Arun Mohan Sukumar

India's EoV on the GA Resolution on Syria

Wed, 15 May 2013 22:41:22 -0400

India’s explanation of vote delivered by Ambassador Asoke Kumar Mukerji, Permanent Representative of India to UN at the General Assembly Resolution on Syria

Mr. President,

India remains deeply connected at the unabated violence in Syria and the suffering it continue to cause to the Syrian people. The military approach pursued by various sides to the conflict has undermined the efforts for a political solution to the crisis. Violence has assumed a serious sectarian nature, and terrorist groups, including al Qaida, have entrenched themselves. All these developments will have long-term repercussions for national, regional and international peace and security. Reports on the alleged use of chemical weapons are also deeply worrying.

2. We strongly condemn all violence in Syria as well as all violations of international humanitarian and human rights law, irrespective of who their perpetrators are. We condemn all attacks directed at women and children, civilians, UN peacekeepers and public institutions and infrastructure. We also condemn in the strongest terms possible all terrorist acts that have been and continue to be committed in Syria.

3. We are particularly concerned that UN peacekeepers have been repeatedly targeted by rebel groups and taken hostage, including on two occasions in the recent past. This is completely unacceptable. It is imperative that the sanctity of United Nations peacekeepers be respected by all sides. A clear signal must sent by the United Nations that such acts will not be tolerated and will attract the full weight of the international community against the perpetrators.

4. Since the beginning of he crisis in Syria, India has consistently called on all parties to abjure violence, dissociate themselves from terrorist groups, and pursue a peaceful and inclusive political process to address the grievances of all sections of Syrian society. We have also contributed to mitigate the humanitarian impact of the crisis by providing assistance worth US$ 2.5 million.

5. We believe that the Joint Communique of the Geneva Group adopted in June 2012 provides a good basis for resolution of the Syrian crisis through a Syrian-led political process that respects Syria’s independence, territorial integrity and sovereignty, involves all sections of Syrian society and meets their legitimate aspirations. The task of the international community, anchored in the United Nations, is to assist the Syrian parties in this process, without pre-judging its outcome. Also, it is important that further militarization of the conflict, including support for terrorist and armed groups, ceases forthwith.

6. These are the principles that have guided our consideration of the draft that the Assembly has just voted upon. Whether a group, any group, is the legitimate representative of the Syrian people or not can only be determined by the Syrian people, not this Assembly. Therefore certain provisions of this resolution can be interpreted as effecting regime change by sleight of hand. This is a dangerous precedent which we cannot acquiesce in. We would once again reiterate our position that the leadership of Syria is a matter for Syrians to decide themselves.

7. As we have said earlier, unilateral action of any kind will not resolve the crisis. It will only exacerbate the problem and cause greater instability and violence even beyond Syria’s borders. We think that following the settlement of the conflict, Syrians themselves should establish accountability for crimes committed by Syria. This cannot be done by outsiders. We also believe that promotion of political dialogue requires engagement with all parties concerned, and calls for boycott of the government and support of the opposition will not help. Due to these shortcomings, Mr. President, we have abstained on the resolution.

8. India remains committed to support the efforts of the United Nations, including Joint Special Representative Lakdhar Brahimi, to resolve the Syrian crisis expeditiously through inclusive political dialogue among Syrian parties. We also welcome the recent decision by the Russian Federation and the United States to convene a meeting of the Action Group with the Syrian parties, and hope that all sides will engage seriously, realistically and unconditionally to resolve the crisis in the interests of the Syrian people, the region and the larger international community.

The perils of grand narrative

Mon, 18 Mar 2013 07:37:00 -0400

The Hindu

Samudra Manthan superimposes a paradigm that articulates developments from a Western perspective

In 2004, the Office of Net Assessment — a think-tank affiliated to the U.S. Department of Defence that specialises in “unlikely scenarios” — commissioned a consulting firm to study energy security in Asia. Analysts on the job, mostly 20-somethings just out of college, realised China was building several ports along the Indian Ocean coastline. They literally connected these dots on the map, suggesting them to be a “string of pearls” with which China would encircle and expand its presence in the region. Within months, the phrase became a buzzword. Never mind some of these “pearls” were cargo ship docks and civilian facilities: here was a term the ‘strategic community’ could put its finger on, while talking up China’s belligerent schemes on the world.

More dignified in its lineage but equally fanciful in scope is another phrase currently doing the rounds — the ‘Indo-Pacific.’ In one fell swoop, it brings together the Indian and the Pacific Oceans, and with it the maritime strategies of India, China, the United States, Australia and the ASEAN littoral states among others — countries which have vastly different blue-water orientations, objectives and not least, naval capabilities. C. Raja Mohan’s Samudra Manthan fashions the Indo-Pacific into an important “geopolitical theater” which will soon witness fierce maritime rivalry between India and China. Why so? Because, well, you know, both are rising powers and also, you see, globalisation is bringing countries in the region closer, and what’s more — here it comes — the seas are connected! Throw in the United States’ announced Asia “pivot”, a term that the Obama administration is yet to flesh out clearly and the stage is set for a grand tale about Great Power oceanic tussle, replete with nuclear deterrents in the high seas and the possibility of space warfare between India and China.

My review of C. Raja Mohan’s Samudra Manthan, for The Hindu is here.

Rites of Passage

Fri, 01 Mar 2013 07:43:00 -0500

Caravan Magazine

A hundred years ago, anthropologists,led by the French ethnographer Arnold van Gennep, began documenting ceremonies that marked transitions in the social status of people or groups. These ceremonies, which van Gennep called “rites of passage”, usually represented the transformation of individuals from one status to another—from adolescent to adult, maiden to mother, or living to dead. In van Gennep’s classification, these rituals had three distinct phases: separation, transition and incorporation. First, the individual would break away from her group, by shedding its collective psychosocial characteristics. Then, a series of elaborate rituals would test her “worthiness” to join the destination-group. The final cycle of rites would completely assimilate her identity with that of a new and distinct collective.

Van Gennep’s rites of passage offer a useful analogy to understand the significance of India’s two-year term on the United Nations Security Council, which comes to an end this month. Between 1992, when India last served as a non-permanent member of the Council, and the beginning of the present term in 2011, the country’s rise as an influential voice in international politics presented an opportunity to break with the past.

Pushing Africa aside in Mali

Fri, 18 Jan 2013 08:52:00 -0500

French jets are zipping past northern Mali, bombing the region and with it, a participatory framework that had thus far allowed African states to troubleshoot what is first and foremost a regional political crisis. France’s aerial assault and imminent deployment of ground troops is a volte face from its original plan to offer “logistical aid” to African peacekeepers in Mali. For all of French President François Hollande’s promises to treat Africa as a partner and friend, his government’s military intervention in the Sahel is proof that Françafrique is alive and well. Its monopoly over the rapid deployment of military force allows France to sustain a relationship of dependency with the continent, at a time when governments in North, West and Central Africa are struggling to control armed rebels.

The oped, written for The Hindu, is here

India and the autumn of the African Patriarch

Sat, 15 Sep 2012 11:30:00 -0400

I have an essay in the current edition of the EPW

What may follow the exit of the African patriarch may seem like a dystopic narrative but it is a plausible scenario within a decade or two, for most ‘stable’ sub-Saharan economies. It is verily a contingency that India’s business and foreign policy establishments must prepare for. I outline here a few steps that India-based MNCs and the government could adopt to buffer unpredictable developments in the political economy of Africa.

India's UNGA vote and initial thoughts

Fri, 03 Aug 2012 23:36:00 -0400

The draft that Saudi Arabia introduced on the floor of the UN General Assembly today is here. The voting record - 133 Y, 12 N, 31 A. India abstained.

The UN’s Webcast of GA proceedings is here. India’s EoV, offered by Hardeep Puri begins at 1:00:41. The resolution adopted by the Arab League on 22 July 2012 - the UNGA draft’s reference to which is cited by India as the primary reason for abstaining - is here.

This is essentially a throwback to India’s position circa February 2012, when the first draft on Syria this year was presented at the UN Security Council. Props to our Mission for negotiating a watered down draft - going by reports, the initial text explicitly endorsed regime change and sanctions, which invariably would have led to Ch. VII measures under Art. 42 at the Council.

That said, the Indian position now has become quite fuzzy, to put it mildly. I’m not sure what we were gunning for when endorsing the last UNSC draft; that resolution backed Article 41 measures which may include the severance of diplomatic relations. Yet, in the GA India claimed today that “unilateral” actions which call for cutting off such ties are not warranted.

Rather than restating its known position at the GA, India should have invested its time in explaining this abstention specifically.

I’m on the fly now, more on this in detail later.

EoV of the Day goes to Guyana (A) - ”primary responsibility falls on Syrian authorities for cessation of violence and attacks against civilians […] but the international community cannot turn a blind eye to armed attacks by opposition groups and terrorist elements […]” this resolution raises the concern of “undue partiality to an amorphous and unknown opposition.”

When interests and principles collide (July 16, 2012) The Hindu For the student based abroad,...

Fri, 20 Jul 2012 23:02:00 -0400

When interests and principles collide (July 16, 2012)

The Hindu

For the student based abroad, independent research on India’s foreign policy involves a seasonal pilgrimage to New Delhi’s temples of intelligentsia. The pursuit of reticent bureaucrats, both serving and retired, to the far-corners of the city in sub-Saharan weather can be a near-religious experience. Few emerge from this ritual unaffected — the cost of “field” research is usually sunstroke, dehydration, and if you are lucky, weight-loss. In need of inspiration, therefore, I reached out to a venerable alumnus who had not only survived this ordeal, but in the process also churned out a magisterial dissertation that still tops the list of required readings on post-Nehruvian foreign policy.

Shashi Tharoor responded graciously (and promptly, it must be said) to my request for an interview, but upon one condition: that I read the relevant chapter of Pax Indica first, for it “might answer most of my questions.” I am evaluating India’s current tenure in the United Nations Security Council, and in particular, how some decisions made by New Delhi in this period reflect upon its status as a superpower-in-waiting. Pax Indica, from a veteran commentator, seemed a timely publication that could outline contemporary India’s rules of engagement as a model for the world at large. The book itself was so accessible that I read it cover-to-cover in the course of a train journey. Yet, sadly, it seems I may have to schedule that interview with Mr. Tharoor after all.

Pax Indica can be divided, physically and ideationally, into two halves — the first written by Shashi Tharoor the politician, and the latter by Shashi Tharoor the analyst. The initial half is an uncritical view of India’s foreign policy to date and offers a rosy picture of most decisions made during the UPA I and II regimes. (To be sure, Pax Indica does not go any length to justify UPA actions. It comes down heavily on India’s visa regime post-26/11 and even ventures ever so slightly to reprimand UPA-II’s unstated policy of online censorship.) This is no gripe, as the author himself suggests Pax to be a work of “reflection, not scholarship.” But it does lead him to romanticise Nehruvian policy, and write, rather incredulously, that non-alignment positioned India favourably when its economy merged with that of the world in the 1990s. By Mr. Tharoor’s own admission, foreign policy has never gained traction in India’s popular discourse, but he insists non-alignment “reflected a broad national consensus.” In the same breath, he refers to non-alignment as a matter of compulsion, but extols Jawaharlal Nehru’s decision to march to the “tune of our own drummer.”

Regional hegemon

Pax Indica’s valuable contribution to the debate on India’s foreign policy is that it charts the growth of the country as a regional hegemon. Princeton’s G. John Ikenberry has identified the “hub-and-spoke” multilateral network that the United States created after World War II, which allowed it to guide the liberal, international order and reap its benefits simultaneously. Mr. Tharoor advocates a similar approach to India’s neighbourhood — India’s prosperity is intrinsically linked to the well-being of those nations with whom we share borders. But there is hardly a mention of the massive blunders that India’s foreign policy establishment walked into in Sri Lanka, Nepal, Maldives and Afghanistan. In Mr. Tharoor’s relentless forward march, there is no room to acknowledge India’s intrusive manipulations in Nepal, partisan realpolitik in Afghanistan and the covert and overt support provided to the LTTE during Indira Gandhi’s tenure. Sans admission, the first step to recovery, Mr. Tharoor’s strong policy prescriptions on India’s reinvigorating the sub-continent become less potent.

Pax Indica’s defence of Prime Minister Manmohan Singh’s determination to continue talks with Pakistan is eloquent and correct, but needlessly couched in a populist narrative. Take aside a few gratuitous cheers for Pakistan’s liberals, and the tone is largely patronising. As a nation “full of desperate young men without hope or prospects, led by a malicious […] military”, Mr. Tharoor writes elsewhere, “insisting on parity with Pakistan is to bring ourselves down to their level.” In the guise of pragmatism, therefore, his emphasis is on talks not on principle, but since there are few other alternatives.

Just as dedicated to the gallery is his treatment of India’s equations with China and the United States. To counter Chinese needling on Arunachal Pradesh and Tibet, Mr. Tharoor ponders aloud the possibility of holding up Taiwan as a similar trump card. While fully aware of the strategic implications of greater engagement with Taiwan as a separate (but not sovereign) entity, he justifies the same as being driven out of “self-interest.” As for Washington, it must reconcile with some ‘autonomous’ decisions made by India and strive instead for a concrete strategic partnership — one that would “give ammunition to the United States’ friends in New Delhi” against “reflexive” claims of imperialism. On India’s part, Mr. Tharoor suggests, strategic autonomy must not give way to “complacency.”

This faux-realism would be well-received if they did not clash so fundamentally with Mr. Tharoor’s desire to project an ethically grounded foreign policy for India, based on cooperation and coexistence. The second half of the book, which is just as pithy and lucidly narrated as the first, concerns itself with the most important themes surrounding Indian foreign policy today: those of soft power, bureaucratic reform, multilateralism and strategic autonomy. India’s democratic resume is brandished more than once, and there are repeated persuasions for a freer society which can then be exhibited as the Beacon on the Hill. But these ruminations are not free from the clutches of the “principles versus interests” debate.

India’s interests

Mr. Tharoor candidly admits that our interests must supersede issues of pure principle. According to him, promoting liberal democracy is in India’s interests, as is ensuring the country’s economic prosperity. Equally important is the protection of our territorial integrity. One wonders then, where Mr. Tharoor would draw the line between supporting armed intervention in a country (ostensibly for democratic purposes) and respecting its sovereignty. Or between condemning human rights abuses in Guantanamo Bay prison or due process violations by military tribunals and the price of a strategic partnership. Or for that matter, between respecting international legal obligations to open up sections of the Indian economy, and the well-being of marginalised domestic constituents.

From the soaring heights of grand strategy, these are issues to be settled in the dust and dirt of international politics. Mr. Tharoor’s answer, what he terms ‘multi-alignment’, is basically a fanciful elucidation of the phrase “playing it by the ear.” His conclusions are no different from the course that Indian foreign policy follows today, be it in the area of foreign aid, liberalised trade or nuclear deterrence. One former high-ranking diplomat told this grateful researcher recently that India has sought always to comply with international rules and norms, but would not hesitate to “tweak” the system where its interests suit thus. Mr. Tharoor’s “multi-alignment” attempts to cast away India’s “old obsession” with strategic autonomy and instead operate along an interest-based calculus without any sweeping assumptions. Like some quips and anecdotes in Pax Indica, these are merely old words in a new book jacket.

“The wisdom of these latter times,” Francis Bacon wrote on the idea of empire, “is rather fine deliveries than solid and grounded courses.” Indian diplomacy’s emphasis on principles, which Pax Indica acknowledges, reflects this wisdom. But if India were to emerge as a regional or even global power, it would have to deal, much like Bacon’s royalty, with the ‘petty’ concerns of “neighbours, their wives, their children, their merchants […] and their men of war.” The flourish of rhetoric, offered abundantly in Mr. Tharoor’s discourse, cannot ignore the tension between India’s role hitherto as a silent beneficiary of the international order and its aspirations to share responsibility for the system. Shashi Tharoor, conscious of this reality, offers a cogently argued analysis to bridge this divide — one, however, that does not illustrate a peace system modelled by India for the world, but one that seeks peace for India in the world. Indica’s Pax, in other words, not Pax Indica.

Reality check for Trinamool populism (The Hindu, June 25, 2012) The Calcutta High Court’s decision...

Tue, 03 Jul 2012 01:27:10 -0400

Reality check for Trinamool populism

(The Hindu, June 25, 2012)

The Calcutta High Court’s decision to annul the Singur Land Rehabilitation and Development Act has been billed as a major victory for the Tata group. It is not. For the conglomerate, which had already sought greener pastures in Gujarat to produce its Nano car, this is only a triumph on paper. Relocating its factory back to Singur is neither profitable for Tata Motors nor is it likely to risk taking on West Bengal Chief Minister Mamata Banerjee, favourable court verdict or not.

Instead, the High Court has struck at the heart of the Trinamool Congress’ populist politics. To see how, let’s trace the history of the Singur Act. The principle of “eminent domain” allowed the Left Front government in 2008 to acquire land in Singur. But the acquisition was made under central legislation, since West Bengal’s own law had lapsed back in 1993. The TMC, sitting in opposition then, took upon itself the cause of farmers who had lost their land and led agitations to recover the same. Ms Banerjee promised to return the land if she were voted to power in the next State elections. Once in government, however, the Trinamool Congress realised that returning the land would make the party seem opposed to industrialisation in the State — hardly the vaunted alternative to Marxian policy. So Ms. Banerjee’s government sought to create legislation from scratch for this purpose.

Recourse to legislative action offered three main benefits. For one, legislation could be expected to withstand shifts in political fortunes better than executive acts, which may last only till the next decisive by-election. Second, Trinamool representatives tied their own hands with a Supreme Court order prohibiting the return of land acquired for a public purpose, except by auction. Third, and more importantly, passing a law in the State legislature would be more “democratic” than an executive decision by the government. The TMC could wash its hands off any anti-liberalisation blame by touting the bipartisan character of legislation. And so the Singur Land Rehabilitation and Development Act was born. But the TMC’s populism stood contrary to correct and mandated constitutional procedure. Once the land had been acquired under central legislation, West Bengal’s legislators lost all capacity to make unilateral modifications subsequently. Any law passed to return the land had to receive Presidential assent, since land acquisition belongs to the Concurrent List of the Constitution. As for the Supreme Court ruling in question, its fine print suggests auction to be the correct method of return when the public purpose of acquisition has been “achieved” and there remains no other use — a bhoomi pooja and breaking of ground, as was the case with Singur, cannot meet this qualification.

The Singur Act sought to mask its true character by calling for a “takeover” of the acquired land — essentially, and as the Calcutta High Court has rightly observed, an acquisition of the land already “leased” to the Tatas. The Court’s decision is a welcome reminder that seemingly welfarist measures designed to overcome crises in the short-run cannot evade healthy democratic checks and balances.

Almost a month in Rwanda, my dietary intake can be neatly classified thus: + ++

Wed, 06 Jun 2012 07:23:00 -0400

Almost a month in Rwanda, my dietary intake can be neatly classified thus:

+ ++

Now Up at OJ: Harold Koh ASIL Speech on Syria

Fri, 30 Mar 2012 14:56:00 -0400

Now Up at OJ: Harold Koh ASIL Speech on Syria:

Via lawfareblog:

My confreres at Opinio Juris tell me that Harold Koh, Legal Adviser to the State Department, has given OJ the text of his address on Syria at the on-going annual meetings of the American Society of International Law (ASIL) with a request to post it. The speech was (updated) on-the record event; the text is [now] up at OJ, and here is the opening:

Statement Regarding Syria
Harold Hongju Koh
Legal Adviser, U.S. Department of State
American Society of International Law Annual Meeting
March 30, 2012

It is my honor to speak here again at the annual meeting of the American Society of International Law. A year ago, I spoke before this audience about the international legal basis for the United States’ military operations in Libya. In that same spirit of openness and dialogue, I am grateful for the opportunity to engage so many distinguished international lawyers in this room about the very serious challenges we face in Syria today.

Let me divide my comments this morning into three: First, what, precisely, is happening in Syria? Second, what are the U.S. government and the international lawyers within it doing to address the crisis? And third, by what legal principles should this crisis be assessed and lawfully and effectively addressed?

The Hindu debate and some quick responses to Amb. Gharekhan

Fri, 24 Feb 2012 11:36:00 -0500

Chinmaya R. Gharekhan, the PM’s former MidEast Envoy, and I debated the Indian response to the Syrian crisis in the op-ed pages of The Hindu today. I thank Amb. Gharekhan for taking the time and effort to respond to my assertions. Here are my thoughts on his rejoinder and queries posed therein.

Both Arun Mohan Sukumar and I agree that India’s vote was correct, but we seem to disagree on the rationale for the vote.

True. More importantly, our differing interpretations lead us to vastly divergent policy prescriptions. Amb. Gharekhan espoused a policy of non/dual alignment with Iran and Saudi Arabia, which at the end of the day, is no different from India’s traditional posture. I suggested India take a more active role to steer the crisis back to where it should be resolved, the UN.

He believes that in voting for the resolution, India set aside its geopolitical interests; I believe it is precisely these interests which dictated India’s vote, though it feels good to justify a vote as support for some principles.

Amb. Gharekhan is correct. Perhaps I should’ve rephrased to say “India set aside its established position”. That said, negotiating with BRICS to get a mandate for Syria at the UN is only going to strengthen India’s claim to a permanent seat. It reflects India’s commitment towards making the UN work, on which aspersions have been cast lately. Voting with the West may satisfy the sponsors of this Resolution, but other nations should be convinced as well that India has the temerity (if you will) to engage a crisis of this magnitude. I think Amb. Gharekhan is too quick to dismiss my argument as based solely on a moral or principled standpoint. It is not true to say that acting on the basis of moral conviction, as in the case of Syria, will yield little in terms of India’s national interest.

He talks of a Syrian-led transition. Is there such a thing? Is the negotiating process with the Taliban an Afghan-led process? Was the Libyan transition?

Both examples cited by Amb. Gharekhan are ones where military intervention was the first choice. Naturally, Afghanistan and Libya neither have the capability nor political will to broker a solution among internal stakeholders. This is exactly where Syria is headed. Supply of arms spills over to military intervention and there will be little scope for an organic transition.

The UN resolution - endorsing the Arab League proposal - tried to prevent this. As I’ve written, the backdoor for regime change was left open, and while that is no panacea to Syria’s crisis, it would’ve set the stage for what Nasr has called “Assadism without Assad”.

Sukumar does not seem to approve of the “Friends of Syria” forum. Does this mean that if India decides to join it, he would disapprove?

Yes, of course. In fact, reports from the Friends of Syria meeting in Tunis seem to suggest India has a representative in attendance. This is disappointing news. Having many nations in its corner may make Friends of Syria multilateral in letter, but not in spirit. The concept is no different from Bush’s invocation of a “coalition of the willing.” India’s acquiescence sends out the signal that it is willing to let other nations undercut the UN for crisis resolution when there is no consensus at the Security Council. If New Delhi had the muscle to pull it off, sure, this could be attractive. But not for a nation that aspires to permanence in the same entity it is sidestepping now.

I am not at all persuaded that if the Security Council resolution had been allowed to pass with abstentions by Russia and China, it would have acted like a magic wand and prevented sectarian violence.

Suppose that the Resolution had been passed. Given that Russia and China - two of Syria’s primary arms exporters - were on board (or atleast not standing in the way) Assad would have had to eschew violence or step down. The violence in Syria is reactionary - the Free Syrian Army is not on the offensive, but trying to consolidate its strength. Sectarian discontent would likely be prevalent even if Assad steps down, but it is difficult to foresee the present scale of violence had the Resolution come through.

Minimum Nuclear Deterrence and a Roadmap for Regulation

Wed, 22 Feb 2012 11:35:00 -0500

This week, at the Boston Universty Research Conference on “Shifting World Order: The Reallocation of Power in the International System” I will moot a proposal to regulate nuclear deterrence postures of the N5+3, given that disarmament is a distant goal. My starting point is India’s CMD doctrine and her wholehearted acceptance of the ICJ’s advisory opinion on the use or threat of use of nukes. Can a synthesis of the ICJ’s opinion set the roadmap for regulatory frameworks in this field? I say yes - but strategic concerns cannot be wished away. Comments/criticism welcome.

CMDIndiaSukumar

Front-row seats to witness the Vietnam National Symphony...

Fri, 28 Oct 2011 20:57:00 -0400

Front-row seats to witness the Vietnam National Symphony Orchestra’s first tour to the United States. What a historic moment!

Big shout-out of appreciation to Ambassador Nguyen Vu Tung and Prashanth Parameswaran.

'Fog of Conspiracy Theories'

Fri, 15 Jul 2011 23:54:00 -0400

In [EPW], my response to Anand Teltumbde’s ‘Imperial Justice and Indian Frenzy’

EPW Fog of Conspiracy Theories

Earthy reality needs soaring rhetoric

Sun, 10 Jul 2011 02:03:00 -0400

[The Hindu]

By outlawing Salwa Judum, the Supreme Court performed its fundamental duty by the Constitution and set the issues in a rich, rights-based framework.

In the 1970s, the Supreme Court of India was called upon to decide the constitutionality of Excise Rules that allowed the State of Punjab to regulate the number of days, even hours, when liquor could be sold.

In a judgment peppered with literary references, ranging from Thomas Bacon to Bernard Shaw, the court considered the adverse effects of alcoholism and ruled in favour of the State. “The statutory scheme of the Act is not merely fiscal but also designed to regulate and reduce [the] alcoholic habit,” the court wrote, rather provocatively. But the verdict, delivered by one of the most eloquent judges to grace the Bench, was neither an indictment against drinking nor a call for total prohibition. The court intended to situate the case in its socio-economic context, and embellish the legal conclusions with references to literature and even popular culture.

This is no unusual practice: some of the most celebrated judgments in India and in other countries have been richly endowed with observations from sociological studies, political treatises and economic surveys. The most powerful constitutional courts in the world, like those in India, South Africa and the United States, have often used allusions to support landmark decisions and ground them in a rights-based framework.

Therefore, it must not come as a surprise that the Supreme Court’s recent decisions in the Salwa Judum, Greater Noida land acquisition and black money matters have been infused with a liberal dose of such ingredients. Nonetheless, the Supreme Court has received flak for its observations in these cases for being “simplistic,” “too sweeping,” and rather ironically, “judgmental.” While the rhetoric has certainly soared in these decisions, to suggest that the court’s remarks in these cases are tantamount to judicial overreach is ridiculous and far-fetched.

To be sure, the Supreme Court in these verdicts has neither chastised the “neoliberal” policies of the state nor prescribed a course correction. It has merely expressed displeasure over the damaging consequences of these policies, which often result in the deprivation of constitutionally guaranteed rights. The same court that now finds itself in the dock for ideological overtures has in the past quoted Adam Smith with approval, even endorsing the free market economy.

But to construe these observations as affiliation towards a particular ideology or policy is incorrect. If the words of Joseph Conrad and Joseph Stiglitz have found their way into these judgments, it is only to underscore the point that the state’s so-called “growth-oriented” policies have led to a gradual erosion of fundamental rights. A remedy to this situation is certainly the business of the judiciary.

In Nandini Sundar, the court found that the Chhattisgarh government exercised arbitrarily, and abused its power under, the Police Act to create a militia. By outlawing Salwa Judum, the Supreme Court not only performed its fundamental duty in checking executive power but also upheld the rights of civilians. In Ram Jethmalani, the court found the state wanting in its measures to curb the exodus of black money. As with the 2002 Gujarat riots, the Supreme Court was well within its constitutionally defined parameters to appoint a Special Investigation Team when the administrative machinery had been callous or complicit. InGreater Noida Industrial Development Authority, the court quashed hasty land acquisition by the Uttar Pradesh government that violated due process. In addition to upholding the rights of farmers to their land, the court condemned the unjust enrichment of the real estate lobby facilitated through skewed policies.

To arrive at these conclusions, the court cannot, and should not, rely solely on textual interpretations of the law. The Constitution is an organic document that operates not in isolation, but in tune with the lived realities of people. As the custodian of the Constitution, it is the duty of the Supreme Court not only to invalidate any arbitrary actions of the state but also to remind the government that its policies cannot undercut guaranteed rights. The observations of the court, or obiter dicta, are by no means binding on the government, but they often serve as a compass set towards an administrative policy that is in tune with the ideals of the Constitution.

Differences in both versions (Civil Society and Govt.) of the Lokpal Bill - my compilation as a...

Sun, 26 Jun 2011 01:31:00 -0400

Differences in both versions (Civil Society and Govt.) of the Lokpal Bill - my compilation as a graphic in The Hindu.

Differences in Lokpal Bills

100 Days in Libya

Sat, 25 Jun 2011 08:03:00 -0400

[Update: I’ve linked to the results of a WaPo-Pew survey that finds a sizeable section of Americans to have approved of Obama’s drawdown plan]

When NATO began its military offensive in Libya, the question, it seemed, was not whether Muammar el-Qaddafi would step down from power. To the crusaders of humanitarian intervention, it was only a matter of time before the Colonel relented to NATO’s military might. On Sunday, 100 days would have passed since Odyssey Dawned over Libyan skies, and the same question is being asked again, only now with a hint of desperation: when will Qaddafi relinquish his hold?

Soon, say Western diplomats and policy makers. But for all the foregone conclusions of his exit, the eccentric dictator has shown little signs of budging. Amidst air strikes and heavy bombardments, Qaddafi has still managed to make appearances in public and on television – the latest of which shows him engaged in a game of chess with the president of the World Chess Federation. Although the media’s narrative continues to be that of a fugitive on the run, it is clear that NATO operations have only strengthened Qaddafi’s resolve to dig his heels in.

Meanwhile, the military operation is itself unraveling, troubled by a series of cracks within the coalition. Norway was among the first members to contemplate a sharp reduction in forces. The massive influx of refugees and the irrevocable damage caused to its economic links with Libya have prompted Italy to call for a ceasefire. While the request has been spurned by NATO, there are few who doubt that the coalition is struggling to find consensus.

Not the least of NATO’s problems is the American attitude towards operations in Libya. The United States has chosen to stay behind the scenes, showing no enthusiasm to contribute more resources than it already has. Yet, there has been no dearth of lectures from Washington, which Europe finds increasingly unpalatable. Outgoing Defence Secretary Robert Gates warned of a “dim” and “dismal” future for NATO, if its European members were not willing to loosen their purse strings for professed commitments. Not surprisingly, these remarks were met with condemnation in Paris, diagnosed by President Sarkozy as “stemming from a bit of bitterness”.

The Obama administration is on a sticky wicket back home, where the President’s refusal to seek authorization for Libyan efforts under the War Powers Resolution has strained relations with the US Congress. Last Friday, the House of Representatives overwhelmingly rejected a resolution that sought to support the mission. The vote was largely symbolic, but the displeasure expressed along bipartisan lines was a strong indicator of war-weariness among the American people.

To top it all, the NATO operation in Libya has been a complete public relations disaster from its inception. Egged on by evangelists of the ‘Responsibility to Protect’, the coalition went into Libya with the high and noble aim of “protecting innocent people”. Broadening the scope of the mission “to include regime change would be a mistake”, said President Obama. Months later, with little to show for their progress, the United States and its allies openly espoused regime overthrow. Driven to desperation, the coalition increased the intensity of air strikes while Qaddafi’s compound and installations in Tripoli were heavily bombarded.

Equally embarrassing has been the number of civilian casualties caused by NATO operations – increasing in frequency of late - described often as “accidents” without remorse or apology. All pretence of gradualism has been abandoned and NATO is now locked almost in an existential struggle to prove its relevance in Libya.

The rebels, or the Transitional National Council as they are called, have not been able to make much headway in this battle. Cities have continued to change hands, like the oil-rich region of Ras Lanuf, or remained under siege, like Misurata. Under the present circumstances, Libya is looking down the barrel towards a long, drawn out civil war. Moreover, the military intervention and ensuing bloodshed has only entrenched positions on both sides, leaving little scope for a diplomatic solution.

The coalition’s failure to achieve its “humanitarian” ends in Libya runs the risk of turning the discourse from air-strikes to troops on the ground. It can be easy to forget that UN Security Council Resolution 1973 intended to protect civilians by establishing a no-fly zone in Libya. NATO has gone well beyond the Resolution’s mandate, taking refuge under its widely drafted provisions. Venturing further in such a quagmire will only prove to reinforce the painful lessons of Odyssey Dawn.

A regrettable decision to pull the plug in the Congo

Thu, 16 Jun 2011 12:40:00 -0400

India’sdecision to withdraw its four Mi-35 attack helicopters from the UN Peacekeeping Force (MONUC) in the Democratic Republic of the Congo (DRC) is a regrettable one, as it is strategically flawed. A ‘capacity deficit’ back home is the ostensible reason behind such a pullout. However, indications are strong that the contractual tenure of these helicopters was not renewed because New Delhi felt the returns from such expenditure were not being reflected at the UN headquarters in New York. The decision, symptomatic of an attitude that the volume of India’s UN Peacekeeping contributions alone should win it a place at the Security Council, is both counterproductive and dangerous at once.

Indian officials have claimed they need these helicopters to fight the Maoist insurgency, but the bogey of ‘internal security’ is far from convincing. One is at odds to understand how four attack helicopters are urgently required to counter the Naxal threat, when the Indian Air Force has clearly ruled out any offensive in the region.

Instead, the decision to withdraw the helicopters stems from a perception that our peacekeeping contributions lack the bargaining chip to influence UNSC reform. We may have only seen the first step in a gradual drawdown of troops and contribution to the Blue Berets. In the Congo, the relationship between civilians and Indian peacekeepers has long been uneasy, as leaked US diplomatic cables accessed by the Washington Post highlight. According to a cable dated back to 2009, India refused to receive a delegation that comprised the Congolese Foreign Minister and a UN Special Representative for the region, despite repeated entreaties from the DRC government. The delegation had sought to deliver a letter from President Joseph Kabila, asking the Indian peacekeeping contingent to stay on.

Beyond the presidential elections in November this year, the fate of our peacekeeping mission in the Congo is uncertain. As it were, the Mi-35 helicopters formed the cornerstone of air operations, acting as a deterrent against attacks on civilians. Withdrawing them at a critical juncture before the elections is hardly a comforting move. If peacekeepers on the ground are also removed after November, the UN Mission in the Congo will be ill-prepared for a fresh spate of post-electoral violence. In short, if the region relapses into civil war, India would be guilty of creating an environment conducive to chaos.

More telling is the decision to withdraw the helicopters on our conduct as a responsible international power, especially at a time when India is occupying a seat at the high table in the UNSC. Sulking into a corner and withdrawing humanitarian assistance when our strategic ambitions are not met is hardly becoming of a country that aspires to a permanent seat in the Council. The decision exposes the lack of clarity in India’s diplomatic maneuvering and lays bare our naked ambition and willingness to be held hostage to a UNSC seat.

Any decision to reduce our involvement in UN peacekeeping missions will deal a severe blow to multilateralism. While the United States and its military alliances have undertaken unilateral invasions in different parts of the globe, India has been a faithful and valuable contributor to peacekeeping by the UN. Imperfect as it may be, the UN remains the last bastion and hope for emerging countries to raise their say in global affairs. If India pulls the plug on its peacekeeping contributions, other nations would soon follow suit, leaving the field open for interventions in the garb of ‘Responsibility to Protect’. Apparently, Uruguay has also threatened to withdraw its troops from the Congo.

By withdrawing from its peacekeeping responsibilities, India strikes at the very roots of its ambition to be a prominent member of the international community. Thankless as it may be, efforts to keep the peace in some of the most troubled regions of the world indicate our commitment to international peace and security, as envisaged by the UN Charter. Any decision to the contrary must be taken with great caution, for the risks are many and the consequences grave.

Behind the Pakistan F-16 deal, a tale of many wheels

Mon, 30 May 2011 08:01:00 -0400

[The Hindu]

The sale by the United States of F-16 military aircraft to Pakistan, announced in 2005, was celebrated as a sign of deepening strategic ties between Islamabad and the Bush administration in Washington. Described by Secretary of State Condoleezza Rice as an attempt to “break out of the notion that [India and Pakistan are in] a hyphenated relationship,” the decision was met with anguish in New Delhi. But leaked U.S. diplomatic cables suggest that the sale was used only to further America’s broad strategic interests, with Pakistan standing to gain little from the deal.

The despatches, from the U.S. Embassy in Islamabad, indicated that the deal was, among other things, meant to assuage Pakistan’s fears of an “existential threat it perceived from India.” The diplomatic cables, accessed by The Hindu through WikiLeaks, suggested that the purpose of the sale was to divert Pakistan’s attention from “the nuclear option,” and give it “time and space to employ a conventional reaction” in the event of a conflict with India (151227: confidential). Privately, however, the U.S. acknowledged the “reality” that the F-16 programme would not change India’s “overwhelming air superiority over Pakistan.” In fact, the cables bluntly assert that the F-16s would be “no match for India’s proposed purchase of F-18 or equivalent aircraft.”

Given India’s “substantial military advantage,” one cable (197576: confidential) even surmised that the F-16s would at the most offer “a few days” for the U.S. to “mediate and prevent nuclear conflict.”

Fully aware of such limitations, the U.S. continued to press ahead with the deal, and cables document hectic parleys to bring it to fruition. Before the agreement was signed in September 2006, the U.S. played hardball to make Pakistan sign the Letter of Acceptance (LoA). Islamabad had threatened to delay it further, raising additional demands. The U.S. Ambassador to Islamabad, Ryan Crocker, suggested that Washington “convene” the Pakistani Ambassador, Ali Durrani, to remind him that “missing the deadline [to sign the LoA] would have serious ramifications.”

“Do not think there is a better deal out there if this one expires,” was one of Ambassador Crocker’s suggested bargain lines for Washington to use (77877: confidential/noforn). The agreement was inked two weeks after the cable was sent.

At the time of signing the LoA, Major General Tariq Malik, Additional Secretary in the Ministry of Defence Production, had expressed reservations about the payment schedule as an “immense strain on Pakistan’s fiscal and foreign exchange reserves…, jeopardising growth.” But Mr. Malik’s memo was dismissed by Mr. Crocker as “separate from the valid, legal contract” (80337: confidential/noforn).

But when “a cash-strapped” Pakistan government approached the U.S. two years later for Foreign Military Financing (FMF) to perform mid-life updates for the existing F-16 fleet, the succeeding Ambassador, Anne W. Patterson, was concerned that Washington would be “rewarding economic mismanagement.” The annual disbursement of FMF had “produced a culture of entitlement within the Pakistani military,” according to the diplomat (151227: confidential).

Why, then, did the U.S. push hard to realise the agreement, apart from the stated objective of “additional business for U.S. defense companies”?

If, according to American diplomats, the threat from India was the primary consideration for the Pakistan military, the F-16 sales would not tilt the strategic balance by their own admission. However, the cables suggested that the U.S. was confident that Pakistan would “still fully invest in its territorial defense, despite current economic challenges.” On the other hand, “our [U.S.] cancelling the sale would emphasize that we favor maintaining Indian superiority at Pakistan’s expense and feed anti-Americanism throughout the military” (197576: confidential).

Another reason to sell F-16s, according to the same cable, was to “exorcise the bitter legacy of the Pressler Amendment” in the 1990s, when the U.S. refused to deliver F-16s that Pakistan had paid with “national money.” Pakistan was even made to undertake costs for storing the fighters in Arizona. For the Pakistan military, the new deal would be tangible proof of the “post-9/11 bilateral relationship.

Avoiding a blow-up

“The bottom line is that Pakistan cannot afford the $2 billion required to complete this F-16 program,” wrote Ambassador Patterson in 2009 (189129: secret). “At the same time, nothing is more important to good military-military (and overall U.S.-Pakistani) relations than avoiding a blow-up over the F-16 case.”

Even if the sale was considered only “symbolically important” by the U.S., the deal came with many strings attached.

The U.S. was more interested in the use of F-16s by Pakistan for counter-terrorism purposes along the Af-Pak border.

Although the Pakistani Air Force (PAF) had been disinclined to use F-16s “due to the risk of collateral damage in civilian areas,” Ms. Patterson suggested linking the FMF for mid-life updates to “explicit commitments by the PAF that accept Close Air-Support training” (151227: confidential).

A year after the agreement was concluded, Pakistan learnt that mid-life updates for the F-16s could only be performed in a third country. Since the LoA did not bear any references to “cryptokeys” for the aircraft, officials were also worried that the U.S. would withhold the capability of the F-16s. When these concerns were raised by President Pervez Musharraf and Air Chief Marshal Tanvir Mehmood, the U.S. response was hardly comforting.

“We know many in Washington are dismayed by what they consider a juvenile reaction on Pakistan’s part. The Pakistanis do not fully understand our requirements for sharing encrypted devices and need to be reassured that the aircraft will still fly without the cryptokeys.” (122429: secret)

Eventually, it was agreed that Pakistan would pay $80 million to perform the updates in Turkey. The U.S. also expressed concerns about basing the F-16s in Pakistan due to “concerns about potential technology transfer to China.” The outcome? Pakistan was made to fork out another $125 million to “build and secure a separate F-16 base” (197576: confidential).

The purported aim of selling the F-16s to Pakistan was to “yield foreign policy benefits for the U.S.,” but the cables reveal that these benefits were gift-wrapped almost always at Pakistan’s expense.

The bin Laden raid? Nothing “official” about it

Wed, 11 May 2011 10:31:00 -0400

If the ‘bin Laden’ story has grabbed eyeballs, equally intriguing are the many versions of the Abbottabad raid that have been doing the rounds. These narratives, often at odds with each other, have mostly been sourced to “officials” in both U.S and Pakistan. From the moment American helicopters are supposed to have entered Pakistani airspace, there have been multiple prevarications over what actually transpired.

Pakistan’s involvement in the episode has been highly debated. On May 5, three days after the raid, BBC News carried a story titled “Bin Laden killing: What did Pakistan know?” A Pakistani intelligence official, named simply as ‘Ayaz’, is quoted as saying, “The first we knew they [US] were coming was after they had crossed the Durand line”. Jets were apparently scrambled to intercept the helicopters, but “called back when the US informed the High Command”. The Wall Street Journal’s account of May 9, however, is entirely different. The WSJ, relying on “people familiar with Army Chief Kayani’s thinking” reported that the latter was “in his study” during the raid and made aware of the situation only when “a helicopter had crashed in Abbottabad”. The call from his US counterpart came not during the raid, but “four hours” later, according to WSJ. On the other hand, a Xinhua dispatch filed immediately after the raid cited “eyewitnesses” saying “electricity had been cut off during the operation”, raising suspicions of Pakistan’s complicity. The latest on this count comes from the Guardian, which has revealed a “secret deal made almost a decade ago” to let the US conduct a unilateral raid in Pakistani soil.

Takes on the final moments of bin Laden have massively fluctuated. “After a firefight, they killed Osama bin Laden”, announced President Obama on the night of the operation. The next day, a “senior” official expressly stated that bin Laden “had resisted the assault force”. On May 3, however, the story changed course when Jay Carney, the White House Press Secretary, briefed reporters that Osama “was not armed”. Subsequently, the New York Times learned from “American officials” that OBL had “two guns within reach”. The confusion hardly ends here. Subsequently, the Washington Post spoke to “unnamed officials” who claimed that bin Laden was spotted in “the doorway of his room” and was shot while “retreating”. The latest account from NYT does not help things. “Osama was with his wife, along with children in the bedroom”, goes the report. The source? That’s right, “officials”. Even peripheral details have been shrouded in mystery. After being officially diagnosed as “mechanical failure”, it was suggested (officially) that an air vortex had caused the malfunction of a U.S. helicopter. But as wonks began to speculate that the helicopter used might have been a secret, “stealth” model, media reports suggested that the commandos might have blown the machine up to destroy leading evidence of the same.

For ‘Operation Geronimo’, the truth is competing with fiction to be stranger. Officially