Tuesday, March 17, 2020

Agitprop Psyops Getting To The Judiciary?

Jurisprudence is an esoteric subject to the laity. Judges are demigods and lawyers their mediators! Despite this lofty public perception, Indian courts have in the past adjudicated matters which the laity might find frivolous and, in some cases delivered judgements which the laity might find bizarre. Some years ago a High Court sat on Gandhi Jayanti day (one of three compulsory Indian national holidays), to adjudicate a matter related to a cricket board!


In the Bhima Koregaon case in which ‘social activists associated with Maoist links’ were accused of making inflammatory speeches leading to wide–spread violence, the Supreme Court held that dissent was a safety–valve of democracy. It was another matter that the same Supreme Court not only refused bail to a journalist but when his lawyer pleaded that his life was in danger, gratuitously added in an obiter dictum, that for one whose life was in danger, a jail was the safest place to be in!


In 2015 the High Court of Punjab and Haryana decreed that jail inmates have a right to have sex with their partners! In 2018 the Bombay High Court determined that limiting only four players to a table in a game of rummy was unreasonable!

The Supreme Court’s decision in the Indian Social Action Forum (INSAF) vs the Union of India (CivilAppeal No.1510 of 2020—Arisingout of SLP (C) No.33928 of 2011) makes for curious reading. The NGO which claims to be “resisting globalization, combating communalism and saving democracy” filed the SLP in the Supreme Court challenging the Foreign Contribution (Regulation) Act,2010.

In what has become a standard template (for challenging Indian government acts by now), the NGO challenged the FCRA on the grounds that it violated its fundamental rights under Articles 14, 19 and 21 of the Indian Constitution. The Government contended that the appellant organisation is not entitled to invoke fundamental rights as they are guaranteed only to citizens and that the appellant organisation cannot be considered a citizen. While agreeing with the contention that being an organisation the NGO cannot invoke rights under Article 19, the Supreme Court has “read down” Clause 3. (VI) of the FCRA Rules which were framed based on the Act. Here is the relevant clause:

“3. Guidelines for declaration of an organisation to be of a political nature, not being a political party – The Central Government may specify any organisation as organisation of political nature on one or more of the following grounds:

(ii) Any Trade Union whose objectives include activities for promoting political goals;

(iii) Any voluntary action group with objectives of a political nature or which participates in political activities;

(iv) Front or mass organisations like Students Unions, Workers' Unions, Youth Forums and Women's wing of a political party;

(v) Organisation of farmers, workers, students, youth based on caste, community, religion, language or otherwise, which is not directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association, or activities gathered through other material evidence, include steps towards advancement of Political interests of such groups;


The Court nuanced that while ‘bandh’, ‘hartal’ ‘rasta roko’ etc. are legitimate political activities, an NGO resorting to the same activities need not necessarily be categorised as a political organisation. Did the Court err in nuancing its interpretation of the law on the grounds that it was ‘vaguely’ or ‘ambiguously’ worded?

It is not apparent from the 23–page judgement whether the Court has gone into the antecedents of the NGO or even whether the government has brought them to its notice. Curiously, very is little is known of the organisation which calls itself Indian Social Action Forum shortened as INSAF with its tell–tale Arabic connotation. Its website does not give anything away. We do not know who its founders, directors or present administrators are. All we know is that it calls itself ‘a national forum of over 700 movements and NGOs in India’. Its website is full of ‘papers’, re–posted or hyperlinked from other sources, calling for halting every project which in anyway advances human progress from developing infra–structures to constructing nuclear power plants.

Among those hyperlinked is a paper by Ben Hayes entitled “Counter–Terrorism,‘Policy Laundering’ And The FATF—Legalising Surveillance, Regulating CivilSociety”. The number of NGOs/NPOs involved in the preparation and funding of the paper (which can be seen peppered across its pages) tells its own story. They include ‘Transnational Institute’, ‘Statewatch’ and ‘Catholic Organisation for Relief and Development’, shortened as Cordaid. While nations across the world struggle to control terrorist organisations, the paper calls for making the FinancialAction Task Force (FATF), ‘the global money laundering and terrorist financing watchdog’, virtually ineffective. It calls into question UNSC Resolution 1373 of September 28, 2011 which requires member nations “to criminalize the support of terrorism by freezing the assets of suspected terrorists”.

Can judges be absolutely dispassionate in adjudicating legal disputes? Or are they only too human to be ‘products of the times’ in which they live and work? Oliver Wendell Holmes Jr. (1841–1935), a U. S. Supreme Court justice known as “the Great Dissenter” was a study in contrast. He delivered judgments that made him look like a product of his times, like his judgement in the Virginia eugenics aka Buck vs Bell (1927) case. In marked contrast in the Lochner vs New York (1905) case he ruled removing the 60–hour per week work limit for bakery workers. But his ruling in the Schenck vs United States (1919) case is conspicuous for its interpretation of the US First Amendment, which protects US citizens’ freedom of speech from legislative interference. The ruling held that in times of war, national security takes precedence over individuals’ right to freedom of speech. 

Back home in India, are agitprop psyops getting to the judiciary?udiciary?

Thursday, March 05, 2020

Anti–CAA Agitprop And Weathercock Intellectuals

Have you ever wondered what the biggest failure of India’s intelligentsia was?

Let me tell you a story. It is a small anecdote from the tumultuous days of the French revolution between 1789 and 1799. A newspaper reporter was interviewing a leader of the revolution in a Paris café. As they were sipping coffee and chatting, a wildly howling mob shouting slogans stomped by along the adjoining street. The reporter wondered aloud what the procession was all about. On hearing this, the leader shouted “Oh my God, I am supposed to lead the procession” and ran out.

At times when mass movements acquire a momentum of their own, revolutionary leaders might have to follow the mobs while pretending they were leading. But the intellectuals of a society are not weathercocks but its leading lights. They do not—and should not—sometimes follow while pretending to always lead. They should possess the moral fibre and intellectual integrity to pursue ideals even if they are unpopular.

The words honesty and integrity are interchangeable but are paired to amplify the meaning, in a figure of speech called synonymia. The word integrity is derived from the mathematical word integer, meaning a whole number, undivided and complete. There can be no partial honesty or fractional integrity. In the case of public intellectuals it is an all or none phenomenon. Lamentably many of our public intellectuals fail in this test.

As a test of the principle, consider the idea of freedom of expression. If a society cannot provide the protection needed for free expression of ideas, it is the public intellectuals who should hold themselves responsible for their failure to create the ambience for free flow of ideas. Is the principle of freedom of expression absolute or are there limits to it? If the public intellectuals champion absolute freedom on one occasion, but argue alibis for scuttling it on another occasion for political reasons, their vacillation cannot advance the cause of freedom of expression. It keeps the society splintered by competitive populism. If the public intellectuals swing with political winds they cannot expect the society to conform to abstract ideals.

Consider the ongoing agitation against the Citizenship Amendment Act (CAA) 2019. Let us look what citizenship means under various Indian laws. We will try to explain it in plain language devoid of legal lingo.  

The issue of citizenship is dealt with in the very beginning of the Indian Constitution (in Part II) just after nation and the powers of the national government are defined. Articles 5 to 11 are related to citizenship. While Part II confers citizenship to residents in the territory of India when the nation was formed, it also allowed for conferring citizenship to those Indians who remained in Pakistan at the time of partition and, those who went there after partition but wanted to return to India—before July 1948.

The Citizenship Act of1955 defines natural and acquired citizenship in clauses 3 to 7. It flows from Part II of the Constitution and is enacted to amplify and encode rules and regulations for conferring citizenship. Here briefly are the modes that confer citizenship:

1.     Citizenship by birth (Clause 3)
2.    Citizenship by descent (Clause 4)
3.    Citizenship by registration (Clause 5)
4.    Citizenship by naturalization (Clause 6)
5.  Special provision as to citizenship of persons covered by the Assam Accord (Clause 6A)
6.    Citizenship by incorporation of territory (Clause 7)

There is no ambiguity about the nature or cause of partition of the country. Pakistan and its later splinter Bangladesh were formed as the Muslims of undivided India wanted a separate state for themselves. Many non–Muslims remained in Pakistan after partition either because they were complacent about their status despite the religious nature of the newly formed state or because of an inertia that held them back from making the long journey to India. It was also possible that they stayed back as they reposed faith in the assurances given by leaders of the nascent state who promised them complete religious freedom.  

What happened to them in the subsequent decades too needs no recounting. To put it simply their populations were decimated. Many of them had to flee to India, the only country in which they felt they could seek asylum.

All that the CAA does is to provide relief to persecuted minorities fleeing Afghanistan, Bangladesh and Pakistan who would otherwise be defined as ‘illegal migrants’ under Section 2 (1) (b) of the 1955 Citizenship Act. It does not take away the rights of anyone nor does it seek to strip bona fide Indian citizens of their citizenship. It does not abrogate the Clause 6 (Naturalisation) of the principal act by which anyone from outside can seek citizenship. There is a sunset clause in the CAA. It limits the ‘relief’ to those who entered India before December 31, 2014.

The conduct of the opposition parties has no surprises. Their objective is to usurp power, no matter how divisive and fraught with long–term consequences their modus could be. It is the conduct of the public intellectuals that should surprise. 

Those who are making a public spectacle of reading the Preamble in agitations across the country should carefully read the wording of Article 11 of the Constitution. It confers unqualified power to the Parliament to make provisions with respect to acquisition and termination of all matters relating to citizenship. Here is what it states:
Is the ongoing agitation mere tilting at windmills or a machination of deception, disinformation and psychological operations (known as Dee–Dee–PsyOps in the parlance of intelligence agencies), intended to intimidate the central government against bringing in progressive legislations like the Uniform Civil Code (UCC) and the Supreme Court hearing petitions against the abrogation of Article 370 and the CAA?