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The Hindu Editorial Analysis | PDF Download -

Date: 07 March 2019

Back to life

  • Belated acquittal of death row convicts highlights the need to junk the death penalty
  • It is a tale of Kafkaesque horror. Six members of a nomadic tribe spent 16 years in prison in Maharashtra; three of them were on death row for 13 of these years, while the other three faced the gallows for nearly a decade. One of them was a juvenile at the time of the offence. And all this for a crime they did not commit.
  • The only silver lining for the six convicts is that even though 10 years had elapsed since the Supreme Court imposed the death penalty on them, the sentence was not carried out. Hearing on their review petitions became an occasion for another Bench of the Supreme Court to revisit the 2009 verdict.
  • A three-judge Bench has now found that unreliable testimony had been used to convict the six men. One of the two eyewitnesses had identified four others from police files as members of the gang that had raided their hut in 2003, but these four were not apprehended. The gang had stolen ₹3,000 and some ornaments, killed five members of the family, including a 15-year-old girl, who was also raped. It is possible that the heinous nature of the crime had influenced the outcome of the case. The belief that condign punishment is necessary for rendering complete justice could be behind courts brushing aside discrepancies or improvements in the evidence provided by witnesses. On a fresh hearing of the appeals, the court has concluded that the accused, who were roped in as accused in this case after being found to be involved in an unrelated crime elsewhere, were innocent.
  • The case, in itself, holds a strong argument against the retention of the death penalty on the statute book. Had the sentence against these six been carried out, the truth would have been buried with them.
  •  In recent years, the Supreme Court has been limiting the scope for resorting to the death penalty by a series of judgments that recognise the rights of death row convicts.
  • A few years ago it ruled that review petitions in cases of death sentence should be heard in open court. In a country notorious for “the law’s delay”, it is inevitable that the long wait on death row, either for a review hearing or for the disposal of a mercy petition, could ultimately redound to the benefit of the convicts and their death sentences altered to life terms.
  • In a system that many say favours the affluent and the influential, the likelihood of institutional bias against the socially and economically weak is quite high.
  • Also, there is a perception that the way the “rarest of rare cases” norm is applied by various courts is arbitrary and inconsistent.
  • The clamour for justice often becomes a call for the maximum sentence.
  • In that sense, every death sentence throws up a moral dilemma on whether the truth has been sufficiently established. The only way out of this is the abolition of the death penalty altogether.

Flying in the face of the demand for transparency

  • The Comptroller & Auditor General’s report on the Rafale deal is a let-down
  • The report of the Comptroller & Auditor General (CAG) on the Rafale fighter aircraft deal throws up more questions than it answers.
  • This aircraft deal is referred to as an Inter-Government Agreement (IGA) — between France and India. The nomenclature itself is difficult to understand in the context of events prior to April 10, 2015 when the Prime Minister decided, in a public pronouncement, to purchase 36 Rafale aircraft manufactured by France’s Dassault.
  • The United Progressive Alliance (UPA) government, through a global tender, had shortlisted two fighter aircraft: Dassault’s Rafale and the Eurofighter Typhoon, which is made by four European nations. The price bid of the Rafale was found to be lower than that of the Eurofighter. The UPA then decided to negotiate the terms and conditions for the acquisition of 126 Rafale aircraft.
  • This was not a government-to-government (G-to-G) contract, since any contract pursuant to a global tender cannot possibly be G-to-G. No global tenders were floated when the UPA bought defence equipment from either Russia or the United States; these were G-toG contracts. Under the UPA’s 126 planes deal, 18 were to be manufactured by Dassault and the remainder, 108, were to be manufactured by the Hindustan Aeronautics Ltd. (HAL) under transfer-of-technology by Dassault.
  • In March 2015, Èric Trappier, the CEO of Dassault, publicly said the deal with HAL was 95% complete, with the balance to be hopefully finalised soon.
  • But the Prime Minister scrapped this deal and instead decided to purchase 36 aircraft, excluding HAL from the transaction. The supplies were still to be made by Dassault and not the French government. Yet, the deal is referred to as an IGA and not a G-to-G.

Akin to a new deal

  • Following the Prime Minister’s decision, the consequence was that all conditionalities relating to the purchase of the aircraft, including its price, were to be negotiated post his announcement, and contrary to Defence Procurement Procedures (DPP).
  • In one sense, given the manner it was done, the purchase of the 36 aircraft was an entirely new deal. The Prime Minister’s announcement in 2015, made on French soil, put the Government of India in a very piquant situation, as it was bound by the unilateral decision of the Prime Minister.
  • The Prime Minister’s Office (PMO) was directly involved and interfered in the delicate negotiations that were to follow. This undermined the procedures contemplated under the DPP as well as the position of the Defence Acquisition Council (DAC), which under the DPP, was entitled to negotiate the deal.
  • File notings that have been made public have embarrassed the PMO. Allegations of the PMO having undermined the negotiating position of the Defence Ministry ring true. In this, two features transformed the nature of the transaction: first, the inclusion of an offset partner, and second, the exclusion of HAL in the manufacturing of the remainder (the 108 aircraft).
  • The deal is not even an IGA, far from it being a G-to-G contract, because Dassault, a private company, and not the French government, is the supplier of the 36 aircraft. Consequently, the French government has refused to guarantee the supply of the aircraft in terms of the contract. Since Dassault was responsible for the supply, the contract should have retained the integrity clause along with clauses pertaining to commissions. The clauses relating to penalties and anti-corruption should not have been excluded. The PMO, presumably, intervened to have these clauses removed. No reason has been given as to why this was done and at whose instance.
  • Withdrawal from the deal by the DAC would have embarrassed the Prime Minister. Therefore, the French government found it easy to reject stipulations that would later embarrass them. The guarantee for supplies was replaced by a Letter of Comfort, which in legal terms, is not enforceable. Even payments by the French government to Dassault through an escrow account was rejected, perhaps because the French did not wish to be saddled with that responsibility.

Many faultlines

  • The CAG has let us down in more than one way.
  • First, its report limits itself to the pricing issue of the 36 aircraft and concludes that the deal was 2.86% cheaper than the one which was to have been finally negotiated by the UPA.
  • The CAG report does not disclose all the facts and on non-transparent assumptions arrived at this conclusion. It is difficult to scrutinize the rationale behind this conduct.
  • Second, the CAG has chosen not to deal with the cavalier manner in which the Prime Minister picked 36 aircraft off the shelf.
  • Third, the report ignores the procedures required to be followed under the DPP of 2013.
  • It also chooses not to refer to the dissent notes of the Indian Negotiating Team and thus fails to provide justification for overruling them. Further, it fails to explain the reasons why the anti-corruption and other clauses were not included in the final terms of the contract. Though the CAG comments on the issue of financial impact of not providing for guarantees, it chooses not to deal with reasons why guarantees were not provided for.
  • What is most surprising is that the CAG seeks to criticise the UPA for choosing the Rafale but is silent on the Prime Minister’s decision to endorse the purchase of the aircraft.
  • The objective for reducing the number of aircraft from 126 to only 36, to augment the depleting strength of the Indian Air Force, does not seem to have been achieved as the report itself concludes that the delivery schedule under the new deal is shorter only by one month when compared to the timelines under the UPA’s deal.
  • By not rising to the occasion, the Office of the CAG has let itself down. The CAG has gone out of its way to protect this government. It is the integrity of the office of the CAG that needs protection.

A strange paradox for Indian women

  • Better education is not leading to better job opportunities, marriage prospects or freedom of movement
  • Abigail Adams, wife of the second President of the U.S. and mother of the sixth President, wrote to her husband, “If particular care and attention is not paid to the ladies, we are determined to foment a rebellion.” As last year’s #MeToo movement and Sabarimala protests showed, perhaps Indian women are echoing her and are ready to foment a rebellion.

Education And Employment

  • What fuels these movements? Could it be that the very success of India’s economic transformation brings with it a stark realization that it has not paid particular care and attention to women? The most promising sign of the improving conditions of Indian women lies in declining inequality in education. In all villages and towns, mornings and afternoons are brightened by the smiling faces of girls and young women, dressed in their uniforms, walking to school. Almost all girls go to primary school and, according to the India Human Development Survey (IHDS) of 2011-12, 70% of girls aged 15 to 18 are still studying, only five percentage points less than boys. They frequently outperform boys. In 2018, in the Class XII CBSE examination, 88.31% girls passed, compared to 78.99% boys. However, in spite of rising education and rising aspirations, labour markets and social norms constrain women, almost as if they are all dressed up for a party with nowhere to go.
  • Data from the National Sample Survey Office (NSSO) and the IHDS show that education and employment have a U-shaped relationship. Illiterate women are most likely to participate in the workforce.
  • Work participation drops sharply for women with primary and secondary education and rises only with college education. Research by Esha Chatterjee and colleagues in a paper published in the journal Demographic Research, using data from the IHDS, further documents that this relationship holds even after we take into account income of other members of the household, social background and place of residence.
  • Employment opportunities that are open to their mothers, including farm labour and non-farm manual work in construction, hold little appeal to secondary school graduates who have invested their hopes in education. However, white-collar jobs are either not available or demand long hours and offer little job security in this time of a gig economy.
  • NSSO data for 25- to 59-year-old workers in 2011-12 show that among farmers, farm labourers and service workers, nearly one-third are women, while the proportion of women among professionals, managers and clerical workers is only about 15%.
  • Young men with Class 10 or 12 education find jobs as mechanics, drivers, sales representatives, postmen and appliance repairmen. Few of these opportunities are available to women. Whether employers choose not to hire women in these positions or working conditions make for an inhospitable environment for young women is not clear. Educated women’s main employment options lie in qualifying as a nurse or a teacher or looking for office jobs.
  • The importance of marriage
  • If barriers to work participation are not enough, young women’s lives are also circumscribed by social norms that shape their family situation. Marriage remains the only acceptable fate for young women in India. Whereas a third of Japanese women and 11% of Sri Lankan women aged 30- 34 are single, less than 3% of Indian women are single at that age.
  • Moreover, women’s education does not seem to carry the same value in the ‘marriage market’ as caste, the family’s economic status and horoscope.
  • Research from other countries shows that educated women marry similarly educated men. But in India, women frequently marry men with lower education than themselves. Zhiyong Lin and his colleagues at the University of Maryland find that whereas less than 5% women married men whose education was lower than themselves in the 1970s, the proportion has grown to nearly 20% recently.
  • If rising education for women does not offer increasing income-earning opportunities or better marriage prospects, does it at least give women greater autonomy in other areas of their lives?
  • Based on recent National Family Health Survey data, there seems to be little evidence that a moderate level of education offers women a greater say in household decisions or freedom of movement outside the home. College graduates fare slightly better, but even for them, the difference is relatively small. For instance, 48% of women with no schooling do not go to a health centre alone; the proportion for college graduates is only slightly lower at 45%. This is a strange paradox. Parents make tremendous sacrifices to educate their daughters, and young women joyously work hard at school in search of a better life, only to have their aspirations frustrated by economic and social barriers that restrict their opportunities. Is it surprising that periodically their frustration takes the shape of a social movement? What is surprising is that their demands are not more strident, and that no political party has chosen to espouse their cause.

 WOMEN’S VOTE

  •  If women were a caste, their cause would be championed by political parties now trying to mobilise caste-based vote banks. We would see proposals for women’s quota in government jobs and higher education. If women were an economic class, we would see subsidies and a variety of other economic incentives showered on them.
  • However, our political process sees women as an extension of the men in their households and assumes that no special effort is needed to win their hearts and minds.
  • Sociologist Raka Ray has presented a sophisticated analysis of the relationship between political parties and women’s movements. She has argued that in the 1980s and 1990s, the CPI(M) in West Bengal had an ambivalent relationship with its women’s wing, and domestic violence was seen as a function of class oppression, with frustrated, unemployed men beating up their wives. In more recent history, the discourse regarding marriage, divorce and inheritance has been co-opted by communal politics.
  • As we head into an election season, perhaps it would be wise for political parties to remember that women form half the voting population. The American experience is salutary in this regard. The 2018 House of Representatives elections in the U.S. that brought victory to the Democrats were shaped by the Democrats winning women’s votes by an overwhelming margin. According to the PEW Research Centre, Democrats won 59% of women’s vote as opposed to 40% for Republicans; among men, they won 51% versus the 47% won by Republicans. Let us hope that some political party will figure out that women are not simply extensions of their husbands and fathers and campaign on a platform that focuses on creating economic and social opportunities for women.