The Hindu Editorial Analysis
12 March 2020

1) For a level playing field: On election reforms


  • CONTEXT:
  • Even as electoral democracy has taken strong root in India, there is no gainsaying the fact that some unhealthy patterns have emerged.
  • Voter electoral participation has remained robust. Poor have been voting in large numbers.
    • Candidates and winners in Assembly and Lok Sabha polls have largely been from affluent sections — some even with several criminal cases against them.
  • With elections becoming expensive, most parties have sought to field richer candidates irrespective of their merit in representing public interest.
  • Current campaign finance regulations by the Election Commission of India that seek transparency on expenses by party and candidate, and prescribe limits on a candidate’s expenditure, have not been sufficient deterrents.

 

  • CAPABILITY OF CANDIDATE:
  • Poll results have tended to be a function of either party or leader preference by the voter rather than a statement on the capability of the candidate.
  • In many cases, capable candidates stand no chance against the money power of more affluent candidates.
  • News that the ECI is considering tightening ways to cap the expenditure of parties is therefore quite welcome, as it should provide a more level playing field.
  • But even this can be meaningful only if there is more transparency in campaign finance which suggests that the electoral bonds system, as it is in place now, is untenable.

  • REGULATING SOCIAL MEDIA:
  • The ECI has also suggested bringing social media and print media under the “silent period” ambit after campaigning ends.
  • Regulating social media will be difficult and it remains to be seen how the ECI will implement this.
  • The ECI’s plans to introduce new “safe and secure” voting methods, however, need thorough scrutiny.
  • The use now of the EVM as a standalone, one-time programmable chip-based system, along with administrative safeguards renders it a safe mechanism that is not vulnerable to hacking.
  • Any other “online” form of voting that is based on networked systems should be avoided.
  • The idea of an Aadhaar-linked remote voting system that is sought to be built as a prototype could be problematic.
    • Considering the unique identity card has excluded genuine beneficiaries when used in welfare schemes, not to mention the inherent vulnerabilities in its recognition mechanisms.

 

  • WAY FORWARD:
  • Two key measures are missing from the recommendations — the need for more teeth for the ECI in its fight against “vote buying” and hate speech.
  • Increasingly, parties have resorted to bribing voters in the form of money and other commodities in return for votes, and while the ECI has tried to warn outfits or in some cases postponed polls, these have not deterred them.
  • In times when hate speech is used during elections, the ECI has only managed to rap the offending candidates or party spokespersons on the knuckles.
    • But stricter norms including disqualification of the candidate would be needed for true deterrence.
  • ECI’s plans to strengthen the electoral process are welcome, but some require scrutiny.

 

2) A royal somersault: On Jyotiraditya Scindia’s defection


  • CONTEXT:
  • Jyotiraditya Scindia’s departure from the Congress and his arrival in the BJP reveal many traits of both parties and the man himself.
  • That he is termed as the lost future of the Congress is itself an irony.
  • Mr. Scindia’s switch to the BJP poses questions about the politics he professed until now.
  • But a more intriguing question is whether the party was intuitive in not humouring any further someone who could so effortlessly cross over to the opposite ideological extreme.
  • His aunt and BJP leader Yashodhara Raje Scindia likened his switch to a “homecoming”.
  • In his crossing over, he also betrayed a popular mandate that he himself worked to win for the Congress in Madhya Pradesh in 2018.

  • COLLAPSE:
  • The Kamal Nath government is likely to collapse, and Shivraj Singh Chouhan who lost the poll appears set to return as CM with Mr. Scindia’s collaboration.
  • As for the Congress, which needs every morsel to keep itself alive, it can ill-afford the loss of a State government and an urbane face who has a wider appeal.
  • With his decamping, a new template is on offer for other Congress leaders who are ambitious and impatient at the same time, and are free of the force of conviction.
  • The Congress is drifting into an annihilating eddy. Its interim president, Sonia Gandhi, still its most authoritative person, will have to do what is in her command to steer it back on course.

 

  • COMMITMENT TO IDEOLOGY:
  • His exit poses two questions for the Congress — the commitment of its leaders to a core ideology, and what it can do to hold itself together in this moment of crisis.
  • Surely, the party needs to promote a new crop of young and rooted leaders from the country’s social diversity, who find it a vehicle of their aspirations and political empowerment.
  • Mr. Scindia’s formal ordination as a Hindutva torchbearer will not automatically raise him to a dominion role in a party so overwhelmingly under the personalized command of Prime Minister Modi and Home Minister Amit Shah.
  • True, he was an enthusiastic supporter of the abrupt nullification of Jammu and Kashmir’s special constitutional status last year, but he had also openly called out the BJP government’s insensitivity and inefficiency in controlling the communal violence in Delhi in February.

 

  • SAFFRON STRIPES:
  • Mr. Scindia will have to earn his saffron stripes, and the rites of that initiation will be prolonged and testing.
  • The BJP, and the Modi-Shah combine that rail against dynastic and entitlement politics, will have to spin a new story for Mr. Scindia, who will be the fifth Gwalior royalty to adorn a formal position in the party.
  • His father, Madhavrao Scindia, who spent most of his life as a Congressman, had started his career as a Jan Sangh leader.

 

  • CONCLUSION:
  • His lineage might be a burden of sorts in the anti-elite politics that the current BJP leadership claims to promote.
  • But the aged association of his family with Hindutva politics could make him eligible for a welcome that the RSS usually does not offer to latecomers.
  • As he said, it will be a new beginning.

 

3) Fail-safe exit for America, but a worry for India


  • CONTEXT:
  • The recently negotiated peace deal between the United States and the Taliban is unlikely to bring peace to Afghanistan.
  • It is geopolitically disadvantageous for India, and has serious implications for our national security.
  • The terms of the deal & the manner in which it was negotiated indicate that it was more about providing an honorable exit route for the Trump administration from US’s military campaign in Afghanistan than about ending violence in the country.

  • POST DEAL:
  • Within 24 hours of the much-publicized deal, violence and major disagreements about the deal began erupting in Afghanistan.
  • The Taliban’s negotiated from a position of strength, the Trump administration from weakness and little political will, and that the Ashraf Ghani administration was by and large a clueless bystander in all of this.
    • It means that the country is perhaps on the verge of yet another long-drawn out and internecine battle.

 

  • GEOPOLITICAL FUTURES:
  • When the Taliban came to power in the mid-1990s in Kabul, it had few backers in the world, nor was it seen as a useful commodity by the great powers or the states in the region, except for Pakistan, Saudi Arabia, and the United Arab Emirates.
  • And the international community was almost united in offering a normative pushback against the violent outfit.
  • As a result, the Taliban was at best reluctantly tolerated until it messed up towards the end of its regime in Kabul.
  • The Northern Alliance, supported by countries such as Russia and India, kept up its military pressure against the Taliban while it was in power.
  • The situation today, at least for the moment, is perhaps the exact opposite of what was the case then.
  • The Taliban today is also more worldly-wise and might have learned, during its exile, to deal with the international system and play the game of balance of power.
  • More so, it may not necessarily be a puppet of the Pakistani deep state once it returns to power.

 

  • LEGITIMACY:
  • Given the war fatigue and the geopolitical stakes in Afghanistan, most of the key players in the region and otherwise have been in negotiations with the Taliban one way or another, and for one reason or another, lending the terror group certain legitimacy in the process.
  • Today, the Taliban is the flavour of the season — anyone desirous of a stake in Afghanistan or does not want its domestic turmoil to spill over into their country would want to keep the Taliban in good humour.
  • There is another reason why the Taliban has many suitors — because the U.S. withdrawal by and large suits everyone, be it China, Pakistan, Iran, or Russia.
  • Suddenly, the Taliban appears to have been forgiven for its sordid past and unforgivable sins because for most of these countries, the U.S. is the bigger challenge than the Taliban.

 

  • INDIA’S AFGHAN PURITANISM:
  • The only state that seems to be on the losing end, unfortunately, of this unfolding game of chess and patience in Afghanistan is India.
  • It did not have to be this way: if the earlier Taliban regime was anti-India, it was also because India had militarily supported the Northern Alliance that kept up the military pressure against the Taliban.
  • Today’s Taliban does not share the same animus for New Delhi. New Delhi, therefore, could have rejigged its approach to Taliban this time around.
  • However, it put all its eggs in the Ashraf Ghani basket, even on the eve of the signing of the peace deal in Doha.
  • New Delhi also, for most intents and objectives, adopted a puritanical approach to the Taliban, neither reaching out to the Taliban nor exploiting the fissures within it.

 

  • Reasons: One, because it did not want to irk the elected government in Kabul and two, because it adopts a moralistic approach to dealing with extremist groups in general — not a smart diplomatic strategy.
  • This moralistic attitude, also a diplomatically lazy one, that be it Pakistan or Afghanistan, India would only talk to the legitimate government in that country, is a self-defeating position.
  • The world is not that perfect, nor are states all that uniform, created in the shape and image of the Westphalian forefather.
  • Smart statecraft, therefore, is dealing with what you have and making the best of it.

 

  • RESULT:
  • As a result, India’s relations with Afghanistan will take a hit in the immediate aftermath of the deal. Here is why.
  • With China, India’s strategic adversary, deeply involved in the geopolitics and geoeconomics of the region, including in Afghanistan, India’s traditional ability to influence the region’s political and security outcomes will be severely limited.
  • This will be further exacerbated by the withdrawal of the U.S., India’s closest friend, from the region.
  • Other regional actors in Afghanistan are also less friendly towards India than ever before:
    • Iran feels let down by India given how the latter has behaved towards it at the behest of the Americans;
    • for Russia, India is only one of the many friends in the region — the exclusivity of Russia-India relations is a thing of the past — and;
    • Pakistan would consider targeting India a fair game.
  • Unless New Delhi carefully envisages a counter strategy, these factors will increasingly push India into a geopolitical tough spot in the region.
  • It should worry us that our political class is focused on domestic politics while the region is becoming ever more uncertain and evidently unfavorable to us.

 

  • TALIBAN AND KASHMIR ANGLE:
  • While the direct physical impact of the Taliban’s return to power in Afghanistan on Kashmir will be negligible, this will not be without serious implications for the unfolding situation in Kashmir’s restive regions.
  • The most important impact is going to be psychological. Disenchanted Kashmiri youngsters, and there are a lot of them, will interpret the events in Afghanistan as follows:
    • “If the mighty superpower USA could be defeated by the Taliban in Afghanistan with help from the Pakistan army, defeating Indian forces in Kashmir won’t be impossible after all.”
  •  This enthusiasm is completely misplaced, but that is not the point. That the Kashmiri youth might pick up guns drawing inspiration from the situation in Afghanistan is indeed the point.
  • Second, the U.S.-Taliban deal cannot survive without Pakistan’s assistance towards ensuring its success, and the U.S. and its allies recognize that.
  • Such a recognition of Pakistan’s utility provides the country with an ability, as and when it wishes to, to up the ante in Kashmir.
  • Third, New Delhi’s official statement which describes Afghanistan as a “contiguous neighbour” — meaning that India considers Pakistan-occupied Kashmir (PoK) a part of its sovereign territory — will make Pakistan and China sit up and take notice.
  • Recall that India also made a similar claim about Aksai Chin in the wake of its August decision on Kashmir.
  • Erstwhile rhetorical claims on PoK and Aksai Chin have suddenly assumed lot more geopolitical significance today making conciliatory approaches to conflict resolution ever more difficult.

 

  • VICTORY OF FUNDAMENTALISM:
  • The return of the Taliban, however unavoidable that may be, signals a victory of religious fundamentalism in the region and it will have serious implications for the region as a whole.
  • Not only is the Taliban’s return a victory for a puritanical religious outfit, it is also an act in legitimizing it.
  • More so, a new Taliban-led dispensation in Afghanistan will be far more accepted by the international community than the last time around (1996 to 2001)
    • It also means increased acceptability for such regimes in general, either out of necessity or as a function of geopolitical calculations.
  • That the Taliban mass-murdered its opponents into statehood in the 21st century and that this might provide potential inspiration to other outfits in the region and outside should indeed worry us.

 

4) For a universal status of personhood


  • CONTEXT:
  • A series of judgments delivered by the Gauhati High Court over the course of the last few weeks has brought into sharp focus the utter brutality of the regime governing the Foreigners’ Tribunals in Assam.
  • These verdicts entrench the establishment of an unreasonable burden on people declared as deemed foreigners by seeking from them a standard of proof that is wholly incommensurate (out of proportion) with the consequences that befall the ultimate finding.
  • From a reading of the judgments, the standard, as it were, is so disproportionate that it is virtually impossible to glean what a petitioner actually has to do to succeed.
  • Indeed, the chances of success are so negligible.
  • An analysis of 787 orders and judgments of the High Court between 2010 and 2019 shows us that in 97% of the cases, the petitioner before the court was confirmed as a foreigner.

  • INADEQUATE DOCUMENTS:
  • This statistic is scarcely surprising given the list of documents deemed inadequate for the purposes of establishing a person’s citizenship.
  • Consider the following:
  • electoral photo identity cards,
  • voters’ lists bearing petitioners’ names,
  • land revenue receipts,
  • certificates issued by the local panchayat,
  • bank passbooks,
  • permanent account number (PAN) cards and
  • ration cards.
  • Each of these has been variously rejected as proof of citizenship.
  • According to the court, not only must a petitioner adduce documentary evidence, whatever that might actually be, but they must also independently validate those documents by securing the testimony of their issuing authorities.
  • Establishing that their parents or ancestors were present on Indian soil prior to March 25, 1971 — a cut-off date distinct to Assam — is one kind of documentary evidence.
  • For example, if a petitioner produces a certificate of her marriage in an attempt to establish her lineage, and should that document be accepted by the Tribunal, the petitioner will still have to lead evidence through the authority that was responsible for dispensing the certificate.
  • Is there, we might want to ask ourselves, a more noxiously labyrinthine exercise than this?

  • ASSAM AND TRIBUNALS:
  • The Foreigners’ Tribunals (FT), which work as quasi-judicial bodies, were originally created through an executive order made by the Union government in 1964.
  • Their task was to furnish opinions on whether persons referred to them were “foreigners” or not within the meaning ascribed to the term under the Foreigners Act, 1946.
  • This legislation, which was enacted by the colonial government with a view to regulating migration into India, defines a foreigner as any person who is not a citizen of India.
  • It also accords to the government a wide-ranging power to control the entry, exit and movement of foreigners to and within the territory of the country.
  • In Assam, the FTs have played a role unique to the State’s history.
  • Typically, the tribunals there have seen two kinds of cases:
    • those concerning persons against whom a reference has been made by the border police and those whose names in the electoral roll has a “D”, or “doubtful”, marked against them.
  • The references made to the FTs in the State have arisen out of a mandate contained in the 1985 Assam Accord.
  • The agreement was a product of a student-driven movement against, among other things, immigration into the State following the declaration of Bangladesh’s independence on March 26, 1971.
  • It made a number of stipulations, including a direction to government to identify and have declared as foreigners any person who entered Assam between January 1, 1966 and March 24, 1971—the names of the persons so identified, the accord says, ought to be deleted from the electoral rolls.
  • What is more, the pact also demanded that the government identify those who came into Assam on or after March 25 of that year and have them deleted and expelled.
  • It was to this end that in 1997 the electoral rolls were revised in the State and more than three lakh individuals were marked as doubtful voters.
  • This revision was made without any prior and independent verification. Out of those left out, nearly two lakh people have already been referred to the FTs.

 

  • BURDEN OF PROOF:
  • Ordinarily, under the Indian Evidence Act of 1872, the burden of proof in any court of law lies on the person who seeks to make a claim or assert a fact.
  • This would mean that before the FTs, it is the government, which avers that a person is a foreigner, on whom the burden ought to lie.
  • But Section 9 of the Foreigners Act reverses this burden. It places the responsibility on every person referred to an FT by the State to establish before the Tribunal that he or she is, in fact, a citizen of India.
  • In 1983, the Union government, sensing the oppressive nature of the burden placed, introduced the Illegal Migrants (Determination by Tribunal) Act.
  • This law, which overrode the Foreigners Act, subtly shifted the onus to prove citizenship from the individual to the government.

 

  • SC VERDICT:
  • But, in July 2005, the Supreme Court, in Sarbananda Sonowal vs Union of India, declared the legislation unconstitutional.
  • The Court found, through an almost cavalier consideration of history and facts, that migration into Assam constituted “external aggression” against the State, and, therefore, that the Central government had violated Article 355 of the Constitution.
  • Given this, the burden to establish citizenship, the Court held, ought to always rest on the individual.
  • It is this judgment in Sarbananda Sonowal that has since served as the fundamental premise on which the Gauhati High Court has ruled on various petitions made against the verdicts of the FTs.
  • But even assuming the burden ought to lie on the individual to establish her citizenship, these rulings could still benefit, as Madhav Khosla recently pointed out, by the outlining of a sensible test on what degree or level of proof ought to be sufficient to discharge the burden.
  • However, by holding, for example, that persons suspected of being foreigners ought to not only provide documentary evidence but also have those documents attested by the authority that issued them, the Court has foisted on the petitioners a standard that is virtually impossible to meet.
  • Perhaps, the solution lies, as Gautam Bhatia has written, in an approach taken by the African Court on Human and Peoples’ Rights.
  • That is that the burden to establish citizenship might well lie on the individual, as the Foreigners Act stipulates, but once he or she has produced a basic set of documents that, on the face of things, make out a plausible claim, the onus ought to then shift to the State to rebut the evidence provided.
  • Ultimately, as the Gauhati High Court has itself held, individuals are not expected to establish “beyond reasonable doubt” that they are citizens of India.

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  • WAY FORWARD:
  • What is expected of them is to show on a balance of probabilities that they are not foreigners.
  • In such circumstances, the rational answer would be to allow the onus to shift to the State once the individual has met a basic threshold of proof.
  • This approach is, no doubt, far from perfect.
  • In a country like ours, where the weakest and poorest among us are often denied access to basic goods, requiring individuals to produce documents to establish citizenship can by itself represent an onerous demand.
  • We often see rights as universal, but as political philosopher Hannah Arendt pointed out in The Origins of Totalitarianism, to truly possess rights, individuals often need to belong to a political community.
  • In other words, “the right to have rights” is seen as contingent on citizenship. In instilling a regime where a presumption against citizenship operates, the Foreigners Act denies to the weakest among us this right to have rights.
  • It treats them as less equal beings. To reverse this damage, we must do as Seyla Benhabib has suggested. We must recognize a universal status of personhood of every human being independent of their nationality.