stream (thodu) called Madanthodu exist today, having been filled-in and encroached. This caused the Pamba river to flow on the roads and wreak havoc. This is the story across Kerala: roads, railway lines and housing colonies being laid and built without regard for natural water ways, but with formal planning permission. The State Department of Inland Waterways focusses on large waterways while district and local panchayats have no mandate or interest in maintaining these to reduce flood risk. The State Disaster Management Agency also ignores them.
  • River-basin specific flood inundation modelling with climate change simulations is a necessary first step to understand the full impact of potential unprecedented flooding. This includes worst-case scenarios such as twice the maximum historical rainfall, as was recently done by a Department for International Development, U.K.-supported project for the Mahanadi in Chhattisgarh. The second is for the local community to co-manage water resources with the government (by planning intermediate storage, drainage and emergency responses).

    • There must be massive awareness generation, to ensure that airports are not extended into river floodplains (an example being Chennai airport and the Adyar river), that road culverts let storm water through without hindrance, and that excess water is not blocked but allowed to saturate the soil strata (especially of sloping land) so that it does not cause mudslides (including the urul pottal that devastated hillsides in upland Kerala).

    Unprepared populations

  • Despite India being a signatory to the UN’s Sendai Framework for Disaster Risk Reduction, little has changed on the ground. Disaster management has improved and heroic efforts were made in Kerala to reduce human/animal casualties. Information was also shared through social and other media such as precautions to be taken after the flood. But most people were caught unawares by the ferocity of the flooding. Had such information been disseminated and absorbed earlier, disaster risks could have been greatly reduced, and everyone may well have coped better.
  • Most modern cities have elaborate flood management plans. But India cannot even protect known flood-plains, tank foreshores and lakes peripheries from encroachment and illegal construction.
  • Addressing these and other issues mentioned such as deforestation, encroachment and unplanned construction are self-evident priorities when development is viewed using the lens of climate-resilient water management (CRWM). A 2018 paper on an operational CRWM framework for South Asia defines three criteria for this.
  • We need to use the best-available information for decision-making. This means improved hydromet systems and weather forecasts, robust modelling of catchment water flows with simulations of different climate-related scenarios, international norms for safety factors and building codes.
  • We must prioritise buffers, flexibility and adaptability. This includes reviewing safety criteria of dams and canals, re-building these with higher safety factors, creating new intermediate storages, and introducing dynamic reservoir management.
  • Finally, we must reduce the vulnerability of the poor who pay a disproportionately higher cost in calamities.
  • Kerala has a unique opportunity to plan its future with a renewed awareness of the potential impact of climate-linked events. With more such extreme climate events likely in the future, it is better to be prepared than to be caught unawares — again.

Bringing data under the rule of law

The debate on data localisation must not be reduced to a good-bad binary

  • For long, Internet activists considered the Internet as being beyond law, politics and governments. J.P. Barlow made the famous Declaration of Independence of Cyberspace in 1996. It was fine when this phenomenon was just shaping up and challenging established institutions. But with the Internet and data becoming central to new social and economic institutions, can they still be kept sheltered from the rule of law? It is the law that provides people, especially the weaker sections, various protections and ensures justice. In a digital society, as data mirror and help organise all aspects of social, economic and political life, data need to be subject to the rule of law.
  • For the law to apply to something, it should normally be able to access and act upon it. Agencies, for instance, may require access to data to ensure that someone who criminally harmed another can be punished. Data are important requirements for various regulations. Actors over which the Indian law has no reach should not be able to use our data to harm us through surveillance or informational warfare (including election manipulations). Our data should be protected from such foreign entities.
  • As privacy is a right, it is primarily the state’s responsibility to protect our personal data. But it can mostly do so only if the data are within its reach. There are also great dangers regarding privacy from state agencies themselves. Such privacy can only be ensured by invoking and strengthening the protective and corrective powers of the state, including the judiciary and new data protection-related institution(s). It will be useful for the new data protection authority proposed by the Srikrishna Committee to actually be a constitutional authority.

    • Beyond the reach of law

  • Data, and digital intelligence derived from it, are universally acknowledged as the key economic resources in the digital society. Who owns, controls and accesses data determines who gets what piece of the overall economic cake. The European Union, France, the U.K. and some current policy initiatives in India are proposing national data-sharing regimes and data infrastructures. This is especially applicable to data taken from public spaces and data that are generated by users on digital platforms, a category called ‘community data’ by some current Indian policy texts. Such regimes and infrastructures again require the law to have access to potentially shareable data.
  • A lot of privately held digital data are needed for policymaking and governance. An example is the need for commuting data, mostly with companies like Uber, for smart traffic planning. Many similar requirements will emerge in all sectors. Some countries are exploring the idea of mandating access to such public interest data.
  • The law cannot achieve all these basic objectives if data can easily escape to any part of the world, beyond its reach. Countries are therefore developing regulations for storage, processing and cross-border flow of data.
  • Global social, cultural, economic and political integration must be promoted, but without sacrificing the effectiveness of nationally organised ‘rule of law’. Free flow should be the norm for general information and knowledge, with minimal conditions. But data today cover far more areas. Treaties should be explored so that data can flow between consenting jurisdictions with guarantees for application of corresponding laws of the country of origin, as the EU has done with its digital single market.
  • Employing a liberal regime, the flow of data not considered important for concerned laws should not be hindered. Necessary provisions and exceptions need to be shaped for privately owned data which are the kind mostly involved in software and BPO services. Entities dealing with data quantities below a certain threshold may be exempted. All data flow regulations carry such mitigating provisions, including those proposed in India now.

    • Democracy is local

  • However, to seek unchecked global flows of all kinds of data in emerging ‘datafied’ societies is irrational. It would mean withdrawal of the state from key social and economic roles that it traditionally performs. By default, digital societies and economies get ruled globally by the most powerful corporations and governments, which work in a mutually reinforcing manner. Data localisation attempts to bring back the rule of law to our digital and ‘datafied’ existence.
  • All major countries are working on some kind of data localisation proposals. Germany, Indonesia, South Korea, Russia and China already have various kinds of data localisation regimes. The EU and the U.S. also localise or put very strict conditions on cross-border flow of some kinds of data.
  • Global digital corporations live off global data. It testifies to their discursive might that when it comes to discussions in developing countries like India, the term ‘data localisation’ gets invariably presented as imbued with inherent moral, political and economic evil — a profanity that only state surveillance-minded and economic protectionist people can utter. At the numerous non-governmental meetings currently being held in Delhi and other places on data-related legal issues, any mention of data localisation, other than in the most critical terms, immediately attracts strong morally disapproving glances.
  • To moral reprobation is added the cost-of-compliance argument. While this should be minimised, there is always some cost to maintaining the rule of law. There are some accumulated jump-start costs while shifting from a largely lawless regime to the rule of law in the digital space. These must be borne if we are to build the foundations of a rule of law-based, fair and just digital society. This task will only keep getting more difficult, and more expensive.

    • A genuine political debate

  • The national debate on data localisation needs to integrate a wide range of social, political and economic perspectives. Legal and democratic requirements for local data regimes have to be appropriately balanced with the values of global digital integration. Interests of a transnational global elite need to be balanced with those whose livelihoods are attached to precarious local economies. Fears of state surveillance have to be balanced with the imperatives of a strong enough state that can protect people’s interests.
  • Data are of many kinds — there is news and information; personal, community and corporate data; data concerning common business activities, military, banking, health, education and agriculture; and so on. Some of these data are very sensitive, some are needed for effective regulation, some for governance and policymaking, and some for economic development, infrastructure and sharing. It is therefore a matter of what kind of data requires what kind of regulatory regime – localisation, global free flow, or various shades of grey in-between, rather than a sterile binary of whether data localisation is good or bad, which is what the debate has been reduced to unfortunately.

How far does a PhD go?

As the job market is tight for those with PhDs in science, it is important that they develop other skill sets

  • The number of PhD graduates has proliferated over the decades — while there were only a dozen doctorates till 1920 in India (the first was awarded in 1904), there were 24,000 in all disciplines from about 900 institutions in 2017. While the number may not be surprising, what is disquieting is that of the 6,000 people granted science PhDs annually, not even 2,000 find decent employment today.

    • More doctorates, less positions

  • Let’s look at the numbers. There were 326 PhD-awarding institutions in 2000; this rose to 912 in 2017. According to the University Grants Commission and the Department of Science and Technology, the number of science PhD holders tripled in the same period. With the number of PhD holders surpassing the number of opportunities created, many are left without jobs.
  • The top-ranked universities in India grant around 2,500 science PhDs each year. In chemistry alone, Indian Institute of Technology (IIT)-Madras grants over 25 PhDs every year. The number is similar in the older IITs, which means that there are 150 chemistry PhDs from these IITs every year. The remaining 11 newer IITs (the latest six are not being considered) add another 100 PhDs. The National Institutes of Technology (NITs) account for about 150, the Indian Institute of Science (IISc) for about 25, the older Indian Institutes of Science Education and Research (IISER) for about 60. The Council of Scientific and Industrial Research (CSIR) labs and institutions of the Department of Atomic Energy (DAE) add another 100 PhDs. Top universities produce about 250. In all, we have more than 800 chemistry PhDs a year.
  • However, our capacity to employ them is dismal. On average, the IITs and the IISc together recruit only about 25 chemists to their faculty in a year. The older IITs are saturated, so recruitment is rare. Another 50 are recruited in the CSIR, the DAE and the NITs. Overall, the annual intake is not more than 75. If other research labs, the IISERs, and top universities employ about 100 PhDs, that still leaves over 600 chemists without reasonable employment. Options for them include recruitment into State universities, colleges and private institutions, but it is important to remember that these institutions also produce PhDs, whom we have not counted. This has led to a situation where there are over 300 applicants for one faculty position alone. The situation is nearly similar for physics, and worse for biology. Those with PhDs in mathematics fare better. Engineers have not faced this challenge yet.
  • Thus, after earning a PhD and completing one or two postdoctoral stints, a scientist often stands at a crossroads after the age of 30. This unfortunately happens even to those who have published papers in respected journals and have obtained globally renowned fellowships. The only reasonable option for those with science PhDs seems to be the position of a permanent postdoc in foreign labs. Finding underemployed PhDs who have completed four postdoctoral fellowships is not uncommon. After 40, they are not accepted in entry-level positions.

    • Science, funding and productivity

  • The vicious cycle continues because a scientist’s performance is evaluated largely based on some standard criteria: in order to get the first promotion, he/ she has to publish five to 10 papers, and at least one PhD student should graduate under his/ her supervision. Awards and fellowships are also given based on such criteria. As a result, scientists end up training more scientists.
  • A big problem for scientists is funding, which is mostly provided by the government. Funding is crucial for good scientific research. Further woes for scientists include the fact that available resources are not distributed properly, funds are pruned, delayed, or stopped altogether.
  • While the government pays well, an Assistant Professor in a self-financed college in southern Tamil Nadu is paid just ₹8,000 a month. Many private colleges in and around Chennai pay about ₹30,000 for a person who holds a science PhD with postdoctoral training. In established private companies, baring exceptions, a postdoctorate is paid ₹70,000. There is indeed an oversupply of candidates.
  • A job in academia is the most desired, as many industries have not developed adequately to absorb highly trained personnel. While employment opportunities do exist in corporate research and consultancy, about 60% of IIT-Madras’ PhDs are in academia. Corporate research and development provide employment to only 10%. It is important for PhDs and postdoctorates to have other skill sets to be employed in business incubators, industry, journalism, and patenting offices. Available positions must be filled quickly in academia. It is crucial for the PhD to regain its respectability.

Bonds to rescue the rupee

On raising money from NRIs to boost currency

    What are NRI bonds?

  • These are bonds issued by the Reserve Bank of India to non-resident Indians who are interested in investing their money in India. Since these bonds offer higher returns than other similar investments, they can be used as a tool to attract capital during times when other domestic assets fail to attract the interest of foreign investors. Many investors view them as a safe investment as these bonds are issued by the Indian central bank.

    • Why are they in the news?

  • The sharp slide in the value of the rupee has led to speculation that the RBI might opt to issue NRI bonds worth $30-35 billion in order to help attract dollar investment into the country. The rupee’s fall of 13.7% since the beginning of the year has been caused by two factors. On the one hand, capital has been moving out of India’s capital markets. Foreign portfolio investors pulled out ₹47,836 crore in the first half of the year, a 10-year high. On the other, Indian exports have been losing demand, while imports of commodities like crude oil have risen significantly. India’s current account deficit hit a five-year high in July. Both these factors have combined to cause an increase in the demand for the dollar, thus leading to the fall in the value of the rupee.

    • Can bonds save the rupee?

  • NRI bonds could theoretically help increase demand for the rupee and stabilise its value against the dollar. The actual effect of these bonds on the rupee, however, will depend on how attractive they are to NRIs. In 2013, when the rupee witnessed a fall of about 25% in just four months following the U.S. Federal Reserve’s decision to taper down its bond-purchase programme, the RBI was able to collect more than $30 billion worth of foreign capital. NRI bonds were also issued in 1998 and 2000 to help curb the slide of the rupee. While these bonds can provide temporary assistance to the rupee by encouraging capital inflows into the economy, they may not address the fundamental economic issues that are causing the fall of the rupee. Until the RBI can rein in domestic inflation and the government can take steps to boost exports and curb imports, emergency measures like the issuance of NRI bonds can only offer temporary respite to the rupee.