Saturday 30 July 2022

Gautam Bhatia thinks Judges can be sued for defamation!

Justice A M Khanwilkar who has just retired from the Supreme Court, has helped India deal with three pressing problems

1) Terrorism and terrorist funding.  In NIA v Watali, Khanwilkar upheld the principle that no bail will be granted where there is a prima facie case against the accused.

2) 'Lawfare' by foreign funded NGOs and 'activists' of various descriptions. The Noel Harper case confirmed that this nuisance could be curbed by law. In the Zakia Jafri and Himanshu Kumar cases, Khanwilkar made it clear that those those who lie and perjure themselves and seek to falsely implicate others will themselves be open to prosecution. A great nuisance could be curbed. 

3) Money laundering. Khanwilkar upheld the 2019 Money laundering act which should allow the prosecution of offenders with powerful political connections. 

Taken together, Khanwilkar's judgments have increased the country's ability to deal with existential threats- terrorism, corruption, and foreign subversion and law fare. Anti-national elements are furious with Khanwilkar. But their fury may subside as they cease to get paid for it. 

Gautam Bhatia, hopefully, is still getting paid. He writes on his blog-

Justice Khanwilkar has written some of the most consequential judgments concerning State power and the rights of the individual.

Not really. He has merely upheld laws as passed by parliament which were in conformity with the constitution.

But secondly – and more importantly – when you study these judgments together, you glimpse a certain judicial philosophy – such as it is – at work.

That philosophy amounts to nothing more than respecting the constitution. Parliament decides policy. Judges decide questions of law.

This judicial philosophy – subject to a few important exceptions – is, I believe, largely representative of the Supreme Court today (which also perhaps explains why, across Chief Justices, these kinds of cases have been regularly assigned to Justice Khanwilkar, one of its most forceful proponents).

The Supreme Court is not meant to decide policy. It must confine itself to questions of law.  

What is this philosophy? In my earlier analysis of Justice Khanwilkar’s judgment in the FCRA Case (also discussed below) I had compared it to the Peruvian President Óscar R. Benavides famous line, “for my friends, anything; for my enemies, the law.” In a similar vein, the common thread running through Justice Khanwilkar’s constitutional law judgments is: “for the State, anything; for the individual, the law“: it is the philosophy not just of the executive court, but of the executive(‘s) court.

The dude was a 'Field Marshall'. India has had no military coups. The Bench does not permit the State to do what if likes. It does permit it to discharge its proper functions. The Court can give no individual anything other than the law. The President, on the other hand, can offer clemency. The executive may decide to prosecute or not prosecute a particular case on grounds of public interest. Judges have a narrower function which however is not to oppose the executive save where the basic structure of the constitution is imperiled. Bhatia assumes that the judiciary should be against the executive. It should prevent the policies agreed on by the Legislature to be put into action. Such a view is fundamentally incompatible with the functioning of a democratic society. 

Before we begin, a final point, by way of caveat: it is almost trite to say that I do not agree with the outcomes of the cases that I discuss below. I have criticised some of these judgments when they were delivered, and in the Central Vista Case (that I flag, but do not discuss), I was one of (many) arguing counsel on the losing side.

It was a frivolous case which no court could have entertained. Building work does not endanger 'right to life'. Another petition which was dismissed described the scheme as   “Central Fortress of Death” and even compared it “Auschwitz. 

My analysis below, however, is not founded simply upon the fact of disagreement with the outcome, or of dislike of these judgments.

It is founded on the absurd premise that Judges should prevent the Executive from doing anything in the public interest.  

Regardless of my predilections, I believe that these judgments reveal something important, both about Justice Khanwilkar’s judicial career, and about the contemporary Supreme Court, which is important to articulate and to discuss. This post should be read in that spirit.

It is the spirit of an adolescent who thinks Judges should listen to them whine about 'Auschwitz'. 

Watali: Taking a Sledgehammer to Personal Liberty

Any discussion of Justice Khanwilkar’s legacy must begin with the 2019 judgment in National Investigation Agency vs Zahoor Ahmad Shah Watali. The case involved the interpretation of Section 43(D)(5) of the Unlawful Activities Prevention Act [“UAPA”], India’s umbrella anti-terrorism statute. Section 43(D)(5) prohibits a Court from granting bail to an accused if “on a perusal of the case diary or the report made under Section 173 of the [Criminal Procedure] Code, [the Court] is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.” In layperson’s language, Section 43(D)(5) bars the grant of bail if it appears that the police version (through the case diary or the chargesheet) against the accused is, on the face of it, true.

Watali was the subject of an expose by India Today. He was prima facie guilty.  

Watali was an appeal by the National Investigation Agency [“NIA”] against an order of the Delhi High Court. In that order, the Delhi HC had granted bail to Watali (the accused), under Section 43(D)(5) of the UAPA. The High Court took into account the (uncontroversial) legal proposition that “as far as the statutes concerning serious offences inviting grave consequences are invoked, the trial Court will scrutinize the material with extra care.” The Court’s job was not to proceed simply on the basis of the statements made by the investigative agency, and nor to act as a “post-office” for the State. On this basis, the High Court subjected the police version – according to which Watali was involved in terror funding – to rigorous scrutiny. It found that many of the witness statements were inadmissible under the law of evidence, that the documents purporting to originate from the accused were neither signed by him and nor on his letterhead, and that other documents were entirely innocuous, and consistent with his position as a prominent Kashmiri businessman. On this basis, the Court found that at that point, the police version was speculative, and there was no ground for denying bail to the accused.

The High Court was wrong. It needed to look at the totality of evidence, admissible or not, before deciding whether there was a prima facie case to answer. The seriousness of the crime- viz. financing terror- warranted a broader approach.  

When the case came up in appeal, the Supreme Court – in a judgment authored by Justice Khanwilkar – overturned the High Court’s order, and put Watali back in jail (he stayed in jail – awaiting trial – for three more years, until in February 2022, he was moved to house arrest because of a terminal disease). Crucially, Khanwilkar J’s problem with the High Court was not that it had incorrectly appreciated the facts of the case. Rather, it was that the High Court had applied the wrong legal standard altogether, and that the true role of the Court under S. 43(D)(5) of the UAPA was, effectively, to act like a post office.

Bhatia is lying. The judgment says that the 'Designated Court' MUST NOT act like a post office. It has the obligation to check there is a prima facie case and in fact had done so. The High Court should not have stuck its oar in. Admissibility was not relevant in deciding prima facie guilt. 

He noted that while examining the question of bail, “elaborate examination or dissection of the evidence is not required to be done”, and that furthermore, to reject inadmissible statements at the stage of bail was akin to entering into the “merits and demerits of the case.” Instead, the Court was to form a view based on the “broad probabilities” flowing from all the materials supplied by the police.

 This was the job of the Designated Court. The High court had erred by not applying its mind to 

'ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.

'36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re­stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.'

This is perfectly reasonable. A specialist court was satisfied that the defendant was prima facie guilty. The High Court did not apply its mind and made an error in law. The Supreme Court set the matter right.  

The judgment in Watali was criticised at the time as being incorrect (see, e.g., Abhinav Sekhri’s blog post), and I do not intend to traverse covered ground once again.

Either Watali was innocent or he was guilty. Does Bhatia really believe the man was just an innocent businessman with no connection to Hurriyat or the Pakistanis? The plain fact is that Watali is saying things which are damaging to Modi. Did he play an intermediary role? Or is he spreading disinformation? What is certain is that he isn't an innocent who has been picked up in error.  

It is worthwhile, however, to recall once again just what it did. As is well known, at the time of bail, the defence cannot present its own arguments, put forward its own witnesses, or cross-examine the prosecution’s witnesses.

But it can provide evidence of prima facie evidence to the Designated Court. In this case, it had no such evidence. Watali was singing like a bird. The question was whether he could be useful as an intermediary- which is the claim he was making for himself- or whether he was simply a bag-man.  

It has no real way to effectively contest the State’s case. All that is for the stage of trial. At the time of bail, all the Court can look at – and all that the defence can point to – is the State’s version of events. Thus, when Section 43(D)(5) prohibits the Court from granting bail if “there are reasonable grounds for believing … that the accusation is prima facie true”, everything turns upon how closely and deeply the Court is authorised to examine the State’s version, on its own terms – for internal consistency, for plausibility, for whether the State is relying on materials that would even be admissible at trial (such as hearsay statements) – to come to its prima facie conclusion.

There is a specialist 'Designated Court' to do precisely this. Bhatia says it is a 'post office'. The Bench says it must not be a post office. It must use all evidence available to make a determination of prima facie innocence or guilt.  

And when, in Watali, Khanwilkar J barred all Courts from “examining” or “dissecting” the evidence, he effectively made the grant of bail in UAPA cases borderline impossible.

Nonsense! If you can show the Designated Court that you are innocent then you get bail or charges are dropped.  

As Sekhri wrote at the time, he “actively chose a legal position that makes lengthy undertrial detention more likely.”

Because it is Parliament's intention that terrorists and their funders be locked up rather than allowed to roam free.  The alternative is extra judicial 'encounter' killings. 

The asymmetry in power is glaring. UAPA trials in India take years – decades – to complete.

Decades when terrorists can't run around creating mayhem.  

If the grant of bail is made borderline impossible, then all the police are required to do is to slap the UAPA onto a chargesheet, and an individual will be condemned to years – or decades – in jail without trial.

Only if the Designated Court is shit at its job. Bhatia however is too high and mighty to go after anything less than the Supreme Court.  

The chargesheet and the materials need not be persuasive, need not be internally coherent, and in addition to all this, may even rely on plainly inadmissible material (as in Umar Khalid’s case): all that ceased to matter once, in Watali, Khanwilkar J turned all courts into stenographers for the Prosecution, while attaching dumbbells to the feet of the Defence and throwing it into the river to swim or sink.

But the honorable Judge did not gouge out the eyes of the Defense and rape its empty eye-sockets. More culpably, the Judge did not even bother to decapitate anybody and shit down their neck. 

It may be that Khalid will be granted bail by the High Court. Is Bhatia suggesting that this can no longer be done because of the Supreme Court decision? If so, he is harming Khalid's case. The plain fact is that 53 people died during the riots. One way or another those responsible will be held to account.  

In this sense, Sekhri’s 2019 warning has turned out to be prescient: “it is hard to conceive of outcomes which are anything but fearsome. The decision could make the UAPA an even more attractive tool to law enforcement agencies now that getting bail is harder…” We now know that this is exactly what has happened: the UAPA is the foremost tool of political repression in India, and Watali has become the chant that almost all Courts (barring a few) invoke to justify keeping people in jail for years without trial.

Which people? The answer is it is those people the vast majority of the population want to see in jail. On the other hand, voters got angry when Hindu nuns or lady Cabinet Ministers who were also Doctors were framed and thrown into jail.  

PMLA: Taking another Sledgehammer to Personal Liberty

If the UAPA is the executive’s weapon of choice to keep inconvenient individuals 
in jail for years without trial,

Bhatia and his ilk aren't inconvenient at all. They actually help Modi by reminding us of how fucking horrible our andolanjivis are.  

the Prevention of Money Laundering Act [“the PMLA”] is its political weapon.

No. It is an economic weapon.  This was passed as a money bill. In economic matters- e.g. Income Tax investigation the burden of proof is on the defendant. Al Capone was sent to jail for tax evasion. 

By now, every Indian knows about the “Enforcement Directorate” – or, as it is commonly known by its abbreviation – the “ED”. The eyeball impression that the ED is used to overwhelmingly to jail political opponents without trial, has been confirmed in this detailed analysis; that the purpose is jail without trial is borne out by the fact that while the number of PMLA cases filed by the ED has risen by eight times over the last eight years, the conviction rate under the law is under 1% – a statistic that should send alarm bell ringing for everyone (other than, it seems, the Supreme Court).

Bhatia wants more convictions under the act. Soniaji beware! The plain fact is that India witnessed a huge anti-corruption movement a decade ago. There is a popular mandate to prosecute politicians on the take. Modi and Yogi are perceived as not corrupt. Congress and the NCP are perceived as corrupt. The TMC rank and file is perceived to be corrupt when it isn't utterly criminal. Sooner or later, this type of corruption will have to be curbed and a number of politicians will have to do jail time. 

Amendments to the PMLA – passed in 2019 – which made the legal regime more draconian, were challenged before the Supreme Court. On 27 July – two days before his retirement – a three-judge bench led by Khanwilkar J delivered judgment, upholding all the provisions under challenge (see here, here and here).

Money bills are money bills. Economic matters are the purview of the Legislature. The Bench observed that since “Parliament in its wisdom” had grouped even minor offences with the “offence of money-laundering”, it was a “matter of legislative policy” and it was “not open to the Court to have a second guess at such a policy”. Still, a constitutional bench will re-examine the matter.

A similarly exhaustive analysis of the judgment is not the subject of this post. However, its underlying philosophy is simple enough:

Parliament, not the Courts, decides Fiscal policy. If it chooses to create a large class of economic offenses- that is its business. Since  Jilubhai Nanbhai Khachar v. State of Gujrat, there is no fundamental right to property. The nature of the constitutional right is not enmeshed in the basic structure. 

What is the proper method forward given the scope for abuse of ED for political purposes? Surely, there needs to be legislation of some sort and an independent enforcement machinery. But that is a matter for the legislature. Judges can't wave a magic wand and bring the thing into existence. However, a seven judge bench will sit on the question of whether this really was a money bill. 

while in every sense the officials of the ED act like the police – as coercive appendages of the State, and in the power that they hold over citizens – the Court liberated them from following the minimal procedural constraints under the Code of Criminal Procedure that do apply to the police.

This judgment may help India in 'ease of doing business' and FATF compliance. It is likely that there will be more stringent 'know your customer' and other such rules going forward at the global level. 

For instance, the Court exempted the ED from sharing the equivalent of the police’s First Information Report – the “ECIR” – with the accused, noting that communicating the “grounds” was enough; the Court held that as an ED summons was not an “arrest” (even though functionally indistinguishable from it), the constitutional right against self-incrimination doesn’t apply to statements made under ED questioning; that because ED officials weren’t “police officers” (even though functionally indistinguishable from them), confessions made to them were admissible in evidence (even though the whole purpose of making confessions to the police inadmissible was the fear of coercion); and that because the ED wasn’t a police force (even though functionally indistinguishable from one), the procedures that it followed (the “ED manual”) wasn’t required to be made public, but could remain an “internal document.” If all of this sounds somewhat reminiscent of the Stasi, it is because it is rather reminiscent of the Stasi (or, in Pratap Bhanu Mehta’s words, “Kafka’s Law“).

The same point may be made of the Income Tax department of any country. The plain fact is that the ED is looking at economic wrongdoing. It is fundamentally unlike a police force. The ED has a poor record at litigating and getting convictions. But the same is true of Kejriwal's old colleagues. Nobody likes the tax-man. But taxes are the price we pay for civilization. The Stasi would torture you till you informed on your own spouse. It is foolish to mention them in this connection. 

The effect of the judgment is clear: it is the sanctioning of a State-controlled, coercive militia, exempt from the basic principles of due process and the rule of law.

Income Tax is very bad and evil. Abolish all taxes! Also, the Post Office is a cover for a pedophile ring.  

To this heady cocktail,

Bhatia is drinking plenty of cocktails. Then he starts raving about militias.  

the Court added further, dangerous mixes: it upheld a bail requirement even harsher than section 43(D)(5) of the UAPA, and which the Supreme Court had itself struck down four years before (Khanwilkar J overruled precedent, simply to ensure that bail would become almost impossible under the PMLA), and upheld the “reverse burden” clause – i.e., that under the PMLA, the burden was on the individual to prove their innocence, and not on the State to prove guilt.

This sort of reverse burden- e.g. that which obtains under the UK  Customs and Excise Management Act 1979- does not conflict with fundamental rights relating to liberty and security. 

And finally, to expand the scope of the PMLA, Khanwilkar J went further: Section 3 of the Act stipulates that “whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.” In other words, for the PMLA to be attracted, two conditions had to be satisfied: involvement (whether intentional or unintentional) in connection with proceeds of crime, and the (definitely) intentional “projecting” or “claiming” it as untainted property. Khanwilkar J held, however, that actually, the word “and” meant “or” (just like “day” means “night”), and that therefore, simply being in possession of “tainted” property was enough for guilt under the PMLA.

This is in line with international law- notably the Vienna and Palermo conventions.  Acquisition, possession, use, concealment or disguising origin of the tainted money constitute the offence of money-laundering.

When you now combine this with the reverse burden clause (that under the PMLA, the individual is guilty until proven innocent), and Khanwilkar J.’s finding that any criminal offence could be brought under the PMLA (thus effectively making the CrPC wholly redundant),

Very true. If Gautam Bhatia starts wanking in court, it is clearly the EDs job to arrest him because his jizz is tainted property- right?  

the effects of this judicial rewriting exercise are terrifying.

To Bhatia who is drinking plenty of heady cocktails and jizzing all over the place.  

They also exacerbate and worsen the already wide definition of tainted property under the PMLA,

which includes Bhatia's tainted jizz 

which effectively covers just about everything

Bhatia's jizz effectively covers just about everything in his vicinity 

(and makes just about everything subject to attachment orders (see here),

his jizz is very sticky. It attaches to everything.  

financially crippling someone under PMLA scrutiny; note that Khanwilkar J also held that property can be attached right from the beginning of PMLA proceedings).

Why not wait till it disappears?  

But there are three things really of importance here. The first is that the re-worded section makes no grammatical sense (try reading it aloud and see for yourself).

Bhatia can read aloud. Can he also read silently? Perhaps- when he is not jizzing over everything. The plain fact is the two words 'projecting' and 'claiming' overlap in their semantic meaning.  

The second is that this interpretation turns basic criminal law principles on its head: because criminal legal statutes are coercive, and impose jail time on people, there is a time-honoured, well-worn principle in criminal law that they are to be read strictly and narrowly.

Not in cases of economic wrongdoing which are more like civil offenses. Criminal prosecution for tax evasion, money laundering etc. hinge much more on the economic motivation for the underlying transaction. It may be possible to establish this irrespective of the bare facts of the case. On the other hand, protection against 'compelled' self-incrimination'  (e.g. Garner v US) may vary between jurisdictions. 

In Khanwilkar J’s judicial philosophy of “for the State, everything; for individuals, the law”, however, every canon of interpretation is upside down,

because it slipped on Bhatia's jizz 

and nobody is safe from arbitrary State action; and finally, of course, to accomplish this task, he had to rewrite the section, taking the word that existed and replacing it with its opposite. I have previously referred to this as “Humpty Dumpty jurisprudence“, where the Court – like Humpty Dumpty in Alice Through The Looking Glass – decides that words mean what it decides them to mean, just because it can:

But this is what Bhatia does. He takes issue with a straightforward judgment which says 'till a 7 member bench decides otherwise, this is a money bill. Parliament decides policy. We have to let their intention stand bearing in mind treaty law.'  

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

Bhatia is not the 'master of his domain' due to he is constantly jizzing on everything. He fears the ED will come and arrest him because of all the property he has tainted. Meanwhile Central Vista is rising up. Soon Post Men will drag him to the new Auschwitz Modi has set up. Meanwhile, Bhatia has another heady cocktail and wanks some more.  

In his analysis of the judgment, Abhinav Sekhri points out that there was material on record to show that while drafting Section 3, the legislature had made a genuine error, and used the word “and” while it meant to use the word “or”.

If you love Abhinav Sekhri so much, why don't you marry him?  The fact is 'arms and ammunition' means either arms or ammunition. Otherwise the law is circumvented by one man carrying the guy and the other carrying the ammo. The thing follows ex proprio vigore. The judgment clearly makes reference to the relevant parliamentary debates. This is an evolving branch of law. The attempt to overturn it was ham fisted. The fundamental problem was that India and other countries have long had 'reverse burden' for a host of economic offenses. The international climate changed towards money laundering and India has been playing catch up. It is is silly to pretend that India is in the grip of a Gestapo when it is trying to comply with International Law. 

However, when it comes to criminal law, it is most certainly not the Court’s job to save the legislature from the consequences of its own incompetence (especially when the same leniency is hardly accorded to the individual!):

How would Bhatia know? He is not a Judge. The plain fact is that the Judge found no great incompetence in the drafting of the Law. It is a separate matter as to whether it is genuinely a money bill. But, as it stands, the thing is clear enough. Kapil Sibal could advance no argument to prove otherwise.  

the whole point of the doctrine of reading criminal statutes literally, narrowly, and strictly is that, given the differences in power between the State and the individual, the reach of the criminal law is not to be expanded any further than what the words can bear.

But it is literally the case that 'arms and ammunition' means either a gun or its ammo. It does not mean both. The same point holds with respect to 'projecting' and ' claiming'. The judgment reads-  'If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete.'

So you could have lots of cash stuffed into your mattress but would be innocent of any crime. 

 This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word “and” preceding the expression “projecting or claiming” therein. This Court in Pratap Singh vs. State of Jharkhand & Anr.459, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having 459 (2005) 3 SCC 551 (also at Footnote No.197) regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created.

So, this is a sensible Judge who understands the duties India has within the comity of nations. Bhatia however believes India is overrun by 'militias' who are creating 'Auschwitzs' in the Central Vista. India must never arrest anybody because Indian criminals are actually freedom fighters. Only Judges and Cabinet Ministers are evil. 

It is that principle that is Khanwilkar J entirely forsook in rewriting Section 3.

There was no 'rewriting'. Kapil Sibal and others had made an absurd allegation- viz that no crime occurs till someone says 'the drugs up my arse are mine'- and the Judge clarified the law.  

Let us take a step back, and sum up. When we look at the judgment in a broader context, it is important to keep in mind Sekhri’s observation that not all of this is entirely new. In many respects, the PMLA judgment is a continuation of the Indian Supreme Court’s long-standing tradition of expanding the State’s coercive powers and erasing the procedural safeguards that the law extends to individuals.

So, there is nothing new here. Some silly lawyers tried to challenge a law and failed. The Bench clarified matters. Bhatia, having drunk some heady cocktails and jizzed all over the place, is shitting himself with fear because he believes he will be sent to Auschwitz in the Central Vista.  

In the PMLA context, however, the statute’s provisions magnify that substantially: the statute “weaves together all the restrictive, rights-effacing clauses from this illustrious past in one fine blanket, and it then goes further.

It shits on Sekhri- right? That's what the lad is getting at. Bench may kindly desist from shitting on my head. However, it is welcome to give me a nice blanket.  

And the PMLA judgment, in turn, is perhaps unique in that it brings all of those rights-effacing judicial predilections together, in one case – what Sekhri calls a “greatest hits” video, and to which we can add: the band is the Supreme Court and the “hits” are direct hits to our constitutional rights: in sum, Khanwilkar J rewrote a criminal statute to substantially widen its ambit; authorised the State to bring any offence within that ambit; upheld the reverse burden of proof within that widened ambit; deprived individuals of their procedural and constitutional rights within that widened ambit; made the grant of bail almost impossible within that widened ambit; and exempted the State authorities from any effective constraints, once they began to operate within that widened ambit. When you put all of these together, what emerges is the classic definition of a lawless law, blessed by the executive’s Court.

The problem here is that this 'lawless law' is precisely the one demanded by the comity of nations. Meanwhile Sekhri and Bhatia are welcome to jizz on each other while complaining that Bench keeps shitting on their head and not even giving them a nice blanket.  

Noel Harper: Taking a Hatchet to the Freedom of Association

In April 2022, Khanwilkar J wrote a judgment upholding various amendments to the Foreign Contributions (Regulation) Act of 2022. Elsewhere, I have analysed this judgment at some length, and pointed out how the Court accorded its imprimatur to a set of provisions that had turned India’s NGO regulation law into a Russian-style legislation that effectively made the work of most NGOs either impossible, or prohibitively difficult. A few salient points stand out from this judgment.

But it is Britain and the US and Europe etc. which are using this type of legislation to keep out Putin's agents of chaos. Bhatia may hate India but he can produce no legal argument against the type of defensive action against 'lawfare' and subversion funded by foreigners.  

First, at the time of hearing Noel Harper, there were challenges to the FCRA pending in High Courts.

They were bound to fail.  

Noel Harper itself was a limited challenge to one set of restrictions. Now, ordinarily, the Supreme Court is quick to talk about how the High Courts should not be bypassed; however, it seems that all that rhetoric ceases to matter when legislation that the political executive really cares about is at stake.

Or where the Judges themselves feel they are being targeted by nutters like Bhatia 

Here, the Khanwilkar J-led bench could not wait to bypass those same High Courts, and hear and decide all questions about the constitutional validity of the FCRA, thus effectively depriving the High Courts from hearing the cases before them.

They would have been overruled if they'd gone a different way. 

Secondly, the judgment in Noel Harper applied differential standards to the State and to the petitioners,

Because the State alone has the authority to prevent anybody getting foreign money for any purpose it pleases.  

where the State’s factual claims (contrary to the prevailing legal standard of proportionality) were taken as true without any scrutiny,

There were no 'factual claims'. There was legislation which clarified what problems the law was meant to deal with.  

whereas the petitioners’ claims – and bona fides – were taken with the highest level of mistrust. In my post analysing the judgment, I wrote that:

The Court begins by framing the issue in a way that is most favourable for the State, and least favourable for the citizen.

Because the Legislature decides policy. The Bench does not. The question was 'is the law constitutional?' The answer is yes. A nuisance has been created whereby every two bit lawyer thinks that the basic structure of the Constitution is whatever they want it to be.  

Having framed the question thus, it then goes on to accept the State’s factual claims at face value, but does not extend the same courtesy to the citizen. Having done that, it then applies those parts of existing legal doctrine that favour the State, and ignores – or misrepresents – those parts that protect the rights of citizens. Having framed the question in favour of the State, accepted the State’s version of reality, and applied the doctrine in favour of the State – voila! – the conclusion is that the challenged State action emerges validated from the tender caresses of judicial review.

Bhatia has framed the question in a way that suits him. The problem is that money for lawyers arguing in so idiosyncratic fashion will dry up. Bhatia's type of Lawfare will get defunded. He and his ilk will be disintermediated. 

Indeed, this is a thread that runs throughout Khanwilkar J.’s judgments, and for a more elaborate articulation in this case, interested readers may consult the above blog post as a whole.

However, the most glaring aspect of Khanwilkar J.’s judgment (other than its impact on the freedom of association) – is that he explicitly and unashamedly framed its arguments in ideological terms, and this ideology was evidently the ideology of the political executive.

It wasn't Bhatia's own ideology. But then a political executive with such an ideology would quickly collapse.  

Lines from the judgment include: “The question to be asked is: “in normal times”, why developing or developed countries would need foreign contribution to cater to their own needs and aspirations?“;

Does Bhatia have an answer to this? If not, the observation is sound. It is not ideological.  

“Indisputably, the aspirations of any country cannot be fulfilled on the hope (basis) of foreign donation, but by firm and resolute approach of its own citizens“; “There is no dearth of donors within our country.”

Does Bhatia disagree? Does he have facts to controvert this view? If not, it is not ideological. It is factual.  

These are familiar lines. These are lines that we hear from the mouths of authoritarian leaders across the world,

No we don't. The 2010 act was put in by Manmohan. He was scarcely authoritarian.  

when they justify clamping down on civil society, and in particular, on NGOs

Manmohan was very naughty for clamping down on NGOs. Sadly, his party cut him off at the legs before he could take stronger action. The fact is, as Edwin Lim of the World Bank had become aware, foreign governments were using NGOs to prevent development in India so as to increase Indian reliance on foreign raw materials.  

. None of these words have anything to do with the law, legal reasoning, the Constitution, and the practice of constitutional adjudication.

Unless they are the words of a Supreme Court Judge. Bhatia's opinions count for nothing- unless such a Judge is convinced by them.  

Yet here they are, serving as the articulated major premise of a Constitutional Court judgment that is supposedly about whether restrictions upon the freedom of association – achieved via choking off funds to NGOs – are reasonable or not.

How is freedom of association choked off by not getting foreign money? Why stop there? Why not demand Joe Biden's jizz as a condition for Bhatia associating with himself? 

But as we have seen, that is not really what this judgment is about: what this judgment is really about is giving formal judicial imprimatur to some of the more extreme and prejudicial rhetoric of the political executive, giving a dressing down to citizens who have the temerity to want to raise funds for NGO work, and telling them to be “resolute and firm” if they want to have rights. This is the language not just of the executive court, but of the executive(‘s) court.

In the opinion of a cretin. The problem with being a lawyer whose opinions the Bench derides is that you won't get paid. You may dwindle to being a mere socioproctologist railing against jizzing Bhatias.  

Teesta Setalvad and Himanshu Kumar: Taking a Dagger to Article 32

Article 32 was being used as a tool of political assassination. Setalvad and Kumar are being punished for mala fide actions. Essentially, the Bench has turned against those who fooled it in the past. 

The language of the executive’s court is present most starkly in Justice Khanwilkar’s notorious opinion in the Zakia Jafri case.

His exemplary opinion. Bhatia may lurve Setalvad and Sreekumar. Few other Indians do.  

Once again, it is not my task here to examine the correctness of the judgment in refusing to set aside the SIT Report that had found that there was no controversy at high governmental levels during the horrendous 2002 Gujarat Riots (interested readers may refer to Nizam Pasha’s analysis of the judgment, here; see also the discussion in Episode 2 of the ConCast, with Abhinav Sekhri, on the criminal legal standards applied – or not applied – by the Court). For the purpose of argument, let us say that the Court found – as was its prerogative to find – that the petitioners had failed to provide adequate evidence to dislodge the SIT’s findings of no political conspiracy, and that therefore, the writ petition had to be dismissed.

It was also their prerogative to demand that perjurers and liars be prosecuted.  

But that is not the only thing that Justice Khanwilkar did. First, he spent some time in the judgment lavishing fulsome praise on the executive authorities (“indefatigable work”) – something particularly embarrassing, coming from a constitutional court, in a case involving large-scale riots.

Which were brought under control through 'indefatigable work'.  

Most seriously, however, he then went on to note that this case was the result of a “coalesced effort by disgruntled officials”,

that's true enough. The question is whether they also received lots of money for their tainted testimony.  

that those who had brought the present proceedings “had the audacity to question the integrity of every functionary … to keep the pot boiling”, and “all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

This is perfectly proper. The Bench had been fooled once. To try to relitigate the matter without any fresh evidence was brazen effrontery.  

There are a few things we need to note about these lines. The first is that in a functioning legal system, lines such as these would invite an immediate action for defamation,

Nonsense! Judicial immunity protects them.  

with heavy damages to follow. None of that, however, applies here: following the example set by Khanwilkar J., it seems that Supreme Court Justices, in the course of their official duties, are free to engage in character assassination, insinuations, and personal attacks, without being called upon to provide a shred of evidence for the same.

This is true in all constitutional democracies. How ignorant is Bhatia?  

Forget evidence, the Supreme Court did not even accord the petitioners the courtesy of a hearing on this point before damning them through its judgment. Needless to say, at the next available opportunity – judicial or extra-judicial – the same Supreme Court is likely to issue moral lectures on the principles of natural justice.

For Bhatia, telling stupid lies is natural justice.  

But what followed is even more alarming. The day after these “observations”, Teesta Setalvad – petitioner no. 2 in this case – was arrested by the Gujarat Police. The paragraph of the Supreme Court judgment that I have extracted above was the literal basis of this arrest: it was cited in the FIR. In other words, the Supreme Court – through Khanwilkar J – by making statements such as “all those involved in such abuse of process need to be in the dock” laid the groundwork for an arrest that State authorities followed up on within hours. And this arrest – it is important to note – was on the basis of a judgment in a case filed under Article 32 of the Constitution, which guarantees the right to move the Supreme Court for the enforcement of rights; in other words, the petitioner in a case filed against alleged State impunity, before the Supreme Court, was arrested by the State, based on the judgment of the Supreme Court.

Because the action was mala fide and involved perjury and tainted testimony.  

At the time of writing, Teesta Setalvad remains in jail.

Perhaps you may say that this is a one-off, an aberration.

Why say that? It is obvious that if you go to court and lie your head off, you could be done for perjury.  

Except that, a few days later, the same thing happened all over again, and once again it was Justice Khanwilkar who was the senior judge on the bench (although the actual judgment was written by a future Chief Justice of India, Justice J.B. Pardiwala). Himanshu Kumar vs State of Chhatisgarh involved a 2009 petition regarding extra-judicial encounter killings in the state of Chhatisgarh. As in Zakia Jafri’s case, this was an Article 32 petition against State impunity, seeking police accountability for a massacre of adivasis. As in Zakia Jafri’s case, the Supreme Court dismissed the petition, and then took it upon itself to do more. First, it imposed a fine of Rs 5 lakhs on the petitioner, Himanshu Kumar. And then, as in Zakia Jafri’s case, it laid the groundwork for legal action against the petitioner. It noted that:

We leave it to the State of Chhattisgarh/CBI (Central Bureau of Investigation) to take appropriate steps in accordance with law as discussed above in reference to the assertions made in the interim application. We clarify that it shall not be limited only to the offence under Section 211 of the IPC. A case of criminal conspiracy or any other offence under the IPC may also surface.

Notice, once again, the loose language used by a Constitutional Court in a case that involved the undisputed massacre of adivasis: that a “case of criminal conspiracy or any other offence” under the IPC “may also surface.” Without evidence. Without a hearing. Once again, this is exactly the kind of stuff that gets you cleaned out for defamation in functioning legal systems; maybe it even would in India, unless you’re the Supreme Court. If you’re the Supreme Court – and especially if Justice Khanwilkar is on the bench – it’s open season, especially on citizens who take Ambedkar seriously when he said that Article 32 was the “heart and soul of the Constitution.”

All judges have absolute privilege and judicial immunity. Why does Bhatia believe otherwise? 

The judgment was on the basis that 'the entire case put up by the writ petitioners portraying the incidents of 17th September 2009 and 1st October 2009 respectively as a brutal massacre by the members of the different Police and Paramilitary Forces is palpably false. All the averments made in the memorandum of the writ petition are ex facie false and fabricated. An attempt has been made to mislead this Court. False allegations have been levelled on the police and the paramilitary forces with a mala fide intention to change the narrative of the incidents, i.e. to portray the dreaded Left Wing Extremists (Naxals), who were waging an armed rebellion against the security forces of the country and threatening the sovereignty and integrity of the country, as innocent tribal victims being massacred by the security forces.' 

Kumar could be said to be engaging in anti-National 'Lawfare'. The problem is that the Bench can no longer be fooled by tales of innocent Naxals playing nice games in the forest with their adivasi pals. 

It is also important to note that during the pronouncement, the Court only referred to the State of Chhatisgarh. The reference to the Central Bureau of Investigation [“CBI”] was added subsequently to the judgment, on the oral request of the Solicitor-General, after the pronouncement. Once again, you can see the attitude of the Constitutional Court in cases like this: just add a reference to a central investigative agency in the judgment, on the request of the union government’s lawyer, as if it was the correction of a typographical error. What else can we call this, other than the executive(‘s) court?

The people of India want Naxalites to be killed or arrested. Bhatia may disagree but ultimately the Indian Bench, being constituted by Indian people, is likely to take a different view.  

These two judgments – driven by Justice Khanwilkar – mark a profoundly dangerous shift in the history of the Supreme Court. It is one thing for the Court to dismiss Article 32 petitions against State impunity. However, it is quite another – and truly unprecedented – for the Supreme Court to turn upon the petitioners themselves, and pass prejudicial remarks against them that then become the basis of FIRs and jail time.

Why? It is routine for a Judge to refer perjured testimony to the prosecutor. A remark can't be said to be prejudicial when it is based on careful forensic reasoning. Kumar, prima facie, has committed a crime Let charges be framed against him. Perhaps he has a defense in law. 

In every way, this is an inversion of the rule of law, of the Constitution, and of the Supreme Court itself: from the protector and guarantor of fundamental rights, to persecutor-in-chief.

If you try to get the Courts to throw innocent people in jail, you may yourself end up in jail. Bhatia forgets that the Bench also sends people to the hangman.  

Idi Amin famously said: “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.”

Bhatia famously said that Judges can get sued for defamation.  

Likewise, through these judgments, Justice Khanwilkar has said: “I can guarantee freedom to come to Court; but I cannot guarantee freedom once you’ve come to Court.”

If you lie your head you could go to jail for perjury.  

Sabarimala: The Unreasoned Volte-Face

The final case that I want to (briefly) analyse is not strictly in the same line of cases as the others, but does bear a family resemblance, in terms of significant judicial action not backed up by any reasons whatsoever.

The Judge gave persuasive reasons in the afore mentioned cases. The Sabarimala case has been referred to a seven judge Bench because of the complexity of the issues involved

Ranjan Gogoi, CJI, opined-

It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being 7 Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. The said issues could be: (i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14. (ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution. (iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective. (iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or should that be left exclusively to be determined by the head of the section of the religious group etc.

It is obvious that the Sabarimala case was not a routine gender discrimination affair. That is why the matter has been postponed for a 7 man bench. The Bench and the Bench alone gets to decide what is 'sufficient reason' for such a review. 

In November 2018, a five-judge bench of the Supreme Court held that the Sabarimala Temple’s ban upon the entry of women between the ages of ten to fifty was unconstitutional. The verdict was 4 – 1. Chief Justice Dipak Misra and Justices Khanwilkar, Chandrachud, and Nariman held against the exclusion. Justice Indu Malhotra dissented. All judges except for Justice Khanwilkar wrote separate opinion; Khanwilkar J joined the opinion of the Chief Justice.

I do not, in this post, intend to re-litigate the correctness of the Sabarimala judgment. The point, however, is this: an application for review was filed. Recall that for the Supreme Court to review its own judgment, it is not enough to just show that the judgment under review was mistaken on law, but to show that there was an inescapable error, on the very face of the record (that phrase, prima facie, again!) – and that this has to be demonstrated before the same bench that passed the original judgment.

This is Bhatia's opinion. It is worthless. The Bench can decide what is 'sufficient reason' for it to refer a matter to a 7 member bench.  

The Sabarimala review was heard in open court. At the time, Chief Justice Dipak Misra had retired, and had been replaced by Chief Justice Gogoi. The rest of the bench was the same.

By a 3-2 verdict, the Supreme Court decided to “refer” certain “questions” about the correctness of the Sabarimala judgment for interpretation to a larger bench (this, effectively, stayed the implementation of the judgment). Two of the judges who voted to refer were CJI Gogoi (new to the case) and Malhotra J (a dissenter in the original judgment). Two of the judges who dissented were Chandrachud and Nariman JJ (both in the majority in the original judgment). The tie-breaking vote was that of Khanwilkar J, who had been in the majority one year before, but now seemingly believed not only that the judgment that he had signed on to was arguably wrong, but so wrong – so prima facie wrong – that the threshold for review was activated.

This is false. 'Sufficient reason' can be anything the Bench likes. Prima facie wrongness is not a precondition. If it were, the Bench could have overruled itself. 

Can a judge change their mind about the correctness of a judgment they have signed onto?

The issue is not 'correctness'. CJI has clearly stated that fundamental concepts- e.g. constitutional morality- have to be clarified.  

Yes, of course. We are all changeable creatures. Can a judge change their mind about the correctness of a judgment they have signed on to so much that they not only believe they were wrong, but blatantly, egregiously wrong – within a year?

There is no evidence that any of the Judges thought the original verdict was blatantly or egregiously wrong. This is an unwarranted and foolish assumption on Bhatia's part.  

Perhaps. Perhaps Justice Khanwilkar had a Damascene moment about the rights of women to enter temples. But if that is the case, is there not a minimum – a bare minimum – requirement for a judge to explain themselves?

No. Gogoi explained everything quite clearly.  

To provide reasons for a 180-degree turn?

There was no such turn.  

What is notable is that in neither of the two cases – Sabarimala or Sabarimala “Review” – did Justice Khanwilkar do us the courtesy of a reasoned opinion.

Because Gogoi had provided it. It was obvious that the right of women to worship in mosques would be even more contentious than throwing open Sabarimala.  

We do not know the reasons why he agreed with his brother, the Chief Justice, in 2018;

We don't need to. The thing is fucking obvious.  

and we do not know the reasons why he came to believe that his brother, the Chief Justice, was egregiously wrong in 2019.

Yes we do. We can look up the Wikipedia article and discover that the judgment was highly controversial. Just imagine what would happen if women were allowed to pray in mosques! 

Walt Whitman could well ask the rhetorical question, “do I contradict myself?”, and expect his readers to nod knowingly when he answered, “very well then, I contradict myself”, but that is not open to a Supreme Court Justice who, with a stroke of the pen, can extend or withdraw rights from millions of people.

This is false. A Supreme Court Justice has a perfect right to contradict or overrule his own judgments issued in a lower court. 

Conclusion: The Executive(‘s) Court

These examples could be multiplied. One could talk about Khanwilkar J.’s majority opinion in Romila Thapar vs Union of India – another UAPA case – where the Supreme Court turned a blind eye to obvious police misconduct in the prosecution of a case (see Abhinav Sekhri’s analysis here),

Bhatia's blind eye has to do with the lying cheating Setalvads and Sreekumar's of the world.  

and at the time of writing, the accused are still in jail without trial (can you see a trend here?);

and nobody gives a fuck. That's what we can see.  

one could talk about the Central Vista Judgment, where Khanwilkar J’s majority opinion laid down a standard of public participation, and then refused to apply it to the facts at hand;

because nutters were babbling about 'Auschwitz' and 'right to life' 

one could talk about all these, but there is little benefit in belabouring the point.

My point is simple. Bhatia thinks a Judge can be sued for defamation. He is utterly ignorant.  

Thursday 28 July 2022

Aulos as Zion

Could Osip's Schwab, Faust of his own Gulag, be, more than Goethe, mute?
Or the Gretchenfrage of Pipers, howsoever Pied, usurp Pan as flute?
 Mandelstam's Zionide holodomor step-sons Divi Nation
By but Marsayas' Mach'nayim self-incrimination.

Amartya Sen on the Bangladeshi famine

Bangladesh, devastated by war, was expected to starve in 1972. Massive food aid from abroad averted this outcome. But 'compassion figure' set in. In India's case, drought raised the specter of famine. Previously it had contributed about 700,000 tons of food grain. But then there was widespread drought against a background of political unrest in North India. Thus, in 1974, Bangladesh faced a severe food availability deficit more particularly because millions of refugees had returned and were dependent on the p.d.s. The country needed 12 million tons but produced only 10 millions tons of food grain. The public distribution system used imports to plug the gap but, obviously, this created a profit opportunity to divert p.d.s food to the open market. Naturally, it was the rural poor who lost out while vocal urban populations got their ration cards. By 1974, it was obvious that corruption had become endemic. This contributed to 'compassion fatigue'. Moreover, food shortages around the globe were raising prices. Bangladesh's food imports dropped by two thirds or more. The rural poor who were covered under 'modified rationing' were hard hit because food availability went down from 150,000 tons a month to about 70,000.  This meant that the 'entitlement' that the Government wanted to grant to the rural poor, simply did not exist. The long and short of it is that the only  way to help Bangladesh was to send a lot of food causing domestic prices to crash. Since it was a Democracy, just killing the corrupt was not possible. Flooding the market with cheap food would remove the incentive to issue bogus ration cards and deprive the deserving. Entitlements are meaningless if availability is lacking.  Bangladesh was described as a 'basket case'. Its people responded by working hard and doing sensible things. Food production has quadrupled since those famine years. Industrial production grew even more rapidly after Bangladesh abandoned nationalization and import substitution for privatization and export led growth. However, Bangladesh had learned the lesson of the famine. It did not rely solely on imports. It raised domestic food availability so as reduce vulnerability to exogenous shocks. 

Amartya Sen, writing in 1981, took the most foolish possible view of the 1974 famine whose cause was lack of food availability due to a global supply crunch and whose cure was to massively increase domestic food availability by growing much much more food. Sen wrote-

  “The food availability approach offers very little in the way of explanation of the Bangladesh famine of 1974. The total output, as well as availability figures for Bangladesh as a whole,

were irrelevant. It was foreign food aid which had prevented famine two years earlier. By March 1973, it was obvious that Bangladesh did not have enough food to feed its people. Kurt Waldheim predicted the famine which began a year later. 

point precisely in the opposite direction, as do the inter-district figures of production as well as availability. Whatever the Bangladesh famine of 1974 might have been, it wasn't a FAD famine (Sen 1981b, 141).”

40 percent of Bangladesh was under water during the floods of 1974. This reduced domestic production of food and cash crops. Most Bangladeshis were already malnourished. Thanks to the democratically elected Government having pissed off the US- even a small shipment of 20,000 tons was held back. Pakistan also lobbied the OPEC countries not to help their erstwhile subjects. By the end of 1973, the Government had scarcely any buffer stock and thus the public distribution system in rural areas was hors de combat.  India too faced food shortages with thousands dying of starvation and millions suffering severe malnutrition. On the other hand, the population kept growing despite millions having no secure or productive avenue of employment. People starve because less food is available for them. Total food production may rise but if the Government or Charitable or other organizations can't or won't feed those without money to buy food then they may starve. In the case of Bangladesh, what mattered was American food aid. This was denied on the excuse that Bangladesh was supplying jute to Cuba. The result was large famine deaths which could be blamed on Uncle Sam. Similarly, the 1943 famine could be blamed on Hindus or the Brits. But, the truth is, famines don't matter. Voters re-elect Bengali politicians who preside over famines. But, for all we know, voters in the West might show enthusiasm for a party which promises to let the work-shy starve. To his credit, Sen did warn the Brits that a famine might sneak up on them because of Mrs. Thatcher's policies. He genuinely was equal-opportunity stupid.

In his book, 'Poverty and Famines' (1981) Sen shows that he was aware that there was a global food availability decline in the early Seventies. This is what led to the Bangladesh famine. Thankfully, a concerted global effort to increase 'food security' by technocratic means was largely successful from the second half of the Seventies onward.

Sen wrote- 'Famines can strike even when regular starvation is on firm decline. The food crisis of 1972 is a global example of this time contrast. Colin Tudge (1977) describes the development in dramatic terms: The 1960s brought good harvests, augmented by the Third World's 'green revolution', based on American-developed dwarf strains of wheat and rice. The world's food problem was not shortage, apparently, but over-production, leading to low prices and agricultural depression. The US took land out of production, and in the early 1970s both the US and Canada ran down their grain stores. Then the bad weather of 1972 brought dismal harvests to the USSR, China, India, Australia and the Sahel countries south of Sahara. Russia bought massively in the world grain markets before others, including the US, realized what was happening. By mid-1974 there was only enough grain left in store to feed the world's population for three-and-a-half weeks; terrifying brinkmanship. In all this the focus has been on the total availability of food— for the nation as a whole, or even for the world as a whole. But exactly similar contrasts hold for food availability to a particular section of a given community. A sudden collapse of the command of a group over food can go against a rising trend (or against a typically high level of food consumption). Problems of (i) existence of much regular starvation, (ii) worsening trend of regular starvation, and (iii) sudden outbreak of acute starvation, are quite distinct. While they can accompany each other, they need not, and often do not, do so. 

The plain fact is global food availability declined. True, Bangladesh could have been spared a lot of excess mortality but it wasn't spared because of global, regional, and local food availability decline. Nothing else changed- not legal entitlements, not capabilities, not structures of power or regimes of ownership or patterns of employment. There was a single factor responsible for the excess mortality. There was much less food left in store to feed the world's population. The real figure may not have been 'three and a half weeks'. It may have been more than that. But there can be no doubt that stockpiles had declined and so, for prudential reasons, less food was available for distribution which itself had become more costly because of the OPEC oil embargo which occurred between October 1973 and March 1974. This meant oil prices tripled. The cost of transporting food to deficit countries had greatly increased. 

In a sense, absent a general dearth caused by a global catastrophe, no famine can be a 'food availability deficit famine' provided we assume food can be costlessly transported and redistributed. But this is not the case. People have to have incentives or fear penalties to produce and transport food. But such incentives or penalties may be too costly to generate even supposing the Government is inclined to do so. 

Sen's entitlement approach 'concentrates on the ability of people to command food through the legal means available in the society, including the use of production possibilities, trade opportunities, entitlements vis-à-vis the state, and other methods of acquiring food'. Sadly, there are no legal means to 'command food'. Buying or begging does not 'command' anything. The thing is merely a claim. Only when that claim is enforced can we speak of 'command' having occurred. Bernie Madoff's clients only bought themselves a claim to financial security. But the man cheated them. They couldn't actually command anything because their claim to assets could not be enforced either because there were no assets in the first place or because Madoff has hidden that money artfully. 

 Nor does legality matter one bit. Beef may be banned, Wine may be contraband, but you can get beef and wine- for a price- even in Ahmedabad. This is not legal, but it is what happens. Similarly, there may be a legal obligation on the administration to provide 'food for work' or 'famine relief' but as happened twice in East Bengal during Sen's lifetime, millions died of starvation under elected Muslim governments. That's one reason the Bangladeshis aint too miffed with Biden for not inviting Sheikh Hasina to his Democracy summit. Bangladeshis know that Democracy can cause Famine because a corrupt bastard may get re-elected if his rival is a corrupt, crazy-ass, bastard who will fuck up even  more monumentally. An authoritarian regime may be able to transfer rural girls into giant factory dormitories. Why starve people who can make a profit for you? Super-yachts don't grow on trees you know. 

It may be that Sen wrote nonsense about entitlements because he fundamentally misunderstood some articles written by Emma Rothschild- later his wife- in the mid to late Seventies. It wasn't the case that there was some sort of American or UN body which had a legal duty to supply food to the hungry. Nor was Bangladesh a free market economy. It was a Socialist economy where 85 per cent of industry had been nationalized. Urban workers were working for the Government. It was not the case that they had benefited from wage inflation and thus could crowd out the poor from the free market for food. The Bangladeshi famine wasn't really man-made. The plain fact is that it was too poor to have incentives and penalties to support a full fledged, 'shared austerity', rationing mechanism in the countryside. No doubt, Uncle Sam could have prevented excess mortality. But America was deploying the 'food weapon' against the Islamic 'oil weapon'. Not that religion mattered very much back then. The Bengalis, like the Vietnamese, were classed as Brown. They needed to learn the hard way that Socialism meant Starvation. But, because the Bengalis, like the Vietnamese, are a spirited people, starvation did not mean submission. It meant pulling yourself up by your bootstraps. The Bangladeshis have done it to such good effect that they have overtaken Pakistan and are now ahead of most parts of India. Had Mujib not been assassinated, he probably would have dispensed with 'Democracy' to speed up the process. As things were, the Bangladeshi army didn't have the esprit de corps of the Pakistani army and its coups and counter-coups were destabilizing. Yet, under Mujib's daughter, Bangladesh represents a model to be emulated precisely because it is pragmatic and focused on increasing availability, not talking bollocks about 'entitlements'. 

Sunday 24 July 2022

DIE vs MFE- Jordon Peterson on Politically Correct STEM

Diversity, inclusion and equity (DIE) means that Funding Agencies force researchers to hire mentally disabled lesbians of color rather than smart peeps- whose ideas you can steal- or those worthy of sexual harassment. Elderly professors are against this. They argue for MFE- merit, fairness and equality.

Patanjali Kambhapati a Chemistry professor like Tomas Hudlicky- who was 'cancelled' by Twitter mobs after arguing for a return to merit based recruitment and the importance of a Master-Disciple relationship in the Hard Sciences- has an article in the National Post in which he complains that he has not received funding because of his refusal to comply with DIE. He argues, on the basis of 'Classical Liberal' principles that MFE is normative. This is foolish. Classical Liberals want Government Funding Agencies to fuck up massively by hiring crazy Voodoo practitioners to do STEM subject research. Sooner or later, tax payers rebel. The Government shrinks. It gets out of a field it had no business to be in in the first place. As for DIE, once a field turns to shit, the 'diverse' give it a wide berth and concentrate on selling each other drugs in between drive-by shootings.

There are many intellectual arguments to support the humble practice of MFE that are derived from classical liberal principles,
There are none. Nobody knows what is or isn't merit or what is or isn't fair. Getting good grades may just mean you are good at getting good grades but have shit for brains. That's why the market must do 'discovery'. It has to take the risk that the guy that is hired might turn out to be a dud. But that risk need not be too costly. Don't throw good money after bad. Fire the fool.
in lieu of a moralistic belief in DIE, which is derived from academic post-modernism and cultural Marxism.
No. It arose out of identity- or vote bank- politics. India has DIE though our politicians don't know about modernism- forget post-modernism. The only sort of culture they are interested in is agriculture. As for Karl Marx- they think this is a posh way of saying 'Kali Ma'.

What Indians are against is MFE because kids on the merit list tend to have shit for brains which is why they are good at passing exams. Anyway, those who don't have shit for brains- like Patanjali's Dad, fuck off to America first chance they get. But then even very stupid people want to get to Amrika. The thing is a 'no-brainer'.
But what is needed is not another intellectual argument that can be dismissed as the grievances of “privileged straight white men,”
totally unprivileged darkies have even greater grievances against Scientific researchers who are shit at their job. How come nobody has invented a pill that could make me slim and smart? Also I want a bigger dick. And more hair. Not hair on my dick. Hair on my scalp.
but an argument that appeals to our shared sense of morality, ethics, aesthetics and humanity.
We have no such 'shared sense'. It is immoral that people expect me not to fart loudly in the face of any potential employer.

The means of progress should be derived from

entrepreneurial and scientific 'discovery'. Kuhn's 'no neutral algorithm' applies. There is no a priori way of getting optimal 'progress' by imposing conditionalities e.g. MFE. We ought not to care how the thing happens. We only ought to care that success is rewarded and failure is punished.

A CDC recruited under MFE which fails to tackle COVID should be defunded same as one which observes DIE.
humbly examining and advancing the principles of human liberty, rather than holding and defending beliefs in social justice.
Presumably DIE will lower real wages for entrants. This means that Government funded research becomes less and less productive. The Private Sector can go in the opposite direction- or if it can't, smart peeps can move to China. This reduces 'State Capacity' because the Government's technocratic cadre is deskilled. This is what happened in the Financial Sector. The Government was employing thickos who didn't understand what was going on. Thus power could shift to the hedge fund managers and the private equity guys and so forth. Hilariously, some of them paid for 'Cultural Marxism' or, more reasonably, 'Trans' activism. This harmed the Left-Liberals. Modi fans were delighted when Soros trained his guns on the Indian PM.
The only way to proceed is through the free exchange of ideas,
with me? Is there anybody anywhere who wants to exchange ideas with me? Yet, I only say what most people are secretly thinking.
which is currently impossible due to the religious-like behaviour of those who aim to shame others into silence.
Which has a backlash effect. I bet Patanjali is a bleeding heart. Then the woke nutters started interfering with his ability to do cutting edge research. This pushed him towards the Jordan Peterson camp.
I hope that my experiences
kids called him a nigger and beat him up back in the Seventies. Nothing similar happened to me in London- though Mum would have slapped the black off me if she found my porn stash.
can play a role in enabling others to speak and think freely

and thus start calling him a nigger once again

and add value to the never-ending drive for human progress and freedom.

There is no such drive. What does exist is the desire for tenure or a Civil Service job with a gilt edged pension. If you can get both by babbling paranoid nonsense, so much the better. Wealthier countries can afford to subsidize a class of credentialized cretins. Econ 101 suggests that time consuming lab work should be outsourced to poor countries where people would pay good money to get into an air-conditioned and sterile environment. Train up those guys by all means. True some may escape to Amrika to get rich driving a taxi but the rest will soon develop a passion for their work.

Jordan Peterson quotes the following passage from the paper which got Hudlicky into trouble
“The training and mentoring of new generations of professionals must be attended to by proper relationships of ‘masters and apprentices’ without dilution of standards.

Get apprentices where they are cheap and will compete fiercely with each other. Also poorer countries tend to have a culture of respect to the Pundit, or Ulema, or Shifu or whatever.  

Hudlicky described two conditions which must be met if the successful transfer of skills is to occur: first, the knowledge in question must be transferred within three generations, or risk being lost forever;

The US lost the ability to produce H bombs for a brief period precisely because the relevant skills were not transferred. In Chemistry, there are 'hacks' and 'heuristics' which don't find their way into the manuals because they appear unscientific.  

second, there must be ‘an unconditional submission of the apprentice to his/her master.’

This was a foolish thing to write in the age of 'Me Too'. What Hudlicky should have said is 'in lab work, there must be military discipline and subordination'. This is fine because we have a mental picture of a sloppy guy ignoring his supervisor and thus blowing up the campus.  

This applies not only in the sciences but also in art, music, and martial arts….

No it doesn't. This Hudlicky dude is as stupid as shit. Not blowing up the lab is one thing, telling your Professor to fuck off- Shakespeare wasn't really a lesbian of color- is perfectly safe and acceptable.  

Submission to one’s mentor is rarely attainable today.

Because the CIA is run by Lesbians. They have put something in the water which is causing my dick to shrink. Also, sometimes I find myself wanting to go down on the post-man. It's one thing to submit to one's mentor but wanting the Pizza delivery boy to tie you up and shove radishes up your arse is the evil consequence of political correctness gone mad! 

Many students are unwilling to submit to any level of hard work demanded by professors.

With the result that they spend the rest of their lives submitting to much more boring and onerous hard work demanded by the Fast Food joint where they work.  

The university does not support professors in this endeavour as it views students as financial assets and hence protects them from any undue hardships that may be demanded by the ‘masters.’

I recall the Registrar of the LSE calling me in to ask why I hadn't taken my Second year exams. I explained that I hadn't attended the Classes or Lectures because I tended to sleep during the day. It occurred to the Registrar that I might be either very very stupid or very very bright. That's the problem with 'merit'. There's no way to tell who has it or who hasn't. True I'd got 3 A grades at A level at the age of 16. But that might just mean I was good at passing A levels. The Registrar sent me to Prof. Prest to find out whether I actually knew any Economics. I did because I like sleeping and Econ texts are soporific. The one exception is the work of Ken Arrow which are unintentionally hilarious. 

This situation, coupled with the fact that professors have less and less time to mentor students in the laboratory, cannot provide for a productive transfer of skills, especially the maintenance of standards and integrity of research.”

Fuck is the point of being devoted to your Professor if he only shows up once in a blue moon? In the old days the apprentice lived with the master. Speaking generally, he was doing the master's wife and teenage daughters. There are many excellent documentaries on this topic on Pornhub. 

This is an additional 170 words, and offers an opinion most famously put forward by Michael Polanyi, a polymath of genius level, who made contributions to chemistry, philosophy and economics, and who delineated the importance of “tacit knowledge” (knowledge that was acted out but not necessarily articulated) in the transmission of specialized technical ability across the generations.

This is an argument which cuts both ways. The object of tacit knowledge, in the social sphere, may be generated in a tacit way. If this leads to bad outcomes, you may have to swap out 'bad' parts till you get the right outcome. True, you may be throwing the baby out with the bathwater but what is the alternative?

The truth is that 'spontaneous order' involves extinction events. Equally, doing crazy shit may be, with hindsight, the only reason you survived. Only the fitness landscape matters. Fuck 'ontology'.  

Hudlicky was therefore criticized and pilloried by individuals on Twitter who appeared to know nothing of Polanyi’s work (and for whom such ignorance was arguably justifiable) but also by the editor of Angewandte, for whom such ignorance was most certainly not.

Hudlicky wrote stupid shit. It simply isn't true that anybody should be the 'apprentice' of a fucking pedant. Take the Matsushita bread maker. The software team tried to figure out why its bread tasted shitty. One of them went to work in a bakery. He soon found that bakers twist the dough as the stretch it. The team incorporated a twisting motion in the code and the bread was a little better- or so they claimed. Notice that the guy who went to work in the bakery did not become the apprentice of anyone. He did not bow his head as the 'master' lectured him on the ontology of bukakke.  The guy just made an observation and copied it. Mimetic effects matter. Talking bollocks doesn't. 

Acquisition of this knowledge, according to Polanyi, required precisely the unfreedom recommended by Hudlicky — followed (with the acquisition of the aptly named Master’s degree) by autonomy in thought and action increased beyond what would have been capable in the absence of the devoted apprenticeship in question.

This is foolish. Polanyi was a doctor who got interested in Chemistry. There was no question of 'unfreedom'. He followed his passions but can't be said to have been anybody's disciple. I think, his successes arose from his superior mathematical intuition. His thesis was on adsorption which immediately opens various mathematical doors. By 1921, he had made a big contribution to Fiber diffraction with his concept of a 'Polanyi sphere'. 

Such a process can only be undertaken by a pupil capable of regarding his or her teacher as a true mentor, and by a mentor bent on the eventual production of a pupil more capable than him or herself.

Who was Einstein's mentor? Minkowski? Nope. Einstein was sui generis. Life isn't really a Kung Fu movie where failure to obey the Shifu will result in defeat at the hands of the villain. 

None of that, according to Hudlicky (and this is a not unreasonable hypothesis in this day and age) is possible in the university as currently constituted, even in the hard sciences.

There is an easy workaround. Do the smart stuff in a private facility not subject to DIE. Let the Campus turn to shit. Why teach when you can make more money as an administrator working on Inclusion of Diversity or creating a safe space for vaginas?  

Not only is it not possible, he implies, but it is no longer posited even as an acceptable aim.

Because smart peeps should be working in the private sector where they'll have an incentive to invent cool stuff so as to get very very fucking rich.  

In a properly functioning institute of training, however, it might be argued that disciplined and contractually-mediated temporary subjugation to higher authority is eminently desirable,

If you get paid you ought to be subject to higher authority. If you are paying, you should get to call your Professor a Fascist cunt. The fellow then laughs all the way to the bank.

despite the limited sacrifice of casual autonomy that might require, if the person or persons to whom the subjugation is made are true experts.

But who is to say what constitutes expertise as opposed to obsessive compulsive disorder? Also, the true expert may find it more profitable to pursue some more lucrative or respectable profession.

It is the willingness to undertake this apprenticeship, as well as the capability of superseding it, that makes up the master in “Master’s degree”—

No. It is the willingness to fork out a bit of money for a piece of paper.  

a designation that Brock still grants, despite potentially colonial overtones at least as damning as those that characterized Hudlicky’s writing.

Mistress of Arts suggests erotic possibilities of a type which will certainly condemn you to Hell fire. 

Good chemists should quit Universities and get Corporate funding for their own Research Institutes. They should hire and fire young people whose brains haven't yet turned to shit. Fuck tenure. Fuck administrators. Fuck funding bodies. Lets just have lots of research giving rise to lots of cool inventions.

The Academy should specialize in puerile shite. That way kids have an incentive to climb out of the play pen and become grown ups. 

Peterson objects to puerile shite though he himself has made a lot of money scolding people to just fucking grown up already and take responsibility for your own shitty lives. 

a group of three professors at Concordia were awarded a New Frontiers in Research Grant (announced in late 2019) aimed at “engaging Indigenous understanding and involving Indigenous communities in the co-creation of knowledge, the project aims to decolonize contemporary physics research and attract Indigenous students.”

So cool! Pass me the peace pipe.  

The head researcher, Dr. Tanja Tajmel,

who is not a physicist. 

“questioned the colonial assumptions made in the way Western science evaluates light

photons are totes triggering coz they represent Cultural appropriation! Pho is a Vietnamese dish. American GIs raped it tons of times.  

and what it considers knowledge.” Dr. Louellyn White,
a Mohawk from Akwesasne who I suspect is secretly Iyengar
associate professor in First Peoples Studies, added that “Indigenous ways of knowing have been suppressed and marginalized throughout academic history

because guys who are being suppressed and marginalized probably aint very good at tech 

and we are finally gaining momentum in elevating Indigenous knowledges as equally valid to Western science…

in the sense that my PhD in tying my own shoelaces is equal to Sheldon's PhD in String theory.  

If we, as an institution, do not embody the Territorial Acknowledgement by recognizing and affirming the expertise of our Elders as Knowledge Keepers, the acknowledgement becomes nothing but empty platitudes.”

is a sentence which is about as empty as a platitude can get.  

Dr. Ingo Salzmann,

also an Austrian or German, like Tanjel. Is there a conspiracy on the part of the Teutons to send their stupidest people to Concordia?  

the last of the three principal investigators to whom the funds were awarded, says, “The culture of physics certainly changes with diverse people involved.” He argues, “Therefore, decolonizing science involves challenging the underlying hierarchies.”
Poor chap, he's a genuine scientist but maybe this gig will get him a salary bump. Still, it warms the cockles of my heart to think of his two female associates tying him to a totem pole and hacking at his dick with tomahawks. Maybe there's something to be said for hierarchies. Ordinary people like me have to pay top dollar for anything similar. 

Universities have perverse incentives. They need to fool cretins like me into paying for qualifications which will do us no good because employers soon give us the sack when they discover that the only type of knowledge we have is 'indigenous' and involves shitting on their desks. This does mean that Universities have to create some jobs for their alumni to teach such indigenous knowledge. True, initially, some Austrians or Germans might be involved so as to send the message that this is part and parcel of fighting Nazism or preventing the resurrection of Hitler. But sooner or later, indigenous people will shit on the desks of those Austrians and accuse them of Cultural appropriation and thus chase them away. There is no harm in having a more diverse bunch of cretins on the faculty. What is absurd is not disintermediating Universities from any epistemic function. The place ought to be dedicated to pederasty and finger painting.  It is absurd to suggest that any Professor aint shite unless he chooses not to do better for himself in the private sector because his Mummy told him that venture capitalists bite your dick off. 

Amia Srinivasan on abortion

Roe v Wade  & Lawrence v Texas were decided on the right to privacy. In both instances, Congress should have followed up public acceptance of the change with comprehensive legislation. One reason this did not happen was because 'activists' wanted to tack on all sorts of provisions far beyond the scope of the Bench's decisions. By overreaching themselves, the Left ensured that what SCOTUS had granted, SCOTUS could take away. Public intellectuals, in this as in every other instance, proved a public nuisance. 

Amia Srinivasan, whose stock in trade is serving up the warmed sick of the early Seventies, writes in the LRB 

The most famous​ philosophical treatment of abortion is an essay by Judith Jarvis Thomson published in 1971, two years before Roe v. Wade was decided, in the inaugural issue of the journal Philosophy and Public Affairs.

Nobody outside Srinivasan's shitty little field has heard of Thomson. Aquinas is a philosopher people have heard of. His view of abortion is influential. More generally, horror of abortion arises from the notion that God wanted a particular child to be born. It was killed in the womb for some contingent reason of a mercenary or meretricious kind. 

‘A Defence of Abortion’ opens by dispensing with the standard pro-choice premise that the foetus is not a person.

In the same sense that a person is not a person under some contingency. 

A ‘newly implanted clump of cells’, Thomson writes, is ‘no more a person than an acorn is an oak tree’,

but an oak tree is not an oak tree if it has been cut down and burned. 

but ‘we shall probably have to agree that the foetus has already become a human person well before birth.’ But is that what matters? Imagine, Thomson says, that you wake up to find that the Society of Music Lovers has hooked your circulatory system up to a famous violinist with a life-threatening kidney ailment.

In which case, a cognizable offence has been committed. The police will arrest them and free you.  

Unless you stay in bed, attached to him for nine months (you are the only one with the right blood type), he will die. Are you morally permitted to unplug the violinist?

Yes. You aint his Mummy. However, in this scenario, there is a guy standing over you with a gun. Also you have been tied up. Then the police break down the door and arrest the bad guys. They release you.  

The hospital director explains why not: ' Tough luck, I agree, but you’ve now got to stay in bed, with the violinist plugged into you ... Because remember this. All persons have a right to life, and violinists are persons. Granted you have a right to decide what happens in and to your body, but a person’s right to life outweighs your right to decide what happens in and to your body.'

You reply- 'I'll stay in bed only if you chop your head off and shove it up your pooper. Tough luck for you, but you need to show me you really care about this violinist.'  

Thomson suggests that most readers will find the doctor’s logic ‘outrageous’.

We find Thomson outrageously silly. Did she really get paid for talking such bollocks? Do students sit quietly as this crazy lady babbles nonsense? How fucking stupid are they? No wonder smart peeps, like Bill Gates, dropped out of Collidge. 

Yes, the violinist is a person; but no, obviously, his right to life does not trump your right to bodily autonomy. Similarly with the foetus: it might be a person, but even so don’t you have the right to abort it?

Sure, in the sense that you have the right to kill people ahead of you in the queue at McDonalds. They may be people, but they are delaying your getting your Happy Meal.  

The intuitive power of Thomson’s thought experiment is undeniable.

only if you are as stupid as shit or have to teach a worthless subject to cretins.  

But its intuitiveness rests on a liberal individualism that feminists, including those who were fighting for access to abortion at the time Thomson was writing, have long wanted to resist.

Amia is mad. Most Feminists were liberal individualists. Some crazy Leftists pretended to be Feminists just as they pretended to be pro-Black or pro-Working Class. But they weren't really. They were drooling over the prospect of a Stalin massacring or Gulaging vast classes of people.  

For social conservatives, the foetus – better yet, ‘the unborn baby’ – is an object of hysterical devotion

Whereas social liberals want to kill it.  

(giving rise to what Lee Edelman has called ‘the fascism of the baby’s face’),

There you have it. Anything these guys don't like- babies included- is 'Fascist'.  

just as a famous violinist might be to his fans.

Very true. Fans often pick up violinists and croon lullabies to them.  

But foetuses – not the idea, but the creatures themselves – exist at the borders of life, on the margins of humanity.

No. The baby is the center of family life. Relatives turn up from distant places to coo over it.  

And it is at the borders and margins of ‘the human’, ‘personhood’, ‘consciousness’ and ‘life’ that feminists have identified those most in need of protection and liberation: women, disabled people, queer people, people of colour, immigrants, children, non-human animals, nature.

All of whom chase feminists away because they are as stupid as shit and smell bad. This is even before they start babbling about abortion.  

To assimilate a foetus not only to an adult, but to a famous, high-status adult (an adult with a fan club!) is

foolish. Everybody likes to see a pregnant lady. On the other hand, I was deeply offended when a young woman came up to me and asked if she could put her ear to my belly so as to listen to the baby's heartbeat. The fact is, some peeps might be able to tolerate violinists. Everybody loves a baby.  

to distract from the vulnerability of certain forms and stages of human life.

The reason I didn't punch the young woman in the face is because I'm very weak and vulnerable. Still, I did seriously consider joining Weight Watchers.  

This vulnerability, the fact that none of us is a perfectly independent and autonomous self, means that, like it or not, we need each other.

Nobody needs Amia. Doctors and Plumbers are useful. We need them. Moral philosophers are a waste of space. Still, they can be utterly hilarious.  

We are all the violinist; and we are all his host.

No we aren't. Our 'interdependence' is economic. It is based on transactions and the 'incomplete contracts' that are relationships.  

This is, yes, an outrage:

No. It is a stupid lie.  

but it is the outrage of human existence.

Economic arrangements may be inequitable or repugnant. But nothing wholly imaginary is an outrage. Why not say 'it is outrageous that all of us have our lips stitched to the anus of another dude while having our our anus stitched to the lips of someone else. Thus when the guy at the head of the chain eats a burrito and has explosive diarrhea, we have to swallow that diarrhea which then gives us diarrhea which the next chap has to swallow.'  

To elevate that outrage to an ethical principle, as Thomson encourages us to do, is to indulge the destructive fantasy that we can simply unplug and be free.

Fuck that. Thomson was simply stupid. She didn't get that what had occurred was a cognizable offence. The police would have to intervene. In some jurisdictions the arrangements would be per se illegal. In others you might be able to consent but only for consideration. That is an economic matter.  

What would it be to have a pro-abortion politics that did not flee from vulnerability and dependency

You could have a 'eugenic' theory such that a woman who wants an abortion must have shitty genes. Better kill her kids so as to improve the gene-pool.  

– that did not take as its implicit starting point the perspective of the sovereign, perfectly autonomous individual?

You could have a misogynistic theory that women are shit. They are bound to have shitty babies- some of whom may be female. Keep kicking them in the stomach till they miscarry or their wombs get ruptured. Better still, just kill them. Abortion is a good thing but some women think they are 'sovereign' and should have babies. Killing them will stop this nuisance.  Sadly, everybody kicks your head in if you propound this theory.

It would be an abortion politics that, as feminists of colour have long been urging, shifted its focus from ‘choice’ to ‘justice’, drawing a connection, for example, between anti-abortion politics, campaigns of forced sterilisation of Black and poor women, and the demonisation of ‘welfare mothers’, ‘benefits scroungers’ and the ‘hyper-fecund’ women of the global south.

Why stop there? Why not mention the demonization of terrorists and serial killers? Why are we not encouraging maniacs to shoot up more schools? There is a clear link between anti-abortion politics and the carceral State which locks up diligent rapists and sadistic murderers.  

It would be a politics that made safe and free abortion part of a much broader package of social provision

for terrorists and rapists 

that recognised human need as a public rather than a private concern:

human need is the concern of public corporations and other enterprises which make a profit by catering to them.  

universal healthcare,

Amia lives in the UK where this exists. It could exist in the US. Sadly, voters prefer a highly differentiated system were some employers offer superb health plans while a lot of other people are stuck with very expensive or quite poor quality health care.  

childcare, housing, basic income and so on.

All this can be provided if voters want it. The trouble is that provision will tend to decline over time unless productivity rises faster than 'Baumol' cost inflation. This is an economic matter.  

It would be an abortion politics, not unironically, that would advance the aim conservatives claim they care so much about: the reduction of foetal killing.

Why not simply pay women not to abort? Obviously every pregnant woman would then claim this bonus. Still, that's the free market solution. 

But there’s the rub of anti-abortion politics: it does not, on the whole, meaningfully reduce the rate of abortion.

Yes it does. Ceaucescu proved this. The trouble is that you then get lots of abandoned kids in Romanian style orphanages who may grow up retarded and malnourished. Babies need Mummies. Daddies need babies coz it's nice to have someone in the house who is your intellectual equal. 

What anti-abortion laws do guarantee is an increase in the suffering of those with unwanted pregnancies, and in the state’s ability to punish those people – especially poor women – who seek or facilitate abortion.

This is not guaranteed. On the other hand, anti-abortion laws are likely to increase the number of babies put up for adoption. This is likely to increase the power and influence of organized religion. This will have 'non-linear' effects. Politically, it may push the country towards 'Corporatism' as opposed to Free-Market policies. 

This is a feature, not a bug, of anti-abortion politics.

No. Anti-abortion politics is associated with Religion which teaches us that life on earth is brief. You need to do a lot of charity and be really sweet and nice so as to get to Heaven and then spend all eternity laughing heartily at the torments of the damned.  

Anti-abortion laws are designed not to reduce foetal deaths, but to punish those who resist the prevailing reproductive order.

Very true. The prevailing reproductive order insists on penis being inserted into vagina. Those who try to get pregnant through their anus are sadly disappointed. Look at Rahul Baba! 

They are a reminder that it is the function of women to devote themselves, psychically and bodily, to the maintenance of social and economic life, and the prerogative of the state to ensure that they do so.

Why has the State not forced Amia to have lots of babies? Is it coz she is actually a dude?  

The word ‘sex’ is not used in ‘A Defence of Abortion’; the word ‘intercourse’ appears just once.

This is because there was no Pornhub back in the Seventies. Pedants knew that if they used the word 'sex', their students would immediately start jizzing or fisting themselves.  

For Thomson, the fact that human foetuses are produced by sexual activity was ethically irrelevant to the question at hand.

Coz famous violinists kept getting hooked up to innocent dudes- right?  

But for most ‘pro-lifers’, sex – in both its senses – is the fundamental issue: playing non-voluntary host to a parasitical violinist may be an outrage against individual liberty, but playing host to a foetus is, for a woman who chooses to have sex, the appropriate outcome.

Amia thinks Lesbian sex can get you preggers. It can but only if your partner has just had sex with a dude. Such is the teaching of Holy Mother Church. On the other hand, Lesbians are so constantly at each others clits that the clits grow and grow and turn into dicks. Then, those Lesbians grow facial hair. There were two nuns who turned into monks for this reason. By contrast, in Protestant England, Sir Edward Coke remarked that the offense of 'buggery' included having sex with a baboon. Apparently a 'great lady' had gotten pregnant in this manner.  

What’s more, for the woman who chooses to have sex for reasons other than reproduction – for pleasure, for money, for the hell of it – carrying a foetus to term is her just dessert.

Not if she is fucking another woman or a baboon.  

This is why Thomson’s thought experiment, for all its power,

but it is a power only to make us feel contempt for her discipline 

exercises little grip on the patriarchal worldview.

Coz patriarchs don't read the ravings of stupid females.  

At the slightest incursion on men’s liberty, patriarchy bridles wildly.

Nope. Patriarchs want criminals and Commies of various descriptions to be locked up. 

But the unspoken condition of men’s freedom is women’s unfreedom.

Only in the same sense that a woman's freedom is contingent upon the unfreedom of the neighbor's cat.  

Every abortion wanted, sought and completed is an offence against the social order.

Only if the thing is illegal.  The social order is encoded in the legal order. 

In this, at least, the anti-abortionists are right.

As are the pro-abortionists. The law matters. Amia's drivel does not. The Democrats did try to pass a Federal Law making abortion legal but could not get a majority. The question is why this was not done previously when the Dems had majorities in both Houses. One answer is that the senile nutters, Amia is in lurve with, were still around talking dated bollocks. This scared off the straights.