Selected Articles from Various News Paper: Civil Services Mentor Magazine - October 2015

Selected Articles from Various Newspapers & Journals

A pernicious law

The Union government’s contention in the Supreme Court that the provisions in the Indian Penal Code on criminal defamation do not have a chilling effect on free speech will disappoint proponents of fundamental freedoms. The zeal to retain a law that the state can use to stifle criticism is at the heart of the government’s position. It also goes against democratic opinion in many jurisdictions that treats defamation essentially as a civil wrong, and not something to be remedied by the use of the state’s coercive police powers. The United Nations Special Rapporteur on freedom of expression, the Human Rights Committee of the International Covenant on Civil and Political Rights and other international bodies have called upon states to abolish criminal defamation, recognising that it intimidates citizens and dissuades them from exposing wrongdoing. The grounds cited by the Centre now to justify the continuance of Sections 499 and 500 of the IPC, which deal with defamation and prescribe a maximum jail term of two years, are specious: that in India, citizens are unlikely to have enough liquidity to pay damages for civil defamation; that online defamation in the Internet age can be effectively countered only by making it a criminal offence, and that the law is part of the state’s “compelling interest” to protect the dignity and reputation of citizens. What it fails to see is that the main feature of criminal defamation is its potential for harassment. It is a tool that can be easily invoked and that enables allegedly defamed persons to drag anyone to courts across the country.

Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint; groups or sections claiming to have been hurt or insulted, abuse the process by initiating multiple proceedings in different places; and, more importantly, the protracted process itself is a punishment. Further, magistrates tend to mechanically summon defendants without first assessing whether the allegedly offending content comes within one of the many exceptions to defamation found in the statute. Criminal defamation should not be allowed to be an instrument in the hands of the state, especially when the Code of Criminal Procedure gives public servants an unfair advantage by allowing the state’s prosecutors to stand in for them when they claim to have been defamed by the media or political opponents. Thanks to past verdicts of the Supreme Court, the government and its organs can no more file civil suits seeking damages for defamation, yet the pernicious law of criminal defamation is invoked to stifle free speech. Even as the court deliberates the matter, the government ought to reconsider its stand and come out against the criminal defamation law.

Manipur’s dilemma

The fear of every state with a predominant indigenous population was summed up thus by the Naga leader A.Z. Phizo: “Nagaland cannot accept the Indian excess population [as] our country is too small.” Many of the recent exclusivist outbursts in the northeastern States, including in Manipur, can be attributed to such a fear of losing ancestral land to “outsiders”. Manipur’s crisis intensified four months ago when its Congress-majority Legislative Assembly passed the Manipur Regulation of Visitors, Tenant and Migrant Workers’ Bill, 2015. It was opposed widely, including by women’s and students’ groups, and even by a section of the ruling party. Eventually the Opposition became more united in demanding the withdrawal of the Bill, which failed to address their key concern of protecting the land rights of the original inhabitants. On July 14, the Bill was withdrawn by the Manipur government in a nod to the protesters’ demands. The united Opposition rather underscored the long-standing demand for the imposition of an Inner Line Permit system, as in a few other northeastern States. The ILP regime, introduced by the British to protect tribal populations from encroachment into their areas, but later used to advance commercial interests, involves a system akin to the issue of visas to Indian citizens to enter a State of the Union.

The dilemma of the Indian state over the ILP is understandable. Can the Union afford to introduce a quasi-visa to its citizens to enter one State from another State? The question could be complex for a central party that advocates the removal of all speed-breakers when it comes to citizens’ access to travel and work in her own country. The dilemma of Manipur is perhaps even more severe. The 2001 Census indicated the size of the migrant community was nearly as much as that of the dominant ethnic Meiteis, thus bolstering the demand from Manipur’s erudite civil society to impose curbs on inward movement. But there has also been out-migration of the indigenous people. The demand is sought to be substantiated by citing many examples that indicate how Manipuris are losing land to “extractive” non-Manipuri industries.

The leasing out of “one-sixth of the total area” of Manipur for oil exploration and drilling to international oil majors, unthinkable in the other States, is one of many such examples. In this backdrop, a half-baked Bill was passed, that exacerbated the insecurity. The demand, though, is more legitimately a consequence of the hill-valley divide in the State and the congestion in the valley rather than any huge influx of outsiders. The situation is thus complex but not out-of-control. But the State should ensure that alien-investor-driven development does not disrobe its people. After all, they are supposed to benefit from the growth generated out of its own domestic resources.

India, and the Taliban’s changing dynamics

The first officially acknowledged dialogue between the Taliban and the Afghan government took place in Murree, Pakistan, on July 7. Among those attending were representatives of Pakistan, China and the U.S. This comes eight months after Afghan President Ashraf Ghani’s meeting with Gen. Raheel Sharif and the subsequent assurance that Pakistan would help convince the Taliban to negotiate. The major outcome, according to Pakistani media sources, is that the next round of talks is provisionally planned for August 15 and 16 in Doha, Qatar. Another projected win was the reported “endorsement” by Taliban leader Mullah Omar on the Taliban website. Since Omar hasn’t been seen in public for years now, the authenticity of this approval is suspect. The Murree talks were significant in that they highlighted a shift in the stance of Taliban’s Qatar office, which has now emerged as its official voice. While not formally repudiating the talks, the Qatar office made a convoluted pronouncement indicating that future negotiations needed its imprimatur for any chance of success. This suggests that Murree was a preliminary round of talks about talks, and is borne out by the announcement of the Doha round.

The Taliban is no longer the monolith that it was and many streams have emerged in the movement. None of them are watertight compartments, allowing individuals and factions to flow from one to another. Each has several factions that may or may not have problems with each other. There are problems between the Taliban’s political leader, Akhtar Mohammad Mansour, considered close to the ISI, who favours negotiation, and Abdul Qayum Zakir, Taliban’s military commander and former Guantanamo Bay detainee, who is opposed to any talks. Zakir insists that the Afghan government lacks legitimacy and it was the U.S., the occupying power, which was in control. Zakir’s position has been reinforced after the Afghan government signed the Bilateral Security Agreement with the U.S., and he will oppose talks over the presence of foreign troops.

Yet another line of thought is the one that is open to talks, provided it is held on their terms. This means two things: one, they are not comfortable with Pakistan leading the talks and two, they see escalation in violence as a means to get to a vantage point before discussions begin. It is averse to a ceasefire, as that would allow the beleaguered unity government to consolidate its control. This led to the rejection of the Afghan Ulema’s call for a Ramzan ceasefire. A third group is not openly supportive of talks, as this could drive some extreme elements into joining movements like the Daesh, but it also wants some form of normalcy and will not oppose talks.
With pressure mounting on Pakistan, it had thrown its weight behind the latest round of talks in Murree. Given the mounting international criticism that it had misled the Ashraf Ghani government, it had to display its earnestness and influence over the Taliban by mediating talks on its soil.

India has been on the sidelines because of its limited relationship with the Taliban. Though India has never recognised the Taliban, what often goes unnoticed is that there was limited interaction even during the Kandahar hijacking. An Indian delegation was allowed in without visas and the External Affairs Minister entered into talks with representatives of a government it did not recognise. The point person for all of this was Taliban foreign minister Wakil Ahmed Muttawakil. However, times are changing. The perception that talks with at least some of the Talibani elements might bring an end to the imbroglio is gaining ground in Afghanistan. This, coupled with the existence of several lines of thought in Taliban, allows India to reconsider its position on Afghanistan. Considering the social capital that India has built in Afghanistan, India might, at an appropriate moment and in consultation with the Afghan government and other stakeholders, consider opening a channel to factions associated with Taliban’s Qatar office. Diplomacy is often about picking the lesser evil to serve the national interest.

Breaking the ice and avoiding a refreeze

As Prime Minister Narendra Modi is discovering, somewhat to his discomfiture, managing relations with Pakistan is one thing but managing expectations about India-Pakistan relations is a different cup of tea, because the two often adopt divergent trajectories. Every Indian Prime Minister, from Jawaharlal Nehru onwards, has had to deal with this challenge. However, it has only become infinitely more difficult today with the Indian media (and its Pakistani counterpart) seeking to convert every summit encounter into a limited-overs cricket match. A diplomatic negotiation only succeeds if the outcome is perceived by both sides as a win-win situation but this requires long-term planning and careful management. If either side makes it a zero sum game by firing up expectations for a quick victory, the dialogue quickly flounders.

The five follow-on steps identified in the “Joint Statement” are precise and modest — the National Security Advisers (NSA) are to discuss “all issues connected to terrorism”; meetings between the chiefs of the Border Security Force and Pakistan Rangers and Directors-General of Military Operations; releasing fishermen in each other’s custody; facilitating religious tourism; and an agreement “to discuss ways and means to expedite the Mumbai 26/11 attack trial, including additional information like providing [Mumbai attack mastermind Zaki-ur-Rehman Lakhvi’s] voice samples”. Finally, Mr. Modi also accepted Mr. Sharif’s invitation to visit Pakistan in 2016 for the South Asian Association for Regional Cooperation (SAARC) summit. From all accounts, the meeting between the two Prime Ministers developed positively. Mr. Modi had realised that not engaging Pakistan was proving unhelpful. Having abruptly called off the Foreign Secretary-level talks last August meant that he had to find a way to get a dialogue going. The SAARC summit in Kathmandu last November came too soon after the cancellation of talks and the tit-for-tat shelling across the Line of Control (LoC). After Indian Foreign Secretary S. Jaishankar’s exploratory visit to Pakistan early this year and a couple of phone exchanges, the decks were cleared. However, the old format could not be restored because it would signal business as usual. The media and the Opposition would describe Mr. Modi’s policy as “flip-flop” or even worse, a climbdown under (god forbid) U.S. pressure! So, the resumed dialogue had to have its focus on tackling “the menace of terrorism” and for this, India’s NSA Ajit Doval would be the most suitable person. Other issues such as religious tourism and the release of fishermen were humanitarian issues and would resonate well. Mr. Modi had emphasised the importance of “regional diplomacy” and even as he notched up successful visits to Bhutan, Nepal, Sri Lanka and Bangladesh, he realised that resuming a dialogue with Pakistan, and where he could set the agenda, was necessary for ensuring India’s leadership in the region and image as a responsible major power.

The Pakistani response was predictable. It pointed out that diplomatic phrases like “all outstanding issues” and “terrorism in all its forms” included Kashmir and state sponsored terrorism. India had sought the meeting (a victory for Pakistan), Mr. Modi had committed to visit Pakistan for the SAARC summit (a victory for Pakistan), and additional information was to be provided by India regarding the 2008 Mumbai attacks (a victory for Pakistan). However, the genie refused to go back into the bottle and the Pakistan Army was unhappy. Eventually, three days later, Pakistan’s Foreign Policy and Security Adviser Sartaj Aziz took the stage to make it clear that the outcome at Ufa did not mark the beginning of a new dialogue process, and that Kashmir tops the list of outstanding issues. For good measure, he added that Pakistan would continue to provide moral, diplomatic and political support to its Kashmiri brethren, the NSAs would discuss Indian interference in Pakistan particularly in Balochistan, additional information would also cover progress on the investigations into the Samjhauta Express bombings in 2007, and there was no commitment on providing Lakhvi’s voice samples. The Pakistani High Commissioner’s Iftar with Hurriyat leaders that had been postponed was resurrected as an Eid Milan event and recent LoC firings have again raised tensions. The chest-thumping protagonists on either side examined in terms of protocol how many steps Mr. Modi and Mr. Sharif each walked to greet the other. The Ufa moment had become an “ouch” moment for both sides. Instead of a win-win, both sides retired hurt and sulking.

Neighbourhood diplomacy for a large country like India needs a lighter touch, and far more attention to managing expectations than has been in evidence during the last 12 months. We also need to understand that as the larger power, the Indian media resonates loudly in the region, often reflecting an insensitivity which generates a backlash. Mr. Modi’s media team has yet to understand this. There will be more engagements with Pakistan, and at different levels, but New Delhi will have to change its tone to ensure that well-crafted diplomatic initiatives do not get reduced to a farce. From Mr. Narasimha Rao onwards, I have personally witnessed how he and his successors and their senior colleagues, used to keep key political leaders, including the Opposition, fully briefed; in parallel, senior officials used to provide background briefings to retired officials and foreign policy commentators so that expectations could be managed in terms of media projection. This ensured that both the pace and the outcome of the dialogue was kept under control, with an eye to the domestic political environment while taking into account the larger games being played on the geopolitical canvas. After last August, Mr. Modi understood the need for a dialogue with Pakistan. Hopefully, after Ufa, he will also understand the need to manage it in a more productive manner.

Stimulated economy, sluggish investments

While there are signs that economic growth is reviving, the concern is that investments are not as forthcoming as expected. During the last year or so, the government has put in place a comprehensive set of measures to restore investor sentiments, ranging across the tax regime, ease of doing business, Foreign Direct Investment limits, and administrative and environmental clearances. A number of large-scale initiatives have been introduced to act as magnets for investments, including Make in India, the Smart City mission, and Clean Energy. Interest rates, too, are on the downtrend with strong expectations of further rate cuts, and the macroeconomic environment has turned benign, despite moderation in global growth and trade. According to CII’s Investment Tracker for May 2015, business confidence stands at the highest levels in the last three years, buoyed by proactive reforms and positive macroeconomic scenario. There has been visibly strong improvement in the project pipeline — new project announcements almost doubled in 2014-15 as compared to the previous year and the value of projects completed went up from Rs 3.28 lakh crore to Rs 3.56 lakh crore. At the same time, the value of stalled projects came down from Rs 3.63 lakh crore to Rs 2.44 lakh crore. As a measure of global confidence in India, FDI inflows went up from $25.3 billion to $31.9 billion in 2014-15 and Foreign Institutional Investors (FIIs) put in $40.9 billion into Indian companies as compared to $5 billion in 2013-14. The investment data is further substantiated by definitive signs of improvement in capital goods production.

There are several reasons for slow investment pick-up. Before the global financial crisis, companies had built up high production capacities in anticipation of continued demand. However, demand remains muted in the country following three years of high inflation. Additionally, delays in land acquisition and environmental clearances have led to a bloated pipeline of stranded and delayed projects. In turn, this has resulted in stressed bank assets so that banks are inhibited from undertaking additional loan burden for new projects. Further, the high interest rates have been a big deterrent to new investments as projects are rendered unviable. Low profitability of corporates also reduces available resources. The elevated level of stalled projects has meant subdued demand down the value chain. A still-vulnerable global economic environment has not contributed to the overall investment scenario in India, especially as exports are contracting. Policy action for reviving investments, growth and employment must be continued at an accelerated pace. To begin with, there is need to drastically reduce interest rates at one go by 1.5 percentage points. This would both incentivise consumers to purchase durables and make project investments more attractive.

Infrastructure projects require continued attention and Prime Minister Narendra Modi’s monthly interaction under Pragati would help speed up infrastructure construction. Budget funds allocated for infrastructure need to be speedily implemented, including for programmes such as Smart Cities and Digital India. A National Asset Management Company may be considered to take non-performing assets off banks’ balance sheets, which would unlock lending for investments. The financial sector should shift from a bank-dominated system to a diversified regime with multiple financing options, particularly for long-term funding. The 4 R’s — Regulation, Risk Allocation, Renegotiation and Resourcing — need to be addressed to revive projects. Given that 101 projects worth Rs. 25,399 crore are stuck in disputes with the National Highways Authority of India, a stronger dispute resolution mechanism in the infrastructure sector would help unblock funds.

On ease of doing business, there is need to shift from a sequential to a simultaneous approval system. Low-risk industries may be exempted from certain clearances, while provision of utilities to new factories should be streamlined. Certain rules and sections of the new Companies Act impose additional burdens and need to be reviewed carefully. The NITI Aayog could be designated as the coordination centre for central ministries and States on administrative procedures. Special attention is required for credit access for small and medium enterprises (SMEs), and we recommend that 15 per cent of priority sector lending should be earmarked for SMEs. Ease of doing business needs to be tackled for SMEs through single windows, self-certifications and e-governance. Regarding manufacturing, certain focus industries in labour-intensive and advanced sectors should be championed, including automotives, defence, and textiles. In particular, incentives for Research and Development and Information, Communication Technology and Electronics manufacturing would help reduce imports. A ‘Make in India Technology Venture’ can be set up as a special purpose vehicle under public-private partnership to invest Rs 1 lakh crore in building a knowledge economy. The Digital India vision requires simplification of procurement process and a joint government-industry task force to address challenges. Start-ups should be supported through a suitable scheme.The government has taken many positive steps for a progressive tax policy. Dispute resolution mechanisms, arbitration and conciliation can further help in efficient and time-bound clearance of funds in dispute.

An unsound recommendation

A big let-down amid an otherwise progressive narrative in the Department of Telecommunications’ recent report on net neutrality is its recommendation to bring voice over internet protocol-based (VoIP) domestic calling services, including applications such as WhatsApp, under licensing. The suggestion is that such services be regulated “through exercise of licensing powers available under section 4 of the Indian Telegraph Act to ensure a level playing field.” This does not straightaway mean such calls will be chargeable. The more obvious implication is that such applications can’t operate without the government’s permission, which might be granted only on the fulfilment of certain conditions or the payment of a fee, or both. The DoT’s report is by no means final and binding. Still, the stated logic behind such a suggestion is open to question. The report says telecom companies “may become reluctant to invest in expansion of broadband infrastructure” in an environment where apps that provide similar calling services eat into their revenues. Don’t telecom companies benefit from the apps that ride on whatever services they provide? Doesn’t more app usage mean more data consumed, which in turn mean more revenues for telecom companies?

The recommendation could be flawed on multiple grounds. One, there is a good chance that if the suggestion is implemented the consumer might be worse off for it. But before that, there is a big question mark over whether differentiating a domestic VoIP call from an international one is possible at all. Bar this recommendation, the report does seem to largely reflect a nuanced understanding of the complexities of today’s internet world.

This is true even of its references to zero-rating schemes, under which the user is offered data or access to some sites free of cost. True, critics have taken the report to task for not recommending a ban on them. But there are novel zero-rating schemes where the user is given free data and not a pre-selected bouquet of sites, as Facebook’s internet.org does (the report doesn’t seem to be in favour of this).It’s heartening that the report repeatedly pitches for net neutrality, the principle of data equality that is important to ensure the internet remains a level-playing field. At the same time, it shows pragmatism in saying that “enforcing net neutrality principle is a new idea and may throw up many questions and problems as we go along,” and that this may require a process of oversight. The report is laced with quotes, including this one from Archibald Putt: “Technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand.” It is to be hoped India doesn’t live up to this.

Courtesy: Various News Papers

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