5th Young Thinkers Meet 2016

The 5th Young Thinkers Meet– 2016 was organized by India Foundation on 6 – 7 August in Patnitop, Jammu and Kashmir. The meet, whose theme was “Impacting the National Discourse” the Meet was attended by high-level dignitaries including Union Minister of Textiles, Smt. Smriti Irani, senior leaders from the Bharatiya Janata Party (BJP), Rashtriya Swayamsevak Sangh (RSS) and close to 80 young-intellectuals from diverse educational and professional backgrounds. Various topics including role of academic institutions, mainstream media, social media and literary interventions influencing the national narrative were discussed at length.

Shri Shaurya Doval, Director, India Foundation welcomed the gathering and noted, “The world has always been a battle ground of ideas, and what you think today will manifest in what you do tomorrow.” Mr. Doval also emphasized that the Young Thinkers Meet is a platform for young intellectuals and thinkers to exchange and deliberate on ideas of national importance.

IMG_9570IMG_9571Delivering the keynote address in the session on “Academic Institutions: Controversies, Challenges & the Way Forward”, Smt. Smriti Irani emphasised that in the context of nationalism and national discourse, harmony is not about sticking or agreeing to one idea, but about ideas coming together to form a larger narrative. She highlighted that nationalism is above ideologies and taking sides. The minister cited an example of the #iwearhandloom – “Embrace a weaver, Embrace a heritage” campaign. She said that supported by five crore people across the country, the campaign conveys that simple citizens of the country are coming together and supporting a national cause in their own ways.

Following the address, the Minister engaged in a lively discussion with the delegates on nationalism and its significance in various spheres like universities, in processes like policy-making and its implementation. Appreciating the dialogue, the Minister urged the audience to consider beginning a “Young-Thinkers” journal for continued exchange of ideas.

Shri Dattatreya Hosabale, Sah-Sarakaryavah, RSS moderated the lecture-session on “Nationalism Discourse”. He urged the delegates to note that the debate on nationalism is not only limited to India. He furthered that with intensification of the Brexit debate, political pundits have noted an extreme resurgence of nationalism, globally. Shri Hosabale ji remarked that nationalism could be both cultural and political, and many thinkers around the world have explained it through various ideas and viewpoints.

Especially after World War II, during the era of globalization and the rise of global institutions, international NGOs and multilateral agencies, it has been increasingly agreed that ideas and cultures should be borderless. In this context, Shri Hosabale noted that nationalism has been often incorrectly seen as a movement away from globalisation. Shedding further light on the topic, Shri Hosabale quoted Maharishi Aurobindo, who said that “if you are a true nationalist, you are a true globalist as well”. He urged the delegates to think about how they will present India to the world, and to carefully differentiate between nation, a socio-cultural concept and nation-state, a politico-legal concept.

IMG_9628IMG_9649Shri Ram Madhav, Director, India Foundation and National General Secretary of the Bharatiya Janata Party (BJP) remarked that nationalism existed as an idea even before the Constitution. He remarked that despite various ideas, the nation was one. In this context, Shri Prafulla Ketkar, Editor, Organiser Weekly, moderating the session on Mainstream Media: Issues, Articulation and Personalities, explained that the transformation of media from a service-only purpose during the pre-independence time to a service and business model in the post-independence period has changed many contours of the nationalism debate. He argued that we have to think whether we want to report news on national issues, with some “news-value”.

The discussion allowed delegates to raise various issues related to media, including regulation, use of analytics and data to influence an issue, reaching out to a target audience through creative use of media, and empowering regional and local media by looking beyond Delhi-based electronic media in order to reach a larger and diversified audience. For instance, it was noted that a simple initiative such as Mann Ki Baat has revived the radio across India. Shri Ram Madhav underlined that there are three key factors which are useful for influencing and dominating the national discourse, i.e. confidence and understanding of one’s position in the media space, good articulation of one’s ideas and views, and realising that personalities and icons campaigning for a cause can make a difference.

IMG_9727Day-2 opened with Shri Milind Kamble, Founder Chairman, Dalit Indian Chamber of Commerce & Industry (DICCI) addressing the second lecture session on “Social Integration and Dalits”. Mr. Kamble put forth two important historical contexts for the delegates – the empowerment of the African-Americans in the USA, and the transformation from a mixed economy to a new economy in India in the 1990s.Through the narrative of the African-American movement in the USA, Mr. Kamble stressed that strategic efforts from various spheres, including the government and the civil society resulted in creating circumstances that led America to elect Obama as the first African-American president of the USA in 2009 – just 400 years after the first slaves were brought to the USA from Africa.

On another note, Mr. Kamble explained that India’s big-bang economic reforms in 1991 allowed the country to undergo major changes. For example, today, 15% of the people owning Small and Marginal Enterprises (SMEs) belong to Scheduled Castes and Scheduled Tribes. This is an indication that SMEs, having emerged after the reforms of the 1990s, has played an important role in uplifting the bottom of the pyramid in India. Going forward, Mr. Kamble emphasized that youth would have to play a major role in social integration. He also said that entrepreneurship is a valuable tool and opportunity to achieve greater social integration in our country.

Taking cue from Mr. Kamble’s remarks, the delegates involved themselves in an active discussion and various issues and ideas were explored in the context of Dalits and social integration. It was noted that many stakeholders were giving up reservations voluntarily today, but also that there are certain sections of the society which still require reservations to uplift their livelihoods. Economic status based reservation systems for Dalits and inter-caste marriages were also discussed as potential mediums for greater social integration. In the context of present day Dalit discourse and recent events, it was stressed that no one can take law into their own hands, and such actions must be immediately disowned. Shri Ram Madhav underscored the importance of realising that an individual should be respected irrespective of whoever he/she is.

IMG_9745Shri Amit Malviya, National Head – Informational Technology and Digital Communication, BJP, moderated the session on “Role of Social Media: Construction & Manipulation of Dominant Narratives”. In his remarks, he noted that on social media, anyone could set the agenda, and if one has a powerful idea and is able to present it in a cogent manner, it is possible to make an impact. Mr. Malviya underlined that personalities do not set the agenda anymore. Delegates contributed to the enriching discussion by sharing personal experiences and observations on social media.
Regulation, strategic-restraint and ability to present arguments and highlight issues in a manner that does not discredit anyone were emphasized as important factors that contribute to constructing and manipulating the narrative on social media. Following the discussion, Mr. Malviya informed the audience that from the BJP’s perspective, in the next two years, governance would continue to be the key. He also said that the party would also closely work with many unaffiliated groups and mediums to increase outreach and awareness about issues. Shri Hosabale urged the delegates to realise the digital divide and gender divide present in the social media space.

Delegates also had the opportunity to learn from a brief overview on the current situation in Jammu & Kashmir state, presented by Shri Ramesh Pappa, RSS, Jammu and Kashmir. He explained that J&K consists of 22 districts, with 10 districts in Jammu, 10 districts in Kashmir and two in the Ladakh region. He underscored that even though certain parts in the valley are disturbed, the state is largely peaceful. He highlighted that the present state and central government, and other stakeholders have played a key role in the socio-economic upliftment and integration in the state. Shri Pappa affirmed that the anti-nationalist movement in the state has not been successful due to the consistent efforts of various stakeholders in the state.

Shri Binod Bawri, Director, India Foundation presented a talk on “Data to Wisdom”, and provided food-for-thought to the delegates on understanding how we think. He highlighted that thinking is the process of distilling thoughts and questioning.

The two-day event also saw though-provoking presentations from delegates on various topics, which prompted engaging discussions and exchanges of ideas. The topics for presentations ranged from challenges, controversies and way-forward at academic institutions to the relationship between religion and dharma to “Big History” and the role of pedagogy, social media and film in construction of national narratives. In terms of effective nationalistic intervention in the literary area, delegates engaged in a brief discussion, and noted that an incubator could be created for creative ideas to come forward. It was also underlined that literary areas could also be used as a tool to bring out stories of our real heroes.

The valedictory session was presided over by Shri Ram Madhav and Shri Dattatreya Hosabale. Shri Ram Madhav stated that this event was designed entirely for the participants to think and discuss different issues. He urged participants to be open-minded and receptive to every thought, and strive to think out-of-the-box, which was very essential to address today’s complex issues. While making arguments, he pointed-out that it was important to avoid victimhood, and be confident about one’s thoughts. Shri Ram Madhav reminded all delegates that it was important to co-opt rather than confront those who might disagree with us, as the attitude must be to win-over people by thinking like a leader.
In his concluding remarks, Shri Hosabale remarked that nationalism was not a new thought in our country. All over the world, society after society was trying to find its nationalist roots – historical experience, philosophical view and culture. He urged the thinkers to be open-minded and ready to accept the truth from the other side as well drawing inspiration from Shastrartha – a great heritage which we have.

Shri Shaurya Doval delivered the vote of thanks and urged all delegates to keep one’s mind open and remain positive.

Please use the below link to access the photographs of Young Thinkers Meet 2016:

https://goo.gl/photos/kBfVD4f8u1Vj2w1q6

Two Years of NDA Government: Broadening Vistas of Progress and Governance

~ By Jayraj Pandya

“The dream of India as a great nation, which we had seen during the Freedom Struggle, continues to inspire us even today. To some extent, this dream has been realized. Yet, a lot more remains to be accomplished.”1

  • Bharat Ratna Shri Atal Bihari Vajpayee in his last independence day address on 15th August 2003

In the backdrop of these words and after a passage of ten years, the Bharatiya Janata Party (BJP) led National Democratic Alliance (NDA) won a resounding mandate in the General Elections 2014. The BJP achieved a landslide victory by securing 2822 seats out of the total 543 seats and in the process, became the first party to win a complete majority in the Lok Sabha after a span of 30 years. The new dispensation at the Centre faced colossal challenges such as an economy in doldrums, restive demographic dividend, foreign policy in tatters and much more. It required a Herculean effort on the part of Prime Minister Narendra Modi led NDA government to bring India out of its troubles, most of which being self-inflicted due to policy paralysis and lack of effective governance. This has put the country back on the trajectory of high growth and prosperity. The effort of this paper is to constructively analyse the progress achieved during the first two years of the NDA Government.

Changing Perceptions, Bursting Myths

Rather than going through the mundane SWOT (Strengths, Weaknesses, Opportunities and Threats) approach in analysing the performance of the Prime Minister Modi-led government, the approach used here is to perform an appraisal on the metrics of ability to positively change perceptions and bursting conventional and age-old myths.

The biggest positive development which has been witnessed under the new regime has been the significant rise in diplomatic capital of the country. Even there, most of this capital has been equity capital and not debt capital i.e. efforts have been made to foster long-term relations with foreign nations and in making them partners in our growth story. Right from the start of this Government’s term by extending invitations to heads of SAARC nations, to operationalising the landmark India-Bangladesh Land-Boundary agreement (LBA) and from rekindling the Indian diaspora with the nation to display of the statesmanlike approach by the Prime Minister in dealing with global leaders and multilateral institutions for best interests of the nation, the country has witnessed an unprecedented global spotlight during the past 24 months of this regime.

On the economic front, the country was battling a baffling quadrangular conundrum comprising of severe policy paralysis, high inflation, the Twin Balance Sheet (TBS) challenge and low and jobless economic growth. Blatant corrupt practices at a mammoth scale, a hallmark of the previous dispensation, led to self-induced policy paralysis stalling big-ticket investment projects in key sectors such as energy, infrastructure and transportation. Under the Pragati (Pro-Active Governance and Timely Implementation) initiative whereby the Prime Minister directly reviews stalled projects- 108 of the 350 Centre-state projects, worth over Rs 3 lakh crore across critical infrastructure sectors like railways, national highways, power and civil aviation, interminably delayed for the past four to 15 years, have been revived.3 The ardent push to electrify each and every village in the country, doubling the speed of creation of highways in the country and several other such silent revolutions marked the resurgence of infrastructure creation in the country.

Despite two consecutive years of drought, the earnest and consistent efforts made by the Government including creating Price Stabilisation Fund (PSF) for preventing volatility in agricultural commodities, restricting imports of pulses, enabling strict action against black marketers4 and timely imposition of stock-holding limits of essential commodities8 has ensured that the days of double-digit Consumer Price Inflation (CPI) are behind us.

Perhaps the biggest perception changer can be seen in the Rational Investor Ratings Index (RIRI), a tool created in Economic Survey 2014-15 to gauge the investor confidence. As can be seen, India performs well not only in terms of the change of the index but also in terms of the level, which compares favourably to its peers in the BBB investment grade and even its “betters” in the A grade. (India is in the BBB investment category according to Fitch rating agency. A is the category just above it.) 5

Expanding the limits for Foreign Direct Investment (FDI) in key areas including insurance and defence sectors, improving ease of doing business in the country, passing key legislations for financial reforms such as the Insolvency and Bankruptcy Law, initiation of Indradhanush program for revival of Public Sector Banks (PSBs)6 and a host of other such progressive measures led to India becoming the fastest growing large economy in the world during the year 2015-167 and also the top destination for FDI across the world in 20168.

The biggest myth prevailing in the country- the economically and socially backward classes can only be uplifted through doles and freebies has been debunked with various affirmative actions taken by this Government leading to empowerment of citizens across the board. The cause of social advancement has been championed by the NDA Government through its flagship programs including providing a bank account in each household (Jan-Dhan , more than 22 crore bank accounts opened9), providing life and accident insurance to citizens (Jan Suraksha, 12 crore beneficiaries reached10), crop insurance program (Pradhan Mantri Fasal Bima Yojana), providing incentives for economic upliftment through skill training (Skill India), disbursement of loans to small and micro entrepreneurs (MUDRA, over Rs. 1 lac crore disbursed to over 2.7 crore account holders11) and through creating a conducive culture for start-ups in the country (Start-up India, Stand-up India).

The arduous push to the Direct Benefit Transfer (DBT) program through development of Jan-Dhan, Aadhaar, and Mobile (JAM) Trinity has been a major development in institutionalising a change in framework for provision of subsidies and services to the citizens. The first variety of JAM- PAHAL scheme of transferring LPG subsidies via DBT has been a tremendous success under this regime. As the Economic Survey stated- Based on prices and subsidy levels in 2014- 15, the potential annual fiscal savings of Pahal will be Rs. 12,700 crore in a subsequent Financial Year.12

Merely looking at the performance of this Government from the prism of tangible achievements would be a misnomer. The tough stance of the Prime Minister over the conduct of his Council as well as the bureaucracy has ensured that corruption, which became a hallmark of the previous dispensation, is done away with, in his tenure. This dispensation has championed several initiatives with an aim to bring about a change in the very mindsets of the citizens such as Swachh Bharat Mission, improving accessibility for Divyang citizens (Accessible India), digital storage of important documents of citizens (DigiLocker), creating an open platform for connecting with citizens (mygov.in), real-time outreach on social media for grievance redressal and more. This Government has also tried to break conventional mindsets ingrained in the bureaucratic system in the country through far-reaching measures such as real-time tracking of attendance of government officers (attendance.gov.in), direct access to citizens to seek appointments (myvisit.gov.in), allowing self-attestation of documents to prevent harassment of citizens and repealing of over 1100 archaic laws in the country13.

The Way Ahead

In the last two years, the NDA Government has been taking giant strides on the path of equitable social, economic and cultural progress but still a lot more remains to be achieved. Just like Bharat Ratna Shri Vajpayee, Prime Minister Modi, in his speech on the completion of 2 years of the Government reiterated his commitment towards the nation by saying-

“Work done by our Government in last 2 years is now an inspiration for us to serve the country even better.”14

The author is a Research Fellow at India Foundation. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

References

1.        Prime Minister Shri Atal Bihari Vajpayee’s Independence Day Address, Former Prime Ministers of India- Prime Minister’s Office, 15th August 2003, New Delhi

Can be accessed at- http://archivepmo.nic.in/abv/speech-details.php?nodeid=9239; last accessed at: 20th June 2016

2.        Performance of National parties in General Elections 2014, Election Commission of India, New Delhi, 2014

Can be accessed at- http://eci.nic.in/eci_main/archiveofge2014/20%20-%20Performance%20of%20National%20Parties.pdf; last accessed at: 20th June 2016

3.        Off the blocks: PM Narendra Modi’s big push to get stalled Centre-state projects off the ground, India Today, June 9, 2016

Can be accessed at: http://indiatoday.intoday.in/story/narendra-modi-project-pragati/1/687740.html; last accessed at: 20th June 2016

  1. Inflation: LOK SABHA UNSTARRED QUESTION NO. 2448 TO BE ANSWERED ON MARCH 11, 2016; Lok Sabha: Parliament of India, 11th March 2016

Can be accessed at- http://164.100.47.190/loksabhaquestions/annex/7/AU2448.pdf; last accessed at: 20th June 2016

  1. Economic Outlook, Prospects, and Policy Challenges, Economic Survey of India- Pg. 9, February 2016

Can be accessed at- http://indiabudget.nic.in/es2015-16/echapvol1-01.pdf; last accessed at: 20th June 2016

  1. Indradhanush: Plan for Revamp of Public Sector Banks; Ministry of Finance, August 14, 2015

Can be accessed at: http://financialservices.gov.in/PressnoteIndardhanush.pdf; last accessed at: 20th June 2016

  1. GDP: At 7.6%, India’s growth points to fastest growing large economy, Indian Express, 1st June 2016

Can be accessed at: http://indianexpress.com/article/business/economy/gdp-7-9-percent-its-official-india-is-now-the-fastest-growing-economy-in-the-world/; last accessed at: 20th June 2016

  1. The fDi Report 2016: Global Greenfield investment trends, Financial Times, 2016

Can be accessed at: http://forms.fdiintelligence.com/report2016/files/The_fDi_Report_2016.pdf; last accessed at: 20th June 2016

  1. Progress Report: Pradhan Mantri Jan Dhan Yojana, Ministry of Finance, As on 15th June 2016

Can be accessed at: http://www.pmjdy.gov.in/account; last accessed at: 20th June 2016

  1. Daily Enrolment for Pradhan Mantri Jan Suraksha Yojana, Ministry of Finance, As on 18th June 2016

Can be accessed at: http://www.jansuraksha.gov.in/claims-reported.aspx; last accessed at: 20th June 2016

  1. MUDRA Loans: LOK SABHA UNSTARRED QUESTION No. 1584 TO BE ANSWERED ON THE 4th March, 2016, Lok Sabha: Parliament of India, 4th March 2016

Can be accessed at: http://164.100.47.190/loksabhaquestions/annex/7/AU1584.pdf; last accessed at: 20th June 2016

  1. Spreading JAM across India’s economy; Economic Survey of India- Pg. 57, February 2016

Can be accessed at: http://indiabudget.nic.in/es2015-16/echapvol1-03.pdf; last accessed at: 20th June 2016

  1. Mohan Vishwa, 1159 obsolete laws scrapped by Modi govt; 1,301 junked in previous 64 years, Times of India, 19th May 2016

Can be accessed at: http://timesofindia.indiatimes.com/india/1159-obsolete-laws-scrapped-by-Modi-govt-1301-junked-in-previous-64-years/articleshow/52333875.cms; last accessed at: 20th June 2016

  1. Text of PM’s address at “Ek Nayi Subah” Event on the completion of 2 Years of the Government; narendramodi.in, 28th May 2016

Can be accessed at: http://www.narendramodi.in/text-of-pm-s-address-at-ek-nayi-subah-event-on-the-completion-of-2-years-of-the-government-483802, last accessed at: 20th June 2016

 

Af-Pak Relations after Mansour

~ By Alok Bansal

The killing of Mullah Mansour, the leader of Taliban on 22nd May, near AmadWal inside Pakistan’s Balochistan province has had a significant impact on the security situation of the region. It has also worsened the already tenuous relations between Pakistan and the US. This, the first drone attack inside Balochistan, saw Pakistan vociferously protesting against infringement of its sovereignty, as this has expanded the area of ‘unilateral’ US operations within Pakistan. However, as in the case of Osama Bin Laden earlier, Pakistan has yet to come out with any rational explanation for the presence of such elements within its territory. More significantly, this operation has severely strained Afghanistan-Pakistan relations.

The presence of Mullah Mansour inside Pakistan has given credence to what Afghan authorities had always believed that Mansour was in close league with Pakistani authorities. The fact that he had a valid Pakistani passport with visas from Iran indicates that somebody from within the establishment was supporting him. It has also been established that he had travelled to Iran and was coming back. The fact that the leader of one of the most dreaded militant organisation and Amir-ul-Mumineen for jihad being waged by Al Qaeda, was travelling without any protection shows that he never visualised any threat within Pakistan. He took a taxi from the Iran border and travelled over 450 Km in Balochistan where there are numerous security check points on roads to prevent movement of Baloch nationalists, thereby indicating that he feared no threat from security forces.

This affirmation of close links with the establishment in Pakistan coming immediately after heightened Taliban offensive under Mansour, which included attack on Kunduz and other towns, where numerous lives have been lost to Taliban, naturally annoyed Afghanistan. They felt that Pakistan’s government was playing a double role by supporting Taliban, while overtly being a part of the Quadrilateral Coordination Group (QCG) on Afghan peace and reconciliation process, made up of representatives from Afghanistan, Pakistan, China and the United States.

Unlike the previous occasion, when Mullah Omar had died, the Taliban did not waste time and contrary to expectations, named Haibatullah Akhundzadaas the new leader. It was widely believed that either Sirajuddin Haqqani, the leader of Haqqani Network, who has been close to the Pakistani establishment or Mullah Yakoub, the son of the Taliban founder Mullah Omar, would be appointed as the leader, as they were the deputies to Mansour.  Both have been retained as deputies to Akhundzada, as they wield considerable influence within the Taliban. Unlike the previous occasion even Al Qaeda came out quickly in support of Akhundzada. To cement his position and ostensibly to avenge Mansour’s killing, the Taliban carried out some bold attacks in Afghanistan. Merely hours after the new leader was announced, a suicide attack in Kabul on a bus carrying employees of the judiciary department claimed 11 lives and injured 10 others. As many of them were carried by Haqqani network, fingers were pointed towards Pakistan.

The new leader has vowed to continue the fight and accordingly, the Taliban have refused to participate in any talks. However, the Afghans have been pressing Pakistan to bring the Taliban to the negotiating table, as they had promised to do so earlier. The fact that Pakistan has not done so, has aggravated the rift between the two countries and Afghans have started accusing Pakistan of meddling in their affairs by pointing  towards Mansour’s presence on Pak territory. More significantly, just before Mansour’s killing, the Afghan government had warned it would take action against Taliban for not coming to the table and had urged the QCG to show their military role.

Pakistan, unfortunately, did not come out with any rationale for the presence of the Taliban chief on its territory; rather, it tried to deflect attention by talking about repatriating 2.5 million Afghan refugees, which it claims have been living in Pakistan for decades. It stated that the unbridled movement of Afghans into Pakistan had led to instability and needed to be controlled.To further aggravate the situation, it started implementing a new border mechanism from 01 June, whereby it proclaimed that no Afghan would be permitted to cross the border without a valid passport and Visa, thereby creating serious hurdles for families living across the border. It also started fencing its border and building a gate at Torkham in Khyber Agency, the busiest border crossing, which was objected to by Afghanistan stating that Pakistan could not build a gate anywhere on the border, without its consent. Pakistan however, continued to build the gate stating that it was technically 37 metres inside its border and that it was essential for its counterterrorism strategy to check infiltration of militants and terrorists.  The tensions resulted in firing between the forces of two countries, led to the killing of an Afghan soldier and two soldiers of Pakistan Army including a Major, besides causing injuries to many. The funerals of soldiers who died in combat were attended by thousands of mourners in both the countries, clearly indicating the hostile sentiments against each other.

The Afghan Foreign Ministry spokesperson claimed that the security forces had acted to safeguard its territorial integrity and “armed forces are always ready to defend their country and people and to react against any kind of threats”. Simultaneously, a senior Pakistani military official stated that the gate at Torkham would “now be built and at any cost” and the army would retaliate with full force, if anyone tried to create any hindrance. This belligerent stance led to continuation of firing between the two sides for few more days till ceasefire was eventually declared, but tension continued to prevail and troops remain deployed on both sides of the border.  All activities at Torkham were suspended and thousands of vehicles and persons were stranded on both sides. Both sides have summoned each other’s envoy and have lodged protests, but neither is willing to dilute its stance. To diffuse the issue, Sartaj Aziz, the advisor on foreign affairs to the Prime Minister of Pakistan rang up Afghan National Security Adviser (NSA) Hanif Atmar and invited him and the Afghan Foreign Minister Salahuddin Rabbani for talks to resolve the prevailing logjam. In a direct snub to Pakistan, Afghanistan refused to send either its NSA or the foreign minister, but sent a delegation led by its deputy Foreign Minister Hekmat Khalil Karzai.

The talks failed to reach any conclusion, as Pakistan informed the Afghan delegation that Pakistan planned to build four gates at different places along the border, as it considers them to be crucial to the security of both the countries. The Afghan side claimed that the talks were held in an “amicable and friendly atmosphere” but they had raised the issue of “various violations” by Pakistan, which included setting up of posts in Afghan territory and “unprovoked artillery shelling of Afghan villages.” The presidents of the two countries are expected to meet during Shanghai Cooperation Organisation (SCO) meeting.

These developments however, indicate a serious falling out between the two governments, where Afghanistan accuses Pakistan of supporting Taliban and Pakistan accusing Afghanistan of sheltering anti-Pakistan militants. It clearly indicates that having successfully inducted Haqqani network into the top echelons of Taliban, Pakistan clearly sees it as its proxy, which should be allowed to control the levers of power in Kabul. President Ghani, on the other hand after, after placating Pakistan for long, has eventually realised that Islamabad and more significantly, Rawalpindi, are unwilling to stop their support to Taliban. Consequently, Ghani has been scathing in his comments on Pakistan and is making all out diplomatic efforts to isolate Pakistan. His trip to Chabahar was probably a step in that direction. Even the US, after the killing of Mansour had warned Pakistan against terrorist activities in Afghanistan. Pakistan on the other hand, having secured Chinese support, seems to be in no mood to tow the US line.  Afghanistan-Pakistan relations therefore are headed for a prolonged period of turbulence.

The author is Director India Foundation and Adjunct Professor of NDIM.

(This article appeared in India Foundation Journal, May-June 2016 issue.)

MUDRA Bank: A Boon of Swarojgar

~ By Priyang Pandey

MUDRA Bank or Micro Units Development and Refinance Agency Bank is aregulatorand a one stop solution for developing and refinancing the micro-finance institutions (MFIs) and to implement ‘credit guarantee scheme’for micro enterprises in India which according to NSSO survey of 2013 comprises over 5.77 crores business units.

Modi government announced MUDRA in the 2015-2016 Budget for refinancing micro & small-scale industries that is expected to give a big push to MSME sector, which contributes about 90% of the non-farmingjobs in India. Mudra bank was officially launched by the Prime Minister on 8th April, 2015.

Micro and Small Scale Industry in India

A micro enterprise is an enterprise where investment in equipment or plant and machinery does not exceed Rs 25 lakh; small enterprises are those enterprises where the investment in plant and machinery is more than Rs 25 lakh but does not exceed Rs 5 crores. In India Small and Micro Industrial sector with unorganised sector together provide over 46 crores jobs.This is greater than the organised sector, which provides less than 10% of the total non-farming jobs in India.

The informal sector and employment

Over the years, various surveys conducted by the government as well as industry bodies have found that most of the credit disbursed by the commercial banks goes to organised sector industries, whereas the micro and small industries gets only 4% of its credit needs from Financing Institutions (FIs). These FIs have been setup to help in creating self-employment opportunities by providing easy loan facilities to small and informal units, which are the economic driver of a major chunk of population.

Interestingly though, the corporate sector is considered to be the growth driver of the economy for the last two decades since 1991, with access to almost every possible financing option, tax leverages and other benefits. Yet, this segment is capable of feeding just 2.9 crores households. A study titled ‘India’s better half : the informal sector economy’ by Credit Suisse clearly states that half of India’s GDP and 84% of all non-agricultural work is informal. In fact, theinformal economy in India is much larger than in most Emerging Markets (EMs).

The intuitive habit of drawing macroeconomic conclusions from the corporate feedback (and vice versa) is fraught with risks. After all, only half of India’s GDP and 10% of India’s employment are in the formal sector. Further, only a fraction of the formal sector is listed. To take investments for example, investors intuitively use feedback from large capital goods and construction companies to form a view on India’s investment cycle. This can be misleading since ‘the tail is unlikely to wag the dog’.

Micro Financing in India

Micro Finance is an economic development tool whose objective is to assist the poor to work their way out of poverty. It covers a range of services which is in addition to the provision of credit. These services are savings, insurance, and fund transfers, counselling etc. The microfinance sector has grown rapidly over the past few decades. Banks have also leveraged the channel of Self-Help Group (SHGs) to provide direct credit to group borrowers. The Indian economy largely comprises of micro-units, mostly in manufacturing, trading or service activities, which are ‘self-financed enterprises’. And it is this informal sector which keeps most of the India employed and helps in sustaining economic growth. Interestingly, in the social context, according to the government of India most of these small enterprises are owned by the people belonging to socially and economically Backward Classes.

New Initiative of Financial Inclusion

With the financial inclusion programme ‘Jan DhanYojana’ emerging as a major policy instrument in the country, microfinance has occupied centre stage as a promising channel for extending financial services to unbanked sections of population and to nurture the small and micro entrepreneurial ecosystem. At the same time, practices followed by certain lenders have subjected the sector to greater scrutiny, hence the need for strict regulation.

The government proposed the setting up of the MUDRA Bank and made it responsible for regulating and refinancing all Micro-Finance Institutions (MFIs) which are in business of lending to micro and small business entities engaged in manufacturing, trading and service activities.

As per release of Ministry of Finance, Government of India, the Bank would partner with state level and regional level co-ordinators to provide finance to Last Mile Financer (LMF) of micro and small business entities.

Functions assigned to MUDRA

The MUDRA Bank is primarily responsible for laying down policy guidelines for micro/small enterprise financing business including registration, regulation and accreditation /rating of MFI entities. MUDRA would be laying down responsible financing practices to ward off indebtedness and ensure proper client protection principles and methods of recovery besides development of standardised set of covenants governing last mile lending to micro/small enterprises. It would also promote right technology solutions for the last mile financers.The NITI Aayog also points to India’s continuing challenge to ensure that this economically vibrant group remains engaged and its potential is fully realised. Taking cognisance of this, the most important responsibility that is mandated to MUDRA is to formulate and run a Credit Guarantee Scheme (CGS) for providing guarantees to the loans which are being extended to micro-enterprises and to create a good architecture of Last Mile Credit Delivery to micro businesses under the scheme of PradhanMantri MUDRA Yojana.Under the aegis of the PradhanMantri MUDRA Yojana, MUDRA has already created its initial products/schemes. These interventions have been named ‘Shishu’, ‘Kishor’ and ‘Tarun’ to signify the stage ofinitiation, growth / development and funding needs of the beneficiary micro unit / entrepreneur and also provide a reference point for the next phase of graduation / growth to look forward to:

  • Shishu : covering loans up to Rs 50,000/-
  • Kishor : covering loans above Rs 50,000/- and up to Rs 5 lakh
  • Tarun : covering loans above Rs 5 lakh and up to Rs 10 lakh

It is to be ensured that at least 60% of the credit flows to Shishu Category Units and the balance toKishor and Tarun Categories.

Establishment

MUDRA Bank was created with a corpus sum of Rs 20,000 crores that was allocated from the money available from shortfalls of Priority Sector Lending for creating a Refinance Fund to refinance all types of MFIs and Last Mile Financers. Another corpus of Rs 3,000 crore was provided to MUDRA Bank from the budget to implement Credit Guarantee scheme for ensuring loans to the micro enterprises.

The above measures are not only helping in increasing access of finance to the unbanked but also in bringing down the cost of finance from the Last Mile Financers to the micro/small enterprises, most of which are in the informal sector.

Current Scenario

For financing the small and cottage industries, previous governments from time to time provided infrastructure to support this sector. SIDBI or ‘Small Industries Development Bank of India’ was mandated to provide easy funds to cottage and micro industrial units but the smaller point of presence of the last mile financers did not deliver efficiently. In addition there are many other players in the micro finance sector like SHG (Self Help Groups) Bank Linkage model started by NABARD, Non-Banking Financial Companies and other trusts, societies. Currently, the Existing financing mechanism or the MFIs are primarily dependent on commercial banks for money. Commercial Banks are required to channel 40% of their loans to the ‘priority sector’ which includes agriculture and other small loans, and they redirect money to these MFIs to meet the targets.

The MFIs provides loan at a very high cost as the banks and other refinancing agencies charge12.5% (PLR) interest to these last mile financers and they add an additional spread of 10-11% to meet their operating cost. Consequently, loans extended by these micro units’are priced at around 23%-24%.

Most of these financers extend support to the private limited firms like proprietorship firms; partnership firms and trusts which are considered as a major share of micro industries are deprived for funds.Margin money is also an important concern for these micro units as the existing financing sector requires them to provide for a margin amount of 33%. This forces the borrowing-units to seek funds from local money lenders where the interest ranges from 36% to even 360% andleads to exploitation of these people.

MUDRA Bank is to take over some of the refinancing activities of SIDBI and channel the money in a more focussed way to pave the path of inclusive growth and development and reach out to last downtrodden person – ‘Antyodaya.’.

How it happened

In the budget of 2014, the idea of creating a new financial architecture for providing funds to the micro business units was introduced and to realise it, a committee was constituted. The committee submitted its report in February, 2015 rejecting the idea of creating a separate development and regulatory refinancing bank stating that the Reserve Bank of India had opposed it as a risk prone step.

But the NDA government was convinced that the existing financial system would not fund these micro industrial setups which in reality are the backbone of job creation in our nation. By ignoring the committee report, with the aim of improving the health of the micro and small scale sector, the government went ahead and established the MUDRA Bank. The Finance Minister emphasising in his budget speech that the ‘inclusive growth’ can only be achieved thought he growth of the non-formal sector.

Why MUDRA Bank

Conventional economic wisdom emphasises investment for growth of production or increase in its all-round spectrum by adding capital. This would certainly raise productivity but would not integrate the poor income/ real goods/ services generating activity. If we approach the problem of rural development from the view point of bringing the poor into the income generating activity by making them directly productive, we can make their life meaningful.

The current government focuses on poverty elimination rather than just alleviation which can be made a reality only if the poor are integrated into the national economic framework by involving them in their own ventures on a continuous basis. To nurture the micro and small entrepreneurial ecosystem it was the need of the hour to provide one stop solution to the problems relating to development and financing of these micro units.

Expected Outcome

As a Bank to be established by legislation under a new law, MUDRA Bank will refinance, register, regulate all small business financing institutions (MFIs), it will also partner with regional coordinators to enable them to boost up the Last Mile Financers monetarily. LMFs play a crucial role in micro financing and including them into the regulatory system will prove out to be potential game changer. On one hand LMF will utilise its local and regional knowledge, and of the borrowers potential and on the other hand the regulations will bind them with the framework set by the MUDRA Bank which will include registration, client protection to recovery options and it would helpcurb the exploitations by harsh money lenders in rural India.

Challenges in front of MUDRA Bank

To implement all these policies, a faster pace of implementation and execution is required. Paralysis in implementation of policies as well as awareness among the people running micro industrial units especially in rural areas are some of the major challenges confrontingMUDRA.Fortunately, the Modi government is working with a remarkable capacity which can be seen by the progress report of recently launched target based scheme for financial inclusion ‘Jan DhanYojana’ where the government included 665.26 lakh more people into the financial ambit of banking sector till January2015.

Point of Presence of LMFs in rural areas is a major hurdle in reaching out to the remotest part of the country and use of post offices as LMFs might turn into a landmark in financial inclusion of these micro units.

One Year old MUDRA

MUDRA turned one this April and as per the data provided on the website it has already disbursed more than one lakh crores rupees to nearly 24 lakh micro units. Not only have the existing micro units benefittedbut under the ‘Shishu’ category, many newcomers have availed of the concessional finance.

MUDRA- A Success

In his budget speech of 2016, finance minister ArunJaitley declared that the target for the last fiscal had been achieved. Till April 2016, a total of 106,52,867 loan applications worth Rs. 2437596 Crores had been sanctioned. The establishment of MUDRA would not only help in increasing access of finance to the hitherto unbanked but also bring down the cost of finance to the micro/small enterprises, most of which are in the informal sector.Further, the approach goes beyond credit only approach and offers a credit – plus solution for these myriad micro enterprises spread across the country.

On 4th April, 2016 Prime Minister Modi launched Standup India in line with MUDRA to fund the unfunded especially for the people from SC/ST and other deprived communities. This is in line with the vision of MUDRA, which is “to be an integrated financial and support services provider par excellence benchmarked with global best practices and standards for the bottom of the pyramid universe for their comprehensive economic and social development.”

The author is Research Fellow at India Foundation. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

Co-option of Pakistan: A New China Perspective

~ By Zulfiqar Shah

Pakistan has kicked off a new chapter in its strategic as well as economic history, which essentially can be dubbed as Sinification of Pakistan society and state. This would be first-ever initiative over seventy years history of the country that Pakistan has decided a major and futuristic shift in its strategic policy and planning.

In 2015, Pakistan and China launched China-Pakistan Economic Corridor (CPEC) worth Chinese investment as well as interest free debt of US$ 46 billion. CPEC consists of several projects of roads, pipelinesandenergy infrastructure.Both countries have signed 51 agreements and memoranda, which also includesUS$ 33 billioninvestments in energy sectorand a US$ 44 million communication strategic project of China-Pakistan fibre optical cable.

The project connects China with Gawadarand Karachi Ports through road infrastructure. The major concern for China isoil security through this mega-engagement in Pakistan. The project would reduce the distance between China and Africa as well as with Europe. This is four-fold plan that includes Gawadar Port, transport infrastructure, energy and industrial cooperation.

The Chinese engagement with Pakistan haspromising as well as grey areas for the people of Pakistan.

Transformation of Pakistan

Some experts foresee that such a mega investmentwould transform Pakistan society in terms of political economy. Pakistan faces a decline in foreign investment. It also faces economic instability, particularly due torising unemployment. It is said that through CPEC 700,000 jobs would be created, which would change the face of Pakistan society. Pakistan already confronts inter-provincial disagreements over distribution of resources, excessive centralisation and one province’smonopoly over resources, employment and over state structures. This project would potentially create further economic cushion for Punjab province through projects and employment opportunities. This would probably further intensify the conflict among Pakistani federating provinces. Such apprehension has been expressed through statements by the Chief Minister of Sindh. CPEC is no doubt a major economic engagement and creation of job opportunities thatcould transform Pakistan society; however it seems that the transformation would limit itself to the Punjab province.There areno doubt some aspects of infrastructure development that would have long-term sociologically impacts on whole Pakistan. It is the political economy of the country that would decide whether these impacts are positive and inclusive for all.

Challenges

Pakistan is readying 4000 security personnel to protect Chinese personnel in Punjab province who would be involved in different projects under CPEC. The pool of Chinese security component in Pakistan wouldrise to 21000, up from 17000 already providing security to the Chinese. Chinese engineer and officials involved in various projects in Balochistanare already facing serious security risks.

Pakistani armed forces has undertaken various military operations against secessionists in Balochistanduring last couple of decades; the latter have suffered serious setbacks. However, the Balochsecessionists are still strong enough to resist CPEC and there are possibilities that the road construction and other projects may be delayed due to the Baloch insurgency.

China also plans to use ports of Sindh. Apart from CPEC, China intends to open about 17000 industrial units in Sindh. This would further cause non-Sindhi migration into towards Sindh from Punjab. Sindhi people are already protesting against Zulfiqarabadproject. The government has recently allocated 50 thousand acre land for Bahriya town in Karachi, a project by armed forces to construct settlement facilities for hundreds of thousands.It is expected that Sindh nationalism would protestagainst further marginalisation of Sindhi people reacting to the possibility of hegemony of one province (Punjab)in the context of CPEC.  There are possibilities that Sindhi nationalists may launch people’s movements.

Meanwhile, the possibilities of disturbance by religious extremists in Khyber Pakhtunkhwa province are almost non-existent.

Strategic Isolation

Pakistan is feared to further tilt towards China and isolate itself in the regional perspective. Pakistan would have benefited from CPEC if it would have engaged with other international actor’s economic interests.The Afghanistan scenario and the developments in the region suggestthat there are possibilities thatin the long term,delayed development in Gawadar Port may limit Chinese activities amid communication insecurities.

Recently, Iran and India have signed 12 agreements worth US$ 500 million including for the Chahbahar Port project. Besides, a three way transit accord was signed among Iran-India-Afghanistan. It seems that land-locked Afghanistan would strategically inch towards Iran in the context of Chahbahar and Bandar Abbas. This would further isolate Pakistan in the region regarding its designs to choke Afghanistan and Central Asia in the context of their dependency of Gawadar and Karachi Ports. This probably would give fillip to the Taliban insurgency in Afghanistan.

Conclusion

CPEC is the major strategic and economic shift in Pakistan’s seven decades history of statecraft and foreign policy after its alliance with USA against Soviet Union.Pakistan’s internal factors, political economy, federal conflicts, and the absence of progressive economic policy would reduce the benefits of CPEC. Regional developments may isolate Pakistan in the wake of CPECin the Central and South Asia. There are possibilities that Pakistan would go Sinicised in the coming decades.

The author is a Sindhi refugee from Pakistan currently staying in India. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

Book Review: Tufail Ahmad’s “Jihadist Threat to India”

~ By Syed Ata Hasnain

Tufail Ahmad’s book published by Infolimner carries the full title –‘Jihadist Threat to India : The Case for Islamic Reformation by an Indian Muslim’. It is a 346 page effort with a very appropriate foreword, author’s introduction and eight chapters on social and political themes relating to different aspects of Islam in India and Pakistan. The last two chapters dwell on the larger issues of Islamic Reformation and Global Jihadism.

A little on the background of the author will help appreciate the central theme of the book which appears to build a case for India’s Islamic space being the most suitable for a future reformation model. He is currently Director, South Asian Studies Project at the Middle East Research Institute, Washington. His arrival there has obviously not been through a path of roses. Coming from rural stock and having initially studied at a madrasa, Tufail went on to Aligarh Muslim University (AMU), Jawaharlal Nehru University (JNU), Indian Institute of Mass Communication (IIMC) and Kings College London. He has worked with many media and strategic institutions. He is no doubt a well-established name in the world of journalism relating to Islamic issues. In a field which is yet emerging Tufail Ahmad is a voice which projects the need for reformation in Islam. His own success story as a journalist and researcher cum academic has two important aspects which probably shape his thinking. First, are the opportunities which came his way in an India accused of being unfavorable to Muslims. This shaped his positive mind and gave him moderate ideas which continue to influence him. He had a bad experience at AMU during the time when Salman Rushdie’s Satanic Verses was released; opposing its ban brought him into confrontation with more radical minds and probably cemented his thoughts on Islam. His abhorrence towards any form of radicalism in Islam and the necessity for contextualization of the faith to modern times appears to remain an abiding belief.

It is important to remember that Tufail Ahmad belongs to a cusp generation. Many Muslims of his generation remained confused about their position in Indian society but it is also the generation which evolved itself to look for a cemented place in Indian society. He is obviously one of them who have an enduring belief in India. His writing is accordingly oriented as comes out clearly in this book.

Tufail is fortunate to have got Vikram Sood, former Director R&AW to write the foreword. It is an excellent start to the book, clearly demarcating the emphasis on radicalism in Pakistan and the Middle East, including the potential of its applicability in India. Equally appropriate is Tufail’s introduction. It is the description of his journey of evolution through the years of varied education and on the job training. The explanation about Pakistan’s campaign to exploit India’s fault lines could have been a little more elaborate about the Zia Plan conceived in 1977. The Pakistani involvement is later discussed in great detail while relating it to Kashmir.

Chapter 1 is about the idea of India and how it is shaping. A collection of essays without making any pretension of continuity and linkages carries that theme, focusing on democratic and secular credentials of India. It justifies why India is the best nation for Muslims to live in because of the freedom it offers, unlike the nations of West Asia.

The first of the essays of the second chapter takes up an interesting theme; the inability and frustration of Al Qaida to recruit Indian Muslims. This is a phenomenon which Indian Muslims proudly wear on their sleeve. Even as Al Qaida succeeded in bringing in surrogates in other parts of the Islamic world, the Indian Muslims shunned it because of the freedom and stability they enjoyed in India. The essay on Al Qaida in Pakistan is an elaborate and much needed explanation of the intricacies of terror in Pakistan and Afghanistan. It establishes various linkages between surrogate groups and describes the Lashkar e Toiba (LeT) as one of the most dangerous organization and likely to emerge with a near permanent presence in Pakistan. The kind of coordination LeT has been able to establish between ideology, business and nation-building is dangerous and has all the portents of attempting to rule the roost in Pakistan. Tufail is of the opinion that it is wrong to conclude that Al Qaida has weakened. In fact he makes a strong case for the world to believe how deeply Pakistan’s Inter Services Intelligence (ISI) is involved in propping up Al Qaida in the Indian subcontinent. The other essays in this chapter/section are short and very readable; they can also be read as stand-alone stories.

Chapter 3 focuses on Radicalization among Indian Muslims. Unfortunately it is not a cogent chapter but again back and forth thoughts are expressed in essays. It is this chapter that one hoped could have been dealt with a historical narrative. Perhaps the birth of the Jamat-e-Islami, the Tablighi Jamat and such organizations could have been discussed here with the current legitimacy of these. However, the status of various groups in India is well brought out along with the need for counter-radicalization. The attempts of the ISIS (Daesh) to recruit Indians are discussed, the conclusion is that all is not as well as we may wish to imagine. While the ratio of recruits for Daesh from India is low, the potential remains high and unpredictable. Perhaps one of the areas which could have been examined in this chapter is the increasing propensity of Muslims in the South getting more radicalized. The common belief is that the influence of the Gulf is more pronounced in Southern India because of the larger ratio of Muslims from there being in the Gulf.

Chapter 4 dwells at length on Pakistan. From Jinnah’s Islamism to Musharaf’s attempts to change the narrative and being caught in the vortex of a Pakistan undergoing turbulence through its self-created mechanisms of Jihad the various sections explain it all. There is an interesting but rather long essay on Pakistan’s Jewish problem which brings out the Israeli connection and why Israel remains opposed to Pakistan. The Baluch problem, however, is given short shrift considering it is the area where quid pro quo is always possible. However, Tufail makes a strong case for the world to examine the Pakistan Army’s war crimes in Baluchistan. The essay does not cover the China Pakistan Economic Corridor (CPEC), which Pakistan seems to believe will change the destiny of Baluchistan.

Chapter 5 is a continuing narrative on Pakistan and establishes why Pakistan is unlikely to change. An essay on Maldives and the rising stamp of Jihadism there is interesting. A lot is given to the notoriety of the ISI, describing in detail its role in guiding Pakistan’s Jihadi destiny. It concludes that nothing will change regards Pakistan’s negativity and self-belief that it can guide its destiny through the notoriety of its Army and the ISI. However, the Pakistani people are spared the ignominy of connection to the belief in these institutions. A review of India’s relations with Pakistan is the last essay and it does give a list of measures India needs to do even as it freezes relations with Pakistan, which is recommended.

The last three chapters are a review of politics of Islamic radicalism worldwide. Tufail goes on to discuss subjects such as Bangladesh, lone wolf attacks and the US system of counter terrorism. All these and more are interesting takes again in stand-alone mode.  An interesting one is the essay on trends within Turkey which are overturning the successful secular model of Kemal Ataturk. ‘Erdoganism’ is discussed but the real reasons for Turkey’s counter- revolution appeared to have evaded the writer in this essay. The treatment meted out to Turkey by rest of Western Europe, by including it in NATO and refusing entry to European Union, has had a major effect on the psyche of the Turkish citizenry. This has helped in the counter-revolution and at no time has this been more evident than at the height of the Daesh crisis when Daesh fighters used the open borders with Syria to enter the war theatres of Iraq and Syria.

What is perhaps missing is a full essay on J&K, examining its history, how Sufism was diluted as the prevailing ideology of the Valley people and how financial conduits, drug peddling and creeping Wahabi culture changed the game in favor of the Separatists. It would have been interesting to see Tufail’s informed take on Kashmir and what he would recommend for the turn around there.

Overall a good book, for the general reader but a must for those with an orientation towards following Political Islam.

(The reviewer is a retired lieutenant general and former GOC of the Srinagar-based 15 Corps, senior fellow of the Delhi Policy Group and visiting fellow at the Vivekananda International Foundation, Delhi.)

The Frontiers of Hindu Law – Initiating Debates

~ By Vikramjit Banerjee

After nearly 70 years of independence the question arises where do we see Hindu law proceeding towards. Hindu law, after the codification project in the 1950s, is again at a crossroads. The question now is not so much as to how to make Hindu law progressive but whether by making the law progressive, we are losing the essence of Hindu law.

Progressiveness in Hindu law has always been attached to two subjects, (a) the question of its treatment of women, and (b) the question of treatment of its castes or jatis, traditionally deemed low in the hierarchy. The question of the first has largely been solved by bringing in large-scale changes in to Hindu law through statute. This has resulted in the status of women being made at par with international standards. No doubt that this has resulted in damage to family structures but the allegation that Hindu law discriminates against women does not seem to find as much resonance as it used to find before.

The question as to how to deal with broader questions of inequality which exists as part of Hindu tradition is something which needs to be confronted. It is the view of this author that the future of Hindu law will be written in this new arena of contradiction between the continuous clamour to have equality and the continuous pull of tradition, which have for a long period of time treated groups of people differently based on their birth.

The last question which arises out of this broad discussion is what is the best method through which this equalisation can take place and how to formulate a system which would not lose the essence of Hindu tradition while making it egalitarian in its approach towards all adherents of its faith.

This paper will deal with four broad issues in relation to Hindu law, namely (a) the question of wider consultation while formulating changes to Hindu law , (b) the question of making temples centres of Hindu society while at the same time ensuring that being public places, there is no scope for discrimination in its structure , (c) the question of whether codification is a solution to the continuous problems of Hindu law or whether it is time for us to go beyond mere codification and (d) the question as to whether Hindu law may be de-legalised .

The question of wider consultation while formulating changes to Hindu law.

We have seen time and again that wide scale changes have been made to Hindu law without ever consulting Hindus. It has been an article of faith of the honourable Supreme Court that personal law are not subject to fundamental rights because personal laws are not law for the purposes of Article 13 of the Constitution of India. The catena of cases which continues to the present day through a large number of judgements  of the Supreme Court[1] would indicate that it is the view of the Court  that personal laws are not subject to fundamental rights enumerated in the Constitution since personal law is not strictly law. At the same time we have seen wide scale changes being brought in Hindu law by legislation by the State without any consultation.

Since the first modern codification of Hindu law was brought about in the early 1950s there has been huge changes which have been initiated within Hindu law. This has resulted in both the enhancement of the status of a woman within the family and has also resulted in changing the focus of a family from a composite unit to a social arrangement of independent individuals. It is a different question altogether whether the said changes have actually benefitted women outside the limited periphery of relatively independent women of a certain section of society.

In Hindu law marriage is a sacrament. The government  through legislation has changed  the very nature of marriage by allowing extensive changes in the concept of marriage in society. The process through which norms and laws of divorce have been loosened making it easy for people to break out of the norms of marriage has been unparalleled in the last 1000 years. The extensive intervention in the question of succession rights has also resulted in creating and accentuating issues which have resulted in fracturing of the family. The result of this wide ranging intervention has been that the concept of joint family has almost disappeared and has  increasingly been replaced by nuclear families in urban areas of India .

However these extensive changes have been initiated without consultation with the wider Hindu society. It seems to have been taken for granted that the logic which was behind the initiation of the first Hindu Code still holds valid today. The state it seems has gone out of its way to ensure that the bearers of tradition, whether it be religious or social are excluded from the process of formulation of such personal laws on the ground that they would be impediments to change , even though such institutions have a wide impact on society. On the other hand the state has gone out of its way to consult non-governmental organisations which are perceived by the state to be progressive. These ‘progressive’ elements are far removed from Indian reality and have very little impact on formulation of social norms. It is also surprising that this process of using external catalysts completely alien to Hindu society and tradition are only being used for making changes in Hindu law and not for making changes in family and personal law of other religions. In fact it is apparent that the government has reacted to social and religious pressures while dealing with personal law of other religions. This unilateral approach has resulted in cleavage within the Hindu society whereby the laws which have been framed for society do not reflect the societal reality. This unfortunate creation of laws disconnected from the underlying undercurrents within society has resulted in unintended but grave consequences on those very people whom the laws were supposed to protect. The increasing misuse of criminal law to target other women in the family of a husband by a disaffected wife because they seem to be the most vulnerable arises out of this complete incomprehension of the state of social realities.

No doubt that there are changes which are required in Hindu law and no doubt that such changes are long time coming but such changes cannot be brought in by government fiat alone; there has to be generation of social will for such changes. It is important to remember that whenever wide scale changes in Hindu law have been initiated, the prime movers of such changes have been from within Hindu society, for e.g. Ishwar Chandra Vidyasagar and Baba Saheb Ambedkar. The process of initiation of debate and the dissemination of ideas fundamentally changed people’s views of certain laws which were discriminatory. The government, it seems today, is not interested in the debate but is more interested in surreptitiously making changes in Hindu law to the exclusion of other personal laws.

It is important therefore that a process be initiated whereby the government is mandated to consult religious and social groups before bringing in changes into Hindu law in future. The structure so created may be a representative structure or a board or it may be a method whereby different groups may be consulted but it is imperative that such a structure through statutory backing must be created for the future.

The question of making temples centres of Hindu society while at the same time ensuring that being public places, there is no scope for discrimination in its structure.

There are essentially two parts to this question. The first part deals with the question as to how Hindu temples, which have been taken over by the government either because of disputes or because of the public interest, be returned to the people and what sort of governance structure be put in place once these temples have been returned to Hindu society. The second part is how to make worship of an increasingly egalitarian faith equal. Needless to say this is still a huge challenge and remains a key element in creating a society with less hereditary privileges. Considering how contentious the second issue is, it would be perhaps proper that a separate paper be presented on it. However for the purposes of this paper a broad outline is only indicated as to how possibly an attempt to create uniformity may be the first step towards a broader reworking of the entire process.

In relation to the first question, it is important to understand that most of today’s big Hindu temples in India are governed by the state. This has led to a situation whereby Hindu religion has been de-facto nationalised. It does not mean however that Hindu religion has been given a special status under the Constitution but that the major places of worship as well as the wealth generated out of such worship and the disbursal of the same has not remained in the hands of Hindu society but has been transferred into the hands of the government. Prima facie it is obvious that the said arrangement is contrary to strict secularism. It also creates a situation where vis-a-vis other religions Hindus feel discriminated. It is also a matter of continuing incomprehension as to why the wealth of the community which has been given for a religious purpose is used by the state for secular and nonreligious ends. No doubt that the wealth generated may rightly be used for social upliftment but the question is as to whether the Hindu community should have a say both in setting its priorities as well as it’s ends. It is also well known that temples have been the centres of Hindu community for thousands of years. The attempt of various different competing colonial regimes have been to destroy or remove from control of Hindus their temples. At the time of foreign colonialism, this thinking may have been a much hated but nonetheless an effective tool of governing the people but it is surprising that in independent India under the governing credo of secularism, such practices continue.

It is suggested that it is time that governments return temples, some of which have been ostensibly taken over temporarily but factually permanently, to the Hindu community. The method of governance of these temples once they are returned needs to be discussed threadbare. There are two broad models which may be taken up for consideration, either a territorial model based upon the state and or at the national level which would be a representative in nature which would govern all the public temples on the lines of the Shiromani Gurudwara Prabandhak Committee or a shrine specific model again which should be representative in nature like the one at Vaishno Devi , Tirupati and Amarnath. However the role of the state, which has been the hallmark of the shrine specific model, should be reduced to a minimum. It is suggested that a statutory framework of the same should be formulated either as a model bill or as a comprehensive one. Needless to say that the composition of the representation should be truly egalitarian and it is suggested that it should also include provisions of affirmative action so that the same may be truly inclusive. Such a step, as making public temples truly inclusive, would be in consonance with Article 25 (2) (b) of the Indian Constitution which mandates that the government throw open Hindu religious institutions of a public character to all classes and sections of Hindus.

The second part is the question of equalisation or the de-priviligesation of worship. While accepting that there is a private nature to faith and religion, it is also important to recognise that increasingly Hindu religion and the exercise of Hindu religion is a public act. It is also important to recognise that public Hindu temples as distinguished from private Hindu temples are by their very definition should be made accessible to every Hindu. It is important to ensure that there is no scope for discrimination of any sort on grounds of social inequality in any Hindu temple. If needed it is crucial that the said changes be brought about through statute in the exercise of Raj Dharma of the state.

The second aspect of the said right to worship is the right to equalisation of opportunity to being priests at public temples. There is no doubt that all rituals in different temples are highly specialised and that such rituals take a large number of years to perfect. There is also no detracting from the fact that such rituals need to be performed in consonance with age old tradition, custom and norms. However over a period of time, the performance of such rituals and the right to perform them have become hereditary. Just as it would be incorrect to assume that someone merely learned in Sanskrit would be able to perform the rituals exactly, it would also be a mistake to assume that those who are born into a certain family would be able to perform the rituals better than those who are not from the family. It is suggested as a first step that the qualifications of priests in Hindu temples be standardised. This could either be in the form of a degree or in the form of an examination. However to be able to take the position of a priest in any public temple there should be a large period of apprenticeship which would allow a novice to learn and internalise the specific rituals of the temple in which he would conducts worship.

The reforms in priesthood as has been mandated by the Supreme Court is not contrary to Hindu religion and is an important step to ensure egalitarianism within the religion[2].

The question of whether codification is a solution to the continuous problems of Hindu law or whether it is time for us to go beyond mere codification.

The codification of laws is a gift to India by the British. The laws as we know them today whether they be in criminal law or commercial Law or in personal law are a product of westernisation of India’s jurisprudence.

There is nothing per se incorrect with codification. Codification produces uniformity and standardisation. Codification also reduces arbitrariness. Therefore, in a modern democracy codification of laws is the cornerstone of constitutionalism. However codification of personal laws has done more harm than good in India.

The reason why codification of personal laws in India is harmful to Indian society was because the process of standardisation of norms which is the basis for codification was done without trying to find out the reality of the validity and applicability of such norms in practice. As is now well known the first formulation of a codified law was done by the British and all subsequent changes including the acts collectively known as the Hindu Code were done in pursuance of a modernist understanding of Indian society. It differed greatly from what was practised on the ground. This resulted in an anomalous situation whereby instead of incorporating flexibility which is the key to family relationships the law added rigidity. Numerous social customs which was the basis of Hindu law and which gave it flexibility to deal with various different situations arising in society were at a single stroke removed by the Hindu Code. This removed, at a single moment, the tools which would have been available to those adjudging those disputes to come to a fair and equitable conclusion.

The biggest argument towards codification of personal law has been that it has brought in equality in Hindu personal laws. However it is suggested that instead of codification if the personal laws were made subject to the fundamental rights and equality provisions of the Constitution as is clearly made out in Article 25 of the Constitution and the same were implemented strictly, the flexibility of the tradition as well as the imperative of modern equality would have been maintained. The random standardisation of Hindu law without contextualisation has resulted in complete disjunction of reality, tradition, actual practice and textual norms. It is time possibly to look outside the box for comprehensive solutions.

The question as to whether Hindu law may be de-legalised

The other big question which is related to the de-codification of Hindu law is the related idea of de-legalisation and removing the Judiciary from an area which it is ill-equipped to handle, namely family relationships.

Family by nature is a product of society and the unit on which a society is constructed. The insertion of a rights in the family structure has led to more damage than good. The exercise of these rights has been through the courts of law. This in turn has led to the situation where the entire process of living in a family has been legalised. Every aspect of one’s living in a family structure has now been made subject to some form of legal regulation. This has on one hand increased legal intervention in the family and on the other hand has also resulted in exacerbating differences between the family members. It has also resulted in providing tools to members of the family to destroy the family as a unit. The ostensible reason for doing this, as made out by progressives, is to set right the inherent imbalance of power which exists within the family. The resultant fallout of such misguided intervention has been that the family structure in the urban areas of India is increasingly collapsing. In Western countries where there is the provision of social security, the collapse of the family may be set off against the safety net provided by the state. However in India where there is no social security the collapse of the family has a disastrous impact on the weakest members of the family. The process of approaching the court which seems a remedy in the short run, being easily available, turns out to be a mirage in the long run. The Courts are also ill-equipped and completely at a loss on how to handle family relationships which is the keystone of personal laws .It is therefore suggested that it is also time that we explore as to whether the dispute resolution mechanism of Hindu personal law be brought out of the courts and given to social dispute resolution mechanisms. The details of what would be adequate and what would keep interests of all stakeholders in mind may have to be formulated after deeper and wider consultation but it is time to see whether alternative dispute resolution mechanisms may be a better method to solve family disputes in Hindu Law. It is also to be specifically noted here that even if such resolution mechanisms are taken out of the purview of the courts the same would be subject to supervision of the courts under article 226 of the Constitution of India and therefore must comply with constitutional norms and fundamental rights. The chance of such dispute resolution mechanisms taking any action which would go contrary to accepted norms of equality would therefore be completely mitigated.

CONCLUSION

In the end it is important to note that a long time has passed since the Hindu Code has come into effect. We have been able to note its disadvantages as well as its advantages. The disadvantages which we brought upon ourselves in the Hindu Code needs to be remedied by tools which are available to us. On the other hand there is an impending need to make Hindu religion and Hindu law even more inclusive and non-discriminatory. The future lies in the road whereby we would be able to wed the twin ideals of tradition and constitutional obligations in holistic manner. This article is hopefully an initiator of discussion towards that path.

The author is an advocate at Supreme Court of India and also Advocate General of Nagaland. The views expressed are his own.

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] Riju Prasad Sarma v. State of Assam 2015 (9) SCC 461.

[2] N. Adithyan v. Travancore Devaswom Board 2002 (8) SCC 106

A Critical Appraisal of Hindu Law

~ By Saema Jamil

The history of Hindu Law reforms spans a period of fifteen years (1941 to 1956). A Hindu Law Committee was set up in 1941. It recommended the enactment of one comprehensive code that would cover all matters relating to marriage and succession. The recommendations led to the formation of the second Law Committee in 1944 which submitted its report in 1947 to the Federal Parliament. There were fiery debates in the Parliament[1] over the recommendations for almost a decade before four separate Acts could be passed in 1955-56.[2]

The enactment of the Acts was hailed as a major leap towards the liberation of women. However, the story behind the codification of Hindu Law is not that simple. Politics and appeasement of the conservatives played a major role in the enactment of the four Acts and the goal of liberating women and attaining gender equality took a back seat. The foremost concern of the Hindu reforms was to amalgamate the diverse Hindu society and to bring uniformity in the law for the purpose of unification of the nation.[3]

Thus, even though the Hindu personal reforms were portrayed to be radical, the provisions did not do complete justice to women. The final Acts that were passed were so different from the original provisions that were mooted that it can almost be said that the government had given up on the idea of a Hindu Code.[4] Despite this, it cannot be denied that the Hindu personal law reforms had a definite positive impact on women’s rights. It might not have been a leap but it was definitely a step towards achieving gender equality. And we have been taking steps in the same direction ever since. It is necessary to critically analyse the provisions of the Hindu Code to ensure that we do not waiver or get lost on the road to gender equality and finish successfully the journey that we have begun.

This article would discuss the provisions of three of the Acts of the Hindu Code: The Hindu Succession Act, The Hindu Marriage Act and The Hindu Minority and Guardianship Act.

  1. Hindu Succession Act

Hindu Law recognises a Hindu Joint Family as a separate entity. Before Hindu Succession Act, 1956, the joint family property was owned in the name of male coparceners[5] and on the death of one of the coparceners the property devolved to the remaining coparceners in accordance with the doctrine of survivorship. The females had no right over the joint family property except the right to claim maintenance.

The Hindu Succession Act, 1956 brought in two major changes: it conferred full ownership of property on Hindu women who prior to the Act had only a “limited estate” and it diluted the doctrine of survivorship by introducing the concept of “notional partition”. The former change has improved the condition of women considerably. The courts have interpreted the Section liberally giving benefit to women. Recently in Jupudy Pardha Sarathy v. Pentapati Rama Krishna & Ors[6], the Supreme Court held that a limited interest created in whatever form, in favour of a widow who was having a pre-existing right of maintenance becomes an absolute right by the operation of Section 14(1) of the Hindu Succession Act. This was a case where the husband of the widow had bequeathed a limited interest in some property to her. The court held that the interest was given to her in lieu of maintenance since the husband was aware that she had no means to maintain herself and therefore, Section 14 (1) would apply and she had become the full owner of the property after the 1956 Act was enacted. They gave a narrow meaning to Section 14 (2) to ensure that the woman gets the benefit of Section 14 (1) and upheld the spirit of the provision.

The second change introduced did not introduce gender parity though it did allow women more rights than they previously had. According to the concept of notional partition, on the death of a coparcener, his undivided share was deemed to be his separate property which devolved in accordance with inheritance laws. The rationale was to ensure that the daughters are not left with nothing. The position was still obviously inequitable as the daughter’s share was always considerably less than the male’s share.[7]

This discrimination was sought to be ended by the 2005 Amendment Act which made daughters coparceners and abolished the doctrine of survivorship.[8] The amendment has made the law more equitable but has led to absurd situations. For example, a daughter who was married already before the date of commencement of the 2005 Amendment Act would not be a member of her father’s joint family but by virtue of the amendment would become a member of the coparcenary which is a narrower institution than a joint family.[9] Similarly, a daughter who gets married after the 2005 Amendment Act comes into force would be a member of two joint families (one of her father and the other of her husband) and her daughter would be a member of three joint families (her father’s, her maternal grandfather’s and her husband’s)[10] and two coparcenaries[11]. This is a result of a fixation with the concept of Hindu Joint Family. It needs to be understood that the concept of Hindu Joint Family in its strict form cannot continue in the present times.

The entire Hindu family system has been unfair to women. It is the female who ceases to be a member of her father’s joint family and becomes a member of her husband’s joint family on marriage. Her identity (including her name) changes when she gets married. It is as if she is transferred from one family to another (usually for a consideration, i.e. dowry). But it is also necessary to acknowledge that society is dynamic and is responding to the problem of gender discrimination in the family with change. For example, many parents are not using surnames for their children and women have started retaining their own surnames or using both surnames (hers and her husband’s). This dynamism needs to continue and law and society needs to work in tandem.

Another problematic feature of the Act is the presence of separate provisions for succession in case of Hindu men and Hindu women dying intestate[12]. The property of Hindu males devolves upon his heirs irrespective of the source of the income but the property of Hindu females devolves according to the source of the income. This provision dilutes the effect of revolutionary provisions like Section 14 and makes it seem as if the woman is a temporary occupier of the property and that the property must be reverted back from where it was inherited[13] and that the woman has no identity of her own.[14]

It is thus clear, that the 2005 Amendment Act has not introduced true gender parity; nevertheless it cannot be denied that it was definitely a step in the direction of reducing the existing inequalities in society. The need of the hour is to recognise the biased nature of the law and to challenge it since lack of challenge and questioning puts a stop to dialogue and more importantly to change. Thus, while recognising and appreciating the positive impact of the 2005 Amendment Act, it is necessary to understand how it still does not guarantee equality between the two sexes.

  1. The Hindu Minority and Guardianship Act, 1956

Section 6 of the Hindu Minority and Guardianship Act, 1956 clearly states that the father is the natural guardian of a Hindu minor when the minor is a boy or an unmarried girl and the mother would be the natural guardian after the father. It relegates the mother to a lower position than the father. The Section flagrantly denies gender equality and is ultra vires the Indian Constitution by virtue of Articles 14 and 15. And yet, the provision has been declared constitutional by the Supreme Court of India.[15]

The Court read Section 6 along with Section 4 (c)[16] of the Hindu Minority and Guardianship Act and came to the conclusion that both parents have been recognised as the natural guardian of the minor. They further stated that the word “after” in Section 6 (a) of the Act does not disqualify the mother from acting as the guardian of the minor during the lifetime of the father. It interpreted the word “after” to mean “in the absence of” the father. The absence could be temporary or permanent and could be a result of total apathy of the father towards the child or any ailment of the father. According to the court, this interpretation would be in consonance with the intent of the legislature which was to make provisions keeping in mind the welfare of the minor and would help the provision to stand the test of constitutionality. The interpretation was in no way ingenious because the provision had already been read down around two decades before this judgment was pronounced.[17]

The Apex Court in Githa Hariharan case did not explicate how reading down Section 6 (a) of the Act made it constitutional. Even if the word “after” in the Section implies “in the absence of”, the Section stills violates the woman’s right to equality. The mother is recognised as the natural guardian of the minor only when the father, for whatever reasons, is not in a position to look after the welfare of the minor. The interpretation denies the woman equal rights as her partner. The law as well as the court assumes that the father is either more capable or better equipped to cater to the needs and welfare of the minor than the mother. Lamentably, the court while giving a decision against gender equality completely denied it was doing so. It violated the right to equality employing the language of equality.

The right thing to do would have been to declare the Section unconstitutional as it violated the fundamental right to equality. Instead the court after paying lip service to the constitutional mandate of ensuring gender equality held the Section constitutional giving specious reasons. This was worse than saying that the court would not interfere in personal laws because if it would have said so, it would have at least recognised that the Section was violative of the right to equality. However, by declaring that the Section is constitutional, if read down, the court did not even acknowledge the biased nature of the Section.

Also, Section 6 (a) of the Act reveals the influence of prescriptive gender behaviour and roles on the legislature. It makes the father the natural guardian of the minor in normal circumstances but stipulates that the custody of the minor till the age of five would ordinarily be with the mother. This is in line with the assumption that it is the duty of the mother to take care of the minor in his/her early years because she is better suited to the job while the father is entitled to manage the minor’s person and property and be the natural guardian.[18]

The entire scheme of Section 6 of the Hindu Minority and Guardianship Act, 1956 is problematic because it tends to validate the hypothesis that men and women are inherently different and therefore better suited for different roles.

Another point to note is that Section 7 of the Hindu Minority and Guardianship Act says that the natural guardian of an adopted son is the adoptive father and after him the adoptive mother. There is no corresponding Section saying the same thing about an adoptive daughter (possibly because Hindu Adoption and Minority Act was enacted after Hindu Minority and Guardianship Act and therefore at the time of enactment of the former Act daughters could not be adopted). But even without an express Section, the natural guardian of an adopted daughter is the adoptive father and after him the adoptive mother by virtue of Section 6 of the Hindu Minority and Guardianship Act read with Section 12 of the Hindu Adoption and Maintenance Act. Nevertheless just to bring in parity, it would be desirable if there is an explicit provision inserted to make it express.

  • The Hindu Marriage Act, 1955

The Hindu Marriage Act, 1955 was indeed a progressive Act if we keep in mind the year of its enactment. It gives almost equal rights to the wife and the husband. The wife can file an application for restitution of conjugal rights and the husband can ask for maintenance from the wife in appropriate cases. However, this Act is a perfect example of how an equal law on paper can be applied in a discriminative manner in practice. For instance, what amounts to cruelty in the case of husbands and wives respectively differs according to the expected roles they are supposed to carry out in society. This conundrum of applying the same law differently can be rectified only by bringing about a change in the way people think and not by changing the law and it has to be conceded that the change is happening gradually.

There is one provision in the Hindu Marriage Act also which is blatantly discriminatory against women. The provision being referred to is Section 25 (3) of the Act which deals with permanent alimony and maintenance. It reads, “If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just.” Thus, for the wife unchastity is the criterion for modifying or rescinding the order in her favour while for the husband it is sexual intercourse.

The term “chaste” is difficult to define and can be interpreted differently by different people according to their moral and ethical standards. Sexual intercourse, on the other hand, is something that positively needs to be shown and is difficult to prove. The Section admittedly prescribes different standards for men and women when it comes to a decision with respect to when an order for maintenance can be modified or rescinded. For instance, if a woman is out with a man at midnight, it might amount to being unchaste and the maintenance order might be modified but the situation is different in a man’s case.

Thus, the Hindu Marriage Act, despite being one of the most equal laws, still continues to hold on to archaic notions of chastity and purity of women and making their rights dependent on them.

Conclusion

Hindu law relating to family has evolved over the years and has become a lot more egalitarian than it was in the past and the attempt of this article was definitely not to overlook positive amendments in the law or progressive decisions given by the courts. The aim was to throw light on the things that still need change and that need to be relooked at from the perspective of gender equality, to argue that we cannot sit satisfied with what has been done and to iterate that we need to look forward and recognise what is still unfinished.

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] The matter was debated in the Provisional Parliament between 1948 and 1951 and in the first Parliament of the newly independent India from 1952 to 1955.

[2]Flavia Agnes, Women and Law in India 78 (3d ed. 2006).

[3] See generally Archana Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality 103 (1992); Flavia Agnes, Family Law, Volume 1, Family Laws and Constitutional Claims 20 (2011); Madhu Kishwar, Codified Hindu Law: Myth and Reality 2151 Vol. 29 No. 33 Economic and Political Weekly, August 13, 1994.

[4]Hukum Singh stated in a Parliamentary debate, “It is not the public opinion that has changed but…the government that has changed its attitude…This is not the original bill…The Hindu code has practically been given up by this government.” See Parliamentary Debates, House of the People, 7253-54 Vol V, 1954, Part II.

[5]In Hindu Law, within the Hindu Joint Family there is a smaller unit of persons known as the coparcenary which comprises of the senior most male member and his lineal male descendents up to three immediate generations. The concept of coparcenary is based on the son’s birth right in the joint family property.

[6] Civil Appeal Number 375 of 2007

[7] For example in a Hindu Joint Family consisting of a father and his two children (a son and a daughter), if the father dies there would be notional partition in which the son would get half the joint family property. The father’s half would then devolve to the son and the daughter equally. Thus, while the son would get three-fourth of the property, the daughter would only get one-fourth. See Poonam Pradhan Saxena, Succession Laws and Gender Justice in 286 Redefining Family Law in India: Essays in Honour of B. Sivaramayya (Archana Parashar & Amita Dhanda Eds. 2008).

[8]See Section 6 of Hindu Succession Act, 1955 after the Hindu Succession (Amendment) Act 2005.

[9]Poonam Pradhan Saxena, Supra Note 7 at 288

[10]Id. At 288

[11] This confusion could have been easily done away with by making a provision which provided that the marriage of a daughter would result in a partition with respect to her and she would receive her share in the coparcenary property.

[12]Sections 8 to 13 of the Hindu Succession Act, 1956 give the rules for devolution of property of Hindu males dying intestate while Sections 15 and 16 provide rules for devolution of property of Hindu females dying intestate.

[13]Supra Note 7, pp. 289. The doctrine of reversion has been done away with by the introduction of Section 14 in the Hindu Marriage Act but the essence of the doctrine has been retained by providing separate rules for devolution of property of Hindu females when it is inherited from her parents or husband or in-laws.

[14] This is also clear from the fact that before marriage a woman is referred to as d/o and after marriage she is referred to as w/o. She is never recognised as an autonomous individual.

[15]See Ms. Githa Hariharan and Anr. v. Reserve Bank of India and Anr. (1999) 2 SCC 228.

[16]Section 4 (c) of the Hindu Minority and Guardianship Act defines the term “natural guardian” as meaning any of the guardians mentioned in Section 6 of the same Act.

[17] In Jijabai Vithalrao Gajre v. Pathankhan & Ors 1971 SCR (2) 1, the court held that when the father was not taking any interest in the affairs of the minor daughter and only the mother was looking after the minor daughter’s interest and managing her property, it would be proper to consider the mother as the natural guardian of the minor daughter.

[18]The mother is seen as a better care taker because she is expected to be more loving and caring while the father is presumed to make more rational and reasonable decisions for the welfare of the minor. The reasoning is similar to the arguments made by cultural feminists.

Religious Freedoms and Reforms

~ By Kanu Agarwal

Abstract

The following article discusses the important parameters of State control over Hindu religious and charitable institutions. The first part examines the Constitutional provisions with regard to the Freedom of Religion in India and provides a brief outline of the constitutional jurisprudence surrounding the issue and the major principles emanating from it. The second part analyses the degree and extent of State control of Hindu institutions in the backdrop of development of the doctrine of essentiality. The third part particularly deals with the reformative approach of the State and the Courts. The final part summaries the Constitutional position and makes recommendations for the future.

I. Constitutional Provisions

Article 25 of the Constitution of India (“Constitution”)[2] makes the freedom of conscience and the right to profess, practice and propagate religion subject to public order, morality and health and also to the other provisions of Part III of the Constitution. Article 26 of the Constitution[3], confers on every religious denomination, the right to manage their own affairs in matters of religion, and administer properties as per the law. The Constitution, being a verbose document, weaves a complex fabric between religious freedoms and the State’s  power to regulate them. The playground for the exercise of these freedoms is created between the degree of State regulation and the extent of the fundamental right to religious freedom.

The Constituent Assembly, intentionally and precisely, elevated the freedom of conscience and the freedom of religion to a fundamental right. The expression of these freedoms is not limited to just an inward belief in a set of theological or cultural values, but it extends to the outward expression and the acts done in pursuance of profession, practice and propagation of the beliefs. The Constitution consciously omits to create a wall separating the State and religion, in consonance with the positive brand of secularism established through the constitutional setup.

In terms of the simple legal interpretation of the Articles 25 and 26, it is to be noted that Article 25 is a freedom allocated to each and every citizen of India as well as any person residing within the country. To the contrary, the freedoms for acquisition, establishment, management and administration of religious bodies are enjoyed by the various ‘denominations’ or groups or communities within religious folds. Therefore, the very nature of the right guaranteed within these Articles differs and a harmonious construction of the two would be necessary.

Further, the denominational right enshrined under Article 26 puts Hindu temples at two different footings constitutionally, one, being institutions of public character and the other being specialized denominational institutions. This differentiation is further accentuated through the language of Article 25(2)(b) wherein ‘Hindu religious institutions of a public character’ were characterized under a special proviso. Constitutionally, the obvious language and the nature of ‘public’ Hindu temples, makes them subject to a much greater degree of State control and intervention. The Supreme Court’s approach with regard to denominational right has been inconsistent, wherein the State’s attempts at intervening in the functioning of denominational Temples has been held to be constitutional.

Lastly, while freedom of religion is subject to the other provisions of Part III of the Constitution (as per Article 25), the framers consciously omitted the said proviso from Article 26. The nature of freedoms prescribed within the two Articles is different, as Article 25 extends freedom to a person in the capacity of an individual, whereas Article 26 extends freedom to a community/ denomination. For instance, even if the Jain practice of Santhara[4] is held to be essential to the practice of the religion, it might be subject to the fundamental right of life and personal liberty guaranteed under Article 21, whereas the appointment of religious heads as per religious doctrines of a denomination will not be subject to the principles of non-discrimination enshrined under Articles 14, 15 and 16. Unfortunately, the Indian Courts have consistently treated Articles 25 and 26 at par with the provisions of Part III of the Constitution, overlooking the significance of the unequivocal constitutional omission.[5]

II. Degree of State Control

  1. Essentiality Doctrine

The degree of freedom over religious institutions is couched within the construct of Article 26(b), which provides freedom to every denomination ‘to manage its own affairs in the matters of religion’. The phrase ‘in the matters of religion’ has been interpreted by the Courts in a restrictive and linear fashion, resulting in the restriction of the freedom to manage the affairs of a religious institution. To determine the extent of the religious freedoms, the Supreme Court has expounded the theory of the essentiality, i.e. limiting the religious freedoms to matters essential to the practice of the religion/ denomination.

The birth of this test has been somewhat wrongly attributed to a speech by Dr. Ambedkar in the Constituent Assembly:

The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.[6]

It is to be noted that the above-mentioned excerpt clearly refers to the need to save the secular nature of personal laws and civil rights in the country and does not shed light on the denominational right of religious institutions or the personal affirmative right to free profession of religious practices. Be that as it may, as per the current position of the law, the final arbiter of the division of any activity into religious or secular function would be the Court, wherein it would examine the theological and the cultural basis of such activity within the denomination to ascertain if such function would be essential to the practices of the denomination.

It is to be noted that in some judgments prior to the Shirur Mutt case, the nature of definition of ‘religious practice’ was settled by the tenets of the religion and would not necessarily require a judicial enquiry of the tenets itself. In other jurisdictions, the courts only enquire whether a particular practice is ‘sincerely held’ by its adherent, a question that requires them to go into the adherent’s past behaviour and conduct, but not into the substantive nature of the practice itself. It is to be noted that while the freedom religion can be subject to regulations in most countries, the Indian approach to religious freedoms differs from most modern democracies. In the exercise of the power to regulate, the Indian Courts sit in judgment over the professed views of the adherents of the religion and to determine whether the practice is warranted by the religion or not, essentially carrying out a function which is ostensibly not their core function.[7] The genesis of the American separation of the Church and the State is derived from the Federalist Papers, wherein Madison said that the Constitution of the United States of America had erected a wall demarcating the “City of God” and the “City of Man”. This approach estops the American Courts from taking any approach like the essentiality doctrine to matters concerning the free practice of religion and administration of religious institutions.

The applicability of the essentiality principle to the varied denominations not having a public character is aimed at preserving the distinctive and diverse nature of communities within the Hindu fold. A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would amount to a violation of the right guaranteed under Clause (b) of Article 26[8] and the ‘Basic Structure’ doctrine[9]. Therefore, the legislature cannot take away the right of a denomination to manage their own affairs in matters of religion, whereas the right to acquire, own and administer property, which are not matters of religion could be regulated by valid laws. The logical outcome of this position is that all functions, which are seen to be outside the purview of ‘essential’ religious affairs, are deemed to be secular functions amenable to state control. In contrast, in the United States of America[10] and Australia[11], the freedom of religion was declared in absolute terms, and the courts had to evolve exceptions to that freedom, as opposed to the Indian Constitution, which specifically enshrines limits in the exercise of freedoms under Articles 25 and 26.[12]

The Supreme Court, in the Shirur Mutt case, created special conditions for ‘denominations’ with cogent doctrines of establishment, in line with diversity and the complexity of Hindu institutions. Further, as per Article 26(d), it is the fundamental right of a religious denomination or its adherents to administer their properties in accordance with law; and law, therefore, must leave the right of administration to the religious denomination itself, subject to such restrictions and regulations as it might choose to impose. The Indian Courts ascertain the freedoms exercised by every denomination by a thorough analysis and interpretation of the theology of that particular denomination. This unique and somewhat strange function of the Indian Courts is the central differentiating factor with respect to other jurisdictions. Previously, the Court has also extended the independence of the essential functions to the acts done in pursuance of the said essential functions.[13] For instance, if the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day or that the periodical ceremonies should be performed in a certain way, at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, that would constitute religious practice.[14]

2. Reforms and Essentiality

A recurring theme, which enables the State to make law, is the need for social welfare and reform, provided under Article 25(2)(b). The test of essentiality being of judicial origin, also applies to regulate the constitutionality of reform legislations within the religious and cultural sphere. In the Sardar Syedna case[15], the Court had held that Article 25(2), which allowed the State to pass reform legislation, “is intended to save the validity only of those laws which do not invade the basic and essential practices of religion which are guaranteed by the operative portion of Art. 25(1).” This approach not only rendered an Act enacted for social reform under Article 25(2)(b) unconstitutional but also inhibited reform of the community from within by giving legal sanction to excommunication. Such an approach handicaps the freedom of religion and conscience of a person, at an individual level. To make things worse, the Supreme Court held that mere curtailing of the legal rights of an individual, by excommunication, would not make the Act banning such practice a ‘law for social reform’ under Article 25(2)(b). Justice Sinha, in an admirable dissenting judgment in Sardar Syedna case, held that practices that directly impacted a person’s enjoyment of his civil rights that were guaranteed by law, as the power of excommunication, could not be given constitutional protection. It is to be noted that a writ petition was filed in 1986 for the review of the above case wherein the Supreme Court acknowledged Justice Sinha’s dissent and noted that a review may be permissible. The matter was further complicated as the review petition required an order for review by a bench comprising of 7 (seven) judges. The Supreme Court first settled the issue with regards to the review petition and has subsequently struggled to finally reconsider the matter expeditiously[16]. Recently, the Maharashtra legislature has enacted a law prohibiting social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. The draft bill specifically prohibits excommunication, which brings the Dawoodi Bohra judgment in contention.

Recently, an issue came up before the Supreme Court in the Sabrimala case with regard to the essential religious beliefs, pertaining to the denominational deity in a Temple. It is alleged that the deity is in his celibate phase and the entry of women within the compound during the said period of celibacy would materially impact the essential feature of such denominational temple. The Kerala High Court has previously upheld the said bar of entry of women between the ages of 10 and 50 stating that they did not constitute a “class” or a “section” of Hindus. The protection provided on the ground that women between the ages of 10 and 50 do not constitute a class or section for the purposes of Article 25(2)(b), seems to rather creative, but constitutionally untenable. The Temple texts provide that women between the ages of 10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that they are likely to disturb the “celibacy” of the deity. The freedom of a denominational temple like Sabrimala with regard to the management and administration of its property should be at a higher footing, and provide much more legitimacy to the rather special nature of the rules surrounding the Temple. This elevation of religious freedoms over and above the constitutional parameters would come in direct conflict with the observations in the Adi Saiva case. Therefore, the question that the Courts need to answer must be, whether the said entry of women contravenes the essential feature of celibacy of the deity to such an extent that it would render it completely irrelevant. Further, the Courts need to understand the complex nature of the Temples in Kerala including the other denominational deities like the Attukal Temple and the Chakkulathukavu Temple, both of which provide special status of women and differentiate. The Courts further need to elaborate on the expanse of the Hindu fold and the many counter balancing and overlapping forces acting within the religious construct of the society or denominations. Differentiation on such grounds, considering the complexity of the Temples in the region, may not necessarily lead to systematic discrimination as mentioned in the language of Article 25(2)(b).

The anti-discriminatory ethos of Indian Constitution in the backdrop of the Ambedkar principles of ‘social justice’ prohibited both the State and communities from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to crucial public goods, whether material or symbolic. The provisions of the Constitution specifically provided protection to laws enacted for social reform, to provide the access of religious and civil rights to all classes of citizens, considering that religion plays a central role in public life in India. It has been insightfully noted[17] that the Supreme Court has constituted “an internal level of reform” by holding that certain regressive practices do not constitute “essential” parts of a religion. This important societal and constitutional function denies certain practices constitutional protection, and also provides the Court with the power to re-characterize religion itself and create new social facts through its holdings. The legislature and the Courts, have felt this need for reform in the Hindu fold, even of the ‘essential tenets’ or ‘sincerely held’ beliefs in numerous cases. It may also be argued that there have been certain positive impacts of these measures but the concurrent curtailment of institutional/ denominational Hindu religious freedoms could have been avoided.

III.       Conclusion

The legislations with regard to reforms must be adjudged at the same constitutional footing and the State must, in true Ambedkarian spirit, endure to eradicate the numerous ‘religiously’ or ‘culturally’ sanctioned evils, which limit the exercise of civil rights of the adherents, across all communities, denominations and religions. The imbalance within seemingly secular sectors of State control has been starkly increasing and the ignorance of the State to reform the practices of other faiths is depriving the communities a valuable opportunity for reform and rejuvenation. While the contours of such reforms may represent a stiff challenge to the legislative competence of the State, the lack of political will has been the main impediment in this regard. Therefore, if a sect/ religion or denomination is to be constitutionally tested by the beliefs of that sect/ religion or denomination and not through consistent constitutional principles, the impression of a perceived bias amongst a set of followers is inevitable.

In India, due to the ever-expanding role of the State in the pre 1991 era, the State exerted an immense willingness to meddle in the affairs of Hindu institutions. The slow tinkering and expanding of the term ‘regulate’ to effectively allow control and administration is reminiscent of the expansive State approach within Indian polity in other spheres. The judicial review of essentially religious practices and the interpretation of religious doctrines have made the Courts, the custodian of religion and religious beliefs. This has also resulted in curtailing the extent of religious freedoms between different religions to different extents, which negatives the very nature of the freedoms guaranteed by Articles 25 and 26.

*The author is an advocate at the Supreme Court of India, New Delhi. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

[1] This paper is presented at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research on May 16-18, 2016 at India International Centre, New Delhi.

[2] Article 25: Freedom of conscience and free profession, practice and propagation of religion

“(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion

Explanation II: In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

[3] Article 26: Freedom to manage religious affairs

“Subject to public order, morality and health, every religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.”

[4] The judgment of the Rajasthan High Court in Nikhil Soni v. Union of India & Ors., DBCWP 7414/06, has been stayed and notice has been issued by the Supreme Court in Akhil Bharat Varshiya Digamber Jain Parishad v. Union Of India And Ors., SLP (Civil) CC 15807/2015.

[5] The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 (“Shirur Mutt”); E.R.J. Swami v. State of Tamil Nadu, AIR 1972 SC 1586; Seshammal and Ors. Etc. Etc. v. State of Tamil Nadu, (1972) 2 SCC 11 (“Seshammal”); Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu and Ors., (2016) 2 SCC 725 (“Adi Saiva”).

[6]Speech by Dr. B.R. Ambedkar on 2nd December 1948. Accessed from : http://164.100.47.132/LssNew/constituent/vol7p18.html

[7] Jesse Cantwell v. State of Connecticut, 84 L Ed 1213 : 310 US 296 (1939); and United States v. Ballard, 88 L Ed 1148 : 322 US 78 (1943).

[8] Shirur Mutt supra.

[9] See His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225

[10] See the First Amendment to the Constitution of the United State of America.

[11] See Section 166 of the Australian Constitution.

[12] Nambudripad v. State of Madras, (1955) Mad. 356

[13] Shirur Mutt supra

[14] Ibid

[15] Sardar Syedna Taher Saifuddin Saheb v. Bombay, (1962) Supp. 2 S.C.R. 496

[16] Writ Petition (Civil) 740 / 1986

[17] See Gary Jeffrey Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context, Princeton University Press (2005).

Law is a branch of Dharma

~ By Justice L. Narasimha Reddy  

By and large, not only people in general, but also many in the legal circles, perceive Hindu Law to be the one contained in the Four Enactments brought into existence by the Parliament a few years after independence i.e., the Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and the Hindu Adoption and Maintenance Act, 1956. That is considered to be the personal law of the people, who practice Hinduism. This, however, is not a correct perception.   If one closely analyses the subject, it emerges that the law pertaining to marriage, succession, adoption and maintenance is a small fraction of the Hindu Law that remained in force, till the invaders have brought into existence their own system of laws.  Hindu Law, as it existed then, covered many substantive facets of law, as well as a detailed and perfect procedure of adjudication.  Added to that, the entire edifice of Hindu Law rested upon the foundation of Dharma, in contradistinction to need and expediency, that constitute the basis for the English Law.  Dharma is a very wider concept and law is a small branch of it.  There is no equivalent term for Dharma in English.  In a way, it can be said that Dharma is a distilled form of ancient Indian literary wealth, that includes, the Vedas, the Smritis, the Puranas and the commentaries by the sages and the learned people.  It is such a typical and complex phenomenon that it is not amenable to any precise definition.  Whenever a concept or phenomenon is incapable of being defined, at least one can present it by way of description.  In case of Dharma, however, even description would be either inadequate or incomplete.  In his treatise, Hindu Law and usage, John D. Mayne said, “According to Hindu conception, Law, in the modern sense, was only a branch of Dharma, a word of widest import and not easily rendered into English.”  F.D. Mulla, in “Hindu Law”, observed, “Law, as understood by the Hindu, is a branch of Dharma”

Dharma not only exhorts the people to acquire qualities, such as truthfulness, non-violence, respect to the persons around, and the creation at large, compassion towards the needy, but also to desist from being greedy, dishonesty, unfaithful, etc.  In the Encyclopaedia of Hinduism, it is mentioned: “Down the ages, the word (Dharma) has been used to mean religion, law, duty, religion’s right or duty, code of conduct etc. The well-known Dharmashastras are those authored by the Sages like Gouthama, Bhoudhayana, Apastamba, and Vashista.

All of us are aware that Hinduism is one of the oldest civilisations in the world.  Over the millennia, the Sages and Rishies have presented to the mankind, the knowledge of highest order, even according to the modern standards; in almost all the fields; be it, Chemistry, Alchemy, Medicine, Astrology, Philosophy, Economics, Astronomy, Political Science, Spirituality, Environmental Science, Sculpture, Architecture, etc.  The Sanskrit language in which all these scriptures were written was almost kept out of use, during the alien rule, spread over about 1000 years.  It is only in certain cases that the private agencies preserved the literature and continued learning.  In certain other cases, countries like Germany were benefited by undertaking study of some of the scriptures and the Sanskrit language.  The greatness of the ancient India’s contribution to various fields of study can be illustrated by taking one or two examples.

For the subject of Anatomy, in the undergraduate courses of medicine, almost all over the world, the text book is the one, authored by “Grey”.  The Chapter pertaining to “Plastic Surgery” in that book commences with a sentence, which reads ‘the First Plastic Surgery was conducted by Sushrutha’.  Albert Einstein, the famous Scientist acknowledged that but for the invention of ‘Zero’ in ancient India,
the progress in the modern science would not have been possible.  After conducting a detailed research, one Mr. Emmanuel found that the quadratic equation, whose invention was attributed to Sir Isaac Newton, has, in fact, originated in Kerala.  There are hundreds of such examples.  It is not without reason that the renowned companies such as, Google are celebrating the centenary of Sreenivasa Ramanujam, the Great Mathematician, who has just provided the taste of ancient Mathematics to the western world.

The achievement of ancient India, in the field of law is almost on the same lines.  During the Vedic period, the life of citizens used to be guided by the practices ordained in them.  With the passage of time, the necessity to prepare a code of conduct based on the high values, including those enunciated in Vedas was felt.  Such codified forms came to be known as Smritis.  The first Smriti was handed out to the humanity, by Manu.  Now-a-days, we find certain organisations and individuals exhibiting their utmost contempt towards Sage Manu and his works, in the name of progressive thinking and modern culture.  It is relevant to mention here that during the Mohammedan’s Rule, excepting the fields of Criminal Law and Personal Law, of those who do not practice in Hinduism, Hindu Law continued to be applied in the legal systems.  Similarly, during the British Rule also, principles of Hindu Law were never disregarded.  On the other hand, they were viewed with utmost respect and British Judges, particularly, those in the High Courts in India and Privy Council in England made every effort, to understand and analyse them.  Almost 50% of the judgments of the Privy Council, during the British Rule dealt with the principles of Hindu Law.  Today, we don’t find any parallel to them.  For instance, in Sri Bulusu Gurulingaswami vs. Sri Bulusu Ramalakshmamma, XXVI Indian Appeal (1898 and 1899), the Privy Council dealt with the question as to whether the only son of a couple can be given in adoption.  Lord Hob House took note of all the Smritis and commentaries on the subject and he commenced his discussion by observing, “the most Revered of all the Rishies or Sages is Manu….”

The discussion undertaken by the Privy Council on a question, which may appear in the so-called modern times to be trivial, is indeed astonishing.  Copious reference was made to the Manu Smriti, Dattaka Meemamsa, commentaries by Sages and modern jurists and views of judges in various cases.

“No distress existing, the giver commits a sin on account of the prohibition”.  If then the giver commits a sin, the taker who enables him to do it cannot be free from sin; and if the commission of a sin makes the transaction void in law, there can be no gift and consequently no adoption.  And yet nobody contends for the legal force of this prohibition.  It does not appear that in cases of adoption any inquiry is ever made about the distress of the natural father.”

As regards the law that was being enforced during British Rule, the Bench observed: “…The British rulers of India have in few things been more careful, than in avoiding interference with the religious tenets of the Indian peoples.”

The reason underlying the respect shown to such principles was; in the words of the same learned Judge, “…They (the tenets) provide for the peace and stability of families by imposing limits on attempts to disturb the possession of property and the personal legal status of individuals.” In contrast, in the name of so-called modernism and progressive thinking, we do not hesitate to brand any ancient principle of law or tenet has to retrograde or to condemn it.

The efforts made by the Judges to know the law which is mostly in Sanskrit, can be gauged from the following passage of the same judgment: “Their Lordships have, however, one advantage over their predecessors in these inquiries.  The greater attention paid of late years to the study of Sanskrit has brought with it more translations of the sacred Hindu books, and closer examinations of texts previously translated.  And in the Allahabad case especially, the appellants’ side was argued in the High Court by Mr. Banerjee, who is stated by the Court to be familiar with Sanskrit, and it is the subject of a very elaborate judgment by Knox J., who is a student of Sanskrit, and, as he tells us, has paid special attention to the books of Manu and Vasishtha.”  Many so-called legal luminaries of the modern time would have pitied Justice Knox, for his wasting time in learning Sanskrit and reading books by Manu and Vasishtha.

As mentioned earlier, after Manu, several sages bestowed their attention to the codification of the law.  The prominent among such Smritis are those of Yagyavalkya and Katyayana.  Yagyavalkya himself referred to as many as 20 Sages from whose work, he took assistance.  In addition to the Smritis, treatises like Dattaka Meemamsa, Vyavahara Chandrika, Antakshara Dayabhaga, Vivadha Chintamani, to mention a few, have come into existence.  Broadly, four schools, viz., Mithila School, The Bombay School, the Madras School and the Bengal School represented the Hindu Law, with slight difference as to approach on certain aspects in the respective areas.

The greatness and perfection in approach in these Smritis and other ancient texts on law is in no way comparable to the laws that existed during the subsequent periods.  For instance, in any and every legal system, adjudication is the principal activity and the outcome of the adjudication is the judgment.  To my knowledge there does not exist any precise definition of judgment, either in procedural or in substantive laws, particularly the laws that are in force in India.  In his Dharmakosa,  Sage Vyasa defined the judgment in the following verse:

Purvothare kriyapadam

Pramanam tat pareekshanam

Nigadam smrithi vakyancha

Yada sabhyam Vinischite

Jayapatrabhilekhayet

It means that a judgment should contain the gist of

  1. a) purva, (purva paksha e. plaint),
  2. b) uttare (uttarapaksha i.e. the statement),
  3. c) kriyapadam (issues),
  4. d) pramanam (evidence),
  5. e) tatparikshanam (its analysis),
  6. f) nigadam (argument of an advocate),
  7. g) smriti vakya (relevant provisions of law),
  8. h) sabhaya vinischitam (opinion of the judges),
  9. i) Jayapatraha (Royal seal)

           One cannot even substitute a syllable, to such a perfect definition of an important stage in the adjudication.

Though, people talk of honesty and integrity of judges, day in and day out, we do not find any specific code of conduct in the general law.  In Shukraneethi, a sloka depicts how an adjudication gets adversely effected or ceases to be impartial.  He says,

Pakshapathadhiropasya karananicha panchavye

raga lobha bhaya dvesha vadhinocha rahashrutani.

It means that there are five reasons, on account of which a Judge ceases to be impartial.  They are raga (affection), lobha (Greed), bhaya (fear), dvesha (hatred), vadinocha rahashrutani, (discussing with the party to the proceedings secretly).  Every meticulous aspect regarding the manner in which the proceedings must be conducted in the Court, were covered.

The enunciation of a principle or theorem i.e. sutra is common to all fields of study.  A sutra almost resembles a definition.  Even in modern field of study, we lack the definition of a theorem or principle.  In one of the ancient works, the characteristics of the sutra are enunciated in a sloka which reads:

Alpaksharam Asangdhigdam

Saravath Viswathomukam

Asthobhana anavadhyancha sutram sutro vidhuhu.

According to this, a sutra is the one which is,

  1. a) Alpaksharam (precise), b) Asangdhigdam (unequivocal),
    c) Saravath Viswathomukam (it carries the same meaning everywhere), d) Asthobha (it should not be the result of theft i.e. plagiarism), e) Anavadhyancha (its text or context should not be a prohibited one).

In the field of interpretation Sage Jaimini made substantial contribution through his work on Mimamsa.  For example, he said that if a provision just gives a command, it is ‘Vidhi’ and is binding whereas, if the text proceeds to furnish the reason, or basis for the command, it is ‘Arthavada’ and does not command the same binding force as does the ‘Vidhi’.

What is mentioned above are only miniscule of the treasure of great knowledge.  An eminent Indian jurist like Nani Palkhiwala paid encomiums to rich cultural heritage of ancient India.

For one reason or the other, we deprived not only to ourselves, but also to the rest of the world, the benefit of great ancient works in the field of law, on account of our indifference or ignorance.  There is a general saying that the easiest way to get recognition as an ‘intellectual’ in India, is to denigrate anything which is associated with the ancient Indian culture.  Field of law has no exception.  If an advocate refers to ancient texts in his argument, not only the Judge but also those sitting in the Court would either laugh at him or at least pity him for not being progressive.  On the other hand, an advocate can easily impress the Court by taking the names of Lord Caterpillar or Lord Butterfly in support of his proposition and out of fear of being branded as ignorant, one would not even ask as to whether there existed Judges with those names.

John D. Mayne, the author of the most popular treatise on Hindu Law had appeared in vast number of cases pertaining to Hindu Law in the Privy Council and other superior courts.  In the introduction to the first edition of his treatise written in 1878, he observed,

“I cannot conclude without expressing my painful consciousness of disadvantage under which I have laboured from my ignorance of Sanskrit.  This has made me completely dependant on translated works.  A real satisfactory treatise on Hindu Law would require its author to be equally learned as a lawyer and an Orientalist….  Hitherto, unfortunately those who have possessed the necessary qualifications have wanted either the inclination or the time.  The lawyers have not been Orientalists, and the Orientalists have not been lawyers.”

 One would have expected the situation to improve after independence.  Unfortunately it has deteriorated, so much so, that the law makers, do not have inclination even to look into translations,
let alone, the original works.  We have turned blind eye to our great treasure and the result is that our laws, particularly Hindu Law as it existed now is the result of the knee-jerk reaction of someone without even showing any inclination to know the background of the concept, which is readily tinkered with.  Just as our educational system, which was the most ideal in ancient times has been hijacked and almost defaced by certain vested interests, Hindu Law was also given the roughest if not wildest treatment and was reduced almost to some precepts of convenience.  If Hindu Law in its complete form was a perfect Vehicle with Sophisticated mechanism, what is handed out by the Parliament, after independence, is just four wheels, detached from the Vehicle.  Which the wheels have nothing to propel or drive them, the Engine, chassis and body remained idle for want of wheels.

If one intends to resurrect the glory of ancient Indian Law, the task is commendable, but very difficult and challenging.  Fortunately, for us, there is valuable material available, be it, in Library at Tanjore (Tamil Nadu), or P.B. Kane Library at Pune.  Scholars of high order are also available.  One has only to put them together and get the work done.  However, the challenge in this regard is worth being accepted.
I hope and trust that the outcome of the national seminar on Hindu Law would lead to tangible steps.

[1] It is the text of the key-note address delivered on 16th May, 2016 at the National Seminar on Hindu Jurisprudence jointly organized by Centre for Constitutional and Legal Studies (CCLS), India Foundation and Indian Council of Philosophical Research.

Justice L. Narasimha Reddy is a former Chief Justice of Patna High Court. The views expressed are his own. 

(This article appeared in India Foundation Journal, May-June 2016 issue.)

Climate Change and India’s Traditional Lifestyle and Practices: Potential for Mitigation

~ By Satyendra Tripathi

When the world is on the edge due to the challenge of climate change, it becomes vital for nations to come together to understand its consequences and mitigate it with utmost priority. It is due to this that lifestyles, sustainability, and other factors that contribute to mitigating climate change have attracted a lot of attention in recent times.

Today climate change is acknowledged as one of the greatest challenges facing the global sustainability. The global mean temperatures have already risen by about 10C. Coinciding with the global temperature rise, Indian landmass has witnessed rapid warming in the last three decades like increase in heat waves, increase in precipitation rates. Further, climate data records have suggested an increase in the intensity and frequency of extreme events over India in the last five decades. Several researchers have noted an increasing trend in observed frequency of heavy precipitation events in different parts of India, and a decreasing trend in light rainfall events. A study by Fischer and Knutti concludes that the observed average global warming so far is responsible for three fourth (75%) of the daily heat extremes and 18% of the precipitation extremes. Thus, it is clear that the observed global warming of even 1°C is already impacting the physical environment and production systems in India and in other parts of the World. It is widely agreed by both the science and policy communities that the rise in global temperatures should not be allowed to exceed the dangerous threshold of 2°C, to avoid damage to sustained food production and ecosystem services. Fischer and Knutti further suggest that for a 2°C of warming the fraction of rainfall extremes attributable to human influence increases to a devastating 40% from the present 18%.

In December, 2015, 196 Parties to the United Nations Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement at the 21st Conference of Parties (COP21) in Paris, France. The Paris Agreement adopted the ambitious goal of limiting warming to below 2°C and also, for the first time, agreed to pursue efforts to hold warming at 1.5°C. In line with the Paris Agreement till date 189 countries accounting for about 99% of the global GHG emissions have submitted their climate pledges to UNFCCC. India took a lead in the global effort to limit warming to safe levels by submitting a very ambitious climate pledge to UNFCCC.  India pledged:

  • To reduce the emissions intensity of its GDP by 33 to 35 percent by 2030 from 2005 level
  • To achieve about 40 percent cumulative electric power installed capacity from non-fossil fuel based energy resources by 2030 with the help of transfer of technology and low cost international finance including from Green Climate Fund (GCF).
  • To create an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent through additional forest and tree cover by 2030

India’s climate pledge is in line with India’s long history and traditions of harmonious co-existence between human beings and nature. It is evidence that Indians have traditionally regarded fauna and flora of the globe as ‘part of their family’ and sustainability is part of Indian heritage and manifests itself in lifestyle and traditional practices. Indians represent a culture that calls our planet Mother Earth. Indian traditional knowledge, in fact, relates nature to the Gods, ensuring sustainable conservation practices. The concept of Dharma is pivotal to ancient modes of thinking and of living right from the dawn of human civilization. The very purpose of Dharma is to ensure sustainability of living beings and all those that contribute fundamentally to the cause of sustainability. Its philosophical bonding with nature and society are the guiding principle for harmonious societal awareness and exploration of shared values to strengthen co-existence.

Recent research of world’s top climate change scientists at the Indian Institute of Science, Bangalore and Grantham Institute at Imperial College London clearly demonstrate that culture, tradition and lifestyle choices are strongly linked with climate change mitigation (and adaptation). According to Dr Woods of Imperial College London, “Our analysis clearly highlights that we can meet our 2°C target while maintaining good lifestyles and a prosperous economy – but the FT Climate Calculator tells us that to be successful the world needs to act now and transform the technologies, knowledge base and fuels we use and make smarter use of our land,”. Culture and traditional practices help the in climate change mitigation in the following ways, as simulated by the Global Calculator: –

  1. Life-style choices of:
  • Travel (passenger distance, freight distance, mode, occupancy, car ownership),
  • Homes (building size, temperature and hot water use, lighting and appliances, products lifespan and reuse, recycling), and
  • Diets (calories consumed, quantity of meat, type of meat)

      2. Land-use choices and efficiency:

  • afforestation, reforestation, deforestation and forest degradation, sacred groves, and other forestry related choices
  • land-use efficiency
  1. Demographics
  • total population, population growth rates
  • urban vs. rural population

Global mean temperature has already risen to 0.5-1oC compared to pre-industrial time. This warming already has adversely impact on climate, natural ecosystem, food production and hydrology. Many extreme events in recent past in Europe, Asia, North America and Africa, including the recent floods patterns in Chennai, Bombay, can potentially be linked to climate change. Also, recent heat wave impacts in northern parts of India cannot be ignored.  Therefore, there is a need for serious adaptation even to the ongoing impacts of climate change.

As things stand at present, various adaptation and mitigation measures are not on appropriate paths. Steady warming levels will have severe implications for food production, water resources and climate extremes. Thus, India where more than 700 million people mostly depending on climate sensitive sectors such as agriculture, fishery, forests, livestock etc., will be adversely impacted by climate impact. India will soon need a strategy to build resilience in ecosystems and in food production systems.

At the same time, traditional Indian beliefs and lifestyle can be potential elements could be adopted as one of practices of mitigating climate change. In addition, India should be prepared with enabling policies and institutions to benefit from the Global climate financial mechanism to promote transformation to sustainable energy and climate resilient development.

Satyendra Tripathi is a Research Fellow with India Foundation. The views expressed are his own. 

Young Thinkers Meet-2016

India Foundation is organizing the 5th edition of Young Thinkers Meet 2016 – a two day conclave of young intellectuals. This will be held on the 6th and 7th August 2016 at Patnitop, Jammu and Kashmir. The objective of this conclave is to bring together like-minded young thinkers with a view to brainstorm over various issues of national and international significance.

The theme for this edition is ‘Impacting the National Discourse’. Over the course of two days, the discussions will be held over the following sub-themes:
1) Academic Institutions: Controversies, Challenges & The Way Forward
2) Mainstream Media (MSM): Issues, Articulation & Personalities vis-a-vis the Artof Narrative Building
3) Role of Social Media- Construction & Manipulation of Dominant Narratives
4) Effective Nationalistic Intervention in Literary Area (Songs, Cinema, Theatre, Books etc.)
5) Social Integration and Dalits
For registrations, please contact: mail@indiafoundation.in.

Indian Ocean Conference 2016

The India Foundation in association with S. Rajaratnam School of International Studies (RSIS), Singapore; Bangladesh Institute of International and Strategic Studies (BIISS), Dhaka and Institute of Policy Studies (IPS), Colombo hosted a two day “Indian Ocean Conference 2016” from 1-2 September 2016 at Singapore.

The Conference witnessed a participation of over 300 delegates from 22 countries including ministers, politicians, diplomats, strategic thinkers, academics and media.

Day one of the Conference started with parallel workshop sessions on the three sub-themes of Comity, Commerce and Culture followed by the Inaugural Session and Welcome Dinner. The first parallel workshop on Comity chaired by Ambassador Parthasarathy (India), had a panel of five speakers. The first speaker Ambassador Munshi Faiz Ahmad, Chairman, BIISS in his intervention stated that “India being the great country that it is, should naturally lead the initiative of a dialogue in the Indian Ocean Region with responsibility, taking everyone else along in a fully inclusive effort”. He went on to talk about military security of the region and stressed on the need to move away from rivalry and towards co-operation. He touched upon different aspects of maritime co-operation like the challenges of piracy and trafficking in maritime navigation, the problem of unsecured and closed trade routes, exploitation of resources, dealing with natural disasters and strengthening of SAARC for a prosperous South Asia.

The second speaker Mr Bertil Lintner, renowned Author and Journalist listed four factors that make the Eastern Border the most important one for India. They were: Trade, Energy, National Security (Cross border terrorism and arms smuggling) and geopolitical considerations like the rise of China.  Mr Lintner’s remarks were followed by an intervention by Mr Wang Xiaowei, Director, Center for Peace and Development Studies in which he talked in detail about China’s One Belt One Road initiative.

Dr Nicolas Regaud spoke about the challenges faced by the nations of the region and the need to boost national and regional capacities. He expressed concern about the insufficiency of natural resources, rapid growth of illegal and criminal activity, and the growing dispute between countries over extraction rights. He also appreciated the Heads of Asian Coast guard meeting being held annually since 2004 and termed it to be a useful forum.

Mr Lee Cordner termed Indian Ocean Region to be a region of common risks and shared vulnerabilities. He used cartographic references to highlight the importance of the region in maritime domain, oil and gas security and to mitigate risks.

Wrapping up the session Ambassador Parthasarathy highlighted the fact that 40% of the world’s oil supplies, 60% of world’s oil trade and 80% of Japan’s oil requirement flow through the Indian Ocean. Also, 95% of India’s trade is through Indian Ocean and 80% of India’s requirements come through the same route. He concluded by saying that “Indian Ocean belongs to all of us, it belongs to humanity”.

In the Q&A round that followed, Ambassador Antonio A. Morales, Ambassador of Philippines to Singapore questioned the importance of United Nations Convention on Law of the Sea (UNCLOS) in ensuring maritime security, environmental protection and the steps to be taken to strengthen the rule of law if certain countries choose not to observe/ignore the ruling of the international tribunal. Mr Cordner in his reply commended the work done by UNCLOS and called it a watershed convention. He held the international system to be fundamentally anarchic and said that it was up to the nation states of the world through entities like UN and its agencies and other regional associations to strengthen the rule of law. Dr Regaud agreed with Mr Cordner and called UNCLOS a fundamentally important convention. Amb Faiz pointed out the ambiguities and multiple interpretations of the rulings that existed in the pre-UNCLOS era.

Workshop Session 2: Commerce (Trade)

The workshop session on Commerce (Trade) which was chaired by Ambassador Ashok Kantha (India), and on the panel were: Dr Sanjaya Baru (India), Distinguished Fellow, International Institute of Strategic Studies, Mr Philip Green, High Commissioner of Australia to Singapore, Dr Razeen Sally, Chairman, IPS, Sri Lanka, Dr Pradumna Bickram Rana, Associate Professor and Coordinator of International Political Economy Programme, RSIS and Mr Ravi Velloor, Associate Editor, Global Affairs, The Strait Times.

In his introductory remarks, Amb Kantha highlighted the fact that only 20% of the trade traffic through the Indian Ocean is intra-regional in character and 80% of it is goes to other regions.

Dr Baru spoke about India’s experience as a trading nation, the problem of trade deficit and the fundamental shift in India’s trade direction from the West to the East. He briefly touched upon the movement of people across the region and the cultural linkages amongst the Gujarati Community in East Africa, Tamil community in South-East Asia and Bihari community in Mauritius among others. He also termed the movement of people as an economic phenomenon.

The session in general focussed on the centrality of Indian Ocean to global trade. It was pointed out that the Indian Ocean Region includes the largest energy producers as well as consumers. Yet, there is more wealth that passes through the Indian Ocean than remains. This lack of wealth is an impediment to deepen regional integration and in the fight against the challenges of inequality, poverty and food crisis in the region.   The need to promote blue economy and impart dynamism to IORA-ARC as an international forum was stressed.

All the speakers unanimously felt that intra-regional trade should increase and simultaneously work be done to promote an ecosystem which respects international laws and conventions. Nations of the Indian Ocean region also need to identify the direction their economies should take to ensure   growth. With the rise in intra- regional trade there would be an increase in  job creation, economic opportunities and movement of people. Various speakers also mentioned the persistence of inward looking tendencies related to trade in South Asia. But with the economic rise of India this is set to change. Australia too has invested heavily in its western coast and has recognized the Indo-Pacific region as the region for strategic importance. Speakers also recognized the importance of trade for not only economic well-being but also for global peace.

Workshop Session 3: Commerce (Investment)

The third workshop session was on the theme of Commerce (Investments). The panel comprised of: Mr Ralph L. (Skip) Boyce, President, Boeing Southeast Asia, Mr Manraj Sekhon, CEO and CIO, Fullerton Fund Management, Dr Leslie Teo Eng Sipp, Chief Economist and Director, Economics and Investment Strategy, GIC and Mr N K Singh, Former Member of Parliament, India. The session was chaired by Amb Ong Keng Yong, Executive Deputy Chairman, RSIS, Singapore.

Mr Boyce in his opening remarks of the session called India an obvious partner and shared his aim of being able to quadruple sourcing from India in the next four years. He spoke of the changing investment environment in India in terms of ease of doing business, tax issues, legal obstacles, talent availability and the scale of demand. Mr Boyce while concluding reiterated his commitment of developing a globally competitive aerospace supply chain in the India Ocean region. He also lauded the Prime Minister’s Make in India initiative, and termed it to be a very important part of Boeing’s strategy for India and highlighted the fact that his company’s priorities for the countries of the region were aligned with that of India.

The second speaker Mr Manraj Sekhon described the Indian Ocean Region from an investor’s point of view and said that there was once a time when investors would say “You invest in China because of government’s policies and invest in India in spite of government’s policies”. He elaborated on the demographics of the region and how India was at an advantage when compared to countries of East Asia which were ageing. He also mentioned  the three key challenges that India is facing at the moment, which were: demographic dividend changing into demographic disaster if not dealt with properly, corruption which was  going down but was still a concern and the state of balance sheets  of both the private and public sector banks. He expressed his concerned about the over-leveraging by private banks and need for recapitalisation of public sector banks. While concluding, he lauded the government of India for initiatives like inflation targeting, bankruptcy code, initiation of the process of recapitalisation and the passage of Goods and Service Tax Bill.

Mr N K Singh in his intervention expressed concern over Europe’s struggle to cope with multiple challenges. There were grave uncertainties on how it was going to manage to remain one entity while dealing with the problems of migration. He also pointed out that recovery in the US was exceedingly tentative and while the US may remain an important technology leader and the leader in multiple ways, the European growth engines may or may not be what they have been historically. He listed five ingredients that were driving the Indian state. They were: (a) Redefining the role of the State (b) Macro fundamentals of the Indian Economy (c) Infrastructure – Quality, Cost and Competitiveness (d) new partnerships being sketched between centre and states, and (e) states competing with each other on various indices. He concluded by saying that jobs, education, skills and orderly urbanisation  were going to be the major challenges for the Modi government in this term and the next. However, he also expressed satisfaction about the course of government’s preparation for these challenges.

The fourth speaker of the panel Dr Leslie Teo Eng Sipp highlighted five challenges that the region was facing: Exit from unconventional monetary policy, High level of debt in the region, Lower growth prospects in the OECD countries, Infrastructure investments and Technological disruption. He then elaborated on each of the points individually. He concluded  by saying that technology could actually be a great enabler for most of our countries, technology could solve major infrastructure problems, technology could make one person in one small country influential globally, but how could we use it to benefit our citizens was a huge political and social challenge.

In the Q&A round that followed, Dr Hari Bansh Jha questioned Mr Singh on the way ahead for technological upgradation without hampering the job market; Mr Singh’s reply was that technology should not be seen as a threat but an opportunity and to be able to align new skills with the opportunities that were coming up. Further, there were discussions on India’s labour laws and labour reforms, India’s investment strategy abroad and the introduction of Goods and Service Tax in India.

In his concluding remarks, Ambassador Ong called India to be the anchor of the region and said that “We need India to grow for the region to grow”. He went on to quote Harvard’s Atlas of Economic Complexity report which said that Indian Ocean basin was the hottest spot on the planet where economic growth was expected to be the highest in the coming decade, with a leading role for India.

Workshop Session 4: Culture

The workshop session on Culture was chaired by Dr Patrick French, renowned Writer, Biographer and Historian. In the panel were Dr S Kalyanaraman, Co-Director, Saraswati Research Center, Mr Tissa Jayatilaka, Executive Director of the Sri Lanka Fulbright Commission, Ms Moe Thuzar, Fellow Lead Researcher (Socio-Cultural Affairs), ASEAN studies centre, ISEAS and Mr Kwa Chong Guan, Senior Fellow, RSIS.

The chair Dr French quoted evidences from history to highlight the historical relevance of the region. He was followed by Mr Kwa Chong Guan who described how the Indian Ocean was once part of the ancient maritime Silk Road. He noted that the centres of power and politics have been present from the 1st century onwards on the Indian Subcontinent and Southeast Asia, resulting in the adoption of the Sanskrit language and the formation of a “Sanskrit Cosmopolis”.

Mr Tissa Jayatilaka spoke on the significance of art and culture in shaping the history of the Indian Ocean Region. He said that culture can play a role in the re-imagination of the IOR and went on to talk about the three phases of the history of the region: pre-colonial, colonial and post-colonial. He concluded by proposing that “We should also seek to breathe new life and revitalised energy into institutions such as IOR-ARC and even  SAARC and ASEAN so as to create a new diplomacy based on our history and civilizational bonds, improving connectivity within IOR and rebuilding people to people links which are crucial for our common future prosperity”.

Ms Moe Thuzar focussed her address on the importance of connectivity amongst the countries of the Indian Ocean Region. She highlighted three areas of people-to-people connectivity: Tourism, Education and Culture. During the course of her address she made references to Mekong-India Economic corridor, ASEAN-India engagement, and regional under-exploitation of cultural connections.

Inaugural Session and Welcome Dinner

Delivering the welcome address Mr M J Akbar, Minister of State for External Affairs of India, defined oceans to be the “most powerful and creative force , a gift of nature and a source of prosperity”. Talking about the geographical position of India in the middle of the Indian Ocean, Mr Akbar called India the western frontier of peace and the eastern frontier of war. He concluded by saying that India’s policy objectives were transparent and that India seeks measures that would facilitate the natural flow of peaceful interactions and consequent growth through cooperation.

Addressing the gathering via video link, Minister of External Affairs of India Smt. Sushma Swaraj focussed on the significance of the Ocean in the history of ancient trade routes, cultural linkages and common heritage. She reiterated India’s commitment of working with its littoral neighbours to fully develop the blue economy, and of working with IORA for sustainable growth and development.  Dr Vivian Balakrishnan, Foreign Minister of Singapore spoke about the Indian Ocean being a conduit of cultural exchange and trade historically. He spoke about the common history of colonialism that all the countries of the region had shared and how in the last seventy years shackles of colonialism had been broken. He then went on to talk about the future of the region over fifty years.

In his address, Mr Nitin Gadkari, Minister of Road, Transport and Highways of India, spelled the Modi Government’s policy on port development and revival to link coastal and island territories. He elaborated on the objectives of Sagarmala Project and briefly touched upon the Special purpose Vehicle on maritime projects overseas, India’s coastal shipping agreement with Bangladesh and about developing the Chabahar port in Iran. He concluded by saying “India is committed to use its capabilities and central location in the region to ensure a safe, secure and stable Indian Ocean Region that takes us all to the shore of prosperity”.

Delivering the Inaugural Address of the Conference, Prime Minister of Sri Lanka H.E. Mr Ranil Wickremesinghe spoke about the balance of power shifting towards Asia and the reduction of western dominance in the global markets. He traced this transition in global power to the economic awakening of China and other ASEAN countries. He had also briefly touched upon the cultural diversity of Asia and quoted political scientist Francis Fukuyama in describing the multi polarity of the region. He noted that Indian Ocean had emerged as one of the world’s busiest and most critical trade corridors surpassing the Pacific and Atlantic oceans.

He concluded by proposing the establishment of an Indian Ocean Assembly. “An Assembly which will bring together inter alia Heads of State and Governments, leaders of political parties, officials, academics, intellectuals, non-governmental sectors, cultural and commercial leaders, media representatives and youth groups in order to recommend measures for consideration by the Indian Ocean Region”.

Day 2: Conference Keynote Session

The Conference Keynote Session was chaired by Dr Đặng Đình Quý, Deputy Foreign Minister of Vietnam with Dr S Jaishankar, Foreign Secretary, Government of India delivering the Conference Keynote Address.

In his remarks, Dr Đặng highlighted the strategic importance of the ocean’s geographical location and how the peace, stability and prosperity of the world were dependent on the peace, stability and prosperity of the region. He co-related the development of ASEAN with IOR and expressed optimism about the consolidation and development of relations with IOR as a component in the ASEAN member state’s development strategy. He reaffirmed Vietnam’s pledge to play a role in the maintenance of peace and stability in the region with the countries in IOR.

Dr S Jaishankar in his address said that India supported freedom of navigation and overflight, and unimpeded commerce, based on the principles of international law, as reflected notably in the UNCLOS. He further added “As a State Party to the UNCLOS, India urges all parties to show utmost respect for the UNCLOS, which establishes the international legal order of the seas and oceans”. He then drew the attention of the audience to Project Mausam and said that “The very nomenclature based on the distinctive wind system of the Indian Ocean signifies our interest in the characteristics of the region.  The project promotes archaeological and historical research on cultural, commercial and religious interactions.  It has become a vehicle for knowledge exchanges, networking and publications”.

In the Q&A round that followed both Dr Đặng and Dr Jaishankar answered questions on the role of regional groupings like ASEAN, reconciliation and revival of littoral states of the Indian Ocean Region and the future of IORA.

Plenary 1: Comity

The first plenary session of the Conference on Comity was chaired by Mr Abul Hassan Mahmood Ali, Foreign Minister of Bangladesh; the Keynote address of the session was delivered by Mr Maumoon Abdul Gayoom, Former President of Maldives. The panel of speakers comprised Mr Nobuo Kishi, State Minister of Foreign Affairs of Japan and Datuk Nur Jazlan Mohamed, Deputy Minister of Home Affairs of Malaysia.

Delivering his introductory remarks the Foreign Minister of Bangladesh said that 66% of the world’s oil shipments, 33% of its bulk cargo and 50% of the world’s container traffic passes through the waters of the Indian Ocean, thus making it the most prominent global economic highway. He spoke about the growing interests among countries in developing new infrastructures in the Indian Ocean.

The keynote speaker of the session Mr Maumoon Abdul Gayoom presented Maldives’s perspective and spoke of the island nation’s co-existence with other littoral states of the region. He called the ocean a faithful provider and protector of the nationals of Maldives and how the nation was dependent on the waters of this ocean for trade and sustenance. He expressed his concern about the rapid pace of climate change which had put the life of the nationals of the island nations in danger. He concluded by saying that “Work must be done to ensure domestic stability in our countries and democratic values must be instilled in our societies”.

Mr Nobuo Kishi in his address said that “The key of the stability and prosperity of the international community is the dynamism created by the synergy between the “two continents” ― Asia, which is recording remarkable growth, and Africa, which is full with potentials ― and two free and open seas – the Pacific and the Indian Oceans”. He expressed hope about the full and effective implementation of the Declaration on the Conduct of Parties in the South China Sea (DOC) and the early establishment of a code of conduct in the South China Sea (COC). He reaffirmed Japan’s role in putting up a fight against the challenges of piracy in the region.

Datuk Nur Jazlan Mohamed said that Indian Ocean had played an important role in the formation of his nation ‘Malaysia’ as historically most of the rulers had used these waters to set foot on the land of Malaysia.  He made references to the role of Malaysia and coming together of the littoral nations during times of crisis like the search of missing MH370 or the Tsunami of 2004 which had brought life to a standstill. He reassured that the Indian Ocean would continue to be a factor in the security policies of his nation.

In his concluding remarks Mr Abul Hassan Mahmood Ali, summarised the session in six points. He noted that the centre of gravity had shifted towards Asia and that International Relations were in a state of dynamic transition. Secondly, he said that strategic equations in the Indian Ocean were increasingly becoming complex with major powers competing amongst each other for more prominence and visibility. He then went on to talk about adequately managing the maritime borders to harness the potential of the ocean and the importance of maritime security in enhancing trade and economic cooperation. He concluded by making brief remarks on the issues of climate change, utilization of the oceanic resources and the need to maintain ocean health by striking a balance between conservation, exploitation and utilisation of marine resources.

Plenary 2: Comity

The second plenary on the theme of Comity was chaired by Ambassador Hardeep Singh Puri. The panel of speakers comprised Rear Admiral Sanjay Jasjit Singh, Assistant Chief of Naval Staff, India and Rear Admiral Donald Gabrielson, Commander, Logistics Group Western Pacific, USA.

Delivering the chair’s address Ambassador Puri said that climate change was a serious threat to existence. He advocated greater collaboration in trade, tourism, infrastructure, marine science and technology and protection of marine environment for the overall development of blue economy. He called for concerted actions and greater collaboration to fight climate change. He called IORA an important instrument in pursuing our vision of a sustainable and prosperous future of the region.

In his presentation, Rear Admiral Singh said that this ocean as a whole had been a benign medium which had fostered cultural, commercial, linguistic and religious linkages and progress. The region was also the prime facilitator of regional economic growth and prosperity. He then went on to elaborate on Prime Minister Modi’s vision behind project SAGAR and concluded by calling the 21st century to be the century of seas.

In his remarks Rear Admiral Gabrielson spoke about the impact of climate change on the region and its impact thereafter. He went on to talk about the significance of Naval Cooperation exercises with reference to national and international security and the need for the littoral nations of the region to work together. He also spoke on the importance of the stability of the Indo-Pacific region and the vitality of the safety of sea lanes for the USA.

In the Q&A round that followed, both speakers answered questions on the Indian Ocean tsunami of 2004 and on the code of conduct of the navies of the region.

Plenary 3: Commerce 

The third session of the day was on the theme of Commerce and was chaired by Mr M J Akbar, Minister of State for External Affairs of India accompanied by a panel of speakers comprising Dr Hung-Mao Tien, Chairman of the Board, Institute for National Policy Research of Taiwan, Ms Nisha Biswal, Assistant Secretary of State for South and Central Asia, US Department of State and Mr Baijayant ‘Jay’ Panda, Member of Parliament of India.

In his opening remarks, Mr Akbar touched upon the historical aspects of trade of the Indian Ocean Region. Taking the cue further, Dr Tien spoke on the trade and security related aspects of the Indian Ocean Region.

In her intervention, Ms Biswal stated that the United States supported greater economic connectivity in the Indian Ocean Region not only in terms of its commercial interests but also because the United States was aware that prosperity was linked to security and stability. She further spoke on the importance of economic connectivity in determining the region’s success and expressed hope that the Indo-Pacific Economic Corridor would be a success. She concluded by saying that “We’ll continue to strengthen and expand our work to promote regional connectivity in the Indo-Pacific, and we believe that it can create fair, broad, and sustainable growth, underpinning the region’s prosperity, security and stability”.

Delivering his address Mr Jay Panda said that re-engagement with Indian Ocean Region was necessary for India to rise from being a low-middle income country to a middle income country. He further spoke on the improving indices in terms of ease of doing business, competitiveness, innovation and FDI. Terming the passage of the GST Bill to be bigger than the 1991 reforms, he concluded by saying that “India will work to ensure a safe, secure and stable Indian Ocean Region that delivers us all to the shores of prosperity and India will help strengthen regional mechanisms in combating terrorism, piracy and respond to natural disasters”.

Plenary 4 –Culture

The final plenary of IOC 2016 was on the theme of Culture and was chaired by Shri Lokesh Chandra, Chairman, Indian Council for Cultural Relations. The panel saw participation from 5 countries in the region with Mr Vira Rojpojchanarat (Hon’ble Minister for Culture, Thailand) delivering the Keynote Address. Mr S B Navinna (Minister of Internal Affairs, Wayamba Development and Cultural Affairs, Sri Lanka), Dr. Shashi Tharoor (Former Minister of State, External Affairs, India), Mr Santaram Baboo (Minister of Arts and Culture, Mauritius) and Mr A. Kohilan Pillay (Former Deputy Foreign Minister, Malaysia) were the speakers for the session.

Mr R Vira highlighted India’s linguistic and cultural contribution to Southeast Asian people. Through examples from Buddhist art, interpretation of the Ramayana, cuisine, costumes, commerce and royal ceremonies he explained how Indic philosophy, beliefs and religions (especially Buddhism and Hinduism) had become the basis of many Southeast Asian cultural expressions. He emphasized that “Indianisation process” in Southeast Asia was not through force, imposition, or colonisation.  Rather, ‘Indian influences’ offered inspirations to the local population  and were thus selected and adapted to suit the local contexts of pre-existing and well-developed cultural bases in the sub-region. He ended by reaffirming his commitment to strengthen and further enhance cultural relations with India and celebrate the shared heritage.

Dr. Tharoor reiterated the role of individual traders, travellers and teachers in exporting Indian-ness to South-east Asia and importing South-east Asian culture into India throughout colonial times. Long before modern governments initiated the “Look East” policy, Dr. Tharoor explained that Indian peninsular kingdoms treated Simhapura (modern-day Singapore) with special attention given its strategic location on India-China trade route. He underlined that India has become far less important to the countries that still bear the stamp of “Indic” influence. He called for pouring far more resources into India’s cultural diplomacy, to project the richness of our composite culture into lands that already have a predisposition for it. Quoting Joseph Nye, he said that in the information age the side which has the better story wins and he underlined that India must remain the “land of the better story.”

Mr Baboo said that a common oceanic culture was created in Indian Ocean Region through transnational deployment of human beings across the region from India. The cultural component of the good traded by merchants was value-addition as well as profit-making and the role of the merchant as cultural broker enabled engagement and plurality. He gave several examples of tangible and intangible cultural heritage from Mauritius and mentioned that his government was keen to have Bhojpuri Geet Gawai on list of UNESCO’s Intangible Cultural Heritage of Humanity. He also highlighted several initiatives his ministry was taking to improve the economic well-being of artists and creative workers in Mauritius. Finally, he said that Indian Ocean needed a geo-cultural strategy that could integrate culture with development to improve the quality of lives of people.

Mr Navinna spoke about the importance of platforms like IOC to educated Indian Ocean countries about each other’s cultural heritage and to use this knowledge to create a shared identity for the region. He highlighted that Indian Ocean has been a treasure house of tangible and intangible cultural heritage since time immemorial which attracted foreigners. Culture informs trade and strategic outlook of countries and it was important that culture gets centre-stage once again to promote regional well-being. He ended by saying that the primary challenge for people in this region was to safeguard their unique cultural traits while opening up to the world.

Mr Pillay started by reminding the audience that South Asia got a head-start because it was home to one of the oldest civilisations in the world. Hinduism and Buddhism created a common linkage in the region to promote trading and cultural exchange. While Western colonial powers brought development to this region, they also gave us their philosophy and culture. He then spoke about the deep bilateral relations between Malaysia and India. Culture has played an important role in cementing this relationship with PM Modi inaugurating the Torana Gate in Kuala Lumpur’s Little India project. The world, according to Mr Pillay, would be a more peaceful place if every nation could leverage its soft power to find a common ground.

In his Chairman remarks, Prof. Lokesh Chandra narrated the influence of Indian culture through its export of cotton to Roman Empire. He said that there were goods (which were also cultural artefacts) that were India’s contribution to global culture: cotton, sugar and vegetable oil. The Indian Ocean  had inherited cultural institutions from all parts of the world including Europe in the last two  centuries and so sharing of ideas was intrinsic to people and societies in the region . The energization of Indian Ocean region started with the whole process of civilisation, acculturation, commercialisation, creation of languages and scripts. Indian Ocean Region provides a template for how other regions of the world would also be shaped in the future to create a major human revolution.

Valedictory Session

The Valedictory Session of the Conference was chaired by former Foreign Secretary of India Amb Kanwal Sibal with the Valedictory Address being delivered by His Holiness Sri Sri Ravi Shankar, Founder, Art of Living Foundation.

Delivering the Valedictory Address of the 2-Day Conference, H.H. Sri Sri Ravishankar appreciated the idea of confluence of Culture and Commerce at this point in time when both of them were moving in opposite directions. He said that while our Culture was moving eastwards, commerce was towards the west. He highlighted the importance of ‘education of peace’ for a prosperous and happy world and further termed the Indian Ocean Region to be an example of culture of peace.  He further went on to talk about the significance of dialogue in being able to reconcile the existing situation of turmoil. He concluded by expressing hope that there would be a wave of happiness in the region as the ultimate goal of Comity, Commerce and Culture was to achieve happiness.

To download the photos of the Conference, please click here.

India – USA relations at a Cusp: Will they seize the moment?

~ By Shakti Sinha

Most political commentators, on the eve of and immediately after Narendra Modi’s assumption of office as Prime Minister were convinced that India-US ties would suffer. The key assumption was that the US’ denial of visa to Mr Modi in 2005, and refusal to engage with him almost till the last, would weigh heavily on him. This view was not limited to Indians only but quite widespread globally. For example, on the eve of Modi’s imminent victory, the hard-line Chinese Communist party outlet Global Times prophesised that the West, which had got used to a weak central government in India, was ‘afraid that a strongman like Vladimir Putin will make India really strong and build the country into a challenger to the West economically and politically.’ Two years down the road as Modi travels to the US for what would be the last State Visit of the Obama presidency, critics attack Modi as abandoning India’s non-alignment and ‘strategic autonomy’ and of becoming a junior partner in efforts to confront China. If the earlier fears, and hopes, of Indo-US relations nose-diving were completely misplaced, the criticism of India becoming anybody’s junior partner are equally off the mark.

A close study of how relations between India and the USA, what Denis Kux in the context of the Cold War termed ‘estranged democracies’ have lately evolved would explain why commentators and critics are so often caught flat-footed. A mature country’s policies are not driven by emotions or personal idiosyncrasies – it would be extremely absurd that a staunch believer in India’s destiny as Modi is would let the treatment, however unfair, given to him personally dictate how he as the Prime Minister of a potential super-power would interact with the US. What a country perceives its interests to be guides its policies and behaviour. Modi’s entire campaign was about accelerating India’s national development and harnessing the potential of the Indian people so that the country would take its rightful place on the global high table. The second point to note is that interests do change with time, and external developments also impact on policy formulation. It is this placing of a country’s interests in a changing external environment that determines how a country responds to a given situation.

Since the 1980s, India was attempting to re-set its relations with the US, with varying success. At different times, Prime Ministers including Rajiv Gandhi, Narasimha Rao, Vajpayee and Manmohan Singh and US Presidents Reagan, Clinton and Obama brought new thinking and forward movement; however the momentum could not be sustained and had hit a plateau since 2009, with the Devyani Khobargade episode representing a nadir.  There was general disappointment that the potential that a partnership between the two countries promised would remain a ‘promise’ only. It is not easy for countries to move away from historically-held positions, with bureaucracies particularly wary of straying from the fixed path. It must also be remembered that the generation of the 1960’s-70’s came of age in an India that was desperately poor, dependent of food aid and deeply suspicious of the world which they he

India-US Relations: The IPR conundrum

~ By N K Singh

Broadly speaking, Intellectual Property Rights (IPR) refers to “the general term for the assignment of property rights through patents, copyrights and trademarks. These property rights allow the holder to exercise a monopoly on the use of the item for a specified period” (OECD). There are varied interpretations but the key components need to harmonize the incentive for innovation, exploiting frontiers of knowledge with the need to harness these applications for the wider benefit of users, particularly in enhancing human welfare. The broad features of this harmonizing process are embedded in the WTO agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).

India and the USA are two of the largest democracies in the world.  As a result, the shared values of democracy have contributed to strong bilateral relations between the two countries. The bilateral Global Strategic Partnership between the countries got a boost through the India-US Delhi Declaration of Friendship released in January 2015. The declaration states that each step taken to strengthen bilateral ties shall shape international security along with regional and global peace. Further, India’s Act East Policy and USA’s Pivot to Asia Policy together provide immense opportunities for both countries as well as Asia-Pacific countries to strengthen regional ties. Therefore, there exists immense scope and ground for further mutual co-operation and stronger bilateral ties between India and the USA.

The Indo-US relationship has undergone tectonic shifts, both in deepening and diversifying its engagements. This is reflected in the significantly higher levels of trade flows (bilateral trade between India and USA stands at around $100 billion), direct foreign investment, collaboration in the field of intellectual attainments between educational institutions, Research & Development, improvements in competitiveness of manufacturing and enhancing agricultural outcomes. The US leadership in the cutting-edge of knowledge and innovation has unique attributes. In recent years, the strategic partnership between India and the US has broadened from defence, collaboration, purchases and partnerships in multiple ways. It is the endeavour of the Modi government to deepen this relationship and ameliorate persistent and subsisting constraints. One area which the US perceives as a continued dampener, if not an irritation, are issues connected with protection of IPR.

In the area of Intellectual Property Rights (IPR), both India and the United States are compliant with the WTO TRIPS Agreement. India amended its Indian Patents Act 1970, in order to better align its laws in line with the TRIPS Agreement. The most important amendment related to the introduction of product patents for 20 years, including the pharmaceutical products. On the other hand, the United States also amended its Patent Act in several respects for compliance with its obligations under TRIPS. The most important among them related to determining the first to invent in priority disputes.

Despite the compliance of their individual patent laws with the TRIPS rules, differences arise on account of their differing views on the approach to IPR protection. In 2014, India remained on the Priority Watch List of the “Special 301” annual report released by the office of the US Trade Representative (USTR). Inadequate IPR protection and enforcement in several areas, including pharmaceuticals, IT and publishing, were alleged as the reasons for this. In a development that disappointed India, even in its 2015 Special 301 Report, the US once again put India on the ‘Priority Watch List’. According to the USTR, India and China are major sources of counterfeit pharmaceuticals shipped to the US. Its 2014 report alleged that up to 20% of the drugs sold in the Indian market are counterfeit, putting patient health and safety at high risk. As India is one of the largest sources of generic drugs globally (exporting pharma products worth $15 billion annually to over 200 countries), such allegations could adversely affect the country’s image globally.  The report highlighted issues with India’s patent regime, trade secrets protection, digital and physical copyright piracy as well as IPR protection. To address these issues, the USTR also announced plans to undertake “out-of-cycle” review of India in 2014.[1] However, the report also acknowledged significant improvements in India’s IPR legal framework and enforcement system. Further, despite having been put on the priority list India was not designated a priority watch country. Being declared a priority watch country could have propelled penal action against India. On the other hand, the 2015 report has noted India’s recent conscious efforts to create new channels of engagement. It expects these efforts to bring about “substantive and measurable improvements” in the country’s IPR regime in order to benefit multiple benefits for creative and innovative industries.

Following the first amendment of its patent law in 2005, India reintroduced product patents for pharmaceuticals, food and chemicals. Patent disputes between India and the United States are most pronounced in the Pharmaceuticals sector.  From 2012 onwards, India has either denied or revoked patents for certain foreign drugs which failed to meet its “enhanced efficiency” requirement for patentability. As per India, this requirement is crucial for protecting against the companies that seek to extend the life of their patents by making minor modifications of their patented products to (called “evergreening”). In addition to this, compulsory licenses for pharmaceuticals, patented products and other products have been either issued or promoted (under its National Manufacturing Policy) by Indian government. The United States, on the other hand, believes that the requirement of “enhanced efficiency” is likely to have the effect of limiting the “patentability of potentially beneficial innovations…”. This could include drugs with “fewer side effects, decreased toxicity, improved delivery systems, or temperature or storage stability.”  Section 3(d) of India’s Patent Law (which denies patents for incremental innovations to avoid ‘ever-greening of patents) is thus a contentious bilateral IPR issue.

In 2012, India’s patent office allowed Hyderabad-based Natco Pharma to make generic version of German pharmaceutical company Bayer’s cancer drug Nexavar. Bayer lost its appeal in the Supreme Court in December in 2013. Also, in the same year, the Supreme Court denied a patent to Swiss MNC Novartis for its cancer drug Glivec. It is worth noting here that in an editorial, the Boston Globe found the Supreme Court correct in being skeptical of the “evergreening” of the patent. It went so far as to suggest that the US needs to tighten its rules concerning patenting changes to drugs. Another US drug giant, Pfizer, is also involved in patent-related disputes in India.

Apart from pharmaceuticals, other areas of dispute relate to copyright violations in publishing and cinema and software piracy. A report by Business Software Alliance (BSA) estimates that India’s piracy level stood at 60%, as the country recorded installation of $2.9 billion worth of unlicensed software in 2013. The revenues of companies get adversely affected as a result of such volumes of piracy. These issues have been discussed several times between the two countries. The Pharmaceutical Research and Manufacturers of America (PhRMA) has repeatedly claimed that India’s IPR laws do not comply with TRIPS Agreement. However, India repeatedly and rightly asserted that it is TRIPS compliant.

India has highlighted the fact that several MNCs operational in the country have been found to be guilty of ‘patent squatting’. Consequently, they refrain from marketing patented drugs and deny access of patents to life saving drugs. This is detrimental to the interests of consumers and adverse impact on their health and social well being. Moreover, data on patents granted in several fields (including pharmaceuticals) between January 2005 and October 2014 reveals that 82% of patents were granted to foreign companies. This belies the argument that Indian patent regime discriminates against foreign companies.

Another issue raised by the US concerns a trend in India towards localization barriers to trade and indigenous innovation policies. India’s National Manufacturing Policy 2011 called for increased local content requirements in government procurement in certain sectors. These sectors included information and communications technology and clean energy. Based on this policy is India’s Preferential Market Access mandate, which imposes local content requirements for government procurement related to electronic products. Another localization measure includes the Indian National Security Council proposal (2014) to store electronic communications between users in India locally on Indian servers. These measures have been a source of immense friction between the US and India.

In 2013, the United States challenged India’s local content requirements and government subsidies for solar panel production by requesting formal consultations in the WTO. It contented that these measures greatly restricted US market access in India. India has also repeatedly raised the issue of copyright piracy and misappropriation of traditional knowledge with the US.

A global index that maps the IP environment in 30 countries worldwide, namely the GIPC Index, India ranked 29 amongst all 30 countries in 2015. However, there has been an improvement in the overall score relative to the previous editions. According to Global IP Center (GIPC), the Indian IP system has the following strengths:

  • Basic IP framework introduced in mid-2000s, including 20-year patent protection
  • Ex-officio powers introduced in 2007 for the deputy and assistant commissioners of customs

In addition, GIPC cites the key areas of weakness of India’s IP system as:

  • Regulatory data protection not available
  • Patent term extension not available
  • Use of compulsory and non-compulsory licensing for commercial and non-emergency situations
  • Limited Digital Rights Management (DRM) legislation
  • High levels of software piracy, music piracy, and counterfeit goods
  • Poor application and enforcement of civil remedies and criminal penalties
  • No civil statutory damages available for copyright infringement
  • Not a contracting party to any of the major international treaties referenced in the GIPC Index.

It is worth noting here that this index has been largely developed by the US Chamber of Commerce, with significant inherent biases which overlook the strengths of the Indian system and the systemic efforts being made to further improve the IP regime as well as perceptions connected with our laws.

There is no doubt, that there are issues on which further work needs to be undertaken but there is no doubt that our IPR regime is fully compliant and consistent with the international standards and obligations under the WTO framework. According to a senior Indian official, “…our laws are drafted in a way so as to protect both our consumer and industry’s interest. The new IPR policy that we are coming out with will take care of any anomalies or vagueness in our existing regime and make it tight and also fast-track clearances of patent applications.”

The IPR issues between India and the United States have been identified as most crucial for their bilateral trade relations. Accordingly, several discussions and dialogues have been organized on this, over the years. Under the Trade Policy Forum (TPF), India and the US have set up a high-level working group on Intellectual Property. This body has emerged as the principal trade dialogue body between the two countries. The five areas covered under the forum primarily comprise of the following:  Agriculture, Investment, Innovation and Creativity, Services and Tariff and Non-Tariff Barriers.

Underscoring its commitment to making its National IPR policy more internationally aligned, the Indian government is working on a draft National IPR Policy (2014). The policy seeks to “harness the full benefits of creation and innovation in the larger interest of society and citizens…The policy will aim to foster predictability, clarity and transparency in the entire IP regime in order to provide a secure and stable climate for stimulating inventions and creations, and augmenting research, trade, technology transfer and investment.”

In addition to this policy measure, the Indian government has already constituted an IPR think tank under the auspices of the Department of Industrial Policy & Promotion (DIPP). This body oversees the formulation of a National IPR Policy through stakeholder consultation. Also, a joint committee has been set up between India and the US to discuss and resolve key IPR issues.

India recognizes the need for a policy aligned with global standards, as has been re-iterated by Prime Minister Narendra Modi, “India should align its IPR laws with global standards”. At the same time, the integrated policy also needs to protect special strengths of the country. Efforts in this direction have already been initiated in the past. These include:

  • Trademark law brought at par with international practices- For this the Trade and Merchandise Marks Act 1958 was replaced by the Trade Marks Act 1999.
  • Protection to Geographical Indications provided- This was done through enactment of the Geographical Indications of Goods (Registration and Protection) Act 1999.
  • Copyright law modified- The law was amended in 2012 to make Indian copyright law compliant with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty.
  • Patent law more aligned with TRIPS

The country and the present Government’s will to bring greater harmony in the US-India bilateral relations is strong. This has been indicated on various fronts by the several joint dialogues and co-operation forums organized towards this objective, especially in the last year and a half. The IPR issue, being one of the key strains on the evolving bilateral ties, has been assigned high priority by India. India’s focus on IPR and related issues is reflected in the following statement made by President Pranab Mukherjee on May 11, 2013: “Innovation is increasingly recognized as the currency of the future…India’s innovation bottom line is not very encouraging as the number of patent applications filed annually in leading countries like US and China is roughly 12 times more than that of India…We should step up our expenditure on research to pursue innovation in a big way. The private sector should also increase their share of spending to levels prevalent in countries such as Japan, US and South Korea.”

There is no doubt that given the renewed emphasis on economic growth, Make in India, Start-up India and multiple other policy changes, we need to:

  • Improve our domain knowledge, particularly negotiating skills and deepening the training and understanding of India’s personnel on IPR related issues. Unfortunately, pedagogic skills and university curriculum need to be broadened to include IPR related issues as part of the teaching program. The number of domain experts and lawyers on IPR related issues is limited. However, inarguably this issue will be significant as India aligns itself even more with the changing norms of globalisation. These problems will become even more complex, as in addition to multilateral institutions there will be pressure from Preferential Trading partners. Therefore, we must equip and prepare ourselves for these evolving trends.
  • The total number of filing of patent applications by individuals, institutions and companies remain rather small. The DIPP pointed out that “Even though there are improvements in the number of total filings by Indians, still it is fact that filing of patent applications by individuals by Indians are just around 20 per cent which is in sharp contrast with many developed countries, despite our country having a vast pool of scientists and technologists and being worldwide recognised as a hub for research….We lack in creation of sufficient IP based knowledge assets…. The low patent portfolio of the country is seen as a stumbling block for achieving competitive edge in the domestic as well as global markets.” Creating awareness, deepening domain knowledge and improving the filing of patents is an area where we need to redouble our efforts. Patent filing and acceptance need much higher priority than ever before.

The dialogue on IPR between India and the US is an ongoing one. Both sides need to appreciate each other’s point of view. There are no quick fixes. India cannot accept discriminatory and unfair imputations, nor act in disregard of its overriding national interests. Ameliorating the IPR irritants is an aspirational goal but must be consistent with India’s over-riding national interests and priorities. Deepening the engagement between India and the US will help dispel misunderstanding and secure acceptance of what we genuinely believe is both responsible and reasonable.

The author is a former Member of Parliament, Rajya Sabha.

(This article appeared in India Foundation Journal, January-April 2016 issue.)

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