THE LONG AND SHORT OF THE HAIRCUT.

   For somebody who has passed the life expectancy age in India I have a middling cluster of hair fallicles on my head. Nothing, of course, like my old colleague and friend Sandip Madan in the USA, whose mop would make any char woman scream with delight. But then Sandip has a natural advantage; at six feet three inches he has at least eight inches on me ( and he's still growing, like the Himalayas where he served for some time). The height difference ensures that his pate gets more of the nourishing sunlight and less of the PM 2.5 ( no, that is not a reference to Mr. Modi's second term), hence a more luxuriant growth. But in pure economic terms he loses out to me: whereas he has to visit a hair dresser( there are no more barbers left in the USA, ask George Carlin) once a month, I get by with a quarterly visit. The savings are substantial, till Mrs. Sitharaman imposes a GST on them.

   It was not always so. Back in the early 80's, before genetics and the brown man's burden had taken their toll, my crowning glory required a monthly shearing. Now, it's not easy for a Deputy Commissioner in a small district town to have a haircut; he can't just walk into a barber shop like the Delhi police into Jamia Milia, without causing a brouhaha. The normal practice, therefore, was to gently persuade ( a-la Mr. Amit Shah) a reluctant barber to the residence to do the fleecing, assuring him that he would not be arrested for damaging public propertyif he was found wanting and clipped off a little extra off the top. My barber in Una district of Himachal was my mali's brother but no pushover: he extracted all the collateral benefits of being the DC's Jack the Clipper. He would come every month armed with applications and requests from various citizens for gas connections, mutations, ration cards, driving licences et al. ( remember, this was before the mythical Acche Din). Unlike us IAS types, he was not as stupid as he looked for he never presented the petitions when he was shearing me, they were always proffered at the critical moment of the shave.                                Now, in those salad days before I learnt better, an administered shave was a sine qua non, based on the perceived wisdom that men who go to Heaven can get there only by a close shave. Mine barber would apply the foam liberally on the Shukla kisser, sealing my lips, and then advance his requests one by one. There was no way I could argue, not only because I was rendered vocally hors de combat, but also because no one in his right senses argues with a man from Una who is brandishing a cut throat razor two centimeters from one's carotid artery. The Punjab Reorganisation Act, I am told, was devised primarily so that Punjab could get rid of Una since even the sturdy Sikhs found its unruly citizens a handful. Thanks to the barber, therefore, my monthly haircuts thus did more to improve the lot of the people in this benighted district than Mrs. Gandhi's 20 Point Programme. The barber became a very popular figure in the town and, I am told, even briefly considered running for MLA, such was his perceived proximity to the DC, till my precipitate transfer put paid to his plans.

  But times have changed and many fallicles have since been brushed under the carpet. I now live in Delhi where the barber of yore is as extinct as the swallow. The humble hair cutting shop has now been replaced by the fashionable salons, hair dressers, stylists, parlours, coiffeuse, and friseurs ( "We would love to dye for you"). They are so fancy they don't "cut" your hair any more, they use small machines to nibble at them. At the end of the operation your hair needs no combing- it stands up automatically when they give you the bill, usually in the vicinity of a thousand rupees ( without the GST). Very soon, I expect, the job will be done by A.I. via the dulcet tones of Alexa; you will then need a part of Mr. Anil Ambani's remaining fortune to have a hair cut. 

  Fortunately, my pension only permits me to live beyond the Yamuna, Delhi's unofficial poverty line, and the intrepid barber still survives in its unauthorised markets and colonies. I patronise the Diamond Hair Cutting Saloon in Madhu Vihar, modelled apparently on Dodge city of Wyatt Earp fame, which is why I no longer have a shave with my haircut: without the protection of my erstwhile magisterial teflon a cut throat razor is best kept away from the jugular in these shady environs: (remember that riveting scene from " The Good, the Bad and the Ugly"?)  My barber- Salim Mian- charges me Rs. 70 for every pruning episode but I find even this a bit excessive for the few desolate strands that remain on my head. One day I put this to Salim Mian ( in a friendly way, of course, because even the scissor can inflict some serious damage) and suggested a graded fee, declining by five rupees every year in proportion to the loss of hairs on my scalp. His response was worthy of a member of the PM's Economic Advisory Council: " No, janab, I may instead have to increase my rates. You see, in your case, I am not charging for cutting your hair- I'm charging for the time I spend in looking for hairs to cut!" Touche! or Toupee! as the case may be. I do hope someone in the PMO will look at this gentleman when the current Chief Economic Advisor resigns, as his allotted time is almost up going by the tenures of his unsung predecessors.
  When I am at my cottage at Mashobra I avail of the services of Mr. Swami. Built like a Patton tank with handlebar moustaches, Swami operates from a hole-in-the-wall establishment in old Mashobra bazaar, but he also has other irons in the fire: he is also the local "kabadi wallah" and recycles half the waste of the area, not including retired IAS, IPS and Army officers who in any case have minimal recycling value. He charges only Rs. 40 for a haircut and it shows- I usually emerge from his premises looking like a cross between an American Pit Bull terrier terrier and a porcupine. But Neerja doesn't mind: she feels I blend into the rural landscape perfectly.
   My MPB ( male pattern baldness) is becoming more evident as the years roll by and the patch on the crown is expanding like the hole in the ozone layer. I briefly considered taking the Gautam Gambhir cure, i.e. going in for hair transplants: my research shows that it didn't do much for his cricket but it enabled him to win the last Parliamentary elections since the voter could see that he had a better coiffure  than his lady rival: he won by the proverbial hair's breadth. But further research revealed that it costs one rupee to transplant one hair fallicle and needed an investment of about Rs. 40000/, no mean outlay for a pensioner whose pension may stop at any time because his state is going bankrupt holding Investors' Meets where the only one making the investments is the government itself- in organising the said Meet. And what if the damn strands don't grow back? My long experience in the Forest department of Himachal shows that the survival rate of transplants is barely 30%, and therefore what I would probably end up with is not dense woodland but open scrub. So I've decided to keep my money for more worthy purposes, such as for collecting my legacy documents for the impending NRC, and continue hoping that Baba Ramdev's Kesh Kanti hair oil will finally deliver on its promise. So okay, I tell myself, I'll never have long, wavy tresses but then Samson did, didn't he, and where did his golden locks get him? Under a pile of Philistine rubble. All because of a haircut.

A WEEK OF SHAME BUT MOMENTS TO BE PROUD OF.

   Our judiciary had an opportunity to redeem its somewhat dubious recent record this last week, but as the saying goes it never misses an opportunity to miss an opportunity. We were hoping that after its bewildering judgment on the Ram Mandir, its volte face on Sabarimala and the unforgivable delay on Kashmir the higher judiciary would now at least- with half the country in uproar over the citizenship issue- call our rulers to account. But it has once again demonstrated its worrying and lacklustre commitment  to defend democracy, human rights and the rule of law.

   Pronouncing on a batch of petitions on the 18th of this month, the SC refused to provide any relief to the besieged students of Jamia: it did nothing more than issue notices to the govt. and fixed the next date for the 22nd of January next year, no doubt hoping that time is the best healer and it would not have to take any decision. For by the 18th it was clear to everyone that the police violence on the Jamia students was unjustified, excessive and perhaps even pre-planned. Not only was the court oblivious to the reality, it failed to appreciate the fact that Jamia is a minority institution and therefore deserved a more sensitive approach. The least it could have done was to [a] order a judicial inquiry into the incident, and [b] prohibit the police from entering any university campus without the VC's permission ( which in any case is the convention and unwritten rule). The very next day the Delhi High court too chose to prioritise process over justice: it refused to provide any interim protection to student protesters, order any inquiry or do anything more than, ( you got it right), issue notices. One cannot but contrast this with the undue alacrity with which it had responded when the police-lawyer clash took place last month at Tees Hazari: it had then ordered that no lawyer should be arrested, even though all evidence on social media then clearly showed lawyers beating up police officials.

  Frankly, I think our judiciary has dwelt in its ivory towers for far too long under the pretext of "independence", to the point where it now sincerely believes that it is an entity apart from this sorry society and that the people's problems are not its problems. It is in a state of disconnect, as the slogans by lawyers in the Delhi High Court on the 19th ( " Shame on the judiciary!") showed. It is time for our judges to smell the coffee, if not the stench from the burning pyres of rape victims and lynched cattle traders, or a Constitution consigned to flames every session of Parliament. If our democracy and constitutional values collapse, as they surely must if this government is not halted in its tracks, it will not be long before their ivory towers too bite the dust. It is too much to hope for a Solomon in these dystopic times, but will at least a Daniel come to judgment?

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  Is it possible for our political parties to descend any further into the depths of hypocrisy, duplicity, opportunism and the desperation to stay in power? Yes it is. They have been naked to the public for a long time but now we can even see their suppurating sores. Even in their thrall of the BJP they could not have failed to recognise that the CAB ( Citizenship Amendment Bill) for the abomination it is, and yet they were concerned only about their perks of power and not the country- the NDA allies as well as some " like minded" parties. They voted for the Bill, but now that they can see the country-wide backlash against it these despicable leaders are desperately trying to distance themselves and issuing post facto caveats to their support for it. The BJD, which has sat on the fence for so long that the iron has entered the soul of its patriarch, said that it is for the CAB ( now CAA, thanks to another midnight exertion by the President) but against the NRC. So does the JDU and its dissembling leader Mr. Nitish Kumar. These gentlemen are either dyed in the wool liars or ethically challenged- probably both- because anyone could see that the CAA and the NRC are conjoined twins, "joined at the hip" as brilliantly described by Mr. Pavan Verma in a recent interview to Karan Thapar. The spineless AIADMK has suddenly discovered that Sri Lanka Tamils have been left out of the Act. The Shiv Sena, after its disgraceful support of Mr. Shah even after it swore to abide by secular values in Maharashtra, also now finds the Act violative of the Constitution. The Jan Shakti party of the Paswans has today announced that it does not support the NRC. The SAD of Punjab fame, another ally with an Achilles heel which Mr. Shah can crush at any time, realised in quick time that the Sikhs were not supporting the Act; this proud community is intensely aware of its minority status and realises it could be on the hit list next time around, and is therefore also protesting against this Act. So now the SAD belatedly wants Muslims also to be included.

   None of these vacillating groups, however, are to be trusted; they are hypocritical and prevaricating to the core. If the national protests subside and the judiciary continues to snore out mere rhetoric in its deep slumber this whole sorry lot will jump back onto the BJP bandwagon. One can only hope that the voters in their respective states are making a note of all this, and will remember at the next hustings who stood by the country in this grave hour of peril, and who sold it for forty pieces of demonetized silver.

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   There hasn't been much that we Indians can be proud of these last few years, but even as our famed pillars of democracy showed how hollow and cracked they have become there were moments last week we can take pride in. It has been our youth, especially the students, who held aloft the banner of freedom in the face of vicious police atrocities across the country, holding a mirror to the judiciary, politicians and media. Protests by others have only followed the furrows carved out by these youngsters. We can justifiably be proud of people like Kanhaiya Kumar, the Vice Chancellor of Jamia Milia Ms Najma Akhtar, Ram Chandra Guha, Swara Bhaskar, Farhan Akhtar, that weeping student of Jamia ( a Hindu girl, it may be noted) who asked what the point of education was if they were not allowed to question the govt's discriminatory policies. We must be proud also of the fact that these protests themselves vindicate the diversity of our nation, for though there were demonstrations against the CAB and NRC throughout the country, each targeted a distinct aspect of its horror: in Assam it was the danger to its culture, in the North-east their tribal identities, in Punjab the implications for other minorities like Sikhs, in Tamil Nadu the plight of Sri Lankan Tamil refugees, in Hyderabad and UP its impact on Muslims. And cutting across this spectrum was the over arching concern for human rights, constitutional values and the promise of a truly secular India. The last week has been a reminder to the BJP that this country values its diversity and will not be apologetic about it, that it takes patience and consensus to keep this disparate tapestry together, that there cannot be a quick-fix, one size fits all solution to historical legacies, that jingoism and authoritarianism are no substitute for statesmanship. It is not Section 144 or the suspension of internet or police repression that will keep this country together but the values of Nehru and Gandhi: it is time to return to them.

CUSTODIAL KILLINGS ARE AN ALIBI FOR FAILURE OF GOVERNANCE.

             

   The early morning execution of four rape suspects in Hyderabad on the 6th of December this year was actually a custodial killing, and it was bad enough; what was worse, however, was the jubilatory response to it.

When the President of a constitutional democracy publicly asserts that child sex offenders should not be allowed a mercy petition against a death sentence, when MPs in Parliament demand that those accused of rape should be publicly lynched without any trial, when a frustrated public showers rose petals on policemen who have just shot dead four rape accused in what appears very much to be a custodial killing, when "celebrities" across this sorry nation erupt in joy when they hear of this murder- then we have reason to be very worried. For these portend not only the total collapse of the rule of law, that our criminal justice system has now become a criminalised justice system, but also that this country is fast becoming a vast Colosseum with the people baying for blood; it doesn't matter whose blood, for what the cohorts are seeking is catharsis not vindication, revenge not justice. As we were reminded on the 7th of December by a wise Chief Justice of India: there is no such thing as instant justice. The Prime Minister, of course, maintained his sphinx- like silence, as he is wont to do whenever any moral or fundamental guidance is required.

  This moral and systemic degradation did not happen overnight but has been sixty years in the making, assiduously engineered by those in power. It began with criminals infiltrating into our Parliament and Assemblies: in just the last 15 years, between 2004 and 2019 the percentage of MPs with criminal charges against them has gone up from 24% to 39.9%. They and their likes have in turn protected their own, whether it be a Sengar in Unnao, a Chinmayanand in Lucknow or their henchmen in Kathua. They have taken control of an already corrupt and predatory  police,  ensuring an immunity from any legal action for their sexual depravations. When law breakers turn law makers, what are the odds of a country having a fair and efficient justice system?

   Our criminal justice system - the police and the judiciary-has been deliberately and systematically broken down over the years and allowed to atrophy because it suits those in power, and indeed keeps them in power. Numerous recommendations of Law Commissions and Police Commissions to improve the infrastructure have been buried, even the occasional, half-hearted Supreme Court order blithely ignored. If even the apex court cannot ensure that its recommendations to appoint SC and HC judges are implemented, then what chance is there for real justice to be delivered to the people? Consider some figures.

  Successive govts have had no time, or funds, for improving the deplorable conditions of the judiciary and have run it to the ground. Only 0.08 % of the central budget is provided for this sector. We have 19 judges per million of the population whereas we should be having 50 as per international benchmarks. If we factor in the vacancies the actual availability would be even less. The current strength ( January 2016) of judges in all courts is 16743; according to the Law Commission it should be 60000. The total vacancies of the lower courts as on September 2018 was a mind boggling 5748; of the sanctioned strength of 1080 judges in the high Courts as many as 414 or 38% are vacant.

  It should therefore, come as no surprise that more than 30 million cases are pending in the system and any kind of justice is a distant illusion for most. 28750 rape cases, involving more that one lakh accused, are under trial and 235000 are under investigation. The accused in the Nirbhaya case were convicted four years ago but are yet to be hanged. The conviction rate for rape, as per NCRB data, has seen a consistent and sorry decline over the years: from 46% in 1973 to 25% in 2017. ( These, mind you, are conviction by the trial courts; many convictions are overturned in appeal). Given this dismal output of the judicial process, is it any wonder that there are more than 350000 reported crimes against women every year , of which 40000 are rapes alone? In the background of the fact that 90% of such cases are not even reported, we may well ask: do we even have a viable criminal justice system in this country?

   The state of the police force is even more abysmal, if that is possible. The total sanctioned strength at 1.90 million ensures that we have only 138 policemen per 100,000 population, actually about 100 only if the vacancies of 24% are factored in. The accepted international norm is 225, so it is no surprise that India ranks as the fifth lowest out of 71 countries in this respect. There is a shortfall of at least half a million policemen. But our rulers are well protected and cared for: according the BPRD ( Bureau of Police Research and Development) report of 2017 as many as 56994 cops are posted on personal security of 20828 VIPs, an average of almost 3 policemen for every so-called VIP. Contrast this with what is provided for the ordinary citizen- one cop for every 663 people. The streets and public places have been handed over to criminals: the police claim they don't have the manpower for proper patrolling, but they have no problem in pouring out hundreds when it comes to beating up protesting students or farmers.

   It is not just the central governments but the states which too have been criminally apathetic to the ever expanding rot in the system. Some years ago it was decided to set up 1023 Fast Track Courts( FTCs) to expedite the then pending 166,882 rape and 160,000 POCSO cases. But so far only 420 have been established; 15 states have have not notified a single FTC. A Nirbhaya fund was set up in 2013 to improve the infrastructure for the safety and rehabilitation of women and rape victims; it has amassed a corpus of Rs. 3600 crores, of which Rs.1656.71 crores have so far been released to the states for various approved projects in the last five years. Shockingly, 90% of this has not been spent by the states which have so far submitted UCs of only Rs. 146.98 crores as per the latest information provided to Parliament by the WCD Ministry.

   This broken, ramshackle legislative, judicial and police architecture can never deliver any real justice. On the contrary, it has become vulnerable to, if not complicit in, the manipulations by an unscrupulous government. The people have realised this and are resorting to vigilantism across states. The police, of course, need no encouragement to become vigilantes themselves because it fits in with their predatory instincts and saves them a lot of hard work that proper investigation requires.

   Our criminal justice system has all but collapsed, and women being the most vulnerable section of our society are being forced to bear the brunt of the fall out. Every section of our power structure has contributed to this degradation: a Chief Justice of India  who absolved himself of a charge of sexual molestation in the most opaque manner and was allowed to get away with it, political parties which have no qualms about publicly supporting rapists, a judiciary which doesn't question the police, a public and media which demands instant retribution, not justice We have degenerated into a juridical ecology where people accused of white collar crimes ( with no charge sheet filed) can be kept in jail for 106 days, but rapists and lynch artists get bail almost immediately and are garlanded by Ministers of the government, where the police refuse to register FIRs in rape cases or to protect victims or witnesses. Unnao, Kathua, Hyderabad- these are badges of shame for any country. And now  we are, inevitably, regressing to the BC era, to the code of Hammurabi ( as retired CJI Lodha reminded us last week) and the dictum of an eye for an eye; it doesn't matter whose eye is extracted or what process is followed. The Hyderabad "encounter" and its resounding endorsement by a citizenry which has reached the end of its tether is an augury no civilised democracy can either accept or ignore. The social doctrine of Thomas Hobbes and Max Weber tells us that violence is the monopoly of the state; this may well be so, but it does not include police vigilantism.

THE JURISPRUDENCE OF THE "FAIT ACCOMPLI."

                         [ This piece was published in The Wire on 28. 11.2019 ]

   It takes two to tango, but when the executive and the judiciary decide to tango together it becomes like a tandav, and is certainly not good news for the country. A disturbing feature of governance over the last year or so is the manner in which the legal corrective mechanisms are being rendered impotent by presenting the country with a fait accompli, which in turn the higher judiciary is willing to accept as an alibi for avoiding, or at least deferring, judicial review. In other words the government goes ahead and does what it wants, notwithstanding the dubious legality of its actions, and the judiciary in turn accepts this as the status quo and is therefore reluctant to intervene effectively in the matter. The judicial response to the challenges to the govt's actions kicks in so late that by the time it takes effective notice of the matter the fait accompli is almost set in stone and cannot be reversed. Four recent examples will suffice to make this point.

   The infamous, and clearly venal, electoral bonds were notified in January 2018 and launched in March 2018. They were immediately challenged in the Supreme Court, first by the CPI(M)  in January 2018 and by the election watchdog ADR in September of the same year. Elections to four states were due in 2018 and the general elections to Parliament were slated for May 2019. Given the ubiquitous and corrupting role money plays in our elections, and the known fact that even the Election Commission had objected to the scheme, one would have expected the SC to have taken up the matter on priority, and to at least have stayed the introduction of the bonds. It did neither. It allowed the donations to flow, and ruled as late as on April 12th, 2019 that political parties should submit details of the bonds IN A SEALED COVER to the Election Commission by 30th May, 2019. In other words, the two main criticisms of, and challenges to, the electoral bonds viz. that they deprived the citizens of any information on who funded which political party, and that this anonymity favoured the ruling party of the day, went unaddressed by the court. The status quo was allowed to continue. As a consequence from March 2018 to October 2019, Rs. 6128 crores have been donated by way of 12313 bonds purchased from the SBI by various unknown donors, according to the reply to an RTI query by ADR. The ADR estimates that between 85% to 95 % of this has gone to the BJP. This delay in decision making by the SC may already have caused irreparable damage to our electoral process, and even if the court now declares the scheme unconstitutional, it can hardly ask the BJP to return all the moneys it has already garnered.

  The Aarey forest case which played out in October this year provides another instance where the fait accompli trumped public concerns. On October 5th the Mumbai High court allowed the Metro Rail Corporation to fell 2500 trees in the Aarey forest for construction of a coach shed. A petition against this was filed in the Supreme Court the very next day, and on the 7th the SC ordered that no trees should be cut till the next date of hearing. Shockingly, the govt. counsel informed the court that 2141 trees had already been felled between the 5th and 7th. This was a predetermined exercise to alter the status quo to suit the Metro corp. The SC could still have stayed any further construction on the site but it did not do so. Consequently, construction on the denuded site is reportedly now going on in full swing, while the original petition languishes somewhere in the registry. It does not matter now what the court finally decides, because the trees have all gone: the relief sought has been overtaken by the fait accompli and the court will now have no option but to regularise it " in the public interest." What makes the whole issue more regrettable is the report of an investigation carried out by India Today

(https://www.indiatoday.in/india/story/aarey-forest-800-1800-trees-transplanted-mumbai-metro-dead-ground-report-1609641-2019-10-15 ) which exposes another lie of the govt. on the basis of which it obtained the approval of the Mumbai High Court, viz that it had transplanted hundreds of trees as compensatory afforestation. The report now reveals that of 1800 trees transplanted 800 were found to be dead, and many more would also die soon.

  The Ram Mandir case is the mother of all fait accompli exemplars. Here there was not one but four historical  incidents of fait accompli that had a bearing on the judgment going in favour of the Hindu petitioners: the installation of the idols of Ram in 1949, the opening of the Babri masjid for worship by Hindus in 1986, the demolition of the mosque in 1992, and the construction of a makeshift temple in 1993. These-all illegitimate if not illegal- actions ensured the tilting of the status quo in favour of the Hindu parties, which then became the prime justification for the final award going in their favour.

   Most recently, the same twisted paradigm is playing out in Kashmir, post the 5th of August 2019. The detentions, arrests, curbs on the media, snapping of the internet have now been in place for more than one hundred days. Challenges to all of them, including the fundamental habeas corpus petitions, have been made in both the High Court and the Supreme Court but continue to languish there. Once again the new status quo has been imposed by a powerful state, and the judiciary appears to have accepted it as the new normal. With each passing day it becomes more entrenched and therefore more difficult to change even by a judicial intervention, if it ever comes.

   The strategy is simple- alter the status quo by force or some devious strategem, and then delay indefinitely any possible legal remedy till the relief sought becomes infructuous or impossible to implement.This new model of governance by fait accompli is completely antithetical to the rule of law because it alters the playing field in favour of a determined government bent on having its way, regardless of the legalities involved. " Justice delayed is justice denied" is an adage we have come to reluctantly accept in private matters, but it cannot be allowed to be extended also to matters of grave public importance or to fundamental constitutional rights and values. It rewards the aggressor and the transgressor and perpetuates an illegal act by giving it a legal endorsement. In the long run it becomes more difficult to turn the clock back. It is more than time that the courts realise the insidious nature of this strategy and act quickly to ensure that urgent matters of public importance should brook no delay. 

SILENCE IS NOT CONSENT, INEQUITY IS NOT CLOSURE.

   The day justice is postulated on the same premise as elections- viz. that the preferences of the majority must prevail- is the day that democracy is doomed. The 9th of November 2019 was perhaps such a day for us, for on this day the Supreme Court, inspite of accepting that the Babri Masjid had existed for 450 years and that the Muslims in Ayodhya had been wronged on multiple occasions, nonetheless ruled that the disputed site of the mosque should belong to the Hindu petitioners.

   There are two ways to arrive at a decision. The first-and correct-  is the deductive way: to collect the evidence, analyse it and arrive at a finding based on it. The second is the inductive way: to make up your mind first and then force, or induce, the interpretation of the evidence in the manner and direction that you want. The Ram Mandir order looks a lot like the second.

  Consider some of the salient findings of the Court itself: that the mosque had in fact existed at the site for more than 450 years, from 1528; that the British intervened in 1857 when a dispute arose with the Hindus and erected railings to separate the worshippers of the two communities; that there was no archaeological proof that there existed a Hindu temple below the site where the Babri Mosque was constructed; that the ASI could not confirm that the underlying structure( whatever it was) had been demolished to construct the mosque; that namaz was offered continuously at the site from 1857 to 1949; that the Muslims were in fact " being obstructed from free and unimpeded access to the mosque for the purposes of offering namaz"; that it was on the night of 16th December 1949 that " exclusion of the Muslims from worship and possession took place" ; that the Muslim community had been wronged on at least four occasions in the past- in 1949 by the surreptitious installation of idols of Ram in the inner structure, in 1986 by the illegal opening of the gates to permit entry and worship by Hindus at the disputed site, in 1992 by the unlawful demolition of the mosque, and finally in 1993 by the making of a make-shift temple to Ram there, in complete violation of the law and an order of the Supreme Court.

   This being the admitted, and accepted, evidence, most objective students of law would find it difficult to comprehend the paraprosdokian finding that the Muslims were not in possession and that the site belongs to the Hindus. The reason cited by the court is extremely ingenuous, viz. that the Muslim petitioners " have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857." This just begs the counter: was there any evidence to the contrary? Isn't the ( admitted) existence of the mosque itself since 1528 enough to establish their claim? And here is the real shocker: the Hindu petitioners too could not offer any solid evidence of " exclusive possession" during the same period. But the rules appear to have been relaxed in their case: whereas the Muslims were required to provide hard evidence, for their adversaries the court generously accepted mere " preponderance of probabilities". Shorne of legalese this means unsubstantiated assumptions.

   The fact that the judgement was unanimous, and that one judge even attached an addendum extolling the faith of the Hindus in Ram's birthplace, are ominous indicators of the progressively constricting grip of religion over our institutions of governance. The analyst Apoorvananda in a recent article in the WIRE has termed it " unanimous majoritarianism." An apt term which is bad enough in politics, but is a disaster in jurisprudence.

    The Prime Minister has claimed that this is a new dawn for a new India and that we( read Muslims)  should now move on. I wonder, would he have called it a new dawn if the judgement had gone the other way? And why is it that the onus of moving on should always be with the minorities, and not with the remaining 80% of us? Be that as it may, the Muslims have been largely silent  (which is good) but the right wing ideologues and politicians are perhaps reading it wrongly as acceptance. For it is an acceptance under duress and born of a fatigue under the repeated onslaughts of the last five years: triple talaq, NRC, Citizenship bill, Kashmir and the apprehension of more in the pipeline- a Uniform Civil Code, calls for legislation to limit the number of children, and the referring of the Sabarimala issue to a constitutional bench which, make no mistake, is the thin end of the wedge to focus on other personal practices of their faith. Now that it appears to them that even the legal system is ranged against them, they have little choice but to be silent, but it is the silence of the graveyard.

   There is no closure, either, as some of us would like to believe. In fact, this may just be a new beginning, not the bright new dawn the Prime Minister spoke about but a revitalised crusade for possession of the sites at Kashi Vishwanath, Mathura and other places where similar disputes have been lying quiescent, based on the same principles of faith and selective history as in the Ayodhya case. Even the Taj Mahal has been claimed to be a temple. The disturbing portents are already visible: in the last round of mediations on the Ramjanam bhoomi, most of the Muslim parties had agreed to the site being handed over to the Hindu petitioners provided they relinquished their claims to these other sites, but the latter did not accept this condition. Nor has any BJP/ RSS/ VHP leader given this assurance post the 9th of November either. And significantly, another Hindu outfit, the Akhil Bharat Hindu Mahasabha, one of the appellants in the apex court, has expressed its unhappiness at the decision to allot five acres of land for construction of a mosque in Ayodhya and stated that it is considering filing a review petition against this ( Indian Express, 13th November). These do not augur well for any closure.

   Some analysts believe that the Places of Worship ( Special Provisions) Act, 1991, which prohibits the conversion of, or alteration of the status quo of,  any religious place of worship as it stood on the 15th of August 1947, is adequate safeguard against any further re-possession attempts. But this is a naive mirage and pipe dream. We should not forget that the Babri masjid was demolished in 1992, when this Act was very much in force, and in the face of an assurance given to the Supreme Court. Secondly, as the Ramjanam Bhoomi judgement has shown, in today's India the law is subservient to faith, creative interpretation of history and brute political majority. And finally, it will take just one session of Parliament, or better still, an ordinance, to change the law, as Section 370 has chillingly demonstrated.

   However well intentioned the apex court may have been in trying to do a balancing act in the Ayodhya case, the fact is that it has now tilted the scales of justice in favour of the majority community. The inexorable  mandate of politics was already ranged against the minority community, now even the courts have deserted them. This is not the kind of closure an enlightened democracy should be proud of. 

PUT THE "ECO" BACK INTO ECONOMICS. [ II ]

                            [ The concluding and second part of two blogs on this subject ]

   Sloth, indulgence and hedonism have become second nature to us and have spawned many industries to cater to them, all of which have reached unsustainable levels. Consider the food we eat. As incomes rise, so does the craze for meats, a non-vegetarian diet. Global meat consumption in 2014 was a mind boggling 350 million tonnes, up from 55 million tonnes in 1961; per capita consumption has gone up from 20 kg to 43 kg in the same period. Livestock rearing alone accounts for 14.50% of all green house gases. In addition, 100 million tonnes of fish are harvested from the oceans every year, and 75% of all fishing grounds are exhausted. Rearing of livestock for the meat industry is taking a heavy toll on our forests, farmlands and water. In the USA alone 2/3rd of all cropland is devoted to growing grains and soya for cattle, even as 2 billion people, mainly children, don't get two meals a day. The destruction of the Amazon rain forests and tropical forests of Malaysia is intended to increase the area for cattle farming.  One kg of meat requires 13000 liters of water, as against 100 liters for one kg of potato. The world wide transportation of meat from the producing regions like Argentina, Brazil and India to consuming centers leaves a massive carbon footprint. The transportation of "luxury foods" from growing to consumption areas- champagne from France, Wagyu beef from Japan, caviar from the Caspian sea- leaves an enormous carbon footprint. It is high time we eschewed exotic foods from far away and "eat local". 

  The United Nations has cautioned that meat consumption has to be reduced by half by 2050 if its deleterious ecological impacts have to be reversed. Although this is not likely, there are still some hopeful signs. Surveys abroad indicate that 25% of millennials are either vegetarians or vegans. Many more are " flexitarians", eating meat once in a while while abjuring it as a staple part of their diet. The manufacture and sale of  PLT or"plant based meats" is slowly picking up thanks to the research of companies like Impossible Foods and Beyond Meat. Even that burger bastion McDonalds has begun testing out PLT burgers in the USA. But it's a long haul to the UN target.

   The other end of the alimentary canal is also a cause for ecological worry. A little known fact is the deforestation being caused by our insistence on using toilet paper instead of water. The world consumed 36.70 million tonnes of toilet/ tissue paper in 2017 and the figure shall reach 50.51 m/t. according to industry estimates. Americans are by far the biggest users of this bum wrap- annual per capita consumption of 24 rolls or 12 kgs. The sad part is that 27000 trees are felled EVERY DAY to produce this modern convenience which we have done without except in the last hundred years or so only. How does it make any sense to flush whole forests down the toilet, just because we find it convenient ?

   Mass tourism is ravaging the environment on an unprecedented scale. 1.20 billion international and 5.60 billion domestic tourists every year are the new scourge, most of them going to the same overloaded destinations rather than exploring new ones. The new concern globally is "overtourism" and countries- their citizens rather- are hitting back, forcing their governments to regulate this swarm. Venice, Barcelona, Dubrovnik, Paris, Kyoto, Bali, Phillipines, Rio d Janeiro- all are now imposing restrictions on numbers,seasons, timings to "detourist" these places. Some are even shutting down destinations altogether, as in Borcay and Maya beach in Thailand. In Europe an organisation  called SET ( Network of South European Cities against Tourism) has come up to wage the battle against "tourism terrorists." More emphasis has to be given to "destination management" or else the hordes from the cities and towns shall decimate what little is left of our natural assets. The 9.5% of global GDP and 10% of jobs that tourism provides cannot be the end-all of economic planning.

  And then there is the internet and the digital universe, an alternative to the real world which most of us now prefer to live in, little realising its ecological impacts. With more than 4 billion users hooked on to this virtual world for 8-10 hours a day, the power required to run the world wide web is astronomical, and growing exponentially- the USA alone consumes 70 billion KWH of energy annually, equivalent to 8000 MW of power, more than the peak consumption of New Delhi, according to the Berkley Lab. The per capita annual emission of CO2 on this account alone is 300 pounds. The global power consumed by the internet is 200 Terra Watt Hours- more than the total energy requirement of Iran!

  According to a recent report by the French think tank the Shift Project, just online streaming of videos- Netflix, Amazon Prime, Hulu, and porn- produces emissions equivalent to that of Spain, and this will double in the next six years. Just watching a half hour show results in emissions of 1.6 kgs of CO2 equivalent, equal to driving 6.28 kms. Most of us never even think of deleting the thousands of email and other data that we no longer need, little realising the enormous amounts of power needed by servers and data centers to store them. 

   And now countries and IT conglomerates are pushing for 5G, just so that we can make our couch-ridden lives even easier with IOT ( Internet of Things)- every thing which can have a chip embedded in it will now be connected to the net. Why? Why can't we open the fridge to see if the milk or eggs need to be replenished, instead of a chip in it sending an order direct to your grocer? Why can't we come home from office and turn on the air conditioner, instead of sending it a digital command from ten kms away? It is estimated that 5G can triple or quadruple the demand for power for the net, it will need a transmission tower every 100 meters, the risks of radiation will go up exponentially ( in a recent experiment in Europe hundreds of birds fell out of the sky, killed by the trial radiation). And I am not even mentioning here its other deleterious effects on human rights, privacy, state surveillance, freedom of speech. Suffice it to ask: Why do we need 5G at all ?

   It is more than time to start adding up the environmental and health costs of this obsession with making our lives easier and easier and indulging our appetites more and more. Technology and wealth should be employed to feed the hungry, eradicate poverty, improve health, provide education and jobs- not to satiate the gluttons, create more multi billionaires, or inject ourselves with botox to emulate porn stars. We have worshipped for too long at the altar of GDP. If growth falls, so be it; if unemployment rises so be it. Governments have enough funds to take care of those effected, and enough options to raise more if only they think rationally and not indulge the rodomontadish urges of some leaders. One foregone bullet train ( which nobody but a few jewellers in Ahmedabad needs ) can provide Rs. one lakh each to  10 million families, or a population of 50 million. Add to this the multitude of statues being built to satisfy egos and win elections, the wholly unnecessary waste of Rs. 13000 crores to demolish the legacy and heritage of the central vista of New Delhi, Rs. 5.60 lakh crores proposed to be spent on the hugely disastrous and unstudied River-linking project, the Rs. 12000 crore on a Char Dham highway that no genuine pilgrim desires, and other such grandiose projects, and one will realise that the money is not a problem to compensate those worst hit by stricter environmental and ECOnomic planning. The world is already beginning to explore some of these while we are still obsessed exclusively with Kashmir, NRC and arresting everyone who dissents. There are, for example, UBI ( Universal Basic Income), Inheritance Tax, Carbon Tax, Inequity Tax. In other words, raise the moneys from those who have cornered most of the planet's resources ( the top 20%, by one estimate), those who consume more, leave a larger ecological footprint, want to indulge their senses to extreme limits. It is time, in other words, for our economists to discover an alternative paradigm for planning. They have spent the last 150 years devastating the environment, it's time now to find a way to save it.
   They will, of course, do nothing of the kind because they cannot agree on anything. Even as the Indian economy has been hurtling down the slope for the last three years our economic pundits still cannot decide whether the problem is "cyclical" or "structural." Governments too will not do anything if the ordinary citizen does not force them to. And the citizen will remain somnolent till the realisation dawns that, in the final analysis, the solution lies only with him or her. At the end of the day the only answer is for us- you and I- to simplify our lifestyles: the way we eat, dress, travel, entertain ourselves, spend, consume scarce resources like water and energy; respect natural eco-systems and other life forms. The power to save the planet does not lie with governments- it lies with us.
                                                                       [ Concluded]

M. K. KAW-- THE LAST OF A VANISHING BREED.

                                       M. K. KAW-- THE LAST OF A VANISHING BREED.

   Last week another tenuous link to a glorious past was broken. MK Kaw, a retired IAS officer of the 1964 batch of the Himachal Pradesh cadre passed away at the untimely age of 78 in Delhi, suddenly and without even bidding farewell to his myriad admirers and friends. Mr. Kaw was perhaps the last of that unique breed of scholar-administrators who made the IAS one of the inimitable civil services of the world. He represented a pedigree that has almost disappeared today-an inquisitive student of many disciplines, an eclectic man of letters, an epicure of refined and gentlemanly tastes, and a public servant of exceptional sensitivity and ability.

   He was a prodigy who did his matric at the age of ten, completed his Masters when he was only sixteen, and joined the IAS at twenty three at his very first attempt. And all this without ever attending a formal school. He wrote 13 books, was an artist, a singer, a deeply spiritual man, a social worker who headed the All India Kashmiri Sansthan for many years, served as Dean of the Sri Satya Sai International Center for Human Values; all this while he discharged his bureaucratic responsibilities with rare competence, vision and objectivity at all levels, ending a remarkable career as Secretary to the Govt. of India.

   All of these qualities and talents are to be found in many persons, but it is only once in a generation that they all together come in a harmonious package in one individual. And rarer still in someone who is a perfect gentleman, a warm and caring individual. I worked for two years under him as his Joint Secretary in the Finance Department in the eighties. The seniority gap between us was eleven years, in pecking order terms the distance between a meerkat and a lion, an unbridgeable gap in the civil services. But Mr. Kaw bridged such chasms effortlessly, with gentle banter, irrefutable logic, an unmatched breadth of vision, a mordant sense of humour and a twinkle in his eyes that dared you to be offended. He bonded with his juniors as no one else has done either before or after him, and not surprisingly, managed to get the best out of them without any officious effort. In those days there used to be two lunch clubs in the Secretariat. The Senior lunch club was for the Secretaries and would admit no upstarts below the 1972 batch, we hewers of wood and drawers of water belonged to the junior lunch club. Mr. Kaw, however, would join us for lunch once in a while and regale us with tales of intrigues in the senior version. We asked him to become a regular member of our club but he declined, stating: " I confess the food here is much tastier than the balanced diet in the senior club but the gossip there is much spicier!"

   Mr. Kaw had an unmatched and contagious zest for life and living. He was literally the heart and soul of the IAS Association, organising its cultural nights, farewells, dinners. He invariably wrote a play or two, humorous and satirical ones; I still recollect one that eerily anticipated today's ghar wapsi rationale- it was titled The Department of Love. He always encouraged me to write what in those days were called "middles" on the op-ed pages of newspapers, perhaps recognising that my forte lay in the realm of nonsense rather than sense! I last met him a year ago at a lunch where he stoutly objected to my not mailing him by blogs. I promised to do so immediately and have since been marking all of them to him. How do I now delete his name?

   In his autobiography " An Outsider Everywhere" Mr. Kaw terms himself the perennial outsider. For once he was wrong. For he was the outsider who was at home everywhere, such was his endowment, warmth and flair. For he showed us how beautiful and amazing this world could be, if only we cast off our blinkers and approached it with honest curiosity. And then, on the 28th of last month, he just walked  away , his mission accomplished, as if reminding us of these words from the "Rubaiyat of Omar Khayyam":

                " Ah, make the most of what we yet may spend,

                  Before we too into the Dust descend;

                  Dust into Dust, and under Dust, to lie,

                  Sans Wine, sans Song, sans Singer, and - sans End!"

Goodbye, sir, and thank you- for everything.  

PUT THE "ECO" BACK INTO ECONOMICS [ 1 ]

                                 [ This is the first of two blogs on the subject ]

   A fair number of my friends are economists, though none of them has won the Nobel prize yet, nor is any one likely to. One of them, whose research is on the Game Theory, did come within sniffing distance of it, but has now beaten a hasty retreat. Now, Game Theory is a mathematical model which maximises the chances of success by studying strategic decision making between rational individuals. My friend gave in for two reasons: one, he couldn't explain how the BJP's mathematics always managed to convert a minority in votes into a majority in seats, as in Haryana, Goa, and Karnataka. Two, there was the small matter of being branded an anti-national, which is the fate that has befallen our last two Economics Nobel laureates, Amartya Sen and Abhijit Banerjee. Now that economist gurus like Mr. Piush Goel and Rakesh Sinha have questioned not only their left leanings but also their "foreign wives", can another sedition case be far behind? Of course, our Prime Minister did have a cordial meeting ( without the hugs) with Mr. Banerjee but my friend is not taken in by this familiar drill where the PM provides the fake veneer of civility while the real message is conveyed by his underlings. He will henceforth confine his investigations to underwears-an emerging field of economic theory which somehow escaped the attentions of Marx ( Karl, not Groucho), Keynes, Milton Friedman, Adam Smith, von Hayek, to mention just a few.

   But as usual I digress. The reason I mention my economist friends is because I suspect I am about to lose all of them pronto. For I cannot share their feelings of doom and gloom about our current economic downturn. I am overjoyed that auto sales have fallen by 24% and that the blighters sold 184000 fewer cars last month. I am ecstatic that NHAI is unable to build more highways because it cannot pay its contractors. I silently thank the Houthi rebels for knocking out 5% of global crude production by bombing the Saudi refinery.I cannot conceal my glee at the fact that airlines are shutting down, that transport of goods has fallen by 30%, that consumption of meat is declining and more people than ever are content to eat stalks and leaves , that more and more citizens are beginning to resist Aarey type choices. For this is my simple and sacrilegious theory: some things which may be bad for conventional economics are good for our planet. I call this ECO-nomics, i.e. economics based on ecology.

   For the simple and inescapable fact is that the planet cannot be held hostage to GDP any longer. As Professor Robert Gordon of North-Western University, Chicago, has pointed out, global GDP has been growing at 2% per annum since 1900 and can grow no further. Infinite growth in a world with finite resources is not possible without irreparably damaging the environment. No economist ( or politician), however, will admit this or prescribe the only sane solution: make life styles simpler, consume less of everything, don't use technology only for physical convenience or monetary profits. The world needs to move from the classic consumption driven model to a "nonsumption" model or a "minimalist" life style. In other words, consume less of everything- goods, services, natural resources. The theory of constantly driving up "demand" so that "supply" can be increased to further raise GDP is proving to be disastrous for the planet's well being and survival. The current emphasis on just GDP is not only counter productive, it is also misleading because it does not factor in the cost of natural capital expended, i.e. the environmental costs. Not surprisingly, a recent UN study found that if this were factored in then the GDP of 140 countries would be in the negative! GDP should be replaced by a more accurate SDP or Sustainable Domestic Product- i.e. GDP minus the environmental costs. Let us look at just a few sectors where ever increasing demand is playing havoc with the planet.

   Why do we need more vehicles? The world already has 1.2 billion passenger cars ( i.e. one for every six individuals) and this will reach 2 billion by 2035. A mind boggling 97.3 million cars were manufactured in 2017. India had 230 million registered motor vehicles as on 31.3.2018, Delhi had 10.98 million- one for every two of its citizens, including presumably Bangladeshis, Afghans and Rohingyas. Motor vehicles are responsible for 30% of total global CO2 emissions. They also cause 150,000 deaths in accidents every year in India. They have taken away our walking spaces, our parks; destroyed our pristine natural assets ( Rohtang pass). People now drive ten kilometers to Lodhi gardens in order to walk for two kms! It's time to trim these numbers, and my suggestions are: ban SUVs, allow only income tax payees to buy cars, ration one car per family, fix a monthly fuel ration/ allowance. There is a question of equity involved here too: just because you have the money why should you be able to corner/ pollute all the world's natural public goods- air, water, space, rivers, forests, mountains?

  Civil aviation is another major culprit, though most people don't recognise it. It adds 1.250 billion tonnes of green house gases to our atmosphere every year and is metastatizing  like a cancer. There were 4.1 billion flyers in 2017, expected to reach 7.8 billion by 2038: the vast majority of these don't NEED to fly, they do it for R+R or because their status will not permit them to adopt humbler but more eco-friendly modes of transport. There are approx 150,000 commercial flights every day. The sector clocked 7.64 trillion kms flown in 2017, which will reach 18.97 trillion kms in 2038! Boeing estimates that 39600 more planes will be needed by 2038 to cater to the increasing traffic. Where does this curve end? It's not just the skies we are losing; planes need airports, and airports need land, causing more deforestation and displacement of the poor. Our own Civil Aviation Ministry has just announced the construction of twenty new airports, for which 100,000 hectares of land will be needed. For the new Mumbai airport thousands of mangroves are being cut, wetlands filled in and a whole river being diverted. For how long can this go on? Why should one take a flight to go from Delhi to Chandigarh, or from Mumbai to Pune or from Bangalore to Chennai, when perfectly good train connections are available? It has been calculated that one train can carry the passenger load of six wide bodied aircraft. Governments should incentivise train travel and discourage flying by imposing a heavy carbon tax on flight tickets, not permit short-haul flights, stop building new airports, add more super fast trains like the Tejas and Vande Bharat, ban private or chartered jets ( which do not pass the equity test either).

                 [  To be continued. The second part of this blog shall be posted next week.]

   

AAREY' S NIGHT OF THE CHAINSAWS- TIME FOR THE JUDICIARY TO GET OFF THE FENCE.

                   

   

If you're still wondering why India ranks at 177 out of 180 countries in the World Environment Performance Index ( we were at 141 in 2016), you need look no further than what happened in Mumbai's Aarey forest last week. Every concerned institution and civil society contributed to the massacre of thousands of trees, a deed which, befitting a dastardly crime, was performed in the dark of the night- the political executive, the administration, the judiciary, civil society( barring a few hundred brave souls). The whole process, clothed in frayed legal garb, was a travesty of the legal process, something which is recurring with greater frequency these days as the courts appear to be wary of rubbing the government the wrong way.

  No reasonable person would hold that 2600 trees do not constitute a forest, and yet the Mumbai High Court did precisely that, on the basis of a technicality and perhaps missing out on an order of the Supreme Court itself. The Forest Conservation Act 1980 does not define a "forest" but the Supreme Court did, in the 1996 Godavarman case: it ruled that the dictionary meaning of the word would apply, regardless of the title of the land or its categorisation in forest or revenue records. The Oxford Dictionary defines a forest as " a large area covered chiefly with trees and undergrowth." The court asked all states to notify forests as per this definition, and further stipulated that no non-forestry activity would be permissible in these areas without a strict process of approval. Some states complied; for example in Himachal any area of 5 hectares or more with a canopy density of 40%, by itself or in contiguity with a wooded area, would be deemed to be a forest, in Gujarat it is 2.5 hectares. Unfortunately most states have not done so, including Maharashtra, even 24 years down the line. Their nefarious motive is clear: by not defining forest areas they can continue to divert valuable forest land for mining, industry, dams, real estate development etc. without seeking environmental approvals that forests would attract. Rent seeking would continue to flourish while the environment would continue to be devastated. It's happening in the Aravalis, in Jharkhand and Chhatisgarh, in the Western Ghats.

  Aarey is the last remaining green lung of Mumbai and covers an area of 1287 hectares, with an estimated 500,000 trees on it., abutting the Sanjay Gandhi national park and the Mithi river. It is home to Adivasis and is rich in wildlife. However, it remains an undefined area, but the government's deliberate and venal lethargy in defining it does not make it any less of a forest. The metro car washing shed proposed on it is in the Red category of industries- that is, most polluting- and the millions of liters of toxic water from the washing activity ( mixed with oil, grease and sludge) is bound to leach into the soil of the forest and also the river. The project should never have been allowed in the middle of Aarey. In fact there were eight other alternative sites the BMC or the MMRCL could have chosen from, including the Backbay Reclamation area and the Kanjurmarg marshes, but they opted for Aarey because it was the "cheapest" as no price is ever attached to the natural environment in India: trees are only priced at their current wood value, not for the far more important ecological services they provide, and that too for a life span of 50 to 80 years. If these values were also factored into the project cost then perhaps forest areas would not be the first choice for industrial projects.

   It boggles the mind that the High Court did not consider these aspects but chose to resort to the technicality that since Aarey had not been categorised as a forest by the state govt. it did not merit any protection. In effect, it rewarded the state govt. for NOT DOING SOMETHING IT WAS DIRECTED BY THE SC TO DO IN 1996, VIZ. DEFINE WHAT CONSTITUTES A FOREST AS PER THE COURT'S "DICTIONARY MEANING" INTERPRETATION.

   The High Court further concerned itself with the procedural aspects rather than the merits of the petition, loftily noting that the petitioners " had lost touch with the procedures to be followed": since  the issue of declaring Aarey as a forest/ eco-sensitive area was pending before the SC and the NGT, therefore the petitioners should seek relief there- " sink or swim" there, I believe were the exact unguent words. This raises two points. One, if the matter was still pending a judicial determination then why was MMRLC allowed to go ahead with the cutting of the trees on the next two nights? Surely the correct course would have been to stay the fellings till the higher courts decided the matter? And secondly, my lordships, it is not just the petitioners who will "sink" if Mumbai's last remaining green tract is destroyed, it will be the whole city, including the High Court.

   The Supreme Court has of course stayed the felling of trees now, in an intervention which must be appreciated. But the order is practically non est- meaningless and without any significance- since the trees have already been slaughtered. The govt. counsel in the SC triumphantly stated( crowed?) that 2141 of the required 2185 trees had already been cut, they did not need to cut any more, and now the construction work on the shed will begin. As has become almost the rule now, the govt. has presented the court with a fait accompli which it will be happy to accept. Don't rock the boat( or the bench) appears to be the current motto.

  It is not just a question of the 2141 trees that have been massacred in the night of the chainsaws. The court should have recognised the govt's intentions for what they really are- salami tactics, chipping away at the forest a few hectares at a time. Aarey has already lost a large part of its priceless greenery to the Aarey Milk Colony and the Filmcity ( 600 acres); it was time now to draw a red line. For the plain truth is that India has never had a government so unmindful of the natural environment, willing to sacrifice it all for a blind pursuit of the GDP gods. There is enough testimony to this in the almost total dismantling of the environmental approvals regime, felling of trees in Chhatisgarh, Uttarakhand, Aravalis etc. for mining, unnecessary highways, real estate development, dams, failure to declare the ESZ ( Environmentally Sensitive Zones) in the Western Ghats as recommended by the Gadgil and Kasturirangan Committees, ramming roads through tiger reserves, denotifying sanctuaries for the Ganga Waterway, and so on. All this is hidden under the bluster of grandiloquent announcements and fudged statistics which the world is now beginning to see through.

   Given the collapse of all other forms of opposition and checks to the state it is now only the judiciary that can act as a brake. It has had many opportunities to do so but has not seized them, including the 53000 mangroves being slaughtered for the Bullet train, the 40000 deodars for the Char Dham highway, the desecration of the Yamuna flood plains for the Art of Living jamboree. It is no longer about maintaining a balance between the imperatives of the environment and "development", as it would like to believe: the need now is to correct the imbalance which is destroying the planet. Our courts will be doing a  great dis-service to the ecology by laying more store on procedures, technicalities, choosing to believe the assurances of the government. As Aarey shows, the government deals with a marked deck and speaks with a forked tongue. The time for sitting on the fence is now over. The judiciary needs to be more proactive in saving the environment, it cannot continue to look at its wanton destruction through the prism of legal technicalities and procedures. It needs to dispel a worrying perception that it is reluctant to take on the government of the day in such matters. After all, judges too reside on the same planet as the petitioners. In any struggle between right and wrong, professing neutrality means siding with the wrong. In the final analysis the majesty of the law is but a legal fiction and is as nothing before the majesty of Nature, which is the reality. In matters of the natural environment there is no place for the dictum- "Nemo judex in causa sua" ( nobody should be a judge in his own cause)- for when this boat sinks there will be no survivors.

     

IAS RESIGNATIONS--MUCH ADO ABOUT NOTHING ?

                            IAS RESIGNATIONS--MUCH ADO ABOUT NOTHING ?

   A recent spurt in resignations by some IAS officers is attracting media and political attention. A BJP leader has advised these officers to go to Pakistan, which is the normal reaction from this party to anyone who dares to differ. Of graver import is an interview by Jawhar Sircar to Newsclick on the 23rd of last month. Mr. Sarkar, who has served as Secretary, Culture and the Chairman of Prasar Bharti till he hung up his well worn boots in 2016, is among the very few articulate and erudite retired officers from this service who have the courage to speak up, and is well worth listening to. He sees in these resignations a shadow of hope, a pushback from the IAS against the increasing dictatorial tendencies of the present Union Government. He expects more resignations to follow as officers are forced to choose between the Constitution and the unlawful proclivities of a vindictive government that will brook no alternative view. How correct is his assessment?

   Before we do so, however, it will be useful to recall the context of this debate. So far five IAS officers have resigned: Subhash Garg ( Gujarat), Shah Faesal ( J+K), Shashikanth Senthil  (Karnataka), Kannan Gopinath( Kerala), Kashish Mittal ( AGMUT). They are not all conscientious objectors, however. Mr. Garg was the all powerful Finance Secretary - the demonetisation man- and had no option but to quit when he got his come-uppance for proposing a sovereign, foreign loan in the Budget. Mr. Mittal too was not driven by any ideals: unwilling to give up a cushy assignment in Delhi, he put in his papers when he was transferred to the dreaded north-east. We need not shed any tears for this duo. But the other three- all youngsters with barely fifteen years of service between them- are perhaps the gentlemen Mr. Jawhar Sircar speaks of, officers who still retained in large measure the ideals, values and professionalism with which they had joined service. All three have left no doubt whatsoever as to why they quit: undemocratic functioning of the union government, denial of basic freedoms, trampling of human rights.

   There is also a second context: the manner in which the BJP government is systematically dismantling the civil and central services in order to recast them in its own image. All other services have already gone belly up, as have the so called autonomous institutions- CAG, RBI, ECI, CBI, SSC, Revenue, ED and the dozens of others; the judiciary too is well on its way down this slippery slope. The IAS needs a little bit more effort to be brought to heel, partly because it functions under a dual control- the centre and the state- and the former cannot claim exclusive rights over it, and partly because its members are descended form the ICS and can still recall a Seshan, a Noronha, an NC Saxena or a Butch, and some still try to live up to this pedigree.

   The political onslaught is from all sides: rules have been/ are being amended to change the system of assessment and allotment of services and cadres; lateral inductions being made to ensure the loyalty of such appointees to only one party, even UPSC question papers are being realigned to project the BJP's ideology. ( HW channel recently revealed one such question in a paper, it goes like this- " What are the challenges to our cultural practices in the name of secularism?" The message to prospective examinees is clear: start thinking like the BJP if you want to do well in the competition.) Crucial appointments are being made by-passing existing codes, as in the appointment of the Chairman, Staff Selection Commission. " Inconvenient" persons are being eased out, pliable collaborators rewarded with sinecures. Read my lips or you  will be treated like the Lavasa family, is the not so muted message. The centre's  "cadre controlling authority" powers are being exercised to override, in many cases, a state government's control. The CBI is always lurking in the wings when push comes to shove.

   In this suffocating, and worse, context three young officers decided to quit rather than become willing collaborators. But is it the beginning of a trend, as Mr. Jawhar Sircar feels, or is it just a lonely cry in the wilderness? On this I'm afraid I have to disagree with my batchmate .

  The IAS is no longer the service it was even twenty years ago. It has been hollowed out from within by the wrong kind of inductees- the KOTA type of engineering, medical and management graduates who are decidedly intelligent but lack a broader vision of history, of liberal traditions, humanism and social empathy. They are driven by algorithms and not by the values of a Gandhi or a John Stuart Mill, by the hardware of material aspirations, not the software of a troublesome conscience. It is not their fault, they are products of an uncaring, amoral if not immoral society. They are the products of an educational system that prioritises material success and power as the new religion and the Apex scale as the new deity: there is no other meaning to life. Their belief in the utilitarian principles of today is total; they have no self-doubts, they exemplify what Mills called " the completeness of limited men."                                                                 Perhaps because of their training in the dog eats dog IIT type of exam system, they are competitive to a fault which is why there is no esprit de corps left in the IAS- it is every man and woman for him/herself and the CBI take the hindmost. There is no rallying around when one of its members is subjected to unfair persecution- like a herd of wildebeest, they stand around observing the massacre till it's the turn of one of them to be on the menu. The IAS Associations can do little to protest, they are mere choir boys who can just about organise a farewell party when pushed to their outer limit. This suits the government of the day just fine. Politics and politicians have made deep inroads into the vitals of the service by holding out the promise of lucrative postings and post retirement sinecures, balanced with the threat of a departmental inquiry or FIR. There was a time when the senior officers mentored the junior ones, and trained them in the sterling ethos of the service. No longer, for the honour of serving the nation has now been replaced with naked ambition and self aggrandisement. They are now taught how to survive, not how to serve. They are like frogs in that famous experiment: comfortable in their slowly heating cocooned saunas, making no attempt to get out while they can, till it reaches boiling point and then it's too late.

   Don't get me wrong. There still are plenty of fine officers, but they are a silent minority and today its all about majoritarianism. And the IAS alone should not be singled out for blame either. Even the heavily insulated defense services have caved in and can no longer distinguish between the legitimate civilian  control of the armed forces and the wholly unconstitutional political control. They too have fallen in line like a platoon on the parade ground. The IAS has not yet become the Praetorian Guard, but it will soon. I do not see many more Senthils or Aruna Roys who stand by their convictions. It's more comfortable, and less dangerous, to have the courage of others' convictions- especially that of your political bosses. One swallow does not a summer make, but it does make one wonder- where have all the other swallows gone?

THE GHOST OF ADM JABALPUR STILL HAUNTS US.

                                    THE  GHOST  OF  ADM JABALPUR  STILL HAUNTS US.

     1976 is a year the Supreme Court would like to forget because that is the year it reached its nadir. Legitimising Mrs. Gandhi's imposition of Emergency, it ruled in Shashikant Shukla vs ADM Jabalpur that " under emergency provisions no one could seek the assistance of any court in India to try and save his life, liberty and limb." In other words, a citizen did not have a fundamental right to life or liberty when emergency was declared. All habeas corpus petitions against the thousands of arbitrary arrests were dismissed.The four judges who authored this outrageous and disgraceful judgement duly received their reward as all of them subsequently became CJIs. The lone dissenting judge, HR Khanna, was superseded for the post of CJI and resigned, with honour, something which the other four will be denied forever by history.

   In the forty years since then it seemed that the court was correcting itself and making amends for 1976 by standing up to the executive. But in the last five years or so we have once again begun to see the chinks in its armour when confronted by a rampaging executive: the Collegium is unable to enforce its recommendations( just today it has capitulated to the govt. and revised Justice Kureshi's posting from Madhya Pradesh to Tripura), " sealed cover" communications between the government and the court has become the order of the day, enforcement agencies have run amuck with no check by the judiciary, senior and respected lawyers have made public the irregularities in the allotment of cases to various benches, a perception is gaining ground that the judiciary has become totally unaccountable, whether it is the quality of their judgments or their personal conduct. The politician smells blood: the BJP Delhi chief earlier this year defied the SC by breaking open a house sealed by the Court's committee and got away scotfree, last month the Law Minister, no less, dismissed the Collegium's recommendations by asserting that his Ministry was " not a post office", last week a UP Minister proudly boasted that " both the Ram Mandir and the Supreme Court are ours!", and on the 17th of this month Mr. Subramaniam Swamy even pre-empted the court by announcing that the Ram Mandir judgment would be delivered before 15th November and it would be in favour of the Hindus. Displaying a tolerance and benevolence the common litigant rarely gets to see, the court has taken no action against any of these contemnors.

   And now we have the tragedy playing out in Kashmir over the past six weeks, and with every passing day of state repression the judiciary appears to be heading for a new nadir. In many ways the lockdown in the valley of Kashmir is worse than the Emergency- not just a few thousands but millions have been virtually imprisoned for six weeks now, schools are not functional, mobile network is cut, businesses are shut, troops occupy virtually every square foot of space, unknown thousands have been detained and no one knows what the charges against them are. Unlike in the Emergency, now only a particular people, a specific region is coming in for all this heavy handed state attention. One would have expected that the Supreme Court would not allow the ghost of ADM Jabalpur to rise again from the grave.

   That expectation is being belied. It has been more than six weeks now and a large number of habeas corpus petitions, challenges to the shutting down of the media in the valley, and writs against the J+K Reorganisation Act have been filed. In a shocking expose by the Indian Express yesterday, it has been revealed that as many as 252 habeas corpus petitions have been filed in the J+K High Court since the 6th of August but not one has been decided. 147 of them are still at the admission stage and 87 are listed for orders. The state is routinely being granted time to file replies, as much as four weeks. This defeats the very purpose of a habeas petition. But the courts have shown no urgency in deciding them. The Reorganisation Act has been referred to a constitution bench which is yet to take up the matter. Only one habeas corpus case has been decided, that of the CPI leader Mr. Tarangini. God only knows where the others are languishing. Three or four well connected politicians have been allowed to visit Kashmir- why not the other citizens of the state, the hundreds of students stranded in other cities outside the state, running out of funds or news of their family? Why has the Kashmiri press not been unmuzzled yet? Why are no questions being asked about this extended suspension of the internet and mobile telephony, fundamental to the very concept of free speech and liberty ? Why is the Court accepting at face value the govt's "national security" argument and giving it so much latitude to "restore normalcy"?

   Contrast this with how the higher judiciary in the UK is conducting itself in the legal challenges to the suspension of the British Parliament by Mr. Boris Johnson on the 29th of August. Within a week of this, three High Courts ( Scotland, Ireland and London) ruled on the matter, two upholding the govt's action and one striking it down. The subsequent appeals have already been argued and heard in the country's Supreme Court, which has announced that it will deliver its verdict next week. All signed, sealed and delivered in three weeks! This is how vital constitutional matters should be decided in mature judicial systems, this is how the courts should function as a bulwark between a rampaging executive and the defenceless citizenry, this is how genuinely autonomous institutions should function in a democracy.

  It appears that the ghost of ADM JABALPUR is alive and kicking. Kashmir is the judiciary's last opportunity to exorcise it- there won't be a third chance.

THE SKY CANNOT BE THE LIMIT.

[ This piece was published in THE WIRE on 4.9.2019, with slight editing, under the title: THE AVIATION SECTOR'S RAMPANT GROWTH MUST BE REINED IN.]

                                    THE  SKY  CANNOT  BE  THE  LIMIT.

   It’s just not working. The sixth Global Environment Outlook ( GEO6) report released on 13.3.2019 warns that even if countries achieve the nationally determined contributions ( NDCs) under the Paris accord 2015- which they are far from doing- this will be just a third of the mitigation needed to restrict rise of global temperatures to 1.5-2.0 degress celsius by 2100. In fact, it has stated that this limit will be reached by the middle of this century and is likely to reach 2.7 to 3.0 by 2100. To prevent this  emissions have to drop by 40%-70% globally by 2050, and to net zero by 2070. Instead, they went UP by 3% in 2017. We are staring at environmental Acopalypse.

   The problem is simple: the world, especially the developed countries, simply has to change its lifestyle, its reckless consumption patterns, move to a more simple and sustainable way of living. It has to waste less food and water, travel more sensibly, reduce its ever increasing dependence on power guzzling technology to make life more easy going and convenient, shop less, use recycled materials rather than plunder more from nature. It has to shift from consumption to “ nonsumption” and accept “minimalism” as the biggest NDC of all. One area of human activity which could do with more attention on this score is aviation, which poses a looming threat that most people are not even aware of.

   The global aviation sector accounts for 3.5% of total emissions, and in absolute terms the figure is expected to reach 1.250 billion tonnes by 2030 because of its continued dependence on fossil fuels. It has been allowed to grow like an unchecked carcinoma because it has been excluded from any restrictions under the Kyoto protocol; it is growing at 7.5% per annum ( the figure for India is 17%); the total number of flyers in 2017 was 4.1 billion- in other words, every second person in the world is a flyer!  There are 42000 commercial flights a day in the USA, 34000 in Europe. If this did not cause enough pollution, the uber rich add more than their fair share by the indiscriminate use of private jets: according to the website airliners.net there are between 25000 and 30000 private aircraft globally. The future projections are even more worrying: according to a study by Boeing 39600 additional aircraft shall be required by 2038, doubling the current number. The number of flyers shall grow to 7.8 billion. Just recently there was widespread criticism when the BBC revealed that 1500 private jets were used to ferry world leaders to Davos in January 2019.

   It’s not just emissions that concern us here; more flyers mean more airports, more runways, for which thousands of additional hectares of land has to be acquired. This land has to be denuded of all green cover, right next to urban centres which need trees most; thousands of families are displaced and fertile agricultural land is concretised with serious implications for recharging of ground water. ( The Civil Aviation Ministry in India has just announced the construction of 20 more airports). Acquisition of 5000 hectares of prime agricultural land has already commenced for Delhi’s second airport at Jewar in neighbouring UP; hundreds of farmers will be displaced. 4500 acres of priceless wetlands ( including 70 acres of mangroves) will be devastated for Mumbai’s new airport which is coming up in total violation of all CRZ rules. This can only accentuate Mumbai’s annual flooding woes and destroy the habitat of at least 250 identified bird species.Separate terminals and even private airports are being built for the rich and their jets. How long can this wanton decimation of nature continue ?

   This cancerous growth of a sector that caters essentially to the rich at the cost of the poor has to stop. Mitigation measures will not work- a recent report of the US Govt. Accountability Office( the counterpart of our own CAG) has stated that measures such as technical innovations in air-frames/engines, improvement in fuels, mandatory emission reduction targets or even tax on emissions will be insufficient to curb the expansion of the aviation sector. Governments all over the world have to find more draconian and innovative policies to rein in this monster.

   They should stop building more runways and airports, and if they do not, then residents of the areas effected should oppose them. This shall automatically restrict the number of flights. (A struggle has been going on for the last ten years to approve a third runway for Heathrow, with Londoners opposing it tooth and nail.) Railway systems should be upgraded to offer an alternative almost as fast but less expensive. In this context the plan to introduce 160 super-fast trains in India over the next two years is a welcome step, but the identification of the routes should not become populist: the emphasis should be to connect metros and routes where there is maximum air traffic. A single train can obviate the need for at least six wide bodied aircraft. Rail tickets should be subsidised: after all, if the govt. can spend tens of thousands of crores on constructing and maintaining airports, it should not balk at this incentive. A heavy carbon tax should be imposed on all air tickets to bring down demand; this would also recoup the subsidy on rail tickets. Private aircraft should be banned altogether: why should someone be allowed to pollute the air just because he has the money? The natural environment is a common heritage and everyone has just one share in it, it is not a corporate entity in which the rich can be allowed to have a “controlling interest”.

   A global pushback against rampant expansion of this sector has begun. There was a public outrage when the BBC revealed that 1500 private jets were used to ferry corporate honchos to this year’s Davos summit, with demands that they should use commercial flights instead. Megan Markel, the Duchess of Essex, had to face widespread criticism when she too flew the Atlantic in a private jet in February to attend a baby shower in New York. Even more interesting, BBC has reported that an environment group in Sweden has launched a campaign to persuade people not to take a flight in 2019; their target is to obtain 100,000 pledges this year: by March they had obtained 10000 pledges. They make a very important point: governments cannot do everything- citizens themselves have to exercise choices that are in the best interests of the planet and themselves. For, as the poet Mahmoud Darwish lamented:

“ Where should we go after the last frontiers?

   Where should the birds fly after the last sky?”

A REVIEW OF 'SPECTRE OF CHOOR DHAR" BY AVAY SHUKLA.

                                                     BY    ANIL     PRADHAN

                                           

 [ VISHWAKARMA PUB. AMAZON. 136 PAGES. RS. 180.00 ]

Avay Shukla writes with a flair which is unmatched. A true Nature Lover, the ten stories in his book, 'Spectre of Choor Dhar', weave a magic tapestry with words that transmute ordinary natural scenery to scenes of wonderment.

The raconteur is Onkak Yadav, the retired Chief Secretary, better known as the Collector, who lives in his cottage at Namhol village. The setting is the Officers' Club in the district headquarters of Bilaspur town near Shimla. The motley crowd consists of the District Collector, the Sub Divisional Magistrate, an IAS Probationer, the Executive Engineer, the Chief Medical Officer, sometimes the Superintendent of Police and a businessman or two. To this assorted crowd, the Collector recounts his tales of yore, enlightening them about places, myths, proclivities and a few home truths.

The writer's choice of words marvellously echoes the scenery that he describes. Early in his first story he writes, "Bilaspur's USP, however, is the picturesque Gobindsagar lake, curling around the town in a loving embrace as if loath to part with its companion of centuries past." A little later in the same story, describing the avalanche of rain, he says, "Claps of thunder blasted the stillness and echoed around the crags like some menacing symphony. The whole atmosphere was still and inert as if waiting for the arrival of some primordial force. And then the force arrived - huge dollops of rain cascaded down in their millions of litres ....."

The writer’s knowledge of his locale is astonishing. Every trek worth knowing in the state of Himachal Pradesh is listed. Every mountain and valley and stream is mapped out. In 'The Lost Treasure of Dibbi Bokri', he writes, "The Parbati river, as you know, originates from the glacial Mantalai lake just below the Pin Parbat range ...... It cascades furiously down its narrow, thickly forested, habitation-less valley .... before it confluences with the Tosh stream at the village of Pulga." In 'The Devta of Jiwa-Nal', the local legend of the Pandavas' wanderings in the upper reaches of the state is peppered with accurate descriptions of the locale.

Each story has an element of palpable suspense. In 'The Judgement', till almost the last paragraph we do not know how the wily judge will negotiate between the twin dangers of Scylla and Charybdis, between the death sentence and life imprisonment, while fulfilling his bounden duty with the utmost regard to rectitude and fair play. The ending of 'Ambush At Chanshil Pass' is chilling while that of 'The Lost Treasure Of Dibbi Bokri' and 'The Spectre Of Choor-Dhar' are both Hitchcockian. Equally unexpected is the way the lanky, expressionless, penitent representative from the Naxalite region is dealt with in the 'The Midnight Visitor'.

Cynicism is the leitmotif in 'The Cave Man Of Sainj Valley', the background being the Teachers Awards Day. The Collector laments that, "It's sycophancy and networking that brings awards". Be it the Republic Day or Independence Day Awards, or even the Teachers' Day Awards, the rule is, the more senior the more awards. The misandry and political give-and-take forms the core of the story, 'The National Park', so reminiscent of the hilarious but cynical BBC serials, 'Yes Minister' and 'Yes Prime Minister'.

As the writer confesses in his 'Introduction', "... his stories reveal everything about him". His love for the outdoors and for long, lonely, arduous treks, his intense passion for Nature, his utter and unwavering belief in Destiny, are all there splashed across his ten stories. The last tale, 'The House That Died Of Grief', is an intensely personal slice of the author's life. Yet, there is no rancour or bitterness at the way things are. Rather, there is a certain mirth, a certain joy mingled with a grin and an indulgent smile at the varied and multilayered dimensions of life in this world of ours.

At times, the reader may feel bogged down by the language used by the Collector while narrating his anecdotes. Then again, how else will a retired bureaucrat speak but in measured tones, using words which the assembled crowd of district officials encounter in their daily grind of officialdom. They don’t bat an eyelid .... and neither should you.

[ Anil Pradhan retired from the IPS as Director General of Police, Meghalaya. He lives happily in Shillong.]