Round The World

New Delhi, 22 November 2019

Sri Lanka Elections

NEW DELHI RECLIBRATES STRATEGY

By Dr. D.K. Giri

(Prof. International Politics, JMI)

The island state Sri Lanka elected its 7^th President last Saturday. The clear and decisive winner is Gotabaya Rajapaksa, former Defence Secretary in his elder brother Mahinda Rajapaksa’s government. His opponent Sajith Premdasa, son of another former President Ranil Premadasa, lost by a margin of over 10 per cent.

The issues in the Sri Lankan elections are not of great concern to India, as these are their internal matters. The determining factors, however, were stability and security of the country, which were the hallmarks of Gotabaya’s campaign. Compared to the incumbent government’s inefficient rule, when the outgoing President Sirisena created  a constitutional crisis by sacking the UPFA (United People’s Freedom Alliance) Prime Minister Wickremesinghe and brought Mahinda in his place, which the Sri Lankan Supreme Court overruled, and reinstated Wickremesinghe.

Later, in October 2018, the country was shaken by a barbarous Jihadi attack engineered by ISIS on Christians worshipping in Easter. The government was accused of failing to prevent the attack despite having early warnings. Third, the government failed to carry out the constitutional reforms promised during the 2014 elections. On the contrary, Gotabaya promised national security and protection against extremism, which soothed the security anxieties of the majority Sinhalese community who voted overwhelmingly for him.

Gotabaya is also credited with finishing off the protracted civil war in the country when Tamils were fighting violently for a separate State. He is accused of war crimes, as at the last stage of the war, nearly 40,000 Tamils and their leaders were killed. He was also charged with the White Flag case when Field Marshall Sarath Foneska alleged him of murdering the Tamil fighters ready to surrender. It is another matter that he has not been found guilty of any of these crimes by Commissions set up to investigate.

What should concern New Delhi more is the perception that Rajapaksa brothers including the current President Gotabaya are pro-China! Such a perception is based on at least three developments between Sri Lanka and China. Towards the end of the Sri Lankan civil war, 2006-2009, New Delhi refused to be involved, pushing it to the Chinese embrace. Sri Lanka was provided by China with F-7 fighters, anti-aircraft guns, air-surveillance radars and armed personnel carrier etc. These weapons and war equipments contributed to Sri Lankan army’s victory over the dangerous, suicidal Tamil insurgents who fought for decades.

The second factor is Chinese investment in Sri Lanka. Beijing and Colombo signed a strategic partnership in 2013, during Mahinda’s regime. Up to 2015, China had invested $10 billion in Sri Lanka. By 2016, China-Sri Lanka trade touched $4.43 billion surpassing that of India-Sri Lanka at $4.37. The notable Chinese investment is in Hambantota port, not far from India’s shores. To maintain the debt-servicing, Sri Lanka has handed over the port to China along with 15000 acres of land for 99 years. Although Sri Lanka’s claim that the port has been given only for commercial purposes, one cannot ignore the strategic and intelligence possibilities due to the port’s location.

Furthermore, on connectivity, China is developing an airport at Matale in the constituency of Rajapaksa. It is building a network of highways across the country, namely the Katunayake Expressway and Southern Expressway. And the Chinese prompted Colombo International Financial Centre -- a self-contained Chinese smart city project is soon opening for business. This will expand Chinese commercial involvement in Sri Lankan capital.

Admittedly, Sri Lanka is aware of the risks in Chinese investment. Experts have figured out that projects financed by Chinese are overpriced. In November 2016, Sri Lankan government complained to the Chinese of their high interest rates. Japan funded ADB loans come at 0.1% interest rate whereas Chinese loan is at 6% interest although Chinese claim that it is only 2%. What is more, Chinese investment is totally in the form of loan, whereas India’s is 70% loan and 30% grant. It is no secret that China seeks to bind smaller countries in debt-traps. Sri Lanka is aware that it is heavily indebted to China.

Obviously, Beijing is conducting its expansionist foreign policy on the back of its new economic might, and cash-strapped economies in the Asian region are enticed to tap the surplus money in China. Nepal and Sri Lanka in the India-Pacific region are falling fast for Chinese support. This puts extra burden on India which has geographical proximity and closer historical-cultural ties with these countries.

How should India respond to this new development, the election of so-called pro-Chinese President elect in Sri Lanka, and re-calibrate its policies towards Sri Lanka in order to prevent it sliding further towards China? The first thing New Delhi needs to do is to remind itself of two maxims in international politics. One, that there are no permanent friends or enemies, and second, human instinct is to fall for time-tested friends rather than fair-weather ones.

India has, in cultural economic and security terms, interdependent relations with Sri Lanka. India has the India-Sri Lanka Accord of 1987, in addition to the historical relations, over 2500 years old. Basi Rajapaksa, the other brother of Mahinda, who was the campaign-in-charge of Gotabaya, had said in an interview to the Indian media, that “Sri Lanka may have economic relations with China, but in political and security matters it will turn to India”. But it may take a lot more for New Delhi to make Colombo pursue an India-first policy, both in letter and spirit. New Delhi must draw the ‘Laxman Rekha’ (red line), an appropriate metaphor for Sri Lanka and enforce it even through coercion.

New Delhi and Colombo are members in more than one regional institution – Bay of Bengal initiative of which Colombo is the current chair, BIMSTEC, Indian Ocean Rim Association (IORA) and of course the defunct SAARC. New Delhi tends to engage Sri Lanka bilaterally more for short-termism, but it should deal with Sri Lanka in multilateral forums as well although they are slow and complex. This would help Colombo shed off the small-power complex, which is often a psychological obstacle in India’s relation with all its neighbours.

The existing ties between India and Sri Lanka notwithstanding, New Delhi will have to counter Chinese incursions into New Delhi’s ‘sphere of influence’, its neighbourhood. New Delhi has taken the first correct step. The foreign minister was the first to call on the new President, who is visiting India next week, the 29^th November. New Delhi says, it had foreseen the election outcome and was prepared for it. Mahinda Rajapaksa is said to have made up with New Delhi after he had assumed and alleged that New Delhi was partly responsible for inciting the defection of Sirisena from his (Mahinda’s) tent. So, in fitness of things, New Delhi should smooth-sail with Gotabhaya.

Despite the optimism, it will not be a cake-walk for New Delhi to insulate its neighbours like Sri Lanka from Chinese economic seduction. This is where New Delhi needs to turn to its allies like Japan, USA and others who have a stake in Sri Lanka. The US has considerable interest as it considers Sri Lanka to be “a significant strategic opportunity in the Indian ocean”. Last year it extended $39 million to Sri Lanka countering Chinese investment. This is a part of $300m package Washington had set aside for South and South-east Asia to ensure a “free, open, and rule-based order in the Indo-Pacific region. US military presence in Diego Garcia is also of great help.

Likewise, India and Japan were building a deep sea container terminal in Colombo. Japan had extended $180m grant to Sri Lanka for maritime activities. India was roping in Oman to build a $3.85 billion refinery around Hambantota.

New Delhi needs to co-ordinate more with its allies to deepen its influence in the region. On its own, India could not compete with Chinese trade and investment. Hence, strategic alliance building is necessary for hedging South Asia against Chinese incursion into the area. At the same time, it needs to win over the Sri Lankan state, not just Tamils for better relations. It has such soft spots in its foreign policy towards Sri Lanka and Nepal for Tamils in the former, and the Madhesis in the latter. New Deli has erred in overstating the soft spots in the past; it should leave them as the internal matters of those countries and re-focus on bilateralism. This is not too radical a shift to make. Is it? ---INFA

(Copyright, India News & Feature Alliance)

Open Forum

New Delhi, 21 November 2019

Quota in Promotions

INGENIOUS ROSTER SYSTEM

By Dr. S. Saraswathi

(Former Director, ICSSR, New Delhi)

The practice followed in fixing seniority for awarding promotions on the basis of reservations in State government services in Tamil Nadu was struck down as unconstitutional by the Madras High Court a few days back. It is no surprise or shock for those following the course of Reservation Policy which is a continuous battle fought in courts. The concerned sections in the Tamil Nadu Government Servants (Conditions of Service) Act 2016 had been enacted superseding a Supreme Court judgement of 2016 upholding Madras High Court verdict of 2015 which set aside the practice followed by TN Public Service Commission in promotions since 2003.

The instance shows the obstinate adherence of the State government to the Reservation Policy against all odds to maintain its posture as the saviour of backward classes. Tamil Nadu has indeed enriched the policy by enlarging its application and advancing ahead of other States. The verdict has pointed out the failure of the State government to follow court rulings.

This adds another court decision to the legal literature on the Reservation Policy which is already voluminous recording court cases of 67 years starting in 1952 in the then Madras Presidency which led to the first amendment of the Constitution. The policy, however, began in that province in 1927.

The policy has withstood many hurdles. Courts can apply breaks but cannot reverse the policy as political interests are involved. Already DMK President has condemned the failure of the State government “to uphold social justice” which is believed to be and repeatedly asserted as the quintessence of Reservation Policy. At the same time, voices are heard from many sides doubting the efficacy of Reservation Policy to remove social and educational backwardness in the society and demanding alternative strategies to eliminate inequalities growing within the backward.

The judgement has also made some general remarks on the working of the Reservation Policy and has issued caution in its application that is usual in many of the earlier judgements also. The outcome of the verdict will have its repercussions in other States as well. It is a setback to the over-enthusiasm of governments and political parties indulging in appeasement of vote banks.  

“Any reservation is not automatic, but can only be on need basis”, remarked the judgemen, striking at the very root of the policy that is fostered as a right. The roster point system adopted by the government in fixing seniority is “nothing but an indirect way of providing reservation beyond 69 per cent”, and thus “unconstitutional”, declared the court. Tamil Nadu is very forward in its backward (class) policy to devise ingenious ways of extending 69 per cent reservation.

The roster system is an application to govern reservation of posts in a cadre for different categories like SC, ST, OBC, etc., with reference to the applicable percentage of reservation. The application draws the reservation roster (s) by earmarking each post for one or the other category and also helps to determine the category by which the post which has fallen vacant is to be filled up. This system is a variation of the rotation system devised in pre-independent Madras Presidency in which turns are pre-fixed for each recognised category in specified unit of appointments.

Reservation in recruitment and selection is different from reservation in promotion. Different yardsticks are to be applied in the two cases as per the verdict of the court. The State government employees had challenged the 200-point roster system followed by the government.

The famous Mandal Judgement of 1992 pronounced that Article 16(4) did not provide for reservation in promotions to SC or ST. But, under various orders passed by the State governments, promotions were brought under the Reservation Policy which practically could not be cancelled. The court allowed its continuation for five years.

The 77^th amendment of the Constitution added 4A in Article 16 in 1995 which provided for reservation in promotions for SC and ST. It led to a situation where a person promoted under reservation could become senior to his seniors. This anomaly was addressed in two judgments in 1995 and 1996 which introduced a rule to protect the affected person’s seniority.

What is known as “Catch up Rule” was introduced by the Supreme Court by 1999 to enable general candidates to regain their seniority immediately on promotion over SC and ST who had been promoted earlier under reservation and earned seniority over them. It was withdrawn by Parliament in 2001.

The 85^th Amendment of the Constitution was adopted in 2001 providing for extension of reservation to SC/ST in case of promotion with provision for “consequential seniority”. The Supreme Court reintroduced the “catch up rule” in a case from Rajasthan in 2010. Several cases pertaining to this rule emerged in many States.

There are a number of verdicts of High Courts of different States on the issue of reservation in promotions which are not consistent with one another. The apex court at times allowed status quo to continue which has helped to avoid utter chaos and confusion.

For instance, the quota law of Karnataka of 2002 on promotion which did away with the “catch up rule” and provided for “consequential seniority” to SC/ST to posts in Civil Services in the State was struck down by the Supreme Court in February 2017. The court ruled that in order to provide reservation in promotions, the States must first determine whether the criteria of “inadequacy of representation”, “backwardness”, and “overall efficiency” were fulfilled.

In this scenario, it is futile to refer to textbooks on the principles of public administration. Max Weber’s concept that the system of promotion is according to seniority or achievement or both and that promotion is dependent on the judgement of superiors requires several modifications today. Traditional criteria for promotions are given up under the Reservation Policy. The undefinable concept of social justice takes precedence over administrative needs.

The Supreme Court’s contention in the Karnataka case that a State’s view on the adequacy or inadequacy of representation of SC/ST in State services would not be subject to enquiries by courts empowers the governments to go further in the policy and its implementation.

The court this time has made a vital remark that Article 16(4) is designed to ameliorate social inequality and cannot be used to enhance it. No classification which does not pass the “test of arbitrariness and unreasonableness” can be considered as valid. A “negative or reverse discrimination is also against social justice”, said the court indicating disapproval of the tendency of many State governments to enlarge reserved places and disregard the requirements of administration.

It is also clarified by the court, though it is already clear except for interested political leaders that horizontal reservation cannot be granted in addition to vertical reservation. The former relates to sub-sects and special categories like women, the handicapped, destitute, ex-service men, etc., within the reserved quota, and the former to reservation on community basis.

Reservation has certainly helped to uplift individuals and communities. But, its benefits cannot percolate deep in the society without a strict practice of eliminating the creamy layer – the forward within the backward.---INFA

(Copyright, India News & Feature Alliance)

Events & Issues

New Delhi, 20 November 2019

Review of Ayodhya Verdict

NOW RELIGIOUS NATIONALISM?

By Dhurjati Mukherjee

Notwithstanding the Ayodhya verdict, the debate and controversy refuses to ebb. Though major sections of the Muslim fraternity have accepted the judgment, the All India Muslim Personal Law Board and Jamiat-ulama-i-Hind is unwilling to relent. They have decided to file review petition in the Supreme Court. And while the judgement based on some scientific report of the Archaeological Survey of India, has brought relief to the ruling party as it can keep its poll promise, far more crucial issues, mainly in the economic arena, plaguing lakhs of people in the country, remain ignored and beg the government’s attention.

While it can be presumed that the Ram Mandir may now be built and bring religious satisfaction to the majority community, the AIMPLB saying it will not accept the 5-acre plot awarded by the five-judge Bench, triggers uncertainty of how the situation pans out. The judges had relied heavily on Hindu and Sikh religious texts to assert individual’s view that Hindus always took the disputed site to be Ram’s birthplace.

In this connection, mention may be made of historical records, where Joseph Tieffenthaler, a Jesuit missionary who visited India in 1740, mentioned ‘Bedi’, a cradle, where Beschan (Vishnu) was born in the form of Ram. Alexander Cunningham, Director General of the ASI referred to Ayodhya in his 1862 report as the birthplace of Lord Ram. Additionally, P. Carnegie, Commissioner and Settlement officer, Faizabad, mentioned in his 1870 report that “Ajudhia’ is to Hindus what Mecca is for Mohammedans”. 

However, it is pertinent to make a note that the verdict came a day after Moody’s Investor Services trimmed its rating outlook for India to ‘negative’ from ‘stable’, citing increasing concerns that Asia’s third largest economy will grow at a slower pace than in the past. Moody’s said the cut in the outlook “reflected government and policy ineffectiveness in addressing economic weaknesses like prolonged financial stress among rural households, weak job creation and, more recently, a credit crunch among non-bank financial institutions, which has led to the present slowdown.” 

At the same time it is also worth noting opinion on the verdict which is said to have given a pro-Hindu weightage. Former Supreme Court Justice, Asok Kumar Ganguly, questioned the matter as it pertained much before the Constitution was adopted or before the establishment of the democratic republic of India. “Then where a masjid was, where a mandir was, where a Buddhist stupa was, where a church was . . . if we sit down to make such judgments, a lot of temples and mosques and other structures will have to be demolished”. Justice Ganguly also questioned the emphasis on a mythological character like Ram who has no historical evidence as the whole matter happened, if at all, five centuries ago.

Further, Inquilab, one of the largest circulated Urdu dailies, posed an important question –“If the court accepted that a mosque existed at the site and had been demolished illegally, why wasn’t the verdict in favour of the mosque?” It goes on to suggest that the verdict seems to be based on circumstances rather than evidence. Another point made by the newspaper stated that the court ruled that “Muslims have also the right to be given land as compensation for the loss (but) the timing and place has not been decided”.

A point that has been raised, and quite rightly, by the minority politicians is why the apex court entrusted the ‘vandals’ responsible for demolition of the Babri Masjid the task of identifying an alternative plot of land to build a mosque. Also, the question where the land will be allotted-- whether in the Ayodhya town or in the district, remains a big question and may complicate matters further?

However it is pertinent here to mention what the five Judges stated summing up the verdict: “Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people”.

Whether the apprehension of some analysts that the verdict would only hasten India’s transition towards a ‘Hindu Pakistan’ – or ‘Hindu Rashtra’ as Asaduddin Owaisi, four time member of the Lok Sabha alleged -- remains to be seen. But the ruling party’s endeavour for a united Hindu community may not succeed as a significant section is opposed to fundamentalism and believe in Swami Vivekananda’s vision of unity of all religions. However, with religious nationalism being promoted by the government and the majority community being pampered, the future trend is not all that encouraging. One cannot deny that the trend in projecting religion as the core area of being a nationalist is most unhealthy for healthy growth of society.

Earlier people were not so assertive towards their respective religion but this gained ascendancy in recent times. The politicians are quite happy in making people religious conscious as this enabled the masses, as also even the educated sections, to take their attention away from core economic issues that are affecting the country. Thus, instead of attending to the pressing issues of the day, politicians are more interested in highlighting religious issues to back up their case for nationalism.

A few years from now, the mandir and the masjid may be built but what is necessary is the need for religious amity and respect for each other’s philosophy and way of life. While secularism devoid of any obscurantism should be the mainstay in society, a communitarian approach to life would be the best way to shape our social life when two communities live and work together.

However, it needs to be pointed out that economic well-being is also a key factor in keeping people happy and this can only be possible through improving the standards of life specially in Ayodhya as also other parts of the country.   

Politicians should not try to bring divisions within the communities to meet their political ends but try to ensure that their living standards improve. Special mention needs to made here of the young generation, which should be put on the right track and engaged in employment so that they maintain a balance between religious faith and socio-religious life. However, only time will tell what emerges in the new Ayodhya district. The Mandir should not be an issue which should take precedence over matters of governance. The issue at hand is bound to linger and the government needs to set its priorities right.---INFA

(Copyright, India News & Feature Alliance)

Political Diary

New Delhi, 19 November 2019

Law & Order Clash

TU KAUN MAIN KHAMKHA

By Poonam I Kaushish

It all started over who had rights to a particular parking spot which escalated into a free-for-all epidemic of mob violence between law and order with lawyers setting fire to police vans and policemen ransacking lawyers' chambers in the Union Capital a fortnight back. Resulting in three lawyers shot and many policemen injured followed by an unprecedented 11-hour mass protest by the guardians of order and an indefinite strike by the custodians of law. A classic case of an ego battle of Tu Kaun Main Khamkha!

Undeniably the escalating tension between the two pillars of our criminal justice system has raised alarm bells in the country as it underscores we are an uncivilized society with scant respect for the rule of law. Of how both sides can commit a vile act, intimidate each other, exploit their positions and attempt to camouflage their transgressions thereby taking the system for granted and brazenly subverting it.

The face-off which reverberated in Punjab, Rajasthan, Haryana and Chandigarh not only highlights the love-hate relationship between lawyers and police with a long history of clashes but also brings to the fore old fissures of an unspoken contest to maintain supremacy in their dealings. Supposed to work in close coordination with each other for prosecution of offences, their relationship suffers from inherent dislikes.

At one end lawyers have become a law unto themselves who don’t think twice before attacking a police officer on duty with impunity at court complexes in full public view whatever the provocation. At the other, security personnel who symbolize Governmental authority take lawyers to task outside, sending a clear message that they are powerful with high connections, can do whatever they want and get away with it. Let the aam aadmi languish in jails awaiting justice for years.

Questionably, does a section of society sit comfortably above the law? What becomes of those upholding the law? If policemen can be blatantly assaulted and the perpetrating lawyers not brought to justice, then why would anyone want to follow laws? Certainly, it decreases respect of   law amongst citizens and exposes law upholders having feet of clay who are only interested in saving their skins and protecting their jobs. The cliché that there are no poor troops, only poor generals rings home tellingly.

Worse, the issue is further complicated by the notoriety of both lawyers and policemen who equally misuse their powers to harass the aam aadmi. Indeed, there are umpteen instances of both sides misbehaving with those belonging to the poor and marginalised sections of society and people who have no access to higher echelons. Today, they are getting a taste of their own medicine.

Undeniably incidents like these are portents of that sinking feeling that something is seriously wrong with our system as nothing justifies police-lawyers’ violent clashes. While policemen aver that instead of their uniform being viewed with respect as upholders of law, they have come to symbolise an easy punching bag which goons in black coats and citizens kick around and walk on merrily.

Clearly, this fracas has brought several important issues to the fore. One, a chain is as strong as its weakest link. The justice system in the country depends on both lawyers and policemen for efficient functioning. Lawyers’ frequent strikes and tantrums paralyze the judiciary resultant in high pendency of cases, while poor quality of investigation and corruption in the police close the door to justice.

Moreover, both lawyers and police have by and large poor capabilities. While policemen are not provided sufficient funds to equip themselves, are poorly paid having long duty hours, insufficient vehicles and arms. Consequently, they have to rely on brute force to extract confessions to solve crimes.

Appallingly, while crime per lakh people has increased by 28% from 2005 to 2015, expenditure on police accounts for only 3% of Central and State Government budgets. Add to this, State police forces had 24% (5.5 lakhs) vacancies and Central forces 7% in January 2016, severe weaponry and vehicles shortage and only 14% funds for modernisation of infrastructure used by States.

It is pointless to argue that the State has withered away. Shockingly, the police still functions according to the Police Act of 1861. This provides it with a negative role. Notably, umpteenth number of Commissions have been set-up over the years, from the Dharma Vira Commission down Julio Riberio Committee, Soli Sorabjee Commission and the Padmanabiah panel and all have drawn the same conclusions ---- change the mindset of the force, improve the public interface and image and prevent politicization, criminalization and corruption in the police.  The result: zilch.

Importantly, the supremacy of the Rule of Law should be clearly spelt out and the police guided by the Law having the legal option to disregard all instructions running contrary to that. Alongside, the administration and superintendence of the force should remain exclusively under professional police supervisors wherein it should be highlighted that the vardi exists for the service of the citizens.

Simultaneously, the protests boosted by social media points to a larger crisis in the justice system where reforms are long due. After all, justice is a sovereign function of the State. Lawyers are often confident about the legal protection available to them as citizens. They are also better placed to get judicial protection against coercive action by the police.

However, lawyers need to realize they are sentinels of justice which separates rights, freedoms and protection and the rule of law from chaos and anarchy. A bulwark against excesses or injustices carried out against the common man from the misuse of power by the Government or corporate sector.

Hence, it makes the job of the police even more difficult to take action against lawyers unlike other pressure groups as there is a close relationship between the Bar and Bench. Therefore, it is the responsibility of the bar associations and senior police officers to maintain close cooperation.

True, lawyers and police do not enjoy a savoury reputation in the eyes of the people. Yet both are important pivots of the criminal justice system. Thus, it does not behove members of both fraternities to indulge in or display conduct that lowers their own standing in the eyes of the people who are the mainstay of the entire system.

While lawyers and police officers may or may not be considered great men yet, their conduct must be exemplary in public and must inspire confidence in people. Our leaders and judiciary better pay heed before it is too late. The bottom line is clear. When push comes to a shove there is no easy option.  Tough times call for tough action.

Undeniably, the current crisis is an opportunity to push for long-standing police and judicial reforms. It is imperative we get our priorities right with the citizens hooting for answerability and accountability from the pillars of law and order. The goal should be to reinforce the Rule of Law and uphold the Iqbal of the State. 

As Herman Goldstein succinctly said: “The strength of democracy and quality of life enjoyed by citizens is determined by the criminal justice system to discharge duties honourably.” A time to ponder and introspect: Kiska kanoon aur kiska danda? Remember, nobody claps with one hand! ----- INFA

(Copyright, India News & Feature Alliance)