#2019editorialcalendar

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Reflections on surveillance in the middle of a pandemic | Opinion - analysis

We live in an age marked by one overarching phenomenon — surveillance. Operationalised through electronics and analysed through algorithms, everyday surveillance of the minutiae of our lives has become the defining feature of our times. The data exhaust from our mundane, everyday lives is collected, collated and analysed; and returned to us in many forms such as recommendations on what else we’d like to buy on shopping apps, the manner in which our social media feeds are ordered, and as activists have found out, even government officials showing up at their doorsteps. Much ink has been spilled in describing the many ways in which such surveillance can be harmful, especially in the hands of private corporations and authoritarian regimes.But, as with everything, the phenomenon of surveillance itself is value neutral. It is neither inherently good or inherently bad. Its harm and benefits are made operational by the manner in which it is deployed. While there are excellent reasons to stop collecting and collating so much data about users; there are some spaces in which surveillance is a vital tool. One of those areas is public health. Surveillance as a tool to study and safeguard from epidemics is a method as old as modern medicine itself. Since the time of Hippocrates, observation and analysis of data has been the cornerstone of modern medicine. Throughout history, attempts at early detection and effective surveillance of diseases have helped not just curb the spread of communicable diseases, but also understand diseases themselves and develop treatment paradigms. Polio is a case in point. The complete eradication of polio in India was a resounding victory for effective surveillance and reporting.The World Health Organization (WHO), the public health arm of the United Nations (UN) lists integrated disease surveillance as part of its important functions. In such surveillance, countries are required to report any cases of notifiable infectious diseases to WHO. The data thus collected helps analyse the spread and severity of the disease, and to quickly and efficiently put in place protocols to handle the crisis and contain the spread in the case of an epidemic. Disease surveillance, in order to be effective, must be continuous and systematic. This automatically means the continuous collection of data from everywhere.In comparison to the kind and amount of data that data brokers have about our everyday habits, the amount of viable health data that is available for analysis even in countries such as the United States and Britain is abysmal. Even within the much-vaunted National Health Service (NHS) in the United Kingdom, datasets are sparse and often disconnected. This makes it harder for doctors to trace patients’ histories across regions or find common threads among diseases and treatment protocols within the system.In case of the coronavirus pandemic, finding those who carry the virus and preventing others from coming into contact with them is so far the only effective means of preventing the spread. But here, it is the process of finding that has set off surveillance and privacy alarm bells. Whether it’s European, Israeli and Chinese governments accessing mobile phone location data to ensure that people are obeying lockdown orders or the Karnataka government publishing online the names and contact details of people who have returned from abroad, breaches of individual privacy in these pandemic times are becoming commonplace.In cases where diseases carry stigma — such as HIV — knowledge of disease history and a breach in anonymity of cases can be particularly harmful. We have already seen this in India with coronavirus cases, where individuals and families face social ostracisation. Several Indians have even taken to ostracising doctors who are working at the frontlines of the fight against the coronavirus.It is in this context that privacy must be taken into consideration by government agencies while continuing to battle the pandemic. As several commentators have pointed out, measures taken during extreme situations have a sneaky way of becoming business-as-usual, even after the emergency is over. And as we know from several generations of caste discrimination, social ostracisation sticks very easily. One other clear upshot of privacy violations is that a fear of ostracism and mistrust of authorities could prevent people from coming forward to report their symptoms and travel history. With no protocols for data security and preventing personal details of individuals from becoming public; case surveillance in the Internet age can lead to dangerous consequences. The phone numbers and addresses of specific people, for instance, can easily be culled from a public database of people returning home from abroad. Linking this one database to many others can also reveal many other details of individuals, to anyone who comes looking.In such a situation, while it may seem like it’s a worthy trade to sacrifice individual privacy to contain the pandemic, it is decisions taken in the eye of the storm that will ripple outwards, creating situations and precedents for future emergencies. A pandemic in the age of digital surveillance and big data compounds public vulnerabilities; adding to the looming health and economic crises. This is, therefore, the best time to ask questions about the efficacy of the surveillance in each administrative block — from individual villages and residential complexes to nation-states and WHO itself. What is the information that it is important to know, who absolutely requires to know, how much of it requires dissemination, how can it be effectively collated and reported, and how may we protect the individuals who are already dealing with fear and uncertainty are the important questions to ask.Vidya Subramanian is a post-doctoral fellow, Centre for Policy Studies, IIT BombayThe views expressed are personal Read the full article

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Social distancing is good. But get ready for a surge - analysis

We live in a state of coronavirus-fuelled anxiety. In such times, we try to build walls and fences to keep the danger out. So, India has enforced sweeping restrictions on outsiders coming into the country, and stringent testing for those returning from abroad. The government’s strategy to contain this pandemic is largely based on surveillance and restrictions on international travellers, and now, a push towards social distancing. Will this work to keep the virus from spreading in the country? Or is the enemy already within, slowly entrenching itself? The evidence from other countries is mixed on how useful travel bans are in stamping out the virus. The United States (US) was the first country to ban travellers from China on February 1. India followed suit a few days later along with Singapore, Vietnam, Russia, and the Philippines. But this did not stop the virus from entering any of these countries. The US is seeing an explosion of cases, while other places, including India, are seeing slow, steady rises in case numbers. This particular coronavirus spreads easily from one human to another, carried mostly by respiratory droplets. It passes from human to human in difficult-to-detect chains of transmission. This is because the majority of cases have mild symptoms — a cough or a barely detectable fever — and may not realise they are infected, but can still pass the virus on to others. A recent study published in Science estimated that mild and asymptomatic patients in Wuhan, who were never tested and did not know they were infectious, played an important role in the spread of the coronavirus disease (Covid-19). This being the case, restrictions on travellers from abroad will only bring a brief respite since the virus is already in the country. Once the virus is in a country, governments across the world have responded in three ways.The first is aggressive testing, to quickly detect and isolate sick patients and trace their contacts before they have a chance to spread the virus further. As the director-general of the World Health Organization put it, the only way to contain the virus is to “find, isolate, test and treat every case to break the chains of transmission. Every case we find and treat limits the expansion of the disease”.The second way is through social distancing, to the extent of shutting down normal life. This is what Wuhan and other cities in China did, and which cities and regions across the world, including parts of Italy, and the bay area in California, are doing. The “shelter in place” order that was imposed on parts of California required people to stay in their homes except to shop or for medical emergencies. This is what India seems to be moving towards, with the “Janata Curfew” on Sunday. But more will be required if the speed at which the virus spreads is to be slowed down. Wuhan and other cities in China shut down transport systems, issued stay-at-home orders and kept only essential services going for an extended period. In India, an extended Wuhan-type shutdown is going to be extremely difficult to implement, and the impact will be felt disproportionally by the poor, who need to work every day for their survival, and don’t have the luxury of working from home. Wealthy countries like the US can afford to dole out money to lessen the shock. Countries like India cannot. The third, and most important way governments across the world have acted, is by strengthening the hospital system. The majority of those infected by Covid-19 will have mild, or perhaps no symptoms. But the 20% or so who get infected will require hospital beds, and the more severe cases will require intensive care beds. Once the virus really gets going, and case numbers take off, patients requiring hospitalisation will come not in an orderly way, in ones and twos, but in waves. From the experience so far of how this virus behaves, those above the age of 60 with other underlying medical conditions will be at the greatest risk of severe illness. Doctors, nurses and other health care workers will also be at great risk, given the high number of infected patients they will be examining, and the long stressful hours they will have to work. Infection control protocols become even harder to follow when health personnel are stressed and overworked. Supplies of ventilators, oxygen, masks, gloves, disinfectants could run short. Any lack of preparedness in India’s health system will be cruelly exposed. By the Indian Council of Medical Research’s reckoning, the disease is not yet spreading in the community beyond immediate contacts of infected people. But given the experience of other countries, it is highly probable that the virus will spread in the community, with cases popping up all over the country. The walls and fences that were built have not kept the virus out. But they have bought the country time to prepare for its eventual spread. That time needs to be used wisely to prepare people as well as the hospital system for the full impact of a pandemic.Thomas Abraham is the author of Twenty First Century Plague The Story of SARS. He is an adjunct professor at the Journalism and Media Studies Centre, Hong Kong University and worked in the WHO during the 2009 swine flu pandemicThe views expressed are personal Read the full article

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Stand up against anarchy masquerading as activism | Opinion - analysis

The parts of Delhi affected by the riots are limping back to normalcy. Those who indulged in this mindless violence deserve the harshest condemnation and punishment.While the law must take its own course, as a democratic society, we have to think about certain key issues that led to this violence. The most significant is the way one should and can engage in public activism including protests, in a democratic polity. It is quite apparent that the manufactured unrest, promoted by a section of politicians, over the Citizenship (Amendment) Act, or the CAA, led to unfounded suspicions and mistrust. Repeated clarifications by government leaders that the CAA has nothing to do with taking away citizenship, as it essentially aims only at fast-tracking citizenship to persecuted minorities from three specified countries who have taken shelter in India, had little effect and Opposition parties continued fuelling paranoia. This not only legitimised fear-mongering but also encouraged a degree of obstinacy among the protestors. One of the fundamental flaws in the present-day discourse is in our approach to dissent in democracy. True, democracy will be meaningless if it cannot encompass differences of opinion. However, while dissent is an inseparable aspect of democracy, dissent and divergence of views need not and cannot be the only parameters to measure democracy. Like disagreements, agreements are equally legitimate in a democratic polity. Democracy must not just provide space for, but also respect, differences of opinion. But democracy shouldn’t be deemed as suspicious in the absence of different approaches and views. Sadly, the Westminster model of democracy provides for an inherently flawed approach. It needlessly presupposes a perennial difference of opinion and institutionalises this. As a result, the Treasury and Opposition are constantly at loggerheads. This divide is not always required nor is it always relevant. There is reason to believe that an unduly strong opposition to the CAA and hardening of positions by several anti-CAA groups are products of this presupposition. The very presupposition being used to legitimise opposition to the CAA in itself is born out of prejudice. This prejudice is the product of a systematically cultivated suspicion which goes against the grain of democracy. This unenlightened opposition coupled with exaggerated statements about hypothetical scenarios has provided fertile ground for miscreants to sow the seeds of paranoia. A strong case in point is that of the initiators and organisers of the Shaheen Bagh protest. Although there can be a significant element of spontaneity in this sit-in, everything doesn’t deserve to be taken at face value. It is unimaginable that Muslim women — for whom men in their families staunchly refuse freedom from triple talaq — are allowed to spend days and nights out of their homes. Keeping women and children in the forefront, and waging a political struggle while hiding behind them might be considered a smart strategy, but it is also inhuman and anti-women.Had the judiciary not indirectly contributed to the legitimisation of this politics of obstructionism, this would have become a fit case for investigation by the National Commission for Women and the National Human Rights Commission. Obstructionism could, at best, be a one-time tool, used in exceptional situations. However, equating obstructionism with activism is not only erroneous but also an insult to those who oppose this. Giving protection to aspiring law-breakers for months together eventually disincentivises law-abiding citizens, eroding the credibility of the rule of law, irreparably. It is not out of place to question as to how the judiciary would react if a Shaheen Bagh-type demonstration is held, equally peacefully, right in front of a court building obstructing access to litigants, and that too, for months together. Will those demonstrators not site Shaheen Bagh as a precedent? Is this not a recipe for anarchy? In a move which smacks of anti-constitutionalism, several chief ministers announced that they won’t implement the CAA. Imagine, how the chief ministers of Bharatiya Janata Party-ruled states would get roasted should they refuse to implement Acts granting so-called minority educational institutions the freedom to not implement quotas for the socially marginalised sections. Their opposition to minority appeasement notwithstanding, they have to implement what is passed by Parliament. The refusal to accept the supremacy of Parliament in lawmaking is an open invitation to anarchy.One can understand the despondency of a section of our political class. But the moot question is: How can we as a society afford to allow frustrated politicians to encourage anarchy masquerading as activism?Vinay Sahasrabuddhe is national vice president, Bharatiya Janata PartyThe views expressed are personal Read the full article

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The response to Delhi riots a story of missed opportunities | Opinion - editorials

Having been born and lived in Delhi for over five decades, the recent riots and inability of administration and law enforcing agencies to prevent and limit the violence in time shows how we remain vulnerable as a society to mob violence. Both the administration and police have vast powers for maintaining law and order under the Criminal Procedure Code, 1973, or CrPC. Police have vast preventive powers to stop anticipated acts of breach of peace. They can even arrest and detain persons who are about to commit offences (Sections 149, 150 & 151 CrPC.) A recent example of preventive arrest powers being used effectively to curb rabble rousing and violence is the detention of leaders and others in the erstwhile State of Jammu and Kashmir. Incendiary speeches and slogans, even if not strictly within the contours of criminal offences, can be subjected to preventive breach of peace laws applied effectively for over 700 years in England and over 150 years in India.In 2014, when a petition to seek curbs on hate speeches was sought before the Supreme Court, I was representing the Union Government. The top court noted the existence of laws, yet lamented the lack of implementation and wanted the Law Commission to look into the issue {Pravasi Bhalai Sangathan v/s UOI (2013)}.At the time, the court declared: “Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to de-legitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.”Yet, in dealing with recent incidents of hate speeches in Delhi and elsewhere, this declaration of law has been glossed over.To ensure that rule of law prevails and police do not prevaricate in registration of FIRs, a Constitution Bench of the Supreme Court in Lalita Kumari vs. Govt. of Uttar Pradesh (2014) mandated immediate registration of FIRs for offences. Yet, despite acts of hate speeches and incitement to violence, neither preventive action has been taken nor FIRs registered expeditiously.By allowing state agencies four weeks to respond, the courts lost the opportunity to enforce the law. The Supreme Court did attempt to correct this situation by fast-forwarding the high court’s hearing to Friday.But the apex court in Lalita Kumari’s case (paragraph 120.1) had been clear. It said “the registration of FIR is mandatory under section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation”.Yet, with the adjournment by the high court by four weeks, the mandate of the Supreme Court in Lalita Kumari’s case stands eroded. Post Lalita Kumari, high courts have routinely been approached seeking directions to the police to register FIRs and have done so. Cases of failure or delay to register FIRs have led to strictures being passed by the courts. Safety of citizens and non-citizens alike, is realized when our police and administration ensure strict compliance of the law. In 1968, the famous jurist Lord Denning said, “I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every Chief Constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No minister of the Crown can tell him that he must, or must not, keep observations on this place or that; or that he must, must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”.Amongst all the limbs of government functionaries, it is the policeman who has a constant interface with the public. In India, a police officer wears many hats, far beyond the charter of his duties dealing with issues ranging from family matters, matrimonial law, missing children, protection of the elderly, law enforcement, intelligence gathering, investigation and prosecution. Delhi Police has always prided itself on its independence.What is crucial for the man on the street is timely preventive action by the police. While restrictions are in place and violence has ended, yet parts of Delhi have burnt, many are injured and killed and the public’s confidence in their safety stands eroded. This is not acceptable in 21st century India.(The author is a Supreme Court lawyer and former Additional Solicitor General of India) Read the full article

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How India’s top political leaders responded to the riots in 1947 - analysis

The violence that broke out in north-east Delhi last week is an eerie echo of the past. India’s freedom in 1947 came at a terrible price. From west Pakistan to east Punjab, the country burned with communal fires. From Narowal to Dera Baba Nanak, from Kasur to Ferozepur, from Bahawalpur to Bikaner, and from Mirpur Khas to Jodhpur, those trying to escape were on the move — by train, by bullock cart, and on foot. In Bahawalpur, a battalion of State troops watched impassively as Muslims in the main town began to rampage through the streets. In Delhi, reports of shootings, stabbings and arson began to filter into the home department. VP Menon, then secretary, ministry of states, would remember the skies above independent India’s Capital turning a dull red as fires began to burn in the Old City. Travelling to Bahawalpur — one of the bloodiest theatres of violence in Punjab — to assess the situation in October 1947, Menon found streets littered so thickly with bloodied and decaying dead bodies that he found it difficult to breathe, let alone walk. “I have seen 1947,” former home secretary (and erstwhile private secretary to Jawaharlal Nehru), HVR Iengar recalled in 1968, “and if that was the first stage of any kind of revolution, then God help us all.” History repeated itself last week, during United States President Donald Trump’s visit to India. The Capital bore horrified witness to the worst communal violence it has seen in over four decades. With 47 killed, over 350 injured, and bodies still being fished out of the labyrinthine drains in the area, the riots have wounded the city in ways that many had hoped to forget. Most victims appear to be Muslims. The evidence of police brutality and apathy has been both glaring and painful. Yet, it is the absence of leadership that has betrayed Delhi’s residents the most. As the country moved towards its freedom, history remembers India’s first leaders standing united for peace. In 1946, Mahatma Gandhi spent four fraught months at Noakhali in Bengal (modern Bangladesh) — the scene of terrible communal violence. He listened to harrowing tales of forcible conversions, of rape and bloodshed, but his message was simple: To shun violence and forgive. Nehru was the epitome of courage in the face of threatening mobs. He was known to fling himself into the breach if he thought he could prevent violence from breaking out. From Roy Bucher to HVR Iengar to New York Times’ correspondent George Jones, there was nobody who had not seen India’s first prime minister charge headlong into a hostile crowd, or demand that the mobs murder him first before he saw a drop of blood being spilt in the name of religion. Politics did not matter in the face of bloodshed. As the killings spread into 1947, MA Jinnah demanded that Louis Mountbatten be ruthless in clamping down on disorder. “I don’t care whether you shoot Muslims or not,” Jinnah said, “It has got to be stopped.” They might have been on opposite sides of the political divide, but Nehru and Jinnah instinctively recognised that blood could not be the first brushstroke on the canvases of their new countries. Sardar Vallabhbhai Patel, the then home minister, gave immediate orders. Partisan officials within his government were to be punished and rioters were to be shot on sight. A Delhi emergency committee was formed, with a dedicated team of officials and volunteers undertaking three major tasks: Protecting Delhi’s Muslims; organising camps for terrified Muslims leaving their homes in Delhi and neighbouring areas; and setting up camps for refugees arriving from west Pakistan. Patel personally went to the shrine of Nizamuddin Auliya, where he informed the police commissioner in charge that on pain of dismissal, nothing untoward was to happen to or within the shrine. The home minister toured disturbed areas as well, often standing his ground against swelling, angry crowds to ask strongly for peace. Menon was instrumental in putting forth the rather creative idea of a Central Emergency Committee (CEC), responsible to the Cabinet, headed by Mountbatten. It was an idea welcomed by both Patel and Nehru who, given Mountbatten’s undoubted wartime expertise, saw no shame in putting the interests of the country into hands more capable than theirs. The CEC worked on the crucial aspects of restoring law and order: Assisting in the flow of refugees, distributing food, preventing the spread of epidemics and disposing of corpses. This was the kind of united leadership, bravery and empathy that remained markedly absent in the aftermath of last week’s violence in Delhi. The Aam Aadmi Party and the Bharatiya Janata Party have been rightly criticised, for their supine attitude during and after the violence, their total lack of compassion, and non-existent relief efforts. The Congress has been condemned for its belated presence on the scene. It has been the citizens who have come together, regardless of caste or creed, to do what their elected representatives should have been doing.The leaders of yesteryear were swift to give comfort, and swifter to act in the interests of their country. They were courageous under fire and united under pressure. Today’s leaders have much to learn from them. Narayani Basu is the author of VP Menon: The Unsung Architect of Modern India. She is also Menon’s great-granddaughterThe views expressed are personal Read the full article

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Develop home grown tech to counter 5G - analysis

The deployments of 5G across the globe has been emerging as one of the prime battlegrounds of the United States (US)-China trade war, with the Donald Trump administration applying considerable pressure on its allies and countries of influence to exclude Chinese companies from their next generation mobile networks, stressing on some of the possible dangers, including the capability of their products to spy on their users. American warnings seem to be falling on deaf ears with a vast majority of their traditional allies in Europe, Latin America and West Asia allowing some role for the Chinese telecommunication giants in their 5G networks. Huawei, the global market leader has been leading the way, having already secured over 50 5G commercial contracts worldwide.Despite the Trump-Narendra Modi bonhomie, even the Indian government has recently allowed Chinese companies including Huawei to participate in our 5G trials. Huawei’s lower price points when compared to competitors — Nokia, Ericsson, Samsung, Qualcomm and Cisco, its legacy 4G networks that allow clients an easier transition to 5G, and its willingness to sign a “no backdoor” pledge to eliminate spying activities, were some of the factors that nudged the government to make this decision. Huawei also has a distinct edge in technology superiority with several industry experts saying that it may be 12-18 months ahead of its peers; with the gap only set to increase in future with the decision the previous year to increase the research and development (R&D) budget to an astronomical $15-20 billion. The impact of the introduction of 5G will be even more profound; 5G wireless networks could have even a 20-plus fold increase in connection speeds from the current levels, with minimal latency that signifies delay in communication. This will enable real time data transmission and make it possible for the mass proliferation of many path-breaking industries including artificial intelligence-driven autonomous transportation, smart manufacturing, virtual and augmented reality, and large-scale proliferation of Internet of Things where billions of devices will be connected to the Internet. The Centre had earlier announced an ambitious plan to conduct 5G spectrum auctions at the beginning of this year, and carry out the initial roll-outs by the end of 2020. Nevertheless, the Indian telecom sector is attempting to push back the deployments by at least five years because of several reasons, most notably the exorbitant bidding base prices during these difficult economic times. The dangers that come with the deployment of Chinese technologies can come with any of the foreign vendors we chose, albeit to a much smaller degree, even if we mitigate the possible avenues of data breaches with stringent data security laws, and “no spy” clauses. These overseas companies who own the IPs will also capture the bulk of the business value created by 5G. The only way around this is the creation of indigenous technologies and companies that are strictly under the Indian ambit, at least in critical 5G components and infrastructure. The R&D costs and capital expenditure for this will amount to hundreds of millions or even billions, an unviable proposition for our private telecom sector that currently has a cumulative debt of over Rs 7.5 lakh crore. Home-grown technologies are essential from our national security perspective, and will ensure that India could extract maximum value from the novel advancements that will be one of the backbones of our economy in the foreseeable future. Anil K Antony is a technology entrepreneur; and the convener of INC-Kerala Digital MediaThe views expressed are personal Read the full article

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Why it’s important to get to the bottom of the Delhi violence - editorials

North-east Delhi was incident-free on Thursday, as people picked up the pieces of their lives and livelihoods after the worst communal violence Delhi has seen in at least three decades. While it would be too much to expect political parties not to politicise the issue — narratives and counter narratives are already at play — it is imperative that the home ministry, the National Security Adviser (whose entry seems to have played a major part in normalising the situation), Delhi Police, other law enforcement agencies, and the state government work together to answer key questions that could shed light on just what happened. Given that both the pro- and anti-Citizenship (Amendment) Act (CAA) groups whose clash sparked off the communal riots were extremely well organised — the pro-group was bussed in from neighbouring states, according to one theory; and both appear to have been well-armed — some of these questions have to do with the identity of the individuals and the organisations behind the protests, and the source of funding and arms. Were local leaders of political parties involved? As a corollary, it is also important to get to the underlying motives. Was the motive, as some believe, to embarrass the Narendra Modi government during the visit of United States President Donald Trump? If so, who was behind the effort? Or was it to vitiate the situation in the national capital? And who could gain from that? There are other questions as well. For instance, on the role of hate speech in inciting the riots. While this may not have lit the spark, did it, for instance, heat things up to the extent that a fire was inevitable? Or on the role of the unresolved and open-ended protests against the CAA (with protesters sticking to their stand, the home ministry not keen on engaging, the courts, deferring both the larger issue of the law and the smaller one of a protest at Shaheen Bagh on a public road)? Some hard questions will also have to be asked about gaps in the police’s intelligence-gathering and risk-assessment processes, and their near- glacial pace of response to initial skirmishes. After all, it is becoming clear that a better and faster response on Saturday, when the clashes started, may have prevented events of Monday and Tuesday, which saw the most casualties. Many of these are tough questions. Some are inconvenient. But we owe it to the 37 dead as of Thursday evening (across both Hindus and Muslims), the hundreds of injured, and the thousands whose livelihoods have been affected to ask them — and then, to sincerely try and answer them. Read the full article

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A contra-polar world is the new political reality

United States (US) President Donald Trump will make a high-visibility two-day trip to India, starting Monday. His first stop will be Ahmedabad, where he will be received by Prime Minister Narendra Modi. Referring to his maiden visit, Trump said: “He told me we will have 7 million people between the airport and the event.” The event will be similar to the “Howdy Modi” extravaganza in Houston, Texas, in September, where Trump also made an appearance at a large gathering of the Indian-origin diaspora in the US. However the scale of this public diplomacy will be in contrast to the modest outcome during the formal meetings in Delhi. Speaking on February 18 about his first visit to India, Trump dashed hopes of any major trade deal. “We can have a trade deal with India but I am really saving the big trade deal for later on.” In the Trump worldview, India has been a difficult trade interlocutor and he has, in the past, accused Delhi of being the world’s “tariff king”, and the Harley Davidson motorbike episode has become the symbol of presidential ire. According to the United States Trade Representative data, in 2018, the US trade deficit with India was $25.2 billion, of which the goods trade deficit was $20.8 billion. Hence Trump asserted, “We are not treated very well by India but I happen to like prime minister Modi a lot.” This puts Modi in a special category, for there are not too many global leaders who have received such positive endorsement from Trump, despite differences, and a reflection of deft Indian diplomacy. But as expected, while the trade relationship is in the doldrums over tariff issues and dismay in Delhi about the US removing India from the list of “developing” countries, the military supplies’ relationship remains robust and points to a shared albeit unequal strategic partnership in the maritime domain. On February 19, the Indian Cabinet approved a $2. 6-billion-acquisition of 24 US- made (Lockheed Martin) multi-role helicopters for the Navy. This arms deal is expected to be among the more substantive outcomes of the Trump visit and will strengthen the bilateral defence and security relationship that acquired greater traction in 2009. This followed the historic rapprochement between the US and India in late 2008 after decades of bitter estrangement over the nuclear issue that was resolved during the George Bush-Manmohan Singh watch. The trigger in Washington for this accommodation of India was strategic and China-related. The core Bush team, led by Secretary of State Condoleezza Rice, had arrived at a determination in early 2005 that an intractable estrangement with India was not in the larger US strategic interest against the backdrop of a rising China that was becoming more assertive. Hence the radical review by the White House of the bilateral ties with India. Fifteen years later, while the broad orientation of the bilateral relationship remains consistent with what was envisioned in 2005, the cost-benefit analysis in Washington apropos India has undergone a Trump transmutation. China remains a strategic concern for Washington but the current White House team isdiluting its commitment to globalisation and free-trade to protect US interests. The ensuing turbulence has had its impact on both Beijing and Delhi, and the Trump visit reflects this unrelenting focus on the transactional element and the benefits that would accrue for the re-election campaign of the US President. In the elliptical manner that Trump policies are modified, he added about the India visit: “We are doing a very big trade deal with India. We will have it. I don’t know whether we will have it before the election, but we will have a very big deal with India.” The fact that India is a major democracy was earlier seen in the US as a distinctive characteristic, to be encouraged. This is no longer the primary driver of the bilateral relationship. India is not among the top five trading partners of the US and is not a formal military ally. Many areas of dissonance exist, ranging from the US’s policy towards Pakistan-Afghanistan-Iran and Washington’s unhappiness with India over the supply of certain Russia military equipment. Given its lower index of comprehensive national power in relation to the US and China, India has to engage in the equivalent of subaltern tightrope, walking to strike the appropriate balance in the complex relationship that animates the Washington-Beijing-Delhi strategic triangle. India has a deep security and strategic trust deficit with China but seeks to improve the trade and economic relationship with Beijing to reach the coveted $5- trillion GDP figure that Modi aspires to reach by 2024. Consequently, India will have to work towards enhancing its trade footprint with the top two global economies — the US and China — even while managing the individual security-strategic dissonances. The security engagement with the US enables India to better manage its China dilemma. The US policy towards China is in a state of flux over trade matters, now compounded by the coronavirus challenge, but the final Trump-Modi statement will be closely studied in Beijing for its strategic subtext. The Trump visit to India testifies to the emergence of what may be termed a “contra-polar” world, wherein contradictory policy pursuits and contrarian impulses are increasingly becoming the norm. C Uday Bhaskar is director, Society for Policy Studies, New Delhi The views expressed are personal Read the full article

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In Maharashtra, the Shiv Sena’s political dilemma - analysis

When the Shiv Sena snapped ties with the Bharatiya Janata Party (BJP) to form the government in Maharashtra with the Congress and the Nationalist Congress Party (NCP), it was evident that this would be an uneasy alliance. The Sena’s political worldview revolved around Hindutva, placing it at odds with the “secular” political agenda of the Congress and the NCP. Three months later, this tension is now out in the open, with its clearest manifestation in the differing positions of the coalition partners on the Bhima-Koregaon and Elgar Parishad cases. It has its roots in chief minister and Sena chief, Uddhav Thackeray, giving his consent to the National Investigation Agency (NIA) to probe the Elgar Parishad case. The NCP, which holds the home department, is upset at the decision, and the Congress has also struck a note of dissent.But what is driving this difference in approach? The answer lies in the alleged involvement of fringe Hindutva groups in the Bhima-Koregaon violence.On December 31, 2017, allegedly inflammatory speeches were given at the Elgar Parishad at Shaniwarwada in Pune. The conclave commemorated the battle of Bhima-Koregaon on January 1, 1818, where a small detachment of the British army, comprised largely of Dalits, held off a larger force of the Brahmin Peshwas. A day after the Parishad, there was violence against Dalits, who had thronged the Bhima-Koregaon war memorial in lakhs to pay their respects.The Pune police booked and arrested Left-wing and civil society activists, who were accused of waging war against the State, and being involved in a plot to assassinate Prime Minister Narendra Modi. This sparked counter-accusations. Prakash Ambedkar, the chief of the Vanchit Bahujan Aghadi (VBA), and NCP leaders, blamed leaders of Hindutva outfits, Milind Ekbote and Sambhajirao Bhide “Guruji” for the Bhima-Koregaon violence.Ekbote, who heads the Samasta Hindu Aghadi, comes from a family affiliated to the Rashtriya Swayamsevak Sangh (RSS). He also contested the 2014 assembly elections from Pune as a Sena candidate. Ekbote was arrested for the violence and later released on bail.However, it is Bhide and his group, Shivprathisthan Hindustan, which present a bigger predicament for the Sena. As party leaders acknowledge in private, it is not possible for them to take a position against Bhide or any Hindutva activists, for it will be seen as a dilution of the Sena’s commitment to Hindutva. This is despite the pressure from the NCP, which is keen to expand its base among Buddhist Dalits. Shivaprathisthan, which has a strong base in parts of Western Maharashtra, is among the most influential fringe Hindutva groups in the state. The group’s popularity and outreach has been built around the personality of former RSS activist, Bhide “Guruji”, whose austere lifestyle has stuck an emotional chord with a section of young Hindus. Bhide is also known to be close to senior BJP leaders. Shivaprathisthan employs the iconography of Chhatrapati Shivaji Maharaj, who remains a powerful political symbol in the state. Aided by the use of social media, this has increased the ranks of “Dharkaris” (as Shivaprathisthan members are called). The Congress and NCP leaders allege that while Left and Dalit activists were arrested for their alleged role in the Elgar Parishad case, Bhide has been treated leniently. They also complain that the Sena is toeing the line of the BJP on issues such as the Elgar Parishad and Bhima-Koregaon cases.Though the Sena was born in 1966 as a nativist, sons of soil party, which claimed to espouse the cause of the Maharashtrians in Mumbai, it took a formal turn towards Hindutva in the 1980s. Like most of its political positions, this was born more out of political expediency than any ideological conviction. Hindutva enabled the Sena to forge an alliance with the BJP in 1989. The late Bal Thackeray, the founder and supreme leader of the Sena till his death in 2012, even became the face of the Ram Janmabhoomi movement in Maharashtra, edging out the BJP and the Sangh Parivar. The Sena, with its wide social base and militant cadre, also espoused the cause of Hindutva more virulently than the BJP.Sena leaders admit a stung BJP may mobilise fringe groups to rake up causes linked to Hindutva to trap the Sena. This may include opposition to the veneration of the tomb of Adilshahi general, Afzal Khan, who was killed by Shivaji Maharaj in the Battle of Pratapgad, cow protection and beef vigilantism. If the Sena is seen as opposing these, it risks alienating the Hindutva vote; if it consistently supports these, the patience of its allies may run out. There also remains an ideological bond with the BJP, which the Sena does not want to cut off entirely because of the fragility of the Maha Vikas Aghadi government. The Sena also has to contend with the Maharashtra Navnirman Sena (MNS) led by Uddhav’s estranged cousin, Raj Thackeray, which has turned to Hindutva politics. This explains why despite its alliance with the “secular” Congress and NCP, the Sena is having a tough time reconciling the compulsions of the present with its Hindutva past. Issues such as action against Bhide, or the controversial Sanatan Sanstha, will be part of the minefield that the Sena will have to negotiate. The future of the government, the party, and indeed, Maharashtra’s politics, will depend on the dexterity with which it pulls off this balancing act.Dhaval Kulkarni is a journalist and author of The Cousins Thackeray: Uddhav, Raj and the Shadow of their SenasThe views expressed are personal Read the full article

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The anarchy in the Congress - editorials

In the wake of the Congress’ second consecutive rout in the Delhi assembly election — it failed to win a single seat, slumped to its lowest vote share to just a little over 4%, and did not get the highest number of votes in even 1% of the booths — there is a war of words that has broken out within the party. From former finance minister P Chidambaram celebrating the defeat of the Bharatiya Janata Party (BJP) to Sharmistha Mukherjee (Delhi Congress leader and daughter of former president Pranab Mukherjee) asking him whether the Congress had outsourced the task of defeating the BJP to regional parties; from (former Delhi in-charge) P C Chacko implicitly blaming the loss on the late Sheila Dikshit to her aide and spokesperson Pawan Khera pointing out how the party had never fared as poorly under her; from former Mumbai unit chief Milind Deora praising the Aam Aadmi Party’s governance to former Delhi unit chief Ajay Maken suggesting that Mr Deora should leave the party, the battle is both public and bitter. This is extending to factionalism within other state units, with young leaders, in particular, expressing unhappiness. There is also a lack of coherence on policy issues with, for instance, Shashi Tharoor criticising the government for denying entry to a British Member of Parliament, and Abhishek Manu Singhvi supporting it. The party’s advocates may suggest this is a sign of internal democracy. But political parties work on the basis of a degree of coherence and discipline. Dissent is expressed within party forums. If there are grievances, the onus then rests on the leadership. What is happening in the Congress appears like anarchy. There are two causes of this crisis. The first is the absence of an honest, introspective, internal review after its loss in the Lok Sabha elections. In its absence, the party is struggling to mount a united challenge, on a common ideological platform, against the BJP. The second is the weakness and the churn in the top leadership. Sonia Gandhi remains deeply respected, but has been unwilling or unable to assert her authority. The fact that she has made it clear that her presidency is only an interim arrangement leads to uncertainty. Rahul Gandhi’s decision to quit as president, his frequent absences, and his sporadic intervention in party affairs is not helping either — for there is a lack of clarity on whether he is going to return as president or has decided to narrow his role to merely that of an MP. All of this has caused anxieties among the party’s rank and file, which does not see a road map for the future. The party owes it to the over 110 million voters who reposed faith in it last year, as well as to Indian democracy, to get its act together. Read the full article

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Reforming competition law for the digital age | Opinion - analysis

At a recent event, the chairperson of the Competition Commission of India (CCI) cautioned against the creation of large digital platforms and the agglomeration of data in the hands of a few entities. However, the extent to which this is a policy concern merits careful evaluation, keeping in mind the fact that political considerations have long dictated the government’s response to e-commerce players and other digital platforms. Any attempt to reform competition law for the digital age must instead focus on the actual cause for harm and then tailor remedies that address this cause. Amazon’s brick-and-mortar competitors, politically relevant and well-organised through associations such as the Confederation of All India Traders, have for long complained about deep discounting practices. The technology behemoth has also been accused of using its vast data insights to directly compete with sellers while distributing their products on its platform. This erosion of platform neutrality had earlier influenced key choices in India’s Foreign Direct Investment policy, including a clear preference for marketplace models over inventory-based models. Subsequently, in February 2019, the Department for Promotion of Industry and Internal Trade published a draft national e-commerce policy advocating drastic measures such as restrictions on cross-border data flows and mandating big tech companies to open their data for the benefit of Indian startups. These responses have invited criticism on the basis that they are more about knee-jerk politics than well-informed policy. The recent call for reform of antitrust law and competition policy must be appreciated with these developments and criticisms in the background. The Indian Competition Act 2002 has broadly operated along the lines of antitrust law in the United States, which is to say that its foundations have been rooted in arguments of economic efficiency. These arguments that trace their origins to Robert Bork’s The Antitrust Paradox (1978) did not factor in the evolution of data as an economic asset. For Bork, anti-competitive behaviour meant practices that resulted in price distortion. Data-driven innovation, on the other hand, is centred on identifying efficiency gaps in traditional business models and fixing them using an assortment of data mining and predictive analytics. In the course of advancing efficiency, digital platforms also gain from network effects. In simple terms, the more the number of consumers and sellers transacting over a platform, the more essential and indispensable the platform becomes to both sides. Apparently, consumers benefit from this phenomenon as platforms vie to get them on board. However, existing sellers would stand to be in an unequal bargaining position with the digital platform. Moreover, startups would find it difficult to compete with dominant technology platforms because the latter already control vast amounts of data. Competition law has been struggling for a while to capture this. Before the present competition law came to be, the practice was to clamp down on businesses that expanded in size and scale. This was motivated by the philosophy that big is evil. The Competition Law Review Committee, chaired by Injeti Srinivas, submitted a report to the ministry of corporate affairs in July 2019, which echoes this philosophy. In order to tackle big ticket digital platform acquisitions, the report advocates scrutiny of mergers above a certain deal value over the existing practice of scrutinising mergers based on asset value. This is on account of many digital platforms falling short on assets and being valued instead for their network and data wealth. It is true that many of the bigger digital platforms have wiped out competition by simply acquiring smaller platforms. Yet, experience suggests that many of these acquisitions eventually fail, leading to heavy losses for the acquirer. For example, Flipkart recently shut down the online retail platform Jabong that it had earlier acquired for $70 million. Decisions on firm acquisitions should be left to the acquirer and any ex ante competition scrutiny based on deal value must be avoided. Instead, real reform should address the truly worrisome cause — the data dominance that any acquisition in the tech industry could potentially result in. Even this idea of data dominance is too broad, with room for further refinement and granularity in competition oversight through merger control. Big data analytics is usually thought of as deriving value from four Vs; veracity, velocity, volume and variety of data. Of these, the enhancement of data variety on account of an acquisition is probably most harmful, as it permits technology platforms to extend their dominance to other sectors. CCI must, therefore, benchmark the variety of data in the hands of the acquirer, compare that with the variety of data in the possession of the acquired, and then evaluate whether post-acquisition, the variety of data in the control of the merged entity or acquirer firm would be such that it can result in long-term undesirable consequences on data-driven innovation, including excessive centralisation of power. This is just one instance of fitting the remedy to the cause, and similar mindfulness to the actual harm must dictate any future reform of competition law to suit the digital age. Ananth Padmanabhan is dean, Academic Affairs, Sai University and visiting fellow, Centre for Policy Research The views expressed are personal Read the full article

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The inside story of the nuclear deal | Analysis - analysis

One of the most significant achievements of Manmohan Singh was the conclusion of the Indo-US (United States) nuclear agreement in UPA (United Progressive Alliance) 1. PM Manmohan Singh rightly believed that the non-proliferation regime had imposed a ‘nuclear apartheid’ on India and it would be a major long-term gain for our economy if we could get these restrictions lifted... ...We knew the agreement would be criticized at home. The Left parties were opposed to any closeness to the US and would oppose the agreement on principle. The BJP (Bharatiya Janata Party) would criticize the Government for accepting too many conditions... ...In October 2007, Sonia Gandhi asked me to come and see her.She had never done this before, so I was naturally curious. She said Prakash Karat had told her categorically that if we proceeded with the deal, the Left would withdraw support. She also said the PM had told her that the Left would keep badgering the Government and if we were to be pushed to the polls in any case, it was better if it happened earlier rather than later. The PM was concerned that if we had a bad monsoon next year, the economic situation could deteriorate, reducing the scope for manoeuvre, and it was best to move quickly. She also told me that he had offered to resign and let her reshuffle the leadership at the top if she wanted. She wanted me to urge the PM not to resign. He had the full weight of her support and that of the party, but neither the party nor the allies wanted an early election. Sonia Gandhi said she did not think the nuclear deal was an issue on which to risk an early election. I agreed with her that this was not the time for the PM to force an election. In fact, I pointed out that in the course of the Hindustan Times Leadership Summit in Delhi a few weeks earlier, an aggressive questioner, referring to the opposition to the nuclear deal, asked whether the deal was being abandoned. The PM himself had responded by saying we were not a ‘one-issue’ government. She asked me to brief the PM on our conversation and convey to him that this was not the time to resign. I reported the conversation to the PM, including my view, and pointed out that the public did not fully understand the benefits of the nuclear deal and a much stronger effort was needed to educate public opinion. I felt we had not adequately emphasized that the waiver from the NSG (Nuclear Suppliers Group), which prohibited members from engaging in nuclear trade with any country that was not a signatory of the NPT (Non Proliferation Treaty), would not just open the door for the US to collaborate with India but allow such collaboration with other countries. In effect, by helping us obtain an NSG waiver, the US would be opening many doors for us that would otherwise remain completely closed. He did not reveal his mind in our conversation but I was happy to find that he did not resign at that time. Meanwhile, the Left hardened its position...By February, the Left parties said the Government would have to choose between the nuclear deal and its own stability, setting a deadline of 15 March for the Government to indicate its intentions. The Left knew the IAEA (International Atomic Energy Agency) safeguards agreement was an essential step before the US Congress could approve the 123 Agreement, so it concentrated its efforts on preventing the Government from going to the IAEA. On 25 June 2008, Sonia Gandhi again asked me to come and see her. She said she had been told by many people that the PM was thinking of resigning and it would be a disaster for the party if he did, as none of the allies were keen on an early election. My response on this occasion was different from a year earlier. I had agreed then that it was premature to risk an election on this issue but now felt the situation had changed. The issues involved had been adequately explained in public and we had reached a point where the credibility of the Government would be affected if we appeared paralysed by a Left veto. I informed her that I had already told the PM that the right course, in my view, was to go to the IAEA and take the risk of the Left pulling out. She heard me out and asked me to convey the gist of our conversation and her views to the PM, which I did that very day. I have no idea whether they discussed the issue further but we know that the PM stood firm and sent the draft agreement to the IAEA shortly before leaving for a G8 meeting in Japan in early July. True to its word, the Left withdrew support on 8 July. The PM sought a vote of confidence in the House on 10 July. It was tense as both the Left and the BJP were on the same side. The opposition from the Left was not a surprise but the opposition from the BJP was mystifying. Brajesh Mishra, former principal secretary and national security advisor to PM Vajpayee, had supported the deal. The PM told me that he had also spoken to former PM (Atal Bihari) Vajpayee explaining that what the Government had done was the logical culmination of the efforts at rapprochement begun by him. He said Vajpayee seemed to agree but expressed helplessness... ...Fortunately, the Samajwadi Party, led by Mulayam Singh, came to the rescue. Manmohan Singh told me later that he had asked former president A.P.J. Abdul Kalam, one of the team of scientists that had supervised the nuclear test in 1998, to speak to Mulayam and persuade him of the merits of the nuclear deal. Kalam’s support was critical in getting the Samajwadi Party to support the Government on this occasion... ...Manmohan Singh’s quiet leadership was the critical driving force that made the nuclear agreement a success. He put together a team of key players and got them to cooperate and be part of the consensus that evolved. Leading from the front was particularly important because many in the Congress party were ambivalent about the deal. They worried about the political consequences of seeming to get too close to the US, because they feared loss of support from the Left and were also concerned that closeness to the US would alienate Muslim voters. At critical points, the PM had to mobilize political support from outside the party, such as from Dr Kalam who spoke to Mulayam to support the Government. The PM was able to navigate the choppy political waters with skill and patience and keep his party on board. He certainly could not have achieved this without the support of Sonia Gandhi who was fully aware of the party’s ambivalence. Montek Singh Ahluwalia is former Deputy Chairman of the Planning Commission of India.These are edited excerpts from his recent book, Backstage: The Story Behind India’s High Growth Years The views expressed are personal Read the full article

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Tracing the journey, and flaws, of the surrogacy bill - analysis

The government has tried to regulate surrogacy for over a decade. Starting with the permissive 2005 guidelines of the Indian Council for Medical Research, the government has proposed increasingly restrictive bills in 2008, 2010, 2013 and 2014 and has, through notifications of the ministry of home affairs, sought to exclude prospective parents on the basis of marital status, sexual orientation and citizenship. These efforts culminated in the Surrogacy (Regulation) Bill, 2016. Said to reflect the “ethos of the Indian people”, the bill, unlike in the past, dealt exclusively with surrogacy rather than with Assisted Reproductive Technology (ART) broadly. It banned commercial surrogacy, only permitting altruistic surrogacy, that too performed by a close relative of the couple, where the latter bears the medical expenses and insurance costs. The prospective parents had to be Indian citizens (Overseas Citizens of India, or OCIs, were excluded), and married for at least five years with a medical indication of infertility. The bill’s provisions would be implemented by an elaborate institutional machinery, backed up by stringent punishment.When introduced in the Lok Sabha in 2016, it was referred to a Parliamentary Standing Committee (PSC), which, in its August 2017 report, practically reversed every key feature of the 2016 bill and recommended to empanel surrogates rather than recruit a close relative and allow for compensated surrogacy, along with a broader insurance cover. Live-in couples, divorced women, widows, non-resident Indians (NRIs), Persons of Indian Origin (PIOs) and OCIs could avail of surrogacy and the period of proven infertility was to be reduced to one year. Importantly, it called for a comprehensive, legally binding agreement between the prospective parents, the surrogate and the clinic, which would be registered with the State. Despite these recommendations, a largely unmodified version of the 2016 bill, namely, the Surrogacy (Regulation) Bill, 2019 (SRB), was passed by the Lok Sabha in August 2019. When presented to the Rajya Sabha, it was referred to a select committee, which submitted its report on February 5, 2020.The select committee recommended involving a “willing woman” to perform surrogacy rather than a close relative, removed the need to demonstrate five years of proven infertility, increased insurance cover for the surrogate to three years, expanding it to include medical expenses, and allowed widowed and divorced women and PIOs and OCIs to pursue surrogacy. Significantly, it emphasised that the ART bill be passed before the SRB, given the medically-mediated nature of surrogacy. Where the select committee differs from the PSC is its preference for altruistic surrogacy. A selfless surrogate was performing a “social and noble act of highest level”, setting an example of a “model woman” in society on par with “normal mothers”. Correspondingly, the select committee recommended that surrogates be allowed insurance coverage, medical expenses and “prescribed expenses” to cover the costs of food and maternity wear to ensure their well-being and upkeep. There is no further elaboration on what these expenses could include (unlike in the PSC report).Herein lies an interesting paradox. Like the proponents of the SRB, the select committee believes that the epitome of Indian motherhood is to produce children for the market, with “divine warmth and affection”, irrespective of the detriment to the well-being of oneself and family. Or it might be that while the committee has valourised free reproductive labour in a tribute to altruism, in reality, the inclusion of the term “prescribed expenses” leaves the door half open for some form of compensation, especially since the arrangement is not restricted to “close relatives”.While the SRB seemed to frustrate the very possibility of surrogacy through stringent eligibility criteria for both the prospective parents and the surrogate, with restricted payments (medical expenses and insurance coverage) and carried out only for the domestic market, the select committee expands the eligibility criteria and allows OCIs and PIOs to pursue surrogacy, thereby opening up the domestic market. But, it expects that surrogates in the hopes of being “role models” for society, will carry a child through term for strangers without any compensation even when wealthy OCIs and PIOs commission surrogacy. Who would such “willing women” be and how will the government prevent their exploitation and forced labour given that begar and unpaid labour violate Art. 23 of the Constitution?The recommendations of the select committee on the sheer unworkability of the SRB as passed by the Lok Sabha are very welcome. The government now has the reports of two parliamentary committees wherein the collective wisdom of more than 50 members of Parliament has demanded a fundamental overhaul of the SRB. Yet, critical aspects of surrogacy regulation remain untouched — that of valuing surrogates’ reproductive labour and non-discriminatory access to surrogacy, irrespective of marital status (as in the case of adoption).Although stringent punishments for offences are built into the SRB, in the absence of robust implementation mechanisms, they are likely to result in fewer convictions, thereby producing shadow markets for commercial surrogacy. If passed, glaring omissions may well tie-up the SRB in constitutional litigation for years, rendering uncertain (once again) the legal landscape for those who harbour the hope of making families through surrogacy. Prabha Kotiswaran is professor of law and social justice at King’s College London. Sneha Banerjee is a postdoctoral research fellow at the Centre for Women’s Development Studies. The views expressed are personal Read the full article

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CAA is an artificial divide between communities - analysis

It would be interesting, if not edifying, to know whether Governor Arif Mohammad Khan learnt his history from Bharatiya Janata Party leader Amit Shah or vice versa. In any case, their commitment to what they believe Mahatma Gandhi and Jawaharlal Nehru said about opening our hearts and doors to Hindus and Sikhs from Pakistan is moving. It would have been wonderful if they followed the Mahatma and Nehru on other issues, such as compassion and secularism. Be that as it may, it would seem that neither look at history as it should be done, a study of the facts and the interpretation of those to better understand our past. But, I must say that since Khan delivers his pronouncements with the flourish of fencing, it is more enjoyable to respond to his “touche”.In recent weeks, we have been repeatedly told that it was Gandhi’s wish and Nehru’s commitment that migrant Hindus and Sikhs be provided citizenship and jobs. To set the record straight, the Partition assumed that people would choose to stay or migrate across the newly-drawn borders. But obviously, many Muslims, though certainly far from all, were expected to cross over to Pakistan just as most Hindus were expected to cross over to India. The Long Partition by Vazira Zamindar tells us that in Sindh, the steady departure of Hindus was seen as sad, even as the stream of Muslims coming from India was thought to be unwanted. The grand vision of a Muslim homeland floundered on the waves of muhajirs (Muslim immigrants) entering Pakistan. Ultimately, the crossings at Khokhropar in Sindh were closed because more migrants could not be accommodated. In India, there was an issue of dealing with Muslims who returned after having initially migrated to Pakistan ( 95,000 registered after the Jawaharlal Nehru-Liaquat Ali Khan pact) as well as Hindus and Sikhs who took the belated decision to leave Pakistan despite Muhammad Ali Jinnah’s assurances. Initially, people crossed the border without papers, then travel permits were introduced, and finally passports were issued by the two sides. At that point, the documents authorised travel, but were yet not associated with citizenship.The problem posed by returning Muslims was that their properties had vested in the custodian of evacuee property, and in many cases, utilised for settling refugees. There was no issue about their citizenship and, therefore, it did not figure. On the other hand, there are examples such as letters written to migrants in Pakistan by Zakir Hussain, pleading with them to return home. I know of individuals who returned after some months and even wrote about one such case in my book, At Home in India. It is quite understandable that Hindus and Sikhs who might otherwise have migrated at the time of Partition chose to do so as a second thought, disappointed with conditions in Pakistan. But that applies just as much to Muslims from Pakistan, and we know that several hundred have been granted citizenship of India over the years. The problem with the Citizenship (Amenment) Act, or the CAA, is that it seeks to create an artificial divide between Hindu and Sikhs on one hand, and with Muslims on the other, seemingly on the grounds of persecution, although the law does not require any proof of persecution. The truth is that many Muslims, particularly Qadyani, Shia and Baloch tribals face much worse persecution. We could have made a law to accommodate refugees keeping the historical and regional context in mind. Arif Mohammad Khan has suggested that since Partition, there has been a severe drop in Pakistan’s non-Muslim population, although this may be an exaggeration. That still does not justify the automatic exclusion of migrant or refugee Muslims from our concern. His reference to the All India Congress Committee Resolution and concern expressed by Ashok Gehlot, the then chief minister of Rajasthan, must remain in the context of a pending issue that any reasonable person would want resolved. It certainly cannot add any ideological dimension to justify the thesis that Khan proposes. We must not forget that despite his exertions, we are not limited to the India-Pakistan binary, but are dealing with Bangladesh and Afghanistan as well. The logic applied to Pakistan’s treatment of its minorities might not apply to Bangladesh, and certainly not Afghanistan about which former President Hamid Karzai has said that all its citizens are persecuted because of civil war. Furthermore, the exclusion of Sri Lanka defies logic.Having lent the CAA moral agnosticism, Khan has opted to steer clear of the response in Assam, where the people and the government have uniformly opposed the law because their concern is about outsiders who will dilute their culture irrespective of their faith. It is this that leads one to believe that the persecution story is a ruse for resolving the problem of what to do with the Hindu foreigners identified in the National Register of Citizens (NRC) process in Assam. Beyond that there is doubt that the same preferential treatment will be extended to people of a particular faith under a possible all-India NRC.Salman Khurdhid is former Union Cabinet ministerThe views expressed are personal Read the full article

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What Rodricks leaves behind - analysis

In an age of Section 377, a colonial-era law that criminalised consensual adult same-sex relationships till it was read down in 2018, few dared to live and love as openly as Wendell Rodricks and his partner, Jerome Marrel, did. The duo began to stay together in the 1990s, in Goa. They signed the Pacte Civile de Solidarite, a French civil solidarity pact that offers legal status to same-sex couples, in 2002. The 1990s and first decade of the new millennium were violent years for the lesbian, gay, bisexual and transgender (LGBT) communities. Brutality at the hands of police on account of the law, and by birth families on account of social opprobrium and lack of understanding was de rigueur, forcing LGBT persons to lead dual lives and hide their sexuality. But thanks to Rodricks and his partner, a whole generation of queers was able to grow up with a template that not only normalised their desires, but also offered hope of a similar loving partnership.Rodricks was a trailblazer at his work too. He often attributed his success as a fashion designer to his partner, but his own passion for sustainability and style was unmistakable. Rodricks challenged boundaries even in fashion, breathing couture into the quotidian. He created a line of resort-wear; he even designed the navy blue and white Goa Police uniform in the late 1990s, as well as stylish jackets for the Enforcement Directorate. A few years ago, he started a project to revive the Kunbi, a sari worn by tribal women in Goa before the Portuguese arrived. But this was not mere nostalgic traditionalism. Rodricks infused the sari with his own contemporary design sensibility, and it found great favour among collectors.His was an idiom that emerged from the state of Goa that he made his home in the early 1990s. His passion project, Moda Goa, which is slated to open this year, was a museum of design and couture with more than a hat tip to Goa’s heritage. Already, the museum has hundreds of artefacts — some dating back to the 7th century — that document Goan costumes, design and lifestyle through the generations. It is housed in a heritage structure, built in the 16th and added to between the 18th and 19th centuries. History, Rodricks understood, was a meeting point for those willing to observe and learn, and he couldn’t wait to open a world class museum on fashion in the small Goan village where he and Jerome lived. Indeed, his is a legacy that will live on. Read the full article

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Should the State pay for treatment of rare diseases? - analysis

The Supreme Court of India categorises the “rarest of the rare” cases for possible imposition of the death penalty. Of late, courts have dealt with a different category of “rarest of the rare”, and it is in the context of diseases. The commonality among both the categories is the decision between life and death. And the disease in question is known as the orphan disease. What would cause a disease to acquire the moniker “orphan”? In the world of rare diseases, it connotes diseases that are even rarer than rare. In the United States, it is a disease that afflicts less than one in 200,000 people. In India, we don’t have a definition of orphan diseases just yet, and the ministry of health and family welfare proposes to task the Indian Council of Medical Research with the project of defining this category of disease, in its new draft policy on rare diseases. Orphan diseases present multiple challenges to the public health system. Pharmaceutical companies don’t have satisfactory commercial incentives to develop treatments because the small number of patients does not present an opportunity to recoup their research and development costs. For this reason, where treatments have been developed, the price of the treatments is astronomical. For instance, for the treatment of Gaucher’s Disease, only three companies in the world manufacture lifesaving enzyme-replacement therapy, which costs anywhere between ~7 lakh to ~10 lakh per dose, with each patient requiring a dose every one or two months. The treatment is lifelong, and the inability to receive it could mean death. The question then is, does the State have an obligation to pay for it? Over the past few years, this agonising decision, the one between life and death, has entered courtrooms in India. In the case of Mohd Ahmed v. Union of India & Ors, the Delhi High Court held that the right to life under Article 21 of the Constitution includes the right to health, and “because someone is poor, the State cannot allow him to die”. The court found a breach of the patient’s constitutional rights and ordered delivery of State-sponsored treatment. Similar cases are pending a final decision in Karnataka and Kerala. More recently, the Delhi High Court revisited the issue, in cases filed by patients suffering from rare diseases, against the Employees State Insurance Corporation (ESIC). The HC ruled that the administrative circulars seeking to exclude genetic diseases were issued by the ESIC in a manner contrary to the ESIC Act. Once again, patients received treatment through court orders. The Supreme Court (SC) has long held that Article 21 imposes an obligation on the State to preserve life. In the cases of Parmanand Katara v. Union of India and Paschim Bangal Khet Mazdoor Samity v. State of West Bengal, the SC emphasised the fact that providing adequate medical facilities for people is an essential part of the obligations undertaken by the government of a welfare State. As things stand today, there has been no dilution of the principles laid down in these judgments. A plea to the contrary was made to the HC in the Mohd Ahmad case and summarily rejected. So where are we at, as a country, in our position on State-sponsored treatment for rare diseases? Until earlier this month, the government did not have any official policy on the matter. Having nowhere to turn to, patients suffering from orphan diseases, knocked at the doors of the courts.On January 13, the ministry of health and family welfare released the National Policy for Rare Disease, inviting comments from the public by February. The policy takes positive steps towards data collection, identification of diseases, dissemination of information and prenatal counselling and screening. It also provides for treatment for up to ~15 lakh for rare diseases that only require one-time treatment. However, diseases incurring a recurrent cost to the public exchequer such as Gauchers, Hurlers Syndrome (MPS I), Hunters Syndrome (MPS II) find themselves excluded from treatment under the policy altogether, citing resource constraints. It is likely that the draft policy, if finalised in its current form, will find itself the subject of legal challenge. It is also likely that it will once again fall to the courts to make the agonising decisions that have come to be associated with the rarest of the rare diseases.Shyel Trehan is an advocate who practises in the Delhi High Court, and the Supreme Court of India. She is a graduate of National Law School of India University, Bangalore, and Columbia Law SchoolThe views expressed are personal Read the full article