Beyond ‘electocracy’ in J&K

Irrespective of the results of recently concluded polls in J&K, the event itself marks a turnaround in the situation, not only in the strife-ridden state, but the entire South Asian region. The high voter turn out of nearly 62 per cent, which is in sharp contrast to about 42 per cent in the 2002 elections, vindicates the stand of those who were in favour of holding polls despite opposition. The real test of democracy, as I have maintained, is not how it fares in the best of times but how it fares in the worst of times. In this case, the violence relating to transfer of the land to a religious shrine board on the eve of elections almost derailed the election process.
While the credit for free and fair polls must go to the government for diffusing the crisis over land transfer and the Election Commission, the salient yet persistent role of the security forces, especially the Army for bringing militancy under control in recent years, must not be discounted. Against nearly 1400 civilian casualties in 1996, the number of those who lost their life in J&K this year so far is less than 100. By better surveillance along the LOC and improved human intelligence gathering within the state and, of course, avoiding human rights abuses, the Army had earned the respect – though grudging – of the common man. This was evident even at the height of the protests six months ago when protesters while bringing all civilian traffic to a grinding halt did not target moving Army columns.
This is not to discount various other factors, including the general fatigue of the people with militancy and also the turn of events in Pakistan, which has been brazen in its support for militants. As for as poll turn out is concerned, areas like Srinagar and Sopore, where the voter turn out, although higher than in 2002, is still dismal, should be of concern. For present, one can look forward to the new government in the state taking the democratic process forward.
Yet, the big question remains: where does one go from here? Besides the separatist elements within the state, the Kashmir issue raises the hackles of people across the LOC in Pakistan Occupied Kashmir and in the rest of Pakistan. One can’t discount the role of USA, whose war against terror appears to be intrinsically linked to this region. Moreover, since the intervention in diffusing the Kargil crisis, the US has been taking active interest in this region. The talk of a special US envoy for this region by Democrats only shows that the interest is unlikely to wane with the regime change in that country next month.
The book of US President-elect, Barack Obama (The Audacity of Hope) provides some insight into his view of the world beyond the US borders. Although he has resolved to gradually pullout US troops from Iraq, yet he states, “any return to isolationism – or a foreign policy approach that denies the occasional need to deploy US troops – will not work.” This approach does not of course include the state of J&K, where we have tried to institutionalize fair election systems, which is what he firmly believes in. But what we need to carefully ponder over is the fact that in the same chapter, Obama also talks about the need to go beyond the elections and to inspire and invite people to assert their freedom. “A corollary to this is that freedom means more than elections… for half of the world’s population…an election is at best a means, not an end, a starting point, not deliverance”. Although not talking specifically of Kashmir, he further states that people in such regions in the world are looking less for an “electocracy” than for the basic elements. He would like the US to ensure that international rules they are promoting enhance, rather than impede, people’s sense of material and personal security.
This obviously puts great onus on governments in various strife-ridden states. Having conducted fair and free polls in J&K, we need to ensure that people’s “basic elements”, as he put it, are taken care of. Mere dispersal of ballot boxes is not enough. The basic elements that he talks of include providing the people of the state food, shelter, electricity, basic health care, education, and ability to make their life without having to endure corruption, violence, or arbitrary power. Every person must have confidence that he will receive the full and effective protection of the Constitution and the law, both in letter and in spirit. These are areas for which we need to have a plan in place in order to win over people’s hearts and minds. In the context of Kashmir, we also have Pakistan to contend and confabulate with. Since J&K has the baggage of nearly six decades of broken promises, endemic violence, intense pain and misery, this is not easy. But since Pakistan has of late shot itself in the foot repeatedly, we have a chance to make a sincere effort by replicating Obama’s worldview in our region.

MEDIA IN CRISIS

One of the collateral effects of the terrorist attack in Mumbai last fortnight has been a demand from various quarters to put certain restrictions on media's coverage of such events. In an advisory, the Union Government asked the television channels not to re-run or broadcast scenes of the Mumbai terror attack and to avoid providing the terrorists a platform to air their views. Media reports also suggest that the National Security Guards had sought restrictions on media coverage whenever its commandos were engaged in combat. They particularly mentioned live images on television channels showing commandos slithering down from helicopters and landing on Nariman House roof, which may have enabled the terrorists holed up inside to open fire on commandos before they could take positions. The NSG officials have also been quoted as stating that, in contrast, the operations at Taj Hotel were smoother since the TV channels were kept beyond the one-km radius. The Chief of Naval Staff, Admiral Sureesh Mehta too referred to the media as a "disabling factor" in the Mumbai operation. He also accused some television channels of jeopardizing the safety of soldiers with their coverage of the Kargil war in 1999.
Since all this has raised the hackles of journalists, it is important to put things in perspective. Just as the means of warfare have changed so have the rules. Most armies have tried to use the media to their advantage during hostilities. Before the First World War, even the German General Staff in its Handbook of War issued to officers held that, since reporters were indispensable, it was necessary to "control the media in the field." During World War II, the Nazis went a step further and recruited journalists as soldiers who shared all the risks. These "front reporters" produced some excellent reports and photographs, although in the process nearly 300 of them were killed during the war. In our own environment, during all external aggressions, since a state of emergency had been declared, the war correspondents were invariably "conducted" by officers of the defence public relations. In recent wars, the Americans started the system of "embedding" journalists with their frontline formations. But in almost all cases, the news reports were vetted before publication.
The limited war in Kargil fell in a different category altogether. Since it coincided with the advent of private television channels in our country, journalists were provided a reasonable amount of free access to information and movement. Since the Pak Army did not initially own up its intruders and its Air Force did not join battle, our journalists had a free run in getting the war images they wanted. This writer was witness to artillery guns being fired for camera effect. But, no hard information is available on whether media coverage had any bearing on operations - our own or the enemy's. But, all this did help boost the image and morale of troops, who were finding themselves beleaguered initially due to the surprise sprung on them by the Pak intruders.
However, security operations internally against terrorists are a different ball game altogether. In Punjab alone, we had two operations where different media strategies were used - with contrasting results. During Operation Bluestar in June, 1984, the media was kept at bay. The media was co-opted and provided a ringside view during Operation Black Thunder in 1988. The result was that while people continue to conjure up images of how Operation Bluestar was botched up, no such feelings are harboured about Black Thunder operation. Media definitely played a major role in forming public perception of the two operations.
There is no doubt that the Mumbai operation was a learning experience for the 24X7 electronic and internet media (as it was for the security forces). Yet, some of the criticism may be premature. For example, there is no hard evidence to suggest that the terrorists inside Nariman House fired on the commandos landing on the roof due to television images or after hearing the noise of choppers overhead. In fact, media's live coverage brought out the complexity of the operations in various places, including the Taj and Nariman House. Otherwise, the NSG, the Navy and the Government would have been hard pressed to explain the loss of nearly 200 lives and severe damage to property by 10 terrorists against whom nearly 1,000 securitymen were deployed for nearly 72 hours. The rumour-mongers would have had a field day, something akin to what continues to this day about Operation Bluestar even after 25 years.
There can be no hard and fast rules about all internal security situations, as the circumstances would vary in each one. But past experience points to positive fallout of operations carried out in full transparency. Of course, in Mumbai-like situations, where human lives are involved, the basic rules of reportage and self-regulation ought to apply even more stringently. Government regulation of the media is risky. Often governments and military leadership accuse media of irresponsible coverage when the coverage is in fact inconvenient to them. Where media is concerned, government distortion, disinformation and manipulation is an even greater threat. One is reminded of the film 'Wag the Dog’, which is about using media to create a complete tissue of lies. Though this is a piece of fiction and an extreme case, governments are known to indeed manipulate images to influence public opinion. The problem with the media usually is exuberance, though sometimes it may distort. But it has a greater interest in truth than the government - for the sake of its long term credibility. The decision in-principle of the News Broadcasters Association to form an "emergency protocol" to decide on such situations is a welcome step. Besides, a series of self-analysis by the Press Council of India or perhaps by the media organizations themselves on the Mumbai coverage would help in more professional coverage of hostilities in future.

Reframing Centre-State Relations

The discussion on Centre-State Relations could not have come at a more opportune time. The country has been through nearly six decades of independence during which every sinew of it being a sovereign, socialist, secular, and democratic republic has been tested and stretched. That it has survived has surprised a lot of people worldwide but it is time to face and address certain harsh realities. Also because the changes and frictions that are taking place both globally and in our neighbourhood have come to have an urgent bearing on us forcing us to take stock of the situation in order to measure up to these challenges.
The terms of reference of the Justice Punchi Commission are comprehensive and are a step forward from the Justice Sarkaria Commission set up in 1983. Unfortunately, despite the work put in by the Justice Sarkaria Commission, not much headway was made in facilitating better Centre-State relations. The relationship is like the typical Indian Mother-in-law and Daughters-in-law, where both think they are giving in a lot and the other side is not reciprocating. The very fact that the Government has had to appoint yet another Commission to deal with the issue within 20 years of the earlier Commission submitting its report shows that most of the issues that prompted the setting up of the earlier Commission have remained. This I suppose was primarily because of a lack of consensus at the national level. From the work that is being put in by this Commission, I am sure the report that will be submitted will help us resolve many of the contentious issues facing us. But, I hope that the recommendations of this Commission too don't end up the way the earlier Commission's views were.
This can be avoided, if the Commission were to divide its recommendations in two parts. One, the recommendations that require immediate enforcement. This could include - if you refer to the extract of the notification which is available here – issues like the role, responsibility and jurisdiction of the Centre vis-à-vis States during major and prolonged outbreaks of communal and caste violence. This category could also include issues like the need to set up a Central Law Enforcement Agency and deployment of Central forces in states. All these are interlinked and can't be seen in isolation and I will dwell on this in the next few minutes. These are imperatives that the global, regional and our own internal situation warrants. I remember that the Justice Sarkaria Commission too had dealt with some of these issues, though the issue of a federal agency was not a part of its terms of reference as terrorism mercifully was not then on the radar. Justice Sarkaria had in fact recommended that the Centre should consult the states before rushing its armed forces to a state, if the latter had not made a request for the same. That was perhaps for the best of times while now we are trying to come to terms with the worst of times.
The second category could include those recommendations, which have an even greater bearing on the way our Constitution has been framed. These relate to fiscal matters and other issues like river waters and minerals. To look into these the Commission may think of suggesting the constitution of a consultative legislative body on the lines of the mini-Constituent Assembly that framed the Constitution after Independence. This will ensure that the work of the Commission would be taken to its logical conclusion in Parliament. Otherwise, its recommendations, howsoever important they be, would be subject to the vagaries of the electoral outcome and political pulls and pressures.
I feel that the proposal to set up a Central Law Enforcement Agency to take up suo motu investigation of crimes having inter-state and / or international ramifications with serious implications on national security would be only a half-way house. This is primarily for two reasons:
One, what you require is not just a Central Agency to investigate crimes of a certain nature but an agency to pre-empt such crimes. What you have in mind is an agency like the Federal Bureau of Investigation in US prior to 9/11. It used to ensure that those involved in terrorist crimes were prosecuted and punished. This is what it did to the perpetrators of the bombing of the World Trade Centre in 1993. This is how some of the states understand the proposal when they say that their permission should be taken before transferring cases for investigation to the proposed Central Law Enforced Agency. But in actual fact, what you really require is an agency like the remodeled FBI, which pre-empts such incidents through a series of intelligence and security measures. If you go to the FBI site on the Internet, you will know what I mean.
FBI's whole approach to terrorism underwent a complete transformation. While before the incident, terrorism was viewed primarily as a criminal matter, after 9/11, the priority of the FBI was changed to preventing incidents of terrorism. This was done by nearly doubling the number of intelligence analysts and setting up outposts. Besides, FBI established a National Security Branch to coordinate the working of divisions responsible for intelligence, counter-terrorism and counter-espionage. Like the FBI, the federal agency that we have in mind must be able to identify, halt, and where appropriate, prosecute and punish suspected terrorists, drug peddlers, and those indulging in inter-state financial swindling.
Crucial will be the structure of the proposed federal agency. If it is agreed to have such an agency, should it be a new agency or should the Intelligence Bureau, which is a premier intelligence agency, be remodeled? Or should the Central Bureau of Investigation (CBI), which primarily investigates corruption and special cases referred to it from time to time, be remodeled? Or should both these be amalgamated and made into one agency on the lines proposed? The last option will ensure that we don't add yet another agency to the plethora of central agencies that already exist. Even the FBI in US that it is today traces its origin to 1908.
This is one question. Second, should the composition of the force consist of new recruits or should lower and middle level functionaries be taken from the states? I would favour co-opting people from states, especially those who have experience in fighting terrorism. This will also ensure that the states opposing creation of such an Agency are taken on board through their men. Third, who should head it? Since the head of the agency would not just have overriding powers but require legal knowledge, should it be headed by a senior police officer or a sitting Judge of the Supreme Court who would not be amenable to pulls and pressures of the government of the day? Since such a measure would not fit into the division of powers of the different pillars of the government (executive, legislation and judiciary), the appointment of a sitting Judge may perhaps require a Constitutional amendment.
But like in the US, in India too, setting up of an agency itself will not be sufficient. Besides strengthening the FBI, the US created a new Department of Homeland Security by realigning the patchwork of as many as nine major departments. This included National Guard, coast guard, customs and border protection, secret service and civil air patrol into a single department. In fact, more than 20 disparate agencies and programmes were merged into a cohesive department with centralized leadership but with decentralized operations. This enabled one regional reporting structure for multiple field posts.
Interestingly, the US Secret Service, which protects the President, the Vice President and other public officials besides currency and financial integrity, is also under the Department of Homeland Security.
Although both the FBI and the Central Intelligence Agency (CIA) are outside the purview of the Department of Homeland Security, a National Counter-terrorism Centre coordinates all terrorist related information and activities. Besides, homeland security functions are coordinated at the White House by a Homeland Security Council. On the other hand, despite India openly alleging a foreign hand in destabilizing it since early 1980s, few, if any, steps were taken to secure the homeland.
This means that in response to today's asymmetric threats from terrorists, cyber criminals and foreign counterintelligence operatives, we need to restructure our functioning at various levels, especially that of the Union Home Ministry. The National Security Advisor has too much on his desk. For external security, we should go in for a Chief of Defence Staff (CDS) System, which has been hanging fire for long. The National Security Adviser should be redesignated National Internal Security Adviser.
All these changes would bring about a conflict between Article 355 and Article 246 – the first provides for Central "help" (which is seen by states as intervention and interference) in states and the second that puts public order and policing under in the state list.
In the light of our own experience, we need not go in for all the measures that US or other countries have taken. US have brought in the controversial Patriot Act, which allows snooping on people's telephones. You know how such a provision would be used here – politics they say is about having strange bed fellows and this would be literally used to find out who is sleeping with whom! While going in for such drastic steps, there would be need to have equally drastic and stringent safeguards - with perhaps a provision for dismissal from service to prevent misuse.
This conflict on security issues is not peculiar to India. Even in US, since the 1930s, the process of Centralism in certain spheres has continued. The centralization process gained momentum in 1960s and by 1980 the federal role had become even bigger. After 9/11 of course, it is predominant. The very fact that US has managed to prevent any incident on its homeland since 9/11 with a series of steps is creditable. In our context, there are other changes that would become necessary. For example, there is need for an All India Police Act to replace the earlier act of 1861, with certain provisions which are applicable nation-wide. Similarly you need an All India Prison Act. Unless you have this, you can't ensure the role, responsibility and jurisdiction of the Centre vis-à-vis States to check outbreaks of communal and caste violence. Nor can you deploy Central Forces in states if the situation so demands. This would require major changes in the Constitution.
This brings me back to the second point - setting up of a Consultative Legislative body for bringing about comprehensive changes in our Constitution. It is not something without precedent. A nation's Constitution is a vibrant and dynamic document that is a Darwinian and not a Newtonian affair. It must change with the times, of course retaining the basic fundamentals. Our own Constitution has undergone more than 100 amendments. Then why not give it a major re-read, without changing its basic structure of it being a sovereign, secular and democratic republic. The US Constitution, for example, was first adopted in 1777 as Articles of Confederation and Perpetual Union of only 13 Colonies. It was in 1789 that it was formulated as a Constitutional document – from being a confederation and a league of Colonies to a union of states. It was perhaps this revision because of which the number of amendments to the US Constitution has been only about 30 or 31 in over 200 years. There are other examples. The Constitution of Switzerland, for example, which was first formulated in 1848, underwent a major revision in 1874 – in less than 30 years. This revision enabled the Swiss Government to gain centralized command over its security forces.
On the other hand, we have had more than 100 amendments in less than 60 years and yet we are riddled with an uncomfortable relationship between Centre and states on umpteen fronts. These mainly relate to governance and fiscal matters. There is in fact a need to do a little balancing act – while Centre gets more powers on the security front, it loosens its financial purse to the states. Perhaps not just the financial purse, the Centre needs to revert back some of the subjects it has usurped from the Concurrent to the Union list.
In fact, the spadework for a major re-read or revision of the Constitution is already there. You have the Justice Sarkaria Commission Report, a voluminous documents in two parts. Then you have the Justice M.N. Venkatchaliaiah Report of 2002 on Constitution Review, with as many as 250 recommendations on various fronts, including Centre-State Relations. In fact, there is a common thread in both Commissions – Justice R.S. Sarkaria was a part of this Commission too. Setting up of a Consultative Legislative Body will also take the matter to a different level. As of now, most states will take up positions which are partisan in nature and which are based on party lines. This will help address their concerns and at the same time meet national threats.
I remember once interacting with Justice Sarkaria many years ago. While discussing his Report, he lamented that despite inheriting the Parliamentary form of Government from the British, we had paid no heed to conventions and that political expedience has overtaken basic courtesies and conduct. This is an unfortunate reality today, which requires constitutional and written safeguards to dictate our day-to-day conduct.