The cases stemming from Gujarat 2002 raise serious questions about a range of abdications by institutions and actors.

In the long, tortuous and still unfolding process of justice after the communal violence in Gujarat 2002, the Supreme Court of India has played a commendable role. Its several interventions have ensured that the process stays on course, that it was insulated from pressure by the powerful, and that victims and survivors could hope for a fair and just closure. This is why the two arrests on Saturday, of activist Teesta Setalvad and former Gujarat DGP RB Sreekumar, are disquieting — the FIR is based on extensive quotes from the SC verdict and its annexures the day before. On Friday, the SC upheld the SIT’s clean chit in the 2002 riots to the then Gujarat government led by Chief Minister Narendra Modi, discarding allegations of a larger conspiracy by high state functionaries. The collapse of that particular case was, arguably, foretold — connecting the dots right up to the chief minister’s office was a tall order to begin with, and the case may have been propelled more by the anguish of those devastated by the violence, less by evidence that could hold up in a court of law. In the same order, however, the Court went a worrying step further. Its verdict said, and the FIR lodged the next day faithfully quoted: “At the end of the day, it appears to us that a coalesced effort of disgruntled officials of the state of Gujarat along with others was to create sensation …to keep the pot boiling, obviously for ulterior design… all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law”. The day after, the question is: Surely the court would not countenance a witch-hunt that borrows its lines from the court?

The law must take its course on Sreekumar and Setalvad. But there is a problem with an FIR that draws so heavily upon what the court says, and a court verdict that lends itself to such immediate police action against those standing with the petitioners in cases of 2002. What the court said on Friday and the police taking its cue from it on Saturday also appears to turn on its head the story so far — after all, it was the same court that, down the years, took a number of unprecedented steps to ensure justice for 2002. The SC stayed the trials in certain cases in response to allegations that there had been serious lapses in investigation. It set up an SIT and supervised designated fast track courts for hearing sensitive cases. It ensured that cases were shifted outside Gujarat so that justice could be done. Its interventions resulted in the reopening of nearly 2,000 post-Godhra riots cases. The SC, in fact, became the centrepiece of a larger effort in which individual activists, NGOs and the NHRC, among others, contributed towards bringing justice closer to victims and survivors of the communal violence that took place in Gujarat a little over two decades ago.

The cases stemming from Gujarat 2002 raise serious questions about a range of abdications by institutions and actors. The collapse of one case should not become the pretext for a sweeping indictment of the whole struggle for justice and accountability. The SC must also reflect on whether it behoves its status and role as the wise custodian of constitutional processes and values to be seen to be turning on those who were stricken by the violence and knocked on its doors, even if, as it turns out in this particular case, their plea failed to hold.

Sanya Kumar and Rakshanda Deka write: It will impact American constitutional jurisprudence and the global human rights discourse. It also sends a larger message about the ease with which women can be stripped of their right to choice and bodily autonomy

In May 2022, a leaked draft of the majority opinion of the United States Supreme Court sounded the alarm on a potential seismic shift in women’s right to personal autonomy with the overturning of the landmark 1973 decision in Roe v. Wade. On 24 June, the decision in Dobbs v. Jackson Women’s Health Organisation was pronounced, overruling Roe which recognised a woman’s right to have an abortion half a century ago. With this, speculative apprehensions have turned to real consequences of a catastrophic constitutional rewind in American jurisprudence. The practice of courts overturning precedents is not unheard of, but as observed in the dissenting opinion, the overruling in Dobbs is unprecedented as it takes away an individual right that was once held to be recognised by the Constitution. With the overturning of Roe and the country being thrown into legal, political and social bedlam, the lives and health of millions have been put in jeopardy with women being forced to give birth, undergo unsafe abortions, and potentially being at risk of prosecution.

In running contrary to global trends and joining Nicaragua, Poland and El Salvador, the United States is only the fourth country since 1994 to backtrack on abortion rights, according to the Center for Reproductive Rights. The tremors of Dobbs will inevitably be felt globally, even if the impact is likely to be felt differentially based on the existing legislative framework and social movements across different countries. For instance, in fueling anti-abortion groups, this decision is likely to adversely impact efforts aimed at legalisation or decriminalisation globally, particularly where reliance was being placed on Roe and other decisions that echo the principles of this landmark verdict. Further, this decision can be cited as an easy example of “course correction” by conservative groups in countries where efforts are being made toward increasing abortion access. The decision in Dobbs is not just about abortion rights though — it also sends a larger message about the ease with which women can be stripped of their right to choice and bodily autonomy.

The overturning of Roe may also have a bearing on abortion access in developing countries that are constrained to rely on funding and other forms of aid from the United States. The Mexico City Policy, or the “Global Gag Rule”, which was first implemented in 1984, and has been implemented during all Republican administrations and rescinded during all Democratic administrations, bars international non-profits from receiving funding from the United States if they make referrals for abortion or provide abortion counselling or advocate for abortion reforms, even using their own funds. Although the policy stands rescinded by the Biden administration, absent its permanent repeal, there exists a looming threat of its reinstatement by future administrations, which will only be emboldened by the overturning of Roe. With the risk of being stripped of funding in the future, governments and organisations will find it increasingly difficult to develop progressive global health programmes centred around women’s sexual and reproductive rights.

Another dangerous consequence of the overturning of Roe stems from the fact that in addition to legalising abortions as a qualified right within the constitution, Roe also reaffirmed and strengthened an interpretative method whereby the right to privacy identified within the Fourteenth Amendment guarantee of liberty could be interpreted broadly enough for an unlisted right (in this case, the right to terminate a pregnancy) to be read into it. For instance, decisions such as Obergefell v. Hodges read unlisted rights — the right to marry a person of the same sex — as a facet of the implicit guarantee of privacy within the explicit guarantee of liberty. However, with Dobbs’ extremely restrictive reading of the constitutional guarantee of liberty, several other substantive due process decisions, both before and after Roe, would inevitably be the next rights to be annihilated – something underlined by the dissenting judges.

Justice Alito unconvincingly rebuts the dissenters’ apprehension by stating that the majority opinion does not put in doubt precedents that do not concern abortion claiming that the latter “uniquely” involves the question of “potential life”. However, Justice Clarence Thomas’s concurring opinion, explicitly states that the Supreme Court “should reconsider” “all of” the court’s past substantive due process decisions including the decisions recognising rights to contraception, same-sex relationships and same-sex marriage, and virtually invites conservative states to challenge these precedents.

Finally, Dobbs is yet another illustration that the rule of law will easily stand compromised based on partisan considerations of the bench and the political dispensation. For instance, the very same justices who gave the majority opinion adopted irreconcilable approaches to constitutional interpretation in two decisions rendered on consecutive days — Bruen and Dobbs. In Bruen, the conservative majority categorically cautions against excessive reliance on the historic basis of a law while determining the constitutionality of a New York gun-licensing law and holds that a “proper cause” requirement for possession of arms violated the constitutional right of citizens to bear arms for ordinary self-defence. The very next day, in Dobbs, the same justices find that the practice of abortion is not found in the “history and tradition” of the country, and consequently cannot be located within the guarantee of liberty in the Fourteenth Amendment. In addition to the inadequately justified departure from precedents, another unprecedented facet of Dobbs is the recognition of the lack of judicial independence by the dissenting justices who unequivocally state that the majority’s decision-making is driven by power, not reason, and that the rule of law is replaced by the rule of judges. It may be safely stated, particularly in view of Justice Thomas’s observation of further upheavals, that the sense of resignation and betrayal running through the dissenting opinion will inevitably revisit American constitutional jurisprudence in the near future and relatedly, the human rights discourse globally.

The writers are advocates practising in New Delhi

The foot soldiers of the Sena, even after Shinde’s revolt, are with the Thackerays. It is to be seen how they react when the full import of what will happen if the Thackerays cease to head the Sena kicks in

Before he breathed his last, the pater familias of the Shiv Sena, Balasaheb Thackeray, addressed a mammoth meeting at the iconic Shivaji Park in Dadar. He appealed to the multitude of his followers to look after his son, Uddhav, and grandson Aaditya, after his death. It was an emotional appeal that palpably moved the mass of humanity stretched out on the open ground before him.

There was no doubt in anyone’s mind that the Supreme Leader wanted Uddhav to be his successor, followed by Aditya. But Uddhav is not Balasaheb. His style of functioning is different: He relies on a coterie of close confidants for advice and execution. But in one core issue, he has been a carbon copy of his father: Uddhav made no bones about his resolve to see his young son, Aaditya, succeed him as the Supreme Leader of the Sena and, of course, chief minister of Maharashtra.

That was his Achilles’ heel. When the Sena abandoned its decades-old alliance with the BJP to achieve its dream of leading the government in Maharashtra, it joined hands with Sharad Pawar’s NCP and its old bête noire, the Congress, so that Uddhav could become the CM. I am not very sure that Uddhav wanted the job. He would have been happy to install his then 28-year-old son as CM but better counsel prevailed, besides the urgings of his new bedfellows, to assume command himself.

Aaditya is a young man with ideas and the right inclinations. But he was in a hurry. If he had started from somewhere near the bottom of the ladder and worked his way up, he would have climbed to the very top in quick time. He had it in him to do so. But he started virtually as the number two in the party and that was bound to upset other leaders. An aspirant for the “gaddi”, Eknath Shinde, was particularly mortified. He bided his time and that time coincided with the plans of the BJP’s master strategist in the state, former CM Devendra Fadnavis, who felt robbed of his rightful entitlement. His party had fought the elections jointly with the Sena. The alliance won, but only, it seemed, to be tricked into subservience by Sharad Pawar. Fadnavis was out for revenge from day one, but his initial attempts failed.

The ED allegedly became the main instrument to bring Sainiks in line. The very mention of its name was enough to strike fear into the hearts and the minds of the great Shivaji Maharaj’s 21st-century soldiers. Many (or perhaps most) had a skeleton or two to hide from the ED’s gaze. They implored their leader to sever ties with the NCP and Congress and realign with the BJP to avoid the attention of the central investigation agencies. The cognoscenti feel that this is the real reason for the present en masse desertion. That’s possible, even probable.

Another reason is being advanced for the revolt of the Sena legislators. They feel that the NCP and Congress have got all the lucrative portfolios in the cabinet, leaving the crumbs for the Sena. They say Uddhav has compromised on this to occupy the CM’s chair. They also complain that NCP and Congress MLAs get their MLA funds, as well as access to the CM, much quicker than they do. The CM is not easily accessible to them and that affects their standing in their constituencies.

The Sena MLAs are thinking of the next elections to the state assembly. They feel that the NCP and Congress will have stolen a march over them because of the preferential treatment they have enjoyed. All these peeves have been highlighted during their revolt.

The BJP virtually rode on the Sena’s back to first become relevant in Maharashtra and then to gain ascendancy over the party. When its tally of legislators overtook the Sena’s, the chief minister’s mantle passed on to the saffron party. When Fadnavis was the CM there seemed to be less corruption and better governance. But the dominant Marathas were not happy.

The Shiv Sena’s founding family belongs to the forward Kayastha caste but its followers, almost to a man, belong to the OBC category and are largely from the Konkan region. There is no doubt that Balasaheb’s methods “coaxed” central government agencies like the nationalised banks, the Railways, Air India, and the Airports Authority to employ more Maharashtrians in their offices. That was the secret of the rise of the Sena, mainly in Mumbai.

The foot soldiers of the Sena, even after Shinde’s revolt, are with the Thackerays. They are, currently, reeling from the shock. It is to be seen how they react when the full import of what will happen if the Thackerays cease to head the Sena kicks in. A Sena without a Thackeray at the helm will not be the same. The process of disintegration will begin. The street vendors and a lot of those who operate Mumbai’s underbelly are known to have the blessings of the Thackerays. Many of these young men, hailing from what the Marxists term the “lumpen proletariat”, will be forced to find new moorings.

Eknath Shinde may not last long as the Sena’s head. There are bound to be other claimants with the same ambition and equal talent. For instance, Narayan Rane, who has joined the BJP, would surely aspire for individual recognition. In short, the churn within the Sena’s rank-and-file is going to be short, but sharp and eventful.

Many of the Sena’s karyakartas could join the BJP, especially if they anticipate the ED proceeding against them. Many more will join the NCP, whose ethos is similar. Ideology is unlikely to be a significant factor in taking sides. They were never guided by Hindutva, as is now being propagated by Eknath Shinde. It is self-interest and the good life that matters to them. They will balance the pros and cons and decide what is best for them. But the Sena, as Balasaheb envisaged it — a medium to channelise the aspirations of lower-middle-class Maharashtrians to middle-class status — may have to be buried if the Thackeray clan is not around.

I grieve for Aaditya Thackeray. He is probably the reason why this revolt is happening. He could have been a good influence on the ordinary Sainiks as his thinking was modern – something most readers and I can relate to.

The writer, a retired IPS officer, was Mumbai police commissioner

Ashutosh Varshney writes: Arc of rights must broaden further, instead of retreating. Overturning of Roe v Wade outlines democratic challenge

In a democracy, can a right once granted be taken away? In the current international debate, this question has become part of the rising intellectual and political concern over “democratic backsliding”, a concept that depicts how democracies weaken and decline without collapsing fully.

As the world’s oldest surviving democracy, the United States has figured prominently in this debate, especially since Donald Trump rose to the presidency in 2016, engaged in a lot of anti-minority politics, and finally sought to overturn his 2020 election defeat. But after all is said and done, the American debate thus far has been about whether it is legitimate to put some restrictions on the exercise of franchise by racial minorities, who vote markedly less for the Republican party and considerably more for the Democrats. Strictly speaking, the debate has not been about the right to vote per se.

With the US Supreme Court’s decision on June 24 to overturn a half-century-old right to abortion, granted by a 1973 Supreme Court decision in the Roe vs Wade case, the debate has now become wider, as it moves from how to engineer voter suppression to the larger realm of rights. With a 5-4 majority, the court has said that American women have no nationwide right to abortion. Rather, state legislatures should decide whether women can have that right in their respective states. In several states, within hours of the court’s decision, abortion was banned, for prior legislation existed. Though Democratic states would steadfastly protect the right to abortion, nearly half of the 50 states are likely to go the other way. In the new field of democratic backsliding, comprising the retraction of rights, the floodgates have opened up.

In poll after poll, a majority of Americans, bordering sometimes on three-fourths of the population, support women’s right to abortion. So, what the court has done is against popular will. But that cannot be the principal criticism against the decision. Courts are not fundamentally governed by popular passion or will, which can fluctuate from election to election, but by constitutional propriety. The key question is whether the right to abortion was constitutionally justified.

The 1973 court decision allowing the right to abortion was based on the 14th Constitutional Amendment (1868). This Amendment, the court said, allowed protection of liberty and privacy, something the state could not impinge upon.

Thus, even though abortion was not mentioned in the 1787 US Constitution, abortion’s defence was derived from the 1868 Amendment — via its protection of citizens’ liberty about matters as intimate as a decision to have a child.

The 1973 court also argued that this right was not absolute, limited as it would be by considerations of “protecting potential life”. This line of reasoning led to a trimester-based court ruling, which more or less forbade the government from interfering in the first trimester of pregnancy but the state could ban abortions in the third trimester, when “the viability of the fetus” was beyond doubt.

This whole structure of judicial reasoning has now collapsed. In the court’s opinion, the right to privacy stemming from the 14th Amendment is not relevant, for abortion concerns not only the pregnant woman but also the life of the unborn. Moreover, the court said, abortion is neither “enumerated” as a right in the original 1787 constitution nor is it consistent with American history and tradition. In short, it is a political and legislative, not a constitutional, matter. State legislatures should decide what is permissible.

How should a political analyst comment on this tussle? Hard as we might wish otherwise, constitutional decisions are
inevitably tied up with politics. There is no escape from political reasoning.

First of all, no constitution can fully anticipate how the arc of rights would bend in the future. Abortion was not mentioned in the 1787 constitution, nor explicitly in the 1868 amendment. That is because women were not autonomous political agents at that time. Until they were given the right to vote in 1920, they were not a constitutional category in the US, as was true virtually everywhere in the world. Women are autonomous agents today. Norms change; rights evolve.

Second, as the court’s dissent note puts it, how can this majority decision ignore rape and incest? Why should women carry the child of a rapist, a father or an uncle? If abortion as a right is dissolved, women can be forced to give such unwanted births. The majority decision of the court is silent on this important matter.

Third, having a child is not simply a deeply moral obligation to the unborn. It is also a decision that affects “the ability of women to participate equally in (the nation’s) economic and social life”. These words are from a later decision, known as Casey (1992), when the US Supreme Court added the concept of “undue burdens” to support the idea of abortion. As more and more women become scientists, professors, journalists, lawyers, managers, executives, politicians and sportspersons, these considerations cannot simply be brushed aside. If a woman chooses to terminate a pregnancy now but has a child later, that may be more consistent with her dreams and desires, to which she has a rightful claim.

Finally, men don’t have to deal physically with pregnancy, whereas the foetus grows inside a woman’s body for nine months. If men have the right over their bodies, which can’t be taken away by the government, why can’t women have autonomy over their bodies as well? Why should they be subjected to the government’s authority and supervision any more than men’s bodies? That men are free, but women must forcibly be chained to maternity, is an idea whose time surely has gone. Maternity must be a voluntary choice. There is no going back to the notion of rights as they were viewed in the 18th century — unequal, unneutral, unbalanced.

With the Supreme Court’s overturning of abortion as a constitutionally guaranteed right, America has taken another step towards democratic backsliding. Now, democratic renewal not only means fighting for more easily accessible voting procedures but also a push for a legislative codification of the right to abortion. Typically, as they evolve and deepen, democracies allow the arc of rights to broaden further, not retreat. After this judgment in the US, the stakes have become much higher and the democratic challenges bigger.

This column first appeared in the print edition on June 27, 2022, under the title, ‘Backsliding in America’.

The writer is Sol Goldman Professor of International Studies and the Social Sciences at Brown University

Praveen Chakravarty writes: GST centralised India’s indirect taxation. It is time to start a national discussion on reversing the course by giving states powers for direct taxation

India’s goods and services tax (GST) will be five years old on July 1. The GST Council, comprising minister representatives from all states and union territories, will be meeting over the next few days. There will likely be celebrations, commiserations and contestations.

Three significant issues — the breakdown of trust and cooperative federalism between states and the Union government, the expiry of the revenue guarantee that protected states’ revenues and the recent Supreme Court’s judgment highlighting that the GST Council’s recommendations are not binding on the states — form the backdrop to this Council meeting.

Maharashtra, the highest contributor to GST revenues (20 per cent) may not be represented in today’s meeting because its government is on the verge of collapse, aided in part by the BJP governments of the Union, Gujarat and Assam. Surely, these egregious political developments in Maharashtra will play in the minds of the non-BJP representatives in the GST Council meeting from Bengal, Tamil Nadu, Kerala, Delhi, Telangana, Andhra Pradesh, Chhattisgarh, Punjab, Jharkhand and Orissa, that together contribute 36 per cent of overall GST revenues.

Cooperation between states and the Union cannot just be an economic compact, but a broader political ethic. It is foolhardy to expect states to indulge in a harmonious spirit of economic cooperative federalism inside the GST Council when their governments, leaders and institutions are being politically attacked and destroyed outside.

The SC recently observed that it is in the national interest to have both cooperative and competitive federalism, and hence, the GST Council’s decisions are not binding on the states. This means that states had and continue to have the right to either comply fully with the Council’s recommendations or modify them as they deem necessary. This has opened the window for states to override the fundamental GST premise of a “one nation one tax”. If pushed to a corner, states may now use the SC ruling as a shield.

The other fulcrum of GST was the tangible mechanism of guaranteed revenues for states. When GST was mooted amid lofty promises in 2017, sceptical state governments extracted a five-year insurance from the Centre of a minimum revenue guarantee, without which GST may not have been possible. It turned out to be prescient as GST failed to live up to its economic promises and states’ revenues were protected through this guarantee, despite Finance Minister Nirmala Sitharaman’s attempt to wriggle out of this commitment during the pandemic under the alibi of an “act of God”. The Union government’s proclivity to levy and appropriate cess revenues for itself without sharing them with the states has lent credence to the wisdom of guaranteed compensation for states. This guarantee is now set to expire.

GST is too precariously perched to yank away the compensation guarantee for states. The ideal solution to salvage and fix GST is to extend the compensation guarantee. The tenure of extension and the guaranteed rate of revenue growth can be mutually agreed upon by states and the Union.

However, the Union government is not desirous of extending the compensation guarantee. Its apprehension and reluctance are understandable, given its deteriorating fiscal situation, foisted by high global crude oil prices, rising fertiliser imports and expanding welfare expenditure. But in the larger and longer term interest of GST, it is prudent to extend the compensation guarantee, which will assuage states’ concerns and buy time to revive GST. It is no secret that nearly all states, irrespective of their political affiliations, want an extension of the compensation guarantee. At this juncture of the GST regime, it is perhaps wiser to extend the compensation guarantee and hope to obviate its need through buoyant GST revenues than to further erode states’ confidence. Sacrificing a percentage point or half of the fiscal deficit next year by extending the compensation guarantee is worth the potential benefits of a well-functioning GST.

At the root of the current GST, imbroglio is a deficit of trust and revenues. Technical fixes such as rationalisation of rates and ease of GST compliance are necessary but not sufficient to bridge the revenue deficit since GST revenues are a function of the performance of the larger economy, which in turn depends on various other factors. The trust deficit can be bridged only through acts of good faith. The Union government should commit to the states that it will not resort to cesses and surcharges that are outside the shareable pool of revenues. It must resolve to honour the revenue guarantee commitment to the states. It must respect and uphold the true spirit of not just fiscal federalism but political and constitutional federalism too.

Democratically elected state governments in India do not have sole powers for both direct and indirect taxation, which is unheard of in any other federal democracy. GST centralised India’s indirect taxation. It is time to start a national discussion on reversing the course, moving towards decentralisation by giving states powers for direct taxation. A commitment to initiate such discussions by the Union government will be a healthy signal for states’ confidence and fiscal freedom.

After five years, it is now well established that GST has failed to deliver on its economic promises. Contrary to the technocratic rhetoric, it is not just the flawed implementation that is responsible for GST’s economic failure. GST was always an economic square peg in India’s federal round hole. Regardless, we are now far down the GST path and must strive to make it work, to avoid a “GSTexit”, a la Brexit.

This column first appeared in the print edition on June 27, 2022, under the title, ‘Avoiding a GST exit’.

Chakravarty is chairman of the data analytics department of the Congress Party

Ruchi Gupta writes: Instead of providing stability, the law is undermining our democracy. Scrapping it would provide institutional leverage to express intra-party dissidence

The political crisis in Maharashtra has brought focus back on the anti-defection law. By all accounts, the law has failed to shore up the stability of elected governments. Not only have many governments fallen due to defections in recent times, but the defectors have not suffered any cautionary consequences. There are many ways to thwart provisions of the law: the Speaker can sit on the defection pleas for the term of the assembly; the beneficiary party can facilitate accretion of defectors through money and investigative agencies to hit the magic two-thirds threshold. The voters don’t seem to care about punishing the defectors either – 11 out of the 14 defectors who stood for re-election in the 2019 Karnataka bypolls won on the BJP ticket. Some have thus argued that the way forward is to amend the anti-defection law to fill these lacunae by mandating time-bound decisions by the Speaker and disqualifying defectors from standing for the next election as well. These proposed amendments like the original law want to consolidate power without necessarily putting in the requisite politics. They may thus help consolidate the leadership’s intra-party power but the underlying aversion to ongoing politics leaves them vulnerable to bigger external powers.

First, it should be obvious that the practice of politics is too wide for any institutional process to fully capture. Politicians are adept at subverting institutional processes for their own ends and there are many possibilities for payoff for defectors outside of elected office alone. Moreover, politics has a rich history of exercise of power by proxy and the disqualified representative may simply choose to have a family member stand in their stead. It thus seems unlikely that these amendments can plug the gap in any substantive manner, especially if the defections have been engineered by the threat of investigative agencies. The anti-defection law and proposed amendments approach the issue of defections from the prism of denying power to the defector, a framing which repeatedly comes up short in the face of a bigger and/or more punitive power. Beleaguered parties may denounce the BJP but in the absence of mobilization of public opinion, these condemnations have at best rhetorical value, moving neither the BJP nor the defectors.

Within this framework, if political parties want to resist defections, they must be able to project (imminent) power themselves. At the same time, political parties must address organizational and ideological infirmities which have made them susceptible to mass defections in the first place. There are only about 4000 MLAs in a country with a population of almost 1.4 billion people. However, political parties tasked with representing the aspirations of crores of people are unable to find candidates who take themselves seriously enough to not cross over to political opponents. In fact the bar is so low that the MLAs have to be physically corralled and phones confiscated to ensure alignment with the Party stand. This is not apolitical outrage but has pragmatic organizational value. It is one thing for a few individuals to be susceptible to threats and inducement, another for the organization to be vulnerable to mass defections. Individuals can be faulted in the former but the latter calls for urgent introspective and corrective measures at the level of the leadership.

Two measures with both short-term and long-term implications come to mind. First, political parties need ideological clarity and the ability to attract individuals with a sense of purpose and not love for power alone. This ideological depth if reflected in the party organization and its political programs will give members the ability to withstand lean periods of power. Every party has committed individuals; internal party processes must be geared to identify and promote them into leadership positions. This ties into the second issue. Multiple analyses have attributed the political crisis in Maharashtra in part to Shiv Sena’s inability to accommodate the aspirations of its dissident MLAs. The rebel MLAs on their part have spoken of the Chief Minister’s inaccessibility. The MLAs may be opportunistic but there is no question that political parties are failing to create intra-party forums where grievances can be expressed and resolved on an ongoing basis. Internal mechanisms for inner-party democracy – from elections to deliberative forums – are ultimately at the discretion of the party leadership. Scrapping the anti-defection law would provide some institutional leverage to express intra-party dissidence and while it may be more chaotic in the short-term would lead to greater stability and political strength in the long-term.

Finally, two fundamental questions. In trying to legislate political affiliation – a key freedom in democracy – political parties are repeatedly giving primacy to legal instead of political battles since these issues inevitably end up in court. This repeated ceding of political power to the judiciary is a serious deviation from the democratic paradigm and must be checked. Second, the anti-defection law has undermined not just the very principle of representation but has also contributed to polarization in our country by making it impossible to construct a majority on any issue outside of party affiliation. Instead of providing stability, the law has undermined our democracy. It is time to scrap the anti-defection law.

The writer executive director of the Future of India Foundation

Payal Shah writes: As the US eliminates the right to abortion, global community should act in solidarity for reproductive rights

For half of a century, women and pregnant people in the United States have relied on the right to abortion to make decisions about their lives, health, and well-being. In 1973, the Supreme Court of the United States’ decision in Roe v. Wade established critical protections against violations of individuals’ rights to bodily autonomy, health, and equality. Roe’s legacy was not only felt in America. Around the world, national courts relied upon Roe to articulate their own constitutional recognition of reproductive rights and bodily autonomy, including in India.

On June 24, the Supreme Court of the United States overturned Roe v. Wade in a 6-3 vote, unequivocally eliminating the constitutional right to abortion in the country and sending the decision to state legislatures. Within mere hours of this momentous decision in Dobbs v. Jackson Women’s Health Center, nine states have already banned abortion. Overall, 26 states are certain or likely to ban abortions in the coming weeks.

In many parts of the US, pregnant individuals and health workers seeking to provide abortion will be increasingly subject to criminal penalties for seeking access to abortion even in the early stages of pregnancy. The impacts of these criminal laws will be felt most acutely by marginalised individuals who have limited means to seek safe and legal services and who are already subject to greater criminalisation, including low-income women and women of colour. Some may be able to travel or access medication abortion, but that will not be an option for everyone.

Access to abortion is a human right and essential to ensuring health, equality, and autonomy. United Nations treaty-monitoring bodies and experts have repeatedly recognised the harm resulting from criminal abortion laws, which discourage women from taking steps to protect their health and cause preventable maternal mortality and morbidity. The Special Rapporteur on the right to the highest attainable standard of health has stated that “[w]here abortion is illegal, women may face imprisonment for seeking an abortion and emergency services for pregnancy-related complications, including those due to miscarriages.”

Under international human rights law, countries must repeal discriminatory criminal laws, including laws that criminalise abortion, and ensure that women and other pregnant persons are able to access safe abortion services both in law and in practice. As United Nations Special Rapporteurs stated in their amicus curie brief submitted to the Supreme Court in this case, ‘the United States would contradict international human rights law by overturning its established constitutional protections for abortion access—both by failing to recognise abortion access as necessary for women’s autonomy, equality and non-discrimination and by retrogressing on human rights contrary to international law.’

These rights have now been stripped from people in the United States, as the dissenting opinion of three justices in the Dobbs decision emphasises:

“The Court today says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs… The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.”

Medical professionals recognise that abortion is healthcare. The World Health Organisation has stated that abortion is an essential part of the package of evidence-based, rights-respecting reproductive health interventions. Yet around the world, human rights advocates have documented how criminal abortion bans impede health workers’ ability to support patients’ reproductive health goals.

At my organization, Physicians for Human Rights, we are alarmed that health workers in the United States will soon be placed in the difficult position of having to decide between adhering to new anti-abortion laws or fulfilling their medical ethics to provide comprehensive, evidence-based health care to their patients. Violence and threats against health workers who provide reproductive health services were already rising. The death threats, violence, and obstruction will likely increase as abortion is outlawed in states across the country.

A statement by United Nations human rights experts emphasises the link between the Court’s attack on gender equality and broader struggles for democracy. The experts stated,

“What has happened in the United States today is a profound setback for the rule of law and for gender equality. The excessive use of the legislative process, executive power, and judicial authority over the years to restrict and criminalise abortion rather than to expand it and ensure equitable access to safe abortion services, signals a deeply troubling erosion of democratic values and process.” By allowing states to effectively force individuals to carry pregnancies to term, the Court has placed the US amongst a small set of countries that in recent years have backtracked on abortion rights: El Salvador, Honduras, Iran, Nicaragua, and Poland.

The US Supreme Court’s decision stands in stark contrast to the global trend towards the liberalisation of abortion laws and out of step with other democracies. In countries from Colombia to Argentina to Ireland to the Democratic Republic of the Congo, critical law reform has occurred to remove barriers to abortion.

Similarly, India just last year amended its 50-year-old abortion law—passed just two years before Roe—to further expand access. While decisions are not uniform, in cases spanning issues such as maternal health, access to contraception, forced and involuntary sterilisation, abortion, sexual and reproductive health rights of adolescents, employment discrimination on grounds of pregnancy or childcare, among others, Indian courts have developed robust jurisprudence that not only reflects but also advances global human rights standards.

In the months and years to come, the reversal of Roe may be cited as grounds for retrogression in the jurisprudence of other countries globally. We must not let that happen. We must recognise abortion jurisprudence in the US as the anti-democratic, idiosyncratic, and anti-health development it is and instead, hold its lawmakers accountable for the cruelty, violence, and devastating health impacts that this court decision will cause.

Further, all of us, wherever we live, must push back on the criminalisation of abortion in all its forms. Even in countries like India where there has been recent progress, the continued inclusion of abortion in the penal code—albeit with exceptions—has been documented to have a harmful impact on the exercise of reproductive autonomy and access to care, including on marginalized populations. We must call upon our governments to treat abortion as an essential health service and advocate for reforms to ensure health workers and patients are not criminalised for termination of pregnancy.

In the face of such an egregious setback on human rights, we cannot be silent. We must act in solidarity with pregnant people and health workers under threat, wherever they are.

The writer is the Director of the Programme on Sexual Violence in Conflict Zones at Physicians for Human Rights and the former acting Regional Director for Asia at the Center for Reproductive Rights. She is a Fellow with the International Programme on Sexual and Reproductive Health Law at the University of Toronto Faculty of Law.

Smriti Irani writes: While the West is curtailing abortion rights, the Medical Termination of Pregnancy (Amendment) Act, Surrogacy Regulation Act and Prohibition of Child Marriage (Amendment) Bill, 2021, collectively give new meaning to nari shakti in India.

At a time of distressing furore on social media and the streets against the near-total bans on abortion in the West, India’s generous stance on the termination of pregnancy is a comforting sanctum. Coupled with the moratorium on commercial surrogacy and the proposal to equalise men’s and women’s ages at marriage, India is positioned securely in the highest echelons of countries that safeguard reproductive autonomy.

India’s constitutional ethos commits to the protection of personal liberty through Article 21. Abortion or termination of pregnancy is a woman’s prerogative. While women are exclusively fated to withstand child-bearing – purely on account of their biological predisposition — sociocultural constructs also subject them to a disproportionate share of child-rearing.

The Medical Termination of Pregnancy (Amendment) Act, 2021, is a step in the right direction. It ensures that expectant mothers exercise self-determination in welcoming new life to their homes. Under the aegis of the Act, abortions may be performed up to 24 gestational weeks on grounds of risk to the mother’s life, mental anguish, rape, incest, contraception failure or the diagnosis of foetal abnormalities. The Act navigates the 20 weeks challenge posed by the MTP Act, 1971 and is a nod to advances in the field of health and reproductive science. It is a liberal achievement over countries where abortions are disallowed since conception, even in the most traumatising of circumstances of sexual abuse or incest.

The MTP Act, 2021, attests to the intuition and farsightedness of its crafters. Readiness for and desirability of children decisively shape the life trajectories of mothers, families and children alike. Unwanted pregnancies unexpectedly curtail the life choices of parents, especially mothers, and may limit their mental well-being and personal growth. Further, children born unwanted may suffer reduced opportunities. Illustratively, the WHO links the likelihood of children being born “wanted” to greater parental investments in their education.

Incumbent law and policy-makers have skilfully given reproductive choice a life-cycle twist. Since fertility, child-bearing and child-rearing are unmistakably associated with marriage, by proposing to raise the legal marriageable age for women, policymakers are heralding welcome changes that delay pregnancy. The Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to push the marriage age for women from 18 years to 21 years. The Bill is well-founded in the face of scholarship and evidence cited by the WHO, which holds that adolescent mothers aged 10 to 19 years are prone to higher risks of eclampsia, puerperal endometritis, and systemic infections in comparison to women aged 20 to 24 years. Children born to such mothers additionally face higher risks of low birth weight, preterm delivery and severe neonatal conditions.

It is noteworthy that the unmet need for family planning in terms of limiting or spacing child-bearing decreased from 12.9 per cent to 9.4 per cent between NFHS-4 (2014-15) to NFHS-5 (2019-21). However, on a standalone basis, nearly 7 per cent of females aged 15-19 years were already mothers or pregnant at the time of NFHS-5, a marginal decline over NFHS-4’s 7.8 per cent. Such young mothers are poorly aware of feeding practices and baby care, making them more likely to have stunted or wasted children. Together the MTP Act, 2021 and the PCMA Bill, 2021 — if enacted — can axe the vicious cycle of early marriages, consequent early pregnancies and poor maternal and child health outcomes.

Another underrated policy innovation that the government curated was the decimation of surrogacy bazaars that allowed “renting a womb”. Given global inequalities, India became a lucrative “biomarket” for surrogate mothers. The bodies of poor Indian women became “bioavailable” to the residents of the Global North, spurring commercialisation of motherhood, the commodification of women and their reduction to their reproductive capacity. In a country with a long-standing cultural lineage of revering mothers, careless commercial surrogacy appeared to be in stark contrast with the cultural ethos. Responding to this dissonance, the Surrogacy (Regulation) Act, 2021, replaced commercial surrogacy with ethical, altruistic surrogacy. The Act prohibits couples who are not of Indian origin from availing surrogacy in the country and allows only locals with certified, medical reasons necessitating gestational surrogacy to avail of it. The MTP Act, the Surrogacy Act and the PCM(Amendment) Bill, 2021, collectively give new meaning to nari shakti.

Within this enabling politico-legal apparatus, the government has framed policies that readily coalesce to respect the choices and decisions made by women. Under the aegis of Ayushman Bharat- Jan Arogya Yojana (PM-JAY), a health cover of Rs 5 lakh per family per annum is provided and a wide range of packages pertaining to obstetrics and gynaecology are offered. While the Pradhan Mantri Matru Vandana Yojana (PMMVY) partially compensates wage loss before and after pregnancy, the Pradhan Mantri Surakshit Matritva Abhiyaan (PMSMA) provides free antenatal care to pregnant women on every 9th day of the month, easing the financial burden of pregnant women.

Not only is the government making a concerted effort for reproductive choices to be easier on the pockets of women, it is also promoting safe motherhood through institutional deliveries under Janani Suraksha Yojana and quality, respectful care in labour rooms during deliveries under schemes like LaQshya. These efforts have culminated in a manifold increase in institutional deliveries from 79 per cent in NFHS-4 to nearly 89 per cent in NFHS-5. The ultimate reward to the nation is the greater longevity of mothers as evidenced by the declining Maternal Mortality Ratio (MMR) from 167 per lakh live births in 2011-13 to 103 per lakh live births as of 2019.

The present government evinces the highest regard for its bahuroopi daughters who act — at various points in their life — not only as loving mothers but as sincere students, valuable employees and valorous entrepreneurs. The Beti Bachao, Beti Padhao campaign’s call to ensure that girls are born and nurtured bore fruit in the form of an improved sex ratio of 1,020 females per 1,000 males. Yojanas such as Ujjwala and Jal Jeevan Mission gave many women much needed respite from the drudgery of collecting fuelwood or water so they could partake in other gainful activities. The Mudra Yojana has provided aspiring women entrepreneurs with loans sans collateral and yet another scheme, the Prime Minister’s Employment Generation Programme, has advocated for higher subsidies for women.

While the West is curtailing abortion rights, India is extending the ceiling of permissible abortions. While menstrual hygiene remains a conversation hushed in whispered tones in parts of the world, PM Modi addressed the issue from the ramparts of the Red Fort with 1.3 billion Indians listening intently. By outlawing triple talaq, the government has addressed the constant state of insecurity faced by Muslim women. By proposing to revise the permissible marriageable age, the government has held men and women to the same, unbiased standards. The present government has instilled conscientiousness into the calculus of policy-making with a fervent hope that it will better the lives of the mothers and daughters of India for generations to come. Even as the West retrogresses, India shows the path to a progressive society.

The writer is Union Minister for Women and Child Development

Chander Uday Singh writes: Ram Janmabhoomi-Babri Masjid judgment, Places of Worship Act, make it clear that claims for the right of one denomination to worship in the place of worship of another have no basis in law

November 9, 2019, was a historic day for the Supreme Court of India. On this day, five justices pronounced a unanimous verdict in M. Siddiq v. Mahant Suresh Das, better known as the Ram Janmabhoomi-Babri Masjid judgment. In what was hailed by many as a masterful act of judicial statesmanship, the Bench speaking as one through a judgment ascribed to no individual judge, held that the Hindu parties had illegally planted idols in the central courtyard of the Babri mosque on the night between December 22-23, 1949, thereby desecrating it and ensuring its sealing by a magistrate one week later and that Hindu zealots committed a grave crime by demolishing the mosque on December 6, 1992. It also held that nevertheless, the title to the underlying land must be declared in favour of Ram Lalla Virajman, the deity of infant Lord Ram that had made out the best case of continuous possession and worship from times immemorial. The Sunni Central Waqf Board, as compensation for the illegal desecration in 1949 and complete destruction of their structure in 1992, were to be given five acres of land elsewhere in Ayodhya, while a trust to be established as the representative of the deity would have absolute control of the disputed land and other properties acquired around it.

Unprecedented too, even if not historic, was the celebration organised by then Chief Justice Ranjan Gogoi, who constituted and headed the five-judge bench. This triumphalism would be worth it if the judgment succeeds in closing the door on revanchist claims upon other mosques that were already in the crosshairs of zealots long before it was pronounced: Gyanvapi and Shahi Idgah in Varanasi and Mathura, and as many as 3,000 others scattered around the nation. Indeed, one of their strongest claims to judicial statesmanship lies in the manner in which the Bench explained The Places of Worship Act, 1991, and its effect. In para 97 the justices hold that this law “imposes two unwavering and mandatory norms”: The first is an absolute bar on the conversion of a place of worship of one religious denomination to that of any other religion. Second, to preserve the religious character of every place of worship as it existed at Independence, on August 15, 1947. The only exceptions, carved out in the 1991 Act itself, were the Ram Janmabhoomi-Babri Masjid dispute that was pending in the courts, any cases that had become final by judicial verdict or concluded settlements prior to September 18, 1991, and any monuments governed by the Ancient Monuments and Archaeological Sites and Remains Act, 1958.

The 1991 Act, explained the justices, “secures the fundamental values of the Constitution… it emphasises human dignity and fraternity”, and it provides “a guarantee for the preservation of the religious character of places of public worship as they existed on 15-8-1947”. Para 102, in ringing terms, holds that this Act “imposes a non-derogable obligation towards enforcing our commitment to secularism under the Indian Constitution”, and that this is intended to protect the basic features of the Constitution.

What is one to make then of the spate of suits being filed across the country, court orders directing entry into ancient mosques, videography by court commissioners, searches for religious artefacts or symbolism, and claims for the right of one denomination to worship in the place of worship of another? More importantly, what does one make of the timorousness of constitutional courts when faced with such claims, or their propensity to allow such issues to fester? And what of the throwaway comments or remarks during hearings, which to the media and general public might suggest new avenues to use history and its wrongs to oppress the present and the future? And lastly, does the exclusion of ancient monuments and archaeological sites from the purview of Section 4 of the Places of Worship Act, 1991, make a material difference to these suits?

The first question is easily answered, and not only because of The Places of Worship Act. Insofar as the Act is concerned, the Bench in M. Siddiq (supra) expressly quashed the findings of the Allahabad High Court to the effect that certain types of disputes could be kept alive, or subsequently raised. The five justices elevated non-retrogression to a basic feature of the Constitution. These findings were rendered after noting that many ancient places of worship were built upon the ruins of others, and sometimes even after destroying those that stood before, and that consequently religious artefacts, pillars, stones, carvings, and even idols might have been subsumed within the later place of worship.

Apart from the 1991 Act, it appears from the nature of these suits that they are barred by limitation and are untenable. Judging by press reports, the claims in these suits are based not on title, ownership and continuous possession, but on the right to worship at particular sites. The foundation of these claims is a belief that a sacred temple was destroyed centuries ago, and a mosque was built on the ruins, perhaps using the pillars, stones and carvings of the old temple. Such claims, as held by the Bench in M. Siddiq, are clearly time-barred under the Limitation Act, 1963. Briefly, the justices held that the Limitation Acts of 1908 and 1963 apply even to claims on behalf of a deity or idol. They held that claims of dispossession of property by a religious denomination were barred after 12 years and that claims based on the management of temples or the right to worship were barred after six years.

My second question is clearly rhetorical, and the reader can fill in the answers.

As for the third, it must be said that queries and open-ended discussions during court hearings are par for the course. But when issues as fraught as this one are met with the Supreme Court musing on the possibility of discoveries by a court commissioner — and their significance — and hypothesising about a Parsi Agyari in which a Christian cross might be found, and the “hybrid” nature of such Agyari, some clarifications become necessary.

The Places of Worship Act, 1991, is concerned with one principal question: What was the religious character of a place of worship on August 15, 1947? The Act is not concerned with what existed before the construction of the place of worship, what materials were used to build it, or whether it stands upon religious symbols or icons or artefacts of any other religious denomination. All that matters is whether on the date when India gained Independence, it was a temple, a mosque, a gurudwara, a church, a monastery or any other place of worship. As rightly (and finally) held by the SC in Siddiq, the purpose of the Act is not to correct historical wrongs but to start with a clean slate at our Independence.

That brings me to the last question, on the Ancient Monuments Act, 1958. This Act applies to those ancient monuments and archaeological sites that were notified under The Ancient Monuments Preservation Act, 1904, or the Ancient and Historical Monuments and Archaeological Sites and Remains (Declaration of National Importance) Act, 1951, or those that are declared to be of national importance under the 1958 Act itself. The mosques that are the subject matter of most of these suits are not covered by the 1958 Act, so this is essentially a red herring. However, some other monuments like the Qutub Minar and Taj Mahal are certainly covered by the 1958 Act, but then most of these aren’t places of worship. Occasionally, there are places of worship within ancient monuments, and in such cases, section 16 of the 1958 Act grants them protection that is broadly on par with that which is available under The Places of Worship Act. In any case, this Act bars civil suits in respect of any matters falling within the purview of the National Monuments Authority, so it is unlikely that the 1958 Act will spring to the rescue of these revanchist actions.

The writer is a senior advocate

On June 24, the US Supreme Court overturned Roe vs Wade in its long-awaited decision in Dobbs vs Jackson Women’s Health Organisation involving a challenge to a Mississippi law banning abortion after 15 weeks of pregnancy. Wasting no time, 11 states have already banned or greatly restricted abortion, and others are poised to do the same. According to the Centre for Reproductive Rights, this makes the US “one of only four countries to remove protections for legal abortion in 25+ years”. It also puts the country at direct odds with global trends. As the Centre reports during the last few decades, “monumental gains have been made in securing women’s right to abortion, with nearly 50 countries liberalising their abortion laws”. While some of these countries have abolished their existing abortion bans, of the kind now being advanced in parts of the US, others have introduced more incremental changes, such as India’s recent increase of the gestational limits for terminating a pregnancy.

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Kerala’s electricity regulator on Saturday raised the average tariff across consumer categories by 6.6%, the first hike in almost three years. The increase was modest as the state government’s electricity distribution company (discom) sought an average increase of 18%. The dissonance between the regulator and discom on the right tariff level is a symptom of the perennial crisis India’s power sector finds itself in. Tariffs are not periodically revised, making it hard to bridge the deficit between cost of supply and electricity revenue. An outcome is that total discom losses are huge – it was Rs 5 lakh crore in 2019-20.

The root cause of the power sector problems, however, is the approach of state governments and not the performance of regulators. The Electricity Act allows states to subsidise customers on the condition that they pay the subsidy amount to their discoms in advance. That seldom happens. Consequently, discoms delay payment to power generation companies. Aggregate discom overdue was just over Rs 1 lakh crore at the beginning of June. The delayed payment has a domino effect and there are cash flow problems all through the chain in the power sector.

GoI has tried to address this problem for two decades, but with negligible success. Two critical benchmarks are never met. For example, the Uday scheme aimed to eliminate the deficit between electricity cost and revenue by 2018-19 and simultaneously lower the aggregate transmission and commercial losses to 15%. In 2019-20, there was a deficit of Rs 0.6 per KHw between electricity cost and revenue, and AT&C loss was 20.9%. GoI’s efforts revolve around financial engineering and the incentives are not strong enough to nudge states to make durable changes.

Currently, GoI is in the midst of another effort, a revamped distribution sector scheme, to solve the problem. The efficacy of the scheme will be enhanced through two measures. Regulators need to act on an existing law to notify a road map to adjust tariffs in a way that brings them within 20% of the average cost of supply. Separately, the learnings of the pilot projects of DBT for electricity subsidy carried out in states such as Kerala and Himachal Pradesh need to be debated. A transition to DBT is the only durable solution as public pressure on state governments will lower incidence of payment delays.

There’s perhaps an even larger leadership failure in Shiv Sena than the alleged aloofness of Thackerays. The high number of rural MLAs who have deserted Sena is indicative of how Matoshree’s preoccupation with Mumbai and cash-rich BMC has meant a costly neglect of rural and mofussil Maharashtra. In an ultra-competitive political landscape where every successful player is deepening/expanding its social base, sitting pretty on one’s laurels is not a winning strategy.

BJP has been a top-class player in this game, transforming itself from a middle-class/upper-caste party to a big tent accommodating numerous social groups, the marginalised among them. But there are other examples. In Tamil Nadu, Dravidian parties preserve electoral dominance and don’t let national parties expand too much because they have worked hard to expand their caste and class coalitions over time. In Bengal, TMC outmatched BJP because of its deep organisational network and Mamata Banerjee’s relentless outreach. In neighbouring Odisha, even with Naveen Patnaik as CM for more than two decades, BJD still fights for more in every election, this year scripting history by forming all the zilla parishads. These parties do not take their voters for granted.

Look at BJP and Sena in Maharashtra. The best example is the 2014 assembly election, which they fought separately, thus giving a better idea of each party’s influence. Lokniti-CSDS post-poll survey showed BJP’s vote share was ahead of Shiv Sena’s by 13.9 percentage points in urban areas, 12.3 in semi-urban areas and 6.1 in rural areas. Today, BJP’s energetic inroads into the cooperative sector that has been the backbone of the state’s rural economy, and also an NCP-Congress citadel, are plain to see.

Clever parties know that intense competition for votes also makes voters feel engaged and empowered. Immobile organisations lose connect with today’s restless and aspirational citizens.

The development financing and trade initiatives are welcome, but to the extent that these are in reaction to widening of the Chinese sphere of influence, outcomes may be muted.

A plan by the Group of 7 (G7) rich nations to raise $600 billion over five years to fund specific infrastructure projects in developing countries could offer some respite to economies that have piled on Chinese debt to fund ports, highways and railways. Although China denies its terms of financing are harsh, it has not escaped suspicions of furthering its political and economic agenda through Xi Jinping's flagship Belt and Road Initiative (BRI) to build manufacturing and logistics capacity in low-income nations. By some accounts, 40 countries have exposure to Chinese credit that is over a tenth of their GDP. China has not joined the Paris Club, a grouping of advanced economies that offers loans to the developing world. But it is owed much more than all the club members combined. Most of China's development lending is at rates well above those of the World Bank.

The Partnership for Global Infrastructure and Investment (PGII) commits the US to raising $200 billion and the EU to a further ₹300 billion (about $317 billion) in areas of climate change, digital infrastructure, healthcare and gender equality. This should tilt development lending away from supply chain infrastructure, and from China. Delivered a year after it was first announced, the lending initiative follows US efforts to revive a trade arrangement in the Asia-Pacific to rival a China-led patchwork of free trade agreements (FTAs) in the region. The Indo-Pacific Economic Framework (IPEF) focuses on supply chain resilience, harmonised ecommerce rules, clean energy and anti-corruption, elements missing in the China-backed Regional Comprehensive Economic Partnership (RCEP).

The development financing and trade initiatives are welcome, but to the extent that these are in reaction to widening of the Chinese sphere of influence, outcomes may be muted. IPEF keeps China out by design while inviting all the other members of the bloc. And, BRI, unveiled in 2013, has a decade's head start over the G7 plan. Selling either on democratic values is not going to be easy.

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Fewer and lower GST rates will boost consumption and improve compliance. Bringing petro-fuels and real estate under GST will shore up collections significantly. The GST Council should endorse structural reform.

The tussle over extending the goods and services tax (GST) compensation payout to states beyond June this year continues. Last week, GoI extended the compensation cess until March 2026 only to repay the loans taken to make good the revenue shortfall for states due to the pandemic. This is logical, following the GST Council's recommendations. State finances are in a bad shape. A recent RBI paper (bit.ly/3ympdvQ) expects the fiscal conditions of most indebted state governments to deteriorate further, with their debt-to-gross state domestic product ratio likely to stay above 35% in 2026-27. Given that states' spending accounts for over 60% of total government spending, they need more headroom for social sector expenditure. This bolsters the case for states wanting the Centre to continue the compensation payout to them. If GoI were to agree, the compensation payout must be tied to tight conditions, including an improvement of the states' GST collection effort.

The GST Compensation Act 2017 guarantees a 14% annual growth in tax revenues for the states from the amount collected by them in 2015-16 for five years from FY2018 to FY2022. The cesses are levied on sin and luxury goods including autos, aerated drinks and cigarettes that attract 28% GST. The 14% growth target in GST collections, though, was unrealistic in a slowing economy. This must be reworked. States should also improve tax buoyancy using efficiency gains under GST and digitisation, and muster the political will to levy appropriate user charges in the power sector.

Fewer and lower GST rates will boost consumption and improve compliance. Bringing petro-fuels and real estate under GST will shore up collections significantly. The GST Council should endorse structural reform.

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For the past week, a turmoil in Maharashtra’s Shiv Sena has been at the centre of the nation’s attention but deeper south, a similar tussle is roiling Tamil Nadu (TN)’s All India Anna Dravida Munnetra Kazhagam (AIADMK). Built in the image of the late MG Ramachandran and later, J Jayalalithaa, the AIADMK found itself in crisis after the latter died in 2016. Its response, post a short-lived attempt by VK Sasikala to take over, was to constitute a dual leadership model under former chief minister (CM) E Palaniswami and his deputy, O Panneerselvam. The arrangement ensured the government’s survival for the full term, and though its loss in the 2021 state election was largely a forgone conclusion, the party managed to defend its citadel of western TN.

But now, it appears that Mr Palaniswami’s followers want Mr Panneerselvam’s followers out. In response, the former deputy CM secured a 4 am high court order to restrain the party’s general council from scrapping the dual leadership. The discussion has been stalled for now but the animosity is simmering, hurting a party that is sputtering in taking on the Dravida Munnetra Kazhagam. The parallels with Maharashtra are many. A regional powerhouse finding itself rudderless, its strongholds eroding at the hands of rivals and internal chaos distracting it from political challenges. At a time when the AIADMK should have been checking the DMK’s advance (the ruling party made historic gains in local body polls), it is consumed by conflict. And, it underlines the challenge faced by regional forces in transforming from personality or family-led institutions into organisation-driven outfits.

The two-day meeting of the Goods and Services Tax (GST) Council that starts on Tuesday is the 47th of the body – but it is likely the most important to date. Not because the contentious issue of extending the compensation period (it ends on June 30) is likely to dominate it. When the GST law was passed in 2017, states were assured they would be compensated for the potential loss of revenue on account of moving to the GST regime. The compensation was for five years assuming an annual growth of 14% in revenue. The final payout was made last month, although the GST compensation cess on luxury and sin products will continue till 2026, to pay off loans taken (by the Centre) to compensate the states between 2019 and 2021, when Covid took a toll on the economy. A clutch of states (mostly ruled by non-National Democratic Alliance parties) are pushing for an extension of the compensation period. And even Bharatiya Janata Party-ruled states are hoping for some form of support. Purely from the economic perspective, an extension isn’t a great idea – but such decisions usually involve more than economics.

Not because the meeting is the first after the Supreme Court said in a ruling that the GST Council’s recommendations are not binding, and only have “persuasive” value. Some states cheered the judgment, and saw it as the restitution of powers they gave up when they agreed to GST. As officials in the finance ministry have clarified, this changes nothing. The meeting is likely the most important one of the GST Council because it might review an interim report on rate rationalisation. The GST regime has been characterised by far too frequent rate changes (usually reductions), and the report, put together by a group of ministers (it is headed by the Karnataka chief minister) is expected to suggest ways to broaden the tax base by removing exemptions; review the existing tax slabs; and address the problem of inverted duty structures. It is evident that some exemptions will have to go. It has also been evident that far too many products and services have been pushed to the lower tax slabs. A case can be made that had both these issues been addressed early on, states may well have been in a position where they might have sought an extension of the compensation period.

GST is a fundamental reform; over the past few months, revenues have stabilised at a healthy level; and over the past year, compliance has clearly increased. It is now time to strengthen it.

Agnipath is positioned as a ground-breaking reform by its advocates, while its detractors prophesise it to be an unmitigated disaster. And like any polarised debate, only time will tell which faction was more right. Analysing a fait accompli decision serves little purpose, however, what could add value is going beyond the minutiae and examining the situation from a different perspective.

Even without the Agnipath scheme, the Indian armed forces retire approximately 30-40,000 soldiers every year with decades of productive potential ahead of them. However, our society leverages them largely for security guarding purposes only.

The fact that private guarding is the second-largest vocation in our country is a cause of concern in itself but that is not the point. The point is that the Indian armed forces are arguably our country’s most expensive training academy because as a “per head” expenditure, it costs more to train a soldier than possibly any other professional at that level. And this is not just about the ordnance, man-hours and overheads expended during the training; it is also about live battle experience – which is paid for in human lives, devastated families and at times, lost territories and national humiliation.

It is ironic that the very troops whom India deploys to the United Nations to rebuild war-torn countries, or in aid to civil authorities, or even entrusts our nuclear assets to, are considered fit only for guarding duties by the corporates when they retire. The alumni of such an expensive institution are grossly underleveraged by the nation.

Those who compare the technical skills of a soldier with private sector counterparts or who call out CEOs asking for the number of ex-servicemen they employ, are missing two essential points.

First, the deeper potential of a body of troops is not just their individual technical skills; instead, it is their problem-solving ability, teamwork and a “can do together” attitude as a well-led unit. Troops are not formally trained for handling earthquakes, floods, landslides or forest fires. They are not trained to operate the railways, man civilian air traffic control, the Indian postal service, rehabilitate broken communities or handle pandemics and yet our armed forces have done all of the aforementioned tasks splendidly. Their real potential is the ability to create a force stronger than the sum of its individuals.

The primary focus of the CEO of a private sector company is to create wealth for her shareholders. Put bluntly, she has to reduce the costs of her inputs and maximise profits. If a job can be done by lower-wage personnel, or replaced by technology, there is no reason for the CEO to grant largesse by employing a higher-cost resource. As any security agency will testify, every corporate has been systematically reducing the number of security personnel, negotiating their salaries downward or replacing them altogether with technology. Matter of fact, most of the security guards already do 12-hour shifts contravening labour laws. Placing the onus on the corporate to re-employ ex-servicemen at a higher than the market rate for a commodity service like guarding, is unsustainable.

That onus of creating a more “valuable” ex-serviceman lies with the armed forces and society as a whole. Ironically, the solution lies in the fundamentals of soldiering and imaginative thinking.

It is a golden rule in the armed forces, that no soldier is sent for any task alone. Even the smallest operating unit is a buddy pair. That is the mantra followed for 20 years of a soldier’s service until he is retired. At that point, he is sent to wage his war of resettlement – alone and piecemeal. Sure there are directorates of resettlement which try to reskill the soldier with some purported civilian skills and pretty much leave them to fend for themselves - individually.

What if this was handled imaginatively?

Let’s take the example of one of the corporate leaders who tweeted his eagerness to re-employ ex-servicemen. His company has hundreds of dealerships and workshops. This means they need at least that many workshop foremen and technical supervisors. A soldier who has been trained to operate and maintain sophisticated imported platforms like tanks, missile systems, engineering equipment etc, can strip a jeep or motorcycle and rebuild it blindfolded with some re-training.

Why can’t the Directorate General of Resettlement have strong relationships with every corporate and actively source such combined unit opportunities and in conjunction with that corporate, create training programs which enable hundreds of ex-servicemen to move as a single unit to the said company in locations all over the country?

Consider the advantages to the company. They get a unified workforce which has a natural command structure with common operational vocabulary; without cannibalising internal or external talent pools. These ex-servicemen are localised after retirement in their respective towns and villages with little desire to move towards a larger metro and hence will have low attrition. And finally, since they already have some savings, pension, medical benefits and are staying in their hometowns, they will probably be satisfied with a lower mark to market.

Similar opportunities exist in telecommunications, infrastructure, hospitality, medical, tourism, education, and eldercare, and must be mandated into Atmanirbhar defence projects where a body of troops, trained in conjunction with the host organisation leverages their combined might, instead of being frittered away piecemeal.

The factual efficacy of the Agnipath scheme will bear testament only five years from now. However, the establishment and corporates can enhance the value of existing ex-servicemen by imagineering creative solutions. If that suction is created in the private sector, not only will the current crop of ex-servicemen be better leveraged, but they will act as brand ambassadors and landing pads for the Agniveers when they are discharged.

And meaningful absorption of discharged Agniveers is critical for internal security. There are lessons to be learnt from the disastrous US decision to disband hundreds of thousands of Iraqi soldiers with no livelihood, dignity or hope. Even now, the police is combating tens of thousands of jobless youth agitating violently all over the country on several issues including Agnipath. Unless given an alternative career, five years from now, those agitators could include former soldiers who have been honed to lethality by one of the most combat-experienced armies of the world.

Lastly, it is not just the responsibility of the armed forces or some ostensibly patriotic CEO to rehabilitate our ex-servicemen with dignity. This is a national effort. It is a national hypocrisy that citizens who advocate compulsory military service don’t send their own children into the NCC. It is a national irony that children of armed forces officers don’t want to join the army anymore. It is a national duplicity that citizens receive their military education from jingoistic Bollywood films. It is a national shame that despite orders of the Supreme Court, thousands of our disabled ex-servicemen are dragged through courts for years, by their own ministry to get their due. And its a national disgrace that bereaved families of fallen soldiers are left to fend for themselves.

Soldiers don’t fight because they hate the enemy in the front; they fight because they love their countrymen in the back. And if we expect our soldiers to lay their life on the line — for our safety, we need to put our money where our mouth is — for their dignity.

Raghu Raman is founding CEO, NATGRID, and a former soldier

The views expressed are personal

The implementation of the Goods and Services Tax (GST) on July 1, 2017, was a landmark reform. The reform is still evolving, and the GST Council meets today to deliberate on the rationalisation of the structure of the tax. One important matter that the states will push is the issue of extending the period of compensation in the revenue shortfall to a few more years. All states have been facing shortfalls of various magnitudes and want the assurance of minimum revenues for a few more years, until the tax stabilises.

The GST reform has led to many gains, and these include creating a stronger common market by removing impediments to the movement of goods, minimising the cascading effect of the tax, and reducing the compliance burden on taxpayers by subsuming all domestic trade taxes on goods and services in GST. However, unlike in many other countries, GST is yet to become a “money machine”. The disappointing revenue collection is not only due to the economic slowdown caused by the pandemic, but also due to the inability to stabilise the technology platform, leading to significant evasion of the tax. The good news is that the post-pandemic economic recovery and the improvements in the technology platform have helped generate revenue collections of more than ₹1 lakh crore every month, during the last 10 months and the improvement is likely to continue.

Implementing GST by combining 13 domestic trade taxes levied by the Centre and states was by no means easy. It involved building consensus on the structure and operational details of the tax among states and Union Territories, besides the Centre. To persuade the states to agree to the reform, the Centre agreed to compensate them for the shortfall in their revenues for five years. The shortfall was to be calculated by applying 14% growth over the revenue from the taxes subsumed in GST, taking 2015-16 actuals attested by the comptroller and auditor general. To finance compensation requirements, the compensation cess was levied on luxury and “non-merit” goods such as aerated drinks, coal, pan masala, cigarettes and automobiles over the peak GST rate of 28%. However, as the pandemic struck, the revenue from cess fell well short of the required amount and the Centre borrowed and transferred to the states ₹1.1 lakh crore in 2020-21 and ₹1.59 lakh crore in 2021-22 from the Reserve Bank of India (RBI).

To service this debt, the period of levying compensation cess has been extended till March 2026. However, the period of compensation to the states ends on June 30. Many states are naturally concerned with the lack of assurance on stable revenues from the tax after June 30 and want the Council to recommend extending the compensation period for a few more years. Their argument is that the reform is still evolving, the technology platform is yet to fully stabilise and the promised improvement in the compliance to enhance revenue buoyancy is yet to materialise. As GST is the most important tax, they seek to extend the period of revenue protection for a few more years. Thankfully, the buoyancy of the tax has shown a significant increase in recent months and is likely to show further improvement with economic recovery and better compliance, and therefore, the revenue consequences of discontinuing the compensation payments to the states may not be large. Nevertheless, the states would want the comfort of assured revenues from the tax.

The Centre, on the other hand, is concerned about the additional burden of providing compensation due to limited fiscal space. Even as the compensation cess was extended up to June 2026, the entire proceeds of the compensation cess will be used for servicing and repaying loans. Besides, the compensation formula adopted so far by assuring 14% growth every year was too generous as the actual growth of the subsumed taxes in GST in the preceding three years was just 8.9%.

It remains to be seen how the Council will tread on the issue. The tax is still evolving and needs important reforms. The reforms include pruning the exemption list, rationalising the rate structure and bringing petroleum products and electricity into the ambit of GST. These can be carried out only when the states agree. The recent Supreme Court judgment that the Council is merely a recommendatory body and the sovereign rights for changing the structure and operations rest with the Parliament and state legislatures has increased the bargaining power of the states and has made it necessary to build consensus for reforms. Assuring the states of the comfort of minimum revenue guarantee could be used as leverage to reach agreements. The Council will do well to fix the benchmark by limiting the growth to 8-10% from the actual revenue collections in 2021-22. As the economy recovers and with the improved compliance, the actual growth in revenue would be higher and this may obviate the need for compensation by many states. It remains to be seen how the Council will tread this difficult path.

M Govinda Rao is chief economic adviser, Brickwork Ratings. He is a former member of the Fourteenth Finance Commission and former director, NIPFP

The views expressed are personal

India’s relations with the United States (US) are going through a curious chapter. On the one hand, there is a deep commitment to this unique relationship. This promise is more than noticeable in both letter and spirit. Quad’s expanding footprint, albeit in mainly non-military domains, is striking. The potential embedded in the newly unveiled Indo-Pacific Economic Framework (IPEF), led by the US, to which India has lent its name, could be compelling. A brand new initiative led by the national security councils of both countries on Critical and Emerging Technologies (CET) is one of the most dynamic and functionally useful pathways to coordinate, assimilate, safeguard, and grow bilateral technology partnerships.

Notwithstanding all the noise around data localisation and disagreements over India’s e-commerce regulations, big tech firms are expanding their Indian footprint. Venture capitalists in the Bay Area and in New York are raising the investment weightage allocated for India.

As for spirit, one need look no further than the US national security advisor Jake Sullivan’s positions on India. As Sullivan recently stated, “On the question of Russia we have different historical perspectives, different muscle memories.” “The dialogue,” he argued, “we have going with India right now will bear fruit over time.” This is, in many respects, the strategic pitch offered and mostly accepted by those in different parts of the executive branch in the US. Kurt Campbell, who leads work on the Indo-Pacific in the White House, stresses that the “key is to remain purposeful.” The “most important relationship,” according to Campbell, “is likely to be with India.”

In sum, the leaders get it.

India’s current position on Russia — informed by its dependence on Russian military supplies, ever-deepening Sino-Russian ties, and concerns over Sino-Russian influence in South Asia — is today largely understood in the corridors of executive authority in the US.

Yet, on the other hand, the deep disappointment over India’s divergent position on Russia is evident, too. The gulf between official rhetoric and the less formal exchanges with technocrats and experts alike, present a varied picture of the state of the relationship. To be sure, long-time India watchers are notably vexed.

“Washington’s patience is not endless,” Lisa Curtis, a former senior official in the administration of President Donald J Trump, argues. “The longer Russia prosecutes its war without India changing its position,” Curtis suggests, “the more likely the United States will be to view India as an unreliable partner.” To be sure, India’s continuing import of Russian oil, especially at a time of skyrocketing inflation and the global slide towards a recession, appears to have become something of a proxy for the disillusionment with India. In the US Congress, too, the churn is more than noticeable. “Why aren’t we applying secondary sanctions against countries . . . that are increasing their imports from Russian commodities?” asked Senator Chris Van Hollen, a Democrat. This was in April.

Fast forward to June, the verve underlying Van Hollen’s sentiments remains acute. Any exchange with congressional staffers and the wider American commentariat, especially the much larger community of non-Indian specialists, serves as a clear reminder of the bifurcation that exists in the US between encouraging leader-led advances and the political echo chamber on the Hill, and outside.

To be clear, given the extent to which the American leadership has bet on India, it is not hard to ignore the vocabulary of dissent outside of the executive office. How does it matter what former officials and elected representatives advocate, is a question that is easy to reconcile in the comfort of Quad and IPEF alike. Yet, as the much-debated nuclear deal with India (2005-2008) underlined, these external forces are crucial in times of need. To be clear, the Indian argument is no mystery, largely thanks to the considerable efforts of the Indian external affairs minister and the ministry of external affairs (MEA).

Yet, it is important to think tactically about sustaining and rebuilding the bridges of friendship with many of those who remain vested in the relationship with India, and who at the same time offer caution about its current projection. There is a role for think-tanks and a need for informal ties that is invaluable at this time of stark difference and change. India has a view; many in America do too. It is not necessary to reconcile positions, but a sustained set of exchanges is imperative.

Further, notwithstanding the White House’s deep commitment to India, there will be a moment of reckoning that will come. However, its form and shape are hard to estimate. Hence, as much as India’s position on Russia is indeed distinct, and rightly so — after all, it is shaped by imperatives that are unique to India — it is worth using this time well to strategise for the future.

There is a need, more urgent than otherwise assumed, to be clear-eyed about what India may want from the US and its military-industrial base and what it wants from partners such as France, the United Kingdom, and others. The MEA has bought India time — this is clear as daylight in the grammar and actions of America’s leadership. Down the line, other organs of the Indian State need to seize this moment of change, and pivot. Administrative inertia, especially in planning India’s defence future, will be far costlier than the criticism around India’s current position on a tragic and unjustifiable war launched by Russia, a country that has less and less to offer its old friends.

Rudra Chaudhuri is director, Carnegie India

The views expressed are personal

On April 28, the Indian Computer Emergency Response Team (CERT-In), the statutory body for cybersecurity, issued a sweeping directive. It mandated “service providers, intermediaries, data centres, body corporate and government organisations” to abide by a range of diktats, mostly relating to cybersecurity incidents. This directive, which came into effect on Monday, was not only an embarrassing misadventure but also raised worrying questions about the competence of India’s cybersecurity agencies in maintaining a healthy cyberspace and guaranteeing the resiliency of its economy and citizens.

CERT-In mandated organisations of all hues to notify a cyber incident within six hours and send incident details to an email address or call centre. Because the thresholds of what constitutes an incident are subjective, topical and environmental, that email address or call centre is likely to be spammed with notifications. CERT-In also wants organisations to store logs for a period of 180 days. Evidence gathering in cyber incident response is driven by observation over stretches of time. That observation is aided by raw event data or logs. A single such device can spew gigabytes of logs per day. The overhead of maintaining that level of observability remains unaffordable for most organisations. CERT-In has stepped into a policy quagmire by not only directing organisations on the information it wants, but also how.

Even if we discount the lack of nuance as bureaucratic lethargy, the directive raises serious questions by saying it is guided by the national security consequences of cyber incidents. Whether national security imperatives drive Section 70(B) of the Information Technology Act, from which CERT-In draws its power, remains debatable.

In international relations, the term “referent object” is used for the element that is threatened or needs to be protected. Within cybersecurity, there is no singular referent object to drive consensus upon. If the economy is the referent object, then national security may get less emphasis as businesses are averse to sharing information. For the nation-State, the referent object could be the internet as a global common. Therefore, the referent object could be the State, individual, business enterprise or even the internet, but with some overlap.

With this relative distinction, the questions on the whys and hows of protecting these referent objects become even more divergent. Cybersecurity and national security may not go hand in hand. That is why previous legislative attempts — such as the Obama-era Cybersecurity Information Sharing Act — to foster public-private partnership (PPP) did not gain much traction. Even the authoritarian Chinese government had to backtrack when it forced the mandatory linking of online identity with physical identity for cybersecurity. Yet, it also shows that PPP, in whatever shape or form, underpins national cyber resilience. It is where the CERT-In directive falters. As the agency of a democratic State accountable to the public, CERT-In shows little reciprocity in how it will assist organisations in lieu of the valuable information it is seeking from them. With an impetus on gaining, instead of exchanging information, the foundations of PPP would crumble. CERT-In’s contemporary in the United States (US), the Cybersecurity Infrastructure Security Agency, is already taking PPP to the next level by focusing on operational collaboration.

CERT-In has bitten off more than it can chew. This directive sounds like it was written in the 90s. It was a possible overreaction to the vulnerable domestic cybersecurity environment and the threat from an aggressive China. India’s cyber agencies have struggled with high-profile investigations such as the intrusion into the Kudankulam Nuclear Power Plant. In this era of lightspeed cyber attacks, CERT-In’s detection mechanisms remain manual. It also apparently failed to study the notification laws of many democracies that explicitly focus on data breaches and not generic cyber incidents. For example, in Australia, the referent object is clearly defined — “any individual at risk of serious harm”.

CERT-In’s plan to hoover up troves of sensitive data, without a privacy law, is quixotic. The directive should be rescinded or face a challenge in court. The only avenue to instate a notifiable national cyber incident regime should be through the legislature, subject to democratic deliberation.

Pukhraj Singh is a cyber intelligence analyst who played a key role in the setting up of India’s cyber defence operations centre. He is a graduate student of cyber geo-strategy at UNSW Canberra (Australian Defence Force Academy)

The views expressed are personal

As I write this piece, I locate myself within the mental health system and the queer community. When I was studying psychology back in 1998-2000, the representation of people like me in psychology textbooks was pathological. There was not a single reference to my identity as a lesbian being portrayed in a positive light. I was not comfortable with my sexuality back then, and these textbooks only made things worse for me.

Later, I studied at a university in Mumbai that was somewhat accepting — but in a cautious, quiet way. In Mumbai, I was lucky enough to meet queer people who helped me in my journey of self-acceptance. What this part of my life taught me was the all-pervasive environment of stigma and shame that surrounds LGBTQI+ people.

Only heterosexuality, along with rigid ideas of man and woman, is considered "normal" in our society. This inequality regarding gender and sexuality has a definite role to play in the adverse mental health impacts on queer and trans people. The LGBTQI+ community lives in a society that devalues, pathologises, and erases their identities and lives daily. We can imagine then what a struggle it becomes to simply be oneself.

Over the years, I have engaged with the mental health system and queer-trans lives through therapy, research, and teaching. And with this in-depth understanding, as well as experiences of my own life as a lesbian, here is a glimpse into the lives of the LGBTQI+ community and their lived experiences in a discriminatory society like ours.

The queer community faces two kinds of stress: One, which is unique to their life, and two, from the lens of being a minority. These stressors arise because they live in a prejudiced society. The second stress, the "minority stress" (Meyer, 1995), can be understood in the context of other social and cultural minority groups. For instance, cis-gender and heterosexual people do not face either of these stressors because their ways of being largely fit the social rules that govern society.

Here is how these struggles manifest themselves in the queer community:

One, difficulties with self-acceptance: Queer-trans people grow up in a world that has no representation of their authentic selves — where literature, media, and family life often showcase only heterosexual persons and their lives. It is very hard to believe that one may be different, and that this difference is normal and natural. People often grow up feeling a sense of alienation, leading to self-hate, shame, or even disgust because they believe what the world tells them — that it is wrong to be you and to be true to yourself.

Two, the struggles of coming out: If their sexuality/gender is different from cis-heteronormativity, then, at some point, they need to face the truth about themselves and eventually, tell others. This process is known as "coming out". Heterosexual people never have to come out about their sexuality because society already has created a space for them. Coming out is stressful because the responses from others are often hostile, and even violent. Additionally, coming out is a continuous process. With every new person, every new space, a queer person has to assess whether or not to come out due to the fear of negative reactions.

Three, invisibility: Often due to this fear of negative and violent responses, LGBTQI+ people hide the truth about themselves and their lives. This may lead to them living double lives and censoring their truth. Even if they are trying to be fairly open, people around them do not engage with this part of them, leading to erasure and silence. Thus, they end up living isolated lives with little or nothing to do with the outwardly heterosexual world.

Four, the struggle of family acceptance: Typically, families find it hard to accept their queer children. Families attempt to "convert" their children into heterosexual and cis-gender persons. This leads to forced heterosexual marriages, intrusive medical interventions, "house arrests", and a similar range of responses. Covid-19 brought about the discrimination and violence faced by queer folks at the hands of their families, as they were forced to stay home due to lockdowns and restrictions on movement. Often, families stop talking to their children and throw them out of the house, rendering them homeless. Some may continue to engage with the child, but not with their sexuality. That continues to remain a taboo topic within the family. Even in adulthood, queer people often continue to be estranged from their families. In a culture like ours, imagine the tragedy of losing out on your family as a support system because they can't accept your truth.

Finally, and most crucially, systemic violence: Queer folks continue to be pathologised and devalued by health care systems, the media, policies, education institutions, science, and research. These systems try to maintain social rules (which often classify people into binaries and put them in boxes) and erase the diversity of gender and sexuality that naturally exists in our society. Representation is usually incorrect and harmful, thereby adding to the distress that queer people already face.

Since I am from the mental health field, I would like to speak directly to mental health practitioners (MHPs). And here I say to you: All bodies, genders, and sexualities are normal and natural, but you won't find this written in any psychology textbooks. I have dedicated many years of my life to fighting this prejudice in the mental health field, and I would like to invite MHPs to join the fight. I have co-authored and just launched a 500-page book, Queer Affirmative Counselling Practice: A Resource Book for Mental Health Practitioners in India, and is available on the Mariwala Health Initiative website for free. This can be your starting point to becoming responsive, and responsible, practitioners for your LGBTQI+ clients.

My appeal to everyone reading this piece: We need to recognise that mental health stressors that queer people face are not because something is inherently wrong with them. They are introduced into their lives by the negative attitudes and the rigid — and arbitrary — rules of our society. Understanding this gives every person in our society an opportunity to play a role in minimising these adverse effects.

If each of us were to try and be more open, unlearn our prejudice, read more about the LGBTQI+ community, engage with queer and trans folks in our everyday spaces, express genuine acceptance, and stand up against bullying, we won't just create a world that is a safer place for queer-trans folks, but it will be enriching and strengthening for all of us to understand and openly embrace a marginalised community.

Shruti Chakravarty, PhD, is a mental health practitioner, researcher, trainer, and social worker. Her areas of engagement have been mental health, gender and sexuality, from a rights-based perspective. She is also chief adviser, Mariwala Health Initiative.

You can find her at @pawlyamorous and @mariwalahealth on Instagram.

This is part of a special HT Premium series, spanning personal essays, reportage and analyses, to mark Pride Month

The views expressed are personal

Data-driven environmental metrics can improve public health, enhance ecosystem vitality, and ensure that both public and private investments in sustainability provide maximum returns. By attacking the 2022 Yale-Columbia Environmental Performance Index (EPI) and the signals it provides as to where India needs to improve its sustainability efforts, the Indian government has turned aside an important policy tool that might help it to deliver better air quality, safer drinking water, a smoother transition to a clean energy future, as well as truly sustainable development for the Indian people.

Critics from the ministry of the environment, forest and climate change and several academic commentators have quibbled with the EPI’s methodology and declared that the data-driven and carefully structured EPI results are “biased.” But lashing out in the face of clear facts about India’s environmental shortcomings is the wrong instinct. Rather, the country should see its low 2022 EPI ranking as a call to action – as many other countries (including Singapore, Turkey, the United Arab Emirates, Oman, South Korea, and China) have done when faced with disappointing EPI scores in the past.

India has made commendable progress in expanding renewable energy, but remains the third-largest and second-fastest growing source of greenhouse gas (GHG) emissions in the world. The Indian government and other EPI critics seek to justify India’s continued environmental degradation and accelerating GHG emissions by invoking the equity principle of common but differentiated responsibilities (CBDR). While CBDR applies to the climate crisis policy broadly, it does not sanction ever-growing GHG emissions.

Indeed, the Glasgow Climate Pact, approved by 197 countries last November, including India, sets a goal for all countries to move to net-zero GHG emissions by mid-century – and to begin the transition to a clean energy future now. The climate rankings based on historical or per capita GHG emissions are not relevant in the context of this goal – nor for the EPI more generally, which focuses on current policy outcomes.

Suggestions that the EPI does not respect equity concerns, is biased against poorer countries, or is “tone deaf on ethics” misunderstand the purpose of its analysis and the structure of the sustainability metrics on which it is based. With regard to the projected 2050 GHG emissions indicator, several developing countries, such as Botswana and Namibia, earn top scores, belying any suggestion of bias against poorer countries. Moreover, India is not alone in being called out for underperformance on GHG emissions policies. The United States, China, and Russia all earn low climate rankings, based on their recent emissions trajectories.

More importantly, most of the EPI indicators relate to environmental issues that are local in scope – such as air and water quality, waste management, and ecosystem protection – meaning that the critical equity considerations are domestic, not international. And indeed, it has been unequivocally demonstrated that India’s lagging performance in air pollution, lead exposure, water quality, and other sustainability issues disproportionately burdens the country’s poor.

The Indian government’s claim that the EPI indicators and weighting framework are biased overlooks the EPI’s 20-year track record of methodological rigor, careful data science and statistical analysis, transparency, and commitment to continuous improvement. The EPI indicators build on cutting-edge scientific findings and data sets drawn from leading international organisations and research centres. New indicators are added over time as global policymakers sharpen their focus on particular issues. The EPI structure and indicator weights thus vary over time. In this regard, the new metric focusing on projected 2050 GHG emissions responds directly to the international commitment to reach net-zero emissions by mid-century that emerged from last year’s climate change summit in Glasgow.

Tracking 40 different indicators across 11 major policy categories, the EPI offers a quantitative view of the progress countries are making toward a comprehensive set of environmental, public health, and clean energy policy targets. India’s low overall ranking is not based on its high level of GHG emissions alone.

To the contrary, the country’s low rank results from sub-par performance on a wide range of pollution control and natural resource management issues. Even if one were to adopt the methodological refinements proposed by the Indian EPI critics, the data would still place India in a lagging position with regard to many of the environmental challenges highlighted by the UN Sustainable Development Goals. Thus, no amount of hand-waving by Indian government officials can change the fundamental fact revealed by the 2022 EPI – that the Indian people face some of the most severe pollution threats found anywhere in the world.

The conclusion is clear: Indian political leaders at the national, state, and local levels need to step up their game across a wide range of sustainability issues. In the search for improved policy strategies and programs, the EPI’s comparative analysis – especially across peer nations – offers a useful way to identify top-tier performers and environmental best practices.

Martin Wolf is the project director, 2022 Environmental Performance Index. The full 2022 EPI report, including all of the underlying data, can be found at epi.yale.edu.

The views expressed are personal

Our bodies are always in relation to different categories of identity. These categories (like our names, which often determine our biological sex) have become an intimate part of our life: They determine what we can and cannot do. For instance, if you identify as heterosexual, then according to the template, your homosexual desires will have to be shunned to adhere to the status quo of the "heterosexual" category.

Let's use an example: Say, if you are "Rohan", then over the years you've created a template of behaviours based on your other identities. If you sway from that template at any point, you will often hear the words, "you have become different now." In this way, all kinds of categories, and their templates, hover around us, pulling our bodies into their force which constantly monitors and controls our desires that transcend the status quo. Then why are these categories or names important? What is their relationship with language? And how can we destabilise them?

Now, let's break into the politics of language and gender.

Names are essential to establish ourselves in the world. Physical (and even literary) bodies are bound to this categorisation. A physical body is assigned gender, such as male — based on the biological sex — which becomes a vital identity for the body. After this, the body is also given a name (an identity in itself), such as Rohan. Then, both the categories (male and Rohan) need to come together to form a masculine body (with pronouns he/him). So far, so good: All of us have a (legal and preferred) gender, name, a set of pronouns, and other socio-cultural identities that establish us in the world.

All these identities socially construct us and our bodies through language. But they have come to gain more power because, along with medical and legal institutions, we treat names as ontological truths about the body. For instance, Rohan's Rohan-ness, i.e., the essence of the name, tells us about the body as much as Rohan's masculinity, the essence of the category 'male' tells us about how masculine the body is. Hence, even if a body is physiologically masculine, it must be rooted in a (socio-culturally accepted) masculine name. Such are the entanglements between these categories — rooted in language — and gender.

So, how can our commitment to names and naming be ruptured? What might happen if bodies do not have a name? Or when they do not want to align with a given name? Or when they desire to have more than one name? It is crucial to think about this because biology provides a list of genitalia and hormones needed to classify a body. Similarly, socio-cultural institutions provide a list of names, pronouns, and genders, which are then classified as masculine or feminine. We already have a list of names and pronouns to choose from, if the medical institution tells us that a person is male.

However, when a person — legally, socially, and culturally — adheres to reducing their multiplicity into singularity by entering a name, there is always a spectre of contamination that haunts them.

Imagine this case: After growing up, Rohan's desires lead him to choose a predominantly feminine name, Roshni, while wanting to stay with his male genitalia — i.e., his male status — while selecting the pronoun "they". In Rohan's case, this nit-picking of various identities does not work to align different aspects of Rohan's identity (male, Rohan, Roshni, they) to form a combined whole. Instead, it works to contaminate what society treats as an essential aspect of one's life — identity as ontology (where clarity on their identity will force them into boxes). On the one hand, Rohan's Rohan-ness will be contaminated by Rohan's Roshni-ness. On the other hand, Rohan's Roshni-ness will be contaminated by Rohan's Rohan-ness. All the while being contaminated by Rohan's choice of the pronoun "they" and not "he/him/his" as prescribed by Rohan's (legal) gender.

From this example, we see how Rohan's desire to experience gender in multiple ways confuses society's categorical impulses. Rohan's identities do not match or align with Rohan's sartorial and/or physiological composition. The desire for more is essential because the law makes us believe that it is not only important to enter (socially and legally sanctioned) identity categories, but also to adhere to such categories' rules. If you are masculine, you should wear masculine clothes and adhere to other masculine ideals. And if you wish to be feminine, you must enter the feminine category through surgery or other legal measures. Because your pronouns, what you wear, and what your gender is must align in a straight line to form an unambiguous body.

In Rohan's case, India's federal judicial system provides Rohan with three possibilities.

One, to remain within the boundaries of the male category. This option will require Rohan to continue with his present name and legal pronouns he/his/him.

Two, to change his gender from male to female. In such a situation, under Section 7 (sub-section 1) of the Transgender Persons (Protection of Rights) Act, 2019, Rohan can legally and medically change their sex from male to female. This change will allow Rohan, under sub-section 2 of the Act, to issue a certificate indicating Rohan's new gender; sub-section 3 of the Act will permit Rohan to change his name to Roshni on the birth certificate. Rohan will then be known as Roshni in all legal and administrative documents.

Three, to identify as transgender. In this circumstance, Rohan can choose, according to the progressive National Legal Services Authority vs Union of India (NALSA) judgment, to "determine whether to opt for male, female or transgender classification." According to the NALSA judgment, Rohan can choose to be neither male nor female by inhabiting the "third gender" category.

While the law needs to know if Rohan is "male," "female," or "transgender," the problem in the face of the law is that Rohan may desire multiple identities. Rohan's desires — of wanting to be Roshni while wanting to be male and desiring to be called "they" — threaten to rupture society's classificatory impulses. Rather than fixing their body within the templates provided by medico-legal and socio-cultural institutions, This example shows that Rohan's desire cannot and does not aim to suture their body onto identities provided by legal categories.

North America, allegedly considered a supplier of progressive discourses on gender and sexuality, is the perfect example. People in North America change their name from A to B to never return to A. Queerness in India, on the other hand, has its logic and movement. In India, people have more than one name and comfortably shift between different names. Our desire operates in another logic, constantly influenced by myriad cultures, histories, and languages. Some Indian languages do not even have pronouns.

Similarly, when the West insists on the purity of names, Indian sensibilities respond with impurity, often mixing various names. Scholars such as Ruth Vanita, Saleem Kidwai, Madhavi Menon, and Anjali Arondekar have written about moving away from America to honour South Asia. Our land is brimming with multiple cultures and histories of gender and sexuality despite being treated as backward — in popular discourses, especially regarding conversations on gender and sexuality. It is vital to not suppress our nuances in a frenzy of catching up with the "progressive" West.

It is time for our queerness to speak back to the West by asking: What's in a name?

Roshan Roy is a recent post-graduate Ashokan scholar (ASP) in advanced English studies and research. Apart from working as an independent scholar of gender and sexuality studies, s/he is a musician from Goa

This is part of a special HT Premium series, spanning personal essays, reportage and analyses, to mark Pride Month

The views expressed are personal

New Delhi: The myth that the Presidents of our Republic were mere “rubber stamps” of the executive must be busted. For our Constitution, while not envisaging an adversarial presidency, affords adequate room to occupants of the highest office to disagree or have a differing perspective from that of the council of ministers on whose advice they’re bound to act. While they cannot lead governments by their nose, they certainly can nudge them toward the constitutional scheme on seeing them go astray.

It is time to walk back in time as the country is on the verge of electing its 15th President — the choice being between the National Democratic Alliance (NDA)-proposed Droupadi Murmu and the Opposition’s Yashwant Sinha. As the campaign progresses, there indeed will be a debate, howsoever academic, on whether the Presidency is about social identity or experience-cum-merit or both. The first attribute seems to have gained precedence in recent years, starting from the election of Pratibha Patil, our first woman President handpicked by the Congress-led United Progressive Alliance. The trend which continued with her NDA successor Ram Nath Kovind, a Dalit, is reinforced by the candidature of Murmu, the first tribal woman who is certain to romp home on the strength of the Bharatiya Janata Party (BJP)-controlled ruling coalition’s numbers in the electoral college.

In the past, we have had Presidents with underwhelming records. But the non-application of mind of a few, or their tendency to sign on dotted lines, does not take away from the legacy of a majority of the Rashtrapati Bhawan’s 14 occupants since Independence. Barring a couple, most among them were people of substance. They had a mind of their own and yet found acceptance of the prime minister of the day.

That the equation has worked without major upheavals is a tribute to the Constitution the people gave themselves and those they elected. As our presidency isn’t an executive presidency, it is widely accepted that the PM must have the president of his choice to make the constitution work in word and spirit.

Exceptions to this consensus were our first President Rajendra Prasad and his 11th successor, APJ Abdul Kalam. They both weren’t the PM’s first choice; the former in Jawaharlal Nehru’s time and the latter during Atal Bihari Vajpayee’s tenure. An agreement was worked around the latter’s name after opposition from within the BJP to then vice-president Krishan Kant’s candidature and the lack of support from allies to PC Alexander, a one-time top aide of Rajiv Gandhi who had also served as the governor of Maharashtra.

A major reason for the compromise forced on Vajpayee was his coalition regime’s dependence for support on Chandrababu Naidu’s Telugu Desam Party. Together with the Samajwadi Party’s Amar Singh, Naidu zeroed in on Kalam after the elimination of Kant, his first choice for the RP Bhawan with which Vajpayee agreed.

As for Prasad, then the president of the constituent assembly, it is recorded history that Nehru wanted another equally tall freedom movement leader, C Rajagopalachari, who held the office of governor-general before the constitution of Independent India came into force on January 26, 1950. As dwelling further on it would be wading into contrarian versions of history, suffice it to say that Prasad eventually became President and swore Nehru in as PM on January 30, four days after himself taking office.

For the 12 years that he was the President, Prasad struck common ground and differed with Nehru on a host of issues, notably the Hindu Code Bill and the place of religion in politics which saw them standing apart on the desirability of the President’s presence at the inauguration of the rebuilt Somnath Temple (which Mahmud of Ghazni had ravaged in 1026 AD). The speech Prasad delivered on the occasion was proof of his willingness to respect the PM’s standpoint without giving up his own on the complex question of state and religion. A passage historian Ramachandra Guha quotes from Prasad’s address in his book India after Gandhi, reads: “I respect all religions and on occasion visit a church, a mosque, a dargah and a gurdwara.”

Presidency’s 1975 low point was an aberration

Sans Fakhruddin Ali Ahmed, who signed the 1975 proclamation of Emergency almost like a robot, earning in the process the low-brow sobriquet of being Indira Gandhi’s rubber stamp, most Presidents acquitted themselves with grace and an intellectual heft that was entirely their own. Very much in that category were the second president, S Radhakrishnan, Dr Zakir Hussain, VV Giri, Neelam Sanjeeva Reddy, R Venkataraman, Shankar Dayal Sharma, K R Narayanan and Abdul Kalam.

In fact, diplomat-academician Narayanan whose learning made incidental his Dalit credentials, broke new grounds by returning the government’s recommendation for the dismissal of two state governments: Kalyan Singh’s in UP in 1998 in Inder Gujral’s time and Rabri Devi’s in Bihar a year later when Vajpayee was the PM. He was also the one who cautioned the latter against his move to review the constitution. “Let us examine whether the Constitution has failed us or we have failed the constitution,” he famously remarked in his address on the Republic’s golden jubilee.

Setting an example of matured leadership, Gujral went on record to say that his government saw wisdom in the President’s action and wanted it to prevail in UP (by restoring Kalyan Singh). The Rabri regime came alive later with the government lacking the numbers to have her dismissal ratified in the Rajya Sabha. LK Advani too praised the explainer Narayanan put on the file while assenting to the invocation of article 356 in Bihar after the cabinet’s decision was sent to him the second time. The second referral had left the President with no option except to agree as per the constitution.

The Vajpayee regime also let the Presidency have its way on the question of posthumously conferring the Bharat Ratna on VD Savarkar. Vajpayee had mooted the latter’s name after accepting Narayanan’s suggestion to confer the honour on Shehnai maestro Bismillah Khan. He gracefully withdrew his proposal when the President sat on the file for several months. “The events defined the majesty of the Republic enhanced by the maturity of the leaders of the time,” recalled S N Sahu, who served as an OSD and press secretary to the President.

The pizza presidency and the one that contemplated sacking the PM

Of the remaining Presidents, the tenures of Patil and Kovind, the outgoing president were marked by an ‘acquiescence of silence’ in the face of tumultuous happenings. They spoke little, and did even less. The standing joke about Patil was that the only change she brought about as India’s first woman President was to make presidential chefs churn out pizzas with chickpea flour base. “At times, she came across as a sarpanch who let her husband call the shots,” recalled an official who served her Presidency. There are similar stories one desists telling about the present incumbent out of respect for protocol.

For his part, Giani Zail Singh, who began the seventh presidency by offering to sweep the floor to show his loyalty to Indira Gandhi, came dangerously close to violating the constitutional scheme of separation of powers, by contemplating Rajiv Gandhi’s dismissal on the advice of political eager beavers having his ear. Saner advice eventually prevailed, averting the constitutional overreach of the presidency sweeping out an elected regime.

To his credit, Singh, as the country’s first Sikh president, had acted with courage and sanity by swearing in Rajiv as PM (before his election as leader of the Congress Legislature Party) in the tumult that followed the assassination of his mother by her Sikh security guards in 1984. In so deciding, he averted a potential constitutional logjam amid widespread communal violence triggered by the sitting PM’s killing.

Pranab Mukherjee, a Bharat Ratna who accepted his mistake

“Mine will be a constitutional presidency,” declared Pranab Mukherjee on the assumption of office on July 25, 2012, as the Republic’s thirteenth President. In the five years that he occupied the high table, he faltered once and admitted as much to this writer in the twilight of his term. Asked about his decision the Supreme Court overturned, to dismiss the Congress’s Harish Rawat regime in Uttarakhand, he plaintively conceded that “it was a mistake.”

Mukherjee’s term overlapped governments of the Congress and the BJP. Without being the rubber stamp of either, he got along well with Dr Manmohan Singh and for more than three years thereafter with Narendra Modi, to whom he administered oath on May 26, 2014. He spoke on major issues facing the country, was openly critical of ruckus in parliament and never loath to discuss and disagree behind closed doors with the PMs and members of their ministerial council to evaluate, at times, the desirability/ constitutionality of their binding advice.

The wealth of experience he brought to the office was of immense help. For instance, in the March of 2016, he accepted, against his own judgement, the imposition of President’s rule in Uttarakhand but not without telling Arun Jaitley and the PM’s principal secretary, Nripendra Misra that they should await the outcome of the trust vote ordered by the Governor. That course of action would’ve been in line with the Supreme Court judgement in the SR Bommai case which laid the law that the test of a government’s majority has to be on the floor of the House.

In his book, the Presidential Years (2012-17), Mukherjee explained why he did not, in the first instance, return the file recommending President’s rule in the state. He deduced that it would serve no purpose except to make headlines: “I was clear that I did not want to add to the brewing controversy. (So) a day before Rawat was to prove his strength, President’s rule was imposed.”

As things turned out, the (dismissed) CM was asked by the Supreme Court, where the matter landed, to demonstrate his numbers on the floor of the Legislative Assembly. “Had the government taken the points I raised into consideration... it could’ve avoided the embarrassment of the Court’s obiter dicta,” recalled Mukherjee. The Centre had acted without being in receipt of any report from the Governor who actually had asked the CM to prove his numbers in the House. The President accepted the union cabinet’s recommendation because, according to the constitution, he had to act on the basis of the report of the governor or otherwise. The word ‘otherwise” could mean any other relevant authority and in the case at hand, it was the union minister for home.

As the state government in question was that of the Congress, it’s open to speculation whether Mukherjee was burdened by the thought of coming across as partisan if he were to return the file for reconsideration. The comeuppance, in the end, was as much of the office he held; the court quashing the proclamation bearing his stamp. The predicament that led him to err in the case of Uttarakhand seems plausible, more so because just the previous year, he had sacked the Arunachal Governor, JP Rajkhowa when he refused to resign after being severely indicted by the apex court for accepting a trust vote outside the state assembly.

Overlapping presidencies have their obvious pitfalls, exposing them to risks of being painted partisan or adversarial by the government or expediently compliant by their erstwhile parties. Mukherjee had the taste of both when he sacked Rajkhowa, dilly-dallied on Uttarakhand, accepted the Bharat Ratna from the Modi regime and addressed a Rashtriya Swayamsewak Sangh gathering.

His erudition helped him traverse the landmines, an illustration of it being his bipartisanism and commitment to political dialogue that had him hold forth on his Nehruvian principles in the RSS’s Nagpur lair. Identity matters. But merit’s a better bet for safeguarding the Constitution.

HT’s veteran political editor, Vinod Sharma, brings together his four-decade-long experience of closely tracking Indian politics, his intimate knowledge of the actors who dominate the political theatre, and his keen eye which can juxtapose the past and the present in his weekly column, Distantly Close

vinodsharma@hindustantimes.com

The views expressed are personal

One of our Supreme Court judges made an important, if startling, point when delivering a lecture abroad. A legal website reporting his speech gave this headline to the story: “Will result in slippery slope if courts are regarded as only organ to defend citizens’ rights”.

The judge (I am not naming the person because the identity is unimportant, it is the idea that we must try and understand) was quoted as saying that “the growing litigious trend in the country is indicative of the lack of patience in political discourse. This result is a slippery slope where the courts are regarded as the only organ of the State for the realisation of rights — obviating the need for continuous engagement with the legislature and the executive”.

The words are clear enough and direct enough, so what do they mean? The judge is saying that it is important that citizens engage with the government and the elected representatives for their rights. The courts are also important in this process, but they are not the only place where citizens’ rights can be defended or claimed.

This is actually how many democracies function and the justice system, and in particular the Supreme Court, is only one part of the edifice that the citizen engages with. In the United States, the Supreme Court hears and disposes of only 80 cases a year. In India, the Supreme Court has 70,000 pending matters. This points to a significant difference between the two justice systems, though ours is modelled in many ways on the American system.

In 1949, it was decided that India would have a Supreme Court that consisted of no more than eight judges (Article 124). The United States has nine. India today has over 30. The highest US court only hears all matters before it together. India’s top court has several small benches that hear everything, from bail matters to property disputes. In the US, such matters are settled by the lower judiciary. In India, for reasons we do not need to get into today, this does not happen and so the justice system has had to evolve into something different from the way it was originally conceived.

Let us leave this aside and look again at what was said by the judge. Despite the justice system in India being heavily engaged with the citizen, at least according to the numbers, the judge feels that there is a “growing” trend towards more litigation and not enough engagement with the political process. To my mind, this is the correct analysis. The question is why this is happening.

The answer appears to be that the State in India is running amok. If the government and the political party controlling it want to destroy the homes of people without trial or conviction, where do those people go? One place that they can go is the executive, which is the perpetrator of all such violence. They can also go to the legislature, meaning the Opposition parties, to engage with them and make the government see reason. Is this not happening in India today? Certainly, it cannot be the case that people who are moving court, including citizens, civil society groups, activists and so on, are not engaging with the government at all. They are. But what is to be done when the motivation of the political party in charge is to persecute? How does one engage meaningfully with one’s oppressor? This is what the judge did not speak on. Something else was said in the speech, which justified the widening of spaces where rights must be sought. The judge said: “While the Supreme Court must protect the fundamental rights of citizens, it must not transcend its role by deciding issues requiring the involvement of elected representatives. Doing so would not only be a deviation from the court’s constitutional role but would not serve a democratic society, which at its core must resolve issues through public deliberation, discourse and the engagement of citizens with their representatives and the Constitution”.

There is nothing exceptionable about what is said. Healthy democracies must have citizens able to conduct meaningful and productive engagements with all parts of the State. However, it must be stressed here that the judiciary has a primary function, and that is to stop and push back against any kind of executive overreach. Especially when such overreach is threatening the Constitution of India itself.

Today, the situation is that cases involving citizenship and anonymous funding of electoral politics have not been decided by the highest court. The habeas corpus pleas of people living in Kashmiris have also gone undecided. This is the source of the pressure that commentators and activists have put on the judiciary, which is what the judge was presumably responding to. To many of us it seems like India has taken a direction led by the government controlled by a single political party, led by an undisputed leader. This direction is not in keeping with either the Constitution of India, or traditions or modernity. Of course, the rest of the State apparatus, including the legislatures and the executive, must be places where the citizen can go and claim his or her rights. But it appears to be indisputable that the primary arena of this battle has to be in the justice system, where the judges must stand up for citizens against a rampant and malign State.