Living under the long shadow of Covid-19: Origin and Adaptive Evolution

[Musings on socio-legal changes in the times of Covid-19 cleverly disguised as a book review of Dan Brown’s bestseller ‘Origin’.]

With a nationwide lockdown firmly in place and some extra time at hand, I recently concluded reading Dan Brown’s latest mystery thriller novella ‘Origin’ and as impressive a piece of literary fiction as it is, where it really shines through is in its thought invoking discourse on human origin, evolution and futurology. Infact, the book sets aside several chapters to give ample consideration to two of life’s most profound questions i.e. Where do we come from? and … Where are we going?

While I don’t intend to spoil the book for those of you who are yet to read it and leave the interpretation of the book’s meaning for you to discover for yourselves, it did get me thinking about fictional futurist Edmond Kirsch’s seminal work in the book’s narrative as well as the parallels that we can draw from his conclusion to these questions for today as well as tomorrow’s post-Covid-19 world. Just as indicated in the book where these touchy topics are said to deeply affect the more religiously inclined, I am aware that it may be an equally touchy topic, if not more, for those of us unfortunate to be directly or indirectly affected by the disease in any form in their personal lives. Regrettable as it may be, that doesn’t take away from the fact that moving forward we will have to learn to live with it, something that most of the world is already coming to terms with. But before we start wondering about the uncertain future, let’s take a moment and have a closer look at the present first, for as is often said, the present is the stepping stone to that unseen future.

Is Covid-19 really all bad? This question may seem to have an obvious answer at first look but is it really the complete answer? Well, I mean there is no denying the fact that the disease has caused widespread physical suffering and thousands of deaths and it will cause more of these before we are through with it. It has also had a significant impact on the world economy and an even more acute effect on the economies of third world countries where most of the world’s poor live. But I do sincerely believe that as with all things, there may be a silver lining even to this dark cloud. Let’s take a timeout to think about it logically for a minute.

Firstly, as has been widely publicised, removal of most of human interference has had an obvious positive impact on the environment. Our rivers are the cleanest they have been in decades, wild animals are returning to their long lost habitats and we can see mountains from places where we could hardly see the next row of houses. Even the huge Arctic Ozone Hole that was thought to be irreversible during our lifetimes has all but recouped.

What’s more, we have found time for the little but rather important things in life that we never had in our otherwise busy personal lives, things like taking out time for loved ones, rediscovering the simple joys of long forgotten hobbies like reading a book or just taking a moment to ponder life’s deepest mysteries. From the news and the limited social interaction, I for one find that people are generally more empathetic, caring, cooperative and generally nicer to each other than ever before. We have learnt to give each other space when needed and yet learnt to cherish our inter-personal relations. In a country most notorious for littering, spitting and its generally poor sanitary conditions, everyone is finally beginning to understand the great necessity of the practice of both personal and community sanitation. 

However, what probably gives me the greatest of hope is the unprecedented possibility for achieving great systemic change in a relatively short period of time, given how slow and resistant our institutions have proved to it before. Take for example the judiciary. Judiciary had been struggling to move towards greater digitization for decades now and frankly, has even resisted it to some extent. While some courts might had achieved minimal success from their half-hearted attempts, I am looking at you Delhi High Court, it was still questionable whether those self-serving attempts were practical enough to really help anyone at all. However, in the past couple of months, it’s as if there is a new will for change largely on account of the general lack of choice. Many courts have achieved limited functioning with the pre-existing tools commonly available online and what remains is largely an issue of replication and scale rather than resources really. As an unintended by-product, such courts as are functioning, have been forced to simplify their cumbersome filing procedures and are now more reachable from the farthest corners of the country (I know lawyers who continue their practice in Delhi while actually sitting in rather distant cities). This has in turn reduced the time and resource wastage that our judiciary has become notorious for. Both lawyers and judges have been forced to achieve reasonable level of functionality from their homes, saving them time, energy and money. There is so much free learning and self-development happening through daily webinars right now that it has actually become rather tiresome to keep track of them all and I am actually having some major FOMO. Many courts have even taken a decision to dispense with the ridiculously obsolete dress code for the time being. Even our governance outlook and expectations from our political masters have shifted focus to the rather basic but often overlooked sectors like healthcare, sanitation, education and social security. Infact, all this sometimes makes me wonder as to why we couldn’t do it before?  

This then can be viewed as a big flashing billboard from Mother Nature and an opportunity of a lifetime. A sign to inculcate radical change in our habits that was hardly achievable in a more normal world and an opportunity for achieving just that. Ofcourse, all of this comes at a great economic cost, but then some of these possible changes are really so fundamental that they are infact priceless and any monetary loss is but a small price to pay for it. And in all fairness, economically as well, with the right policies and outlook, this is more of an opportunity that it first appears to be, for today the world hunts for new investment opportunities in other countries as it seeks to move their manufacturing capabilities that largely lie accumulated in a single country, China.

As weird as it may sound, a part of me does hope that some things never go back to as they were before, simply because they can be so much better. Just like Edmond Kirsch was optimistic of a better future despite presenting a seemingly sordid picture of it at first, I too am optimistic for a brighter future if we embrace this systemic and social change. For history is witness that it was always in those moments of great adversity that humanity has taken their next leap forward. After all, isn’t that the very basis of Darwin’s law of evolution?

Jammu and Kashmir: The Minority Report

[The following is a reproduction of a news update submitted by me for publication on JK Now (www.jammukashmirnow.com) on 19th December, 2017]

The PIL filed by Jammu based advocate Ankur Sharma before the Hon’ble Apex Court asking for Hindus to be declared a minority community in Jammu and Kashmir and seven other states (where they constitute a numerical minority) took an interesting turn last week. Those who have followed the dispute would remember that the Hon’ble Supreme Court had issued notice and asked the various State Governments along with the Central Government to submit their stands for the court’s consideration. Subsequent to the same, the PDP-BJP Coalition State Government has filed an affidavit before the Hon’ble Supreme Court stating that the Jammu and Kashmir State does not acknowledge Hindus as a “minority” in the State as it goes by the Centre’s national list of minorities. The State government has been further reported to have said that the benefits of Central Schemes would only be extended to “meritorious” and “needy” members of those communities that are notified by the Centre, suggesting that members of the Hindu Community would not be eligible. The State Government’s affidavit referred to a Central Government Notification dated 1993 that lists Muslims as a minority along with Sikhs, Christians, Buddhists and Zoroastrians, with Jains having been added to the list later in 2014. The affidavit further added that in case the notified minority is the majority in a state, the benefits are to be earmarked to other notified minorities for the purpose of fixing physical and financial targets.

The State Government has also said that the National Commission for Minorities Act extends to whole of India except for J&K and therefore the State Government is not bound to identify minorities within the State. Here, it is pertinent to note that the petition before the Supreme Court also pleads for setting up a Minorities Commission in the state in accordance with the 15 year old directive of the Apex Court.

After the petition, while the State Government has said that it will “consider and examine” the “need and feasibility” of establishing a state minorities commission “at the relevant time” and “as and when the need arises” based on “critical study of social backwardness of minorities spread across various regions of the State”, the Central Government in March constituted a committee headed by the Secretary of the Minority Affairs Ministry to examine the issues related to minorities in Jammu and Kashmir.

Interestingly, Jammu and Kashmir is the only Muslim-majority state in India. According to the 2011 Census, the State has over 8.5 million Muslims which accounts for 68.31% of its total population of 12.5 million while Hindus with a population of 3.56 million account for 28.43% of the total population.

From the above statistics it is clear that the State Government is trying to have its cake and eat it too. Given the above stated stand of the State Government, what remains to be seen is what final stand the Central Government takes when the matter comes up for hearing next January as a lot would depend upon the same.

The elusive and utopian Lokpal

‘All hail the Lokpal!’

The above quite describes the mood of the ‘Jan’ ever since respected gandhian Anna Hazare began his fast-unto-death. However, all ‘gold and glitter’ as it may seem the Lokpal has still remained as elusive as the Abominable Snowman, Yeti or the Lochness Monster through all these years, and that is in part because of its own problems, inherently present in it’s very concept. Ofcourse, the ‘surreal’ support it has garnered from government after government only adds to its roadblocks on its ‘highway to heaven’.

One of the first and most fundamental blunders that the institution of Lokpal suffers from is when it compares itself to such constitutional bodies such as the Supreme Court and the Election Commission of India. To formulate such an independent body as the Lokpal it would surely have to first find a place into the Constitution. While the former are independent bodies that have been provided for within the constitution from the very beginning itself the latter is proposed to be a completely new body with no previous mention in the constitution.

Well, why can’t they simply amend the constitution, you ask?

Enter doctrine of basic structure propounded by the Supreme Court of India in the case of Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461 which said that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to "alter the basic structure" of the Constitution which is in short, unamendable. It is herein that the court reserved for itself a back door entry, the discretion to reject any constitutional amendments passed by Parliament simply by declaring that the amendments cannot change the constitution's ‘basic structure’.

And what exactly is this ‘basic structure’?

Well, It seems nobody knows except for the fact that its putty in the hands of the Courts.

Chief Justice Sikri, writing for the majority in the above case, indicated that the Basic Structure amongst others included the maintenance of the separation of powers.

Now, the major hurdle that arises in ‘the revolutionary road’ to Lokpal is that it would take nothing short of a revolution to materialize, since it will most definitely will alter the balance of power as it currently rests within our polity. That is primarily because the idea is to introduce a fourth pillar to our democratic setup, that too over and above the already present Legislature, Executive, and Judiciary, since the politicians, officers and judges respectively are to be answerable to the Lokpal for their wrongful and corrupt acts.

Also another problem is the selection and appointment procedure of the Lokpal. As is apparent, there is neither a system of referendum within our constitution, nor, such a provision, for formation of a special Electoral College comprising of judges, citizens and constitutional authorities to elect the Lokpal as is proposed. Also, who would watch over the fairness and transparency in Lokpal’s election? Moreover even if miraculously selected who is to officially appoint him and administer the oath to him?

I don’t even want to start on the practicality front because who finances his own hitman, who appoints his own hangman, who sharpens the axe meant for his own execution?

Lastly, if the Lokpal watches over everybody else who watches over him, i.e. who would take the complaints against the Lokpal or one his officers?

Thus, all I am saying is that, even though the lofty concept of the Lokpal as proposed by the much-hyped Jan Lokpal Bill is a beautiful ‘castle in the air’, but will it stand strong on the real ground?

(The above article is not intended to take sides on the political front or even venture into the political jungle. It is purely meant to check the legal feasibility of the proposed Jan Lokpal.)

NDTV's 'We the People' Debate over the Communal Violence Bill

The following is a link to the Debate over the Communal Violence Bill in NDTV's 'We the People'. Fortunately, I too got an opportunity to feature on the show even though just for aesthetic purposes, that too barely. Anyways, thoroughly enjoyed the intellectual stimulation, hope you do too.
http://www.youtube.com/watch?v=Rwsk5-hRI5g

The Communal Violence Bill: A flawed law in the making

D.L. Horowitz, in his ‘The Deadly Ethnic Riot’ defines Communal violence (which is sometimes also referred as inter-communal violence) as a situation where violence is perpetrated across ethnic-lines, and victims are chosen based upon ethnic group membership often resulting in massacres.

As is common knowledge, recently the NAC (National Advisory Council) of India has formulated a draft bill termed as ‘The Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011’ that is going to be tabled in the monsoon session of the Parliament, dealing with the same issue. However, is the bill actually what it claims to be?

First and foremost, I would like to say that the short title of the bill is itself a misnomer. Well, yes, I know that’s a pretty strong claim but consider this. What the bill claims to protect the population against is ‘Communal violence’, which is a fairly common occurrence in South Asia, especially the Indian subcontinent, owing to its large ethnic and cultural diversity and typically means a form of mutual aggression, in which members of all involved ethnic groups and sects serve both as the perpetrators as well as the victims of violence. However, a closer look at its various provisions would show that actually it only protects against ‘Genocide’, which is just a sub-category of communal violence, forming a smaller circle within that bigger circle, in which the participating ethnic groups and sects, can be assigned mutually exclusive roles as either perpetrators or victims of violence, i.e. there is solely a one sided aggression. Now, It may not look much but let me warn you that even a small discrepancy can spell ‘hell’ for the people it governs. This ‘Genocide’ is what took place in Nazi Germany while independent India evidently has no proven history of any such event. What India really needs is quite certainly a law dealing with the core issue of ‘Communal violence’ and certainly not a half-hearted vote-bank driven legislation.

One of the biggest scopes for improvement that I see is in the definition clause itself. Many of the provisions contained therein like “Association”, “Communal and Targeted Violence”, “Dereliction of Duty”, “Destroying the secular fabric”, “Hate propaganda”, “Hostile Environment”, “Intimidation”, “Knowledge” and more particularly “Group” and “Victim” are not precise and are of a preferential nature which may give the government unbridled power leading to misuse and could greatly curb the freedom of speech and expression of the press, amongst others.

Also, It gives the Central government previously unseen powers to intervene with the judiciaries’ functioning, including power to refer cases for trial to the Judiciary under the Criminal code, treating proceedings conducted by it as judicial proceedings and power to move cases to judges and courts outside a state on the mere apprehension of impartiality.

Moreover, the bill wrongly takes an extremely perverted assumption that the perpetrator of Communal violence is always the majority. Also the bill empowers any anonymous complainant to file a police case against a member of the majority community for inciting communal hatred binding the police to register it as a non-bailable offence. This could be very easily and widely misused.

What’s more? To complete the picture, the bill even has a striking resemblance to previously failed and misused anti-terror laws like TADA (Terrorist and Disruptive Activities (Prevention) Act), 1985 and POTA (The Prevention of Terrorism Act), 2002.

Further, the National Authority has been presented as an unchecked autonomous body. There is no mention in the entire draft bill on how exactly the proposed ‘National Authority’ will be accountable to the Parliament for its interventionist conduct beyond the token act of placing its annual report during the monsoon session.

With all this and more, if nothing else, the bill certainly manages to raise some deep reaching Questions:

1.                  Is this not a legally objectionable outsourcing of an inherently governmental function of drafting the bill to an external body headed by the UPA chairperson?

2.                  Are the provisions concerning the government’s powers over the judiciary not in violation of the constitution? Don’t they partially take away judiciaries’ independence in its functioning and its powers especially that of administering its own affairs?

3.                  "Who will guard the guards themselves?" doesn’t the same timeless question that the UPA government has been raising as a shield against the Jan Lokpal Bill become the dagger in it own chest in this case?

Thus, before concluding I would just say that even though the current draft of the Prevention of Communal & Targeted Violence Bill is a much improved one, atleast from its previous versions, yet it greatly falls short of the requirements of the times and the expectations of the people.

(Leaving aside any politically motivated debate, this article is purely meant to provide a strictly legalistic exposition of the much-hyped Communal Violence Bill. It only provides a summary view of my own opinion and is meant to raise some hard hitting questions within the minds of its readers and probe them on, into a healthy debate.)