The Hindu Notes - 3rd October 2018 - Read Important Issues

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• The voice that is great within us
• At Sabarimala, walking the extra mile
• The algebra of dissent
• Enjoying exporter status, with no liability

In the court of last resort

As Ranjan Gogoi takes over as the new Chief Justice of India, it’s his own warning he must heed

In Lewis Carroll’s Alice in Wonderland, there is a segment called “The Mouse’s Tale”. It features a dialogue between a dog (called Fury) and a mouse. Fury is bored, and to pass the time, proposes taking the mouse to court. His interlocutor is dismissive: “Said the mouse to the cur/ such a trial, dear sir/ with no jury or judge/ would be wasting our breath.” Pat comes the reply: “I’ll be the judge/ I’ll be the jury/ said cunning old Fury/ I’ll try the whole cause / and condemn you to death.”

Carroll’s poem stands as a warning against concentrating power in the hands of a single individual. In January of this year, that was also the warning issued by four judges of the Supreme Court, in an unprecedented press conference. They objected to the manner in which the then Chief Justice of India was using his power to allocate cases to different benches of the Court. One of them, Justice Ranjan Gogoi, takes oath as the new Chief Justice of India today. But a look at his own judicial conduct suggests that it is from Justice Gogoi of the press conference that Chief Justice Gogoi may need to heed that most important of warnings.

The NRC case

Between 2009 and 2012, public interest petitions were filed before the Supreme Court, challenging Section 6A of the Citizenship Act, and also asking for the updating of the National Register of Citizens (NRC) for the State of Assam, in accordance with the Assam Accord. It was argued that this was urgently required to check illegal migration from across the border, and detect and deport non-citizens living in Assam. In the beginning, the court only monitored the government’s progress, asked for status reports, and prodded the administrative authorities.

All that changed, however, in late 2014. First, a bench of the court headed by Justice Gogoi directed the State Coordinator of the NRC to submit in a “sealed cover” a report indicating the “steps and measures” that he was taking to complete his work of updating of NRC. This suggested that the court was no longer content with mere oversight, but would direct both the modalities and the implementation. Then, on December 17, 2014, a two-judge bench of the court — again presided over by Justice Gogoi — referred the constitutional challenge to a larger bench, but also passed a detailed order (authored by Justice R.F. Nariman) setting out a time schedule requiring the draft NRC to be completed by the end of January 2016. The bench of Justices Gogoi and Nariman then virtually took over the task of preparing the NRC.

Three incidents, in particular, highlight this. On February 14, 2017, the NRC Coordinator placed a “power point presentation” before the Court, which set out the “steps involved” (both present and future) in the preparation and upgradation of the NRC. The court did not make this public. Subsequently, however, it was reported that the court had approved an entirely new method of ascertaining citizenship, known as the “Family Tree Verification”, on the basis of a behind-closed-door power-point presentation made to it by the State Coordinator. In July, the State Coordinator stated that on the basis of the Family Tree Method, 65,694 cases had been “discovered to be false”. But as it was also reported, for instance not only did people from the hinterlands have little awareness about this method, but putting together a family tree (in the unique sense in which it is being used in this case) was a big challenge especially for women. None of this was taken into account by the Court.

Second, it became increasingly clear that the time schedule was unrealistic. Extensions were requested, which the court granted grudgingly. On November 30, 2017 — with the deadline a month away — the Attorney-General requested a further extension. It was submitted to the court that more than 75 lakh unverified claims would remain even after the deadline had expired. The court refused an extension, and ordered that a “partial” NRC be published on December 31, with the remainder published later. The Attorney-General protested, arguing that this might raise a law and order problem, as a large number of people would believe they had been excluded from the list. The court brushed aside this objection.

On January 2, 2018, it was reported that a 40-year-old man from Silchar killed himself after his name did not figure in the partial draft NRC.

And lastly, on the publication of the final draft NRC at the end of July 2018, around 4 million people had been left out. Now the State Coordinator submitted to the court the “modalities” for the process of filing objections, including a new list of 10 documents that could be relied upon, and leaving out five base documents. The court refused to make the Coordinator’s reports public. It even refused to share them with the Union of India, citing “sensitivity”, despite repeated requests by the Attorney-General. It then set a timeline of 60 days to process the objections of the 4 million left-out individuals.

Checks and balances

The PIL-era Supreme Court has been praised for prodding inefficient governments into action, and stepping in to fill legislative and executive vacuum. However, there are times when silence and slow time are more desirable than speed. Once you have deprived an individual of her citizenship, you have deprived her of that most basic thing – the right to have rights. That is not something to be done in a tearing hurry.

There is a deeper problem as well. Depriving an individual of her citizenship is a very serious matter. And for this reason, our Constitution envisages a detailed system of checks and balances before deprivation of rights can happen. First, Parliament must pass a law. Next, the executive – which is best acquainted with the facts and circumstances on the ground – must implement it. And finally, courts review legislative and executive action for constitutional compliance.

The NRC court has elided the second and third levels. It has become an “executive court” – implementing the NRC updating, and reviewing its own implementation. And it has done so in secrecy, through a jurisprudence of “sealed covers” and “confidential reports”, where even the government is not kept in the loop (let alone affected parties).

Not only is the court – as a matter of expertise – not suited to doing this, but also, it deprives the individual of a vital, constitutional remedy. Where is the individual to go if she wants to challenge the contents of the reports filed in sealed cover? And which body can she approach to ask that the content of the “confidential reports” – that may ultimately subject her to deportation – be made public and subject to challenge? An exercise in which the court decides – in secret consultation with the State Coordinator – makes a mockery of both open justice, and judicial review. The executive court has set itself up as the first and final tribunal, without appeal or recourse.

Dreams and nightmares

Towards the end of Alice in Wonderland, Alice is herself caught up in a farcical show trial, overseen by the Queen of Hearts, whose signature line is “Off with their heads!” However, it turns out that Alice has been dreaming all along; and she escapes with her head by waking up from the dream.

But there would be no awakening for Deben Barman, a 70-year old man, who hanged himself after the names of his children and grandchildren did not feature in the draft NRC. It was not just a dream for Abola Roy, who killed his wife and then hanged himself, after she was notified a “doubtful voter” in the NRC. Judicial orders, unlike children’s novels, have consequences.

It is consequences like these that make Carroll’s warning about unaccountable power so relevant to the judicial role. The constitutional court of the largest democracy in the world must not resemble the court of the Queen of Hearts. As the Chief Justice of India, Justice Gogoi has the power — and the responsibility — to ensure that.

A flight path with obstacles

India’s drone use policy makes the possibility of a red tape-free flight very slim

At Agroscope, the ‘Swiss centre of excellence for agricultural research’, in Nyon, Switzerland, agriculture scientists fly a drone to study nitrogen level in leaves, not for a farm as a whole, but for each individual plant. The drone takes a large number of images, which when fed into a computer model with data on soil condition, weather, time of the year and other information helps analyse which plants are deficient in nitrogen, enabling farmers to add corrective fertilizer only where necessary. Sensefly, a Swiss drone manufacturer, has customers around the world whose use of drones has resulted in higher yield (more than 10% in observed case studies) and significantly lower usage of fertilizers and herbicides.

For a country with a population of over eight million, Switzerland has an enormous number of people interested in flying drones and developing drone-based applications. Simon Johnson, the Vice-President of the Drone Industry Association Switzerland, envisions the use of drones in public transport in the not too distant future, as well as setting up drone hubs — mini airports, where drones carrying people and cargo can congregate.

Policy contradictions

While the rest of the world has been soaring ahead in making the futuristic promise of unmanned flying vehicles a more immediate reality, India has largely been dragging its feet. Up until the end of August, flying a drone was mostly illegal here. With the publication of the drone regulations in late August, the Ministry of Civil Aviation has attempted to give some structure to the development of drone infrastructure in India.

While announcing the publication of these guidelines, Civil Aviation Minister Suresh Prabhu made two points, the contradictions of which also highlight India’s lack of clarity on what it should do with drones. For one, he estimated the potential of the “drone market” in India to be $1 trillion. And in the next breath he said India’s security environment necessitated extra precautions.

It is with such a heavy eye on the precautions that the regulations have been drafted, that flying a drone is a task wrapped tightly in immense paperwork. The abbreviations themselves are more than a page long. India’s regulations separate drones into five categories — nano, micro, small, medium and large. There is very little regulation for flying a nano up to 50 metres height, except for not flying near airports, military sites or in segregated airspace.

The paranoia kicks in from the micro category, starting with the application for a unique identification number (UIN) for each drone, with a long list of documentation including security clearances from the Ministry of Home Affairs (MHA) in several cases. Once the UIN is obtained, operators get to move to the next step — of having to apply for an Unmanned Aircraft Operator Permit (UAOP), implying more forms, more annexures and more submissions. Even to fly a micro drone below 200 ft, users have to intimate the local police station 24 hours prior. (One application requires that it be submitted with seven copies.)

Manufacturers of drones as well as technologists and researchers making applications using drones have to test fly these frequently, often several times a day. The structure of these regulations makes the possibility of a red tape-free flight very slim.

With so many government authorities involved in allowing permission and keeping an eye, it is inevitable that operators could be slapped easily with real and perceived violations. In an effort to make things slightly easy, the regulation provides a a list of identified areas for testing and demonstration. Flying drones in these areas comes with less paperwork. However, the locations provided are so far from technology and development hubs that it is unclear how practical these will be. In Karnataka, for example, the identified areas are Chitradurga, Coorg and Ganimangala village (which does not even appear on Google maps), all of which are around 200 km from Bengaluru entailing nearly four hours of travel one way.

Untapped potential

The security and privacy risks of allowing drones to fly in an unregulated manner are high. It may be recalled that in August, a drone was used in an attack on Venezuelan President Nicolás Maduro during a public meeting. However, if India is to reach even the fraction of the $1 trillion potential that Mr. Prabhu sees, it needs to figure out a more balanced manner of regulation. The current rules are a start, but only in the sense that they free all drones from their previous illegality. The real impact of drones will be in the many applications they will be put to. Agriculture is just one such. They are likely to be the disaster prevention systems, rescue operation leaders, and even public transport providers in the not too distant future. Missing out on working on these applications early enough will likely have serious repercussions to India’s future competitiveness in the field.

China’s drone economy — manufacturing and development — will be worth $9 billion in 2020, while the U.S’s commercial drone market is expected to be $2.05 billion by 2023 (Global Market Insights). For India to compete against these giants, it already has a lot of catching up to do. Filing a series of applications in multiple copies and waiting for various government departments to respond is not the best way to get started.

‘Swachh Bharat has become a people’s movement’

It has brought about behavioural change, empowered women and broken caste barriers, says the Secretary to the Drinking Water and Sanitation Ministry

In his office, Parameswaran Iyer keeps a countdown calendar to October 2, 2019, the deadline for all of India to become ‘open-defecation free’. On Tuesday, the countdown dipped to ‘365 days left’. Despite some aberrations, the Swachh Bharat Abhiyan-Gramin has taken massive strides towards its goal. But Mr. Iyer knows that his biggest test will come after the countdown reaches zero: sustaining the gains will be the toughest challenge, he says. Excerpts:

You’re completing four years of the Swachh Bharat programme. What do you think has been its single biggest achievement? And what was the biggest challenge?

First, the fact that this programme has really caught on as a jan andolan. It has become a ‘people’s movement’. It has captured the imagination of the country. It has addressed centuries-old practices on open defecation, and it has had major health and economic impact. A recent World Health Organisation (WHO) report has said that by the time Swachh Bharat ends in 2019, more than 3,00,000 lives would have been saved.

We have got the numbers: 24 States have become open-defecation free. The number of toilets built is 8.6 crore. Sanitation coverage has gone up from 39% when we started four years ago to over 93% today. What is even more significant is that, according to the most recent independent survey, as part of a World Bank-supported project, the usage of the toilets is 93%.

That really shows that this whole behavioural change programme that is at the heart of Swachh Bharat — there is evidence that it is really working. Behavioural change at scale — I think that was the biggest challenge.

So you are saying that it is not just about building the infrastructure, the toilets.

We are very clear that this programme is primarily about changing behaviour. Now, obviously you need the infrastructure. We are trying to separate human contact with excreta and the most cost-efficient way of doing that is by providing a toilet. They have to be built, and there has been a remarkable increase in the number of toilets. But we are more interested in toilet usage.

We deploy tools at two levels. One is [through] mass media, the other [through] interpersonal communication. We have been working on developing an army of foot soldiers called swachhagrahis, grass-root level motivators trained in community approaches and they go out to trigger behavioural change. They get their communities to accept responsibility and accountability. That ground game, that interpersonal communication, is important not just to achieve Open Defecation Free (ODF) status, but also to sustain it.

You now have 24 States which have been declared ODF, which means that the infrastructure game is supposedly over. They have constructed the toilets...

And they’re being used.

How about behavioural change? Do you continue to work on that in these States?

You have touched upon a very important point: sustaining the gains of ODF. This is one of the biggest differences between this programme and the previous ones. We have a parallel programme called ODF Sustainability — and we have not lost contact with States that have become ODF. There is continued engagement. There is also focus on ‘ODF plus’, which is about solid and liquid waste management and swachhata in general.

I was recently in Rajasthan and visited several villages where — yes, there is greater awareness, there is momentum. But not everyone has toilets and there are toilets which are incomplete. A few are being used for storage or they don’t have a water connection. Even with a working toilet, half the family goes out to the fields. And this is a State that was declared ODF a year ago. What would you say about this kind of ground reality that disputes your figures?

Let me just take you through the process of declaration [of a State as] ODF. It’s quite rigorous. First, there is self declaration by the village in an open aam sabha. Then there is verification by an agency from the district level or block level. Then, the State government sometimes does sample verification and so do we. So, the process is fairly robust, and then we have got this national rural annual survey.

If there are specific cases in Rajasthan, they need to be addressed. Whenever we get a case where someone reports to us that somewhere there is a problem on the ground, or a toilet is not constructed, or someone is still going out to the open — they may be isolated cases — we refer it to the State.

These are not really isolated cases. Is it possible that to meet the Prime Minister’s deadline, you are moving too fast to make ODF declarations? Maybe we need to accept that behavioural change takes longer than infrastructure construction?

All the feedback we get from our colleagues on the ground says that one of the reasons this programme is so successful is because of the energy, the enthusiasm of the campaign. The fact that it [has been done] in campaign mode is what brings everyone together. The earlier approach was: ‘drip, drip, drip’. You don’t get anywhere with a ‘drip, drip’ method. You have got to build up momentum.

If you talk to the collectors, all the people who were the pioneers for their districts, whether it is in Bengal or whether it’s in Rajasthan, all of them said, “If you don’t do this in campaign mode, if you don’t get everyone in the district together, all segments, elected representatives, women, swachhagrahis, sarpanchs, it is very difficult to do it over an extended period of time. You cannot sustain the enthusiasm.”

So in a year’s time, you are hoping to have worked yourself out of a job?

We have reached 93% coverage and eventually, we are going to get to 100%, and I think well before the October 2019 deadline set by the Prime Minister.

I think it is really important now to focus upon sustaining the ODF status. In some ways, this is even more challenging than achieving it in campaign mode, because this is something that has to be done on a continuous basis. People have got to understand that sustaining the gains is going to take time, it has got to get ingrained.

Let us focus on the infrastructure again. Above the ground is the toilet. Underneath lies the twin pit, which is a concept you have been promoting. Many people in rural India still prefer a septic tank or build faulty twin pits with liquid flowing into both. What do you think can be done to improve the awareness about the twin-pit toilets?

This is something we have been focussing on and we have got to focus even more. We are convinced that this twin-pit model, which can be used in most parts of rural India, [can] actually create a treatment plant in itself. The big problem with septic tanks is the disposal of the sludge. Sludge management is not a problem when you talk of the twin pit. Now of course, that needs to be propagated better, so we are now trying to market it as a colour TV, not as a black and white TV. We have got some of our Swachh Bharat ambassadors like Amitabh Bachchan and Akshay Kumar doing promotion. Masons are being trained. We have got a big collaboration with the Ministry of Skill Development.

These twin pits are designed to last for how many years?

Typically, for a family of four or five, five to six years.

Assuming that someone built a twin-pit toilet in the very first year of Swachh Bharat, the first emptying has to happen in 2020. What do you think is going to happen then?

This is part of the training and the awareness campaign, that when one of your pits fills up, in five to six years, this is what you need to do. You need to divert it to the second pit. When the first pit is closed for more than a year, then you can take out the compost. It is harmless, pathogen-free, and it is a great organic fertiliser.

There is better communication about twin pits now. But many of the toilets built in the early stages of the campaign did not use twin pits. What happens in five years when you open them up, find that you have not built them properly and have a pit full of sludge?

Part of the training we are [providing] is about retrofitting. Wherever there are deficiencies in construction, in some cases where there are single pits, you can retrofit them to second pits.

There is also the traditional ‘solid waste management strategy’ in this country, which is that particular castes are expected to clean excreta. Have you succeeded in eradicating that in the ODF States?

In a rural context, just to put it in perspective, the focus has been on conversion of insanitary toilets — dry latrines — to sanitary ones. And work has been going on on for the last three years and the reports we have received from the States are that this conversion is complete... We are also continuously monitoring this... but reports indicate that that has been taken care of in rural India.

So you are saying that if a State has been declared ODF, it means that this conversion has taken place?

Yes.

Even where Swachh Bharat has brought in sanitary toilets, if they have septic tanks or improperly built twin pits, they need to be cleaned. And it is often the former manual scavengers who are now being expected to do that. Of course, now they get paid for it. Do you think that is a move up, or…

I don’t know about specific cases. I have to tell you that one of the big outcomes of the Swachh Bharat Mission is that communities have come together. We think that the programme has actually broken these caste barriers.

The other question many people ask me is: who cleans these toilets? Households clean their toilets. These are simple toilets, it’s a rural pan, you don’t need much water and they maintain it themselves.

So we think that in many ways, this programme has not only empowered women and girls, it has actually brought communities together.

So would you see October 2, 2019 as the end of a journey or a milestone?

There’s no end to any journey in that sense. I would say it [would be] fulfilment in many ways. We would become an Open-Defecation Free India, and, of course, we would need to continue to sustain it.

False association

Pakistan’s neo-Deobandis are defaming the school’s foundational philosophy

The neo-Deobandis of Pakistan are a blot on the reputation of the Darul Uloom Deoband (in picture), India’s premier Islamic seminary. Supported by Saudi money, they have adopted a form of Wahhabism that stands in direct contradiction to the original philosophy of Deoband.

Wahhabism, which represents a rigid, exclusivist, virulently anti-Sufi form of Islam that allows its adherents to proclaim other Muslims as ‘unbelievers’, is in stark contrast to the original Deobandi perspective. Deoband’s founding father, Maulana Muhammad Qasim Nanotvi, was a member of the Chishti Sufi order. He and other leading ulama of Deoband believed that there was no contradiction between sharia (Islamic jurisprudence) and tariqa (the mystical path to God) and that the two need to be combined to reach haqiqa (ultimate truth). The only caveat was that mystical acts must not contravene the rules of sharia.

Hence, for the neo-Deobandis of Pakistan to attack Sufi shrines is a travesty of the original teachings. So is their use of Islamic terminology to inspire terrorist acts. The neo-Deobandis are products of the so-called ‘Afghan jihad’ fuelled by Saudi money and American arms for which Pakistan became a willing conduit. In Pakistan, the legacy of Saudi money, a part of which went into funding Wahhabi madrasas, has appropriated the Deobandi appellation to give itself respectability.

At its inception, the Deoband movement was a progressive bastion of anti-colonialism. It advocated complete independence from British rule, decades before the Congress did. In the 1920s, two of its leading figures, Maulana Mahmood-ul-Hassan and Maulana Hussain Ahmed Madani, were incarcerated in Malta for their uncompromising opposition to British rule.

Most important, Deoband was and is a proponent of muttahida qawmiat (composite nationalism). Maulana Hussain Ahmed Madani, the head of the Deoband seminary for about two decades, published a book in 1938 titled Composite Nationalism and Islam, in which he argued that the idea of Muslims sharing nationhood with people of other religions was perfectly compatible with Islamic teachings. In a remarkably modern formulation, he declared that qawm (nation) is based on watan (homeland) not mazhab (religion).

Further, except for a small breakaway faction, the luminaries of Deoband vehemently opposed the Muslim League’s demand for Pakistan and enthusiastically participated in the movement for a united, free India.

Therefore, for the so-called Deobandis of Pakistan to claim ideological descent from the Darul Uloom is pure fabrication that defames Deoband and distorts its foundational philosophy. Given Deoband’s uncompromising opposition to the idea of Pakistan, the very term ‘Pakistani Deobandi’ is a contradiction in terms.