The Hindu Editorial Analysis | 22nd Nov ’19 | PDF Download

Boomerang BSNL rings in ₹7,500-cr. loss in the first half

• State-owned telecom firm BSNL’s loss during the first half of the current financial year stood at more than ₹7,500 crore, Union Communications Minister Ravi Shankar Prasad informed Parliament on Thursday.
• During the period (April-September 2019), the PSU’s revenue stood at ₹9,034 crore. The figures, however, are unaudited.
• As per the figures shared by Mr. Prasad, BSNL’s loss in fiscal 2018-19 stood at ₹14,904 crore on revenues of ₹19,321 crore. The company clocked a net loss of ₹7,993 crore on revenues of ₹25,071 crore in 2017-18.
• The Union Cabinet had, in October, approved a package worth almost ₹70,000 crore for the revival of the two firms, while also giving an inprinciple nod for the merger of the two entities. Replying to a separate query, Mr. Prasad said that at present, there was no proposal for disinvestment of the two firms.
• Two centuries of colonial rule visited many cruelties upon Indians. One form that this took was the criminalisation and stigmatisation of entire populations that did not “fit in” to a certain, narrow way of life. Through laws such as the Criminal Tribes Act, for example, indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labour was the norm.
• While Independence and the Constitution were supposed to herald a new dawn, the reality turned out to be different. The post-colonial Indian state replicated many of the worst excesses of the British regime. One glaring example of this is the “beggary law”, which was enacted in Bombay in 1958, and later extended to many States and Union Territories. These draconian laws criminalise itinerant and nomadic communities, i.e., effectively anyone who does not fit the state’s definition of a “normal” citizen. And in establishing a system of “certified institutions” that are little better than detention centres, they facilitate the continued stigmatisation and incarceration of some of the most vulnerable and marginalised segments of society.
• Last month, however, in a landmark verdict, the Jammu and Kashmir High Court struck down that state’s iteration of the Beggary Act. In a detailed judgment, its Chief Justice Gita Mittal identified the colonial origins of the law and found it to be a gross violation of human dignity, equality, and freedom. The Chief Justice’s reasoning serves as a powerful reminder of the colonial vestiges that remain with us, seven decades after the birth of the constitutional republic. And, more importantly, it shows us a path to reach that ‘something of freedom that is yet to come’

The Beggary laws

• What do India’s beggary laws say? The first striking thing is how broad the definition of “begging” is. Among other things, “begging” is defined as “having no visible means of subsistence and wandering about or remaining in any public place… in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms”. Thus, beggary laws go substantially beyond criminalising the act of begging; rather, they criminalise people who are “wandering about” and who look like they might need to beg at some point. It is evident that the purpose of such provisions is not to protect public peace or prevent crimes, but to effectively “cleanse” these spaces of individuals who appear poor or destitute. It is the legislative equivalent of shops putting up “spikes” outside their doors and windows to prevent rough sleeping.
• The substance of these laws is worsened by the process. People found “begging” can be arrested without a warrant, and after a summary procedure, thrown into “Beggars’ Homes” for anything between a year and three years. Upon a “second offence”, the punishment could extend up to seven years. More specifically, the Jammu and Kashmir Prevention of Beggary Rules, framed under J&K’s version of the Act, authorised forced medical examinations of “beggars” taken in police custody, “shaving” of hair and “removal of clothing” in order to undertake the euphemistically-phrased “cleansing” of the body.
• The petitioner before the High Court, Suhail Rashid Bhat, challenged the Beggary Law, on the grounds discussed above. The government, on the other hand, defended the law on the ground that it was necessary to make “good citizens” out of “beggars”, and that it was necessary to maintain public order. The government also argued that “beggars” caused annoyance to tourists, and that it was essential to crack down on “organised begging.”

The court’s analysis

• In a careful and detailed judgment, the court responded to each of these contentions. The Chief Justice began by discussing the origins of beggary statutes in England. Under the belief that people without settled — and visible — means of sustenance were a threat to society, a number of “vagrancy statutes” were enacted and served as precursors to the beggary laws. In India, begging was first criminalised in the 1920s, as part of a colonial logic that sought to “subjugate certain communities by imputing criminality to them.”
• The High Court then made the crucial observation that “begging and homelessness are indicators of abject, chronic poverty.” And poverty, the court noted further, had social causes: “Beggary is a manifestation of the fact that the person has fallen through the socially created net. It is evidence of the fact that the State has failed to ensure that all citizens have even the basic essential facilities.” The court, therefore, rejected the pernicious world view according to which poverty is a consequence of individual failings, and recognised that the primary failing was that of the state.
• Having established this, the court then addressed the question of fundamental rights. As “begging” was a peaceful method by which a person sought to communicate their situation to another, and solicit their assistance, it was protected under Article 19(1)(a)’s freedom of speech guarantee. The government’s stated justification for criminalising “begging” — that of turning people into “good citizens” — was vague and undefined; nor was it demonstrated how incarcerating “beggars” into homes would transform them into “good citizens”. The constitutional violation, thus, could not be justified. The court also noted that by criminalising “wandering about” in public spaces, the law effectively attempted to exclude the poor and the marginalised from places that, by definition, were meant “for the enjoyment of every member of the public without exception.” Thus, the law also violated the constitutional guarantee of the freedom of movement.
• Additionally, the court noted that there existed a large number of itinerant communities such as the Gujjars and the Bakarwals, whose very nature of existence — moving from place to place, and displaying none of the “conventional means of subsistence” — would bring them within the ambit of the beggary law. As the court pointedly asked: “Does ‘visible means of subsistence’ envisage waving your economic prosperity in public spaces? Or is it sufficient to have a hefty bank balance?”
• And finally, the Chief Justice observed that by effectively criminalising poverty, the beggary law violated basic human dignity. The legislation, it noted, was “steeped in prejudice against poverty and premised on an absolute presumption of potential criminality of those faced with choicelessness, necessity and undeserved want of those who have no support at all, institutional or otherwise and are bereft of resources of any kind”. This, coupled with the draconian processes under the Act, violated the right to life and personal liberty under Article 21 of the Constitution.

Submerging individual rights

• Recent years have seen the rise of a phenomenon that can best be described as “punitive constitutionalism”. Punitive constitutionalism seeks to submerge individual rights to a grand yet often undefined national project by holding that an individual may be stripped of their rights if they do not do their bit to contribute to this project. For example, laws barring political participation to those who have more than two children (thus submerging the right to participate to the imperatives of population control), or who lack formal education, effectively make freedom and equality conditional upon the state’s vision of what a “good citizen” should be like. Rights, then, are no longer about being human, but about earning the right to be treated as a human.
• The beggary laws belong within this same family of punitive constitutionalism. The Jammu and Kashmir High Court’s judgment, therefore — which is explicitly premised upon the unconstitutionality of “invisiblising” a social problem by criminalising it (as though it is a matter of individual fault) — shows us the exact way in which our Constitution rejects this harsh world view. For that, it must be applauded.

Sectarian divisions

• Despite the existence of multiple parties in both countries, government formation has become a rotating door process with the same leaders alternating in office. Second, sectarian divisions are breaking down with members of all sects joining hands in challenging established primarily sect-based parties and their leaders. Third, there is revulsion among the Iraqi and Lebanese populations against foreign interference and the outcome of the protest movements could have a major impact on the balance of power in West Asia. This adds to the strategic importance of the Iraqi and Lebanese movements.
• The Lebanese polity has been divided on confessional and sectarian lines since the independence of the country in 1943. Government offices as well as representation in Parliament are distributed on the basis of sectarian quotas. This provided confessional-based parties and militias a strong foothold in Lebanese politics. The Hezbollah’s dominance of Shia politics is the primary example of this phenomenon but Christian and Druze militias also operate on the same principle.
• Iraq was under brutal Baathist rule for decades until the American invasion of 2003. The American occupation by destroying the state structure in the country spawned sectarian militia and parties that acted as security providers for their communities thus turning all politics into sectarian politics.
• The current protest movements in Lebanon and Iraq that cut across sectarian lines indicate that both countries are moving towards transcending sectarian divides and eroding the control of the traditional confession-based leaderships. The most remarkable example of this potential turnaround is the challenge posed to the Hezbollah (which has dominated Shia politics in Lebanon for decades) from within the Shia community itself. But the challenge is not limited to the Hezbollah. The Sunni Prime Minister Saad Hariri has also lost the confidence of his Sunni constituents and has been forced to resign although he continues in a caretaker capacity. The Maronite President Michel Aoun is under pressure from his Christian constituency to do so as well. Similarly, the Shiadominated government of Iraq is facing the wrath of its erstwhile Shia supporters thus upending sectarian calculations. Even Shia leaders such as Muqtada al-Sadr have called for the resignation of Prime Minister Adil Abdul-Mahdi, who incidentally was the preferred choice of both Iran and the United States after the last Iraqi elections.

 International repercussions

• There is a major international angle to these developments as well. If the upheavals in Lebanon and Iraq succeed, the biggest loser will be Iran. What U.S. President Donald Trump’s policy of “maximum pressure” on Tehran to curtail its growing regional influence has been unable to achieve, could well be attained by the Iraqi and Lebanese demonstrations against Iran’s influence in these countries.
• The Hezbollah’s loss of credibility among its Shia constituents, who form a plurality in Lebanon, is likely to translate into Iran losing much of its influence in Lebanon, which Tehran considers essential both to confront Israel and to provide support to the Assad regime in Syria. Iraq is even more important in strategic terms for Iran. Given its bloody experience of the Iran-Iraq war of 1980-88, Iran cannot afford to have a less than pliant government in power in Baghdad.
• What has Tehran very worried is that some of the largest and most virulent demonstrations against the Shia-dominated Iraqi government and against Iran itself have taken place in Shia-dominated cities and towns in southern Iraq. It is remarkable that Shia protesters attacked the Iranian Consulate in the holy city of Karbala and attempted to set fire to it. The leading Iraqi Shia cleric Grand Ayatollah Ali al-Sistani’s endorsement of the demands of the Iraqi protestors for the resignation of the Iran-backed government in Baghdad has further rattled the Iranian regime.
• Anti-Iranian demonstrations in Iraq have prompted Iran’s Supreme Leader Ayatollah Khamenei to blame “foreign elements”, code word for American intelligence agencies, for inciting the protest movements. The Iranian leadership sees them as an attempt to punish Iran for not accepting American diktat on the nuclear and other related issues. Tehran has several instruments it can use to prevent radical change in Iraq including the Shia militias trained by the Islamic Revolutionary Guard Corps. However, the deployment of these militias by the Iraqi government to crush the protest movement has boomeranged and led to the exacerbation of anti-Iranian sentiments that cuts across sectarian lines.

 Future of protest movements

• The question that is very difficult to answer is whether the protest movements in Lebanon and Iraq have the organisation and the staying power to bring down the current regimes. So far, the protests have persisted because of spontaneous action. The experience of the short-lived Arab Spring in 2011 does not provide cause for optimism that such spontaneous action can be sustained over the long term.
• Even more important, there is no guarantee that the protest movements, given their amorphous and spontaneous nature, can provide viable alternatives in terms of coherent governing structures to either Iraq or Lebanon. If they fail to do so then there is the distinct possibility that one or both of these countries may descend into anarchy once the current power structures crumble and alternative arrangements capable of providing governance and security are not put in place quickly.
• If the protest movements succeed in providing viable long-term alternatives to the present regimes, they will herald the beginning of a non-sectarian and democratic future for West Asia. If they fail, the Arab world will continue to remain mired in the same dysfunctional mess in which it has been trapped for the past several decades.
• While one hopes for the former outcome, one cannot rule out the possibility that the latter scenario may come to pass.

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