Read The Hindu Notes of 23rd October 2018 for UPSC Civil Service Examination, State Civil Service Examination and other competitive Examination

The Hindu Notes for 23rd October 2018

Populism confronts reality

With Pakistan seeking an IMF loan, Imran Khan will struggle to keep up his rhetoric

  • It is two months since Imran Khan became Pakistan’s Prime Minister with the very partisan and public support and assistance from Pakistan’s military and its clandestine organisations, when his main opponent, Nawaz Sharif, and his daughter were put behind bars following a highly controversial and dubious legal judgment. Yet, Mr. Khan has still not discovered the fact that being a populist rabble rouser in Opposition, at which he was particularly good, is very different from being an elected leader with serious responsibilities and consequences, where sombre reality sobers down even the most exaggerated claims and promises.

    • Going back on promises

  • These last few weeks have only reinforced the appellation, ‘U-Turn Khan’, used for Mr. Khan on numerous occasions in the past, regarding his various statements about what all he intends to do. From making exaggerated promises that he would break Pakistan’s begging bowl; that he would “rather commit suicide” than go to the International Monetary Fund (IMF); that his government would be one of new, clean faces, all chosen on high standards of merit; that his government would end nepotism of every kind in every public office; that he would bring back the supposedly $200 billion “looted wealth in 100 days”; and so on, he has had to backtrack on all these claims and dozens of others, made at different times in different stages of exuberance.
  • This idea of “new and clean” faces in his Cabinet, and as his advisers, was the first to be dumped when the long and growing list of his team was announced. He appointed various Ministers and advisers who had served with and under General Pervez Musharraf in some capacity or the other, including the lawyer defending General Musharraf in the treason case. Some members of his team had been in government in different political parties prior to them switching to his Pakistan Tehreek-e-Insaf (PTI), the infamous ‘electables’ of the July election, many of whom were advised by Pakistan’s clandestine organisations to switch sides. A number of Mr. Khan’s close friends, including one who reportedly holds British nationality, were made advisers and ‘special assistants’ to the Prime Minister and given important tasks. Moreover, some of the senior members of his team, in addition to having won their own seats, have had their close relatives (son, daughter, wife) elected to the National and Provincial Assemblies, rubbishing claims of a non-nepotistic style of government. Having put together an unstable coalition of political parties and individuals in order to form a government, choices have had to be made which might look unsavoury to those pursuing some ideal ethical and moral norms, yet reflect the highest standards of the reality of Pakistani politics.
  • The most consequential of decisions which Mr. Khan’s government has had to take in its two months so far is to go to the IMF asking for a loan estimated to be an unprecedented $10-15 billion. This will be Pakistan’s 13th IMF loan since the 1980s, and also probably the largest. In addition, the political conditions surrounding IMF loan disbursement have changed considerably for Pakistan since the good old days of the War on Terror, when the U.S. perceived Pakistan to be a particularly close ally when such loans were disbursed somewhat leniently and with slipping standards of monitoring and surveillance, with numerous waivers given on unmet tasks and targets. This time, for a host of reasons, the conditionalities and the political baggage behind being approved for the loan will be particularly heavy, with U.S. Secretary of State Mike Pompeo already having stated that the U.S. would be “watching what the IMF does”. He said: “There’s no rationale for IMF tax dollars, and associated with that American dollars that are part of the IMF funding… to go to bail out Chinese bondholders or China itself.” In fact, the IMF Managing Director has also stated that the IMF would require “absolute transparency” of debts owed to China. Clearly, a different geopolitics is being played out in Pakistan today compared to that of two decades ago.
  • Having sworn never to go to the IMF, as has every prime ministerial aspirant in the past, Mr. Khan went “begging”, a term used by one of his close advisers, for money from “friendly countries”, which these days happen to be only Saudi Arabia, the UAE and, of course, China. On all three counts, it seems that Pakistan’s few friends sent their regrets about bailing it out, yet again. The government had to turn to the IMF after its own indecisions and poor handling led to a huge meltdown in the economy, with the stock market falling to a 28-month low, and the rupee plummeting more than 9% in one day. If there wasn’t such an acute crisis of the Pakistan economy prior to his election, Mr. Khan’s government’s particularly poor handling ensured that one was created — and hence, to the IMF.
  • Mr. Khan ought to have known that going to the IMF results in severe constraints on the economy, with fiscal cuts, higher interest rates, devaluation and other so-called austerity measures. The consequence of an IMF loan backed with tight conditionality results in growth slowing down, often with higher inflation, and undermines any expansionist neopopulist programmes. Immediately after the meeting of Pakistan’s Finance Minister and the IMF leadership, economists projected that Pakistan’s GDP growth rate would fall to around 3% this year, down from a 13-year high of 5.8% last year, and that inflation would reach anywhere between 15 and 20% by next July. Importantly, while these early IMF negotiations were being held by the Government of Pakistan, with dire consequences for the economy writ large, Prime Minister Imran Khan was announcing his Naya Pakistan Housing Programme, of constructing five million low-cost houses in five years. Clearly, the Prime Minister has no clue about simple arithmetic, and that the numbers under IMF austerity just won’t add up.

    • On a loan and a prayer

  • One of the first statements uttered by Mr. Khan a few hours after he realised he was to become Prime Minister of Pakistan was his promise to make Pakistan into Prophet Muhammad’s Islamic welfare state of the Medina of his time. When he was launching his Housing Scheme, Mr. Khan tried to allay the fears of his audience about the impending economic crisis and told them, “Ghabrain nahin, hausla rakhain (do not worry, have fortitude).” Perhaps the chasm between populist promises and hard realities in Pakistan can only be filled by faith, belief and a prayer.

    • The value of a health scheme

    The challenges for the success of Ayushman Bharat are more than just at the financial and infrastructural level

  • On September 24, the government launched the grand government-funded healthcare scheme, the Ayushman Bharat-Pradhan Mantri Jan Arogya Yojana (PMJAY). While some see its ambitious goals as its main strength, others are sceptical given the inadequate funding for the scheme, the weak infrastructure of primary health care centres, and the time required for the goals to be accomplished. However, nobody disputes the imperative of an insurance scheme as vast as the PMJAY, since every year about 36 million families, or 14% of households, face a medical bill that is equal to the entire annual living expenses of one member of the family. This frequently pushes many families into penury.

    • Two schemes, one focus

  • The euphoria over this scheme is reminiscent of the excitement over the Rashtriya Swasthya Bima Yojana (RSBY), launched in 2008. Although the PMJAY is much wider in its reach than the RSBY (it covers 50 crore beneficiaries with ₹3,500 crore of government spending and provides benefits up to ₹5 lakh per eligible family), the central framework is the same: universal health care and health rights. The emerging discourse surrounding the PMJAY scheme resonates with those of RSBY. The focus continues to be on the top-down, deductive reasoning of the scheme, including issues such as allocation of funds for each illness, the types of care provided, financial considerations for empanelment of hospitals, types of illnesses covered, and transaction costs. These considerations matter. However, there are important missing links.
  • My recent study of RSBY in Karnataka yielded important insights that are pertinent here. Given that RSBY was embedded within the framework of universal health care and health rights, it is appropriate to pay attention to the existence of health rights in a local set-up. I discovered that the way beneficiaries of RSBY (Below Poverty Line households) perceived the scheme was not as a health right but in terms of the value it imparted, which was measured along multiple dimensions.
  • Households initially measured the value of the RSBY in terms of its material benefit and measurable impact. This included the financial ease it provided in taking care of illnesses, the expense and types of illnesses that the card covered, and the transaction costs it entailed — how easy it would be to use the card in terms of bureaucratic paperwork and formal procedures.

    • Beyond the visible impact

  • However, households also valued the RSBY beyond its visible impact. They had little value for the RSBY because of many reasons. One, officials who distributed the RSBY smart card did not provide information on how to use the card. Two, hospitals did not respect patients with the card, believing that they were availing medical care free of cost. Sometimes they did not honour the card either due to inaccuracy of fingerprints or lack of money on the card. Three, neighbours and family members did not discuss the utilisation of the card, making households perceive the card as just a showpiece: important to possess but not useful. Four, the lack of involvement and endorsement by local leaders further diminished the value of the card for the households.
  • The value of the RSBY was also derived in relation to the value of health itself. The difficulty in understanding the basic facts of the card and using it led households to opt for seeking medical care without the card. The value for one’s health undermined the value for the RSBY. As one household subsequent to repeated failed attempts to use the card lamented: “We lost time and money, and our illness got worse all because we wanted to use the card. I tell you, if you want to get well, if you really value your health, you cannot rely on this health card.” Next, the value of the RSBY card was derived in relation to the cultural ethos of health insurance. For a significant number of households, health insurance was perceived as a “bad omen” indicating the arrival of sickness and disease.
  • As the delivery of universal health care and health rights find yet another expression in India through the PMJAY scheme, it is more important than ever before to explore how citizens exercise their right to health and understand how it could be better practised. The biggest challenges for the success of the PMJAY scheme are not just financial and infrastructural at the local level, but how its value is perceived by the community.

    • The judiciary’s #MeToo moment

    It is an opportunity to ensure that the defamation law is no longer used as a tool for harassment

  • In Isaac Asimov’s famous Foundation novels, one of the protagonists often explains that “violence is the last refuge of the incompetent”. In India, the fallout of the #MeToo movement has recently re-emphasised what was already well-known: defamation is the first refuge of the powerful. Whether it is M.J. Akbar’s criminal defamation complaint against Priya Ramani, or Alok Nath’s criminal and civil defamation complaints against Vinta Nanda, accusations of sexual harassment have seen a predictable response: the leveraging of criminal defamation law as a way of striking back.

    • Impinging on freedom

  • It is trite to say that there must exist a balance between the freedom of expression and the right to reputation. No legal system can allow false and slanderous statements to be made publicly, with impunity. Defamation law is the tool that is used to strike the balance. But it is the shape and the form of defamation law that often determines whether the balance has been struck appropriately, or whether, in the guise of protecting reputation, the freedom of speech and expression has been effectively stifled.
  • India’s criminal defamation law undoubtedly belongs to the latter category. A colonial relic that was introduced by the British regime to suffocate political criticism, Section 499 of the Indian Penal Code provides an ideal weapon for powerful individuals to silence critical or inconvenient speech. First, unlike many other countries, defamation in India is a criminal offence (and not just a civil wrong), and a conviction entails both social stigma and potential jail time. Second, there is a very low threshold for a prima facie case of defamation to be established by a complainant. Simply put, he must only show that an “imputation” has been made that could reasonably be interpreted as harming his reputation. This is enough to set the wheels of the law in motion. While an accused has multiple defences open to her — such as demonstrating that her statement was true and in public interest, or that it was an opinion made in good faith, and concerning a public question — these defences are effectively available only after the trial commences. By this time, an accused individual has already been dragged to court multiple times, and must also then go through a long-drawn-out trial process, where the procedure is the punishment.
  • And third, even the defences open to an accused are insufficiently protective of speech, to an extent that is even less than what civil defamation allows. For example, while in a civil defamation case, a defendant need only show that her statement was true in order to escape liability, in a criminal defamation proceeding, an accused must show that her statement was true and in the public interest. This leads to the paradoxical situation where our legal system is more advantageous towards those at the receiving end of civil defamation proceedings, and harsher towards those who have to go through the criminal process!
  • All these — and more — arguments were made as recently as 2016, when the constitutionality of criminal defamation was challenged before a two-judge bench of the Supreme Court. Unfortunately, however, they were largely ignored by (the then) Justice Dipak Misra, who simply held that Section 499 was constitutional, as it protected individual reputation. The disproportionality of criminalising what is essentially a civil wrong, and the numerous ways in which the specific structure of Indian criminal defamation law chills and suffocates free expression, was not considered by the court.

    • The movement

  • It is important to remember, however, that the 2016 challenge to criminal defamation was driven by politicians who — at the best of times — do not make for the most sympathetic of petitioners before a court. Much has changed in the last two years. And perhaps the most significant change has been brought by the #MeToo movement.
  • It has seen women articulate their experiences of sexual harassment, often at the hands of powerful and well-established men. What is striking about the movement is how it has compelled all of us to confront systematic male behaviour that may sometimes be difficult to define as a legal offence, but which is nonetheless sexually predatory and abusive. Issues involving hierarchies in the workplace, differences in age and influence, the power exercised by men who are highly regarded in their professions and the abuse of that influence — issues that were long suppressed and simply not talked about — have, at last, found public utterance. It is a time of upheaval, when old pieties have been exposed as morally and ethically bankrupt, and old codes of behaviour shown to be exploitative and unacceptable. The #MeToo movement has brought submerged experiences to the surface, and given individuals a fresh vocabulary with which to express what, for all these years, seemed simply inexpressible.
  • With the filing of the criminal defamation cases, therefore, the stakes have been made clear. Will powerful men be allowed to use the law to silence this new mode of public expression? Will criminal defamation be weaponised to restore the old status quo, and preserve and perpetuate the hierarchies that the #MeToo movement has challenged?

  • An opportunity for change

  • It is the courts that must now confront these questions. And the courts now have a fresh opportunity: this is no longer about an abstract challenging to the constitutionality of criminal defamation, but a live issue about the relationship between our legal system and a social movement aimed at publicly redressing long-standing injustices.
  • More than 50 years ago, courts in another country were faced with this challenge. In the 1960s, the American civil rights movement found itself under siege: States in the deep south not only violently reacted to the movement, but also filed defamation claims against newspapers, to stop them from covering it. Small factual errors in reports were picked up, and massive defamation suits were filed to harass and bankrupt reporters and newspapers. The New York Times, for example, was found liable for the crippling sum of $50,000, for its coverage of a civil rights protest in Montgomery, Alabama. When these defamation verdicts were challenged before the Supreme Court, therefore, no less than the fate of the civil rights movement was in its hands.
  • The U.S. Supreme Court responded. In one of the most famous judgments in its history, New York Times Co. v. Sullivan (1964), it substantially modified defamation law to ensure that it could no longer be used as a tool of harassment and blackmail. Articulating a very high threshold of “actual malice”, the court ensured that journalists could go about their job without fear, as long as they did not intentionally or recklessly make outright false statements. Nothing less than this, the court held, was required by the constitutional right to freedom of expression, and a free press.
  • In 2018, our courts are now faced with a similar situation: a vitally important public movement is threatened by the heavy hand of the law of defamation. And, like the American courts at the time of the civil rights movement, our courts too have a golden opportunity. They may, for one, choose to revisit the constitutionality of criminal defamation. But even without that, there are enough ways to judicially interpret Section 499 to ensure that it no longer remains the tool of the powerful to blackmail, harass, and silence inconvenient speech. Incorporating the Sullivan standard into the law might be a start; but the interpretive possibilities are endless. All that we need is for the courts to understand what is at stake, and respond with the courage and the sensitivity that these times demand of them.

    • Ripe for prison reform

    Political will is crucial to reform India’s criminal justice system

  • In an acknowledgment that the more than a century-old system of prisons in India needs repair, the Supreme Court, late last month, formed a committee on prison reforms. Headed by former Supreme Court judge, Justice Amitava Roy, it is to look into the entire gamut of reforms to the prison system. But this is not the first time that such a body is being set up, examples being the Justice A.N. Mulla committee and the Justice Krishna Iyer committee on women prisoners (both in the 1980s).
  • While marginal reforms have taken place, these have not been enough to ensure that prison conditions are in tune with human rights norms.

    • Punish or reform?

  • The terms of reference for the new committee are omnibus and seem ambitious. One must also not forget that its formation comes at a time when controversy surrounds the Tamil Nadu government’s recommendation that the seven convicts in the assassination, in 1991, of former Prime Minister Rajiv Gandhi be released. The plea of the petitioners is that however heinous the crime, the penalty imposed — they have served 27 years — was beyond endurance.
  • This is the crux of the debate: incarceration in any form is uncivilised, especially when it is so long-drawn-out, and when the objective of criminal punishment should be one of reform rather than wreaking vengeance on a perpetrator of crime. The Hammurabi Code, it is argued, is no longer acceptable. In my view, any exercise to improve prison conditions — though not directly related to a plea for mercy, such as convicts in the Rajiv Gandhi case — must not ignore this axiom.
  • There is a divide here. Significantly, those pleading for clemency in this case are outnumbered, which is reflective of popular sentiment that a gruesome crime needs to be dealt with severely. It is also about the unresolved conflict in attitudes about incarceration — punishment or reform — which also explains the halfway jail reforms agenda seen in many countries.
  • So how do we render conditions within prisons less harsh and more humane? There are those who believe that if you keep improving prison conditions, there is likely to be an attendant impact on the incidence of crime. This accounts for the reluctance of many criminal justice administrators to employ or enlarge non-prison alternatives such as community service.
  • The offshoot of all this is growing numbers of prisoners and the woeful incapacity of governments to build more and larger prisons. The question often asked by governments is, in these days of extreme fiscal stress, why should state resources be diverted to a ‘negative exercise, whose benefits are dubious’? This is why jail officials are often asked to ‘somehow manage’ with existing modest facilities.

    • Packed to the gills

  • The data on prison overcrowding are frightening. Except in parts of Europe, where crime is still low or at acceptable levels, overcrowding is rampant.
  • In the U.S., for example, which has a humongous crime problem, complicated by gun violence and a strident racist overtone in combating crime, the prison system is creaking under the stress of numbers. At any time, it is estimated, there are more than two million prisoners in state and federal prisons. In the U.K., the latest available data (July 2018) show a current prison population of approximately 92,500.
  • In India, the publication, Prison Statistics India,brought out by the National Crime Records Bureau will provide food for thought for the Justice Roy Committee. In 2015, there were nearly 4.2 lakh inmates in 1,401 facilities, with an average occupancy rate of 114% in most. About 67% of total inmates were undertrials, a commentary on the speed and efficiency of India’s criminal justice system.
  • There is an obvious poverty of ideas in justice administration. While public officials and social workers are agreed upon the need to reduce overcrowding, there is hardly any convergence on how to go about this delicate exercise. There is also an obvious fear of backlash against any move to decriminalise what is now prohibited by statutes.

    • Handling white collar crimes

  • There is a popular view that in order to reduce prison populations, proven non-violent offenders could be dealt with differently. But it is frustrating that no consensus has evolved across the world on this relatively uncomplicated issue.
  • White collar crime has assumed monstrous proportions but there is no reason why we should continue to lock up offenders instead of merely depriving them of their illegal gains. Devising swift processes of attachment of properties and freezing of bank accounts are alternatives to a jail term. There are legal impediments here, but these can be overcome by ensuring a certain fairness in the system, of the state taking over illegally acquired wealth. The argument that not all gains made by an economic offender are open is not convincing enough to opt for incarceration over punitive material penalties. In India, progress has been made in freezing ‘benami’ holdings of major offenders even though it may not be a 100% effective step of cleaning up. But these are the first steps towards making economic crimes unaffordable and unattractive for the average offender.

    • On prison officials

  • Another complaint against prisons is the brutality and venality of prison officials, again common across the world. A solution will be a point to ponder over for the Justice Roy Committee.
  • Finally, improving prison conditions has no political leverage. Just as humane prisons do not win votes, the bad ones do not lose votes for any political party. As long as there are no stakes here for lawmakers, one can hardly hope for model prisons, where inmates are accommodated with due regard to their basic human needs and are handled with dignity.