The HINDU Notes – 11th October 2018 - VISION

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Thursday, October 11, 2018

The HINDU Notes – 11th October 2018

📰 How was decision on Rafale made, asks SC

How was decision on Rafale made, asks SC
Bench seeks details in a sealed envelope by October 29

•The Supreme Court on Wednesday asked the Centre to submit details of the decision-making process in the Rafale deal with France in a sealed envelope by October 29. A Bench headed by Chief Justice Ranjan Gogoi, however, clarified that it was not asking for information on the price of the fighter jets and technical particulars.

Issue of pricing

•“We are not on the issue of pricing and suitability of the Rafale jets but only on the decision-making process,” the Bench, also comprising Justices S.K. Kaul and K.M. Joseph, said.

•The Supreme Court, which was hearing various petitions seeking an investigation into the controversial fighter jet deal, also said that it was not issuing any formal notice to the Centre.

•Attorney General K.K. Venugopal opposed the petitions, saying that they were politically motivated and should be dismissed. Mr. Venugopal stressed that the details of the deal cannot be shown to anybody in the interest of national security and other issues related to the defence procurement process.

Twin-engine plane

•Rafale is a twin-engine medium multi-role combat aircraft (MMRCA) manufactured by Dassault Aviation, a French firm.

•Advocate M.L. Sharma, one of the petitioners, has sought a stay on the deal. Terming it as an “outcome of corruption”, Mr. Sharma called for quashing of the deal to purchase 36 Rafale fighter jets.

•Another petitioner Vineet Dhanda, also a lawyer, expressed satisfaction at the Supreme Court’s order. “In a PIL (Public Interest Litigation) petition, my role is to bring an issue to the notice of the court.

•The court has perhaps also taken note of my plea regarding submission of documents in a sealed envelope. After it goes through the documents, I am sure, the truth will come out,” Mr. Dhanda said.

📰 Next steps after the 377 judgment

It is time that marital rape is criminalised 

•The Supreme Court’s verdict on Section 377 should be celebrated for ejecting an ugly Victorian norm from the Indian criminal justice system. The landmark decision breaks new ground by removing restrictions that made consensual sexual relations between members of the same sex and the transgender population a crime. The judgment of the Supreme Court will, however, likely have unintended negative consequences for one group that has used Section 377 to protect itself from sexual violence — women.

What data show

•While Section 377 has indeed been used as a tool to vilify and arbitrarily punish members of the LGBTQ community, it may be surprising for most to learn that an overwhelming majority of those who utilise the section at police stations are abused and physically tormented married women. Utilising new data as well as research conducted at police stations across Bihar, Uttar Pradesh, and Haryana, we find that female complainants invoked most cases of Section 377 in the context of Section 498A (wherein the husband or his relative subjects a wife to cruelty, often within the framework of harassing her for additional dowry post-marriage). Nirvikar Jassal’s analysis found that for every hundred Section 377 cases, more than half are filed by women in the context of Section 498A.

•Incidentally, Section 498A was diluted by the Supreme Court last year, making it more difficult for women to utilise the one law that had some teeth in deterring husbands from causing harm to their wives. In the Indian criminal justice system, Section 498A has a connotation as a “minor” gendered crime. This is partly why the Supreme Court suggested that first information reports should not be registered immediately after such a case comes before a police officer. The court mandated that no arrests or coercive action based on the law should be carried out until “family welfare committees” had looked into a case under Section 498A, and reconciliation centres had made an effort to resolve the couple’s differences. In other words, woman and spouse would be “counselled” before the case was handled by the justice system.

•However, most dowry harassment cases are anything but “minor” crimes, and invariably involve the vilest and most degrading forms of physical abuse that the legalese of Section 498A is not able to capture on its own. The legal problem is that India, as in large parts of West Asia and Africa, does not recognise marital rape as a crime.

In POCSO too

•This is where Section 377 comes in. Women who register spousal abuse, especially in the form of Section 498A, often do so as a case of last resort. As we found, in extreme circumstances, women encourage police officers to register an additional case of Section 377 against their husbands. They do this to to elevate the “heinousness” of Section 498A, i.e., to signal to the police that their abuse is not simply “cruelty” but also one of sexual abuse. Section 498A has the lowest conviction rate of any law in India, and by tacking on Section 377, women are potentially able to increase the likelihood of the husband being punished. In a legal context in which marital rape is not recognised, Section 377 emerges as a tool for married women to highlight the “unnatural” abuse they face. Interestingly, the media in Kerala have found that the use of Section 377 is often added to the Protection of Children from Sexual Offences (POCSO) Act to increase POCSO’s stringency. We too have found such evidence.

•In its recent judgment, the Supreme Court appears to have been conscious of the fact that Section 377 has been used to protect women but implied that as Section 375 (rape) already criminalises non-consensual acts, Section 377 is redundant when applied to women. The court also implied that Section 377 was obsolete because the Criminal Law (Amendment) Act, 2013 broadened the scope of Section 375 to include non-penile-vaginal penetration, “thereby plugging important gaps in the law governing sexual violence in India”.

•However, this is not entirely accurate. There remains a significant gap. An exemption in Section 375 says, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This is why police officers have to pin Section 377 to many dowry harassment cases that involve sexual violence because those registering a case would not be able to utilise Section 375 if the violation was carried out by the husband.

•While Section 377 will now apply to minors and in cases of bestiality, it is unclear whether abused married women will be able to use the law in quite the same way as they did before.

•More importantly, they really should not have to. If physically abused by their husbands, wives should be able to register a case without having to use the circuitous paths of employing laws with anachronistic language when they are essentially being raped. A far more effective and progressive strategy would be for the state to now criminalise marital rape. This could be done by passing a new law or merely removing the exemption in Section 375.

•In its judgment on Section 377, the Supreme Court stated, “The constitutional courts have to recognize that the constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the constitutional courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality.”

•We fully agree with this sentiment and urge both the political class and the court to give married women full restitution of their rights under the Constitution by making marital rape a heinous crime.

•Pradeep Chhibber is a Professor of Political Science at UC Berkeley. Nirvikar Jassal is a doctoral candidate at UC Berkeley and a 2018-19 Jennings Randolph Fellow with the U.S. Institute of Peace

📰 The power of non-alignment

There is space to resurrect the old movement as a soft balancing mechanism against powerful states

•The Non-Aligned Movement (NAM) and its precursor, the Bandung Afro-Asian conference in 1955, were examples of soft balancing by weaker states towards great powers engaged in intense rivalry and conflict. As they had little material ability to constrain superpower conflict and arms build-ups, the newly emerging states under the leadership of India’s Jawaharlal Nehru, Egypt’s Gamal Abdel Nasser and Indonesia’s Sukarno, and later joined by Yugoslavia’s Josip Broz Tito, adopted a soft balancing strategy aimed at challenging the superpower excesses in a normative manner, hoping for preventing the global order from sliding into war.

•The founders of the NAM, if alive today, could have taken solace in the fact that in the long run some of their goals were achieved due to a radical change in the policies of the Soviet Union under Mikhail Gorbachev.

Understanding a movement

•The NAM is often not given credit for what it deserves, because by the 1970s, some of the key players, including India, began to lose interest in the movement as they formed coalitions with one or the other superpower to wage their conflicts with their neighbours. It is also not theorised by scholars properly. The Western countries often portrayed non-alignment as pro-Soviet or ineffective and the general intellectual opposition was the result of the Western scholarly bias against a coalitional move by the weaker states of the international system. This is very similar to how upper classes or castes respond to protest movements by subaltern groups in highly unequal and hierarchical societies.

•The international system is hierarchical and the expectation is that the weaker states should simply abide by the dictates of the stronger ones. It is often forgotten that when the Bandung meeting took place, the world was witnessing an intense nuclear arms race, in particular, atmospheric nuclear testing. The fear of a third world war was real. Many crises were going on in Europe and East Asia, with the fear of escalation lurking. More importantly, the vestiges of colonialism were still present.

•Despite all its blemishes, the NAM and the Afro-Asian grouping acted as a limited soft balancing mechanism by attempting to delegitimise the threatening behaviour of the superpowers, particularly through their activism at the UN and other forums such as the Eighteen Nation Committee on Disarmament, as well as through resolutions.

•“Naming” and “shaming” were their operational tools. They worked as norm entrepreneurs in the areas of nuclear arms control and disarmament. They definitely deserve partial credit for ending colonialism as it was practised, especially in the 1950s and 1960s in Africa, parts of Asia and the Caribbean through their activism at the UN General Assembly which declared decolonisation as a key objective in 1960.

Impact on N-tests

•The non-aligned declarations on nuclear testing and nuclear non-proliferation especially helped to concretise the 1963 Partial Test Ban Treaty. They also helped create several nuclear weapon free zones as well as formulate the Nuclear Non-proliferation Treaty. The tradition of ‘non-use of nuclear weapons’, or the ‘nuclear taboo’, was strengthened partially due to activism by the non-aligned countries’ at the UN. The non-aligned could find solace that it took a few more decades for a leader like Mr. Gorbachev to emerge in one of the contending superpowers, and that many of their policy positions were adopted by him, and later partially by the U.S.

•As the great powers are once again launching a new round of nuclear arms race and territorial expansion and militarisation of the oceans, a renewed activism by leading global south countries may be necessary to delegitimise their imperial ventures, even if they do not succeed immediately. If these states do not act as cushioning forces, international order could deteriorate and new forms of cold and hot wars could develop. China, the U.S. and Russia need to be balanced and restrained and soft balancing by non-superpower states has a key role to play in this.

•If the present trends continue, a military conflict in the South China Sea is likely and the naval competition will take another decade or so to become intense, as happened in earlier periods between Germany and the U.K. (early 1900s), and Japan and the U.S. (1920s and 1930s).

•The U.S. as the reigning hegemon will find the Chinese takeover threatening and try different methods to dislodge it. The freedom of navigation activities of the U.S. are generating hostile responses from China, which is building artificial islets and military bases in the South China Sea and expanding its naval interests into the Indian Ocean. Smaller states would be the first to suffer if there is a war in the Asia-Pacific or an intense Cold War-style rivalry develops between the U.S. and China. Nuclear weapons need not prevent limited wars as we found out through the Ussuri clashes of 1969 and the Kargil conflict in 1999.

The way forward

•What can the smaller states do? Can they develop a new ‘Bandung spirit’ which takes into account the new realities? They could engage in soft balancing of this nature hoping to delegitimise the aggressive behaviour of the great powers. The rise of China and India, with their own ambitious agendas, makes it difficult that either will take the lead in organising such a movement.

•China’s wedge strategy and its efforts to tie Afro-Asian states through the Belt and Road Initiative have limited the choices of many developing countries. However, despite the constraints, many have been able to keep China off militarily by refusing base facilities and also smartly bargaining with India and Japan for additional economic support. They thus are already showing some elements of strategic autonomy favoured by the NAM.

•More concrete initiatives may have to rest with emerging states in the Association of Southeast Asian Nations (ASEAN) grouping. Engaging China and India more intensely while restraining the U.S. and Russia from aggravating military conflict in Asia-Pacific can be the effort of the developing countries. Norm entrepreneurship has it value, even if it does not show immediate results.

•The alternative is to leave it to the great powers to engage in mindless arms race and debilitating interventions, which rarely create order in the regions. Restraining the established and rising powers through institutional and normative soft balancing may emerge as an option for developing countries in the years to come. They still need a leader like Jawaharlal Nehru to bring them together.

📰 Teaming up with Tokyo

Ahead of the PM’s visit to Japan, hopes are high for a greater synergy on security and connectivity issues

•Prime Minister Narendra Modi’s visit to Tokyo later this month will be keenly watched by India’s strategic community. Since he assumed office in 2014, Mr. Modi has made India-Japan relations a key priority area of his foreign policy. Now, in the last year of his term, Indian analysts are looking for tangible signs of a transformation in economic and security ties.

•Fortunately for India, Mr. Modi’s Japanese counterpart Shinzo Abe is a keen advocate of closer bilateral relations. Mr. Abe views India as the pivotal state in the Indian Ocean. A strong India, he candidly professes, is in Japan’s interest, just like a strong Japan is beneficial for India.

•The Abe administration is focusing attention on two critical areas — maritime security and strategic connectivity. On the security front, Japan is keen to strengthen the trilateral Malabar exercises with India and the U.S. During the last iteration of the exercises off Guam in June this year, the Japanese Navy deployed a maritime surveillance aircraft and a submarine, demonstrating a readiness for a strategic role in Asia’s sensitive littorals.

Closer maritime ties

•In a bid to raise its Indian Ocean profile, Japan recently deployed its state-of-the-art helicopter carrier-destroyer, Kaga, to South Asia. After a brief stopover at Colombo, the ship is in Visakhapatnam for the Japan-India Maritime Exercises.

•Tokyo is keen that its military exchanges with India also include Army and Air Force exchanges. An Acquisition and Cross-Servicing Agreement — on the lines of the Logistics Exchange Memorandum of Agreement with the U.S. — is in the offing, and there is also talk of joint collaboration in unmanned armoured vehicles and robotic systems. Further, Japan also wants to assist India in improving the state of maritime domain awareness in the Indian Ocean, where India is keen to set up an ‘information fusion centre’.

•Notwithstanding the excitement over security relations, it is strategic connectivity that presents the bigger opportunity. Tokyo and New Delhi have been working together on infrastructure projects in the Northeast. They are also building the Asia-Africa Growth Corridor, whose four pillars — developmental projects, quality infrastructure, capacity building, and people-to-people partnership — make it an effective counterpoint to China’s Belt and Road Initiative.

•What makes Japan a reliable partner in the connectivity arena is its emphasis on ‘quality’. Unlike China’s Belt and Road projects, Japanese infrastructure initiatives are environmentally friendly and financially sustainable, with project managers laying particular stress on life cycle costs and asset resilience. Not only has Japanese development aid produced demonstrable results on the ground, Tokyo’s insistence on transparency has generated enormous trust.

•The Modi government’s economic and security outlook — often articulated in terms of its ‘Act-East’ outreach — fits well with Mr. Abe’s vision for a ‘Free and Open Indo-Pacific’. Both countries want a regional order based on rules. However, neither country is keen to antagonise China. While Tokyo is willing to work with Beijing on overseas infrastructure projects, New Delhi has expressed reservations about its ‘Quadrilateral’ partners (the U.S., Japan and Australia) resorting to China-containment tactics.

•Even so, Japanese and Indian policymakers recognise the importance of balancing Chinese power in the Indo-Pacific. To deter China’s maritime aggression in their strategic backwaters, Japan and India have upped their defence engagement.

•None of this suggests a neat alignment of strategic interests and ambitions. Despite repeated attempts, talks for the sale of the US-2i amphibious aircraft have been deadlocked over issues of price and technology transfer. The deal has been hanging fire since 2014 when Indian officials raised objections over the platform’s high cost. Tokyo subsequently agreed to a concession but the aircraft’s price was still deemed high by Indian negotiators (over a $100 million apiece).

•Of greater concern has been Japan’s unwillingness to let India license produce the US-2i, insisting on delivering all aircraft in flyaway condition. The hard-bargaining, say observers, hasn’t been worthwhile, not least since the plane does little other than search and rescue.

•Even so, India’s foreign policy establishment knows the deal has come to be seen a symbol of India-Japan defence cooperation. A failure to procure it would be deemed as a setback. Policymakers also acknowledge that the partnership is increasingly vital for the security of littoral Asia. In the wake of growing challenges in the maritime domain, New Delhi knows that operational synergy with Tokyo is a strategic imperative. Striking a deal on the US-2i would be a good start point.

📰 Nirmala Sitharaman begins France visit today

•Defence Minister Nirmala Sitharaman begins a three-day visit to France on Thursday during which both sides are expected to deliberate on further boosting their already close defence and security ties.

•Ms. Sitharaman’s visit comes in the backdrop of a huge controversy over the procurement of 36 Rafale jets from French aerospace major Dassault Aviation.

•Officials sources said Ms. Sitharaman will hold wide-ranging talks with her French counterpart Florence Parly on ways to deepen strategic cooperation between the two countries and also deliberate on major regional and global issues of mutual interests. MS. Sitharaman will also take stock of progress in the supply of 36 Rafale jets by Dassault to the Indian Air Force under a ₹58,000 crore deal. There was indication that she may even visit the facility where the jets are being manufactured, the sources said.

•In their talks, Ms. Sitharaman and Ms. Parly are expected to deliberate on joint production of military platforms and weapons by the two countries.

•Earlier this year, France was pitching for starting negotiations for procurement of another batch of 36 Rafale jets by India. However, New Delhi was not keen on pursuing it. In April, the Indian Air Force started the process to acquire a fleet of 114 fighter jets and Dassault Aviation has emerged as one of the key contenders for the contract.

•Prime Minister Narendra Modi had announced the procurement of a batch of 36 Rafale jets after talks with the then French President Francois Hollande on April 10, 2015 in Paris.

📰 Cooperate to fight trade protectionism, says China

‘U.S. is trying to sow discord between the two nations’

•China has asked India to counter jointly the growing threat of trade protectionism championed by U.S. President Donald Trump.

•A statement issued by the Embassy of China in India said that attempts were being made to sow discord between China and India and they should not fall for such traps.

•“Under the current circumstances, China and India need to deepen their cooperation to fight trade protectionism. As the two largest developing countries and major emerging markets, China and India are both in the vital stage of deepening reform and developing economy, and both need stable external environment,” Ji Rong, spokesperson of the Embassy, said.

•The Chinese response comes in the wake of the escalating U.S.-China trade warfare that has soured ties between the two countries. The Embassy said the U.S. has provoked trade disputes, and asked it to introspect about “interfering” in the internal affairs of China and India in the guise of religious freedom and human rights.

•The spokesperson said the U.S. was promoting protectionism while trying to keep India away from China by planting ideas that China’s financial support for developing countries would lead to a “debt trap”.

•China wants to build on development partnerships with other countries in the region, the statement emphasised.

📰 China revises controversial anti-terror regulations

Calls for ‘vocational education centres’ to reform extremists

•Anti-terror efforts in the controversial “reeducation centres” in China’s Xinjiang region will be governed by new standardised rules, as international criticism mounts over the detention of as many as one million in the restive far west.

•The revised rules, passed on Tuesday, call on local governments to tackle terrorism by establishing “vocational education centres” that will carry out the “educational transformation of people who have been influenced by extremism.”

‘Thought education’

•The centres should teach Mandarin Chinese, legal concepts and vocational training, and carry out “thought education,” according to a copy of the rules posted on the regional government’s website.

•As many as a million people are believed to have been detained in extra-judicial detention centres in Xinjiang as authorities there seek to battle what they describe as religious extremism, separatism and terrorism.

•A previous version of the rules issued in March 2017 included a long list of prohibitions on religious behaviour, including wearing long beards and veils.

•It also encouraged local governments to engage in “educational transformation”, a term critics have described as a euphemism for brainwashing. The detentions have mostly focused on the region’s Muslim minorities, especially the Uighurs, a Turkic ethnic group that make up around half of Xinjiang’s population of 22 million. The new regulations seem aimed at standardising the centres’ management, which was initially carried out piecemeal.

Denies detention

•Beijing has denied reports of the mass detention of its citizens in camps, but evidence is mounting in the form of government documents and testimonies from former detainees. Chinese authorities have, however, said that they give vocational and language training to people guilty of minor crimes.

•Testimony from people who have escaped the centres provides a much darker picture, however.

•In July, a former teacher at one of the centres told a court in Kazakhstan that “in China they call it a political camp but really it was a prison in the mountains.”

📰 Containing a virus

How serious are the lion deaths in Gujarat?

•A canine distemper virus (CDV) has led to many deaths in the Gir sanctuary. In September alone, 21 lions died. Every year, it is normal for 80-90 lions to die in Gujarat, according to wildlife experts. There is no number yet on how many have died this year, so we don’t know if there has been a spike.

•Wildlife experts say that more than the numbers, it is the fear that mutation in a virus could have caused deaths that is perturbing. Scientists at the National Institute of Virology, Pune have confirmed the CDV virus in only five of the dead lions. But many more may have taken sick. Experts say that the virus may have jumped from dogs to lions.

What is Canine Distemper?

•This is a viral disease that is frequent in dogs, foxes, wolves, big cats and even primates. It is caused by a single-stranded RNA virus of the familyParamyxoviridae (the family of viruses causing measles, mumps and bronchiolitis in humans). It infects the spinal cord and brain and also the respiratory and gastrointestinal tracts. The virus is believed to have a 50% fatality rate in dogs.

•In 1994, the CDV was responsible for an epidemic in the Serengeti region of Africa, where 1,000 lions died in three weeks. Its prevalence in India has not been studied and only a few reports are available regarding its detection in wild carnivores.

How can the outbreak be checked?

•The lion population should be immediately vaccinated with the available vaccine for CDV. At present, most of the available vaccines are made of CDV American genotypes 1 & 2. These have been used in a number of countries and found to be effective.

•As the CDV is transmitted by airborne route as well as infected body secretions, healthy lions from the Gir forest ought to be shifted to an alternative suitable location. Moreover, as many of the Gir lions live outside protected areas and are in contact with domestic dwellings, their susceptibility to new pathogens has risen, according to scientists.

•In 2013, the Supreme Court had called for shifting of some lions from Gujarat to Madhya Pradesh to “to save [them] from extinction, due to catastrophes like epidemic”. However, this is yet to happen.

•Wildlife experts say vaccination is a bad idea as it could introduce new complications to the immune systems of the wild lions and make them vulnerable to unknown viruses.

📰 Deadly roads in India

Data on fatalities and injuries must jolt the government into action

•The Road Accidents in India report of the Ministry of Road Transport and Highways for 2017 comes as a disappointment. By reiterating poorly performing policies and programmes, it has failed to signal the quantum shift necessary to reduce death and disability on the roads. It expresses concern at the large number of people who die every year and the thousands who are crippled in accidents, but the remedies it highlights are weak, incremental and unlikely to bring about a transformation. The lack of progress in reducing traffic injuries is glaring, given that the Supreme Court is seized of the issue and has been issuing periodic directions in a public interest petition with the assistance of the Justice K.S. Radhakrishnan Committee constituted by the Centre. Little has been done to fulfil what the Road Transport Ministry promises: that the Centre and the States will work to improve safety as a joint responsibility, although enforcement of rules is a State issue. That nothing much has changed is reflected by the death of 1,47,913 people in accidents in 2017. To claim a 1.9% reduction over the previous year is statistically insignificant, more so when the data on the rate of people who die per 100 accidents show no decline. Even more shocking is the finding that green commuters — cyclists/pedestrians — now face greater danger on India’s roads, with a rise in fatalities for these categories of users of 37% and 29% over 2016, respectively.

•Road safety data is a contested area in India. The figures of death and injury from accidents are viewed as an underestimate by scholars; the Transportation Research and Injury Prevention Programme at IIT Delhi, for instance, estimates that cumulatively, road traffic injuries recorded by the police are underestimated by a factor of 20, and those that need hospitalisation by a factor of four. If this is correct, the number of people who suffered injuries in 2017 far exceeds the 4,70,975 reported by the Ministry. It is welcome that greater attention is being paid to the design and safety standards of vehicles, but such professionalism should extend to public infrastructure: the design of roads, their quality and maintenance, and the safety of public transport, among others. The Centre has watered down the national bus body standards code in spite of a commitment given to the Supreme Court, by requiring only self-certification by the builders. Relaxing this long-delayed safety feature endangers thousands of passengers. There is little chance of the NDA government, now in the last year of its tenure, making a paradigm shift. Valuable time has been lost in creating institutions for road safety with a legal mandate, starting with an effective national agency. The Road Safety Councils at the all-India and State levels have simply not been able to change the dismal record, and the police forces lack the training and motivation for professional enforcement. The urgent need is to fix accountability in government.

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