Secular judges, religious matters and liberal values

Analysing policy issues concerning religion and the judiciary in the Indian republic is complicated

In today’s lead column in The Hindu I argue that India runs the risk of slipping into a “judiciopapist” order, wherein judges have power over matters of religion. In the context of a case before the Supreme Court concerning women’s right to enter traditionally puritanical male domain of Sabarimala temple in Kerala, I argue that “we should be wary of a judiciary that encroaches on more domains, even for causes we consider as desirable and good.” The article reasons that state intervention in religious norms not only create resistance and backlash, but weakens the incentives for endogenous reform to emerge from within religious communities.

“The caveats [circumscribing the domain of religion] are eating into the right [to freedom of religion]. More significant than the issue of whether women should be allowed entry into the Sabarimala temple is the question of whether secular judges ought to be the ones making that call.” [Reform, only left to the judiciary?]

From this, a few readers promptly arrived at the conclusion that I was in favour of rules keeping women out of the temple, and further—on the basis of an older tweet applauding a Supreme Court ruling against polygamy among Muslims—that I was chauvinistic right winger. Amusing as these labels are, an explanation will certainly help.

Is there a contradiction between my support for the Supreme Court rejecting polygamy and my concern over the Supreme Court deciding on Sabarimala entry rules? Well, only if you presume I oppose women’s entry into the Sabarimala. The value judgement on a decision is quite separate from the value judgement on the process by which the decision was taken. As I spell out in the article, it is better for social reform to emerge within society. The position is the same, whether it is temple, church or mosque entry; or whether it is temple elephant markings, polygamy or voluntary suicide.

However, if the Court is seized with a case, it is just as well that it upholds the constitutional values of liberty and equality. It would be a “good” decision if the court permits women entry into Sabarimala, just like it was a good decision to disallow polygamy. Even so, we should be worried that secular judges are making those religious calls.

Related Links: More this issue by Gautam Bhatia in The Hindu and IndConLawPhil blog; and a monograph by Ronojoy Sen on the Indian Supreme Court and secularism (pdf)

The beans that will spill in Chicago

Regarding Tahawwur Rana’s trial in Chicago

Here are some comments I made in response to questions asked by a British journalist regarding the the trial of a Chicago businessman of Pakistani origin, on charges related to the 26/11 terrorist attacks on Mumbai.

Q: How important is this trial for those who watch the India-Pak relationship. Are we really going to learn something new?

While it’s unlikely that the trial will reveal anything that’ll add to what we already know about the big picture, some details might emerge as to the exact pathways in which the military-jihadi complex operates.

The trial is important because it involves the third and remaining judicial branch of the US government into US-Pakistan relations. It will be increasingly difficult for administration officials to obfuscate the involvement of Pakistani military & government officials in conniving in or abetting terrorism & insurgency. Congress is already reflecting massive public outrage against Pakistan for having allowed Osama bin Laden to stay out of US hands for so long. The trial will add other source of pressure on the Obama administration.

Q: Manmohan Singh has gone out of his way to reach out to the Pakistanis; do you believe those efforts could be undermined by any revelations from the trial?

Hard to say, but unlikely in my opinion. His initiatives have been taking place despite Kasab’s capture and confession, despite the broadcast of intercepts of chilling conversations between the 26/11 terrorists and their handlers, despite Headley’s confession, despite stonewalling and brazenness from senior Pakistani officials. I’m not sure what new information can emerge that’ll undermine his outreach, which I think is dogged and dogmatic.

Having said that, the one way it can cause New Delhi to jam the brakes if the revelations come in sync with a new development on the ground that raise tensions. I’ve previously argued that another terrorist attack in an Indian city that can be traced back to Pakistan will put his continuance in office in jeopardy.

How possible is it for there to be good relations between India and Pakistan while the military continues to back militant groups?

As long as Pakistan continues to use terrorism as an instrument of policy, it cannot have good relations with any country, leave alone India. An increasing number of people in Pakistan have received this message. To the extent that editorials and op-ed pieces in Pakistani English dailies reflect a section of public opinion, there is a huge change compared to ten years ago. The Urdu press is a different story.

New Delhi’s policy does not show any sign of trying to overcome this fundamental problem, by making the containment and dismantling of the military-jihadi complex a central policy objective. Instead, the Singh government seems only to want to buy time. It’s unclear what it intends to do with the time, because it has done nothing to spur India’s long-term economic growth.

Rioting lawyers are rioters

Watch out for the LTTE’s mischief in Tamil Nadu

The LTTE leadership probably calculates that destabilising Tamil Nadu by inciting widespread political violence will serve its interests. If you think that lawyers in the Madras High Court turned into violent mobs, torched police stations and got into street battles with riot police just like that, think again. Political violence doesn’t work that way. It is a deliberate attempt to spark off widespread violence across the state, disrupt internal order, divert the resources of the law enforcement machinery and create tactical space (in both the political and security sense) for the LTTE. In this, the media has played the usual role of sensationalising the entire issue and brazenly projecting a “neutral” morally equivalent perspective between those who broke the law and those who enforced the law.

As for police brutality—the Chennai police did not act with any greater harshness than is the norm. Those norms are not pretty. Those norms must change. But our shock and disapproval of the norms of riot control in India should not get in the way of repudiating the moral equivalence. The media coverage benefits the law breakers, and the law breakers know this.

Both the UPA government in New Delhi and the DMK government in Chennai must do whatever is necessary to control, deter and punish political violence. As the principal opposition party, the BJP must unambiguously signal its support for actions towards this end, and hold the governments to account. For their part, the LTTE’s supporters and their opponents should be welcome to pursue their agenda without resorting to violence. The next few weeks will test Tamil Nadu’s political and social stability: Indians should realise that there is a foreign hand behind the ugly scenes they see on TV.

Peering into the criminal mind

A revolution in investigative affairs?

The use of brain mapping in investigation, and most recently the acceptance of brain mapping reports as evidence by Indian courts has raised many eyebrows. Today’s New York Times has a report by Anand Giridharadas on this:

The Brain Electrical Oscillations Signature test, or BEOS, was developed by Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at American universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.

Despite the technology’s promise—some believe it could transform investigations as much as DNA evidence has—many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal. Publication of data from testing of the scans would allow other scientists to judge its merits—and the validity of the studies—during peer reviews.

“Technologies which are neither seriously peer-reviewed nor independently replicated are not, in my opinion, credible,” said Dr. Rosenfeld, a psychologist and neuroscientist at Northwestern University and one of the early developers of electroencephalogram-based lie detection. “The fact that an advanced and sophisticated democratic society such as India would actually convict persons based on an unproven technology is even more incredible.” [NYT]

The use of this technology for investigation should be of relatively lesser concern, especially when the alternatives are of the unpleasant sort. But Dr Rosenfeld does have a point, especially when it comes to admissibility of these reports for securing convictions.

It is difficult to understand why Mr Giridharadas’s report does not quote any Indian scientist on the subject. It leaves out an important point: on September 6th, The Hindu reported that “an expert committee studying the efficacy of brain mapping criminal suspects has concluded that it is unscientific and should be discontinued as an investigative tool and as evidence in courts.” Rakesh Maria, Mumbai police crime branch chief, has been quoted as saying ‘that while BEOS was a useful technique of examination, it couldn’t achieve conviction all by itself. “The technique needs to be corroborated with other evidence.”‘

Sack Shivraj

Incompetence is perhaps his lesser crime

In one of his famous annual reports, General Electric’s Jack Welch classified managers into four types, according to their performance and their values. The first were those who delivered results and lived by the values espoused by the organisation. For them, the “sky is the limit”. The second were those who missed their targets, but lived by their values—these, according to Mr Welch, deserved a second chance. For Mr Welch the “the toughest call of all was the manager who doesn’t share the values, but delivers the numbers”. This type of manager had to sacked “because they have the power, by themselves, to destroy the…culture we need to win.” He didn’t have to say it, but the easiest call of all was the manager who “doesn’t share the values; doesn’t make the numbers”. That person had to be shown the door.

Now, that Shivraj Patil has been an “unmitigated disaster” at the home ministry has been clear for some time. The charitable explanation for his brazen denial of his ministry’s decision to intern illegal Bangladeshi immigrants in camps is cluelessness—that he didn’t quite know what policies his ministry was coming up with. Considering that the question of illegal immigration is among the more important ones for his ministry, his cluelessness further confirms the allegations of incompetence against him.

If competence were the only criteria—as it ought to be in a country were a significant fraction of the population is poor, and hence can least afford the luxury of incompetent leaders—Mr Patil should have been sacked a long time ago. In fact, voters had already sacked him in the Lok Sabha elections of 2004. It was the Congress Party that inserted him—like Prime Minister Manmohan Singh himself—into the Cabinet.

Mr Patil’s failings though are not merely in the area of competence. His greater failing, arguably, is in the domain of values. Now it is acceptable—though highly objectionable—for someone to see moral equivalence between the death sentence of an Indian citizen guilty of terrorism in India by the Supreme Court of India and the death sentence handed out to an Indian citizen pronounced guilty of espionage and terrorism in Pakistan by the Pakistani judiciary. But that someone cannot be a member of the Cabinet. There are such things as values: constitutionalism, due process, transparency, independence of institutions and rule of law. If Mr Patil can’t see the difference in the processes that led to the similar result—the death sentence—he reveals a lack of basic values that disqualify him from any position of constitutional office. [via Rational Fool]

In fact, Mr Patil’s comparison of the two cases reveals a deeper flaw in his understanding. If Sarabjit Singh was indeed a spy, then the UPA government should not have succumbed to the pressure to ask for the waiver of his death sentence. In this scenario, official intervention on Mr Singh’s behalf was a foreign policy mistake. On the other hand, if the UPA government knows that Mr Singh is innocent, then surely, hanging him is injustice. So how is Pakistan’s hanging of an innocent man similar to India’s hanging of a man declared guilty by the Supreme Court? The only explanation is that Mr Patil is implying that Mr Mohd Afzal is innocent. He has no authority to do that—the task before the President, and the Cabinet which will advise her, is whether or not Mr Mohd Afzal deserves clemency, not whether he’s innocent or guilty. [See an earlier post on death sentence dilemma].

India must be the only country in the world where the government finds ever more dubious reasons to prevent a convicted terrorist—guilty of planning an attack on the national parliament—from being punished according to the law.

Just how shameful is Mr Patil’s statement? Compare his views with those of Sukhpreet Kaur, Mr Singh’s wife. “Myself and my daughters would never like Sarabjit freed in exchange for any hardcore Pakistani terrorist lodged in Indian jails” she said, “nothing is above the nation and we can’t go against the interests of our motherland.”

Neutron Jack would have no qualms in sacking Mr Patil. Prime Minister Manmohan Singh, though, is quite unlikely to do so. Neither performance nor values matter to this government. It has already robbed from India’s material future. It is also robbing India’s national dignity. Yet it is important for us, the shareholders, to demand his sacking.

A version of this post appears in Saturday’s Mail Today, in an op-ed titled “It’s high time Shivraj Patil was shown the door”

The OBC reservations verdict and the national interest

A step on the road towards equality, merit and a quest for excellence

Excerpts from Mukul Asher’s DNA op-ed piece on the Supreme Court verdict on OBC reservations*:

The society’s need for competence and employable graduates has been balanced with provision of educational access to the OBCs.

The judgement of the Supreme Court (should) be respected in both letter and spirit. Those who are now trying to subvert the letter and spirit of the verdict should receive severe social and political disapproval.

India’s national interests are best served by ordering our society around equality, merit and a quest for excellence. The Supreme Court’s judgment should not be viewed as an end in itself, but rather as an intermediate step towards this goal. Continue reading The OBC reservations verdict and the national interest

Socialism and the Supreme Court

Expunging socialism from it should matter to all those who take the Constitution seriously

Whether it was Indira Gandhi, Joan Robinson or Shashi Tharoor who first came up with the aphorism, India’s highest constitutional authorities proved it right this week.

Refusing to entertain a petition that sought the deletion of the word “socialist” to describe the Indian republic, a bench of the Supreme Court—presided over by the chief justice of India—said, “Why do you take socialism in a narrow sense defined by Communists. In broader sense, it means welfare measures for the citizens. It is a facet of democracy.” The next day India was described as the “fastest growing free market democracy” by the president. Whatever you might say about India, and its opposite, it turns out, is equally true. (Also true, perhaps, is another aphorism: that the truth is somewhere in between.)

What the president says at NRI conferences is of little import. What the Supreme Court says matters a lot. So it is rather disappointing to see the Supreme Court’s decision and justification for not entertaining the petition to restore the Preamble to the Constitution to its original state. While the bench did admit (via Lex) a petition to review the requirement that all parties swear by Socialism in order to register with the Election Commission, this is as much about principle as it is about practical matters like election rules.

Socialism, the bench said, “hasn’t got any definite meaning. It gets different meaning in different times”. It is strange that the bench should think this justifies keeping the term. If it has no definite meaning, and can mean different things at different times, then it stands to reason that such terms should be kept out of an eternal document like the Constitution. Going by the bench’s logic, would it be justified to amend the Constitution again and declare India a “sovereign, socialist, secular, generous, benevolent, popular, liberal, political, equal, fair, reasonable, indefinite, nice, happy democratic republic”? This might sound flippant, but if there are grounds to keep words that lack definite meaning then why only socialist, why not these other fine adjectives that too broadly mean welfare measures for citizens?

Indeed, the Constituent Assembly debated—and discarded—the idea of including the word “socialist” in the Constitution. And the bench’s position squarely contradicts Ambedkar’s. Socialism, the chairman of the Constituent Assembly held “cannot be laid down in the Constitution itself”, because it amounts to “destroying democracy altogether”. The meaning of the word “Socialism” has not changed since Ambedkar’s time. The Supreme Court bench has failed to give this question the attention it deserves.

The preamble is the place where India describes itself. One would think that the adjectives used there mean something definite. If they don’t, then there’s no reason to keep them there.

Related Posts: Any party you like. As long as it’s socialist. (views, views & views; and the judicial challenge)