CENTRE for POLICY ANALYSIS
|HOME | ABOUT | SPOTLIGHT | ACTION FOR JUSTICE | PAPERS & REPORTS | CONTACT | GALLERY | ARCHIVE
|“Social progress can be measured by the social position of the female sex” - Karl Marx
|FROM THE DIRECTOR'S DESK | OPINION | ARTICLE
FROM THE DIRECTOR'S DESK
NEW DELHI:When Lt General H.S. Panag, an Army officer with a long and distinguished career, told The Citizen in an interview that the photograph of the 24 year old shawl weaver Farooq Ahmad Dar tied to the front of an Army jeep as a human shield against stone pelters was a ‘defining image’ with global dimensions, he could not have been more right. As just within days the New York Times came out with an editorial ‘Cruelty and Cowardice in Kashmir’ based on this image, speaking of this incident as a “new low”.
The point is not whether the NYT is right, or wrong. The point is that this photograph---like that of the little Syrian boy swept ashore, or of the young Afghan girl with piercing eyes, or of the Palestinian man trying to protect his child with the next image showing him lying dead with his boy crying over him----had the potential to become a defining image of the Army of democratic India in Kashmir at this point in time. NYT , along with others, took it as such and wrote an editorial stating, “India’s army chief, Gen. Bipin Rawat, has vowed action against those responsible for tying Mr. Dar to the jeep. But he has also thundered against Kashmir’s stone-throwing youth and separatist militants, saying in February: “They may survive today, but we will get them tomorrow. Our relentless operations will continue.”
In the midst of escalating protests, with schoolgirls having joined the protests along with the male students across the state Jammu and Kashmir Chief Minister Mehbooba Mufti met Prime Minister Narendra Modi when she went to Delhi to attend a Niti Aayog meeting. She reportedly said a lot, as per her own briefings, but the Prime Minister said little. Or perhaps nothing at all, as not a word has appeared except for a line that he was not against talks provided there was peace, and the protests stopped. At the larger Niti Aayog meeting he did ask the other CMs to ensure the integration of the Kashmiris into the Indian mainstream, again according to reports, but did not say anything in real terms about Mufti’s plea to look after the safety and security of the Kashmiri students.
In short, PM Modi did not give CM Mufti a sentence she could cling on to, and survive. She was told to bring down the violence, that is quite beyond her means now. She went from Srinagar saying she would persuade the PM to begin a political dialogue. She returned from Delhi saying quite the opposite, ““I understand that the coming two-three months are crucial for us. I want to say that you will find the situation of Jammu and Kashmir changed. We will first restore normalcy and then talks can be initiated.”It is clear that despite the unwanted global media attention, the government at the centre is not going to review its ‘military’ policy in Kashmir. And replace it even marginally with the dialogue that all civil society delegations, including one led by former BJP Minister and senior leader Yashwant Sinha, have been demanding. In fact Sinha has admtted in a recent interview that he had asked for an appointment with the PM after visiting the state twice in recent weeks, but is still waiting. Another clear indication that the Prime Minister is not interested in even listening to Sinha despite the many recommendations made in his report, the foremost being the start of a political dialogue.
There has been a thinking in sections of the establishment, including under the Congress government that was visible in the last five years of the Manmohan Singh government, that Kashmir can be quelled with force, and that there should be no give insofar as a dialogue with protestors, stone pelters, separatists, ideologues, pro-Pakistan elements and others in the state is concerned. This roughly translates in todays Kashmir, pushed to the brink as it were by the combined policies of successive government in Delhi and Srinagar, to : no talks at all.
Unlike the Congress that vacillated on formulating an effective Kashmir policy even at the best of times, and very unlike its own former Prime Minister Atal Bihari Vajpayee who showed no hesitation in opening a dialogue with all sections, the BJP government today is clear that it will follow only the military option. And that the Kashmiri’s once holed in the Valley---with attacks on them increasing in other states of India---will eventually give in, as fatigue and the casualties that are inevitable will become a deterrent.
CM Mufti knows that there will be no ‘give’ by the central government. This has been made clear to her. And while the centre does not want Presidents rule as it would prefer to have a buffer through the PDP for some more time, it is quite prepared to do so now if Mufti decides to resign. It has been really left to her, as PM Modi did not bother to dole out assurances that she could peddle at home this time around. In fact, there is little that she has brought back to Srinagar that she could use to convince her own waiting legislators.
As always Mehbooba Mufti has missed the bus. She missed the first bus when she delayed becoming the CM to a point where she finally took the post from a position of weakness, virtually crawling into the seat after her father Mufti Mohammad Sayeed’s demise. She was unable to negotiate, and the BJP called her little bluff with ease. She has missed the second bus now. If Mehbooba Mufti had resigned in 2016 when the pellet guns were used on the Kashmiris she might have been able to influence a calmer Kashmir policy. And even if the BJP had chosen not to listen to her, she would have acquired a moral status to be effective in the politics of the state to a point where she and the PDP would have risen in popularity, thereby filling ---at least to some extent---a vacuum of leadership that is so evident today. Several of her colleagues advised her to resign, but Mufti was clearly too smitten by power by then, to pay heed.
Now the opportunity is lost. And whether Mufti resigns or not, the protests will not still as Kashmir seems to have crossed the curve, and not for a better road.She has become ineffective in the Valley that launched her, and it is only a matter of time before the BJP will either rid itself of the PDP or leave her with no choice but to resign as a discredited and unpopular leader. She will, thus, join the other regional leaders who as the recent Srinagar bypoll demonstrated cannot attract even double figures to their door. The Abdullah’s while trying hard, are unable to enthuse the Kashmiris having lost their efficacy and influence in 2012 along with that of the Congress. When little girls join a protest, it is not an exaggeration to say that every Kashmiri is now a protestor. And in such cases, as history has demonstrated over and over again, the military option cannot work without severe rights violations. Perhaps the NYT Editorial Board’s conclusion needs to be understood when it urges PM Modi to follow the recommendations of a report calling for a political dialogue “before Indian democracy loses its credibility and Kashmiris are robbed of a chance to dream, along with the rest of India, of a peaceful, prosperous future.”
The demonetisation of 86 percent of the currency of the country, a virtually unprecedented measure anywhere in the world, has brought immense hardship to the working people of the country, and will damage their living standards permanently (since the Modi government plans not to replace the entire value of the demonetized notes by printing new ones). Many however believed that it was a step being taken for the greater social good, for achieving certain important social goals.
Three of these goals were mentioned by the government from time to time: to attack black money, to replace counterfeit notes, and to encourage a shift to a cashless economy.
The last two of these goals could have been achieved through a gradual withdrawal of old notes rather than a sudden demonetization of the sort that the government actually effected.
The last of these goals is even a pernicious one anyway, since it pushes people from costless transactions, which cash transactions are, to more costly digital transactions. Only a government committed to transferring incomes from the working people to firms providing digital services, would consider this a worthwhile social goal and even use coercion for achieving it. The goal which appeared most persuasive to people was the attack on black money.
Most economists in the country, belonging to diverse ideological backgrounds, had argued that demonetisation would not achieve this goal, that at the most it would only be a pinprick for the operators in the black economy, for which causing such mass distress was totally unwarranted; but even these critics had accepted that demonetization would administer a pinprick to the black economy operators.
It now turns out however that demonetisation has not even administered a pinprick to the black economy; it has been an utter fiasco with regard even to this one goal it was supposed to achieve, which most people had considered both worthwhile and pressing. With its failure to administer even a pinprick to the black economy, even the last fig-leaf of an argument in favour of demonetisation has collapsed. Let us see why.
The case built for demonetisation was that with the 500 and 1000 rupee notes no longer being legal tender, the cash held in the form of such notes in the black economy would cease to have any value. While the common honest people would come to the banks to exchange or deposit the demonetized notes in their possession, the black money operators would not dare to do so, for fear of exposing themselves for investigation. As a result, the notes held in their possession would simply get extinguished, which would be a major loss for them. The difficulty of recovering from this loss would deal a huge blow to the black economy.
In other words the mechanism through which the black economy was supposed to be hit was through the extinguishing of the 500 and 1000 rupee notes held by it; and the success of demonetisation in crippling the black economy was to be measured by the value of the currency so extinguished.
The government reportedly had expected that 3.5 lakh crores of rupees would get extinguished in this manner; and economists emphasizing the futility of demonetisation as a weapon for combating the black economy, had argued that even if this happened, since the sum of 3.5 lakh crores of rupees was a small fraction even of the profits of the black economy, its extinction would not make much difference to this economy, though they had expected the actual value of extinguished currency to be much smaller than this. This however was the figure for the extinction of old notes that the government had expected.
So sanguine had the government been about the extinction of a sizeable amount of old notes, that it had even promised substantial largesse to the people on the basis of such extinction. The argument had gone as follows. Since the extinguished currency constituted a liability of the Reserve Bank of India, the extinction of this liability would be tantamount to an accrual of an equivalent sum as a windfall profit to the RBI.
As the RBI was wholly-owned by the Government of India, its profits constituted the income of the government, so that the value of the extinguished currency would ipso facto constitute budgetary resources for the government and hence be available to it for spending. And BJP leaders went to town claiming how this “masterstroke” by PM Modi had enabled the government to spend huge amounts of money for the people’s welfare or for direct distribution among them.
This argument of course was wrong. The extinction of some liabilities of a government-owned institution does not ipso facto constitute profits of that institution and become available for spending by the government. For if that was the case, then the non-performing assets of the nationalized banks, by the same logic, should cause a reduction of an equivalent amount in the government’s expenditure, which is absurd. The balance sheet and the profit-and-loss accounts of any institution are separate, though related, entities; but one of them cannot be directly translated into the other.
But the following more plausible argument could nonetheless be advanced. The extinction of a part of the liability of the RBI enables it to reduce its assets to an equivalent extent, through simply writing off government debt to it. In that case the government could freshly borrow an equal amount from the RBI, without its overall indebtedness going up.
In other words though the government could not claim the value of the extinguished notes as its income, it could certainly issue fresh debt of an equivalent amount with impunity; even international finance capital, opposed to fiscal deficits, could be persuaded that fresh borrowing of a value equal to that of the extinguished notes, did not constitute an increase in the fiscal deficit.
All such hopes and claims however have been dashed, since it now turns out that by the December 30 deadline for depositing old notes, the banks had got back as much as 97 percent of value of the demonetised currency, either for exchange against new notes (a facility that was subsequently discontinued) or as deposits.
Against Rs.15.4 lakh crores which were demonetized, nearly 14.9 lakh crores have returned to the banks, leaving only forty-odd thousand crores of extinguished currency. The question of larger government expenditure because of the reduced liability of the RBI therefore simply does not arise, since the magnitude of reduced liability is such a trivial sum.
More importantly however the impact on the black economy is almost nil.
In the forty-odd thousand crores of rupees which have been extinguished, a fairly large amount would belong to people who have nothing to do with any black activities, but who, for various reasons ranging from illness, to infirmity, to procrastination, to confusion arising from the government’s frequent, bewildering and illicit changes of rules and deadlines governing the return of demonetised currency, could not turn in their old notes in time. The extinguishing of old notes belonging to the black economy, which the government had expected to be around Rs.3.5 lakh crores when it embarked on demonetisation, is virtually nil.
The demonetisation measure, while causing immense distress to the people, and severe damage to the economy that is not just immediate but would linger into the future, and not just to the informal sector but to the formal sector as well through the reduction in the informal sector’s demand for its goods, has produced nothing, literally nothing, by way of curbing the black economy, which was its commonly believed raison d’etre.
Most economists outside of the government, and of private institutions currying favour with the government, had emphasized the misconceived nature of this measure; but it turns out to have been even more misconceived than what its staunchest critics had imagined. And this is so, as already noted, by the criteria that the government itself has been proclaiming till now.
Needless to say, even this government whose brazenness is unprecedented, has been discomfited by this figure of the return of old notes. Its initial reaction was to question the data, though this came from none other than the RBI itself, by bringing in a lot of red herrings. But fresh rounds of data continued to pour in about the absence of extinction of the old currency; so finally, it has announced that until a thorough check is made, all these data should not be taken seriously. It has thus prepared the ground for “doctoring” the data in the name of a thorough check; but all such “doctoring” will be of no avail and its effort to hide the truth will come to naught.
The return of virtually the entire demonetised currency to banks is indicative both of the fact that the supposition of there being large cash-holding in the black economy was wrong, and also of the fact that black economy operators are always capable of taking steps to evade any such measure, while it is the poor working people who become its victims. Both these facts were known to most people; now they have been borne out by the government’s own statistics. The evasive measures taken by the black money operators have ironically led to a proliferation of the black economy, while the purported objective was to curtail it.
Demonetisation has been a fiasco in achieving its stated objective, apart from being a disaster for the people. The Modi government, however, true to its character, will never admit its mistake, never make a self-criticism, never consult the Opposition on how to redeem the situation and ameliorate the unnecessary distress it has caused. On the contrary it will pile on even greater agony for the people in its attempt to cover up what it has already done.
( Professor Prabhat Patnaik is a reputed economist and scholar. He is Professor Emeritus at Jawaharlal Nehru University and author of several books including The Value of Money, The Retreat to Unfreedom, A Theory of Imperialism(co-author Utsa Patnaik)
Humans, in the early stages of existence on this planet, lived incredible in harmony with nature. Ancient civilizations and cultures treated rivers as being alive or as Gods. Heraclitus, a Greek philosopher used the river in an allegory to say that nothing in the material cosmos is static, and everything keeps on changing. His words are: “No man ever steps in the same river twice, for its not the same river and he is not the same man”. Worship of rivers can also be linked to Pantheism, which views everything in existence as God. Thomas Hobbes, in his most famous work, Leviathan, opens with the word “Nature” and then parenthetically defines it as “the art whereby God hath made and governs the world”.
For Hindus, the Ganga is the most sacred river and is also the lifeline for millions of Indians living along its course and depending on it for their sustenance. It has kindled man’s thought and imagination for centuries.PanditJawaharla Nehru, stressing on the importance of the river said: “The Ganga, especially, is the river of India, beloved of her people, round which are intertwined her memories, her hopes and fears, her songs of triumph, her victories and her defeats. She has been a symbol of India's age-long culture and civilization, ever changing, ever flowing, and yet ever the same Ganga.”
Over time, with the population growth and the advancement of science and technology, theman-nature relationship has been one of overuse, misuse and imbalance leading to environmental degradation. The philosopher Jean Jacques Rousseau, in the eighteenth century, accepting that nature is the ideal and source of morals, enlightenment and the pursuit of happiness gave the clarion call “Back to Nature.” His aim was to correct urban society’s alienation from nature.
The disharmony of the existential relationship between men and nature has also been felt in India. The holy river Ganga has come to beconsidered to be one of the most polluted rivers needing state intervention. The Government of India in July 2014 announced an Integrated Ganga Development Project titled ‘Namami Ganga’ and allocated 2,037 for the project.
In New Zealand, in a first in the world, river Whanganui (also named as Te Awa Tupua) has been accorded legal personality and has been conferred same rights as that of human beings. However, this was done by enacting a Bill by the Parliament and not by judicial legislation. ‘Rights of Nature’ are specifically provided in the Ecuador Constitution. In local parlance, the river used to be think as having spiritual connection with the Maori Tribe ‘iwi’. They describe it as, “I am the river and the river is me.”
Recently, in case of Mohd. Salim v. State of Uttarakhand&Ors. [Judgment dated 20.03.2017 in W.P. (PIL) No. 126 of 2014] – Alok Singh &Rajiv Sharma JJ., in an unprecedented judgment declared the river Ganga, Yamuna and all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers to be living entity. Court bestowed upon them all the fundamental rights available to a person under the Indian Constitution by equating them to ‘legal person’ or ‘juristic person’. The said rivers, it has been held by Court, are capable of enjoying all the rights, duties and liabilities of a living person. Court reasoned that these rivers provide ‘physical and spiritual sustenance’ to half the Indian population. Therefore, to protect the recognition and faith of the society such extraordinary measure was deemed expedient.
Court adopting the principle of Parenspatriaedeclared Director of NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the Advocate General of the State of Uttarakhand as loco parentis.
II. Jurisprudential analysis of concept of ‘person’
Legal person refers to a non-human entity that is treated as a person for limited legal purposes, for example, corporations. Courts have also held deities and idols to be legal persons. Legal persons can sue and be sued, own property, and enter into contracts. Of late jurisprudence hasalso developed that legal person like corporations may also commit a crime. There are two facets of being a legal person,first, capability to possess certain rights and second, of having obligations.
Wesley Newcomb Hohfeld in his analysis of jural relations said that jural correlative of right is duty. Every right, therefore, involves a relationship between two or more legal persons, and only legal persons can be bound by duties or be the holders of legal rights. Rights and duties are correlative.We cannot have a right without a corresponding duty or a duty without a corresponding right.To say that X has a legal claim-right means that he is legally protected from interference by Y or against Y's withholding of assistance with respect to X's project Z. Conversely, Y, who is to abstain from interference, or is required to provide assistance in connection with X’s project Z, is under a correlative duty to do so. The correlativity stipulation commands that if X has a claim-right against Y, this entails Y owing a duty to X.
Analysing from Hohfeldian perspective, if river Ganga is legal person capable of possessing ‘legal right’ then it shall have certain ‘duties’ (fact also recognised by the high Court). It means for breach of ‘legal duty’ river Ganga or Yamuna can also be sued. This makes us ponder that, what ‘legal duty’ can we attribute to river? Will this ‘legal duty’ of river be same as that of other ‘legal persons’.
III. Legal implications of declaring river as person
In an article published in the Hindu (Shibani Ghosh, The river as being), author has emphasised on the ‘rights of river’ by raising questions like, “In the eyes of the law, living persons... the rivers can sue persons acting against their interests… If yes, who will sue whom? … Do other riparian State governments now have less of a role in the protection of the rivers as they are not the identified ‘custodians’?...” However, the question of ‘duties of river’ have been left open ended. If we encumber river with duties then the necessary legal implications would be as follows:
1. Whether, Ganga or its tributaries has a duty to provide us water and whether can they be sued for non-supply of water Example – 1. If a farmer has adjoining agricultural fields to river or its tributaries, can farmer sue the river ganga, if the water is not available for his fields because of drought situation or for some other circumstance and consequently farmer suffers loss of crops.Example – 2 There is a village which is relying on the water from one of the tributaries of ganga and in a particular season due to climate change or change in direction, the water in the tributary has dried up.In any case the consequence is that the village have to be without water.Few people died thirsty due to non-availability of water. Whether, in such situation can a tortuous or criminal liability may arise?
2. Act of God is an exception to tortuous liability. In torts, it has been constantly held that liabilityfor destruction of crops due to flood or draught will not arise as it is a case of ‘Act of God’. However, recognising ‘flood’ or ‘draught’ as Act of God and parallely recognising river as a natural person is nothing but, paradox. It seems difficult to reconcile the concept of ‘act of god’ and ‘legal person’.
3. Can river which has been declared as legal person is capable of committing a crime as it has now been recognised that companies can be made criminally liable. For example, due to sudden rise of water, a person who is swimming orsailing in a boat,drowns in the water. Whether, in such case can we held ‘culpability of river’ for homicide of a person or destruction of property?
Though the arguments may sound far-fetched they are not improbable because of the ensuing consequences in declaring the river as legal person. The rights cannot be divorced from duties. Thus, a judgment which intends to protect the sacred rivers may give rise to unanticipated and unwarranted consequences. It is humbly submitted that judgment is jurisprudentially flawed and legally untenable.
Hohfeld’s description of relations between various forms of legal entitlements reflects truths on features of legal rights. Hohfeld argued that the tendency to express all legal interest in terms of “rights” and “duties” resulted in confusion in the analysis of complex legal relations like trust, options, escrows, future interest, and corporate interest etc. in Hohfeld’s ownwords: “One of the greatest hindrances to the clear understanding, the incisive statement, and the true solution of legal problems, frequently arises from the express or tacit assumption that all legal relations may be reduced to “rights” and “duties” and that these latter categories are therefore adequate for the purpose of analyzing even the most complex legal interests, such as trusts, options, escrows, “future” interests, corporate interests, etc.”
The prime reason for this confusion in his view was the inaccuracy of the terminology. Hohfeldobserved that important legal terms, including “right” and “duty,” had no agreed meaning and thereby caused muddled analysis. He notes that the term right was often used to denote several other distinct legal interests such as powers, privileges or immunities. The eight fundamental legal conceptions resulted from Hohfeld's dissatisfaction with the idea that all the Jural relations can be reduced to rights and duties. These concepts are duty, claim, liberty, no claim, power, liability,disability, and immunity.
Therefore, in light of what Hohfield argued we need to invent some other jural relation by which the real intention behind the judgment may be fulfilled. Ganga is considered to be a sacred place where people take a dip to wash their sins. Certainly, we don’t want Ganga to stand in court of law for doing a sin or we don’t want them to be imprisoned or hanged. Ganga and Yamuna are beyond legal personality. In Hindu mythology they are reason for ‘person’ of a being and therefore, can’t be treated as a person. We human race is so cruel that by attributing our holy rivers as ‘person’, we will make them accomplice to our wrongs and crimes.
Other argument against the judgment is that legal person shall be creation of a statute and discretion of legislature. Recently, Justice DY Chandrachud in Union of India v. Rajasthan High Court, (2017) 2 SCC 599, 606 recentlyemphasised on the judicial restraint in unchartered territories in following words:
“The powers under Article 226 are wide—wide enough to reach out to injustice wherever it may originate. These powers have been construed liberally and have been applied expansively where human rights have been violated. But, the notion of injustice is relatable to justice under the law. Justice should not be made to depend upon the individual perception of a decision-maker on where a balance or solution should lie. Judges are expected to apply standards which are objective and well defined by law and founded upon constitutional principle. When they do so, Judges walk the path on a road well-travelled. When judicial creativity leads Judges to roads less travelled, in search of justice, they have yet to remain firmly rooted in law and the Constitution. The distinction between what lies within and what lies outside the power of judicial review is necessary to preserve the sanctity of judicial power. Judicial power is respected and adhered to in a system based on the rule of law precisely for its nuanced and restrained exercise. If these restraints are not maintained the court as an institution would invite a justifiable criticism of encroaching upon a terrain on which it singularly lacks expertise and which is entrusted for governance to the legislative and executive arms of Government.”
Legal person is for a specific purpose, however, the judgment without embarking upon the specific purpose opened up the flood gate for the perpetual legal problems for the river. If required, as the case in New Zealand, this should be done through a parliamentary legislation.
CENTRE for POLICY ANALYSIS