Editorial\The law is not an ass
Nuisance value
Letters to the Editor

As in everything else, there has to be a first time for a Union law minister to be expelled from the primary membership of the Supreme Court bar association. Mr Ram Jethmalani�s expulsion, startling enough in itself, has been made more dramatic by its association with other circumstances. On the one hand, Mr Jethmalani was among those being felicitated for having served the Supreme Court for 50 years. On the other, he was sending a terse letter of resignation to the bar association, the members of which rejected the resignation and brought an expulsion motion instead. The statement being made was harsh, as the hostility was extreme.

This exciting story might be painted up to put into a television serial. Much greyer, more mundane versions of it might be found within the walls of every other corporate organization. But what is really startling about the whole account is that it happens to be about the seniormost and most powerful lawyers in the country. Mr Jethmalani�s expulsion is the culmination of a series of events in which the lawyer community has not shown itself to be either responsible or dignified. The falling out with Mr Jethmalani began with the lawyers� protests against the proposed amendments to the civil procedure code and the opening up of the legal profession to overseas lawyers. The Union law minister, who is pro-amendment, criticized the lawyers� demonstration and subsequent strike. But the debate, for the layman unable to stomach this kind of behaviour among people trained and paid to resolve their problems, is a matter of technicalities. The amendments to the CPC are meant to cut down on the arrears of cases, according to the law minister. The lawyers feel that they will just cut through the Gordian knot of backlog and will not serve the cause of justice. This, of course, has led to the law minister�s charge that lawyers are worried about the damage to their incomes such shortcuts will cause. Doubtless, there are pros and cons on both sides. There are a number of ways to attack backlog and speed up the process of law. No effort is being made to contain the multiplying laws and their burgeoning provisos. Simplicity is never an issue. Neither is there any serious attempt to establish benches of the Supreme Court in different regions, or to found separate appeal courts to take the load off the higher courts. No one is blameless in this. It might be asked why lawyers must take to the streets on technical matters, offended that they have not been consulted regarding the amendments, instead of agitating for reform in the real areas of need. The answer to this is simple enough. The legal profession in India is a mass of technicalities and methods of practice. In place of the determining philosophy behind them � the notion of justice, in other words � there is a peculiar blank. The myopic focus on the subtleties of practice and competitions within the profession have completely stripped the discipline of law of its intellectual dimension. Lawyers, therefore, live and function in a professional cocoon, so habituated to a specific jargon that they lose contact with the realities of their role in society. The recent fiasco is simply a manifestation of that.

And a little more. It is not easy to understand what objections Indian lawyers may have to overseas lawyers entering the practice. No one ever stopped foreign doctors from practising in the country, or foreign sportsmen from coaching or playing in Indian teams. To reduce a profession, ideally a noble profession, to a turf war is carrying myopia and self-absorption a little too far. The legal community in India is exposing a unique dichotomy. To oversimplify a bit, it might be seen at first as a complete division between theory and practice and then as a withering away of theory. No change in the judicial system will be meaningful until those trained in law, whether they be judges, lawyers or teachers of law, change their approach to the discipline.    

Washington�s February announcement of Bill Clinton�s tour of the subcontinent should have included Pakistan among the destinations. However, General Pervez Musharraf�s coup meant the United States president had to make Pakistan twist in the wind a little. But the pattern of US policy over the past few years indicated Clinton was almost sure to shake hands with whoever ruled in Islamabad.

This has nothing to do with the US-Pakistani Cold War relationship. Larry Pressler�s little law was used to bring an end to that affair in 1990. Washington has new policy imperatives regarding Pakistan today. These are markedly different from the priorities that drove relations in the past and revolve around Pakistan�s decrepitude.

During Clinton�s first term, US south Asia policy was driven solely by a desire to put together a nuclear nonproliferation regime of which the comprehensive test ban treaty was a small component. His second term saw a comprehensive policy review of the subcontinent being carried out in 1997. Its implementation was interrupted by the Pokhran II and Chagai hills nuclear tests.

In March last year, US officials began quietly telling visiting Indians of a new look south Asia policy. The US policy of balancing New Delhi and Islamabad was dying. Washington would seek relations with the two countries with �their own separate directions and velocities�. One White House advisor explained, �We see a Pakistan that is increasingly threatened by internal unrest, much of it spawned by its own social and economic policies.�

But the US could not simply walk away from a Pakistan in internal chaos. The most important reason was that it was now an overt nuclear power. The special US-Pakistan relationship was dead. But a new one, based on a fear of an out of control Islamabad, was evolving. Washington wanted to ensure Pakistan did not become so insecure that it felt �compelled to brandish nuclear weapons at the first sign of trouble�. Given Pakistan�s fragility, the US also saw Rawalpindi�s generals as a �force for stability�.

At the time, this policy was tentative and in circulation largely in the White House. It lacked institutional support elsewhere in the administration. A key opponent was the nonproliferation lobby which had not forgiven India for Pokhran II. But the broad outlines and internal logic of a post-Cold War policy of engaging Pakistan had been spelt out.

Pakistan helped push this new policy out into the open by starting the Kargil war. The war left a number of impressions on the US. One was India�s remarkable restraint and maturity. Two, that Pakistan�s leadership, in triggering a war between two nuclear powers, was off its rocker. Finally, that south Asia was more of a nuclear flashpoint than anyone had realized. It was imperative to get India and Pakistan to talk together � about Kashmir, nuclear safety, anything.

After Kargil, the 1997 south Asia policy began to spread its wings. It not only served to downgrade Pakistan, it led to India�s failings on the nuclear front being brushed under the carpet. It also buttressed Clinton�s personal desire to go to the subcontinent.

Islamabad dug itself further into a hole. The army snuffed out the country�s latest democratic government. The country struggled with foreign debt problems of the sort Indians have almost forgotten. Most of Pakistan�s foreign investors took flight. It was noted that heroin contributed half as much to the economy as cumulative US investment. Washington was already irritated with Pakistan�s affair with the taliban. Then came the hijack of Indian Airlines flight 814. Either Pakistan had lost control of its Islamic militia or it was still out to provoke India.

In each case the US breathed fire for a while and then resumed engagement. Washington initially gave Musharraf a cold shoulder. When it became clear he was not budging, the US began talking with him. The assistant secretary of state for south Asian affairs, Karl Inderfurth, explained, �We have no choice but [to] stay engaged�, because �stability or the lack thereof in Pakistan will have an impact on Pakistan�s neighbours, the region and beyond�.

Similarly, the US sought to use the Clinton visit to Pakistan to extract concessions from Musharraf. It outlined a wishlist for Musharraf that included signing the CTBT, restoring democracy, clamping down on Islamic militia and getting the taliban to behave.

Musharraf initially insisted Clinton spend the night in Pakistan. But the anti-terrorist lobby within the administration and the president�s own secret service weighed in against even a stopover. Soon, Musharraf was lobbying just for the latter.

Besides making small concessions towards US demands, like banning civilians from carrying weapons in public, Islamabad launched a propaganda blitz explaining why Clinton had to come for tea.

First, Musharraf and other Pakistani officials warned that no stopover would raise Indo-Pakistani tensions. They linked the visit with nuclear weapons, the Kashmir dispute, even increased militancy.

Second, Islamabad appealed to Clinton�s desire to go down in history as a peacemaker. The argument was that if he tilted too strongly towards India, the US would forfeit any chance of even a potential mediator�s role. This had resonance because Washington has been urging a resumption of some sort of dialogue between India and Pakistan � a fallout of Kargil. As the US deputy secretary of state, Strobe Talbott, argued in an interview, both India and the US had to engage Pakistan as the alternatives were �extremely dangerous�.

Finally, Musharraf took great pains to make a distinction between terrorists and Pakistani supported jihadi fighters. The difference: the former attacked US targets while the latter went after Indian ones.

But the core argument was that the US�s engagement of Pakistan would be a dead letter if Clinton visited only India and Bangladesh. The White House stressed this when it explained why Clinton was going to meet Musharraf. As it was, engagement was looking pretty thin. Sanctions legislation meant Washington had almost no official programmes or links with Pakistan. One of the last remaining ties, army officer exchanges, was axed after the coup. Repealing sanctions seemed unlikely given the strength of congressional sentiment against Pakistani. Only nine senators could be found to sign a recent letter saying Clinton should not avoid Pakistan.

Islamabad never failed to remind the US that one could not, in the end, isolate a nuclear power. The dangers were too great. Engagement was not an option but a necessity. Pakistan had fallen far behind India in cultivating economic links with the US. US investment in Pakistan is a fifth of that in India. Trade figures are more lopsided. Indian software exports alone match total US-Pakistan trade. The only trump Islamabad had was the atomic joker. As the Pakistani ambassador to the US, Maleeha Lodhi, told Clinton, Washington must �maintain a balance� in its relations with India and Pakistan �in the strategic, security and nonproliferation areas�.

New Delhi partially played into Musharraf�s hands. It initially said Clinton�s itinerary was his business. Then, at the last minute, it warned of a negative public reaction if Clinton met Musharraf. This irritated the state department which had told New Delhi in early February that Clinton was sure to make a stop in Pakistan. Atal Behari Vajpayee made things worse by making a fiery speech about nuclear retaliation. The Western press is still writing that the subcontinent is on the verge of nuclear war.

A senior congressional voice on US-Asia relations, Doug Bereuter, put it bluntly last month. The overriding goal of US policy �should be to prevent Pakistan from becoming a true rogue state�. Talk of isolating Pakistan is not policy but emotion. Senior officials in the prime minister�s office in New Delhi privately recognize that it is in India�s interests that the US be able to have some sort of restraining influence on Pakistan.

Pakistan will never be able to worm its way back into Washington�s good books. Talk of India-Pakistan parity in US eyes is laughable. The Clinton visit shows Pakistan commanding less positive US interest than Bangladesh. Islamabad�s only selling point is the threat that it will degenerate from what it is today, a nuisance state, to what it may become tomorrow, a rogue nation driven by heroin, religious zealotry and atomic weapons. Musharraf should know that the US president will be meeting him because Pakistan has a future � and it is so bleak that Washington is too scared to let it be alone.    


Comfort of elders

Sir � Mamata Banerjee is nothing if not well brought up. No wonder she was so touched by the plight of poor �Jyotibabu, so advanced in age, stranded in a station�, that she despatched a train to rescue him (�Rail, Mithun link Basu & Mamata, March 6). To see her thus concerned for West Bengal�s octogenarian chief minister, one would never guess that she had once described the Congress as the Communist Party of India (Marxist)�s �B-team�. However, as the Union railways minister she can perhaps afford to be gracious towards her adversaries. Whether CPI(M) veterans will be as �touched� by didi�s conciliatory gesture is another matter though.

Yours faithfully,
N. Mitra, Patna

Drowning by numbers

Sir � I do not agree with the view of the editorial, �Stop at two� (Jan 19), that the Madhya Pradesh government�s move to ban all those who have more than two children from entering government service is impractical. The right to procreate is definitely a basic right but couples must restrict themselves to one child only. India�s survival depends on population control. Hence, if family planning measures require partially curtailing other fundamental rights, then so be it. For, even with the two-child norm, India will exceed China�s population by the middle of this century.

The problem should be taken seriously without political leaders and intellectuals shedding crocodile tears on the subject.

Yours faithfully,
Kulamani Mishra, Kansbahal

Sir � It is good that the prime minister and home minister realize how serious a problem the rapid population growth poses (�Atal firm on two-child law for MPs�, Feb 5). But the idea of bringing in a bill making two children the norm for all would-be legislators is not the solution. This proposal will lead to much controversy and, if passed, have very little impact. There is some truth in the fear that it might result in the increase in female foeticide and unhygienic abortions, and the exclusion of women candidates forced to have more than two children. There is no easy or instant solution to India�s population problem. As long term measures, steps should be taken to promote primary education and primary health, put greater emphasis placed on spacing out conception by the use of birth control pills and intrauterine devices. Also, male sterilization needs to be promoted in place of female sterilization.

Yours faithfully,
Moni Nag, Calcutta

Sir � Though the recently announced population policy is a good one, many practical approaches were left out, perhaps for fear of voter rejection and to safeguard political interests. Family planning should be enforced by law. Persons with more than two children should be considered ineligible for elections, jobs in government and non-government undertakings, promotions, government facilities like rations and reservations. All these benefits should be discontinued for those who have a third child after appointment. Women should be compulsorily sterilized after the birth of the second child.

Many couples go in for a third child hoping for a son. Thus, the position of women in society needs to be improved and a beginning made by reserving 33 per cent seats for women in legislatures. The family planning programme in Thailand could be studied, which succeeded in reducing the population growth rate significantly in a short period. China has also successfully enforced family planning by law.

Yours faithfully,
Madhu Agrawal, Dariba

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