IT'S TIME FOR GOVERNORS TO FADE INTO HISTORY.

   After the disgraceful conduct of the Karnataka Governor in the recent elections in that state one is forced to ask the question: do we need Governors at all ? Do they in fact promote the culture of democracy or act as an impediment to it, corrupting its very essence by their pliant behaviour? Between 1951 and 2016 these Governors, acting as agents of the central governments, have dismissed 115 state govts. and installed perhaps an equally large number by dubious means. In just the last year or so their partisan actions in Arunachal Pradesh and Uttarakhand have been overturned by the Supreme Court, but that has not deterred them from doing the same in Goa, Manipur, Meghalaya and now in Karnataka. Of late it has become the norm for their decisions on government formation to be invariably challenged in the courts, usually successfully. Why then do we need them at all?

  This question was debated in the Constituent Assembly between 1946 and 1949, and not all its members were in favour of this colonial era institution. But Nehru and Patel strongly argued for having this post on the grounds that it would promote federalism by providing a link between the union and state governments, and would also ensure stability. Their arguments perhaps made sense at that time when the country was going through the tumult of partition, the de-facto division of Kashmir and the competing clamour for states on linguistic lines. There was, in addition, the problem of the 522 independent principalities/ kingdoms all of whom wanted autonomy if not outright independence, of Goa and of Nagaland. Without a strong center the new India would have disintegrated in no time at all. The guiding hand of the Union was needed by the new, nascent states which were just emerging from the stew of caste, language, class and religion that was Indian society and polity at the time. The Union govt. needed its representative and emissary in the states at that point in our history. The Constituent Assembly even debated whether Governors should be directly elected, but finally opted for nominating men of stature and learning, intellectuals and scholars, persons with proven administrative credentials, not politicians. Unfortunately, however, these  dseired credentials were not reduced in writing ( and we are paying the price for that today).

  But that was 70 years ago and conditions have now changed. Democracy is no longer just the "top soil", as Ambedkar had said, but is now firmly embedded into our landscape. The political geography of the country has taken a final shape, more or less, and the institutions of democracy well established ( though their performance certainly leaves much to be desired). The states are settled and strong in their own right and federalism is well entrenched. In fact, there is now a backlash developing, thanks to the muscular policies of the BJP govt. at the center, against the unitary tendencies of the Union govt. and the conduct of the Governors is regarded with suspicion by the states. As regards the merit and standing of those nominated for these posts, the less said the better- Raj Bhavans have now become the exclusive preserve of retired and inconvenient politicians, sycophants, and pliant bureaucrats. In these changed, and changing, circumstances, therefore, the question must be asked: do the Governors serve any worthwhile purpose any longer?

  What exactly are their substantive functions, other than presiding over government formation after an election, swearing in Ministers and giving assent to legislation after they have been passed by the state Assemblies? Nothing. On the downside they are unnecessary irritants to the Chief Ministers, quite often parallel power centers especially if the CM belongs to a party opposed to the party at the Center. Their very existence is a blot on the democratic fabric of a nation which has been an independent democracy for seventy years. I cannot think of any developed country which has institutionalised a nominated, unelected authority over the elected head of government, and even has the powers to dismiss him! And all this at great cost to the public exchequer. The Raj Bhavans, or Governors' Secretariats, are virtual palaces and are run with all the pomp and opulence earlier associated with the Viceroys. A small state like Himachal Pradesh spent Rs. 8,40,53,000.00 on the Governor's Secretariat in 2017-18 ( Revised Estimates), an amount it can ill afford given that its debt stands at almost Rs.50,000 crore. The corresponding figures for bigger states like UP and Maharashtra would be mind boggling.

  The Governor's primary function- of govt. formation- can just as easily, and with greater probity , be performed by the Chief Justice of the state High Court ( in any case all such matters invariably end up for adjudication in the courts nowadays!), with required assistance by the Election Commission of India. The CJ would do a much better and fairer job than most Governors today. As far as approving legislation is concerned, why should an unelected person sit in judgement over the wisdom, or otherwise, of an elected legislature? If a legislation is unconstitutional it can always be challenged in court, which is the proper forum for determining its legality. A Raj Bhavan is certainly not.

  The institution of Governor is a vestigial and colonial legacy which has no place in a genuine democracy. It negates the concept of real federalism. It is occupied, not by the intellectual giants which the Constituent Assembly envisaged, but by men of straw. In practice, it has belied and betrayed its original objective and purpose: far from ensuring stability it has engendered more political instability, confusion and even corruption over the years. It is an anachronism which is incompatible with the political ideals of a developing world order. It is like our coccyx, that vestigial last bone in our spine that once enabled us to swing from branch to branch but has now become a pain in the traditional place. If homo sapiens can do without the coccyx India can certainly do without its Raj Bhavans.

SHAIL BALA'S MURDER- THE WAGES OF POPULISM

            [ This piece was published in the SUNDAY TRIBUNE Supplement on 19.5.2018 ]

   It’s not likely that most of Himachal’s political leaders would be acquainted with the writings of Thomas Carlyle , but they would do well to reflect on his sane warning: “ Popular public opinion is the biggest lie.” I say this with a heavy heart in the context of the cold blooded, daylight murder of the Assistant Town Planner Shailbala Sharma and Gulab Singh, a PWD labourer ( he died in hospital on the 13^th of May) in Kasauli recently, in the presence of at least fourteen policemen who were there precisely to protect her and her team from any such violence ( and who are being inexplicably shielded by the state govt. in the Supreme Court). For the smoking gun here is not just the .32 calibre revolver in the hotelier’s hands but the populism of successive governments in Shimla over the last twenty years. It is that which killed Shailbala, as surely as the bullet which lodged in her chest.

   Mr. Shanta Kumar, the sidelined , octogenarian BJP ex- Chief Minister of Himachal is bang on target when he went on record to state recently that the tragic incident is the result of appeasement policies of governments in the  past. Mr. Kumar’s words carry weight because he is the last Chief Minister Himachal had who governed on the basis of principles, moral values and the public good. I still recollect the shock waves among govt. employees throughout India when he countered the unjustified strike of employees of the HP Govt. Secretariat by announcing the “ no work, no pay” policy in the 1990’s. He even called in the army to ensure law and order in the Secretariat. A long suffering public welcomed his tough stand, but it’s a sign of the deteriorating times that Mr. Shanta Kumar never became Chief Minister again. He was at odds with the  changing zeitgeist.

   The two primary areas where the govts. have faltered are town planning and the environment. I am not talking here of just bad planning but complete lack of enforcement of whatever plans exist. Enforcement has been replaced with large scale appeasement: Shimla alone has more than 20000 irregular buildings which violate planning rules and pose a danger to everyone; other major cities such as Dharamsala, Manali, Palampur, Solan have tens of thousands more. Instead of coming down on them with a heavy hand, successive govts. have tried every trick in the rule book to legitimise them. There have been six “ retention policies” so far ( double-speak for regularisation of illegal structures), and each has only encouraged more violations. No area has escaped the attentions of avaricious builders and ordinary, normally law abiding citizens wishing to exploit the pusillanimity of the political class- Manikaran, Kasol, Mashobra, Kasauli- for commercial gains. To cite just one example: the entire stretch in Mcleodganj ( Dharamsala) between the main crossing and the Dalai Lama’s residence is a declared heritage zone where all existing buildings are to be preserved. But it has now been reported that after the last  “regularisation” scheme announced by the Congress govt. about four years back 98% of the heritage structures have been demolished and replaced with multi-storey buildings, mainly hotels and shops. This internationally famous zone has been destroyed and desecrated for ever. Just last week it was reported in the TRIBUNE that more than 3000 illegal buildings have come up within the 30 meter prohibited, no-construction zone of the Kalka-Shimla railway track, which is a UNESCO world heritage site, putting its heritage status in jeopardy. How were they allowed to come up all these years?

   The same disgusting, vote pandering, spineless and short-sighted policies have been the bane of Himachal’s forests which have been encroached upon on a massive scale. The first, relative authentic figures of encroachment emerged in 2001, when the then government floated a scheme for regularisation of encroachments on forest land, just ahead of elections. Those wishing to avail of the benefit of the scheme were asked to submit affidavits detailing the extent of the encroachment. These affidavits revealed that there were a mind boggling 1,67,223 violators and the total forest area encroached upon was 24, 980 hectares, or 249 sq. kms- three times the size of the Shimla Planning Area! It is no coincidence that almost 70% of these encroachments is accounted for by just three districts: Shimla, Kullu and Mandi- all prime apple growing areas. It is common knowledge that vast swathes of forests have been chopped down by the politically influential over the last four decades to plant apple orchards. The primary historical culprits for encouraging this has been the Congress, but in the rat race that our political system has now become, even the BJP ( post Shanta Kumar) has not lagged behind. When the 2001-02 regularisation policy of the Congress ran into the obstacle of the Forest Conservation Act, Mr. Dhumal’s BJP came out with a modified policy in 2008. That, fortunately, was stymied by the High Court.

   The same story is repeating itself in the Manali area where the NGT has been endeavouring to do what the state govt. itself should be doing- protect the Rohtang pass from the ravages of unplanned tourism and unsustainable vehicular traffic pollution. It has been passing orders to prohibit some types of environmentally damaging activities, restrict the number and types of vehicles going up to the Pass, remove the encroachments at Marhi and the Pass itself, collect and dispose of the garbage, etc. But at every stage the court has been opposed by the govt. itself, either by delaying tactics, or lack of cooperation or outright defiance. The Palchan- Rohtang ropeway ( which would obviate the need for any tourist vehicle to go to the Pass) has made little progress in the last nine years. The green electric buses bought to replace the highly polluting diesel/ CNG buses have just been ordered off the roads by the new Transport Minister and told not to ply! All this is being done under the pressure of a few dozen taxi operators, who fear loss of business. In actual fact, their business is extorting money from tourists, charging four to five times the rates fixed by the govt. They are perhaps the most pampered lot in Manali: as far back as in the late 1980s , when complaints of overcharging air passengers for the journey from Bhuntar airport to Manali became endemic, the HRTC introduced its own deluxe bus service on this route. On the very first day itself the bus was vandalised by the taxi union and was not allowed to run. No action was taken by the administration, and this service has never been reintroduced. The govt. always chooses the easier, electorally beneficial appeasement route. It should realise that by capitulating to such elements it only engenders contempt for the law and for itself, encouraging a criminalised mindset that does not hesitate to take the law into one’s hands, as Vijay Singh did in Kasauli the other day.

    This needs to be stated clearly: by its myopic appeasement policies the govt. has been complicit in illegal urban constructions, environmental destruction and forest encroachments. By legitimising the violations it has only emboldened the violators to aggressively resist any attempt to undo their illegalities. It is only the courts- the High Court and the National Green Tribunal- which have been proactive in trying to preserve the rule of law and in trying to save Himachal’s towns and its forest areas. But successive governments have consistently tried to undermine the orders of the courts, instead of deriving strength from them to do the right thing: filing appeals and review petitions, bringing in new legislation, going slow in implementing the judicial verdicts. Civil society, regrettably has been a mute and silent spectator to this govt. sponsored vandalism and defiance. Finally, however, the courts appear to have realised that the political executive or the administration cannot be trusted with either framing rational policies or with implementing the laws of the land. Increasingly, therefore, they have taken matters into their own hands, passed orders to demolish irregular buildings and vacate forest encroachments, constituted SITs and Committees to implement and monitor execution of these orders. The government of the day has been completely side-lined in the matter, and this should be welcomed by all right minded citizens. Perhaps the concerned officers of these departments will now be able to carry out their duties without fear of political intervention or influence.

   It remains to be seen whether the courts can deliver where the govts. have failed. But the real damage to the body fabric of the state has already been done: the state administration has been fenestrated and rendered impotent, as the criminal negligence and inaction of the police force accompanying Shail Bala demonstrates. Even more worrying, the shameful opportunism of the various political parties over the years has embedded a certain contempt for the law among the citizens of this once law abiding state. It has bred a feeling of entitlement among them- that they are entitled to break the law in certain matters, that they are entitled to occupy public lands and forests, and that anyone who tries to stop them from doing so is acting against the public interest and can be lawfully resisted. The whole concept of public interest has been turned on its head. It is this warped feeling and mentality, actively encouraged for years by all political parties in the state, that killed Shail Bala and Gulab Singh. The bullets were only the medium.

SHIMLA-- FADING BEAUTY, ABIDING CHARMS

   As a long time resident of Shimla I tend to regard her as an aristocratic primadonna whose beauty is now of the past, but some of the charms remain, still attracting the old faithfuls who once haunted her fashionable boudoir. These attractions have not lapsed with the passage of time and still have the power to take us back to an age when life moved at the pace of the hand rickshaw, and the quality of life was measured in simple pleasures, not the mixed blessings of the Internet Of Things. I'd like to share a few of these with you, dear reader.

  For me the main attraction on Mall road is still TRISHOOL, that cute little bakery next to the Gaiety theatre. In the metros the stand-alone bakery is now a thing of the past; what you have are chains and their stuff tastes the same whether you buy it in Connought Place, Khan Market or Greater Kailash. You can no longer easily get an honest, simple pastry, you'll instead be hawked a meringue, or a gateau, or a truffle at five times the price of the original thing. The cream roll is passe and extinct except in the slums. The simple, delicious pate (patty?) is unrecognizable, stuffed with every kind of strange meats and paneer (in deference, I suppose, to those Punjabis who came in after the Partition). The bun has now metamorphosed into the croissant and tastes like a dog's breakfast. And for all of this you pay humongous amounts through your e-nose. And that's precisely why I keep going back to Trishool: the same chocolate pastries, fruit buns, cream rolls and patties that eased the white man of his burden on a cool Shimla evening a hundred years ago. Their taste has not changed a whit in the forty years that I have been having them, and I can have the whole lot for the price of one meringue in Khan Market.

  And then there's Dewan Chand Atma Ram (DCAR, to the cognoscenti) just across the road. It has clothed me, my two sons, one wife, and many generations of Cottonians- even the then Headmaster, Mr. Kabir Mustafi, could be seen there of an evening, trying to get inside a waistcoat and never making it. I'm told the shop designs its own range of apparel (at least the pullovers and shawls): you may spend your life ordering from Flipkart, Amazon and Walmart, but you'll never find anything to match the styles in DCAR. And the prices are so reasonable you wonder why either Deepak or Dinesh (the burghers who preside over the garments) bother asking you for the moneys at all!

   Moving from the man-made to the natural charms of this fading beauty, there's Forest Hill Road, a two kilometer stretch of sylvania which has somehow escaped the degradation and traffic chaos which have befallen all of the town's roads. Its all mostly forest (part of the famous but endangered green belt) and has very few buildings on it. A walk along it of an evening can almost make you want to get married again- well, okay, that may be pushing it a bit- but you get the drift. Since nobody walks in Shimla these days, the road is quiet and contemplative. If you're lucky you might meet Ms. Harinder Hira at the St. Bede's end, if you're unlucky you will probably bump into Yogesh Khanna, yelling blue murder because his partner messed up that Grand Slam at the club (incidentally, it's always the partner, never Yogesh himself). Yogesh once recounted to me an interesting incident he was witness to on this same road. One bitter evening he was walking down the road in the middle of a tempestuous storm, the rain coming down in buckets and the wind fit to blow all the deodars to their knees. It was dark as night and completely deserted. Suddenly, he saw a procession of nuns coming towards him, brightly lit candles in their hands, chanting hymns, looking straight ahead and quite oblivious of the raging storm. Yogesh stood aside, let the procession pass and continued on his way, wondering why the nuns were out on this candle-lit march in this awful weather. Suddenly (he told me later), he froze as a thought came to him: how on earth were all the candles burning bright and steadily in the middle of this storm, the howling wind and torrential rain? He looked back- the road was empty for as far as he could see! The nuns had disappeared. Yogesh hurried home, not looking back even once, like the Ancient Mariner who " turns no more his head, for he doth know that close behind a fearful fiend doth tread..."

   And then there's Annadale, that divinely picturesque glen cradled in the lap of majestic deodars. It is here that the Indian army trains day and night to clobber the Chinese- at golf. This golf course is one of the army's treasured possessions and they would sooner vacate Siachen than Annadale. I've played golf here for a few years, though "played" is an euphemism: I spent most of my time looking for the ball in the forests, because, for some strange reason all my drives invariably went in the direction of Kasauli. I took to wearing a compass instead of a watch but even that didn't help. After seven years on the course I've never hit an eagle or birdie, though I have hit a cow( twice, may the BJP forgive me) and my good friend Yatish Sud (once). Annadale is a wonderful place, worlds away from the mess that is Shimla, and I hope the army never hands it over to the civilian administration, for then it will become another Sanjauli.

   One wouldn't normally add the HP govt. secretariat to Shimla's list of charming memories, not even if Sunny Leone became Chief Secretary and gyrated her sinuous way up that historic staircase every day, with the entire Cabinet standing below shouting "Jai (Be)Hind !" But I do retain fond memories of one small corner of the Secretariat, the broken down, dingy, refrigerated building behind Armsdale. We christened it Guru Nanak Niwas (GNN), because it was a kind of refuge-cum-exile for those not in favour with the rulers of the day. At one point in time in the mid-eighties both Ashok Thakur (he retired last year as Secretary to the Union govt.) and I were sentenced to serve time in GNN, he as Joint Secretary (Forests) and I as Joint Secretary (Animal Husbandry). I do not recollect what Ashok's transgression was, but I was exiled because of a rumour that I had named my dog after the then Chief Secretary, ostensibly so that I could kick him around vicariously! The rumour was, of course, a canard: my dog was named Brutus, but I was banished to GNN nonetheless.

  Quite unknown to the mandarins of the Secretariat Administration Deptt. who thought that the place was a befitting gulag for heretics like Ashok and me, it was actually a jolly fine place. No Minister or senior officer ever visited GNN so we could do just about what we wished to. We usually strolled in at about 11.00 AM, to find loud singing emanating from the bathrooms where all the Section officers were having a bath in order to save water at their residences. We worked from 11.00 to 12.00 noon and then made our way up the hill behind the building to Raj Bhavan where my late batch mate J.P.Negi was the Secretary to Governor. The afternoons were spent in playing billiards and partaking of the fine food churned out by the Raj Bhavan kitchen. At 5.00 PM we would return to our offices, sign the couple of files that had mistakenly found their way to our tables, pick up our squash kits and repair to the Raj Bhavan squash court. It was like we were almost on an unofficial deputation to the Raj Bhavan. It was a wonderful time but, like all good things in life, didn't last very long. Ashok finally managed to locate a tribal leader to bail him out. In my case, someone conveyed to the Chief Secretary that my dog was named after a Roman statesman and not a Kinnaura worthy, and so I was shifted to Finance and back to the main mausoleum of Ellerslie. There I learned, among other things, the similarity between a bikini and a budget viz. that what they conceal is much more interesting than what they reveal. Or that a deficit is better than a surplus- ask any ' O ' size maiden, if you don't believe me.

   What I'm trying to say in my own convoluted way is this: don't grieve over the beauty that once was Shimla, but use your memories to bring back those charms. It doesn't matter that Mary's lamb has now become a mutton burger, remembering her other charms can still bring back the good times. As exemplified in this little, Kipling-esque ditty reproduced from my good friend Raaja Bhasin's wonderful book on Shimla:

" Mary had a little skirt

  And it was slit in half,

  Who gives a damn about Mary's lamb

  When you can see her calf ?"

Who indeed?

PARDON ME, SIR, BUT YOUR HALO IS SLIPPING.

   Halos are tricky little buggers, especially if they are self acquired and not ordained by a higher force. For one, they don't go well with 56 inch chests; two, they are like Chinese diwali lights and don't last very long; third, if not assiduously cared for they are likely to slip down that stiff neck and become a dog collar. Mr. Modi had assumed his high office sporting a number of halos- nationalism, decisiveness, strong leadership, incorruptibility, messiah of development. All of them have blacked out now, like the tens of millions of households his Power Minister claims to have provided electricity to. But one particular halo promises to turn into a crown of thorns in the days leading upto to the 2019 elections- the one which also has an audio sound track saying: " Na khaoonga, na khane doonga".

   It was always going to be difficult for someone who has traditionally been buddies with big capital, right since his Chief Minister days. Not that there is anything intrinsically wrong with wooing the money bags, provided it is done to better the lot of the less fortunate. This proviso was not, however, visible in Gujarat where the human development indices certainly did not justify Mr. Modi's crony capitalism. His stint in Delhi has been more of the same. But the halo of incorruptibility, as assiduously crafted as the hubris inspired suit with his biodata on it, has been totally shattered over these last few months like the mirror of the Lady of Shallot. And without its benign glare he now stands exposed. It's no longer about brushing under the carpet Mrs. Swaraj's recommendation about travel documents for Lalit Modi, or Mrs. Vasundra Raje's indiscretions, or going slow on the Panama papers, or clamming up on the Rafael deal. The raven is now perched on his own window sill.

   The dimming of the halo began with the Jay Shah case, a howdunnit mystery Agatha Christie would no doubt have titled: And then there were crores! In the coming years the world may have to cast its net wide to find the reincarnation of the Dalai Lama, but we need look no further for the reincarnation of King Midas- he's right there in Mr. Amit Shah's happy household! Defended in court by none other than the Attorney General, blurring the lines between government, party and the ( second) family. Should there have been an inquiry at least ? We will never know-for the PM is an honourable man.

  The second reported case involves- who else?- Mr. Adani. It was reported by the WIRE that three of his firms which had a contract for supplying equipments for the Maharashtra Eastern Grid Power Corporation imported machinery costing Rs.3580 crores but over invoiced it for Rs. 9048 crores. The difference of Rs. 5468 crores was allegedly siphoned off to a UAE firm. The DRI ( Directorate of Revenue Intelligence) issued notice of penalty to the companies and also lodged a case with CBI. The CBI has refused to register a PE because they say the matter pertains to a state govt. contract and it has no jurisdiction! It conveniently ignores the fact that the Adani firms obtained the money from 6 nationalised banks, which are all PSUs. How then is this a state matter? There has been no reaction from the central govt. or the PM- for he is, after all, an honourable man.

   Enter Mr. Piush Goel, an otherwise pleasant enough Union Minister, from the extreme right of the stage, in the company of another Prime Ministerial favourite- Mr. Piramal. It turns out that in 2014 when he was the Union Power Minister, Mr. Piush Goel sold his firm, Flashnet Info Solutions India Pvt. Ltd. to Mr. Piramal @ Rs. 9586 per share. The face value of each share, as reported in the press, was Rs. 10. The astute Mr. Piramal thus bought the shares at almost 1000 times their face value. You would obviously conclude from this that Mr. Goel's firm must have been doing phenomenally well, perhaps in the same league as Apple or Amazon. Well..... not quite, because in March next the valuation of the firm was declared to be just one fourth of this valuation ! Mr. Piramal has not responded to any query by the WIRE, which broke this story, but has predictably threatened to sue the news portal- more work for the Attorney General? You would think such an alleged windfall profit by a Union Minister should warrant an inquiry at least? You would be right, but the PM does not think so- he is, after all, an honourable man.

   And here's the latest smudge on the halo- Mr. Janardhan Reddy of Bellary, a mining-cum-robber baron who was indicted by the Lokayukta of Karnataka, Justice Santosh Hegde, for illegal export of iron ore worth Rs. 32000 crore. The case was handed over to the CBI which now says it does not have enough evidence against him to prosecute him- even though Justice Hegde has already done all the hard work and compiled massive documentary evidence on the case! Was it a coincidence that the CBI gave him the green chit just before the Karnataka elections? In which Mr. Reddy's family has been given 8 tickets by the BJP, which has completely out-sourced these constituencies to Mr. Reddy? The BJP's CM designate has openly declared that the Reddys have been chosen on their "winnability" quotient. Mr. Modi of course has maintained a stony, iron ore like silence- for is he not an honourable man ?

  The complete hypocrisy of the gentleman is self-evident, as are his double standards and the yawning gulf between his words and his deeds. Cronyism is alive and kicking; it didn't disappear with the Congress but has just become more selective, its beneficiaries limited to an elite circle of the faithful, protected by a wall of silence. The cases mentioned above may well be the tip of the iceberg, for it takes time for the skeletons to come clattering out of the cupboard. But Mr. Modi's halos are short circuiting one by one and he must soon decide whether he wants to wear a crown or a halo- he cannot don both at the same time.

   

HOW DO YOU HANG THEM WITHOUT CONVICTING THEM ?

   When governments don't have a solution to a problem, or lack the will to find a solution,  they go in for distractions. The present BJP govt. at the center is a past master at this. It has made the red herring its own, to the point where we can justifiably call it the saffron herring. The issue last week of the  "Death ordinance" ( for rape convictions involving girls below 12 years) is a case in point. Having supported the rapists in Kathua and Unnao for months, and finding the ground slipping from under their feet as public outrage developed into a tsunami, it immediately promulgated this ordinance- without even bothering to go to Parliament- as a smoke screen. The govt. fully knows it won't work- just as demonetisation, GST, Aadhar, or surgical strikes did not work. But when the essence of your governance consists of grandstanding rather than sensible administration, it doesn't matter. This is something all governments in the past have been guilty of: when you cannot- or do not want to- do anything to stop the decay of your criminal justice system, simply come out with more and more  blood thirsty and progressively draconian laws.

The Death ordinance will not work, for the simple reason that before you can hang somebody you first have to convict him, something which our broken down, corrupt, insensitive and venal criminal justice system just cannot do. The Prime Minister may shout from the rooftops or Wembley stadium that the guilty will be punished, but the fact is that they won't- and every potential rapist knows this.

   For the simple truth is that rapists just don't get convicted, whether in Bharat or in India. More and more of them are getting off scot- free every succeeding year: the NCRB data itself tells the sorry story. The conviction rate( in rape cases) was 44.3% in 1973, 37.7% in 1983, 26.9% in 2009 and an abysmal 24.21% in 2016- a fifty percent decline in 35 years. Three in four rapists live to rape another day- and they do. Why they do is a disheartening saga of wrong policies, maladministration and a don't give a damn attitude.

   There were 38000 cases of rape registered in 2016, of which 2116 were of minors below 12 years. An unbelievable 152000 cases of rape are pending in various courts ! But only about 6000 cases are decided every year ( about 16%)- hence, even without the existing backlog it would take seven years to decide the average case at THE TRIAL STAGE ITSELF. It is best not to think of how long the appeals will take: the Nirbhaya convicts have still not been hanged because their appeals against the Delhi High Court order have been pending in the Supreme Court, no less, for the last three years! And why do these cases take so long to come to fruition? Apart from the normative sloth and delaying tactics, one major reason is the unacceptable number of vacancies in the court system. In the lower( trial) courts as in February 2018 there were 5925 posts of judges lying vacant out of a total sanctioned strength of 22677- or a little less than 30%. The position is worse in the High Courts- 403 of 1079 posts are vacant, or 40%. The situation is going to get worse in the coming months because of the on-going tussle between the Center and the SC collegium over the matter of appointments. It is in this background that we must consider how sincere the govt. is when it provides ( in the Ordinance) for a six month period for concluding trials and for setting up fast track courts. Both provisions are not worth the paper they are printed on unless the vacancy position is first rectified- THIS is what needs to be fast tracked!

   The consequences of delays in rape trials are fatal for the prosecution, another major reason for the acquittals. Evidence disappears, witnesses turn hostile under all kinds of pressure or are simply eliminated ( eg. the Asa Ram case), there is no ownership of the case because everyone involved- judges, prosecutors, investigating officers- gets transferred, accused jump bail.

   Given the type and quality of investigation conducted by our police, it is actually a wonder that anyone gets convicted. Two recent cases come to mind- the Aarushi murder case and the Kotkhai rape case. Both were totally botched up by the local police, the CBI even botched up the first one! It is not surprising at all considering that the police are completely devoid of any of the forensic or technical skills needed, and rely almost exclusively on third degree methods, " confessions" and coercion of " witnesses", genuine or manufactured. A person who is carrying out a lathi charge one day cannot be expected to become a Sherlock Holmes the next. Many years ago the Supreme Court had directed that the law and order machinery should be separated from the crime detection personnel so as to develop specialisation in the latter- no state has implemented this yet.

   Proper investigation is further hamstrung by the lack of any support on the forensic side. The reader would perhaps be shocked to learn that the whole country has only seven Central Forensic Laboratories! ( Some states have their own but most of them cannot even tell the difference between the DNA and the NDA).The pendency in CFLs is huge- more than 5000 cases: this is another cause of delay, and also acquittals because in many cases, by the time the samples are tested, they have deteriorated to a point where they lose all evidenciary value or are simply misplaced or removed.

   The police is responsible for the rising number of rapes in other ways too. Their insensitive, callous and even hostile behaviour in dealing with rape victims or complainants, and their susceptibility to influence from the rich and powerful, encourages the feeling of immunity among the potential rapists. A case in point is the Unnao kand, where no case was registered against the local MLA for ten long months, even though the rape victim had specifically named him as the perpetrator in her complaint to the district police. The Criminal Law Amendment Act ( passed after the Nirbhaya outrage) has a specific provision that a policeman who does not register the victim's complaint is to be dismissed from service and is also liable to six months' imprisonment. But this provision has not been applied against the Unnao cops. In fact, it has not been used even once in any state ever since it was legislated! Is it any wonder then that cops give two hoots about faithfully registering complaints?

  And finally, add politics, caste and nepotism to this witch's brew to complete this sorry concoction. Vulnerable sections of society- minorities, tribals, lower castes, the poor- are seen as fair game and rape is considered as a legitimate tool for the expression of economic or social dominance. Increasingly, politicians view rape through the prism of elections and ideology: their support to the rapists, as in the Unnao and Kathua cases, seeks to confer another layer of legitimacy on this dastardly act. In his proforma response to these incidents even the Prime Minister refused to specifically refer to them, perhaps for fear of alienating his voters.

   Let us also not forget that little demographic statistic in passing- that, thanks to a skewed sex ratio, we have 37 million fewer girls than men and that has its own consequences. It cannot be a coincidence that the largest number of rapes occur in those ( northern) states where the sex ratio is most skewed.

   These then are the issues the govt. needs to address, and they are not new revelations- they have all been recommended for attention by various Police Commissions, the Supreme Court, the Justice Verma Commission. Unless the capabilities of the police are improved and they are held accountable, unless witness protection programmes are introduced, unless more Forensic labs are established ( why not use the hundreds of crores lying unutilised in the Nirbhaya fund?). unless vacancies of judges are filled up at all levels, unless political parties look at the rapist's crime and not his votes, unless trials are concluded quickly, unless governments stop rewarding supporters of rapists and murderers by making them Ministers, as was recently done in Kashmir- nothing will work. What is required is not some instant panacea like the Death ordinance but persistent diligence, unpopular decisions, large-scale sacking of cops and prosecutors, a moratorium on pandering to votes, a return to the basic values of humanism. If we cannot muster up the courage and honesty to make this effort, then it's not the rapist who will hang, but our heads, in collective shame and guilt.

        

LAST BASTION OF CONSTITUTIONAL ORDER UNDER SIEGE

       

      Nation states are created by individuals but endure on the strength and integrity of their institutions. This is particularly true of democracies which take generations  to set down roots. That is why democracies need four pillars to sustain their edifice. In today’s India, regrettably, three of those pillars have developed deep fissures which are metastatizing with each successive government and are now threatening the very foundations of the nation-its core constitutional values.

   The Legislature, dominated by millionaires and people with criminal charges, has completely lost connect with the citizens except at the basest level of caste, religion and pelf; Parliament itself has become a tower of Babel where a Budget is passed without a second of debate, where two no-confidence motions can be spurned with Machiavellian disdain. The only thing it can agree on is to periodically increase its members’ allowances. It has not only become superfluous and vestigious, it is now inimical to democracy.

   The Executive- both political and administrative- has long been riddled with corruption, malfeasance and lack of any accountability. Over the last four years it has assumed even more disturbing traits- it is now an oligarchy of the faithful, raising hosannas to one ideology only, totally insensitive to the travails of the common man. It was never in sync with the average Indian, but at least it made a pretence of caring; the message today is it doesn’t give a damn. The spiralling outbreaks of violence, dharnas, bandhs these last few months are a clear indication of the people’s response. All institutions- the Election Commission, Reserve Bank of India, NHRC, Universities and academic bodies, various Councils and Regulatory bodies- are compromised and no longer enjoy the trust of the country.

   The Press- the famous fourth estate- has become the fifth column instead. Most of it- particularly the electronic media- has been suborned, bribed and intimidated by the Executive into becoming its co-parcener. Even without the “fake”news these channels cannot be trusted: they are no longer couriers of news but purveyors of views, as dictated by their corporate sponsors or political mentors. They were once watchdogs- most of them are now simply dogs with juicy bones in their mouth and, quite naturally therefore, are unable to bark. There are some stellar exceptions- I will not name them, most of us know who they are- and we cannot but salute them.

   The only pillar not yet fractured from top to bottom is the higher judiciary, more specifically the Supreme Court. It has developed a few cracks of late but its structural integrity is still sound. It is the only institution today that stands between a healthy social order and anarchy. But there is a general perception today that even this last bastion is under siege by the forces seeking to rebuild the nation we inherited in their own image, just as they are seeking to rebuild in Ayodhya. The position of the Supreme Court as the final arbiter of laws and the Constitution is being increasingly challenged- in the court itself, in the PMO and on the streets. At the vanguard is the central govt. itself with a toxic mix of non-cooperation and open defiance of the court, subverting all legalities. It has rejected/ delayed appointments to the High Courts for three years now, creating a backlog of more than 400 vacancies; it has disregarded the 2016 order to restrict Aadhar to only subsidy-based schemes and keeps extending them to all areas with impunity. It will not implement the decision on setting up a Cauvery Management Board for pure political reasons. It did nothing to implement the Court’s order allowing screening of PADMAVAT in the four BJP ruled states. Its worthies continue to make incendiary statements on Ramjanam Bhoomi even as the matter is sub-judice. It has openly defied the court by announcing that it will bring an ordinance if the SC does not review its order on the SC/ST Act.

   The  Opposition, parties are equally culpable in this concerted attack on the Supreme Court, for it is in the common interest of all political parties to have a weak judiciary. Opportunists all, they have joined hands with the ruling party to oppose the court whenever the latter tries to impose some semblance of law and values in public life- the Padmavat episode, the sealing drive and amendments to the Delhi Master Plan, the Cauvery issue, the most recent order regarding arrests under the SC and ST Atrocities Act, attempts to impeach the Chief Justice of India. The recent trend- to incite the public to agitate on the streets against the Supreme Court orders- is even more disturbing.

   But the higher judiciary itself cannot escape some blame either. Precisely at a moment when it should be circling its wagons against this onslaught and presenting a united front it appears to be imploding from within. It is fast losing credibility and trust of the people.The inflexibility of the CJI in accommodating some of the concerns of the other senior judges, the ill advised press conference last month, the strange goings on in court in the judge Loya death case, the reluctance to probe charges against other judges, opacity in distribution of work- all these are sapping the court from within, draining it of any vitality and the confidence to assert itself. This perhaps is one reason why it is unable to take any contempt action against any govt. or politician who continue to flout its orders with impunity. Such weakness begets even more defiance- now even senior lawyers have started making statements and insinuations in and out of court openly challenging the judges, something we could not conceive of even ten years ago.

   The politicians have smelt blood. To continue Mr. Amit Shah’s penchant for animal analogies, the hyenas are hot on the trail of a wounded judiciary.  It is for the higher judiciary to close ranks in the larger interest of a nation that deserves better and to assert itself and become more transparent. It has to set its own house in order before it can mandate correctives for others. It has to act now, before Kathua reaches Delhi. Admittedly, the Court is far from perfect, but it is the nation’s last bastion; once breached, the rule of law will be a distant memory only.