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The Hindu Analysis - 2nd Nov'19

Date: 02 November 2019

The Cabinet Secretariat on Friday notified rules reasserting the Union Home Ministry as the authority that would decide on the imposition of the Armed Forces (Special Powers) Act (AFSPA) in the Union Territories of Jammu and Kashmir and Ladakh.

The Act, which empowers security forces to conduct operations anywhere and arrest anyone without a warrant, has been in force in Jammu & Kashmir since July 5,1990.

Under the J&K Reorganisation Act, 2019, the Union Territory of J&K will have a Legislative Assembly, but Ladakh will not have one. While the Lieutenant-Governors of the two Union Territories were sworn in on Thursday, there have been no indications as yet on the Assembly elections in Jammu & Kashmir.

Earlier, before the State of J&K was bifurcated and downgraded, it was the Home Ministry or the Governor that was the designated authority for notifying the AFSPA.

Friday’s notification also renamed the Department of Jammu and Kashmir in the Ministry as the Department of Jammu, Kashmir and Ladakh Affairs. The notification included the Hindi translation of the name in Roman script — “Jammu, Kashmir aur Ladakh Vibhag”.

The government said the department would be responsible for all matters relating to the two Union Territories, including counter-terrorism within Jammu and Kashmir, and coordination with the Defence Ministry for manning and managing the Line of Control between India and Pakistan, but excluding those matters with which the External Affairs Ministry is concerned.

“All matters falling within the purview of the Union Government in terms of the provisions of the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), relating to both the Union Territories, except all such matters as have been specifically assigned under these rules to any other Ministry or Department of the Government of India,” the notification read.

In Ladakh, the Department of Jammu, Kashmir and Ladakh Affairs would be responsible for all matters enumerated in the State List and Concurrent List in any such matter, except all such matters as have, under these rules, been specifically assigned to any other Ministry or department of the Government of India.

‘WhatsApp did not inform govt. of system breach’

  • It is legally bound to do so under the IT Act, says official
  • Instant messaging application WhatsApp failed to inform the government of a breach of its system through an Israeli spyware despite being legally bound to do so under the IT Act, a highly placed government official said.
  • The official from the Ministry of Electronics and Information Technology, who did not want to be named, pointed out that the company’s CEO Will Cathcart had met Telecom and IT Minister Ravi Shankar Prasad in July, while Nick Clegg, vice-president for global affairs and communications at Facebook which owns WhatsApp, met Mr. Prasad in September.
  • “During the meeting, when the issue of traceability was discussed, the company representatives raised pleas of privacy... but failed to inform of a breach on their platform, particularly when Indians could have been affected, given that we are one of the biggest markets for them,” the official said.
  • The government is yet to take a call on whether any action will be taken against WhatsApp.

 

  • “WhatsApp, being an intermediary in India, is governed by our laws. Hence, we have first asked them for information, citing media reports. Once their reply comes, we will see what needs to be done.”
  • Questioned about the Centre dealing with Israeli technology firm NSO Group, accused by WhatsApp of the said intrusion using Pegasus spyware, the official said the government doesn’t work with it. The NSO Group claims on its website that its products are used “exclusively” by government intelligence and law enforcement agencies “to fight crime and terror.”
  • In fact, WhatsApp’s unwillingness to be transparent about security-related issues may be looked into when giving a nod for it to start payment services in India, as security is of utmost importance here, the official said.
  • The government will stick to its demand for identifying the source of the malicious messages, the official added.
  • In a statement, WhatsApp said, “We agree with the government of India’s strong statement about the need to safeguard the privacy of all Indian citizens.”
  • “In May we quickly resolved a security issue and notified relevant Indian and international government authorities. Since then we’ve worked to identify targeted users to ask the courts to hold the international spyware firm known as the NSO Group accountable,” the statement said.

Auto, white goods sales up in October

  • The festive season brought some cheer for the automobile and white goods sectors.
  • The auto industry saw positive demand in October after months of falling sales. However, the industry is in a wait-andwatch mode to see if the positive trend signals a turnaround for the sector or if the demand was merely due to the festive fervour.
  • In October, Maruti Suzuki posted a growth of 2.3% in passenger vehicles — wholesale, at about 1.41 lakh units — compared with a year earlier. Sequentially, the company’s sales grew nearly 26% from about 1.1 lakh units in September 2019.
  • White goods saw a growth of up to 35% compared to last year.
  • In the weeks following the government’s decision to amend Article 370 and divide Jammu and Kashmir into two separate Union Territories, the government sent out a number of diplomatic missions worldwide to try and contain the international fallout of the move. External Affairs Minister S. Jaishankar travelled to China, Europe and the United States where he addressed a record “7 think tanks in 7 days” and met a number of officials and lawmakers during an extended stay. National Security Adviser Ajit Doval and Petroleum Minister Dharmendra Pradhan went to the West Asian countries: the United Arab Emirates (UAE), Saudi Arabia and Qatar. Prime Minister Narendra Modi personally spoke to U.S. President Donald Trump and other leaders to explain his move. On a visit to Switzerland, even President Ramnath Kovind found that the “situation in Kashmir” had been put on the agenda by his hosts.
  • Meanwhile, Foreign Secretary V. Gokhale marshalled diplomats at all Indian missions worldwide and cancelled a planned Heads of Missions meet in India to ensure that each embassy was able to fully disseminate the talking points sent out by South Block.

Varied results

  • The concerted efforts by the government met with mixed results. The UN Security Council held a “closed meeting” on the issue at China’s request — the first time Kashmir was formally on the agenda in 50 years — but to India’s relief, the meeting resulted in no public statement. The European Parliament too met and debated the situation in Kashmir, which it had last referred to more than a decade ago, but did not push for a resolution. After a visit to Srinagar, 23 right-wing Members of the European Parliament (MEPs) appeared to endorse India’s actions, but German Chancellor Merkel’s characterisation of the situation of Kashmiris being “unsustainable”, during her Delhi trip on Friday will be more worrying for the government. At the UN Human Rights Council, Pakistan was unable to secure the numbers to bring a resolution to the table.
  • At the UN General Assembly in September, only three countries other than Pakistan, referred to the post-370 fallout in J&K: China, Malaysia and Turkey. A scathing statement by the Organisation of Islamic Cooperation (OIC) contact group (Turkey, Azerbaijan, Niger, Pakistan and Saudi Arabia) on the government’s actions in Kashmir has been blunted by the Prime Minister’s visit to Riyadh. In the U.S., Mr. Modi scored a big public relations win when he spoke of the 370-move at a Houston stadium with Mr. Trump in the audience.
  • But New Delhi still faces the risk of a U.S. Congress resolution after the subcommittee on Human Rights in South Asia hearing last month, and critical language on Kashmir detentions and the lockdown introduced into the Senate Appropriations bill. Much of this, as Mr. Jaishankar admitted at a public event, is fuelled by dozens of articles in the western media.
  • Beyond its need to control the international messaging over Kashmir with more tactical diplomacy, however, it is necessary for the government to carefully consider the larger impact on Indian foreign policy that has resulted from its actions leading up to, and subsequent to the amendment of Article 370 of the Constitution on August 5. Three tenets of that policy, in particular, appear to have been violated.
  • To begin with, the issue of Kashmir has been “internationalised” in a manner not seen in decades, at least since the early 1990s when violence in the State was at a peak. In 1994, when India had last come close to a resolution against it at the UN Human Rights Council, Prime Minister P.V. Narasimha Rao had sent a high powered delegation with then-Opposition leader Atal Bihari Vajpayee, J&K leader Farooq Abdullah and Congress leader Salman Khurshid to Geneva. Not only was the delegation successful in ensuring that Pakistan withdrew its resolution against India before the vote but the question of a resolution at the UN did not rear its head again, until this year.

Pakistan’s shadow

  • The second tenet is the “hyphenation with Pakistan” that New Delhi has always sought to avoid. Under this policy, India managed to separate its policies in J&K from its relationship with Pakistan and dealing with terror emanating from there. However, especially after the Pulwama attack and the Balakot strikes in February this year, it is clear that in capitals worldwide, events in Kashmir are now increasingly conflated with fears of an India-Pakistan conflict. Much of the hyphenation is self-inflicted as the government raises Pakistan as a salient point on its agenda at every international forum, including at the Non-Aligned Movement (NAM) summit last week.
  • The third tenet being challenged now is India’s traditional rejection of “mediation by third parties”. In February, Mr. Trump claimed success in mediating the release of Indian Air Force pilot Abhinandan Varthaman, and has followed up that effort with repeated mentions of wanting to mediate on Kashmir between India and Pakistan, including in September during his bilateral media interaction with Mr. Modi. Others including everyone from the UAE and the Kingdom of Saudi Arabia, to Norway, Russia and China have made similar offers.
  • What makes these diversions from India’s traditional foreign policy more troubling is they are necessitated despite the fact that India has a decided upper hand over Pakistan in the international community, and at a time Pakistan’s establishment has little credibility for its own Kashmir policy and its support to terror groups.

Signals even from friends

  • Furthermore as New Delhi targets China, Turkey and Malaysia as part of its “zero sum” game with Pakistan, it must recognise that international criticism of its actions post-370 is largely coming from other countries that enjoy the best relations with India, and by leaders in those countries who have often spoken up for India. Most of that criticism is over the treatment of citizens in J&K, the prolonged detention of mainstream Kashmiri leaders, the communications shutdown, and the lack of access to independent observers.

Spillover effect

  • The biggest worry pertains not so much to the change in traditional policy as it does to lasting or permanent damage to “Brand India” as a democratic and pluralistic country, respected for decades as a rational power. In the U.S., for example, concerns over the government’s actions post-370 are now often clubbed with questions about a changing nuclear stance (No First Use, or NFU, amendments), and the repeated threat from Cabinet ministers that India will seek to “take back” Pakistan occupied Kashmir (PoK) by military means if necessary. Those concerns are bleeding into other issues like the National Register of Citizens (NRC) in Assam as well, which both the U.S. Congress and the UN discussed in tandem with Kashmir this past month.
  • As the government fights all aspects of this perception battle worldwide, it is banking on the fact that criticism in world capitals will peter out once it lifts restrictions in J&K, contingent on its ability to control any violent aftermath. In that sense, its predicament is akin to that of a man who has stepped on a landmine, and now hesitates to lift his boot for fear of triggering an explosion, but equally, knows he cannot stand in that position for unlimited time.

Cramped prisons

  •  Jails in India remain crowded as few States have implemented reforms for decongestion
  • With an average occupancy rate of 115% of their capacity, Indian jails continue to remain congested and overcrowded, numbers in the National Crime Records Bureau’s “Prison Statistics India – 2017” report have revealed. In 16 of the 28 States covered in the report, occupancy rate was higher than 100% with States and Union Territories such as Uttar Pradesh (165%), Chhattisgarh (157.2%), Delhi (151.2%) and Sikkim (140.7%) faring the worst. Despite the Supreme Court and other institutions regularly raising the issue of prison reforms and decongestion in jails, it is evident that the measures taken have been piecemeal in most States.
  •  While overall occupancy rates have come down from 140% in 2007 to 115% in 2017, only a few States have, in this period, gone about building more jails or increasing capacity in prisons in line with the changes in inmate population. Some States such as Tamil Nadu have reduced their prison occupancy rate (to 61.3%) by increasing the number of jails and their capacity besides reducing arrests for actions unless there is a cognisable offence made out.
  •  Rajasthan and Maharashtra have not managed to augment jail capacity to fit in the increased inmate population in the past decade, while States such as U.P. continue to have high occupancy rates because of increased inmate population despite a relative increase in prison capacity.
  • More than 68% of those incarcerated were undertrials, indicating that a majority were poor and were unable to execute bail bonds or provide sureties.
  • There were a series of recommendations made by the Law Commission of India in its 268th report in May 2017 that highlighted the inconsistencies in the bail system as one of the key reasons for overcrowding in prisons.
  • Clearly, expediting the trial process for such prisoners is the most important endeavour, but short of this there are ways to decongest prisons by granting relief to undertrials.
  • The Commission recommended that those detained for offences that come with a punishment of up to seven years of imprisonment should be released on completing one-third of that period and for those charged with offences that attract a longer jail term, after they complete half of that period.
  • For those who have spent the whole period as undertrials, the period undergone should be considered for remission.
  • It also recommended that the police should avoid needless arrests, while magistrates should refrain from mechanical remand orders.
  • It is imperative that these recommendations are incorporated into law soonest.
  • A system of holding undertrials for too long without a just trial process in overcrowded prisons that suffer problems of hygiene, management and discipline, is one that is ripe for recidivism. There is a greater chance of prisoners hardening as criminals rather than of them reforming and getting rehabilitated in such jail conditions.

 Explaining the breach

  • WhatsApp has now filed a lawsuit against the Israeli firm in a U.S. federal court in San Francisco, alleging that the Israeli group had targeted WhatsApp users and is seeking a permanent injunction banning NSO from using its service. NSO disputed the allegations levelled by WhatsApp and said in a statement that the sole purpose of NSO was to provide technology to licensed government intelligence and law enforcement agencies to help them fight terrorism and serious crime. After it was revealed that Indian citizens were spied upon using Pegasus, the Indian government has sought an explanation from WhatsApp by November 4. There was also much outrage on social media with questions being asked of the Indian government and calls to boycott WhatsApp.
  • While the government has tried to shift the focus to WhatsApp, it is misleading the population at large by doing so. To understand this aspect, one needs to first understand how Pegasus exactly works and how it is able to track every activity on a target’s phone, and how WhatsApp is not the only gateway for Pegasus. In July and August 2016, there were multiple attempts to infect the phone of a Mexican health researcher with Pegasus by sending repeated messages that were emotionally stirring. These messages claimed various things such as his daughter had met with an accident with a link to the hospital she was admitted to, or that his wife was cheating on him with a link to a supposedly leaked photo. In all cases, the links were essentially exploited links, clicking on which would have installed Pegasus on the target’s phone. In fact, Citizen Lab which has investigated several cases of Pegasus infections around the world, including the ones in India, has shown through its research as to how social engineering is a very common strategy to deliver the most sophisticated spyware.
  • So, how is Pegasus able to spy on every aspect of your phone? Pegasus does so by exploiting vulnerabilities in the phone’s operating system. Smartphones have operating systems (OS) much like the desktops and laptops we use. While Android phones use a modified version of the famous open-source operating system Linux, iPhones use a mobile operating system called iOS which was created by Apple. Lookout, which is a cybersecurity company, had partnered with Citizen Lab to investigate the 2016 case and had found that the Pegasus software had exploited three zero-day vulnerabilities in iOS to successfully attain privileged user access of the phone. A zero-day vulnerability is a flaw in a software or hardware that is previously unknown to the party responsible, which in this case is Apple. In the specific case of 2016, upon clicking on the link, the Pegasus software was first able to exploit a vulnerability in the Safari browser which is the default browser in an iPhone, and then execute a Stage 2 code which was able to jailbreak the target’s iPhone to gained privileged user access. In the present case with WhatsApp, a specially crafted call was used to trigger a buffer overflow, which in turn was used to take control of the device.
  • The Android version of Pegasus spyware is called Chrysaor Malware and was found on about three dozen devices in 2017 according to a blog by Google. The Android version of Pegasus installs as an application on your phone, and uses a known root technique called framaroot. Rooting an Android phone enables one to get privileged user (root) access, and thus allowing the spyware to monitor various activities.
  • From social engineering to exploiting user apps such as WhatsApp or Safari and then eventually using the vulnerabilities in the underlying mobile operating system, NSO employs various techniques to target and take control of a user’s phone. The Google Play Store and the Apple App store house thousands of apps, many of which could have undiscovered vulnerabilities, and could potentially be exploited by firms such as NSO to target individual users.
  • Thus, we are barking up the wrong tree by focusing solely on WhatsApp. However, when an application like WhatsApp, the most used chat app, has a serious vulnerability, then the impact is much more widespread.

 Digital security

  • From a user point of view, to ensure the security of your devices, it is important to keep phones updated — both the applications and the firmware. Many smartphone users often disable automatic updates in order to save on data, but this also prevents security updates from being installed on the phones. It is extremely important to be self-aware about one’s digital security, as a compromise in that could lead to a situation of total surveillance.
  • Finally, the question that needs to be asked is who in India can afford millions of dollars to target phones of select individuals.
  • Pegasus is a state-of-the-art spyware, and NSO charges an exorbitant sum for its product and services. According to a 2015 contract, between the National Communications Authority of Ghana, Africa, NSO, and a local reseller, NSO was paid $8 million for the Pegasus spyware and associated services. Similarly, Mexican Federal agencies have reportedly purchased $80 million worth of spyware from NSO, from 2011 to 2017.
  •  As a company, NSO has offered services to various clients, and helped them hack a victim’s phone through a variety of methods. The government needs to investigate who in India can afford to hire NSO and is interested in targeting select activists, lawyers and journalists, especially when NSO itself claims that it sells the software only to government agencies.
  • The usual whataboutery about this being an attempt to defame the government is not going to be enough this time around.