Last chance to fix flawed torture Bill

The draft law excludes many scenarios and forms of torture rampant in India. The Rajya Sabha must insist on amendments...








27 August 2010
The Hindu

Last chance to fix flawed torture Bill

Siddharth Varadarajan

The Prevention of Torture Bill, 2010, which the Rajya Sabha will take up for consideration on Friday, is a deeply flawed piece of legislation that will weaken, rather than strengthen, existing legal sanctions against a crime that is widely acknowledged to be rampant across India.

Though the Lok Sabha approved the Bill without changes on May 6, it is essential that the upper house remedies the flaws it contains before it is too late.

The stated purpose of the law is to fulfil the country's obligations under the United Nations Convention Against Torture (CAT). India signed the Convention in 1997 but is perhaps the only democracy yet to ratify it. But if this belated push for ratification is a welcome development, the weak provisions of the proposed law bear little resemblance to the contents of the CAT.

The definition

Let us start with the definition of torture. This is how the Convention defines it. Article I says “torture” means any act done by or with the consent or acquiescence of a public official “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind.”

The Indian draft borrows some of this language but arbitrarily narrows the scope of this Article. According to Section 3 of the Bill, torture will said to have been inflicted only when “(i) grievous hurt to any person; or (ii) danger to life, limb or health (whether mental or physical) of any person” is caused by public servants for the purposes of “obtain[ing] … information or a confession from him or a third person”.

In other words, torture that is in inflicted by the police or a public servant as a form of punishment, intimidation or coercion will not be considered “torture” under the new law. Nor will any torture visited on an individual solely on account of her or his religion, caste, gender or economic status.

The omission of such situations — as envisaged by an international convention to which India is a party — is unforgivable given the prevalence of torture for these very reasons.

What makes this definitional narrowing even more problematic is the high threshold set for torture itself. The CAT speaks of “severe pain or suffering” rather than “grievous hurt” or “danger to life, limb or health” because it is the infliction of severe pain which is common to all forms of torture, even those which do not have long-term consequences for the health of the victim. Electric shocks, water boarding and the insertion of chilli powder in the sensitive parts of an individual's body will cause severe pain or suffering without necessarily endangering her or his health or even causing “grievous hurt”. Why has the Manmohan Singh government chosen such a narrow definition, excluding both motives for, and forms of, torture that are widely prevalent in India?

Having defined torture in such a restrictive way, the Bill goes on to narrow it even further in Section 4, which deals with punishment. It says a public servant shall be punishable for up to 10 years if he tortures any person “(a) for the purposes of extorting from him or from any other person interested in him, any confession or any information which may lead to the detection of an offence or misconduct; and (b) on the ground of his religion, race, place of birth, residence, language, caste or community or any ground whatsoever”.

Here, it would seem that even the class of persons who are tortured in order to extract a confession or some information from them must fulfil another condition before they can be considered torture victims: they must also have been targeted on account of some ascriptive identity. When Section 3 defines what constitutes torture, it is strange that the section on punishment should confine itself to torture done on specific grounds.

Cruel irony

Another major flaw with the Bill is the six-month time limit a torture victim is given under Section 5 to file a complaint. This is especially problematic for cases of custodial torture, which, unfortunately, are the norm in India. Most victims of torture may not feel confident about filing a complaint when the policemen or public servants who tortured them continue to have the capacity to inflict bodily harm. And, in a cruel irony, any act of violence inflicted upon a complainant — since the aim is not to make them confess or provide information but simply to coerce them into withdrawing their charges — would actually be excluded from the Prevention of Torture Bill's definition of torture.

Despite the gravity of the offence — which cannot be considered part of the legitimate discharge of duty by a public servant — the Bill has a section which says that “previous sanction” of the Central or relevant State government is needed in order for a court to take cognisance of an offence. In other words, after arbitrarily narrowing the scope and definition of torture and making it extremely difficult for a victim to file a complaint, the government gives the torturers within its ranks yet another layer of protection. Across India, there are dozens of cases in which sanction to prosecute is never given despite public officials being accused of heinous crimes. The inclusion of “previous sanction” in the torture Bill does not speak well of the government's intentions.

Even at this late stage, it is essential that the Rajya Sabha makes four changes.

First, the definition of torture should be harmonised with CAT, to which India is a signatory.

Second, Section 4 dealing with punishment should be harmonised with the updated definition of torture.

Third, there should be no time limit for a victim to file a torture complaint. Torture is a crime and if other crimes are not subject to an arbitrary ‘statute of limitations', why should this?

Fourth, the Section on previous sanction should be deleted or altered to say that where the government is of the view that a public servant should not be prosecuted for the crime of torture, it must state the reasons in writing.



Update #1: 10 MPs want torture Bill referred to panel
The Hindu 29 August 2010

Update #2: Rajya Sabha Refers Torture Prevention Bill to Select Committee
The Hindu 31 August 2010

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This is no way to write a law

The nuclear liability bill drafting process has been marred by lack of consultation and transparency from the start. In a democracy, legislation by stealth will always create a backlash.






25 August 2010
The Hindu

This is no way to write a law

Siddharth Varadarajan

Behind the unseemly word games the Manmohan Singh government has been playing over the language of the proposed nuclear liability bill lies a more dangerous conceit: that complex legislation with the potential to affect the lives of tens of millions of people can simply be pushed through with stealth, subterfuge and the barest minimum of consultation.

Not once but thrice have the government's managers been caught trying to fiddle with the bill in order to address the concerns of nuclear suppliers that are obviously so illegitimate nobody seems to have the political stomach to even try to convince the public about them. What were they thinking? That people would laugh and say, what's wrong with a bit of ‘and' here and a bit of ‘intent' there and pat them on the back for their craftiness?

At the initial stages of consideration, the first attempt was made to simply delete Clause 17(b), which allows the Indian nuclear operator — who is otherwise wholly liable — to exercise a right of recourse in the event that an accident is caused by gross negligence on the part of the supplier. Difficult though it may be to prove gross negligence, U.S. nuclear industry representatives made it clear this provision was unacceptable to them. Therefore, without any attempt to discuss or debate the issue publicly, the Manmohan Singh government simply sought to oblige them. On June 8, the Department of Atomic Energy circulated a ‘consolidated list of proposed amendments' to the Standing Committee on Science and technology suggesting the deletion of 17(b) altogether. When members of the Standing Committee objected, the DAE Secretary, Srikumar Banerjee, said this was only a “suggestion” and withdrew it.

Subsequently, when the Standing Committee agreed to strengthen 17(b) by allowing a right of recourse against the supplier in the event of an accident caused by defective equipment, the government sought to nullify it by making this conditional on the same being spelt out in a commercial contract. Forced to abandon that position too, the Union Cabinet finally cleared a version which allows a right of recourse against the supplier only if the latter intentionally causes an accident. That's a camel so huge it is unlikely to ever pass through the eye of a needle.

Now, surely the primary motive of liability legislation in a democracy ought to be reassuring people that their interests would be fully looked after in the unlikely event of an accident. In this case, however, the motive seems to have become reassuring the foreign suppliers who stand to make billions of dollars supplying nuclear reactors to India that their interests would be fully looked after, come what may.

Somewhere along the line, our rulers forgot that we are a democracy. They also forgot that this is, after all, Bhopal country. Twenty years on, the victims of the world's worst industrial disaster languish without adequate financial compensation or health care. The Indian administrative and judicial system has failed to assign legal culpability for the incident and still cannot decide who should pay for the removal of toxic wastes from the plant site that have leeched into the soil and groundwater. Against this backdrop, the government ought to have gone out of its way to reassure the public that the lessons from Bhopal were being acted upon, that every concern about the consequences of a nuclear accident would be addressed openly and transparently, that every effort would be made to use the levers of regulation and liability to ensure the highest attention to safety by all those in the nuclear energy production chain whose activities or products could conceivably contribute to an accident. A broad range of views within and outside government ought to have been solicited at the drafting stage itself so that the final product could have the widest possible ownership. But this never happened.

Work on the legislation began as an in-house effort of the Department of Atomic Energy a decade ago, well before there was any possibility of the Nuclear Suppliers Group agreeing to nuclear commerce with India. Even though a draft law was readied, the Centre showed little or no urgency in discussing, let alone enacting, it. So much for the official claim that the law's aim is to provide speedy compensation to victims. Once the NSG clearance came, however, the Manmohan Singh government saw the liability issue as something that had to be pushed through to provide comfort to foreign suppliers. After all, the U.S. nuclear lobby managed to make India's accession to the IAEA's Convention on Supplementary Compensation for Nuclear Damage (CSC) — which effectively indemnifies suppliers from any liability — a pre-requisite for any nuclear sales.

India gave a formal assurance on the CSC to the U.S. on September 10, 2008 and that is when the legislative clock started ticking in earnest. The DAE's draft was circulated to only a handful of Ministries — Finance, Environment, Home, External Affairs and Law. Ministries like Health, Water Resources, Food and Agriculture, upon whom the burden of handling a nuclear accident would inevitably fall, were never consulted at the drafting stage. The Standing Committee attempted to remedy the situation at the eleventh hour by inviting other Ministries but hardly any of their excellent suggestions even made it to the committee's recommendations.

As matters stand, a political consensus has emerged over the Standing Committee's proposal to hike compensation limits and the need to hold suppliers indirectly liable via the right of recourse for defective equipment. Just as in other hazardous industries, of course, culpability will still have to be established in a court of law. But what the suppliers want is a free pass at the start-up stage itself.

Instead of relying on stealth, the government ought to argue up front why it does not believe suppliers should be indirectly liable for any potential nuclear accident. But its arguments should be grounded in facts and sound analysis, not theology. For example, if suppliers are forced to take out insurance to cover themselves as a result of the Indian law, how much will this affect the cost of a nuclear power project? It is meaningless to argue that no country, not even South Korea, has a law as balanced in its apportioning of liability as India. India is not “any other country.” It plans to buy 20 to 25 large reactors over the next two decades and need not behave as if it is entering a suppliers' market. It is said Indian suppliers will also be reluctant to provide components for our indigenous reactors if the operator can exercise a right of recourse against them. But the fact is that the current legal regime in India exposes suppliers to unlimited liability and that hasn't prevented major Indian corporates from manufacturing products for the NPCIL's reactors around the country.

Even if the government is ultimately forced to concede this point, the Opposition should insist that the right of recourse cannot be limited by the Rs 1500 crore operator liability cap but must extend to cover the full amount the government must pay in the event of an accident. There is also one other clause that needs improvement. Though many experts pointed this out in their testimony, the Standing Committee passed up the opportunity to clarify Clause 46, which purports to allow victims to take legal action under other laws. If the aim of this clause is to explicitly preserve the right of victims to file tort claims, why does it only speak of the “operator” not being exempt from other legal proceedings? The absence of a reference to the supplier here is likely to become an obstacle if victims pursue tortious liability claims.

To be sure, these sorts of improvements will not go down well with foreign nuclear suppliers. But this is the price they will have to pay to get a share of the energy sector in a democratic country like India. As Montek Singh Ahluwalia famously said in one of his leaked emails on the U.S. suggestion that the government be lenient towards Dow Chemicals in order to win American investment and support: “There is always a quid pro quo, though I fear on this we are helpless.”

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Final version of nuclear bill lets suppliers off the hook again

In a third attempt to indemnify foreign suppliers, the government now wants them to be liable only if they intentionally cause an accident....







22 August 2010
The Hindu

Final version of nuclear bill lets suppliers off the hook again

Siddharth Varadarajan

Despite assuring the Left and the BJP that their concerns on the government’s proposed nuclear liability law had been fully addressed, the final version of the bill – as cleared by the Union Cabinet on Friday – protects foreign companies in the event of a nuclear accident caused by gross negligence or defective supplies on their part.

It does this by raising a legal barrier against damage claims that is so high it will be impossible to scale. The amended version of the bill says the suppliers of any defective equipment involved in an accident can be sued by the Indian operator of a nuclear facility only if the supply in question was made “with the intent to cause nuclear damage”.

In other words, the operator, who is wholly liable in the first instance for any damages resulting from an accident caused by that faulty equipment, can recover his money only if it is proved that the supplier intentionally caused the accident.

Clause 17(b) of the original draft allowed a right of recourse for the operator in the event of an accident resulting from “a wilful act” or “gross negligence” on the part of the supplier. As reported by The Hindu on March 8 and April 1, U.S. nuclear suppliers want this clause deleted as they feel it would expose them to litigation.

Critics in India, on the other hand, saw these conditions as too weak. The Standing Committee on Science & Technology, whose report on the bill was released earlier this week, felt the “vague” language of 17(b) offered suppliers an “escape route” and needed strengthening. “In case an incident takes place, it would be difficult to prove and establish the fact that it was a wilful act or gross negligence on the part of the supplier”, the report said. “Hence there should be clear cut liability on the supplier of nuclear equipments/material in case they are found to be defective”. The committee also quoted the testimony of the Secretary (Legislative Department) to argue the use of the doctrine of mens rea, or criminal intent, though common in criminal and tax law, “is grossly inadequate and misplaced” in compensation cases.

Accordingly, the Standing Committee expanded the scope of the right of recourse in 17(b) to include nuclear incidents resulting “as a consequence of latent or patent defect, supply of sub-standard material, defective equipment or services” in addition to gross negligence.

The government’s first attempt by stealth to indemnify suppliers from legal action came in June, when it circulated amendments to the Standing Committee deleting 17(b) altogether. When the Opposition cried foul, it backed off, seeking instead to negate the clause by making it contingent on 17(a), which grants operators a right of recourse against suppliers only if expressly provided for in a contract. Forced to backtrack there too, the government now appears to have hit upon the inclusion of intent as the best way of ensuring foreign suppliers never face legal action in the event of a nuclear accident.

Thus, the amended 17(b) gives the operator a right of recourse where “the nuclear incident has resulted as a consequence of an act of supplier or his employees, done with intent to cause nuclear damage, and such act includes supply of equipment or material with patent or latent defects or sub-standard services”.

Since accidents resulting from the intentional acts of a “person” (including corporate entities like a supplier) are already covered by 17(c) of the original draft, the government is now proposing to replace the word “person” in 17(c) with “individual” to avoid the charge of redundancy.

If the earlier subterfuge was to merge 17(b) with 17(a), the attempt now is merge it with 17(c). Either way, the Manmohan Singh government’s aim is the same: to produce legal language that would shield foreign suppliers from civil suits.

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Government set to let suppliers off the hook

Parliamentary Standing Committee proposes major dilution of nuclear liability Bill ...






18 August 2010
The Hindu

Government set to let suppliers off the hook

Siddharth Varadarajan

New Delhi: Their hand-wringing and finger-pointing over Union Carbide now behind them, Congress and BJP legislators came together on Wednesday to recommend modification of the proposed law on civil nuclear liability to let foreign suppliers of equipment off the hook for any accident caused by their negligence.

In its report submitted to Parliament, the Standing Committee on Science & Technology suggested a change in the nuclear liability Bill, making the recovery of damages from a supplier — even in the event of gross negligence — contingent upon his prior acceptance of liability in a written contract. This is a major dilution of the existing provision.

The draft Bill makes the operator of a nuclear facility wholly liable for any damage stemming from an accident. As it stands, Clause 17 allows him to exercise a right of recourse under three circumstances: (a) where it is expressly provided for in a contract in writing; (b) where the accident results from the gross or wilful negligence of the supplier or his employees; or (c) where an individual intentionally causes the accident.

Citing the legal difficulty in establishing the culpability for negligence, the standing committee has recommended expanding the scope of 17 (b) to include accidents caused by “latent or patent defect, supply of sub-standard material, defective equipment or services.” But it has made this contingent on the written contract between operator and supplier expressly providing for these eventualities. “The Committee … recommends that Clause 17(a) may end with the word ‘and',” the report says, adding “that the operator must secure his interest through appropriate provisions in the contract with the supplier.”

The report was adopted by all members of the committee, barring two Left MPs who submitted dissent notes, protesting this effective dilution of 17(b).

The Hindu first reported the U.S. nuclear industry's unhappiness with the original text of 17(b) in March 2010. In June, this newspaper highlighted the government's surreptitious attempt to delete the sub-clause even as the standing committee was considering the Bill. In the ensuing uproar, the Department of Atomic Energy backed off. But if the parliamentary panel's recommendation is incorporated — the Cabinet is to clear the Bill's final version on Thursday and the House may vote on it next week — the suppliers would have had their way.

Left MPs say the insertion of the word “and” after 17(a) was clearly an afterthought as a new sheet was inserted into the printed report of the committee to accommodate the change.

The reason for this last minute modification is presumably the September 2008 promise the Manmohan Singh government made to the U.S. to “take all steps necessary to adhere to the Convention on Supplementary Compensation for Nuclear Damage (CSC).” The U.S. wants India in it because Indian victims of an accident would then be barred from filing damage claims in U.S. courts in the event of an accident caused by American-supplied equipment.

The CSC limits the operator's right of recourse essentially to what his contract with the supplier provides for. Despite this, Indian officials, aware of the link between liability and safety, included supplier negligence as a standalone ground. But in the face of U.S. pressure, the government is now trying to retrofit the Bill to make it CSC compliant.

Globally, th U.S., South Korea and Hungary provide the operators with a right of recourse against the suppliers in the event of gross negligence, regardless of whether or not the contract provides for it or not. Even with a trusted friend like Russia, India is having a tough time including a right of recourse in the contract. That is why the Bill envisaged explicitly giving the operator the right in the event of the supplier's gross negligence.

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The danger in India's Nepal policy

New Delhi might have been a reluctant midwife these past few years but it always managed to come out on the right side of the changes Nepal was undergoing. Not anymore...




16 August 2010
The Hindu

The danger in India's Nepal policy

Siddharth Varadarajan

You know you've hit rock-bottom when an intelligence operative in the Indian mission in Kathmandu calls up a member of Nepal's Constituent Assembly and threatens to have his daughter's provisional admission in the embassy-run Kendriya Vidyalaya revoked if he doesn't vote a particular way.

Welcome to the diplomatic brilliance of a rising India, a country which is bedevilled with intractable political problems in Kashmir, its forested heartland and the north-east but which doesn't think twice about plunging headlong into the cesspit of day-to-day politics in a neighbouring nation. The threatening phone call was made by the Indian embassy official on the eve of the fourth round of voting in the CA earlier this month between the Maoist candidate for Prime Minister, Prachanda, and the Nepali Congress (NC) candidate, Ram Chandra Poudel. Given the prospect of fence-sitting Madhesi political parties moving over en masse to the Maoist camp, the Indian effort was aimed at ensuring this didn't happen and that the stalemate between the two candidates continued.

For the record, Indian officials deny the allegation made by the CA member, Ram Kumar Sharma, but there is hardly anyone in Nepal who doesn't believe it is true. Even by the interventionist standards of the past, the threat marks a new low. Leaving aside the moral and diplomatic implications raised by this unpleasant episode, the threat of punitive action against a young girl suggests a wider, even catastrophic, failure of Indian policy. In the past, India always had the ability to work behind the scenes with a wide cross-section of players in order to produce a political outcome that broadly benefited both Nepal and itself. Today, that is no longer the case. Even when they play their hands in the open, our men in Kathmandu are unable to ensure a stable outcome.

Last week, I followed the lead of Prime Minister Manmohan Singh's special envoy to Nepal, Shyam Saran, who had just been in Kathmandu, and met senior leaders cutting across all major political trends: from the Maoists, who are the biggest party with 40 per cent of the seats in the CA, the NC, the Unified Marxists-Leninists and the different Madhesi factions. Even though their views on the current political crisis varied sharply, virtually all the politicians I met agreed that Indian interference in the politics of the country had reached a new high. Many blamed this interference for the failure of these parties to establish some sort of modus vivendi among themselves.

This failure is costing the country dear. It has delayed not only the writing of the new constitution but also the completion of the peace process — the integration of erstwhile combatants of the People's Liberation Army (PLA) within the official security forces and the democratisation of the Nepal Army. On paper, these are goals India officially supports. And the fact that Nepal has come so far on all of these questions has a lot to do with New Delhi's earlier support and encouragement, particularly in the struggle against the now-abolished monarchy. But somewhere along the line, India has lost the plot, allowing the paranoia and tunnel vision of its security and intelligence establishment to compromise its long-term strategic interests.

Ever since the confrontation between the Maoist-led government and the Nepal Army in 2009 led to the resignation of Mr. Prachanda as Prime Minister, India has been dead-set against the Maoists leading any kind of coalition government in Kathmandu. Indeed, the officials running India's Nepal policy made it clear the Maoists should ideally not even be allowed to join a coalition headed by someone else, that they be “punished” — a word Indian diplomats in Kathmandu have used with their counterparts from other countries — for having dared to presume they could call the shots in the wake of their victory in the April 2008 CA elections.

During the wasted year of Madhav Kumar Nepal's premiership, which India backed to the hilt, New Delhi hoped the Maoists would either split or come under pressure to accept a unilateralist reading of the Twelve Point Understanding and the Comprehensive Peace Agreement — two documents which paved the way for the constitutional and political transformation of Nepal. Though the Maoists see themselves as creating a new mainstream, India wants them to stick to the old mainstream and abandon the hope of restructuring the Nepali state and its institutions in any fundamental way. This the Maoists are not prepared to do.

After 12 months of political stagnation, matters slowly started coming to the boil again since the end of May when a package deal struck to extend the life of the CA by another year led to the resignation of Mr. Nepal as Prime Minister. Last year, Indian officials split the Madhesi Janadhikar Forum of Upendra Yadav in order to ensure that Mr. Nepal had the requisite numbers to form the government. But efforts to ensure a similar arrangement again are floundering over deep divisions within the UML. A rightist faction led by K.P. Oli shares the official Indian antipathy towards the former insurgents but party leader Jhalanath Khanal believes only a consensual approach towards the Maoists will allow the CA to finish its work.

Within the charged political atmosphere, an all-party government led by Mr. Khanal with the participation of the Maoists and the NC would have been the most propitious arrangement if the aim is to complete the peace process and write the constitution by the new deadline of May 2011. Indeed, the Maoists last month said in writing that they would support Mr. Khanal, whose party insisted he have not just a simple plurality of CA members backing him but a two-thirds majority. However, the last minute defection of Upendra Yadav meant Mr. Khanal's numbers fell short, leading to Mr. Prachanda and the NC's Mr. Poudel entering the fray.

Whatever New Delhi may say, UML leaders and politicians from virtually every other party blame Mr. Yadav's sudden change of heart on Indian pressure. What makes these allegations credible is the extent to which the Indian embassy in Kathmandu has got involved in micro-managing political events and even media discourse in the country. Last month, Nepal's biggest newspaper group, Kantipur, which has been critical of the Indian position, faced the prospect of suspending publication because supplies of newsprint were deliberately held up by customs authorities in Kolkata on instructions from the intelligence agencies. The issue was resolved only after the newspapers agreed in meetings with Indian embassy officials to adopt a more “constructive” editorial position.

As matters stand, India does not see the integration of the PLA and constitution-writing as part of an organic process. For that reason, it shares the indifferent attitude of Nepal's old mainstream towards the writing of a new constitution even as it insists the PLA question be resolved quickly. There are a number of proposals for PLA integration and army restructuring on the table, including a non-paper by the U.N. Mission in Nepal. But these cannot be discussed and taken forward in the absence of a consensual atmosphere.

If the next round of voting in the CA is inconclusive, the Maoists and the NC should withdraw from the fray and explore the possibility of Mr. Khanal leading a government with the participation of all. The Maoists should realise that 40 per cent is not enough for them to have their way on all issues and that heading a government for just 9 months should not become the be all and end all of political strategy. All constitutions are living documents. If the Maoists win a majority in the next election, they can always try and improve the constitution. On their part, the NC and the UML, and the Indian establishment, should stop looking at the Maoists as an ‘insurgent' outfit just because several thousand PLA soldiers are still living in UNMIN-supervised cantonments. These soldiers confer no political advantage to the Maoists since the “people's war,” once abandoned, cannot be restarted. Integrating them into a democratised national army would be a win-win all round. In exchange for the loss of dedicated party cadres — 5,000-8,000 men would never be able to stage a coup or subvert a lakh-strong force — the Maoists want the national army to be ethnically inclusive and brought firmly under civilian control. Surely that is something everyone ought to back wholeheartedly. By working against the possibility of a new political equilibrium that can accomplish these goals in Nepal, India is playing a dangerous game that will eventually boomerang.

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The only package Kashmir needs is justice

If the Prime Minister does not take bold steps to address the grievances of the Kashmiris, there's no telling where the next eruption will take us...








5 August 2010
The Hindu

The only package Kashmir needs is justice

Siddharth Varadarajan

Whatever his other failings, Chief Minister Omar Abdullah deserves praise for acknowledging that the protests which have rocked the Kashmir valley these past few weeks are ‘leaderless' and not the product of manipulation by some hidden individual or group.

This admission has been difficult for the authorities to make because its implications are unpleasant, perhaps even frightening. In security terms, the absence of a central nervous system means the expanding body of protest cannot be controlled by arresting individual leaders. And in political terms, the spectre of leaderless revolt makes the offer of ‘dialogue' or the naming of a ‘special envoy' for Kashmir — proposals which might have made sense last year or even last month — seem completely and utterly pointless today.

Ever since the current phase of disturbances began, intelligence officials have been wasting precious time convincing the leadership and public of India that the protests are solely or mostly the handiwork of agent provocateurs. So we have been told of the role of the Lashkar-e-Taiba and ISI, of the ‘daily wage of Rs. 200' — and even narcotics — being given to stone pelters. A few weeks back, an audio recording of a supposedly incriminating telephone call was leaked to the media along with a misleading transcript suggesting the Geelani faction of the Hurriyat was behind the upsurge. Now, our TV channels have “learned” from their “sources” that the protests will continue till President Obama's visit in November.

Central to this delusional narrative of manipulated protest is the idea that the disturbances are confined to just a few pockets in the valley. Last week, Union Home Minister P. Chidambaram told reporters the problem was limited to Srinagar and a few other towns. No doubt, some areas like downtown Srinagar, Sopore and Baramulla were in the ‘vanguard' but one of the reasons the protests spread was popular frustration over the way in which the authenticity of mass sentiment was being dismissed by the government. For the women who came on to the streets with their pots and pans and even stones, or the youths who set up spontaneous blood donation camps to help those injured in the demonstrations, this attempt to strip their protest of both legitimacy and agency was yet another provocation.

In the face of this mass upsurge, Prime Minister Manmohan Singh has two options. He can declare, like the party apparatchiks in Brecht's poem, that since the people have thrown away the confidence of the government, it is time for the government to dissolve the people and elect another. Or he can admit, without prevarication or equivocation, that his government has thrown away the confidence of the ordinary Kashmiri.

This was not the way things looked in January 2009, when Omar Abdullah became chief minister. Assembly elections had gone off well. And though turnout in Srinagar and other towns was low, there was goodwill for the young leader. Of course, those who knew the state well had warned the Centre not to treat the election as an end in itself. The ‘masla-e-Kashmir' remained on the table and the people wanted it resolved. Unfortunately, the Centre failed to recognise this.

It is too early to gauge the reaction to Mr. Abdullah's promise of a “political package” once normalcy is restored. But the people who have thronged the streets are likely to ask why this package — which the chief minister himself admitted was “long in the pipeline” — was never delivered for all the months normalcy prevailed. What came in the way of amending the Armed Forces (Special Powers) Act? Of ensuring there was zero tolerance for human rights violations? Of strengthening the “ongoing peace process both internally and externally”, as the all-party meeting in Srinagar earlier this month reminded the Centre to do?

At the heart of this missing package is the Centre's failure to craft a new security and political strategy for a situation where militancy no longer poses the threat it once did. The security forces in the valley continue to operate with an expansive mandate that is not commensurate with military necessity. Even if civilian deaths are less than before, the public's capacity to tolerate ‘collateral damage' when it is officially said that militancy has ended and normalcy has returned is also much less than before.

The immediate trigger for the current phase of protests was the death of 17-year-old Tufail Mattoo, who was killed by a tear gas canister which struck his head during a protest in Srinagar in June against the Machhil fake encounter of April 30. Many observers have blamed his death — and the deaths of other young men since then — on the security forces lacking the training and means for non-lethal crowd control. Tear gas, rubber bullets and water cannon are used all over the world in situations where protests turn violent but in India, live ammunition seems to be the first and only line of defence. Even tear gas canisters are so poorly designed here that they lead to fatalities.

Whatever the immediate cause, however, it is also safe to say that young Tufail died as a direct result of Machhil. Though the Army has arrested the soldiers responsible for the fake encounter, the only reason they had the nerve to commit such a heinous crime was because they were confident they would get away with it. And at the root of that confidence is Pathribal, the notorious fake encounter of 2000. The army officers involved in the kidnapping and murder of five Kashmiri civilians there continue to be at liberty despite being charge-sheeted by the CBI. The Ministry of Defence has refused to grant sanction for their prosecution and has taken the matter all the way to the Supreme Court in an effort to ensure its men do not face trial. What was the message that went out as a result?

Had the Centre made an example of the rotten apples that have spoiled the reputation of the Army instead of protecting them all these years, the Machhil encounter might never have happened. Tufail would not be dead and angry mobs would not be attacking police stations and government buildings. Impunity for the few has directly endangered the lives of all policemen and paramilitary personnel stationed in Kashmir. There is a lesson in this, surely, for those who say punishing the guilty will lower the morale of the security forces.

Mr. Abdullah may not be the best administrator but his biggest handicap as chief minister has been the Centre's refusal to address the ordinary Kashmiri's concerns about the over-securitsation of the state. Today, when he is being forced to induct an even greater number of troops into the valley, the Chief Minister's ability to push for a political package built around demilitarisation is close to zero.

At the Centre's urging, Mr. Abdullah made a televised speech to his people. His words do not appear to have made any difference. Nor could they, when the crisis staring us in the face is of national and international proportions. Today, the burden of our past sins in Kashmir has come crashing down like hailstones. Precious time is being frittered in thinking of ways to turn the clock back. Sending in more forces to shoot more protesters, changing the chief minister, imposing Governor's Rule — all of these are part of the reliquary of failed statecraft. We are where we are because these policies never worked.

The Prime Minister can forget about the Commonwealth Games, AfPak and other issues. Kashmir is where his leadership is urgently required. The Indian state successfully overcame the challenge posed by terrorism and militancy. But a people in ferment cannot be dealt with the same way. Manmohan Singh must take bold steps to demonstrate his willingness to address the grievances of ordinary Kashmiris. He should not insult their sentiments by talking of economic packages, roundtable conferences and all-party talks. He should unreservedly express regret for the deaths that have occurred these past few weeks. He should admit, in frankness and humility, the Indian state's failure to deliver justice all these years. And he should ask the people of Kashmir for a chance to make amends. There is still no guarantee the lava of public anger which is flowing will cool. But if he doesn't make an all-out effort to create some political space today, there is no telling where the next eruption in the valley will take us.

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Shyam Saran being sent as special envoy to Nepal

As Nepal's Constituent Assembly remains deadlocked, an Indian envoy will try his hand at consensus building...

4 August 2010
The Hindu

Shyam Saran being sent as special envoy to Nepal

Siddharth Varadarajan

New Delhi: In an effort to end the stalemate in Nepal over the election of a new prime minister, India is sending its former Foreign Secretary, Shyam Saran, as special envoy to Kathmandu on Wednesday with a mandate to engage all political parties, including the Maoists, and help build a consensus on the formation of a government that can take the peace process and the task of Constitution writing to a conclusion by next year's new deadline.

Mr. Saran served earlier as the Indian ambassador in Kathmandu and played a key role within the Indian establishment in backing the 12-point understanding among the Maoists, the Nepali Congress and the Unified Marxists-Leninists. That alliance, which eventually led to the end of the monarchy and the establishment of a republic, came under strain before — and especially after — the 2008 elections to the Constituent Assembly in which the former rebels led by Pushpa Kamal Dahal ‘Prachanda' emerged as the single largest party.

Mr. Prachanda, who was subsequently sworn in as the first elected Prime Minister of the republic, resigned in 2009 following a stand-off with the Nepal Army in which the NC and the UML, as well as India, sided with the generals. UML leader Madhav Kumar Nepal then became the Prime Minister. Following his resignation on June 30, 2010, the CA has been unable to elect a new leader, with both Mr. Prachanda, and the NC candidate, Ram Chandra Poudel, failing to win a simple majority in the 601-member House despite repeated balloting. The UML and the Madhesi parties have so far abstained, though there are indications that the largest of the Madhesi groups may be inclined to back the Maoists.

Sources say Mr. Saran's role will be to consult with the Maoists and the two smaller national parties, as well as with the various Madhesi factions. The decision to form a government will have to be taken by the Nepali parties themselves but New Delhi feels it can no longer afford to remain completely aloof from the process.

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