Understanding Kesavanda Bharti

In the initial days of our Republic, the Supreme Court was of the view that any part of the Constitution can be amended by the Parliament by using Article 368. By this logic, things can go really awry.

So, imagine this.

In one Parliament session, the legislators bring hundreds of Constitution Amendment bills each attempting to amend an Article.

Won’t this essentially result in a new constitution? Should Parliament be allowed to amend whatever portion of the Constitution it wants to change? When does the amended constitution stops being our constitution?

This is where Kesavananda Bharati Case comes into the picture. I have divided the answer into three phases to bring out how the case came about. It is important to look at the case in its historical context.

Phase I : Nothing is Sacred

Just as I mentioned before,  the Supreme Court was of the view that the Legislature can change any part of the Constitution including the Fundamental Rights. Let’s look at a case which brings out the tussle between the Parliament & Judiciary quite clearly.

Just after Independence, one of the primary concerns of the government were land reforms. But a few Court decisions made it practically impossible for the government to carry out land reforms as the acquisition of Zamindari land was violative of the Right to Property. Frustrated that the Supreme Court doesn’t see the government’s obligations under the Directive Principles of State Policy as well as for general interest,  the government felt somewhat like this:

You know what! If our laws violate the constitution, we are just going to effing change the constitution.

So, the Legislature passed the First Amendment Act that let it carry out the land reforms.

Then, A few people thought:

“Are Fundamental Rights of any use if they can be so easily taken away through a Constitutional Amendment? Let’s go to the Supreme Court.”

 This case is called “Shankari Prasad v. Union of India”.

The ball was now in the Supreme Court. (Eh, Pun!) It said that Parliament has all the rights to do what it did.

The law in Article 13(2) does not include the Constitutional Amendment Acts. “Nothing is Sacred. Go home & Chill.”

Phase II: Fundamental Rights are sacred

Until 1967, Supreme Court was very clear in its opinion that Amendment Acts were not ordinary laws & they cannot be struck down by the application of Article 13(2) i.e. they can not be struck down for infringing the fundamental rights.

  • In 1967, in Golak Nath v. the State of Punjab, SC changed its stance. It ruled that the Parliament had no right to take away people’s Fundamental Rights. They are fundamental for a purpose.
  • Amendments are also laws within Article 13(2). So, a Constitutional Amendment too should be reviews if it violated fundamental rights.

This made Fundamental Rights sacred.

Now, The government was upset with Judiciary. And the government was like:

“Oh, Judiciary! How can you do this do me? It is our joint responsibility to look after the development of our country. Now, you are just being an A-hole by limiting my amendment powers. You are a stumbling block to the progress of this nation.”

Phase III: Nothing is Sacred but……

Until now, we have seen how the Supreme Court and Parliament were trying to one-up each other— Parliament by passing new Constitutional Amendment & Courts by its Judgements limiting the amending powers. To reverse the judgement that limited the amending power, Parliament came up with the 24th Amendment. This curtailed the power of Judicial review.

The Supreme Court said: 

“This is enough. Enough of your playing with the book. Let me put some ground rules now.”

This is our case of the century: The Kesavanda Bharti case.

The Supreme Court declared that the Parliament can amend the Fundamental Rights. Fundamental Rights were are not exempted from Article 368 which gives the power to amend the Constitution. But it realized how the Parliament cannot be given a free hand to amend the constitution left, right & center— the way it had been doing so far.

The Basic Structure Doctrine

The Supreme Court said that there are some basic principles that any constitutional amendment should be consistent with. It accepted that there are some core principles that can’t be taken away. Taking them away would essentially mean destroying the constitution. The court hasn’t exhaustively put down what the Basic Structure contains but it has given us an idea of what it is. Some components of the Basic Structure as put down by Supreme Court are:

  1. The Supremacy of the Constitution
  2. The Sovereignty of India
  3. The integrity of India
  4. The Republican form of the government
  5. ……

This was undoubtedly the most important Supreme Court case in the history of Independent India. Now, any constitutional amendment is looked at by the SC if it violates the Basic Structure. The SC has used that power too

For Example, by 99th Constitutional Amendment bill, National Judicial Appointment Commission or NJAC was formed to create a new way to select judges to the higher judiciary. The Supreme Court found that this violated the basic structure of the Constitution & the Act was Struck down as it destroyed the balance between the three arms of government.

Yay, that’s it. That’s all of it.

Kadyalwar Sunil Abhinav

Understanding The Logic Behind The Nuclear Non-Proliferation Treaty

All men may be created equal but all countries aren’t. There are “haves” & “have nots”. There is a hierarchy of countries where the countries on the lower rungs are patronized by the superpowers as if the “smaller” countries are kids who cannot comprehend the immense damage their toys can have. This is the logic behind the treaty for non-proliferation of nuclear weapons.

I understand that nuclear weapons are dangerous— they can kill us, not once but several times over. But if the larger powers cannot trust the Ayatollahs of Iran or the Kims of the North to use their nukes judiciously, how can the larger world trust a buffoon like Trump— who has the braggadocio of calling himself high-IQ— to not annihilate a nation for nothing majorly mad?

John Foster Dulles, the US Secretary of State, familiarised the world about a future of “nuclear plenty” in which

the pettiest & the most irresponsible dictator could get hold of weapons with which to threaten immense harm….

…. [We should] prevent the promiscuous spread of nuclear weapons throughout the world.

So, when in 1967, when the US, USSR, UK, France & China had already acquired the nukes, by making other non-nuclear countries also sign the treaty of non-proliferation of nuclear weapons or the NPT, the larger powers essentially said the following:

You know what, no country should acquire nuclear weapons now. We have them & we’ll keep them. You, on the other hand, must sign these papers & relinquish your right to ever acquire nuclear weapons capability. Yeah, there’s some part in the treaty about nuclear disarmament but who are we kidding, right? You know that’s a joke. And dear India, we are well aware that a nuclear China to your North is a perpetual gun pointed at your head & the Chinese will help Pakistan buy another gun to double your worries. But we don’t care. You must sign the NPT.

With the Non-Proliferation Treaty, every signatory gave up their right to acquire nuclear weapons. On the other hand, the five countries that had nukes in 1967 could keep them. This treaty was extended indefinitely in 1995. It is so clearly discriminatory treaty that creates nuclear “haves” & “have nots”. India has rightly refused to sign it & be a part of what it calls “nuclear apartheid”. 

India conducted its first nuclear test in 1974. But it had to abandon its nuclear program for another two decades. In 1998, India declared itself a nuclear power. Until 1998, India was a strong proponent of nuclear non-proliferation & disarmament. The Rajiv Gandhi Action Plan for nuclear disarmament showed immense faith in the power of diplomacy. But China already had nuclear weapons & the Indian intelligence had been warning us that China was helping Pakistan to acquire its own nuclear weapons. 

So, what do you think we should have done?

India never signed NPT because it firmly believes that it is a discriminatory regime. Being a non-signatory, other countries were barred from sharing nuclear technology with India even for peaceful purposes (because it can very easily be put to a destructive end).

But finally, the US has come to realize what was at stake for India. In 2008, India was granted “one-of-its-kind” waiver from Nuclear Supplier Group or NSG which takes care of the illegal transfer of nuclear material & technology. It wasn’t the US empathy or something but just pure self-interest. With that, India also accepted to have some of its nuclear facilities inspected by IAEA like the way other NPT signatories have to. India has gradually come to be seen as a legitimate nuclear power without signing the NPT. With its admission into NSG, India will be able to enjoy almost everything that an NPT signatory does.

And all that without signing the treaty.

Kadyalwar Sunil Abhinav

India & Russia: End Of A Bromance

Alexa, Play “Dost dost na raha.”

India & Russia are like two friends who had been together since childhood. Russia was there when India got into a fight with its neighbour. India tried Russia’s way of handling the finances— the “five-year plans”, giving credence to USSR’s economic system. Like they say in Pakistan, this relationship too was “higher than mountains, deeper than the ocean and sweeter than honey.”

But then, College happened. I mean, the Cold War ended.

Now, Russia doesn’t like India’s new friends. India doesn’t like Russia’s new friends. Both of them know that it will never be like the “good old days” when India imported most of its weapons from Russia & the latter vetoed anything that was against India’s interest at UN Security Council.

So, what changed?

Improved Sino-Russian Relations

Despite being two communist regimes, USSR & PRC split due to doctrinal differences after the death of Stalin. USSR’s Krushchev wanted a “peaceful coexistence” with the capitalist West but Mao didn’t. The relation got bitter with China calling Russia “the revisionist traitors”. In 1972, Nixon flew to China & joined hands with them. This was one of the reasons behind USSR’s fall as a large communist country like China wasn’t in the Soviet camp.

When Russia annexed Crimea in 2014, the Western countries imposed severe sanctions on it. Since then, Russia has been trying to woo China. In the Cold War, China was the junior partner. But today, Russia needs China more. Russia is the biggest supplier of Oil to China. Russia, which was reluctant to transfer defense technology to China in the 2000s, is selling its top defense equipment to China. Russia sold China the S-400 missile defense system. Both the countries are against the US-led world order. The US is also involved in a Trade War with China. This is causing Russia & China to come together in a kind of “alliance of autocrats”. Their trade is burgeoning & it crossed $100 Billion last year. In September, China & Russia conducted the largest joint military exercise since the Cold War— Vostok 18. Russia has been urging India to join China’s Belt & Road initiative which India opposes due to the fact that CPEC, a part of BRI, passes through POK & this is a violation of India’s sovereignty.

Henry Kissinger has apparently counseled Trump to pursue “a reverse Nixon China Strategy”. In Cold War, the US joined hands with China, the junior partner & isolated USSR. Now, Trump should seek to befriend Putin & isolate China.

Improved Russo-Pakistan Relations

After the fall of the Soviet Union, Andrei Kozyrev, Russia’s foreign minister from 1990 to 1996, declared that it would not discriminate between India & Pakistan. In recent years, Russia has also tilted towards Pakistan for currying favours from China.

Russia has always supported India on the Kashmir issue & vetoed any resolution on Kashmir issue in the UN Security Council. Recently, there has been a slight change in Russia’s stance on the Kashmir issue due to its increasing closeness to Pakistan. In December 2017, Russia supported Pakistan’s line on Kashmir in a first-ever six-nation Speaker’s Conference in Islamabad. It asked for a peaceful resolution of Kashmir issue through UNSC.

The pace of exchanges between Russia & Pakistan has increased drastically. In 2014, Russia sold four Mi-35 assault helicopters to Pakistan. In 2015, Russia & Pakistan carried out the joint anti-narcotic naval exercise called “Arabian Monsoon”. In 2016, the commandos of two countries carried out a joint exercise called “Friendship 2017”. In 2017, a Russian military delegation visited Pakistan’s North Waziristan tribal district, which was once known to be a Taliban emirate. In April, this year, the two countries signed a historic agreement allowing officers of Pakistan’s armed forces to receive training in Russia. As US’s relations with Pakistan weaken, we may see Russia occupying that place. But this is going to be interesting as any arms export to Pakistan by Russia will eat into China’s share of arms export.

India’s diversification of its arms purchases

India’s fear of putting all its eggs in one basket is not new. In the 1970s, India bought the Jaguar Bomber from a European Consortium to move away from an arms dependence on the USSR. India represents 12% of global arms purchases as its defense manufacturing capacity are not that great.

Just a few years back, India imported about 70% of its defense equipment from Russia. As the US is trying to boost India’s military power as a hedge against China in Asia, it has been more willing to provide high-end defense equipment to India which it did not provide before. Moreover, arms exports to India is great for the US from a commercial point of view too. This has led India to import most of its defense needs from the US in recent years. It has also signed foundational agreements like LEMOA & COMCASA which will ensure that India will buy more arms from the US to keep its military interoperable. As the US’s share increases, Russia’s declines. Israel too has always been willing to provide high-end defense equipment to India. Although its share is quite low compared to the US & Russia, Israel, too, has contributed to reducing India’s arms dependency on Russia. The drastic reduction in India’s arms imports from Russia has affected Russian revenue from the defense. A partnership solely based on defense purchases is going to suffer in the long term & that is what happened in the last few years.

India’s embrace of the United States

Post-1991, In the unipolar world led by the United States, India, as well as Russia, tried improving their relations with the sole Superpower. The 1998 sanctions on India after the nuclear tests were a small bump in the road for India but the relationship has travelled unimaginable distance since the 1998’s low.

India used to import about 2% of its arms from the US about a decade ago & that figure has gone to about 15% now. India’s trade with the US has increased & it is going to increase a lot in years to come. But Russia’s story has been a bit different. After Russian annexation of Crimea, the West imposed harsh sanctions on Russia. The allegations of Russian meddling in the US elections acted as a fuel to the fire. Russia is in an indirect war with the US in Syria where the two sides are funding two antagonistic groups.

So, India’s embrace of the US isn’t seen to be a great thing by Russia especially when the US is eating Russia’s share of defense revenues. The US law CAATSA is also a new roadblock in India’s defense acquisition from Russia. In spite of the threats of sanctions, India went forward and signed the deal to buy the S-400 Missile defense system. This, in a way, showed that India is strategic autonomous & it would not kowtow to any sanctions except those imposed by the UN.

India is also not too happy with Russian support to the Taliban. On this issue, India’s interests are more aligned with the US.

I think if India wants to be one of the powers in the multipolar world that China & Russia are trying to build, we should try not antagonizing anyone nation— Russia, the US, or China. While India’s defense imports are a testimony to India’s inability to manufacture arms domestically, they also provide us with a leverage over other nations. India should try diversifying its arms imports as much as possible.

But what about the time when India will have a world-class domestic arms industry? Isn’t that what the government is trying to achieve?

See that line representing Indian exports to Russia? The growth is almost non-existent. India-US relations, although heavily dependent on arms purchases aren’t entirely dependent on them. This is hardly a case with Russia. India needs to boost its trade ties with Russia. On the recent visit by Putin to India, India signed some agreements to open Indian markets for Russia. Russia too should work on liberalizing its restrictive visa regime so that Indian professionals can go work in Russia.

The other factors like Russia’s bonhomie with China & Pakistan will take care of itself.

Kadyalwar Sunil Abhinav

Is Communism Against The Rich?

If the wealth is not earned through the exploitation of labour, it isn’t a problem for the communist. Communists are only against capitalist mode of production. So, if a writer, a film actor, YouTuber or any person gets rich without exploiting the labour, it isn’t a big deal for the Communists.

What this means is this:

A Capitalist owns the Capital i.e. machines, raw materials, infrastructure, etc— all that goes into making a new commodity that can be sold in the market. Now, the Capitalist needs to hire a worker to make the product i.e. the Capital doesn’t reproduce itself. According to the Marxists, the Capitalist can only earn a profit if he pays the worker less than what he actually deserves i.e. if the worker has created a product worth Rupees 100, he is going to get a lot less than that. This is the exploitation of labour that Communists are against. If the Capitalist does not exploit the labour, he will soon find himself out of business because of the competition. Some other industrialist would exploit the worker no matter what. Due to the competition, the wages are eventually brought down to subsistence level & the worker is paid only enough to live & procreate.

That is why Communists want to overthrow Capitalism. They are not against the individuals but against the exploitation. They aren’t even against Capitalism— Capitalism is an essential step towards a Communist utopia that they imagine. If you read the first few pages of Communist Manifesto, you would realize how enamoured Marx was by the genius of Capitalism & the material progress it has brought.

So, suppose, you have a writer who write books and self-publishes them. He may become the richest person on earth but Communists would have no problem with him. But if he hires a person to research about say, 19th century India for a historical fiction he is writing, that is where labour comes into the picture. If that work is exploitative i.e. the writer isn’t given his due, the Communists are against it.

If all this sounds like it belongs to 19th Century & things are very different today, Read the following article by Ollie Lennard from the Philosophy Tube who explains how youtube exploits its content creators.

Vloggers of the World, Unite? A Marxist Analysis of YouTube

Prof. Richard Wolffe in this video does a great job of explaining the Capitalistic exploitation in the 21st Century.

Kadyalwar Sunil Abhinav

Ease Of Doing Business Rankings: A Critique

Reports that assess the business environment by speaking to experts or government officials capture the de jure processes of compliances and regulations. But there can be differences between de jure processes and de facto reality due to issues of implementation and understanding of systems by user enterprises. Hallward-Driermeier and Pritchett find that for comparable questions such as time taken to start a business or time taken to get construction permits, the results of the Doing Business reports of the World Bank and the Enterprise Survey globally are poorly correlated.

The above excerpt is not from the Wire, Scroll, Quint or NDTV. It is from NITI Aayog’s report on Ease of Doing Business published in 2016 which the Government of India later disowned. India jumped 23 places to occupy 77th position in the World Bank’s ‘Ease of Doing Business Rankings’. I hate to be a party pooper, but we should first understand what the World Bank’s Doing Business rankings really mean before we pop the cork.

World Bank’s Doing Business rankings are based on responses from experts, chartered accountants & lawyers. They are not based on how the entrepreneurs & businessmen look at the regulatory environment. Why should this matter at all?

Take the example of the Single Window System that the government brought to facilitate ease of doing business. This allows the companies to submit all their regulatory documents to a single entity or at a single place. This is a great move because it brings down the time businesses spend on paperwork. It also cuts down the corruption associated with multiple entities. So, if you ask experts, they will tell you that India has improved a lot in ease of doing business with this single move. But the NITI Aayog Report I discussed above suggests that businesses are not even aware of the Single Window System.

Only 20% of enterprises that started operations during or after 2014 said that they had used a single window system to set-up their business.

So, this rank shows you what reforms the government has taken but it doesn’t tell you if businesses are actually benefiting from them. There is a vast gap between what the enterprises know and what the government officials say they have done to improve procedures relating to various permits and clearances.

Another big flaw in World Bank’s EODB ranking is that its data source is limited to just two cities— Mumbai and Delhi.

One can argue that examples set by these two cities will be replicated in other cities. While a large proportion of India’s business takes place in these two cities, this cannot be representative of the entire country.

The Rankings take into account 10 parameters and rate countries based on it. India’s ranking improved mainly due to two factors:

  1. Improvement in dealing with construction permits (from a rank of 181 to 52) due to the new online building permit approval system in Mumbai that helped streamline and centralize the construction-permitting process.
  2. Improvement in “trading across borders” (from a rank of 146 to 80) as the government let the exporters seal their containers electronically at their own facilities, limiting physical inspections to 5% of shipments helped in trade facilitation.

This looks like a very thin thread to base the whole of India’s ease of doing business rank. India’s “paying taxes” ranking declined due to glitches in GST filing system and the associated time loss. The Insolvency & Bankruptcy code has been taken into account for resolving insolvency but It had no effect on the ranking.

So, what are the ground realities?

  1. Labour laws are still one of the biggest impediments to ease of doing business in India. Companies in labour-intensive sectors find the labour laws in India quite onerous. If India wants to avoid jobless growth, the government needs to reform the labour laws.
  2. Most States have made it easier to obtain land for business but ensuring clear property rights can make the land market more transparent & efficient. In many states like Rajasthan, obtaining land for commercial purposes is quite difficult. Registering property is a time-consuming process with registration fees that can go as high as 1% of property value.
  3. India got a score of 8.75 out of 35 in a global intellectual property index. This is published by the US Chamber of Commerce. The reason cited for the poor score is a “fundamental weakness” in India’s Intellectual Property laws. India ranks 44 out of 50 nations.
  4. There is a vast difference in the ease of doing business across various states. In poorer states, the compliance burden is large while in richer states, it is easy to do business.
  5. Similarly, companies with a low number of workers (upto 10 employees) face less difficulty in doing business while companies with a larger number of employees are burdened with regulatory burden. This prevents India from coming up with larger companies.
  6. Enterprises are not aware of the improvements in ease of doing business. Hence, they cannot leverage the steps taken by the government to smoothen the regulatory processes.
  7. In low-growth states, power shortage is still a problem. Addressing this will enhance the productivity & efficiency of the businesses.
  8. The GST filing system hasn’t stabilized yet. There are glitches in the filing process that can lead to huge time losses.

And finally, do the Ease of Doing Business ranking actually translate into foreign direct investment & GDP growth?

A research has shown a negative correlation between EODB rankings and GDP growth rates. It argues that a country with a bad economic ranking can perform better economically than a country that has a better EODB ranking. I am skeptical about this research and I do believe that EODB ranking matter when a company decides to invest in a country. But just the ranking cannot tell you if the business environment in the country has really improved. There are miles to go before we sleep.

And if we are flaunting this report, we should equally embrace all International reports about India, even the ones that show us in a bad light. When the same World Bank published its human capital index, the government cited “major methodological weakness” & rejected it. Similar “methodological weaknesses” are applicable to EODB rankings as well.

Kadyalwar Sunil Abhinav

The Myth Of RBI’s Autonomy

The autonomy of the Reserve Bank of India has been more of a fiction than a reality. The RBI was born on the All Fools Day in 1935 & its autonomy, for most of its history, has been a joke.

The issue of RBI’s autonomy had been in news about some months ago when the government used the Section 7 of the RBI Act for the first time in its history. For the uninitiated, Section 7 of the RBI Act gives the Government of India powers to issue directives to the RBI to carry out certain policies in the public interest. This undermines the autonomy of the RBI as the veto power is always with the government. It had been reported that section 7 had been used to issue certain directives to RBI regarding several issues of contentions like a separate regulator for payment systems, a liquidity crunch in NBFCs, transfer of RBI profits to government coffers & RBI’s PCA framework.

In 1956, T.T. Krishnamachari was India’s Finance Minister & who, in the words of T.C.A. Srinivas Raghavan, “thought that he knew everything but also that no one else knew anything.” Then, the governor of RBI was Sir Benegal Rama Rau. He complained thrice to the Prime Minister about TTK’s ‘rudeness’, ‘rude language’ & ‘rude behavior’.

Once Krishnamachari announced the monetary policy in the presence of the RBI governor, which was very different from what the RBI was going to announce.

Who needs section 7 when the finance minister could practically decide the monetary policy? According to B.K. Nehru, “TT. Krishnamachari let fly in no uncertain terms and in the loudest of voices that RBI was a ‘department’ or ‘section’ of the finance ministry.”

Image: T.T. Krishnamachari & Jawaharlal Nehru | Image Source: OPEN Magazine

Prime Minister Jawaharlal Nehru too sided with the finance minister & wrote to Rama Rau that the RBI was ‘obviously a part of activities of the government and has to be kept in line’. When Rama Rau threatened to resign, Nehru said, “If you wish, you can send your formal resignation to the Finance Ministry”. Talk about autonomy. The entire thing sounds funnier when I tell you that just a little earlier, Nehru had written to Vaikunth Lal Mehta, the cooperative leader that the RBI had to have its autonomy.

After Rama Rau, Sir H.V.R. Iyengar took the position of the governor of RBI. This is what TCA Srinivas Raghavan writes about the subsequent terms in his book “Dialogue of the Deaf: The Government & the RBI”.

Under him and his successors, the RBI didn’t make any fuss about deficit financing or, indeed, about anything. Even when fourteen banks were nationalized, virtually overnight, by Indira Gandhi in 1969 the RBI merely sighed and accepted that the new department of banking would be the real boss. It has its differences of opinion which were expressed in long and lugubriously polite letters. But in the end, it did what it was told— just as it has always done since the time that Osborne Smith was sacked.

Sir Osborne Smith was the first Governor of the RBI & he was sacked for his disagreements with the Secretary of State in London. In 1936, he wrote in a letter that he was ‘sick to death’ of the government’s attempt to dominate the RBI. In the second half of the 1950s, RBI was asked to simply print notes to make up for the difference between the government’s revenue and expenditure. This deficit financing would give rise to inflation for which the RBI was responsible but It was left with no choices in this matter. B.K. Nehru would just phone RBI governor and order him to issue a certain amount of ad hoc treasury bills. In years to come, in spite of a dominant finance ministry, the RBI performed exceptionally well.

Unlike the independence of Judiciary, the autonomy of RBI isn’t something written down in our Constitution or the Law. The RBI Act itself gives powers to the government to issue directives to RBI under Section 7. The wide autonomy given to RBI by the Finance Ministry is a recent phenomenon. D. Subbarao started acting independently maybe from 2011. Raghuram Rajan got a fair amount of autonomy. And for Urjit Patel, we were back to square one.

Section 7 wasn’t invoked in RBI’s history because there was no need to do that. Governors implicitly accepted that RBI was created by a law passed by the parliament & they are only as autonomous as the government wants them to be. The Deputy Governor Viral Acharya in a speech warned that:

Governments that do not respect central bank independence will sooner or later incur the wrath of financial markets, ignite the economic fire, and come to rue the day they undermined an important regulatory institution.

Those are some powerful words. It isn’t a surprise that the Government & RBI has disagreements. It is sad that they let the spat go public. The RBI didn’t want to play the part of a “wife in a Hindu joint family” anymore. And it was putting it out in the open that the government cannot infringe its autonomy.

Kadyalwar Sunil Abhinav

The Great Indian Porn Panic

This essay was written as a submission to International Journal of Law Management and Humanities’s essay competition on ‘Porn Ban in India’ in March 2019. It has been published in the Volume 6 of the book titled “Scholar’s Paradise” having ISBN number 978-10999-68808.

“How can someone do this to another person?”, asks a police officer repulsed by the brutality of the “Nirbhaya” gang rape. His senior has an answer. After detailing how income inequality has propelled strife in the country, he says, “Add to that the explosion of uneducated youth here. They have no sex education but get free porn online, which affects their adolescent brains. They don’t know how to interpret it. They objectify women and wish they could have that in their lives. If they don’t get it, they take it, with no regard for the consequences.” This dialogue from the Netflix series “Delhi Crime” captures the thought behind Uttarakhand High Court’s directive to ban pornographic websites in India. The jury is still out on whether an access to porn leads to sexual violence. However, it can be argued that a ban on 827 pornographic websites is so meaningless that it amounts to mere policy escapism.

The reasons for censoring pornography may vary. Some claim that pornography leads to sexual violence. This rationale, also employed by the Uttarakhand High Court, is problematic. For every study claiming that porn triggers sexual violence, you’ll find another one claiming exactly the opposite. In a paper titled “Sexual violence in India: Is it influenced by pornography?”, the authors concluded that easy access to pornography does not have any impact on crime rates against women. Such studies too need to be interpreted with a pinch of salt because it is almost impossible to carry out a meaningful study on this question. For example, the aforementioned study uses the data from the National Crime Records Bureau, Ministry of Home Affairs, India. This data becomes inconsequential in light of the fact that 99% of cases of sexual assaults go unreported. An increase in the number of cases reported by NCRB may also suggest that more people are reporting sexual crimes than ever before. This is something to be celebrated. Secondly, even if a correlation is found between sexual violence & access to pornography, it is difficult to determine causation. An experiment to prove the same will require unprecedented invasiveness in the lives of people.

The average internet speed in India has increased from about 800 KBps in 2012 to more than 6,500 KBps in 2017. With the entry of Reliance Jio in the telecom sector in late 2016, all the internet providers have been forced to charge rock-bottom data prices. These two factors have resulted in a massive upsurge in the Internet use in India in the last half a decade, a large portion of which is pornography (more than 30% according to some estimates). According to Pornhub, the most popular porn website, India accounted for the largest increase in its mobile traffic share. It jumped 121% from 2013 to 2017.

While internet & personal computers had a presence in many Indian households for more than a decade now, they couldn’t provide the privacy needed to watch porn as generally one computer would be used by the entire family much like a television. As smartphones have become affordable to a large population, they have, for the first time, allowed Indians to enjoy porn privately. This has fuelled a porn boom in India & consequently given rise to a “moral panic” around Pornography.

I use the term “moral panic” popularized by Stanley Cohen to describe “an episode of exaggerated concern about a supposedly threatening condition”. In such times, the concern expressed by a sector of the public, the media or the political institutions (judiciary in our case) is substantially much greater than what actual evidence suggests is the threat. Writing about moral panics, Erich Goode and Nachman Ben-Yehuda observe:

“Folk devils are designated as the—or at least an—enemy of decent, respectable society. The deviant’s behaviour is seen as objectively harmful, threatening to the values, the core beliefs, the interests of the society.”

The internet boom has democratized access to porn & expanded it beyond the previously digitally connected ones. It has allowed people to bypass their immediate world in order to pursue sexual pleasure. According to Pornhub, 30 percent of Indian visitors to its website in 2017 were women. This revelation is in stark contrast to the views espoused by some of the prime anti-porn activists. Kamlesh Vaswani, an Indore-based lawyer who pushed for Porn ban in 2015 says, “To say Indian women watch porn is an insult to their dignity.” Women’s chastity & virtue has always been used as a marker of national cultural worth. In her book Cyber Sexy, Richa Kaul Padte writes:

“The sexless, clothed bhartiya nari is seen as the epitome of morality and therefore cultural purity. She signifies the possibility of a monolithic cultural history, devoid of ‘Western influences’, or in fact of any influence at all.”

It’s no surprise that the war against pornography is being fought in the name of women’s safety. The recent ban was triggered by an unfortunate gang-rape of a girl studying in Class 10th in Haryana. The police found that the alleged rapists watched pornography before they committed the crime. No effort was made to find the root cause of the problem. After the court directive, the government refined the old list of porn sites that had been banned & implemented it again.

In a study titled “The problem of rape in India: a multidimensional analysis”, Sharma et al. (2014) came out with various factors responsible for rapes & similar violence against women in India. Among the factors found responsible included social factors like India’s patriarchal society which predisposes men to view women as their personal property. Another relevant social factor is the taboo of sex in India. A fundamental change was brought in the Indian mindset with the introduction of Victorian values in colonial India. Sex wasn’t a taboo in ancient India but today it has become one. Our concept of masculinity makes men believe that they are in charge of women’s sexuality and their honour depends on the premise that this control is seen as legitimate by society.

The popular media especially the Indian cinema glorify stalking & harassment. The concept of consent is asked to take a walk when the supposed hero tells you “Uski Naa Me Bhi Haa Hai” (Her ‘No’ also means ‘Yes’) & the women are regularly objectified as most children in the country grow up listening to “Tu cheez badi hai mast mast” (Girl, you are a fantastic “thing”).

A Still from the Bollywood movie “Toilet: Ek Prem Katha”

There are legislative 10 challenges like the difficulty of registering complaints, low conviction rates & embarrassing investigation procedures. Educational factors like the inability to incorporate meaningful sex education in school curriculum & the resulting lack of knowledge & curiosity to indulge in sexual acts may lead to sexual violence. Environmental factors like migration & individual factors like psychological reasons and other motivations can play a role too.

Most of these factors have political implications because they involve society to change from bottom-up. Such a process of change is difficult, gradual & most likely to be resisted by the society. The only resistance that may come is from those who view the ban as an affront to the freedom of expression. Otherwise, a ban on pornography doesn’t call for resistance from any organised group as those who wish to watch porn will watch it anyway. The ban is pointless because if porn really affects sexual violence, a ban on just 800-odd websites out tens of thousands of such website is nothing more than a fig leaf that can’t even cover the private parts of these apparently “impure perversions from the west”. Moreover, the ban is incredibly easy to get around by using Virtual Private Networks & proxy sites. What the ban actually does it that it assuages the “moral panic” & makes a false appearance that something is being done to tackle the “rape epidemic”.

The ban may end up making things even worse. The 827 websites have been banned on the basis of their popularity.

Most of these sites, like Pornhub, have strict parental controls, a non-consensual takedown page & a strict policy against all illegal content like revenge porn, rape porn & child pornography. With these websites being banned, a lot of people would be driven towards less safe websites that do not have such controls.

They are likely to have more extreme & even illegal pornographic content. So, the porn ban may end up exposing people to more of the porn that the government should be trying to shield people from.

Corey Price, the Vice President of Pornhub, has offered to work with the Indian government & hinted that a Russian-style authentication can be set up in India where viewers can log in through their social media accounts. This may assuage the fear that pornography is corrupting the children. As for the people over 18 years of age, the saner choice is to let the adults be.

In the book “Porn: Philosophy for Everyone”, J.K. Miles argues why a free speech argument for pornography fails. He argues that while other forms of expression like religious expression or political expression involve persuasion, sexual expression is coercive in nature. Religious speakers cannot make you pray by praying in front of you but the exhibition of porn itself causes you to engage in the act of expression i.e. the consumption of porn. However, if pornography cannot be protected by freedom of expression, it can be protected by our right to privacy. In the light of Puttaswamy Judgement, it will be difficult for the judiciary to take away our right to do whatever we want inside our home if the action doesn’t harm anybody else.

In contrast to the view that pornography results in sexual violence, many scholars believe that pornography acts as a “safety valve”. People can express their violent sexual desires by fantasizing to all kinds of porn. The debate around pornography in India today is much like the Great masturbation panic in the late nineteenth & early twentieth century in Britain. The Porn boom has brought in a new chaos but this too shall pass. However, with such an approach towards the problem of sexual violence, we have missed yet another opportunity to have a meaningful conversation about underlying reasons behind it.

It’s about time.

Kadyalwar Sunil Abhinav