Freedom of Speech and Archaic Law on Sedition

Dr. M.N. Buch
Visiting Fellow, VIF

The Chambers Twenty-first Century Dictionary defines sedition in the following words: “Public speech, writing or action encouraging public disorder, especially rebellion against the government “. The word itself comes from the Latin word seditio, or growing apart. In a way it is connected with the word seduce, one meaning of which is to lead astray or to tend into wrong doing. The Indian Penal Code has section 124-A which makes sedition a criminal offence with the full section reading as under:

Section 124-A IPC—Sedition:: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “dissatisfaction” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of the measure of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under the section.

Explanation 3. Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, do not constitute an offence under the section ”.

The offence of sedition carries imprisonment for life as a sentence in its extreme form and rigorous imprisonment for up to three years if the court determines that the seriousness of the offence is mitigated by circumstances. This gives an enormous leeway to a court in the matter of sentencing and this in itself can be called into question for permitting excessive judicial discretion to a court. For example, under section 302 IPC the offence of murder carries a liability of either a death sentence or imprisonment for life and a trial court has to give one or the other sentence. The Supreme Court has laid down guidelines in the matter of sentence by directing that it is only in the rarest of rare cases that the death penalty should be imposed. Under section 304 IPC in a case of culpable homicide not amounting to murder the court may impose a penalty of imprisonment for life where the act which caused death in the ordinary course could be fatal, or imprisonment of up to ten years if such act was committed without any intention to cause death. In the case of section 124-A IPC no such guidelines are provided by the law and, therefore, a judge would be able to pass a sentence which could be quite inappropriate. The Indian Penal Code is one of the laws which govern this country within the framework of the Constitution. Under Article 13 a law which is inconsistent with or in derogation of the fundamental rights would be void. The Preamble to the Constitution mandates liberty of thought, expression, belief, faith and worship and Article 19 (1) (a) gives citizens the right to freedom of speech and expression. No doubt Article 19 (2) and (3) permit the Legislature to make laws to impose reasonable restrictions on the rights given in Article 19, but the operative word here is “reasonable”. In other words, the freedom of speech and expression is almost absolute and a restriction thereon is an exception which has to be imposed after very great thought and only in the interest of public peace and tranquility.

Chapter VIII of the Code of Criminal Procedure relates to security for keeping the peace and for good behaviour and in case the said person cannot provide adequate security, then under sections 107, 108 and 109 Cr.P.C. the person may be kept in jail for up to one year and under section 110 for up to three years. Section 108 applies to persons disseminating seditious matters. In other words, the Police and the Executive Magistracy can prevent a person from disseminating information which is seditious. Then we have Chapter X Cr.P.C. which relates to maintenance of public order and tranquility and permits the Police, the Magistracy, and on requisition the armed forces may cause an unlawful public assembly to disperse, if necessary, by use of force and to restore public order. In other words, acts which could be deemed to be seditious can in fact be prevented by pre-emptive action.

Section 124-A speaks of bringing into hatred or contempt the lawfully constituted government. The word “contempt” is defined by the Chambers Twenty-first Century Dictionary as either disregarding or disobeying the orders of a court of law or despising a court or a lawfully constituted authority. The Contempt of Court Act is sufficient to uphold the dignity of the courts and, therefore, the law relating to sedition would not be applied so far as courts are concerned, despite the fact that the Judiciary is one of the three pillars of the State. Hatred is defined as intense dislike, enmity or ill-will. There is a whole chapter in the Indian Penal Code, Chapter X, which deals with matters relating to contempt of the lawful authority of public servants. Under section 186 IPC if a public servant is obstructed in the discharge of his public functions the offender can be punished. Under section 188 IPC if there is an order duly promulgated by a public servant, then disobedience of such an order is liable both to imprisonment and a fine. Chapter XI of IPC relates to offences against public justice. An insurrection against government amounts to waging war against government under section 121 IPC can be punished with death. In other words, jeopardizing the security of the State to an extent where it is tantamount to armed rebellion is also subject to the most stringent penalty permissible by law. Section 124-A relating to sedition aims at preventing and punishing the exciting of disaffection towards government; the purpose of which obviously would be to bring about a downfall of government. Now it so happens that we are living in a democracy whose Constitution, in its Preamble, constitutes India to be a sovereign, socialist, secular, democratic republic. So long as the Preamble exists, the said Preamble being immutable, democracy cannot be denied to the people. What is more, the opening words of the Preamble are “We, the People of India …” In India sovereignty vests in the people and not in a monarch or in Parliament. Parliament is only the instrumentality through which in a representative democracy people exercise their rights. In this republic the citizen is supreme and the government is an organisation through which citizens exercise their supremacy through the executive powers which vest in the President and the Governors. Therefore, the right to criticise government and to call government to account is far superior to the right of government to protect itself against sedition. The words ‘treason’ and ‘sedition’ have to be used with great care and caution in a democracy.

Article 14 of the Constitution guarantees for every citizen equality before law and equal protection of laws. This makes India a society of laws and every action of government has to be within the framework of law. This includes depriving a citizen of his liberty through the operation of law because that is exactly what Article 21 says. Article 21 reads,” No person shall be deprived of his life or personal liberty except according to a procedure established by law”. The chapter on Fundamental Rights apart, Part IV of the Constitution lays down the Directive Principles of State Policy. Article 38 directs the State to secure a social order for the promotion of the welfare of the people. Supposing the State is in neglect of this principle? Do the citizens not have the right to be critical of the government, even stridently critical, even critical to the point of calling the government useless and worthless, if it does not strive to establish such a social order? Would critcism by people who accuse it of not doing its duty amount to sedition? After all, if a government is proved to be corrupt, unwilling to look after the welfare of the people, incompetent and negligent of its duties, the people have every right to call for the overthrow of such a government but through due process.

Under Part V, Chapter 2 of the Constitution and in particular Article 79 it is constitutionally mandated that there will be a Parliament for the Union. The House of the People is directly elected from territorial constituencies by the electorate consisting of every citizen of India not less than eighteen years of age on the date prescribed by law in this behalf. As per Article 326 of the Constitution the basis of election is universal adult suffrage. Every single Indian above the age of eighteen is, therefore, an integral part of the process of constituting the Parliament of India. Under Article 83 the normal duration of the House of the People is five years from the date of its first meeting after an election. Every five years the citizens of India, therefore, constitute the House of the People through a process of elections in which there is adult franchise. The executive government is conducted by the President on the aid and advice of the Council of Ministers which, under Article 75(3), is collectively responsible to the House of the People. Therefore, every citizen is a part of the process of the constitution of the Council of Ministers on whose advice the President of India conducts the executive government of the Union. Through adult franchise, through participation every five years in the process of constituting Parliament, through the constitutional requirement of collective responsibility of the Council of Ministers to the House of the People, every citizen of India has a say in how the duly constituted Government of India will conduct itself. The government cannot try and silence a citizen and accuse him of sedition if he criticizes the government.

When an election takes place contending parties do not fight it on the basis of praise of the party in power. It is the job of the opposition to criticise government, point out its shortcomings and ask the people to defeat the ruling party at the polls and place before the people its own agenda of how it will govern. The objective of such a campaign is to convince the people that the government in power is so worthless as not to merit its return to power. The objective is to create in the public mind such a feeling of disappointment about how they have been governed and in fact to arouse dissatisfaction with the ruling party that it is defeated at the polls. Because the ruling party and government are virtually one, till the ruling party is defeated, will such criticism amount to sedition? Incidentally, propaganda against the ruling party and government does not begin only after the election is announced. It is a continuous process in which government would be liable to criticism in the Legislature, by the press and electronic media, through public meetings, agitations and movements and through the expression of the right to free speech by individual citizens. Does all this amount to sedition?

Let us try another tack. Parliament frames laws, almost all of which are drafted by the Executive and, because the ruling party has a majority, they reflect the will of the Executive. High Courts and the Supreme Court quite often strike down such laws as being inconsistent with the Constitution. Sometimes strictures are passed. In cases involving government very often the courts are stridently critical of executive action. Can this be construed to be sedition? What about the Comptroller and Auditor General of India appointed under Article 148? Under Article 151 the audit reports prepared by the CAG are placed before Parliament by order of the President after CAG submits them to him. Generally audit reports are critical of government, up to and including CAG’s comments on transactions which virtually accuse the government of wrongdoing which may be tantamount to corruption. Is this sedition? Is criticism of government based on an audit report an act of sedition? Is a movement which says that corruption be rooted out an act of sedition because it does, in the eyes of the public, paint the government to be worthy of contempt because of its own actions?

The Constitution permits criticism of government to the point where the people are so fed up with it that they call for a change of government through the process of election. What the Constitution does not permit is the overthrow of government by violence or by means other than constitutional. The Constitution enjoins government to govern for the welfare of the people; it does not state anywhere that a government must govern wisely and well. What it says is that every five years the people of India will judge the performance of government and will decide whether there should be a change in those who govern us. To take care of a situation where people are trying to unlawfully overthrow the government, apart from section 121 IPC, we have Article 352 whereby if the security of India or any part thereof is threatened by war, external aggression or armed rebellion and this gives rise to a grave emergency, the President may issue a Proclamation of Emergency and assume extraordinary powers to deal with the Emergency. Similarly, if it is found by the President that there is failure of the constitutional machinery in a State he may issue a proclamation under Article 356 and pro tem take over the government of the State. During the Proclamation of Emergency operation of Article 19 can be suspended and enforcement of the Fundamental Rights may also be suspended. This, however, is possible only in a situation in which the very existence of India is jeopardised. Indira Gandhi misused the provisions of Article 352 and we went through a two-year period of virtual dictatorship. The Constitution and the people proved themselves to be stronger than arbitrary rule, Mrs. Gandhi was defeated in 1977 and the supremacy of the Constitution, constitutional government and the people of India were restored, hopefully never to be breached again. When we have all these provisions in the Constitution why do we need section 124-A IPC?

I am no great supporter of Binayak Sen. I am totally against violence against people and the State and I do feel that Naxalite terrorism must be suppressed with a heavy hand. If Binayak Sen supported the Naxalites and it can be proved that he and the Naxalites were part of a criminal conspiracy under section 120-A IPC or had a common intention under section 34 IPC to commit acts which led to culpable homicide amounting to murder I would be quite prepared to have Binayak Sen charged with these offences and suitably punished. But to accuse him of sedition under section 124-A is ridiculous, just as it is idiotic to charge Aseem Trivedi, a cartoonist, of sedition because he substituted three wolves for three lions and the legend ‘satyameva jayate’ for‘bhrashtameva jayate’ in a symbol which was an obvious caricature. For material which is libelous, or is otherwise defamatory we have Chapter XXI of IPC to provide legal remedies. Certainly a charge under section 124-A IPC is not justified. In fact I am now of the confirmed view that taking into account the constitutional right to criticise government, the duty of the citizens, the Legislature, the courts and the other constitutional authorities to call government to account and the freedom of speech that we all enjoy, there is no justification for the existence of section 124-A IPC which defines sedition and provides drastic penalty against it. The offence of sedition as defined by section 124-A IPC is similar to laws of blasphemy as operated in the medieval Europe and even today in some countries such as Pakistan which claims to be Islamic theocracies. Allah, Jehovah, God, Parmatma, call Him what you will, is too powerful to be threatened by a puny mortal who blasphemes. The Indian State is too powerful to be threatened by a seditious individual because normal law can effectively neutralise active sedition. Therefore, Section 124-A IPC needs to be immediately repealed.

A Relook at the Three Pillars of the State: Wisdom by Hindsight

Dr. M.N. Buch

Visiting Fellow, VIF

Of the three pillars of the State, the Executive, the Legislature and the Judiciary the task of the Executive is perhaps the most arduous. The Legislature is answerable only to itself and to the electorate. The Legislature can make and break a government and when this is done by due process it is legitimate. When, however, this is done through dubious means which have come to prevail since 1967, when for the first time legislators were purchased and thus induced to defect, resulting in the legitimately elected governments falling and power passing to those who had purchased it by arranging defections, it is totally reprehensible. The entire history of corruption as it affects us today dates back to that fateful period in 1967 when in States such as Madhya Pradesh, Bihar, Haryana and Uttar Pradesh governments were bought and sold. The legislators suddenly found that they command a price and this could only be paid through the wholesale corruption which became possible only by subverting the State and its institutions. The process brought the legitimacy of government itself into question and it certainly brought the Legislature, both at the Centre and the States, under a cloud which is refusing to lift.

The judiciary is in the happy state of enjoying total autonomy in which whereas there is a hierarchical judicial accountability, there is very little internal administrative accountability up to the level of District Judge and virtually no internal or external administrative accountability so far as the High Courts and the Supreme Court are concerned. Because the process of impeachment of a judge ultimately rests in Parliament, as was proven in the Justice Ramaswami case even a judge found guilty of various misdemeanours by a properly constituted tribunal could not be removed because the Congress Party played foul and the requisite majority for passing of the impeachment motion could not be mustered. Theoretically even if a judge is convicted of a heinous offence and sentenced to a long term of imprisonment he will continue in office if the necessary majority cannot be ensured in Parliament to have an impeachment motion carried. Therefore, the conscience of the judges apart, there is no one on earth to whom a judge of a High Court or the Supreme Court is accountable.

This brings us to the Executive. At the political level the Executive, that is, the Council of Ministers, is collectively responsible to the House of the People under Article 75 (3) of the Constitution, with the House having the power to remove the government by adopting a motion of no confidence. The Council of Ministers advises the President on how the Executive government will be conducted and the Executive government itself then functions as per the Rules of Business approved by the President under Article 77. Incidentally, under Part VI of the Constitution whatever applies to the Central Executive also applies mutatis mutandis to the State Executive. The Executive power vests in the President and he exercises this power through officers appointed by him under Article 53 of the Constitution and Part XIV of the Constitution. The permanent Executive, that is, the officers who implement the decisions of government, is organised into Services under Part XIV of the Constitution, with selection to the Services being done as per the provisions of Chapter 2 of Part XIV. The structure of the Services is hierarchical and, therefore, every official is accountable to his immediate superior and through him right up to the senior most person in his Service or his department. For the organised Services this accountability is virtually daily and continuous and an official who is unable to discharge his duty is liable to disciplinary action. The Conduct Rules, Disciplinary Rules, etc., are all framed to provide a framework within which the Services will act and be called to account for their actions. These officials, therefore, are accountable to their superiors and the ministers and can lose their jobs if they are found to be guilty of misdemeanour after a proper departmental enquiry. Neither the Legislature nor the Judiciary is subjected to this type of accountability, especially at the level of the higher Judiciary.

What are the functions of the Executive government? Under the definition given in the Chambers Twenty-first Century Dictionary one meaning given to the Executive is “the branch of government that puts laws into effect”. This is an excellent definition of the Executive. The implementation of laws, therefore, is the primary function of the Executive and whereas it is the Legislature which gives the framework of laws, it is the Executive which takes all the necessary decisions to implement the laws. A start has to be made with the Constitution itself, which is the fundamental law of the country. Therefore, the Executive has to take action to ensure social, economic and political justice and zealously guard the liberty of the citizen and ensure him equality of status and opportunity. The Executive has to take action to ensure that no citizen is discriminated against on grounds of religion, race, caste, sex or place of birth. It has to ensure that untouchability is not practised and that the protection under Article 19, especially to move freely throughout the territory of India, to reside and settle in any part of India and to practise any lawful profession and carry on any lawful trade or business is fully available to all citizens. The Executive must also strive to make the Directive Principles of State Policy an integral part of the business of government, which means that the Executive must secure a social order for the promotion of the welfare of the people. In other words, the protection of the people and the promotion of their welfare becomes a fundamental duty of the Executive. All this is possible only if there is an environment of law and order, public security and freedom of the citizen from fear. It is the duty, constitutionally and legally, of the Executive to ensure that such a climate of security is created. If one single citizen of India lives in fear then the State has failed in its duty.

Every business house functions with the objective of maximising profit and obtaining the highest possible return on investment. There is nothing intrinsically wrong or immoral in maximising profit, but in business terms it means an excess of income over expenditure. Everything in business is amenable to a cost benefit analysis in monetary terms and that activity which does not yield a monetary profit would come within the definition of bad business practice. The objective of government is to maximise welfare. Welfare entails the health, comfort, happiness and general well-being of people at large, welfare economics means equitable distribution of the Gross Domestic Product to the best advantage of people at large and the promotion of welfare uses welfare economics to maximise the welfare of the citizens. Health care of citizens, provision of social security, development of an educational system which extends the benefit of quality education to the least privileged child, elimination of malnutrition and hunger, providing directly or facilitating gainful employment, providing adequately for the defence of the country against foreign aggression and internal disturbance are all the legitimate concerns of the State in general and the Executive in particular. Many of the measures which are to be undertaken for this purpose will not pass a commercial cost benefit analysis. Quite often welfare is not quantifiable, though there are objective and subjective tests which can help us in determining whether maximum benefit is being delivered by the Executive.

Let us take a few examples Tamil Nadu pioneered the mid-day meal programme and is running the only successful example of this programme in India. Because the programme is being run efficiently over a million children in school get a nutritious diet, the school drop-out rate has substantially reduced and level of nutrition in Tamil Nadu is better than in any other State. It a fully subsidised programme, ultimately paid for by the tax payer. No private business establishment would take up such a programme because it does not yield monetary profit. But what about the social benefit which flows from it? Should not that be taken into account when assessing the programme?

Let us take another programme, that of providing housing and house sites to the poor. The jhugi- jhopdi resettlement scheme of the Delhi Development Authority is an example of providing a house site, with some services to, the squatter population of a city. Certainly the opportunity cost of land given to the squatters is not taken into account and in purely monetary terms people with no legal entitlement are thereby given a house site whose present value is a multiple of what that land cost when it was initially developed. Why only squatter colonies? Almost the entire programme of providing housing for the economically weaker sections, lower income groups and middle income groups, who were provided land and built houses at minimum, affordable cost throughout India has always been a welfare programme. Whole cities have developed because the State provided the development inputs to the cities. The present value of land in these cities and towns and of the land under the areas colonised for EWS, LIG, MIG beneficiaries would run into absolutely astronomical figures before which the estimates of CAG of losses in 2G Spectrum allocation and allotment of coal blocks would pale into insignificance. Are we to apply commercial norms to these welfare decisions of the Executive, ex post facto and to indict them for causing loss? Not if one looks at the duty of the Executive as one to promote welfare.

Let us take another example and that is industrial development. When the process of planning began one of the objectives of government was to create an environment and to provide the land and infrastructure which could promote the development of industry in India. Our major hydro electric and thermal power projects, the huge new capital industries of steel, aluminum, fertilisers, machine tools, etc, were heralded as the new temples of India. All over the world industrial area and estates were developed where land, power, water, roads and other infrastructures were provided to industry at highly subsidised rates. Prior to 1947 India had some industries but was not an industrial power. After 1951 there was no holding back of industry. Would that have been possible if the State had not provided? Would that have been possible had the State not formulated an appropriate policy and the Executive not provided the base on which industry grew?

Our great institutions of learning -- the Indian Institutes of Technology, Indian Institutes of Management, the Agriculture Universities, our magnificent Medical Colleges such as AIIMs, PGIEMR, Chandigarh and Pondicherry, the Indian Institutes of Information Technology, the Central Universities and the State Universities -- would not have come into being if the State had not invested in them and the Executive not created the necessary infrastructure. The intervention of the State and the process of Executive decision making have given India the foundations of a higher educational system which is as good as anything which can be found anywhere in the world. Commercially these decisions may not be viable but the national assets that we have created are beyond valuation.

Let us now go to the other end of the spectrum. Rural electrification by itself, especially in remote areas, is not a commercially viable proposition. However, rural electrification has certainly transformed the agricultural scene because with availability of power lift irrigation throughout the country has become both feasible and viable. Crores of pump sets are lifting water to bring irrigation to fields which would otherwise have remained dry. A subsidy is paid to the farmer by way of cheap power and the State is bearing the subsidy. Can such an Executive decision be faulted because it is probably costing State a great deal on a daily basis? What about the fundamental change which it has brought about in agriculture and the prosperity that it has extended to rural masses in far flung areas?

Very early under British rule, especially after the Crown took over the Government of India from the East India Company and assumed direct rule, it was decided that it was the duty of the government to look after the people in times of famine and scarcity. The Famine Code was drawn up sometime in the 1860s, to be succeeded by the Scarcity Manual which operates even today. The Collector of the District would do an annual or seasonal crop review and determine whether it was a year of scarcity or not. Thereafter relief works would be started and employment provided to indigent rural people. Today the programme is supplemented by such schemes as the National Rural Employment Guarantee Scheme, now renamed after Mahatma Gandhi, the Watershed Management Programme, the Integrated Rural Development Programme and other schemes aimed at improving the rural economy, providing better health care, promoting women and child development and various other schemes for the welfare of the people. These are all programmes mandated at the political level but implemented by the Executive. Are we to stop such programmes because the Executive thereby causes a drain of the public exchequer which is not recouped by commercial means? Even in a purely capitalist, free market economy such as the United States, when the economy began to collapse the government intervened and virtually nationalised banks, investment companies and various financial institutions in order to protect the people. The Executive will continue to take decisions and must continue to do so for promoting the welfare of the people even if it means that valuable land is virtually gifted away and budgetary support for welfare schemes is increased. To bring every decision of the Executive under the scanner of commercial viability is to sound the death knell of effective Executive government.

Even in the two worst cases for which government is facing so much opposition, the 2G Spectrum allocation and coal block allotment, we need to objectively bring the matter into a more balanced perspective. The argument that at a certain stage in the development of our telecommunication system allotment of spectrum without auction was appropriate because if that had not been done mobile telephony would not have achieved the present heights has validity. This issue needs to be looked at objectively and not necessarily through the prism of the audit report. If there is wrongdoing then let us punish the guilty, but let us not reject the policy without understanding all its implications. In the matter of coal block allotment two issues have to be separated. If it is decided to have coal based thermal power generation, then the proposed power station must have captive coal mines. Government through a transparent process can determine the tariff for coal, but no loss as such can be assumed merely because the mine was not auctioned. Without the coal power plants could not have been made operational at Sasan and Chittarangi and there is evidence to believe that these power plants will soon be operational. Every allotment made to a power company or an industry in which coal is an important input, in which the industry has taken all the necessary steps to go into production in the near future, should be deemed to be a valid allotment. Coal blocks allotted to dubious companies which have taken no obvious steps to activate the mine and to use the coal for productive purposes must be cancelled. In every single case where a coal block is allotted on political considerations the allotment should be cancelled. In every case where there is collusion punitive action must be taken, but if as a result of this government stops developing the coal sector it would be a tragedy.

The following lessons have to be learnt from the recent development in which CAG has been active, Parliament is not allowed to function, the press and electronic media have a field day and the Executive has become so scared of its own shadow that government has virtually ceased to function. That is what the Washington Post article literally states. Instead of being annoyed with a newspaper for writing something which is largely true the Government of India should now do a great deal of introspection and take all the necessary steps needed to activate the Executive and to make it function boldly but honestly. Let us cut all favouritism and nepotism out of the system and let the Executive perform its function of promoting welfare and governing firmly and purposefully.

Is Federalism in Danger Through Central Activism?

Dr. M.N. Buch

Visiting Fellow, VIF

Article One of the Constitution makes India a Union of States. The words of the Article are “India, that is, Bharat, shall be a Union of States”, The key words are, ‘India’, ‘Bharat’, ‘Union’ and ‘States’. 

Adi Sankara brought us the philosophy of ‘advaitya’, or indivisible, in contrast with ‘dvaitya’ or dual, duality. The Constitution by calling India that is Bharat perhaps recognises duality in all thing. Of course this is dabbling in the field of the metaphysical, but the fact is that in our polity there are almost always two facets, that which is stated and that which is real.

To return to Article One, in the Union that is India if there are no States there is no Union. In the United States of America thirteen separate British American Colonies came together to jointly fight the war of Independence. For this purpose they formed an Union, a federation in which the Colonies voluntarily surrendered some of their powers to the Union while jealously guarding what they did not surrender. Under the U.S. Constitution that which is not surrendered to the Union belongs to the States. Residuary powers in the U.S. vest in the States. In India the Seventh Schedule of the Constitution has three Lists of legislative competency. List One is the Union List in which Parliament has exclusive legislative jurisdiction; List Two is the State List in which the State Legislature has, exclusive jurisdiction; List Three is the Concurrent List in which both Parliament and the State Legislatures have jurisdiction, with the laws of Parliament taking precedence . Under Article 248 all residuary powers vest in the Union. 

The India Union really consists of the Provinces of British India, not quite colonies but also not quite States as understood in the present federal context. Their origin lies in British rule as ultimately codified by the Government of India Act 1935. Many of the features of that Act are carried over to our Constitution --- in fact the Act is the basic frame around which the Constitution is woven. It is not as if the Provinces came together to form a Union, for which purpose they surrendered some of their powers to the federation. The division of powers was already done by the Government of India Act, 1935, in section 95 of which one finds an echo of Article 356. Or is it the other way round, with Article 356 echoing section 95 of the Act? Prior to 1935 India was an Unitary State with several federal features, not because federalism was the ruling philosophy but because India was too large to be governed without a high degree of decentralisation of powers and local autonomy. It is in 1935 that this autonomy was enshrined in the Act which was then our Constitution or Basic Law. This has been carried forward, fine tuned and enshrined in our Constitution which has also accommodated the princely states which merged into the Union.

The word federalism does not find any mention at all in the Constitution, except in the Article containing definitions, Article 366, sub-clause (11) of which refers to the Federal Court as constituted under the Government of India. Act 1935 and Article 374, which provides for judges of the Federal Court to be judges of the Supreme Court and for all cases before that court to stand transferred to the Supreme Court. Everywhere the word used is ‘Union’. Is it, therefore, a question of semantics only and we really are a federation. Or is it that we are a Union with federal features without being a true federation?

The Seventh Schedule of the Constitution provides in the Union, State and Concurrent Lists the exclusive jurisdiction of Parliament, the exclusive jurisdiction of State Legislatures and the concurrent jurisdiction of both. List Two of the Seventh Schedule gives autonomy, one can argue sovereignty to the States in the subjects enumerated in the list. Under Article 162 the executive power of the State extends to all matters for which the State Legislature is competent to make laws. Exclusive jurisdiction mandated by the Constitution does give India a strong federal character and, therefore, India can be deemed to be a federation. But it is a federation with very strong centripetal force in which the Centre has a larger role than the States. All federations have this to a greater or lesser degree and even in the United States the exigencies of war, the demands of national security, economic considerations, especially at a time of crisis and the striving for equal opportunity and civil rights have led to increasing federal intervention and enlargement of the role of the federal government. As the world becomes more complex, as modern transport and communications, information technology shrink distances the demand for centralised decision making increases. It is here that in a federation collective decision making through consultation and knowledge sharing has to coexist within decentralised implementation of decisions and an increasing partnership between the Centre, the States, Local Government and the people all become virtually important. A successful federation is one where this is achieved.

As already stated India is a highly centripetal federation. Under Article 312 we have All India Services constituted by the Centre, whose officers hold all the senior posts in the Centre and the States. Our judiciary is not divided into State Judges trying cases under State laws and Federal Judges trying cases under federal laws. Right from the court of first instance, civil or criminal, right upto the Supreme Court, all magistrates and judges have jurisdiction to try cases under any law in force in India, State or Federal. The judiciary is a unified hierarchy with the Supreme Court at the Apex. The control over and audit of the funds and accounts of the Central, State and Local Government vest in a single Comptroller and Auditor General, just as conduct of Parliamentary and State Legislature elections is the responsibility of the Election Commission.

The Centre has other levers to asset its superiority over the State, of which finance is a very important one. Under the Constitution, List 1 of the Seventh Schedule enumerates the taxation powers of the Centre. Entries 82 to 92B give the taxation powers of the Centre and these include income tax, custom duties, excise duties on tobacco and goods manufactured or produced in India, corporation tax, taxes on capital value on assets, estate duty on property, terminal tax on goods and passengers carried by rail, sea or air, taxes on stock exchange transactions, taxes on advertisements in newspapers, taxes on sale and purchase of goods in the course of interstate trade, etc. By contrast the States have the power to impose land revenue, taxes on agricultural income, taxes and duties relating to agricultural land, property tax, excise duties on alcoholic liquors, opium and narcotic drugs, electricity tax and duties, taxes on entry of goods, taxes on vehicles subject to concurrent powers vested in Parliament under Entry 35 of List 3, entertainment tax, capitation tax and rates and stamp duty. With a new VAT and GST regime in the offing the discretion to levy taxes will be further reduced. No doubt Part XII of the Constitution in Articles 268, 269,270, 271 and 272 does provide for distribution of tax revenue between the Union and the States and under Article 280 it is mandatory to constitute a quinquennial Finance Commission. But how much of central taxes will form part of the divisible pool is limited by Article 271 and, therefore, if income tax rates are not increased and instead surcharges are imposed, the State will get no share of this revenue. In other words, if the Centre decides that some revenue should be withheld from the States it can do so and the Finance Commission notwithstanding, the States can do nothing about it. 

Another financial lever available to the Centre is the Five-Year Plan and the Annual Plan. The size of the State Plan is very largely dependent on what the State can raise by way of resources, but by withholding central grants or downplaying sectoral requirements the Planning Commission can definitely influence the size of the State Plan. When we add to this the huge sums of money available from the Centre under schemes such as the National Rural Employment Guarantee Scheme (NREGS) and the Jawaharlal Nehru National Urban Renewal Mission (JNNURM) one would get some idea of how the Centre can manipulate things in favour of a State whose government is friendly to the Centre and how it can harass a State whose government is unfriendly. Clearly the financial equations are heavily weighted in favour of the Centre. In a federation of equality the financial arrangement would be such that the Centre can neither discriminate against, nor in favour of any State. This is not the position in India, which is a major complaint of the non UPA ruled States in the country at present.

There are large numbers of irritants which now seem to be plaguing Centre-State relations. During Nehru’s time there was homogeneity because the same party ruled both the States and the Centre. In Indira Gandhi’s time, thanks to her basically imperious nature and centralisation of powers in the Prime Minister the Centre was totally supreme, State Governors were changed at will and state governments superseded whenever they were found to be inconvenient and the writ of the Centre was supreme and at no time more than during the Emergency. The States were virtually reduced to administrative units which had to obey the orders of the superior government, the Government of India. Federalism virtually died under Indira Gandhi, as did a number of other institutions which are vital for the working of a democracy. On the use of Article 356 the Supreme Court did put a number of restrictions in the S.R. Bommai case, but the real problem is that if the Centre does use Article 356 and destablises a State Government, by the time judicial remedy can begin to take effect the damage has already been done .Paradoxically it is only when the Centre is weak and the ruling coalition is unstable that the States are relatively safe from whimsical central intervention. A weak Centre is not good for the country because decision making at the national level virtually ceases. Therefore, safeguarding federalism through a weak Centre is far worse than the disease itself. Ideally the constitutional position of a strong Centre presiding over a centripetal policy, but with State Governments which are stable and powerful and act as a check on central whimsicality is the best constitutional and administrative arrangement for India. This is the goal towards which one must progress. 

In the United States any law which affects the interests of the States must have the support of the Senate, which is the guardian of the rights of the States in the federal set up. Regardless of the size of the State it sends two representatives to the Senate. In India the Council of States has 238 representatives of States and Union Territories but because the number of members from each State is dependent on the size of the State Assembly, the more populous States have more number of members and the less populous States are marginalised. The method of election being indirect and the total electorate for each State being the Legislature of the State, the decision of the Council of the States is a reflection of the political equation within each State Assembly. The members, therefore, are representatives of political parties rather than of the State from which they are elected. To that extent there is no difference in the working of the House of People and the Council of States because members of both Houses answer to a whip. That is certainly not true of the Congress of the United States of America. The Council of States has no veto powers in the matter of legislation even if it adversely affects the interests of a State. It is only under Article 249 that Parliament acquires the powers to legislate with respect to a matter in the State List in the national interest, provided that the Council of States so resolves. Because members of the Council of States answer a whip the members of that House will, even in a matter governed by Article 249, vote not in the interest of the State or States but as per the diktat of the ruling party. At the level of Parliament, therefore, the States have no guardians to safeguard their interests and, therefore, there is a growing distrust between State Governments, Central Government and legislation enacted by Parliament. The result is that many State Governments resolve not to enforce a law of Parliament. For example in the matter of the Food Safety and Standards Act both Madhya Pradesh and West Bengal have said that they would not strictly enforce this law. Only a weak Centre can tolerate this.

When it comes to matters of national security the situation becomes more serious. Every time when a break-down of law and order takes place State Governments do go running to the Centre for help. The Naxalite movement which has seriously affected the administration of about 160 districts in the country is one example where the affected States are clamouring for central assistance and central forces. When terrorists struck Bombay in 2008 the Maharashtra Government went running for help to the Centre. When natural calamities strike the States want central intervention. At that time no one cries about such intervention weakening federalism. However, when the Centre decides to set up a National Counter Terrorism Centre and tries to arm it with the authority to intervene immediately on receipt of credible information and to neutralise a terrorist attack which is building up, the States cry foul. It is a fact that police is entirely a State subject and police action is the responsibility of the State Governments. With the police throughout India at senior levels being manned by the very IPS officers who also serve the Central Government it is strange that the Centre obviously does not trust the State police and wants to retain powers of direct intervention. This is strongly resented by the States. By failing to take States into confidence and by trying to push through certain measures which have been initiated at central level the Centre has aggravated the situation and created a bogey of federalism in danger versus national integrity in danger. Under Article 355 it is the duty of the Union to protect the States against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. Surely the Centre must have the wherewithals to perform its duty under Article 355. We do need a serious dialogue between the Centre and the States on Article 355 versus Entries 1 and 2 of List 2 of the Seventh Schedule of the Constitution (Police) and to see to what extent the power to strike against terrorists on receipt of credible information is available to a Central authority without this being construed as an attack on the rights of the States. It is in this behalf that the Interstate Council must be activated so that all matters relating to Centre-State relationships can viewed through the prism of public interest and solutions arrived at which would enable the Centre to discharge its constitutional obligations without the States feeling that this is an encroachment on their rights. In other words, what this federation needs is a clear-cut understanding of what federalism means under Indian circumstances and how we can create that machinery which ensures smooth relations between the Centre and States without conflict.

Broadly speaking it is not federalism which is under attack but rather individual State Governments and the Centre itself which are under threat because the two opposing parties will not talk to each other, will not create an environment of trust and will insist on trying to score brownie points against each other. In case there is no consensus the Centre must use its authority to decide an issue and then ensure that all States fall in line. Here defiance by one or more States should not be tolerated and, if need be, coercive powers be used to call recalcitrant States to account. Right now federalism is not in danger through Central activism. The fact is that the Centre, by failing to assert itself is failing in its duty and this can be fatal because as satraps break away the Centre itself would wither away. What price then this Union of States?

Gilani’s Conviction: A Soft Constitutional Coup and The Crisis of State

Sushant Sareen

Even before the Supreme Court of Pakistan had pronounced the verdict against Prime Minister Yusuf Raza Gilani, the writing on the wall was very clear: the so-called ‘independent’ judiciary was hell bent on gaining the dubious distinction of breaking new constitutional ground by convicting a sitting Prime Minister on the charge of contempt of court, which is really short-hand for a soft constitutional coup. Anyone who has followed the proceedings in the said case knew that the judges had decided to convict Prime Minister Gilani even before the case started.

Only, they had to go through the motions – lawyers call it due process – to keep up the charade of being even-handed so that the charge of one-sided justice and witch-hunt against the Pakistan People’s Party (PPP) could be watered down.

On the face of it, sentencing of the Prime Minister till ‘the rising of the court’ i.e. about 30 seconds, appeared to be a bit of an anti-climax because it belied expectations of a spectacle – the PM being taken to jail and/or the court disqualifying him as a Member of Parliament. But even this half-a-minute sentence was enough to do the damage and create an unprecedented constitutional and political crisis which the country can ill-afford at this juncture. With the conviction of a sitting Prime Minister, Pakistan has entered uncharted constitutional waters that hold the potential of sinking the ship of state. As things stand, the Pakistani judiciary has breached the limitations implicit in the constitution – the most appropriate term is the Hindi word ‘maryada’ – and created a situation which the framers of the constitution would have neither imagined, nor catered for.

If the reactions to the conviction are anything to go by, the portents are not good. The ruling PPP and at least some of its allies are gearing up for a bruising legal and political battle aimed at not only protecting the PM but also making hell of a noise to undermine the judges and their judgments. Prime Minister Gilani has already called the ruling ‘not appropriate’ and is showing no signs of putting in his papers. The leader of the main opposition party, Nawaz Sharif, has sounded the bugle by declaring that he and his party no longer acknowledge Gilani as the Prime Minister and has demanded his resignation and early general elections. The right-wing religious parties like Jamaat Islami and neo-Jamaat/Talibanesque parties like Imran Khan’s Tehrik-e-Insaaf have cast their lot with the judiciary and are going hammer and tongs at the Zardari-Gilani combine. In short, the stage is all set for political pandemonium, in the corridors of power, chambers of courts, the streets of the country, and of course, the ubiquitous TV studios. The powerful military establishment is meanwhile watching everything from the sidelines, biding its time but also calculating whether or not it will be required to step into the political slugfest.

The judgment against Gilani has not only sharpened the political polarization in the country but has also politicised the judicial processes. Sample this: on the eve of the judgment those supporting Gilani made it clear that the ruling would decide whether justice would be done (i.e. Gilani would be acquitted) or the PPP would once again be victimised; those baying for Gilani’s blood (actually, the real target is Asif Zardari) were waiting to see if rule of law would be upheld (i.e. Gilani would be sentenced) or if the judges would once again buckle under pressure! In such a deeply polarized environment, it is impossible to expect that judicial verdicts will be accepted ungrudgingly by either side.

In other words, every judicial decision in Pakistan today is something of a political minefield. To a great extent, it is the judges themselves who are responsible for the situation coming to such a pass. Right from the time this government took office in March 2008, the judiciary has been a mill-stone around its neck. The reluctance of Asif Zardari to restore the chief justice was only partly the result of his own personal grudge against Justice Iftikhar Chaudhry – he had humiliated Zardari and consistently denied him any relief during the Musharraf years. Partly, Zardari resisted the restoration because the suspended chief justice spooked the army which leaned on the PPP government to avoid restoring him. But after having been forced to restore the Chief Justice, it would have been ideal if all sides had decided to let bygones be bygones and started with a clean slate. After all, there was no one in Pakistan – not the judges, not the politicians, not the faujis, not the media mujahids and jihadis, no one really – who was not sullied.

While the sins of all others seemed to have been wiped clean, Asif Zardari remained a pet object of hate for the right-wing, Punjabi mafia that runs Pakistan which wanted to punish him for all his sins (more of commission than of omission) despite the fact that he had been jailed for over 11 years without having ever been convicted. Despite Zardari having become President and enjoying complete immunity under the constitution against any prosecution, the judges did not relent in trying to fix him. If only the judges, most of them with an Islamist proclivity – a favourite judge of the chief justice is now the chief legal counsel of the assassin on the former Punjab governor and the chief justice himself has made observations against secularism – had shown the same dogged determination against terrorists like Hafiz Saeed and others of his ilk as they have shown against Asif Zardari and Yusuf Raza Gilani, Pakistan might well have been a happier place.

Forget about Islamist terrorists, these very same judges are very careful when it comes to throwing the book either at the generals or even their favoured politicians like Nawaz Sharif. The zealousness with which Gilani has been convicted is somehow completely absent when it comes to convicting top army generals and ISI officials for flouting court orders (for instance in the missing persons case). Gilani’s supporters also point out how the Supreme Court judges have acted against fellow judges for ignoring an order declaring the emergency imposed by Gen Pervez Musharraf in November 2007 but have refused to act against the officials (including the current army chief) who had also ignored the very same order. Even in the cases involving politicians of a certain persuasion, the judges seem to be very guarded in their approach. For instance, while the chief justice showed remarkable alacrity in taking suo moto notice against an actress who was caught with two bottles of liquor, the somnolence of the judiciary knows no bounds when it comes to a murder case against the former chief minister of Punjab, Dost Khosa, who was a stand-in for Shahbaz Sharif for a few months and is the son of a close associate of the Sharifs and who is believed to have killed his wife.

It is against such a backdrop that the judiciary is being judged by supporters of the PPP who also question the constitutionality of the judgment not just because the constitution provides immunity to the Prime Minister under article 248(1) for any action he takes (or as in this case, doesn’t take) in the discharge of his responsibilities but also because according to the Attorney General of Pakistan there is currently no law on contempt of court and the ordinance under which that the Supreme Court is prosecuting the Prime Minister had lapsed as a result of the judgment of this very Court. The game-plan of the PPP is going to be two-fold. At the political level, there is a slim possibility that the party decides to ask Yusuf Raza Gilani to resign and selects his replacement in the next couple of days, in which case the crisis over a convicted PM will be resolved but the issue of the controversial letter will remain open. Alternatively, and perhaps more likely is the possibility that the PPP will ask Gilani to continue in office and at the same time will use this conviction to play the victim and use the ‘political martyrdom’ card to try and cement its core support base in South Punjab and Sindh. The only problem is that given the rather poor performance of the government, it is unlikely if this ploy will find too much traction. Although the PPP might win sympathy from some quarters, whether it will also receive the votes, especially in the next general elections, cannot be said with any degree of certainty. At best what the PPP can hope for is that the political martyrdom at the hands of a vindictive judiciary might help it to reclaim lost ground after the next elections.

On the legal plane, chances are that the PPP will use every trick in the book to drag the matter and prevent the disqualification of the PM. But how long they can drag this case is again a matter of speculation: the PPP supporters believe that they can pull this thing for around four to six months and then if matters reach a head elect another PM and repeat the whole drama all over again; the PPP detractors are of the view that at best the ruling party can drag this for a two to three months after which it will have to choose another PM. As the latter see it, the appeal against the conviction could be set aside in a matter of weeks after which the disqualification reference will be moved before the Speaker who has to decide on the matter within 30 days. After this period, the case will automatically go before the Election Commission which is currently headed by a serving Supreme Court judge in a temporary capacity. He is unlikely to take too much time before disqualifying Gilani. This ruling will then be challenged before the High Court and then appealed before the Supreme Court. Given the mood of the Supreme Court, the odds are that this entire process could be decided without too much delay.

While the legal processes will follow their own course, the issue of writing the controversial letter to the Swiss authorities to reopen the cases against Asif Zardari will continue to hang like a sword over the head of the government. If the government continues to defy the Supreme Court, there is a possibility that the court might ask the army to intervene. This would pretty much mean an end of the democratic order for the foreseeable future. If however the army refuses to follow the ‘illegal’ orders of the Supreme Court, then the Court will become a lame-duck. There is a possibility that the Court might not push very hard on the letter issue and wait for the next government (likely in March 2013) to write the letter against the President whose term expires in August 2013. But even before this happens, a caretaker government is likely to be in place by around November/December this year and this government could also write the controversial letter. In other words, the letter will ultimately be written and written even while Zardari is in office. Therefore, the question is what the PPP and Zardari hope to gain by holding out on the letter for another few months.

There is of course another possibility: the government might plead immunity for the president, something that the Supreme Court has already asked it to do. This is however a risky strategy because if the immunity plea is rejected then the government will have to write the letter. On the other hand, if the court accepts the immunity plea, then questions will be raised and fingers will be pointed against the judiciary for creating such a massive constitutional and political crisis for the last two and half years even though it was clearly laid down in the constitution that the President enjoyed immunity. After all, if the case against Zardari hasn’t been decided in the last 16 years, heavens would not fall if it continues to remain undecided for another year or so.

The big problem for the Pakistani state is that all this political and constitutional tumult is taking place at a time of monumental, even existential, challenges and threats. The economy is on the verge of collapse and requires some very tough decisions if it has to survive; at the strategic level, relations with the US and the West are very precariously placed and need bold decisions from the government; the situation in Afghanistan is threatening to go out of control and the Taliban, both the Afghan and Pakistani, could wreck havoc in the region; the internal security situation is abysmal with an insurgency in Balochistan and deep disaffection in Sindh (exacerbated by the alleged murder of the Sindhi nationalist leader Bashir Qureshi), rising sectarian violence and what have you. The spectre of serious instability that was already hanging over the country has only become more ominous after the Supreme Court judgment and cemented the impression of the state sliding towards failure because how can a government that is only engaged in unending fire-fighting to survive and is being constantly hauled over the coals, provide even a modicum of governance. Ultimately, in the name of rule of law the Pakistani judiciary has ensured that there is neither any law nor any rule in Pakistan.

Author is Senior Fellow at Vivekananda International Foundation

Little Expected, Little Gained from Zardari Visit

Kanwal Sibal

It was a private visit, but it was unavoidably given an official colour as the Indian prime minister could not have ignored the Pakistani president's presence on Indian soil without creating a misunderstanding.

Observers would have conjectured that India considered the embattled Mr Zardari a spent force incapable of delivering on vital issues whatever his desire for improved relations with India.

The government would have been criticised for missing the opportunity to show India's backing for an elected civilian president at odds with the armed forces who, combined with the judiciary, wanted his ouster.

Prime Minister Manmohan Singh is, in any case, very keen to make a breakthrough with Pakistan and would have sought this unexpected opportunity to engage with Mr Zardari who was, therefore, invited to Delhi en route to Ajmer for a lunch and a private conversation.

Nothing much was expected from this meeting except a review of various issues and a general exchange of views on further steps needed to make progress.

This is so because India and Pakistan are already engaged in a structured bilateral dialogue covering the whole gamut of bilateral issues whose format and the agenda were agreed after tough negotiations.

One round of this dialogue has already been completed and the second has begun. During this period, the Indian prime minister has met Pakistan's leaders in India and in foreign capitals.

Unhappy History

What India expects from Pakistan is known to the latter; the answers Pakistan gives to India's demands are also known.

If progress in resolving outstanding issues is slow, it is because the issues are overlaid by unhappy history and deep mistrust.

Translating general expressions of friendship and goodwill into practical decisions is very difficult.

India wants satisfaction on the terrorism issue; Pakistan wants "justice" on the Kashmir issue and sees terrorism as a way to force India to yield ground.

This thinking has not been totally discarded even though Pakistan itself has become a prey to the very monster of terrorism it created.

The increasing radicalisation of Pakistan and the impunity with which Hafiz Saeed, the founder of Pakistan-based militant group Lashkar-e-Taiba, operates accounts for this.

Now Pakistan has raised the water issue in highly charged terms even though the only agreement that has worked between India and Pakistan is the Indus Waters Treaty.

In these circumstances, to have expected President Zardari's visit to have provided a breakthrough would have been unrealistic.

President Zardari at the Sufi shrine in Ajmer The visit did not live up to the media hype, says Kanwal Sibal

At about 40 minutes, the one-on-one meeting of the leaders was shorter than expected.

In this amount of time all outstanding bilateral as well as regional issues could not have been discussed in any detail.

Prime Minister Singh appears to have spoken, not for the first time to his Pakistani interlocutors, about the need to bring the perpetrators of the Mumbai attacks to justice, prevent terror attacks against India from Pakistani soil and curb the activities of Hafiz Saeed.

Mr Zardari seems to have given a non-committal response.

Predictably, the president spoke of Kashmir, Siachen and Sir Creek - three areas where the two countries dispute control.

It was important for both leaders to assure their publics that "core" issues had been flagged. That both agreed to a step-by-step approach to resolve them only indicates the limited potential of this high-level conversation in Delhi to break new ground.

This step-by-step resolution of issues has lasted a few decades already and could well last a long time more now that there are question marks about Pakistan's future stability, the growing Islamisation of sections of its society and the uncertain consequences for itself and the region of its expected over-reach in Afghanistan after the US withdrawal.

Mr Singh expressed his appreciation of the steps taken by Pakistan on the trade front.

More could have been said about this positive development in bilateral ties in the statements by the two leaders and the later briefing on their talks by the Indian side.

Subdued Terms

Why this was not done is not clear. Perhaps Mr Zardari was reluctant because he does not want to be personally associated too much with this initiative which he undoubtedly favours, leaving its positive profiling to his government.

Somewhat surprisingly, the two leaders spoke after their meeting to the press in uncharacteristically subdued terms, with the Indian prime minister speaking laconically of finding practical and pragmatic solutions to the outstanding issues and the Pakistani president being even more bland.

Much has been made in the Indian media about the invitation to Mr Singh to visit Pakistan.

Pakistan is pressing for his visit as that would imply that it has delivered on the terror issue, including the trial of those responsible for the 2008 Mumbai attack, and that relations between the two countries have been effectively normalised.

Mr Singh wants to go but he wants concrete results that would vindicate his policy of engaging Pakistan despite its recalcitrance on the issue of terrorism, an approach that has many critics in the country.

A premature visit by the prime minister could be highly counter-productive for him personally and for the country. Hence his caution.

In response to Mr Zardari's reiteration of an invitation to visit Pakistan "soon", Mr Singh has indicated his readiness to go on a "mutually convenient date", nuanced to an "appropriate time" in the briefing later by the Indian ministry of external affairs with the added caveat of "mutually acceptable dates" and "substantive preparations" beforehand.

All in all, the visit did not live up to the media hype, but it served its purpose of maintaining high-level engagement with Pakistan in the hope that incremental progress could be made in resolving the difficult issues that bedevil the bilateral relationship.

Author is Member Advisory Board in Vivekananda International Foundation and Former Foreign Secretary