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The Hindu Notes for 27th September 2018

Cutting through the white noise

Despite the cancellation of Foreign Minister talks, movement in India-Pakistan ties is possible

  • After a sudden and brief moment of clear signal, the ‘India-Pakistan channel’ has gone back to static, with the cancellation of talks between the two Foreign Ministers in New York this week. The Foreign Ministers will, no doubt, spar at the UN General Assembly, with a host of diplomats backing them up by exercising their right of reply to the comments made by either side. And ruling party and government spokespersons will bring up the rear in Delhi and Islamabad.

    • The road travelled

    • Amidst all this, however, there is space to reconsider developments of the last few months, and recast, if desired, a new way of imagining the relationship. To begin with, the cancellation last week of the meeting between External Affairs Minister Sushma Swaraj and Pakistan Foreign Minister Shah Mehmood Qureshi has not fundamentally changed much on the ground. The two leaders would have gone into the talks with an eye over their shoulders anyway, to gauge the domestic political impact of each gesture, smile and word during the meeting. For Ms. Swaraj, elections are around the corner in Madhya Pradesh, from where she’s a Lok Sabha MP, with the general election not far way either. For Mr. Qureshi, fresh from the Pakistan Tehreek-i-Insaf’s electoral win, there would have been much scrutiny at this big India-Pakistan encounter, and he’d likely have been very cautious.
    • Second, the announcement of the talks may have been the destination, but the distance the two governments traversed in the past few weeks was equally important. Ever since Pakistan Prime Minister Imran Khan won the elections, New Delhi had followed a measured but consistent path of engagement with the new government, at the highest levels. Prime Minister Narendra Modi was among the first leaders to call Mr. Khan to congratulate him after the results were declared. The day before he was sworn in as Prime Minister, Mr. Khan was part of the decision to send a ministerial delegation to former Prime Minister Atal Bihari Vajpayee’s funeral in Delhi, and the team reportedly held cordial talks with Ms. Swaraj, the first engagement at that level in some years. The government also gave clearance to former cricketer Navjot Sidhu, who is currently a minister in the Congress government in Punjab, to attend Mr. Khan’s swearing-in. (It must be noted here that amidst all the ‘white noise’ over Mr. Sidhu’s embrace of Pakistani Army Chief General Qamar Javed Bajwa, there was no statement made by the Prime Minister or the Ministry of External Affairs, although members of the Cabinet from Punjab raised it with Ms. Swaraj.) Mr. Modi sent Mr. Khan a letter the same day, expressing India’s commitment to pursuing “meaningful and constructive engagement”. In his reply a month later, Mr. Khan went a step further, making a concrete proposal for a meeting between the two Foreign Ministers at the UN, which was accepted by the government a few days later, before it was abruptly cancelled.
    • Pakistan may have rightly rejected the reasons proffered for the cancellation as “unconvincing”, but the cold logic of talks remains: a meeting is only possible when both sides want it, and New Delhi has decided that this is not the time. Even so, the verbal fisticuffs that followed the cancellation do not take away from the careful diplomacy that preceded it, and could be deployed again, if opportunity knocks.

    Grim backdrop

    • There is also the situation at the International Border (IB) and Line of Control (LoC) to be considered, before such talks can be feasible. Defence Minister Nirmala Sitharaman’s shocking disclosure last week that “heads of Pakistani soldiers are being cut off, but not being displayed” by the Indian Army, followed by the discovery of a Border Security Force jawan’s brutally mutilated body on the Pakistani side of the IB, shows the normalisation of barbarity on both sides. Army Chief General Bipin Rawat may have tempered equally incendiary remarks on the need for a “second surgical strike”, if he had considered the results of the first one in September 2016 in terms of the data: 2017 saw even more fatal violence on the LoC than 2016, and 2018 is well on its way to becoming the worst in five years when it comes to ceasefire violations and killings of soldiers on both sides, despite a lull between June and September. The Pakistan military spokesperson’s response to General Rawat, invoking Pakistan’s status as a “nuclear-armed” power, also does nothing to make anyone in the subcontinent feel safer. It is heartening that despite all the hot words in public, the two sides are thinking rationally about improving communication at the border, with the operationalisation of a new hotline last week in Delhi between the BSF and Pakistan Rangers.
    • With both civil and military ties in gridlock, the question over the choice of interlocutors remains important too. In the past decade, India and Pakistan have found the public channels of engagement — meetings between the Prime Ministers (Ufa, Lahore, etc) and the External Affairs Ministers (Islamabad, Kathmandu) — to be counter-productive to the cause of better relations. Not only does every high-level handshake or hug excite domestic opprobrium in India, it is inevitably followed by a terror attack, or incident at the border that indicates that those in Pakistan’s deep state that control terror groups are willing to derail talks at any cost. By cancelling engagement, India effectively acquiesces to those wishes.
    • The one channel on the Modi government’s watch that has proven resilient is that of National Security Adviser (NSA) Ajit Doval with his former Pakistani counterpart, Nasser Khan Janjua. From November 2015 to June 2018, when he resigned due to elections, General Janjua and Mr. Doval carried on a consistent engagement, spoke over the telephone regularly to smooth over crises, and discreetly met more than half a dozen times in various places around the world. None of these meetings attracted the harsh criticism that follows the Prime Ministers’ or Foreign Ministers’ meetings.
    • Clearly, the NSAs’ conversation is firewalled from the regular outrage that lights up television studios. It would therefore be a pity if Mr. Khan decides to do away with the post altogether, by remerging the NSA division with the Pakistan Foreign Ministry.

    Low-hanging fruit

    • If the two countries can again decide on interlocutors, the points for discussion are many, beginning with the proposal initiated by Pakistan ahead of the UN talks, of a visa-free Kartarpur corridor for Sikh pilgrims to travel to Gurdwara Darbar Sahib for the 550th birth anniversary of Guru Nanak in November 2019. Mr. Khan has spoken about trade ties being a good opener for substantive talks, and any move to consider granting India the long pending most favoured nation status would reap very rich rewards. Another long-pending discussion on visas for journalists on both sides has been raised again by Pakistan’s new Information Minister, and it is essential to build an understanding of developments on both sides of the border. When it comes to protecting the 2003 ceasefire, it is possible for this channel to consider reinforcing the fencing at the IB and LoC with a second fence on both sides, or a demilitarised zone of the sort that has withstood the Korean conflict. On the “core issues” of terrorism and Jammu and Kashmir, it is unclear if any serious talks are possible at this juncture, but both sides know exactly what they need to do to, should they wish to listen to each other’s concerns, and not just fall quiet amid the static that currently envelops the relationship.

    Opacity in the name of privacy

    The draft Personal Data Protection Bill poses a danger to the hard-won right to information

    On August 24, 2017, the Supreme Court declared the right to privacy a fundamental right, a ruling widely welcomed. But many transparency advocates also felt apprehension, fearing that the right to privacy — meant to protect citizens from arbitrary state and corporate surveillance — might be deployed first and foremost to shield authorities from scrutiny by citizens.

    Issue of accountability

    • The Personal Data Protection Bill, 2018, drafted by the Srikrishna Committee, confirms these concerns. The Bill identifies “personal data” as any data that directly or indirectly identifies a person. It then calls for amending clause 8.1.j of the Right to Information (RTI) Act, 2005. The clause currently exempts the following from disclosure: “information which relates to personal information, the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Public Information Officer... is satisfied that the larger public interest justifies the disclosure. Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
    • The Srikrishna Committee suggests amending this clause to authorise public information officers, or PIOs, to deny information containing ‘personal data’, if they feel that such disclosure is likely to cause harm to ‘the data principal’, and if such harm outweighs public interest. The Bill defines ‘data principal’ as whoever the data relates to. This amendment may seem reasonable on first reading, but for the practical experiences of RTI users in the past years.
    • The RTI Act’s core aim is to bring accountability by making available public records that disclose the actions and decisions of specific, identifiable members of the political class and the bureaucracy. The Data Protection Bill extends the cloak of ‘personal data’ over all such information. It asks PIOs (now overwhelmingly appointed at junior levels) to weigh public interest against the potential for harm to those identifiable in public documents. The Bill defines harm expansively to include everything from blackmail and bodily injury to loss of reputation, humiliation and “mental injury”. The Bill ignores that another key aim of the RTI Act is “containing corruption”. By bringing corruption to light, dogged RTI users have served public interest and caused ‘harm’, in terms of the Bill, to those exposed.

    A ‘powerful proviso’

    • Further, most public records identify one or more persons. For instance, file notings identify bureaucrats making decisions by their posts, or even initials/names; public records, such as contracts awarded or clearances issued, identify specific private actors. Under the proposed amendment, PIOs will be forced to test public interest versus potential for harm to multiple “data principals” in just about every request that they handle, and this is a responsibility they will be reluctant to take on. When nine judges of the Supreme Court are unable to frame the bounds of privacy, can we expect PIOs to assess which information is private, and then weigh the potential harm to individuals due to disclosure, guided all the while by public interest and the cause of accountability?
    • The amended clause will chill the RTI Act, as PIOs will now have a strong legal ground to play safe, and toss out RTI requests deploying an amended clause 8.1.j. In fact, this is already happening on account of how the Supreme Court has perhaps inadvertently mangled the privacy safeguard provided in the existing Section 8.1.j. The RTI Act currently provides an acid test to help PIOs respond to requests: “Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.” This is a powerful proviso, also retained in the proposed amendment. It implies that PIOs can deny only that information to applicants which they would deny to Parliament or State legislatures.
    • However, in Girish Deshpande v. Central Information Commission & Ors. (2012), a two-judge Bench of the Supreme Court ignored this proviso and prior precedents in order to rule that the assets and details about the performance of a public servant constituted personal information, and were exempt from disclosure. This has set a precedent for subsequent court rulings and for PIOs to indiscriminately expand the ambit of personal information, and reject RTI requests, using clause 8.1.j. Recently, the Union Department of Personnel and Training denied information about the mere number of IAS officers whose annual performance appraisal reports were pending, as of 2017. The PIO cited clause 8.1.j and the 2012 SC ruling as grounds for denial. In essence, the court has implicitly read down the powerful proviso above, prompting PIOs to “profusely abuse” the privacy exemption in the RTI Act, as Central Information Commissioner M. Sridhar Acharyulu has observed. According to Acharyulu, PIOs’ “misuse of 8.1.j is rampant”, and is reducing RTI to “a mockery.”
    • The government should be addressing these alarms raised by the Central Information Commission, the RTI’s apex watchdog. The precedent created by Deshpande and its widespread abuse by PIOs need to be corrected, to reaffirm the fundamental right to information. Instead, the government is embarking on a project to legalise such ‘abuse’, by diluting transparency in the guise of an amendment furthering privacy.
    • If the Bill is passed as is, and the RTI Act amended, it will deal a body blow to India’s hard-won right to information. The Ministry of Information Technology is accepting public feedback on the Data Privacy Bill until the end of September. Citizens should use this window to urge the government not to amend the RTI Act.

    Free, but not really

    Understanding the differences in taxation of free services and sale of goods between the pre-GST and GST regimes

  • There may be free lunches, but it is quite clear that such lunches will not be free from tax. Recently, the tax department withdrew its demand notice to banks on free service. The Goods and Services Tax (GST) Council also issued an FAQ to clarify that certain free services provided by banks will not be subject to GST. But the free supply of goods and services is not altogether outside the purview of GST. An extra portion of garlic bread may not be liable to GST, but if you have the opportunity to hear a live performance, be prepared to pay GST.

    • The pre-GST regime

    • Taxation of free services and sale of goods were generally not an issue in the pre-GST regime. This was because the basis for levying a tax (taxable event) — sale of goods or provision of services — generally contemplated consideration for such goods or services. A more precise definition with respect to the nature of the taxable event also reduced ambiguity — ‘sale’ or ‘services provided’ as against ‘supply’ in GST law. Manufacture of goods made the goods liable to excise duty, and inter-State sale of goods was exclusively subject to Central Sales Tax (CST). Only the Central government could levy both. Under CST, sale contemplated consideration, as did many of the State Value Added Tax (VAT) laws. Service tax law contemplated ‘value of services’ to be the ‘gross amount charged’ or value as determined. Barring the demand on free services in banking transactions, there was far greater clarity and certainty under the service tax regime and there have been limited instances of the tax department valuing free services. In respect of excise duty, testing samples and free samples were not exempted from excise duty, unless exempted by a specific circular. To encourage exports or for other administrative reasons, transactions of such a class were exempted from tax.
    • Another transaction of a similar nature was one between an employer and employee. The Authority for Advance Rulings (AAR) ruled that provision of canteen services by an employer for which recoveries were made from employees would be liable to GST. This was specifically exempted under a Service Tax Notification. Another issue that has arisen is applicability of GST between two branches of the same company — again an issue which didn’t arise under service tax laws, since taxable entities were considered to be different ‘persons’. In the context of goods, inter-State branch transfers were exempted under CST law, and VAT laws could not tax inter-State transfers. Similarly, sales made in customs area, previously exempt as a sale made in the course of export, has been held to be liable to GST by the AAR.

    The legal question

    • GST has now done away with many of the exemptions and exceptions that formed an integral part of the pre-GST tax regime. There is nothing illegal or unconstitutional about this — the legislature in exercise of taxation powers has taxed legitimate transactions. Even if the tax authorities aren’t aggressively interpreting GST laws, a plain reading would show that the approach of the tax department may not be unreasonable. While we may debate the economic wisdom of taxing such transactions, we cannot question the legality. Sound economic canons require minimal exemptions and low rates for ease of administration and greater compliances.
    • But taxation of free services isn’t the dark line threatening the silver cloud of GST. Even the ominous anti-profiteering rules, with limited rulings and enforcement, haven’t been a poor measure in GST. Delayed refunds, taxation of exports and possibly taxation of digital economy seem to be more worrisome issues. The biggest concern, however, may relate to taxation powers itself. Powers of taxation between the Centre and States were meant to be mutually exclusive. However, the 101st Constitutional Amendment Act, 2016, may have left wiggle room for States by giving them power to tax ‘entertainments and amusements’. Concurrent exercise of taxation powers was impermissible prior to the constitutional amendment. This anomalous situation will enable a State to tax the same transaction that has already been subject to GST. The full effect of State autonomy has also not unfolded yet.
    • Despite the Supreme Court’s observations on cooperative federalism, differences between States and the Centre on tax allocation and finances are subject to political relations between the Centre and the State. One hopes that a pragmatic approach is taken as it would have adverse effects on businesses across the country.

    Portraying stereotypes

    Hindi films that depict writers deepen our understanding of neither the writers nor their writing

    Nandita Das’s film Manto compelled me to think about the portrayal of writers in Hindi cinema. Good examples are hard to come by. But why? Are writers of no consequence to our Hindi film producers? This is strange given that Hindi cinema is deeply indebted to the Progressive Writers’ Movement, and cannot be imagined without Saadat Hasan Manto, Ismat Chughtai and Kaifi Azmi, among others. Javed Akhtar’s father, Jan Nisar Akhtar, also wrote for several Hindi films.

  • In Hindi cinema, the writer is invariably on the margins. He or she is sketched in a few generic ways. The first is the forever-wronged kurta-clad, jhola-carrying social crusader who is steeped in alcoholism and penury. Next is the the trivial, lowly, wannabe masquerading as a writer. And third, the village bumpkin with a proclivity for romantic lyrics.
  • In Guru Dutt’s Pyaasa, the poet is sickened by society’s hypocrisy. Closer in time, Leena Yadav’s Shabd features Sanjay Dutt as a depraved writer fighting writer’s block. Farhan Akhtar is also some sort of a poet in the boring, rich boys’ unending jamboree of a film, Zindagi Na Milegi Dobara. He is every bit the buffoon, but doesn’t write, but then who cares? There was also a rare character played by Konkona Sen Sharma in Wake Up Sid, who moves to the metropolis to chase her writerly ambitions. Aishwarya Rai Bachchan in Ae Dil Hai Mushkil and Anushka Sharma in Sanju are writers shrouded in mystery. One wonders how they make all that money. Hindi films render writers uni-dimensional, their struggles all too reductive. The banal becomes the norm because these films essentially propagate types, not individuals.
  • Manto also has a default position that writers like him ought to be venerated, which perhaps explains the wobbly, school-level textbook narrative of the film. Unnecessary veneration often endangers critical thinking. Writers are adored for their writing.
  • We have been taught that the biographical route is not the best approach to comprehend a writer. These films deepen our understanding of neither the writer nor their writing. The experience of writing is deeply agonising with the gradual extinction of self. What about the struggles to write — about finding the right tone for the book and discovering one’s own identity in the process? Can our films mirror these struggles?
  • Also, where are the women writers? While watching Manto, I thought to myself how amazing it would be to make a film on Chughtai, who seems a far more interesting character even for cinematic portrayal. The best way to know writers is through their writing. Rather than let these films dictate how to read and imagine writers and writing, it may be safer to read their books and discover them directly.

    • I was raped at 16 and I kept silent

    I understand why a woman would wait years to disclose a sexual assault

  • When I was 16 years old, I started dating a guy I met at the Puente Hills Mall in a Los Angeles suburb. I worked there after school at the accessories counter at Robinsons-May. He worked at a high-end men’s store. He would come in wearing a grey silk suit and flirt with me. He was in college, and I thought he was charming and handsome. He was 23.
  • When we went out, he would park the car and come in and sit on our couch and talk to my mother. He never brought me home late on a school night. We were intimate to a point, but he knew that I was a virgin and that I was unsure of when I would be ready to have sex.
  • On New Year’s Eve, just a few months after we first started dating, he raped me.

    • A time to speak up

    • I have been turning that incident over in my head throughout the past week, as two women have come forward to detail accusations against the U.S. Supreme Court nominee Brett Kavanaugh. Christine Blasey Ford said he climbed on her and covered her mouth during an attempted rape when they were both in high school, and Deborah Ramirez said he exposed himself to her when they were in college.
    • On Friday, U.S. President Donald Trump tweeted that if what Ms. Blasey said was true, she would have filed a police report years ago. But I understand why both women would keep this information to themselves for so many years, without involving the police. For years, I did the same thing. On Friday, I tweeted about what had happened to me so many years ago.
    • You may want to know if I had been drinking on the night of my rape. It doesn’t matter, but I was not drunk. Maybe you will want to know what I was wearing or if I had been ambiguous about my desires. It still doesn’t matter, but I was wearing a long-sleeved, black Betsey Johnson maxi dress that revealed only my shoulders.
    • The two of us had gone to a couple of parties. Afterwards, we went to his apartment. While we were talking, I was so tired that I lay on the bed and fell asleep.
    • The next thing I remember is waking up to a very sharp stabbing pain like a knife blade between my legs. He was on top of me. I asked, “What are you doing?” He said, “It will only hurt for a while.” “Please don’t do this,” I screamed.
    • The pain was excruciating, and as he continued, my tears felt like fear.
    • Afterwards, he said, “I thought it would hurt less if you were asleep.” Then he drove me home.
    • I didn’t report it. Not to my mother, not to my friends and certainly not to the police. At first I was in shock. That evening, I let my mother know when I was home, then went to sleep, hoping to forget that night.
    • Soon I began to feel that it was my fault. We had no language in the 1980s for date rape. I imagined that adults would say: “What the hell were you doing in his apartment? Why were you dating someone so much older?”

    Paying a price

    • I don’t think I classified it as rape — or even sex — in my head. I’d always thought that when I lost my virginity, it would be a big deal — or at least a conscious decision. The loss of control was disorienting. In my mind, when I one day had intercourse, it would be to express love, to share pleasure or to have a baby. This was clearly none of those things.
    • Later, when I had other boyfriends in my senior year of high school and in my first year of college, I lied to them — I said I was still a virgin. Emotionally, I still was.
    • When I think about it now, I realise that by the time of this rape, I had already absorbed certain lessons. When I was seven years old, my stepfather’s relative touched me between my legs and put my hand on his erect penis. Shortly after I told my mother and stepfather, they sent me to India for a year to live with my grandparents. The lesson was: If you speak up, you will be cast out.
    • These experiences have affected me and my ability to trust. It took me decades to talk about this with intimate partners and a therapist.
    • Some say a man shouldn’t pay a price for an act he committed as a teenager. But the woman pays the price for the rest of her life, and so do the people who love her.
    • I think if I had at the time named what happened to me as rape — and told others — I might have suffered less. Looking back, I now think I let my rapist off the hook and I let my 16-year-old self down.

    Teaching our children

    • I have a daughter now. She’s eight. For years I’ve been telling her the simplest and most obvious words that it took me much of my life to understand: “If anybody touches you in your privates or makes you feel uncomfortable, you yell loud. You get out of there and tell somebody. Nobody is allowed to put their hands on you. Your body is yours.”
    • Now, 32 years after my rape, I am stating publicly what happened. I have nothing to gain by talking about this. But we all have a lot to lose if we put a time limit on telling the truth about sexual assault and if we hold on to the codes of silence that for generations have allowed men to hurt women with impunity.
    • One in four girls and one in six boys today will be sexually abused before the age of 18. I am speaking now because I want us all to fight so that our daughters never know this fear and shame and our sons know that girls’ bodies do not exist for their pleasure and that abuse has grave consequences. Those messages should be very clear as we consider whom we appoint to make decisions on the highest court of our land.
    • Padma Lakshmi is an American Civil Liberties Union ambassador for immigration and women’s rights based in New York.