A fraught timeline: on Ayodhya title suit

The stage is set for a final hearing on the title suit to the disputed site in Ayodhya

he Supreme Court’s refusal to refer some questions of law in the Ram Janmabhoomi-Babri Masjid dispute to a seven-judge Bench has one immediate consequence: it could expedite the final hearing in the appeals against the Allahabad High Court’s compromise judgment of 2010 in the main title suit. The two-judge majority opinion has fixed the date for the hearing as October 29, a development that may mean that a final verdict is not far off and it could have a bearing on political events in the run-up to the general election due next summer. The final hearing ought to have begun a year ago, but was delayed because some parties wanted the reference to a larger Bench so that certain observations in a Constitution Bench decision in Ismail Faruqui (1994) could be reconsidered. The apprehension was that remarks to the effect that “a mosque is not an essential part of the practice of Islam” and that namaz can be offered anywhere, even in the open, would influence the outcome of the appeal. Justice Ashok Bhushan’s main opinion has sought to give a quietus to the controversy by declaring that “the questionable observations” were to be treated only as observations made in the context of whether land on which a mosque stood can be acquired by the government. It should not be taken into account while deciding suits and appeals. It is difficult to fault this approach, as it is a fact that the respective claims of the U.P. Sunni Central Wakf Board, Nirmohi Akhara and Ram Lalla, the deity, can only be tested against evidence adduced during trial and not by pronouncements on the significance of places of worship or practices in a particular religion.

At the same time, can one brush aside the possibility that observations on a sensitive religious issue would be exploited by one side to gain legal advantage? In his dissenting opinion favouring a reconsideration of Ismail Faruqui, Justice Abdul Nazeer notes that its observations have permeated the High Court judgment. Ismail Faruqui was a ruling on petitions challenging the validity of a Central law that acquired the land on which the Babri Masjid stood before it was razed by a frenzied and fanatical mob on December 6, 1992. The judgment was notable for upholding the rule of law by restoring the title suits that had been declared as having “abated” in the Act. It also declined to answer a Presidential reference on whether a Hindu temple stood on the disputed site before the mosque was built. Any observation made in the course of such a decision is bound to have a profound impact on the courts below. It is easy to contend that courts should work to their own timelines and not be influenced by such things as election season. But in the life of this nation, the Ayodhya dispute has gone through dark political phases and been more than a mere legal issue. The onus is on the apex court to dispose of the appeals at its convenience without giving any scope for the exploitation of religious sentiments.

Merely tinkering with import duties will not narrow the current account deficit

he Centre’s decision to increase customs duty on imports of 19 “non-essential” items amounts to tinkering at the margins to address a structural macro-economic issue. Using tariffs to curb imports of these items will not have a significant impact on narrowing the current account deficit (CAD), which is the Centre’s stated objective. By its own admission, the aggregate value of these imported items in the last fiscal year was just ₹86,000 crore. At that level, these imports constituted a little less than 3% of the country’s merchandise import bill in 2017-18. With the first six months of the current fiscal having elapsed, the impact of this tariff increase in paring the import bill and thus containing the CAD is at best going to be short-term and marginal. On the other hand, the decision to double import duties on a clutch of consumer durables to 20% could dampen consumption of these products, especially at a time when the rupee’s slide against the dollar is already likely to have made these goods costlier. Here, it would be interesting to see if the government’s move turns into a psychological ‘tipping point’ that ends up altering consumption behaviour towards this category of imported merchandise. If it does, that could have the salutary effect of fostering greater investment in the domestic production of some of these goods. The tariff on aviation turbine fuel — which will now attract 5% customs duty instead of nil — may add to the stress of domestic airline operators, the rupee and rising oil prices having already hurt their wafer-thin margins.

A more robust approach in addressing the widening CAD would be to institute wide-ranging measures to boost exports and simultaneously reduce the import-intensity of the economy. Policymakers must renew efforts to ensure that export growth starts outpacing the expansion in merchandise imports. This includes expediting the refunds on GST to exporters — smaller exporters have been badly hit by working capital shortfalls — to working to woo some of the labour-intensive supply chains that are moving out of China to countries such as Vietnam and Bangladesh. On import substitution, it is an irony that despite the abundance of coal reserves, thermal coal is one of India’s fastest-growing imports. This is a consequence of under-investment in modernising the entire coal production and utilisation chain and must be addressed expeditiously. With global crude oil prices showing no signs of reversing their upward trajectory, and the sanctions on Iran that may force India to look for other suppliers looming, the government will need to act post-haste to address structural imbalances to keep the CAD from widening close to or even exceeding the 3% of GDP level.

Freedom to pray: on Sabarimala verdict

The Constitution protects religious freedom in two ways. It protects an individual’s right to profess, practise and propagate a religion, and it also assures similar protection to every religious denomination to manage its own affairs. The legal challenge to the exclusion of women in the 10-50 age group from the Sabarimala temple in Kerala represented a conflict between the group rights of the temple authorities in enforcing the presiding deity’s strict celibate status and the individual rights of women to offer worship there. The Supreme Court’s ruling, by a 4:1 majority, that the exclusionary practice violates the rights of women devotees establishes the legal principle that individual freedom prevails over purported group rights, even in matters of religion. The three concurring opinions that form the majority have demolished the principal defences of the practice — that Sabarimala devotees have constitutionally protected denominational rights, that they are entitled to prevent the entry of women to preserve the strict celibate nature of the deity, and that allowing women would interfere with an essential religious practice. The majority held that devotees of Lord Ayyappa do not constitute a separate religious denomination and that the prohibition on women is not an essential part of Hindu religion. In a dissenting opinion, Justice Indu Malhotra chose not to review the religious practice on the touchstone of gender equality or individual freedom. Her view that the court “cannot impose its morality or rationality with respect to the form of worship of a deity” accorded greater importance to the idea of religious freedom as being mainly the preserve of an institution rather than an individual’s right.

Beyond the legality of the practice, which could have been addressed solely as an issue of discrimination or a tussle between two aspects of religious freedom, the court has also sought to grapple with the stigmatisation of women devotees based on a medieval view of menstruation as symbolising impurity and pollution. The argument that the practice is justified because women of menstruating age would not be able to observe the 41-day period of abstinence before making a pilgrimage failed to impress the judges. To Chief Justice Dipak Misra, any rule based on segregation of women pertaining to biological characteristics is indefensible and unconstitutional. Devotion cannot be subjected to the stereotypes of gender. Justice D.Y. Chandrachud said stigma built around traditional notions of impurity has no place in the constitutional order, and exclusion based on the notion of impurity is a form of untouchability. Justice Rohinton F. Nariman said the fundamental rights claimed by worshippers based on ‘custom and usage’ must yield to the fundamental right of women to practise religion. The decision reaffirms the Constitution’s transformative character and derives strength from the centrality it accords to fundamental rights.

The power of a nudge

Including behavioural insights in policymaking is helpful.

According to the Organisation for Economic Cooperation and Development, 202 institutions around the world are applying behavioural insights to public policy. While most of them are found in the U.S., the U.K., Europe and Australia, some are found in developing countries in West Asia, Africa and Latin America. These institutions partner with behavioural and social scientists and combine psychology, sociology, anthropology, and politics to understand human behaviour to design effective public policies.

Understanding a paradox

Why are governments including behavioural science in policymaking? Over the last few years, it has been observed that even the most well-intentioned public policy programmes fail to be adopted by people who would benefit from them the most. On the contrary, people repeatedly make decisions that serve neither their own interests nor of others. In India, for instance, despite access to toilets, open defecation remains a huge challenge. Finding answers to this paradox is where behavioural frameworks become relevant.

Until recently, it was assumed that individuals make rational choices, and the right incentives determine the “right choices”. But evidence suggests otherwise. People’s choices and decisions are not rational but determined by a far more complex set of psychological, cognitive and behavioural factors. Given their limited attention and computational capacity, people gravitate towards the status quo, which often results in a gap between the policy’s intent and action. It’s therefore not surprising that people discount the risk of stroke and “choose” not to invest in health insurance. Decisions also tend to be clouded because of societal perceptions and adherence to norms — for instance, girls are still married young. Understanding these barriers is leading to recalibration of public policy design. By including ‘nudges’ — small, easy and timely suggestions to influence behaviour — we understand implementation outcomes better.

There are a few aspects that could be considered while applying this science. One, the advantages of deploying these insights can only be reaped if national contexts and differences in socio-economic, cultural and political narratives are appreciated. So, while success stories from across the world showcase the potential of informed behavioural adjustments to policies, these can’t be simply emulated in developing countries. There first needs to be an analysis of social norms. One such effort is cognitive scientist Christine Legare’s work in Bihar, to improve the quality of health-care service delivery by front-line workers. It takes into account popular ‘rituals’, like keeping a baby away from the ground in a cot (palna), or marking decorations around her hearth (chulah), for transmitting messages that are culturally acceptable.

Improving health services

Second, behavioural science can be applied to large-scale programmes. The very nature of the science being imbued in a social and cultural context enables it to generate effective and sustained results to public service programmes. PENN SoNG is collating the analyses of core social motivators for open defecation and related behaviours in Tamil Nadu and Bihar with culturally appropriate social measures to convert toilet usage into a sustained habit.

Third, interventions that are designed using this science can reduce the intent-to-action gap. There is a plethora of tools like defaults, reminders, prompts, and incentives that can reduce poor adherence and increase compliance for sustained impact throughout the life of an intervention — for example, Kilkari, a mobile service by the government that delivers free, weekly and time-appropriate audio messages about pregnancy, childbirth and childcare directly to families’ mobile phones. It focuses on improving uptake of health services.

Lastly, data collected and evaluated from a behavioural insights approach can be used for better management of programme performances. Rigorous evaluation of behaviour is often missed while measuring programme performances, and often this missing data can help explain the limited impact of well-intended government programmes. The impressive work done by the Ministry of Rural Development, on monitoring the implementation of national flagship schemes through DISHA dashboards, can be leveraged for evaluating behavioural change on the ground. While DISHA does not include measures on behaviour, it measures implementation of programmes. It shows how India can benefit from the use of behavioural insights in policy decision-making.

Archna Vyas is country lead, Behaviour Change Communications at Bill & Melinda Gates Foundation, India. Views are personal

An indefensible ordinance

The triple talaq ordinance is bound to fail the test of judicial scrutiny on several grounds.

An ordinance is a constitutionally sanctioned ad hoc mechanism by which critically urgent situations are met when Parliament or a State Assembly (as the case may be) is not in session and the government cannot afford to wait till it reassembles for fear of things becoming unmanageable if not legislatively redressed immediately.

Last week, the Union Cabinet, on the presumption that direful conditions prevail in the country due to the pervasiveness of instant triple talaq, convinced the President to promulgate the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. In the words of Union Law Minister Ravi Shankar Prasad, the “overpowering urgency and compelling necessity” that gave birth to this ordinance was that talaq-e-biddat continued unabated despite the Supreme Court’s order last year.

The fact is, excluding isolated cases, there is no documentary evidence to show that the incidence of instant triple talaq had reached alarming levels to warrant the hasty promulgation of a presidential ordinance. And as Article 123 of the Constitution requires the President to ensure the existence of circumstances “which render it necessary for him to take immediate action”, the Centre, in the interest of a fair debate, must make public the evidence presented to the President.

Poorly conceived and drafted

Nevertheless, the triple talaq ordinance is so poorly conceived and drafted that it is bound to fail the test of judicial scrutiny on several grounds. First, it could collapse under the weight of its internal contradictions. Section 2 (b) of the ordinance defines talaq-e-biddat as any form of talaq “having the effect of instantaneous and irrevocable divorce” but lays down in Section 3 that such a pronouncement in any form whatsoever “shall be void and illegal”. No explanation is offered as to how the pronouncement can be “void” and have “the effect of instantaneous and irrevocable divorce” at the same time. Besides, Section 4 mandates a three-year imprisonment and fine for this void act, and Section 7 declares it a cognisable and non-bailable offence. This fixation with talaq-e-biddat, even when it does not dissolve the marriage, is baffling.

Second, barring constitutional amendments under Article 368, Parliament is not competent to enact any law which is inconsistent with the fundamental rights enshrined in Part III of the Constitution. Article 13 (2) states: “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Endorsing this, Article 123 (3) warns that if an ordinance “makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.”

The ordinance, insofar as it arbitrarily curtails the personal liberty of a citizen without his having committed any offence, violates Part III of the Constitution, specifically Article 21 which states: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It also goes against Article 19 which inter alia allows all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.”

Third, the Supreme Court in several cases, including Maneka Gandhi v. Union of India (1978) and Justice K.S. Puttaswamy v. Union of India (2017), had made it clear that “law” means reasonable law, not any enacted piece. And a procedure established by it has to be fair, just and reasonable to avoid being struck down as unconstitutional. The ordinance fails on all these counts.

If by criminalising the mere pronouncement of the legally impotent formula talaq-talaq-talaq it violates the principle of substantive due process, the ordinance disregards procedural due process by laying down an iniquitous procedure for the “offender’s” imprisonment, bail, custody of his children and the amount he has to shell out as subsistence allowance to his wife even while serving a jail sentence. The unfairness, injustice and unreasonableness lie in the fact that the ordinance inflicts this torment on a citizen despite acknowledging the voidness of his pronouncement.

Fourth, Article 123 empowers the President to promulgate an ordinance only when urgent situations arise during the recess of Parliament. In the case of triple talaq, no such emergency came to light after the monsoon session ended. In fact, the triple talaq Bill passed in the Lok Sabha was already being debated across the country when the Centre, citing the reason of lack of consensus among parties, decided not to table the amended version of it in the Rajya Sabha during the monsoon session. This indicates that the Bill did not have the approval of the Upper House of Parliament. If despite this an ordinance resembling the untabled Bill has been promulgated, it lends credence to accusations that the legislature was undemocratically circumvented to serve the political interests of the ruling party.

The fact is, it makes no sense to bypass the parliamentary process because Article 123 (2) (a) demands that all ordinances be laid before both Houses of Parliament when Parliament reassembles. In Krishna Kumar Singh v. State of Bihar (2017), the Supreme Court ruled that tabling ordinances in Parliament (or a State Legislature) “is a mandatory constitutional obligation cast upon the government” because ultimately it is the legislature which determines “the need for, validity of and expediency to promulgate an ordinance.” And failure to table an ordinance before the legislature “is an abuse of the constitutional process” and a “serious dereliction of the constitutional obligation.” Therefore, one fails to understand the Union Cabinet’s wisdom in taking the ordinance route without discussing the triple talaq Bill in the Rajya Sabha. If it was due to the fear that the Bill would not have been approved, then the same fear exists for the ordinance because in all probability, the Rajya Sabha will reject it too, and the government would have achieved nothing except criminalising instant triple talaq for a short period of time till the winter session of Parliament starts.

A pointless ordinance

In this context, the Supreme Court’s pronouncement on the re-promulgation of ordinances assumes significance. In Krishna Kumar Singh, criticising the State of Bihar for re-promulgating ordinances without placing them before the legislature, the court declared that “re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative processes.” The power to promulgate ordinances is subject to legislative control, it said, and does not make the President or the Governor “a parallel source of law making or an independent legislative authority.” As is obvious, the pointlessness and the indefensibility of the triple talaq ordinance stands out from every coign of vantage. One hopes that the President will examine the legal infirmities that the ordinance suffers from and consider withdrawing it at the earliest.

Missed opportunity or ill-timing?

The acrimony over the proposed Foreign Ministers’ meeting has set back India-Pakistan ties

That was quick. A quick cool breeze turning into a scorching slap of hot wind of the desert. We had a rocky start when the routine congratulatory letter by Indian Prime Minister Narendra Modi to Pakistan’s Prime Minister Imran Khan calling for constructive engagement was translated as the signal for resumption of dialogue. The Indian Ministry of External Affairs (MEA) wasted no time to embarrass Pakistan’s Foreign Office for its lack of capacity to understand the diplomatic language. Despite another facepalm over the contents of U.S. Secretary of State Mike Pompeo’s phone call with Mr. Khan, the Pakistan Foreign Office put up a brave face to ease the tension between the U.S. and Pakistan on the eve of Mr. Pompeo’s five-hour visit on September 5.

The pundits in Islamabad saw a prize for the patience. Besides the same ol’, same ol’ statements issued unilaterally from both sides, there was something special discussed on the sideline related to India and Pakistan. While the U.S. insisted on pulling the plug on India and Afghan-centric militants, Pakistan prodded the U.S. to push Delhi for positive engagement and a commitment to act positively should India accede to normalisation and finding mutually acceptable solutions to long-standing problems.

On the heels of the U.S. visit to the region, Mr. Khan sent Mr. Modi a letter, presumably to respond to his congratulatory letter but actually to bring a thaw into the frozen relationship. The letter might not be rich on style but did offer something to both countries. It offered Pakistan a face saver by mentioning Kashmir, Siachen and Sir Creek, while it offered India the possibility of resumption of trade and the T word. Pakistan was willing to talk about terrorism, Indians have always wanted to talk about it as they have maintained it as the main hindrance in the resumption of the comprehensive dialogue.

Back and forth

On Thursday, September 20, the MEA spokesperson acknowledged the letter from Mr. Khan, requesting a meeting of the two Foreign Ministers, Sushma Swaraj with Shah Mehmood Qureshi, and said a meeting would take place but should not be construed as the resumption of the dialogue process.

The U.S. Department of State wasted no time by welcoming the scheduled meeting in an almost condescending tone. Within 24 hours, the very next day the MEA Spokesman made a U-turn, cancelling the meeting. Had it been just the cancellation, it would have been taken lightly, but the direct accusation against Mr. Khan by naming him created a new crisis.

The Pakistan Tehreek-e-Insaf (PTI), the party now ruling Pakistan, had in the past used very harsh language against former Prime Minister Nawaz Sharif, who had contested the 2013 elections on the promise of improving relations with India. “Modi ka yaar gaddar (Modi’s friend is a traitor)” was a theme that ran for almost the entire campaign period against Mr. Sharif’s Pakistan Muslim League-Nawaz (PML-N) in the elections this summer. The PTI had accused the PML-N of establishing personal relations with Mr. Modi and doing personal business with him instead of promoting the national interests of Pakistan. The party had hit Mr. Sharif hard for Mr. Modi’s visit to Lahore in December 2015 and had blasted his government on an Indian businessman’s visit to Pakistan in April 2017.

With the controversial elections of July 25 behind him, Mr. Khan turned the corner. His first informal acceptance speech offered the olive branch to India. “If India moves one step, we will move two,” he said.

Islamabad was rife with rumours that he wanted to invite Mr. Modi besides his friends in Bollywood and cricket friends for his oath-taking ceremony on August 18.

Somehow Mr. Khan was prevented from inviting Mr. Modi, but one of his cricket buddies, Navjot Singh Sidhu, did turn up. While his seating arrangement and the japha (bear hug) with the Chief of Army Staff, General Qamar Javed Bajwa, created quite a stir in India, Pakistan government circles were bullish on the offer to open the Kartarpur border crossing for Sikh pilgrims. While The New York Times even suggested that the Pakistani military had tried to reach out to the Indian side to discuss outstanding issues, a story never denied by the military, the very ambiguity created a positive atmosphere before the scheduled meeting between the top diplomats of both countries on September 27.

More fireworks

All that changed on Friday, September 21, with the cancellation of the meeting that almost insulted the Pakistan PM. While the Pakistan Foreign Office and Mr. Qureshi expressed their disappointment, they stayed within the diplomatic ambit and did not attack the Indian side. That changed when Mr. Khan on Saturday, September 22, attacked Mr. Modi without naming him and chiding him as the small man holding a big office. As if that was not enough, the statement by the Indian Army Chief threatening Pakistan and the retaliatory statement by the Pakistan Army spokesperson has made the situation more toxic than the pre-election situation. We expect more fireworks in New York City during the UN General Assembly.

Will the two men in Delhi and Islamabad find a way untangle the relations should Mr. Modi continue to rule after the upcoming elections in India is a question that hangs in the air in both countries now. Politics is the art of the possible, and thankfully both Mr. Modi and Mr. Khan are politicians.

Murtaza Solangi is a broadcast journalist based in Islamabad, and is a former Director General of Pakistan Broadcasting Corporation

Language matters: on Amit Shah's 'termite' remark

The BJP should give up its shrill rhetoric on immigration and the NRC

he process of filing claims and objections by persons left out of the draft National Register of Citizens in Assam began on Tuesday, in an atmosphere fraught with uncertainty about the documentation needed and possible recourse for those who may ultimately not clear the final list. In the draft published on July 30, as many as 40 lakh of the 3.29 crore applicants found their names missing. It is vital that the state do all it can to create an enabling environment to assist people grappling with paperwork and bureaucracy to assert their claim to being legitimate citizens of India. It is equally important that the government, in Assam and at the Centre, think the future through humanely and practically in regard to those who may remain off the final list. These persons will have many levels of appeal as next resort — but India needs to officially give the assurance that it will not condemn undocumented immigrants, who lack wherewithal and are the most unfortunate victims of poverty and South Asia’s complicated history, to their own devices. This empathy is in keeping with India’s tradition of giving refuge to those who have nowhere to go. It is disturbing that instead, even as the finalisation of the NRC is on, the register is becoming a pretext for political outreach based on xenophobia and demographic messaging. Leaders of the Bharatiya Janata Party, which is also in power in Assam, are freely recommending NRCs across India, and using the process in Assam to create new fault lines.

This weekend, at a public meeting in Delhi, the BJP president, Amit Shah, rallied the crowd by referring to infiltrators allegedly in the country, claiming they were eating away at India’s future. The comparison he made for this eating away from within was with “deemak” (Hindi for termites). Mr. Shah has, of late, dwelt many times on the need to identify illegal immigrants in the country, whose numbers he says are in crores. This has already drawn a response from Bangladesh, with Minister of Information Hasanul Haq Inu calling Mr. Shah’s comments “unwanted”, and also reiterating Bangladesh’s position that the NRC exercise is India’s internal matter. Mr. Inu has also referred to Delhi’s own communication, including from Union Home Minister Rajnath Singh, that the NRC process is India’s internal issue. Beyond the data and diplomacy angles, there must be concern about the language being employed. Analogies to pests that attack a society from within are the staple of dangerous polarising rhetoric. The use of the NRC in electoral rhetoric is even more dangerous. Regrettably, the BJP seems determined to proceed with such mobilisation, knowing full well the damage it will cause to Indian society.