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TheIndian EXPRESS
www.indianexpress.com

l THURSDAY l SEPTEMBER 27 l 2012

The Indian EXPRESS

BECAUSE THE TRUTH INVOLVES US ALL

HE resignation of Deputy Chief Minister Ajit Pawar has plunged the Maharashtra government into uncertainty. It is, at one level, the outcome of growing friction between the NCP leadership and the Congress chief minister, Prithviraj Chavan. At another level, it is Ajit Pawars breaking free of the long shadow cast by his uncle, Sharad Pawar by taking this unilateral decision and demonstrating the fealty of NCP MLAs, he has signalled his autonomy and authority. It is also a test for Prithviraj Chavan, whose determination to prove corruption in the irrigation sector has been taken by Ajit Pawar as a personal affront, and who, to complicate matters further, is unloved within the Maharashtra Congress. The Congress high command is used to placing and replacing chief ministers in the state Chavan is the fourth in nine years. These leaders are kept wondering about their own futures, unable to take the crucial, creative decisions that Maharashtra and the city of Mumbai need. The party is at war within, and timid without, deferring all larger questions to the central leadership. Buffeted by scandal after scandal, the Congress had sent Chavan in November 2010, and both his promise and his

The Congress-NCP war mustnt be allowed to hold up governance in Maharashtra

weakness lay in the fact that he was seen as an outsider in Maharashtras politics-as-usual. Two years on, however, what has he achieved? To placate powerful leaders from the state after parachuting Chavan to the CMs office, the Congress made room for them at the Centre, but took no further initiative for the state. Chavan was left to his fate, to sink or swim by his own political acumen. He may have gone after the big patronage hubs in the cooperative sector, real estate etc, and created political turbulence with his allies and party members, but he has also dragged his feet on the issues that matter to citizens crises in employment and infrastructure, the power deficit, a rent-seeking municipal apparatus. Once again, what matters to Maharashtra has been sidelined by what matters to its politicians. This churn may be inevitable, it comes from an inherent tension within the ruling coalition. It may be good, if it ends up exposing the corruption of both parties in the ruling coalition. But it cannot be allowed to forestall governance anymore. If this arrangement is no longer worth keeping up for the NCP and Congress, early elections should throw up another political option for the state.

Govern or go

UNDAYS killing of a village sarpanch by militants in Kashmirs Baramulla district has brought on a wave of resignations from panchayat members in the state, with at least 40 calling it quits. It was the second time in a fortnight that a panchayat leader was gunned down; panchayat members have also been targeted by militants over the last year. The promise of the 2011 elections, which recorded a turnout of more that 80 per cent in several of the 16 phases, and put in place the structures of local government at the village level for the first time in 34 years, seems perilously close to dying out. But militant violence may not be the only reason for the weakening of the panchayat in the state. Over the last year, in spite of its repeated assurances, the Omar Abdullah government has consistently refused to devolve more powers to panchayats, which could allow them to control more funds and have a say in a larger spectrum of sectors. From the start, the panchayats have been buffeted by resistance from both sides the government as well as militants and separatist forces. MPs

Abandoned by the state government, J&K panchayats become soft targets for militants
and MLAs view the panchayats, elected on a non-party basis, as competition. A 10-member committee appointed by the state government to look into the matter of empowering panchayats is said to have recommended a bill that would limit their powers further. To separatist leaders and militants, panchayats represent mainstream political forces inimical to their agenda. Twenty-three years of militancy have displaced traditional political structures at the village level. The elections of 2011 marked their potential rehabilitation. The panchayat polls, like the successful 2009 assembly elections before them, were fought largely on conflict-neutral issues. Water supply, employment and rural development featured on the list of electoral promises. Yet any attempt to change the subject from insurgency has been greeted by fresh bursts of violence from militants anxious to revive a flagging agenda. And the panchayats, denied a secure foothold in the political system and fast losing public support as they have limited powers to fulfil their electoral promises, have become soft targets in this backlash.

Under siege

HE global debate over speech defaming religion is once again intensifying. President Obama, in his recent address to the UN General Assembly,whiledenouncingthevile video that sparked off a wave of shameful and disgusting violent protests from Tunisia to Pakistan, roundly defended Americas sacred icon: the First Amendment. But it is a sad historical fact that the United Statesisincreasinglybeingseenasan outlier on free speech issues. The rest of the world, in some way or the other, is too easily embracing restrictions on free speech. European courts have long upheld the validity of blasphemy laws. They have also upheld a tricky distinction between doctrine and the manner in which it is expressed. Of course, the US, despite the First Amendment, does not have an unsullied history on freedom of expression; and this history complicates its authority on the matter. There is also something to the curious insight Mark Twain had about freedom in the US, Americans have freedom of speech and the freedom of thought and the good sense never to use either. Often, the legal doctrine of free speech has an easier time in contexts where unarticulated social restraints do not produce too much conflict. It is not hard to imagine, for example, that the history of the First Amendment might have been different if the US has been besieged by gratuitous representations of Christ. In short, in certain areas, social self-restraint put less pressure on the legal system. But this sociological truth has two corollaries. The first is relevant to India. In the Indian context, the state has provided woefully inadequate protection for freedom of expression. While the Indian state is becoming less tolerant, it does not imply that society is becoming less tolerant. In fact, the opposite might be true. In some areas, at least, it is precisely because more people are thinking the previously unthinkable,

Saying it all
PRATAP BHANU MEHTA
breaking through taboos of social restraint, that conflicts over free speechareintensifying.Although,in other areas, the state is using its power in abusive ways. Pakistan has a frighteningly cruel blasphemy regime. But the ease with which we file sedition cases suggests that in legal terms sedition is threatening to become for India what blasphemyisforPakistan.Andthereare parallels:themostheightenedsensitivity to speech comes either from religion or nationalism. Improperly handled, both, in some ways, can consecrate death; both have elements of idolatry; both partake of a language of collective self-esteem and produce fragility in the self that

LETTER OF THE WEEK AWARD

To encourage quality reader intervention The Indian Express offers the Letter of the Week Award. The letter adjudged the best for the week is published every Saturday. Letters may be e-mailed to editpage @expressindia.com or sent to The Indian Express, 9&10, Bahadur Shah Zafar Marg, New Delhi -110002. Letter writers should mention their postal address and phone number. The winner receives books worth Rs 1,000.

Why is the US being seen as an idealistic outlier on free speech?

form of hate speech. By this view, to insult the prophet is to encourage Islamophobia and by extension hate against Muslims. But this argument quickly elides the distinction between respecting persons and respecting things they value. Obviously, there are complicated philosophical issues here. But politically and psychologically we have to recognise that the distinction between lampooning religion and stigmatising believers is becoming harder to project. But maintaining this distinction is important. Second, why self-restraint is shown with respect to some forms of stigma and not to others is also a deep cultural question.Buteventhoughthesecul-

While the Indian state is becoming less tolerant, it does not imply that society is becoming less tolerant. In some areas, at least, it is precisely because more people are thinking the previously unthinkable, breaking through taboos of social restraint, that conflicts over free speech are intensifying.
has a will to repression. The second corollary is this: no matter what ones view of the appropriate legal regime regulating speech, the question of self-restraint in speech is an important one. It is a sign of moral progress that in many societies ethnic jokes and slurs become rarer, even though there is no change in legal regime. Sikh jokes, for example, have considerably diminished. In the US, for example, Catholics are not stigmatised through speech in the quite the same way they were in the 19th century. The demand for protection against defamation of religious icons is premised on treating it as a tural questions are important, it is doubtful that they are best handled by legal repression of speech. Indeed,thefactthatnormscanchange should be a presumptive argument against involving the state. So we should admit that there are important issues in the cultural politicsoffreespeechthatneedtobe addressed. But a constant reference to this cultural politics is really a way of obscuring rather than clarifying the issue. Sure, the violent protests against the video often draw upon a congealed history of being at the receiving end of the power of the US. But that does not, in any way, make them legitimate. If anything, it does

irreparable harm even to legitimate causes, such as those of the Palestinians, to club them under the normatively dubious banner of defending Islam against free speech. Tying thefateoffreespeechtogeopolitical power is a big moral mistake. Most anti-free speech protests are simply demagoguery in disguise. Believers often complain that the presence of a few fundamentalists is often used as an excuse to tar the whole community. But the reverse is equally true: a few abusers of free speech should also not be identified with the rest. And the rights of the majority should not be circumscribed based on the actions of a few abusers. Certain forms of speech can be degrading. But the ease with which speech offensive to religion is equated with violence is troubling. Nevertheless, the USs relative isolation on free speech issues should be a cause for worry. We live in an age of cultural misrepresentation, and one form of misrepresentation is to see the free speech debate as one between the West and the rest. The speed with which governments and courts across the world are caving in to the demands of religious zealots or the feigned hyper-sensitivity of believers is alarming. This caving in also gives succour to those who do want to maliciously provoke conflict by speech. For they know governments will respond. The strongest argument for defending the US style First Amendment is that making laws to cater to the most demagogic or the most hypersensitive does not produce more freedom; it only leaves the spirit of freedom hostage to them. In the long run, living with differences will require us to be more in tune with the First Amendment, not less. And a belief that it is gods job to protect us, not ours to protect god would also help. The writer, president of the Centre for Policy Research, is contributing editor, The Indian Express
express@expressindia.com

Letters to the

EDITOR

Better late

THIS refers to A new aam

aadmi by M.K. Venu (IE, September 26). In hindsight, one can say the Congress should have adopted this pro-reform agenda a year back. They refrained then because of the UP elections, but that did not make much difference to the partys performance in the polls. But it is not too late. From now on, the Congress should remain focused and not compromise on economic sense for the politics of compulsion. With the partys stock at an all-time low, it does not have much of a choice anyway. Bal Govind Noida

Consumer rights

AMBA SALELKAR
HE Rights of Persons with Disabilities Bill 2012, the latest version of which has been made public by the ministry of social justice and empowerment, is another step by the Indian government to bring domestic legislation in line with standards prescribed by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). One of the key issues dealt with under the UNCRPD and which the bill tries to tackle is legal capacity, an issue that sharply divides the disabled community. While some argue that all persons should be given legal capacity, regardless of disability - which is the UNCRPD position others argue that some persons with disabilities should never be allowed to exercise independent legal capacity as they are incapable of understanding the consequences of their actions. Legal capacity is one of the fundamentals of law and legal process. All persons above the age of consent are deemed to exercise legal capacity to do many things vote, get married, enter into contracts, drive, be tried for crimes, have consensual sexual intercourse. Once a person has crossed this age threshold, she is automatically deemed to have legal capacity and theres no further proof needed to demonstrate her ability to do any of these or other acts, or face the consequences of the same.

Certainly not persons with disability, if they can be given support

Two legislations deal with the issue of appointment of guardians for persons with disabilities the Mental Health Act, 1987 (for persons with mental illness), and the National Trust Act, 1999 (for the welfare of persons with autism, cerebral palsy, mental retardation and multiple disabilities). These laws assume that some persons with disabilities cannot exercise legal capacity on a permanent basis and therefore call for guardians in order to facilitate the exercise of legal capacity in relation to contractual obligations. Once a guardian is appointed, he or she can make all relevant decisions on behalf of cising their legal capacity. However, neither the Mental Health Act nor the National Trust Act recognises the concept of full legal capacity nor mandates the provision of support for decisionmaking. The Rights of Persons with Disabilities Bill seeks to supersede the Mental Health Act and the National Trust Act and mandates two important changes from the existing regime. First, the bill recognises the concept of full legal capacity and states that any law or regulation that has the effect of depriving any person with disability of legal capacity shall not be legally enforceable. Secondly, it introduces the agrees with a decision, no decision can be made by the person with disability. This surely is not recognising full legal capacity. The bill also does not put in place the necessary safeguards to prevent abuse by the person providing support since there is no requirement that the arrangement be subject to regular review by a competent, independent and impartial authority or judicial body, as mandated by the UNCRPD. Perhaps the correct formulation of a solution on the question of legal capacity can come by tweaking the relevant provision in the Indian Contract Act, 1872. Under this act, a contract is void if a party to the contract is, at the time when she enters the contract, incapable of understanding it and of forming a rational judgment about its effect on her interests. This bar is not in any way related to persons with disabilities, since it applies even to a sane man, who is delirious from fever, or who is very drunk. Yes, some people with disabilities may require some support to make decisions, and provided this support is given, albeit with the proper checks and balances as prescribed by the UNCRPD, is there really a requirement for a guardian, limited or not? The writer is an advocate, and fellow, Inclusive Planet Centre for Disability Law and Policy, Chennai
express@expressindia.com

Who needs a guardian?

fied the entry of FDI in some sectors, which will definitely boost agriculture, poultry and dairy farming as well as horticulture. Small farmers may benefit hugely as multinationals will bolster storage infrastructure for fresh produce. This is also likely to encourage the food processing industry, usher in the latest technology and generate employment. There is a fear among small traders that their businesses will be harmed. But this should be addressed by a separate policy. Consumers want to enjoy the benefits of a free economy, and that is not an unfair demand. Sukhpal Singh Chandigarh

THE government has noti-

The PMs speech

words (IE, September 22). The prime ministers address to the nation tried to defend the indefensible and was disappointing. He has not traced out a roadmap for inclusive growth. Only the animal spirits of the economy were spoken about. His comparison of current times with 1991 is misleading. He also accused the opposition of spreading canards. But perhaps it is the oppositions ineffectiveness that has ensured him two successive terms as PM. He must thank them for that. N. Ramamurthy Chennai
APROPOS the hard-hitting editorial Inside, outside (IE, September 21), reprimanding the BJP for demanding a special session of Parliament now is justified. It has no moral ground to call for a special session when it killed the entire monsoon session, almost single-handedly, on the coal block allocation issue. Its Bharat bandh on FDI earlier this month also proved counterproductive for the party. Evidently, coalition politics in future holds more trouble for the BJP than for the Congress. It is very unfortunate that the supreme institution of a democracy, the Parliament, has been rendered redundant by the BJP. The future fallout of this is bound to be a lesson to politicians who believe in spreading anarchy in a democratic system. Brij B. Goyal Ludhiana THIS refers to In his

S PRESIDENT Barack Obama was up against a set of contradictory challenges at the general debate in the UN General Assembly this week. He had to address Republican criticism of his administration in the context of the spreading anti-American violence, without appearing to campaign from an international forum. At the same time, he had to reaffirm American support for the fledgling Arab democracies. In a speech that will be scrutinised by the US electorate for its nuances, for what it said and what it didnt, Obama firmly upheld the freedom of speech against the kind of violent reaction that has ostensibly been provoked by Innocence of Muslims, a California-produced anti-Islamic film that has been condemned by his administration. His warning that it is the obligation of all leaders to speak out forcefully against violence and extremism will not be lost on leaders trying to manage the post-Arab

At the UN, Obama implied the US would be patient with the Middle East
Spring democracies and natural targets of extremism themselves. Another risky electoral and strategic challenge for Obama is Iran. Under attack from Romney and under pressure from Israeli Prime Minster Benjamin Netanyahu to set clear red lines for Tehran, Obama emphasised the US would do what [it] must to prevent Iran from acquiring nuclear weapons even as he rejected the Israeli demand. TheUNGAismoreaboutrhetoric and atmospherics than substance, and the irony of the debate this time is underscored by the fact that the two pressing global concerns the Syrian conflict and the Middle East violence were not even on its formal agenda. Obamas firmness may be meant primarily to blunt Romneys rather incoherent attack on his Middle East policy. But implied in the speech was an admission that the US would have to be patient and not abandon the process of change in the Arab world.

Between his lines

A guardian, once appointed, can make all relevant decisions on behalf of the person with disability without any obligation to consult her.
the person with disability without having any obligation to consult the disabled person. These provisions that permit the appointment of guardians have long been used in practice, including by unscrupulous relatives, to deprive countless persons with disabilities of their rights. The UNCRPD requires that Indian law be modified to recognise the legal capacity of all persons with disabilities and the concept of guardianship is abolished. The UNCRPD also mandates that India must take appropriate measures to provide access for persons with disabilities to the support they may require in exerconcept of limited guardianship, under which the guardian is required to act in close consultation with the person with disability to arrive at legally binding decisions. In a sense, therefore, the new bill is attempting to carve out a middle path between the present regime and the UNCRPD requirements. The formulation under the bill is confusing and fraught with danger. On one hand, it recognises full legal capacity while on the other it states that all decisions must be made jointly between the person with disability and the limited guardian. It appears that unless the limited guardian also

Unfair demands

WORDLY WISE
Tommy Smothers

The only valid censorship of ideas is the right of people not to listen.

HILE the animosity between Japan and China centres on a contested set of uninhabited islands in the East China Sea, the roots of the dispute are complex and predate the Second World War. A diplomatic, and not a military, resolution to the conflict is in the interests of both Japan and China... Chinese authorities have tolerated some say stage-managed the demonstrations, while also taking care to avoid an escalation of the dispute. On Tuesday the government maintained a heavy police presence on the streets of Beijing, and sent generic texts to local cellphones calling on residents to show patriotism but not to overdo it. UnderlyingtheconflictisChineseangeroverwhatitseesasJapansfailuretorepentforitshistoricalinvasionofChina,therapingofitswomen,and

China and Japan must find a diplomatic solution on the East China Sea islands
its conduct in the Second World War. Tuesday marked the anniversary of the Mukden Incident, the false bombing of a Japanese-owned railway, which Japan used as a pretext to invade China, 81 years ago. Chinas rising power has also made it bolder in its maritime ambitions. The United Nations Convention on the Law of the Sea governs sovereignty over coastal waters and disputes. As a last resort the countries could turn to the International Court of Justice to resolve the conflict. But diplomacy and compromise will still be needed, and both sides should be prepared to offer up some concessions if they are to end this rancorous chapter in the fraught Sino-Japanese relationship. From a leader in The Globe and Mail, Toronto

An old feud

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