Frontline

[Fri, 19 Apr 2013]
Frontline
Frontline
Court adrift
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Lessons from Novartis case Interview:
Supreme Court and the aam aadmi

PIL losing out
Judicial impact:
Inconsistent decisions
Age, seniority, diversity Karnataka:
Misunderstood relationship with the media

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Soaring assets
Novartis' patent: Syria:
Korean peninsula: West Asia: MDG:
Yankee Hindutva Galapagos:
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Van Ingens:
Art and science of taxidermy Invaluable data Failing to deliver
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Illusory tribal rights PESA and pressures Interview:
NAC recommendations gathering dust

[Fri, 19 Apr 2013]
`Almost' perfect universe The oldest light Kerala: Interview:
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Sterlite closure:
Margaret Thatcher: Sashi Kumar: New Delhi: Health: West Bengal:
C.P. Chandrasekhar:
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Sugar Industry: Directing algae
Seven sexes of an organism
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Breakthrough in crystallography Exotically shaped nuclei

19 Apr 2013]
[Fri, 19 Apr 2013] [Fri,
First independent confirmation of global land warming Flight of Sparrows Kashmir debate
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]
Migrants and culture Flawed greatness Muslim bogey Editor's Note Letters
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013]
[Fri, 19 Apr 2013]
| Next | Section Menu | Main Menu |
A court adrift NICK ROBINSON The Supreme Court by and large remains popular. Yet, if one digs a bit, beneath the surface is an institution that has strayed from its mission and may even be undermining the rest of the judicial system. THE HINDU ARCHIVES
January 28, 1950: A photograph taken on the occasion of the inaugural sitting of the Supreme Court of India. (Top row, from left) Justices S.R. Das, M.C. Mahajan, S. Fazl Ali, H.J. Kania, M. Patanjali Sastri and B.K. Mukherjea. (Bottom row) Chief Justices of the High Courts B. Malik, M.C. Chagla, P.V. Rajamannar, B. Ray, Thadani, Vivian Bose, Eric Watson, H.V. Divatia, Teja Singh, Meddappa, R.S. Naik, P.K. Kaul and Kunhiraman. While Members of Parliament and top-level bureaucrats are regularly pilloried in the media for alleged corruption or sidestepping of their duties, the Indian Supreme Court has largely escaped systematic criticism. At least amongst the middle class, the court has remained relatively popularoften for good reason: its judges work hard, seemingly stay above the political fray, and have pushed the government to advance several popular causes (such as promoting transparency, targeting corruption and implementing social welfare programmes better). Yet, if one digs a bit, beneath the surface one finds an institution that many court-watchers believe has strayed from its mission and may even unintentionally be undermining the rest of the judicial system. For the general public, this far more gloomy assessment of the court is difficult to appreciate. Part of the reason why criticism is so muted may be that data about the institutions operations are so difficult to come by. High-profile Supreme Court orders are reported in newspapers almost every day, but the bulk of the courts work, which is far more mundane and technical, is not
widely understood. It is this work, though, which takes up the majority of the courts resources and arguably has become a misguided distraction. Inequity in the Courts Caseload Quite simply, the courts current 30 judges hear a staggering number of cases. Anyone can appeal a case to the Supreme Court that they feel was wrongly decided in a court or tribunal below. Two Supreme Court judges will hear each of these admission matters to determine whether the case deserves to be heard again at a longer regular hearing where it is decided on its merits. Although the court rejects most requests for a regular hearing, it allows many. In 2011, the courts judges decided some 47,000 admission matters out of which 9,070 (or about 19 per cent) went on for regular hearing. Listening to all these cases requires a daunting amount of time and has contributed to the Supreme Courts infamous backlog of pending matters. Given this backlog, it takes on average about four years for the court to reach a final verdict on a caseand sometimes much longer. For a litigant, it can routinely take over a decade to have a case first heard by a district court, reheard in the High Court, and then heard again in the Supreme Court. Despite the relative ease with which the Supreme Court allows appeals, not all Indians can access its doors equally. Appeals come disproportionately from nearby Delhi and the wealthier States. The Delhi High Court is widely lauded as being one of the highest quality in the country, yet in 2011 approximately 12 per cent of the cases decided by the Delhi High Court were appealed to the Supreme Court. Compare this with Odisha or Jammu and Kashmir, where only about 1.2 per cent of High Court decisions were appealed. In the case of the Madras High Court, it was a mere 1.1 per cent.
This appeal pattern is difficult to characterise as fair. The likelihood that one will appeal ones case to the Supreme Court is linked to ones proximity to Delhi and relative wealth. The court has introduced electronic filing, a potential technological solution that allows litigants to easily file their cases from anywhere in the country. However, this does not really fix the underlying problem. One still requires a lawyer certified by the court, called an AdvocateOn-Record, to actually file a case in the Supreme Court and a lawyer (who must be based in the capital or flown in) to argue the case before the judges. In the 1980s, the Supreme Court suggested eliminating certain categories of oral arguments, which would have made litigation at the court simpler and less expensive, particularly for litigants not situated in Delhi. In response, the Supreme Court Bar went on strike, and opposition to reducing the role of timeconsuming oral argument continues to be fierce amongst practising lawyers as they charge their clientsoften at astronomical ratesfor each appearance they make before the judges. When one examines the type of cases the court hears, one sees further evidence that those with more resources unequally capture the institutions attention. As the chart on page 5 shows, on an average over the last five years service matters involving government employees made up about 16 per cent of the courts decisions, while direct or indirect tax matters made up another 13 per cent. Land acquisition matters constituted about 9 per cent, while criminal matters, which dominate the workload of lower courts, made up
21 per cent of its disposals.
Perhaps even more tellingly, tax, company law, land acquisition and service matters all have considerably higher acceptance rates for regular hearing than criminal, ordinary civil, or personal law matters. For example, a company law matter is more than twice as likely to be accepted for regular hearing as an ordinary civil law matter. These matters that have a higher acceptance rate tend to involve wealthier litigants or government employees. Perhaps these litigants can afford more effective, higher-priced lawyers to press their cases before the judges. Alternatively, many tax and service matters are not decided by High Courts, but tribunals. The high acceptance rate of matters appealed from tribunals may be a sign that the court is wary of the decisions of these forums. Whatever the explanation, the end result is the same: the court disproportionately spends thousands of hours hearing the cases of wealthier litigants situated in and around Delhi and from more affluent States. These cases are certainly important to the litigants, but for the most part they involve issues that are of trivial significance to the nation. A distracted court
Meanwhile, important Constitution Bench cases are simply not being heard. The Constitution requires that five or more judges must hear any substantial question of constitutional law. Most of the seminal cases of the Supreme Court, whether they involved limiting Parliaments ability to amend the Constitution or rulings on the constitutionality of caste-based reservation, have been decided by these larger Constitution Benches. In the 1960s, it was common for the court to decide over 100 such cases a year. However, with the court being distracted by so many smaller cases, in the past 10 years it has averaged fewer than eight Constitution Benches a year. Dozens of vital pending Constitution Bench matters have been waiting to be heard for years or even decades. For instance, for many years the court has failed to hear a pending Constitution Bench case to examine the definition of industry in a key piece of labour legislation, creating uncertainty for employers and millions of workers. An increase in the number of appeals has distracted the court not only from deciding Constitution Benches but also from hearing writ petitions. The Constitution, which was drafted by founders who had personally experienced the brutality of government power, allows any Indian who believes their fundamental rights have been violated to approach the Supreme Court directly for a remedy through a writ petition, entirely bypassing the lower courts. Yet today fewer than 2 per cent of admission cases involve writ petitions, mostly because judges have discouraged such litigants from approaching the Supreme Court, directing them to the High Courts instead. Indeed, although a reader of a newspaper might believe most of what the Supreme Court does is spend its time on public interest litigation, which is a type of writ petition, in fact, on average only about 1 per cent of the courts decisions relate to PIL. On a typical day, the court is far more likely to be found spending its time discussing the intricacies of tax law than intervening on behalf of the poor or the marginalised.
THE SUPREME COURT of India. A court that centralises and creates uncertainty
Supreme Court judges frequently justify hearing so many appeals by arguing that they should correct injustices being done by the lower courts. To respond to the manpower needs of such a stance, the maximum number of judges on the court has increased from eight at Independence to 31 today. On any given day, two-judge panels might be hearing appeals in 13 or 14 different courtrooms at the Supreme Court. This creates a clear coordination problem. Any given panel of Supreme Court judges interprets the law slightly differently from another on issues ranging from when to apply the death penalty to how liberally to read consumer protections. These differences between judges generate uncertainty in the law, with distressing repercussions for both litigants and the lower courts. Between 2005 and 2011, the number of matters disposed of by the High Courts grew by 33 per cent. Yet, the number of matters appealed to the Supreme Court grew by 45 per cent and the number of admission matters the Supreme Court accepted for regular hearing (that is, the appeals the court thought had merit) grew by a whopping 74 per cent. More and more litigants have decided that it makes sense to appeal to the Supreme Court since its judges have decided to rehear more and more appeals. In these circumstances, if one loses ones case in the High Court and has the resources, why not take ones chance in the Supreme Court? One might end up before a panel of two judges at the Supreme Court that is more favourable to ones arguments. If one can afford a high-priced lawyer who is known for his/her ability to tailor his/her arguments to specific judges or move ones case to a Bench that is likely to be more sympathetic, all the better.
While there was rapid growth in the Supreme Courts workload between 2005 and 2011, the disposal of cases by the lower courts grew at a much lower rate (by only 7.8 per cent). If they can, litigants seem to want to have their cases
heard first by the High Courts and then appeal up to the Supreme Court. Part of their concern may be the quality of the lower courts, but it is also a realisation that for many types of matters the case will not be truly settled until the Supreme Court has decided it. Such an extremely active Supreme Court demoralises High Court and lower court judges, who now have difficulty determining what the law actually is, and exasperates litigants, who can now expect that any given case will be appealed to the Supreme Court, which means squandering years and money in the process. Looking forward: A process for reform The Supreme Court has centralised judicial authority in Delhi, micromanaging the decisions of the rest of the judicial system, with seemingly counterproductive results. By taking on so many cases, the Supreme Court instead of clarifying precedent has confused it. Instead of making the system more accessible, it has normalised an expensive layer of appeal that the wealthy and those closer to Delhi are best positioned to navigate. The current arrangement has enriched Supreme Court lawyers but arguably weakened the health of the rest of the judicial system. Responding to these concerns, several proposals have been put forward to reform the court in recent years. To tackle geographic inequity in those who approach the court, in 2009 the India Law Commission recommended creating regional Benches of the Supreme Court in Mumbai, Chennai, Kolkata and New Delhi. The Commission also suggested creating a separate Constitution Bench in New Delhi to hear the backlog of pressing Constitution matters. Recently, the Senior Advocate Rajeev Dhavan proposed that the court stay in Delhi in largely its current structure, but specific courtrooms only hear criminal, civil, or constitutional matters (currently some Benches only hear one type of matterfor example, tax matters). As the Supreme Courts judges themselves pointed out when rejecting the Law Commissions call for regional Benches, such a reform would likely only exacerbate coordination challenges amongst the courts different Benches. It is difficult enough creating a cohesive jurisprudence amongst Benches in Delhi, let alone if they sat in other parts of the country. Dhavans proposal to further specialise Benches of the Supreme Court would likely help unify precedent in different areas of law but do little to halt the swarm of appeals that come to the court or the inequities in their make-up. A permanent Constitution Bench is a useful suggestion, but the details of who would sit on it and its relationship to the rest of the court need to be addressed with care.
To really tackle the challenges created by the current system of appeal, the court simply needs to hear fewer cases. In 2011, the Supreme Court decided some 6,002 regular hearing matters. It probably could have decided a third as many matters (or far fewer) and still dealt with all the cases that involved important questions of law, while checking the worst excesses of government power or neglect. Such a reform would then free up thousands of hours for Supreme Court judges to undertake tasks like sitting on larger Benches to clarify precedent or making targeted interventions to strengthen the lower judiciary. For the judicial system to work most effectively and fairly, the vast majority of cases should be decided in the lower courts without the prospect of endless appeal hanging over the heads of litigants. Whatever the final remedy, it should come through a process that involves active debate over the courts activities by all stakeholders, including judges, the government, the Bar, academics, and the Indian public. How accessible should the court be (and to what kind of litigant)? How cohesive should its jurisprudence be? How involved should it be in public interest litigation? How closely should it follow the founders vision of the Supreme Court, or should it refashion a new one? There are very real trade-offs involved in answering these questions. For example, the more open the court becomes to litigants, the less likely it is that it can maintain uniformity in its precedent. Unfortunately, the Supreme Court has at times hampered debate over its functioning. It has produced no publicly available annual report since 2008-09 and does not generally release data about its inner workings beyond basic statistics concerning its overall backlog or the number of instituted or disposed of matters. Such figures do not provide enough information for an outsider to
judge properly the costs and benefits of how the court operates currently. Nor does the information made available shed any light on the criteria by which the current collegium of judges picks new Supreme Court judges or takes other internal governance decisions. In response to criticism, the Supreme Court has often shown itself to be thinskinned by repeatedly pulling up journalists before it when it has found their reporting inaccurate. Even if the court was justified in each of these cases, it has had a broader dampening effect on debate. Journalists and editors routinely err on the side of caution when reporting on the court so as not to risk contempt. In order for the broader public to be actively involved in shaping a vision for the courts future, its faults must be carefully scrutinised along with its strengths. The Supreme Courts history is too fabled and its future is too important for anything less. Nick Robinson is a Senior Fellow at the Centre for Policy Research, New Delhi.
This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300800400.htm
| Section Menu | Main Menu |
| Next | Section Menu | Main Menu | Previous |
Lessons from Novartis case THE Supreme Courts April 1 judgment in the Novartis case clearly defends the public interest against the corporate greed of multinational pharmaceuticals (see separate story). But the process of the courts decision to hear the matter tells its own story of balancing competing interests. The fact that important and sensitive matters are heard by just two-judge or three-judge Benches leaves the decisions rendered by them somewhat uncertain. This is not to suggest that the Novartis judgment has not finally resolved the question of whether the patent regime in pharmaceuticals can be subjected to legislative restrictions to defend the public interest. But the gaps in the judgment suggest that future litigation on the issue cannot be ruled out. The judges, for instance, did not want to give a final answer on the exact scope of therapeutic efficacy, leaving it to be determined by future courts even while acknowledging disagreement among the experts it heard. The twojudge Bench pointed out that Novartis had not filed any data on the therapeutic efficacy of Glivec. Critics may infer that this offers companies such as Novartis a window to identify possible loopholes to exploit in future legal battles. The point is not just that a bigger Bench of, say, five judges could have achieved better clarity on some complex issues before the Court. It is that had the matter been heard by another two-judge Bench not so committed to the public interest there was the risk of the decision going in favour of Novartis. Novartis was represented by two high-profile lawyers, Gopal Subramanium and Andhyarujina, who left no stone unturned to bring relief to their client. At one stage, they sought to distinguish between the scope of coverage and the scope of disclosure in a patent. Where it is a pioneering invention (as in the case of the Zimmermann invention, which preceded that of imatinib mesylate), Novartis counsel argued, the patent may be entitled to larger coverage than what is specifically disclosed in it. Therefore, they argued, it would be wrong to say that Novartis claims for the beta crystalline form of imatinib mesylate is a case of double or repeat patenting, that is, the same invention sought to be patented twice. Thus, Gopal Subramanium maintained that the boundary of the Zimmermann patent was extended up to imatinib mesylate, but the enablement or disclosure made therein ended at imatinib. The Bench rejected the argument that the coverage in a patent might go much
beyond the disclosure as it negates the fundamental rule underlying the grant of patents: a monopoly is granted to a private individual in exchange of the invention being made public so that, at the end of the patent term, the invention may belong to the people at large who may be benefited by it. The Bench pointed out that in India, the law of patent, after the introduction of product patents, is in its infancy. We certainly do not wish the law of patent in this country to develop on lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skilful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent. Even as the two-judge Bench comprising Justices Aftab Alam and Ranjana Prakash Desai deserves appreciation for its nuanced interpretation of the legal dispute before it, observers cannot fail to notice that the case came to be heard by it in almost fortuitous circumstances. The case was first listed before Justices Markandey Katju and Asok Kumar Ganguly in 2009. Justice Katju recused himself from the case on August 31, 2009, when it became known that he had written an article against the liberal grant of pharma patents. The case was then heard by the Bench of Justices Dalveer Bhandari and Deepak Verma. This Bench heard the case for five days, until September 6, 2011, when Justice Bhandari recused himself from hearing the case because a newspaper had reported about his participation in two international conferences for judges organised by a U.S.-based association of intellectual property professionals, which included Novartis. Justices Alam and Ranjana Desai said in their judgment that they too were reluctant to admit the Novartis case for regular hearing for a different reason: Novartis had appealed directly in the Supreme Court against the Intellectual Property Appellate Boards verdict (delivered on June 26, 2009) rejecting its patent claim over Glivec without exhausting the intermediate appeal in a High Court. Had the matter first been heard in a High Court, it would have still reached the Supreme Court, but much later. Justices Alam and Ranjana Desai, therefore, made an exception in this case and agreed to hear the matter so that a verdict could be delivered well before the expiry, in 2018, of Novartis 1998 application for a patent. The parties who objected to the grant of a patent to Novartis also agreed to the hearing of their appeal directly in the Supreme Court. The court, however, made it clear that such an exception would not become a precedent for similar appeals in future.
The Bench, thus, delivered the verdict after hearing the parties to the dispute in 27 days, between September 26, 2011, and December 4, 2012. V. Venkatesan
Supreme Court and the aam aadmi G. MOHAN GOPAL It is the goal of social revolution that connects the aam aadmi to the judiciary and to its highest institution, the Supreme Court of India. RAJEEV BHATT
A man at the Delhi High Court to attend the Lok Adalat where customers and litigants had an opportunity to settle disputes relating to electricity bills, in March 2009. WHAT should be the appropriate mea-sure of the relationship between the apex court of a country and its common people? Should an apex court be evaluated by who invokes its jurisdiction, from which area and for what purpose? Is an apex court better if it receives more cases? Or if it receives fewer cases? How relevant are these criteria to the assessment of an apex court? As a general matter, the role of an apex court is interpreting and laying down principles of law that bind the courts below, especially when lower courts disagree. Any evaluation of an apex court should normally be against this responsibility. The Indian Supreme Court is, however, cast in an entirely different mould. It described its role in a landmark 1982 judgment ( S.P. Gupta vs Union of India)
as follows: The judiciary has a socio-economic destination and a creative function. It has to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice [this calls] for judicial cadres who share the fighting faith of the Constitution and who are imbued with the constitutional values (emphasis added, throughout). Judiciaries are typically institutions established by ruling classes to uphold the existing social order. According to our Supreme Court, our judiciarys role is exactly the opposite. Our Constitution makes our judiciary the first revolutionary judiciary in the worldestablished not to defend the social order but to change it. Justice D.A. Desais 117th Report of the Law Commission of India on Judicial Training (1986) reiterated the constitutional vision of the role of the judiciary that it would transform overnight from an extension of the colonial law and order machinery to an effective instrument in ushering in social revolution in Republican India, and functioning as a sentinel on the qui vive a guardian angel of the fundamental rights of citizens. The unique role of the judiciary in bringing about social transformation was explicitly recognised and discussed in the Constituent Assembly. Prof. K.T. Shah, a distinguished economist who was a member of the Assembly, said in a debate on November 19, 1948, that, [The judiciary] is the only authority that we are going to set up in the Constitution to give effect to whatever hopes and aspirations, ambitions and desires, we may have in making these laws and in laying down this Constitution. The Constitution makes the aam aadmis age-old struggle for social justice the struggle of the judiciary. It is this goal of social revolution that connects the aam aadmi to the judiciary, and to its highest institution, the Supreme Court of India. Any evaluation of the Supreme Court of Indias relationship with common people must therefore be based on a qualitative assessment of its contribution to the social revolution that the Constitution envisages to establish a society based on the equality, liberty, dignity of the individual and the unity and integrity of the nation. THE HINDU ARCHIVES
MARCH 27, 1948: Chief Justices of the High Courts of India in New Delhi to discuss the legal implications of the draft Constitution of India with Prime Minister Jawaharlal Nehru (centre) and Chief Justice of India Harilal J. Kania (to his right). The Supreme Court has made important contributions towards the cause of constitutional social revolution, especially in the fields of human rights, environmental protection and accountability in governance. These contributions were made mainly (although not exclusively) in the 18 years between 1973 (when Justices V.R. Krishna Iyer and P.N. Bhagwati joined the court) and 1991 (when economic reforms began). It was during this period that Justice Krishna Iyer and his colleagues shifted the centre of gravity of justice (in his own words) to the protection of the public interest, and opened up access of the poor to the Supreme Court. Change in approach The 22 years since 1991 have seen a radical change in the approach of the court. It did not go back to the first phase of resisting social change. Instead, it seems to have shifted (as a general trend) to a different approach to social changethrough market-based economic growth rather than through redistribution of wealth or breaking down social oligopolies as envisaged in the Constitution. This is not an isolated view. Social change through market-based economic growth enjoys the support of a strong political consensus (across the political spectrum). It is the aspiration of a new and powerful middle class. However, this approach is not in line with many aspects of the specific provisions of the constitutional vision of social justice. It does not give primacy to the working class whether in the unorganised sector or in the organised sector. It has little room for either redistribution of assets (even through protection of minimum wages, progressive taxation and other labour rights) or for breaking down social injustice through, for example, affirmative action. It favours the use of coercive measures to put down the struggle of the poor to retain access to land, water and food. It demands better and stronger top-down executive
governance and a whittling down of democracy where needed in the interests of growth. This approach has the strong support of a very vocal corporatedominated media. This new, pro-middle-class path to social change is, however, not fully in line with the constitutional vision of social revolution centred around the concerns of the poor and emphasising redistributive measures and equality not only of opportunity but also of outcomes. The shift in the approach of the judiciary to a growth-driven model of social change is materially altering the relationship between the courts (including the Supreme Court) and the poor. There is no question that the courts continue to be the last resort of the poor in their quest for justice. But courts are not as forthcoming or responsive as they used to be in defending the causes of the poor. The PIL (public interest litigation) window has been narrowed considerably in the Supreme Court and in the High Courts. The hands-off approach to economic policy has reduced the scope of challenge. Egregious issues of social injustice (such as manual scavenging) are not getting required attention or priority. Social responsibility Courts are the legitimate channel for common people to fight injustice. If this window is closed, people will inevitably turn to illegitimate channels. The Supreme Court has a special responsibility in this regard because of the very poor access of people to lower courts. Poor people are unable to access courts for a variety of reasons. As a result, India has amongst the lowest number of new cases filed each year per thousand population (some 15 new cases per thousand population as against around 250 cases in Europe and 330 in the United States. In India, the range of new cases per thousand population varies from 62 in Delhi to three new cases per thousand population per annum in Bihar and Jharkhand. The rate rises with literacythe higher the literacy, the higher the number of cases). Indias main challenge is docket exclusion, not docket explosion. It is the inaccessibility of common people to lower courts that made Dr B.R. Ambedkar remark once that he considered Article 32 the most important provision in the Constitutionthe unique and exceptional provision that gives the right to every citizen to directly move the Supreme Court of India for the protection of his/her fundamental rights. In a country where fundamental rights are violated more commonly than
people are clothed or fed, Article 32 petitions by poor people should logically have become the single largest type of case filed in the Supreme Court. That Article 32 petitions by the poor are today amongst the least invoked jurisdictions is stark evidence of the relationship between the Supreme Court and the common person.There are three important issues that need to be addressed if the courts are to fulfil their role in catalysing social revolution. Selection of judges First, and foremost, the process of judge selection needs to be revised to take into account the role of the judiciary in the constitutional scheme of social change. The judicial oath prescribed in the Constitution requires every judge to bear true faith and allegiance to the Constitution of India. The Constitution of India has been interpreted by the Supreme Court as a charter for social revolution with a specific content and a specific path as laid out in Part III, Part IV and Part IVA of the Constitution. If the judicial oath is taken seriously, we will need to include in the process of judicial selection explicit consideration of whether or not proposed judges in fact have the faith in the constitutional vision to which they will be required to swear allegiance. This is not to be mistaken for a call for commitment to any political cause or to a static or to a fixed constitutional philosophy. Certainly, however, it must include, at the very minimum, demonstrated faith in justice (social, economic and political), equality, liberty, dignity and the ideas of democracy, socialism and secularism as laid down in the Constitutionas evidenced in the life and habits of judicial candidates. A misogynistic man is not going to have a miraculous change in his philosophical outlook on reciting the judicial pledge. Donning a judicial robe may change how he looks but will not change who he is. A young lawyer once asked me a question I could not answer: How can those who practise inequality protect equality? A judiciary committed to the vision of the Constitution on social change will be a judiciary that will more effectively advance the constitutional vision of social change. Equally, a judiciary that is expected to catalyse social change will need to reflect the diversity of our people. The selection of judges must therefore also ensure diversity and representativeness in a systematic manner. The report of the U.K. Advisory Panel on Judicial Diversity, chaired by Baroness Neuberger, said in February 2010: In a democratic society the judiciary should reflect the diversity of society and the legal profession as a
whole. Judges drawn from a wide range of backgrounds and life experiences will bring varying perspectives to bear on critical legal issues. A judiciary which is visibly more reflective of society will enhance public confidence. Many prominent jurists (such as Justice Sotomayer of the U.S. Supreme Court and Justice Lady Hale of the U.K. Supreme Court (both women judges)) have strongly and publicly endorsed the need for diversity in the judiciary. The Supreme Court of India is diversity-challenged (although there has been a marked and welcome improvement in the representation of minority judges very recentlyalthough it is far from clear whether the sustainability of this current trend is guaranteed). Like much of the rest of the judiciary, it is overwhelmingly Hindu upper caste (roughly 60 per cent of Supreme Court judges today; but the average representation of Hindu upper caste in the court tends to be highercloser to 70 per cent) with currently no member of the Scheduled Castes, only two women, and very little representation of the Other Backward Classes (hardly 10 per cent). Diversity is a socially forbidden topic in the higher echelons of power in all branches of the statewhether it is diversity of caste, religion, region or gender. Those who benefit from the current dispensation consider it retrograde to talk about such matters. They believe all decisions and considerations are rational and based on objective merit alone. Like other countries, the time has come to go beyond this head in the sand position and address the issue of diversity on the Bench in a constructive and reasonable manner. Equal access to courts Second, common people cannot have equal access to courts as long as India continues with an exclusively private sector Bar. The right to counsel is now widely recognised as a basic human right. Yet, competent and diligent legal assistance has become scarce and expensive everywhere and unaffordable to the poor. The absence of effective legal counsel is an important reason why common people are not able to access courts and use them as instruments of the constitutional vision of social change. Legal aid that pays low levels of fees to a private lawyer is not adequate to ensure that the poor have access to courts. What is required is the establishment of a well-paid, salaried public cadre of well-trained young lawyers, engaged full time by the state as its employees, who will act on behalf of the indigent and the poor in civil and criminal matters for free.
A cadre of about 60,000 such lawyers nationwide (an average of 30 per court complex), paid an average of Rs.1 lakh a month as salary, can be established at a total cost of about Rs.7,200 crore. It will provide the poor a public legal service and also create professional avenues for young law graduates from socially excluded backgrounds to get opportunities to work as lawyers. The work of these lawyers will generate the material that will increase the flow of cases from common people to the Supreme Court. Vested interests in the Bar who live off delay and adjournment will resist such an idea. But without free public services by a cadre of state-employed public defenders, common people will not have access to the courts, including the Supreme Court. Regional Benches Third, the establishment of regional Benches of the Supreme Court is an idea about which judges have had reservations for valid reasons. However, judges need to weigh those disadvantages against realising the dream of the Constitution that the only new type of court it created, the Supreme Court, remains physically accessible to people in all parts of this vast country. This is a crucial period in the history of the Supreme Court. The nation fully expects that the highest court in the country will live up to its own pronouncements and vision on the role of the judiciary in catalysing social change. The 2007 global economic crisis has led to a softening of the earlier strong laissez-faire trend. A greater recognition of the justice, social and environmental dimensions of economic development appears to be emerging. There is now renewed hope that the relationship between the Supreme Court and the aam aadmi can be strengthened again. Prof. G. Mohan Gopal is former Director, National Judicial Academy, and former Vice-Chancellor, National Law School of India University, Bangalore.
A peoples court V. VENKATESAN Interview with Solicitor General of India Mohan Parasaran. N. SRIDHARAN
Mohan Parasaran, Solicitor General of India. MOHAN PARASARAN WAS THE SENIOR-MOST Additional Solicitor General of India at the time of his appointment as the Solicitor General in February this year, when Rohinton Nariman resigned from the post. Aged 51, Mohan Parasaran has wide experience in all branches of legal practice and has a keen understanding of the governments litigation policy announced in 2010. The policy is based on the recognition that the government and its various agencies are the predominant litigants in courts and tribunals in the country. Accordingly, the policy declared that the government must cease to be a compulsive litigant, and that its approach that matters should be left to the courts for ultimate decision had to be discarded. Here, he answers questions on the policy and related issues. While answering a question in the Lok Sabha recently, Minister for Law and Justice Ashwani Kumar revealed that the litigation policy, announced by former Law Minister M. Veerappa Moily in 2010, had not been approved by the government yet. When policy decisions are taken, they are sent to the Cabinet for approval. One Ministry does not take a call on issues of policy. Even though the same has not been approved, it was widely publicised in 2010 when it was launched, and it has been at the back of the governments mind. In effect, the
government has been trying to streamline the litigation which is being conducted on its behalf. We see the litigation policy as a model. Has there been a review of the pending cases, in which the government is a party, before the High Courts and the Supreme Court? That is being done constantly by the Supreme Court and the respective High Courts themselves. In some of the High Courts, the situation causes concern. For instance, in the Allahabad High Court, very old appeals are still pending. But by and large, improvement in information technology, and the grouping of matters in the Supreme Court have led to good disposals. Yet, there is pendency because of the absence of adequate number of judges. Because of the expansion of the right to information, anybody can file and ask for any information. The applicant need not have any locus standi. That is one area which has actually resulted in the spiralling of litigation. They get some information, some of it guesswork, go to courts and file PILs [public interest litigation]. So, the government possibly must think of tinkering with this Act. I am not against providing information under this Act, which is a fundamental right. But it should be actually asked for by persons who genuinely want some information. We are only worried that our enemy country can set up three or four people and can repeatedly file applications and even seek information on matters pertaining to defence and national security. Of course, exemptions are there. But the Act doesnt define who can apply. Sometimes, in the guise of finding out about environmental clearance for a project or a road, one can get information about national security. Even though the litigation policy is there, so far no concrete step like withdrawing cases has been taken by the government. It has only been applied with some sort of rigour prospectively and not with regard to the pending matters. The National Legal Mission aims to reduce the average pendency time from 15 years to three years. How far has this been achieved? To be frank, that has not been achieved. There has been an increase in the rate of disposal and awareness. The government appointed an empowered committee to monitor the implementation of the policy, and you are also an ex-officio member of it. What has been your experience with this committee? The committee met only on a few occasions and gave some recommendations.
Thereafter, there has not been any meeting of minds. Do the law officers certify the need to file an appeal and specify the reasons why it is not considered fit or proper to file an appeal? Whenever any Ministry approaches the Law Ministry on any matter, the Law Ministry expresses its views and sends the file for the opinion of the law officer concerned. The law officer at the level of Additional Solicitor General or the Solicitor General sometimes has to examine even petty matters, or service matters, and consider whether it involves a matter fit enough to be taken to the Supreme Court. Ultimately, it depends on the opinion of the law officer of the Union. As far as I am concerned, wherever I feel a particular case is not fit enough to be filed, I tend to give elaborate reasons. And matters which are fit enough to be filed, there the reasons are set out in short that they involve substantial questions of law, which require interpretation, because there you need not justify. What is the governments attitude to PIL? We welcome PIL petitions. But in the guise of PIL, very frivolous petitions are being filed, only for the sake of publicity. If a piece of legislation is enacted by Parliament to tackle vexatious litigation, it can also take care of vexatious PIL. The Supreme Court has laid down general principles on when a PIL petition may be admitted. On the basis of those, Parliament can lay down general norms. There have been suggestions for structural reforms of the Supreme Court, including formation of regional Benches. There is a view that the Supreme Court is tilted towards a particular class. Of course, the court was expected to hear matters involving important questions of law and the Constitution or the public interest. But now, you must see the expectations of the common man. What I feel is that the Supreme Court must be considered a peoples court. Judges have accordingly fine-tuned themselves. I wont agree with the criticism that the the Supreme Court is lopsided or pro-particular court or deciding more cases appealed from a particular High Court when compared with other High Courts. But the data suggest that. Data might suggest that. The Supreme Court hears all sorts of mattersrent control, matrimonial disputes, petty criminal cases. Many courts [in the Supreme Court], including the Chief Justices court, actually try to hear two or
three normal simple matters involving common people. The impression that is being conveyed is that the court is accessible to everybody. You cant have regional Benches. The demand can be satisfied by having videoconferencing. That day is not far off. With the improvement of technology, why transfer the entire infrastructure elsewhere? On the inconsistency of judgments, some judges may have strong views on matters, which may lead to conflict. Mistakes used to occur in the past owing to inadvertence. That has actually come down. I feel there has to be, on a daily basis, a Constitution Bench, not only to hear pending Constitution matters but other important matters. Previously, if you see the history of the Supreme Court, five judges [constituting a Bench] was a regular feature, even though the number of judges was fewer.
PIL losing out HAS public interest litigation (PIL), an innovation of the Supreme Court in the 1980s, lost its direction and abandoned its original constituency, the marginalised and the underprivileged sections of society? The legal researcher Usha Ramanathan has commented that the Supreme Court, in order to balance competing interests, began to turn away from protecting the interests of the original constituencies of PIL in the 1990s. In principle, PIL cases justify judicial intervention and judicial activism and the concomitant enhancement of judicial power because, in the words of Usha Ramanathan, the beneficiaries of PIL in the 1980s were caught in the throes of severe disenfranchisement, dispossession and rightlessness. In the 1990s, however, according to her, the very same beneficiaries of the PIL in the 1980s began to emerge as the casualty of that exercise of enhanced judicial power. Another scholar, after examining a body of case law relating to civil liberties, slum clearance, and labour rights, all of which directly affect the conditions of the poor in India, concluded: From the beginnings of PIL as pro-poor and trying to effectuate the rights of the exploited, it is increasingly taking a diametrically opposite direction. The academic and legal scholar Arun Thiruvengadam tried to classify the recent PIL cases into three categories to illustrate this point. The first category involved the displacement of thousands of people as a result of large dam projects that were ultimately endorsed by the Supreme Court on the grounds that these projects were pursuing broader goals of development. The second set consists of cases that have been cited consistently for their neglect of the concerns of migrant workers and other marginalised groups while upholding the right to environment. In this falls the series of orders passed in M.C. Mehta vs Union of India (1985), a long-running case that oversaw the relocation of thousands of polluting industries outside the limits of Delhi. The third category involves cases where courts have prioritised the interests of the modernising elites and the upper classes over those of the weaker sections. This includes, according to Thiruvengadam, Almitra Patel vs Union of India (decided in 2000), in which the Supreme Court ordered the demolition of slums and unauthorised structures set up by migrant workers and the poor. In the recent book Comparative Consitutionalism in South Asia, which he edited along with two other authors, Thiruvengadam suggests that even if these cases are few in number they have an impact on a large section of the
population. Varun Gauri, also a legal scholar, studied the entire set of PIL cases decided by the Supreme Court between 1997 and 2007. He found that judicial receptivity in the Supreme Court to Fundamental Rights claims made on behalf of the poor and excluded individuals had declined in this 10-year period. His data show not only a decline in the win rate for marginalised individuals but a simultaneous increase in the win rate for advantaged individuals. According to Varun Gauri, his findings prima facie suggest that judicial attitudes are less favourably inclined to the claims of the poor than they used to be, either as the exclusive result of new judicial interpretations or, more likely, in conjunction with changes in the political and legislative climate. The academic and researcher Jayanth Krishnan argues, on the basis of an extensive survey of 73 prominent non-governmental organisations (NGOs) and social advocacy groups, that most prominent social advocacy groups tend to avoid litigation as a deliberate strategy. He explains that these groups have become disenchanted with the slow pace and inconsistent progress of PILs and prefer to focus on alternative strategies, such as grass-roots political mobilisation. The costs and institutional focus required for mounting and sustaining long-drawn PIL campaigns have led some groups to avoid using them altogether. Thiruvengadam believes that this trend needs to be reversed. He suggests that judges lend support to PIL petitions without appearing to act in partisan or ideologically motivated waysa characteristic that defined the Supreme Courts attitude to PIL in the 1980s and the 1990s. In order to regain the trust and confidence of NGOs and social advocacy groups, he suggests that judges adopt a far more modest and facilitative role, where the focus is on the citizens who suffer, the social movements that organise their interests, and the lawyers who represent them. What is required is a much more decentralised form of intervention, where the emphasis is on enabling all possible stakeholders to contribute meaningful inputs, he says. Thiruvengadam holds the ongoing PIL cases dealing with right to food and the police reform cases in the Supreme Court as the model ones where the Supreme Court is evolving this ideal approach. V. Venkatesan
Dissenting note G. MOHAN GOPAL In place of judicial impact assessment, what India needs is judicial use assessment to measure to what extent people have actually used courts to enforce their rights. RAMESH SHARMA
A farmers' rally in Delhi in 2011 for amendments in the land acquisition Act of 1894. Judicial impact assessment (JIA), according to the Union Ministry of Law and Justice, is essentially a study of the impact on judicial resources when a new piece of legislation is introduced or an existing one is modified. The assessment aims to cut costs substantially by getting a piece of legislation examined internally by the government departments concerned before it is introduced. In response to a directive of the Supreme Court in the case of Salem Advocates Bar Association vs Union of India, former Union Law Secretary T.K. Vishwanathan set up a task force in 2007 to study JIA. The task force had Justice M. Jagannadha Rao, former Supreme Court judge, as its chairman and Dr N.R. Madhava Menon, Dr Mohan Gopal and T.C.A. Anant as members. Its report, submitted to the government on June 15, 2008, recommended the setting up of judicial impact offices at the Centre and in the States, and the
estimation and monitoring of the volume of litigation that may arise and the extra expenditure that may have to be incurred by the courts as a result of a proposed piece of legislation. The study of judicial reform and assessment statistics commenced in 2008-09 as a new Plan scheme. It has been included in the Eleventh Five Year Plan with an outlay of Rs.22.62 crore. The website of the Ministry of Law and Justice says that Rs.1.71 crore was incurred as expenditure under the scheme until 2010-11. The Plan outlay for the scheme for 2011-12 is Rs.2.53 crore. The scheme, among other things, proposes to facilitate the study of the feasibility of JIA. In this article, Mohan Gopal, a task force member who did not sign the report (the task force claimed that he was abroad and could not sign), expresses his serious dissent with the very approach of JIA, which has earned the approval of both the Supreme Court and the government. WHY is it that judicial impact assess-ment was not an issue when the Universal Declaration of Human Rights was proclaimed in 1948 or when the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966, creating rights for every human being on earth although there was absolutely no judicial capacity to enforce those rights in most of the world? Why is it that judicial impact assessment was not an issue when the Constitution of India was adopted in 1950, with its massive arsenal of rights for the excluded, even more potent than the international human rights regimealthough Indias Supreme Court was not yet born and Indias judicial system had about 10 per cent of the capacity it has today? It is because the capacity of courts to handle litigation arising from legislative recognition of rights was not in the United Nations General Assembly or in Indias Constituent Assembly, and should never be in any legislative forum, a consideration in deciding whether or not rights should be recognised and remedies established. If rights and remedies should only be established to the extent that the judicial system has the capacity to handle litigation, neither international human rights instruments nor the Fundamental Rights chapter of the Indian Constitution would ever have been enacted. If rights are to be established only as and when judicial capacity is created, it would have taken many decades
before these instruments came into force, given the long gestation period for building judicial capacity. The idea of judicial impact assessmenttoday, mainly an Indian ideacomes from two sources. On the benign side, it was a response of an impatient business class and of a business-friendly government to a judicial system that was unable to protect the rights of business on a timely basis. Analyses of the business environment in India by the World Bank, the United Nations Development Programme (UNDP) and private business had, for example, repeatedly pointed to the inability of business to protect its property and contractual rights in Indian courts as a major area for reform (India was ranked consistently amongst the worst in the world on this count). The spike in cases under the Negotiable Instruments Act was a particular irritant that brought matters to a head, as it affected business directly. For the judiciary as well as for the government, judicial impact assessment was one of the multiple ways to address the issue of delay and arrears, which was being widely used to embarrass the judicial system. The fact is, however, that judicial impact assessment is a blunt, ineffective and unnecessary instrument for the purpose of expanding the judicial system to meet rising case loads. It is simply not possible to estimate on a scientific basis and in a reliable manner the number of cases likely to arise from a piece of legislation, especially in an environment such as in our country where even the most rudimentary type of court statistics are not available. It would at best be an astrological prediction. This is not to say that there should not be a systematic process of planning and budgeting to ensure that adequate resources are provided for the judiciary. This should, however, be separated from the legislative process. The budgeting process should take the legislative outputs (driven by political and social demands) as a given and then examine how best the available resources can be deployed to ensure that rights and remedies created by the legislature are protected. On the other hand, judicial impact assessment is a very dangerous idea because it links the recognition and creation of rights and remedies to the existence or creation of judicial system capacity. Such an approach would have dilutedif not killedthe Constitution of India as well as the human rights instruments because there is simply no judicial capacity to handle the vast universe of rights that these instruments created. The capacity of the judicial system to handle cases should never constrain the
development of rights and remedies for common people. It could be argued that information about the judicial cost of rights and remedies may be used positivelyto ensure that adequate budgetary resources are provided for. This may well be the case for laws that protect property, security, state power and social privilege (that is, laws that create new security agencies). But in the case of legislation that gives remedies to the powerless against the powerful, the cost of the judicial infrastructure needed to implement the Bill will in all likelihood (unless we have a radical shift in the social balance of power) become an excuse to whittle down such rights and remedies to affordable levels or to postpone them to a future date when resources may become available. The timing of the emergence of the idea of judicial impact assessment in India is evidence of what is driving the idea beneath the rhetoric. There was no demand for such an assessment to address the lack of access to justice of the masses of India, or to remedy the woeful lack of resources, well known for years now, to enforce the plethora of social welfare and human rights laws that exist in the country to benefit the poor (for example, juvenile justice laws). It suddenly emerged in a globalising and liberalising economy in order to address concerns of business (global and national). Tort reform The idea of judicial impact assessment is closely linked to other Reaganite ideas to constrain the use of courts to enforce rights, such as tort reform. Tort reform is a powerful right-wing movement in the United States that attacks laws that create liability and accountability of powerful interests such as businesses and doctors. They typically measure the financial costs of litigation and argue that lawsuits against businesses and powerful professionals make no economic sense, are a waste of money, and reduce growth. Such movements are notorious not only for launching orchestrated attacks on laws and court decisions that impose penalties on businesses and doctors for injuries caused to common people but also on the proliferation of cases filed in court by common people. What the judicial system needs to do is to encourage the creation of an everexpanding set of rights in favour of the powerless as a critical instrument to equalise social relations and to encourage the flow of rights-enforcing litigation into courts without diversion into the ADR (Alternative Dispute Resolution) system. In place of judicial impact assessment, what we need is judicial use
assessment. This indicator would measure whether or not people were actually using courts to enforce their rights or whether their rights remained on paper. Take, for example, the landmark legislation on Protection of Women Against Domestic Violence. Social science research should be used to estimate the approximate extent of prevalence of domestic violence by State/local area. The courts and the government should monitor whether victims of domestic violence are in fact securing the protection of the domestic violence Act, and develop area-specific plans to ensure that victims actually use courts. What such a judicial use assessment is likely to show is very low usage of most rights-based laws (docket exclusion) by common people. Inadequate judge strength and court infrastructure are only a part of the reason why there is docket exclusion. Lack of an effective human rights bar at local levels is a far more important reason, as is the lack of adequate effort to spread awareness of rights and the social and governmental capacity to implement them. An action plan should be developed for each court in the country to ensure that the judicial system is fully used to secure rights as envisaged by the Constitution. Such an approach will expand and value the rights of people rather than allow rights and their enforcement to be constrained by lack of judicial capacity and budgetary resources.
Inconsistent decisions ARGHYA SENGUPTA Increasing workload, a higher rate of admission, and constitution of multiple two-judge Division Benches have resulted in a huge increase in the number of judgments handed down by the Supreme Court, which again increases the probability of inconsistencies in judgments. RAJEEV BHATT
PATIALA HOUSE COURTS in New Delhi, where district court cases are heard. Too many litigants decide to appeal against lower court verdicts in the Supreme Court, which leads to increased workload for the apex court. LIKE JOHN BUNYANS WATERMAN IN PILgrims Progress who looked one way and rowed another, the Supreme Court of India today finds itself in a similarly curious position. On the one hand, it approaches its constitutionally envisaged task of authoritatively laying down the law of the land with great vigour, regularly quoting the importance of certainty to the rule of law. On the other, by liberally construing its discretionary powers to admit cases and relaxing rules of standing, it has expanded its docket significantly. Such docket expansion has proved antithetical to the need for certainty flowing from a final judicial determination. It has meant a larger number of judgments pronounced by an ever-increasing number of two-judge Division Benches. As the pool of precedent has grown, courts and counsel have been unable to keep pace with such growth, which inevitably leads to inconsistency in the law. This article focusses on the inconsistency prevalent in the judgments of the Supreme Court; its consequences, both practical and in matters of principle; and preliminary steps for reform. When Constitutional Adviser B.N. Rau met Felix Frankfurter, Justice of the Supreme Court of the United States and one of the foremost legal minds of his time, to seek his advice on certain salient aspects pertaining to the Draft Constitution of India, Frankfurter made a key
suggestion on the functioning of the Supreme Court. He recommended that the Supreme Court, as the apex court, must sit en banc (have one bench only) to ensure that determinations are final and authoritative. Despite the obvious merit of this view and the early history of the court that in large part adhered to it, over time such a view has been rendered anachronistic. Nick Robinsons1 empirical study on the Supreme Court shows that between 2005 and 2010, the number of cases instituted in the Supreme Court increased by 51.8 per cent. Equally crucially, the number of matters admitted by the Supreme Court and accepted for regular hearing increased by 69.8 per cent. At the same time, by the latest in a series of constitutional amendments to increase the sanctioned strength of the Supreme Court, in 2008, its strength was increased to 31 (30 puisne judges + the Chief Justice). Today, the court functions with 30 judges (29 puisne judges + the Chief Justice), sitting routinely in two-judge Division Benches as facilitated by Order VII Rule 1 of the Supreme Court Rules. In fact, the number of Constitution Bench judgments (five or more judges) constituted a mere 0.12 per cent of all disposals between 2005 and 2009, thereby demonstrating that the majority of judgements were delivered by twojudge Division Benches (or in some cases three-judge Division Benches). These three factorsincreasing workload, a higher rate of admission, and constitution of multiple two-judge Division Bencheshave combined to result in a large increase in the number of judgments handed down by the Supreme Court. Unsurprisingly, the number of judgments in Supreme Court cases, a leading reporter said, increased from 10 volumes in 2000 to 13 volumes in 2005 to an unprecedented 18 volumes in 2009. This increases the probability of inconsistencies in judgments significantlythe more judgments there are, the more the likelihood of some being overlooked, leading to inconsistency. In actual practice, too, this has been greatly borne out. For example, whether a police officer is bound, under Section 154 of the Code of Criminal Procedure, to register a first information report (FIR) when a cognisable offence is made out or has the discretion to conduct a preliminary inquiry before deciding whether to do so is a question that has long vexed the courts. More than five two-judge Division Benches of the Supreme Court have reached starkly opposite and irreconcilable conclusions over four decades. This led the court in Lalita Kumari vs State of Uttar Pradesh (Supreme Court, 2012) to finally refer the matter to a Constitution Bench for resolution, 20 years after the conflict first started. Similarly, conflicting decisions of the Supreme Court can be found in several other areas of law.
Why is inconsistency such a problem? Inconsistency in decisions of the apex court in a country has significant consequences, both in matters of principle and in more practical aspects. In matters of principle because inconsistency is the antithesis of certainty in judicial decision-making and equal treatment of litigants. Certainty in judicial decision-making is a key facet of the rule of law. It allows individuals to plan their lives and take decisions on the basis of settled law. This is achieved through the doctrine of precedent. By laying down authoritative precedent, courts provide the legal framework for all human activity. In the case of the Supreme Court of India, this is given constitutional force by Article 141, which makes the law declared by the Supreme Court to be binding on all courts in India. At the same time, equal treatment of litigants demands that two similar cases are treated similarly. Not doing so would render the legal process unjust qua a particular litigant. The doctrine of precedent again seeks to prevent such unequal treatment by ensuring that courts are bound by settled propositions of law laid down in past decisions. Irreconcilable inconsistency in judgments makes the doctrine of precedent unworkable, thereby making the law operate in an unequal manner. Equally detrimental are the practical problems that inconsistency in judicial decision-making engenders. A non-functioning system of precedent is fundamentally inefficientconsidering a matter afresh rather than having the option of simply following an analogous decision made in the past is timeconsuming, onerous and consequently highly inefficient. At the same time, it worsens the problem of judicial backlog in India. This is because a lack of settled precedent encourages potential litigants to, as H.M. Seervai2 wrote, take a chance at the Supreme Court, believing there is some possibility of success. This could happen both in areas where existing decisions are inconsistent and in areas where they are not, since there is a likelihood that an inconsistent judgment may be handed down. The sharp increase in the number of matters filed and accepted for regular hearing by the Supreme Court bears testimony to this proposition. As Nick Robinson writes, it is likely that this is not a sign of a judicial system that is successfully implementing a system of precedent Preliminary suggestions for reform Inconsistency in Supreme Court decisions is not a straightforward problem to resolve. The increase in the number of matters filed and accepted, decisions handed down, and the proliferation of two-judge Division Benches are not isolated developments.
On the contrary, as Rishad Ahmed Chowdhury3 has argued, they are symptomatic of deeper and more conscious choices made by the Supreme Court to expand its docket notwithstanding the resource limitations it faces. At the same time, inconsistency may not only be a fallout of these factors. It could equally be a reflection of the depth of research by counsel in certain matters, the quality of reporting of judgments, and the availability and effectiveness of electronic searches for judgments. Subject to these caveats, the following reform proposals are being advocated, not as comprehensive solutions to the problem of inconsistency but rather as focussed attempts to mitigate the extent of its intractability. THE HINDU ARCHIVES
FALI NARIMAN, the Senior Advocate and eminent jurist. His proposal that decisions of two-judge Division Benches not be considered law for the purpose of Article 141 of the Constitution should be given serious consideration. Currently, over 80 per cent of the courts decisions are matters that come to it by way of special leave petitions (SLPs) under Article 136 of the Constitution. Though such jurisdiction is discretionary and the Supreme Court dismisses a significant majority of such matters, there is, nonetheless, little guidance in terms of an established jurisprudence on when courts will entertain a matter, lesser still on when a matter will be referred to a Constitution Bench. When it admits such petitions, the Supreme Court must provide clear threshold requirements in law as to when such a matter under Article 136 will be taken up. This will, over time, lead to a degree of doctrinal clarity of the ways in which discretion under Article 136 will ordinarily be exercised, without fettering the courts remit in any significant way. Secondly, when it does accept petitions for regular hearing, it must at that
stage, following a prima facie hearing certify whether the matter is one which involves a substantial question of law as to the interpretation of the Constitution as provided for in Article 145(3) of the Constitution. Such a question must at that stage itself be referred to a Constitution Bench for disposal, and over time doctrinal clarity ought to emerge as to what such questions may involve. The merits of these proposals are twofold: they make for greater clarity to the currently unbounded exercise of discretion under Article 136, thereby acting as an automatic filter for petitions. It also reduces the number of Division Bench decisions on questions of constitutional importance, reducing the chances of inconsistency in these seminally important matters. Additionally, it will comply with the requirement of Article 145(3), which seems to be observed in the breach at present. It is equally imperative that a proposal advocated by the Senior Advocate and eminent jurist Fali Nariman, that decisions of two-judge Division Benches not be considered law for the purpose of Article 141 of the Constitution, be given serious consideration. The effect of such a proposal is that a decision by a twojudge Bench of the court binds the parties before the case but does not become a precedent that must be followed. This proposal can be built upon by clarifying that decisions by two-judge Benches can be cited later, have persuasive value and can be used by the Supreme Court to dismiss an SLP at the outset but will not bind future courts. Further, this will apply only prospectively, thereby not affecting existing twojudge decisions that have been cited and relied upon as settled law. In addition, it will not affect the precedential value of decisions of three-judge Benches or Constitution Benches. This proposal is founded on a realistic proposition that eliminating inconsistency in an apex court as large as the Supreme Court of India is a pipe dream. Hence, it is important to focus on how best to mitigate it. Since decisions by two-judge Division Benches, though necessary in view of the sheer volume of litigation, are a key source of inconsistency in Narimans experience, their precedential value must be cautiously stripped. This has two benefitsthe first formal and the second substantive. The key formal benefit is that inconsistent decisions by two-judge Benches not being considered law brings formal certainty to the law itself. Though inconsistent decisions may still be rendered as their elimination is not a realistic possibility at this time, when they are rendered, they do not affect the certainty of the law since they do not have binding force under Article 141. Certainty, in this view, can only be the outcome of decisions by a three-judge
Bench or a Constitution Bench. These, which owing to the relative infrequency of their constitution, would be less likely to render inconsistent decisions. The substantive benefit is that such a proposal mitigates the practical problem of the Supreme Court and the High Courts having to reconcile seemingly irreconcilable precedents, as they regularly must do now. They can be free to follow either of the conflicting decisions depending on the facts of the case, or if doing so would be unjust to the litigant concerned, refer the matter to a three-judge or a Constitution Bench (if it satisfies Article 145(3)) for final disposal. This will save immense amounts of judicial time and thereby help towards the speedy disposal of cases. Of course, several drawbacks are foreseeable. It may be argued that this may increase the number of decisions that are actually contrary to each other without being considered in law to be so since two-judge decisions are not binding. It could also lead to greater judicial time being spent in cases where earlier a two-judge Bench decision would be binding precedent. Whether, on balance, these are weightier than the merits of such a proposal is a subject of further study which needs to be undertaken before such a proposal is implemented. Unlike Bunyans Waterman As the final appellate court and the highest constitutional court in India, the Supreme Court enjoys widespread respect amongst the people. It has admirably persevered to fulfil its constitutional role, laying down the law authoritatively and meting out justice to citizens who approach it. Noble tasks, however, rarely complement each other, and in this instance, too, its twin personas as a court of law and as a court of justice have often collided. Inconsistency has thus resulted as an inevitable consequence. This article has demonstrated key reasons for such inconsistency and why it affects the very foundations of the legal system in India. If these reasons are not understood and the consequences of inconsistency not viewed with the utmost seriousness, the problem could soon become unmanageable. Before that happens, it is advisable that the court itself acts swiftly to remedy the situation, so that unlike Bunyans waterman, it can look and row in the same direction. Arghya Sengupta is a Stipendiary Lecturer in Law, Pembroke College, University of Oxford, U.K., and Founder and Fellow, Vidhi Centre for Legal Policy, New Delhi.
[I would like to thank Tanmaya Mehta and Debesh Panda, Advocates, Supreme Court of India, for their inputs for the article.] References: 1. Robinson, Nick (December 14, 2012): The Indian Supreme Court by the Numbers, LGDI Working Paper No. 2012-2. 2. Seervai, H.M. (2008): Constitutional Law of India (4th edition, New Delhi: Universal Law Publishing). 3. Chowdhury, Rishad Ahmed (2012): Missing the Wood for the Trees: The Unseen Crisis in the Supreme Court, NUJS Law Review, 5, page 351.
Age, seniority, diversity ABHINAV CHANDRACHUD Criteria that were never conceived in the Constituent Assembly now determine who gets to sit on Indias apex court. Each of these unwritten qualifications, age, seniority, and diversity, is problematic in its present form.
Broadly speaking, Indias Constitution provides that there are three categories of individuals considered eligible to be appointed judges of the Supreme Court High Court judges with five years experience, High Court lawyers with 10 years experience, and distinguished jurists, that is, well-regarded law professors. An outsider reading Indias Constitution might mistakenly guess that the court has historically had a healthy mix of judges from each of these three categories. However, the recruitment of judges to the court between 1950 and 2012 tells us that words written down in a constitution rarely reflect reality. Over the past 60 years, the qualifications necessary to be appointed to the Supreme Court of India have silently changed though the law on the books remains the same. Consider that no full-time law professor has ever been appointed to the Supreme Court. Distinguished jurists could not be appointed to the Federal Court of India under the Government of India Act of 1935, but, inspired by the United States Supreme Court and the International Court of Justice, the framers of the Constitution wanted the Supreme Court of India to have at least one jurist of great reputation on it.
However, though some of the courts judges have gone on to write reputable doctrinal treatises on law over the years, no full-time legal scholar has ever made it to the Supreme Court. Further, between 1950 and 2012, only four lawyers (S.M. Sikri, S.C. Roy, Kuldip Singh, Santosh Hegde) were directly appointed to the court, one in each decade barring the 1950s and the 2000s. In short, despite the fact that Indias Constitution permits three categories of individuals to be appointed to the courtjudges, lawyers, and academicsonly one of these categories, High Court judges, has any significance. Then again, despite what the Constitution says, being a High Court judge with five years experience is no longer enough. A High Court judge now has to accumulate three baseline qualifications before he can be considered eligible for elevation to the Supreme Courtage, seniority, and diversity. The first of these is that a person cannot be below the age of 55 when he is appointed to the Supreme Court. This was not the rule in the 1950s, 1960s or 1970s, but since the 1980s, no judge has been appointed to the Supreme Court of India before reaching the age of 55. This is no coincidence but a consciously followed, unwritten rule. Interestingly, at the time of the framing of the Constitution, some external commentators had suggested that only those above the age of 55 should be appointed to the Supreme Court, but this suggestion was expressly rejected by the constitutional adviser to the Constituent Assembly of India, B.N. Rau, who said that it would prevent the President from appointing a person of outstanding merit to the court if he was under 55. The ostensible purpose of the age rule is to ensure that judges appointed to the Supreme Court are sufficiently mature for their office, which is a little far-fetched. After all, the great M.C. Chagla was only in his forties when he became the first Indian Chief Justice of the Bombay High Court, and he was anything but immature. Going by the age rule, even Barack Obama would not be considered mature enough. Since all Supreme Court judges retire at the age of 65, the age rule ensures that the maximum tenure that any judge on the court can have is 10 years, though most tend to serve on the court for much less time. On average, the Indian Supreme Court judge serves in office for approximately five yearsan incredibly short length of time when compared with other systems. The U.S. is a bad point of comparison because its judges have life tenure and serve in office for overwhelmingly long periods of time, but consider that countries such as Germany and South Africa require their judges to serve in office for a fixed non-renewable term of about 12 yearsmore than twice the average tenure in
India. The short tenure of the Indian Supreme Court judge has far-reaching policy implications for the country. Since the law is not an autonomous body of neutral principles, and doctrines change according to the individual value choices of different judges, the Supreme Court of India may articulate rules less consistently or predictably on account of the revolving door nature of its judgeships. The short tenure on the court can also affect the quality of its judicial candidates, making a Supreme Court judgeship seem less attractive for top-ranking senior lawyers who would rather continue their lucrative careers into their seventies and eighties. The next unwritten rule is that a person will only be considered eligible for appointment to the Supreme Court if he is a High Court Chief Justice or, in exceptionally rare cases, a very senior High Court judge. Again, like the age rule, the High Court Chief Justice rule is of relatively recent vintage. Approximately 88 per cent of the judges appointed to the court in the last decade were former High Court Chief Justicesoverwhelmingly higher than in any previous decade. (The rest were either acting High Court Chief Justices, or senior High Court judges on the verge of being appointed High Court Chief Justices.) One of the benefits of picking a Supreme Court judge from amongst a pool of existing High Court Chief Justices is that these judges are tried and tested: their capability as judges can be objectively measured, their ethics and integrity may be known, they may already have been investigated by intelligence agencies, and they have considerable experience in deciding cases. However, this policy is also deeply problematic. Amongst other things, the post of High Court Chief Justice, which was once considered by some to be more prestigious than even a Supreme Court judgeship, may be reduced to the status of a temporary pit stop on the journey to the Supreme Court. The High Courts of India stand to lose if their Chief Justiceships are seen as having merely instrumental, rather than intrinsic, value. The final unwritten rule is that judges on the Supreme Court must reflect Indias regional and demographic diversity. Not more than two (or in rare cases, three) judges belonging to the same High Court serve on the Supreme Court of India at the same time. What this means is that if there are three judges from, say, the Karnataka High Court serving on the Supreme Court at one time, a fourth Karnataka High Court judge will not be considered eligible for appointment to the court no matter how exceptionally qualified a candidate she may be. The Supreme Court has grown more geographically inclusive with every passing decade, though a large share of its seats now go to Delhi, which is not even a State. Delhi gets a minuscule share of seats in Parliament, so the cynic
might ask: why does it get a share equivalent to (or sometimes higher than) the almighty States of Maharashtra, Tamil Nadu and Uttar Pradesh on the Supreme Court of India? The intuitive answer is that the Delhi High Court is now one of Indias premier High Courts, and Delhi itself is one of Indias busiest commercial centres. However, the cynic could always argue that Delhi gets such a high share of seats on the Supreme Court because its judges are most geographically proximate to (and therefore visible to) the Supreme Court collegium. In theory, ensuring diversity on a court is a laudable aiminclusive courts are considered more legitimate the world over. For example, diversity in some form has always been an important criterion in the judicial appointments process for the U.S. Supreme Court, though race and gender are now considered more important than region and religion. However, in India, on account of the obsession with preserving a regional balance on the Supreme Court, not enough of an effort is made to appoint judges with other claims to diversityreligion, caste, and gender. Amongst 189 judges appointed to the court between 1950 and 2009, only three were women. Amongst approximately 50 judges appointed to the court between 2000 and 2009, only two were Muslim. Judges from backward castes have only made it to the court since the 1980s, and in small numbers. It is puzzling why regional diversity matters more than gender, religion, and caste in the Supreme Court appointments process. In short, criteria which were never conceived in the Constituent Assembly of India now determine who gets to sit on Indias most powerful court. Each of these unwritten qualificationsage, seniority, and diversityis problematic in its present form. A 50-year-old judge can hardly be termed immature on account of his age, and High Court Chief Justices should not be the sole legitimate claimants to Supreme Court judgeships. Further, though the court is geographically diverse, ironically, its members still come from an overwhelmingly homogeneous professional backgroundall of them have spent a vast portion of their careers as High Court judges. Of course, these unwritten qualifications do not guarantee a Supreme Court appointment; they only make a candidate eligible to be considered for it. In other words, unwritten rules have replaced a portion of the text of Indias Constitution and now inhabit its shadows. Abhinav Chandrachud is a doctoral student at Stanford Law School, U.S.
Misunderstood relationship SIDHARTH CHAUHAN As far as substantive criticism of decisions is concerned, there ought to be no restraints on commentary, whether in the news media or elsewhere. All citizens should be free to comment on them. RAJEEV BHATT
SENIOR COUNSEL MUKUL ROHTAGI addressing the media about the deferment of the hearing of the Babri Masjid-Ram Janmabhoomi case before the Supreme Court, in New Delhi on September 23, 2010. With their presumptive eagerness to cast legalese into newsworthy material, journalists who report ongoing litigation are often seen as a cause of irritation and distrust by the primary participants in the legal system. Judges and lawyers are known to repeatedly chastise the press for problems such as undue sensationalism and inaccurate reporting in matters concerning the law. The decisions made in cases that attract a lot of visibility do have a bearing on public confidence in the judicial system. This flows from the expressive value of conducting litigious proceedings and arriving at decisions in a manner that can be readily understood by citizens at large. At the same time, it must be borne in mind that the requirements of open justice do not extend to blind reliance on the transient positions of the numerical majority. The judicial process is consciously designed to filter out emotive and impulsive considerations that often prevail in the metaphorical court of public opinion.
In spite of this, judges may unintentionally play to the gallery on account of increased sensitivity to issues that attract more discussion in news forums, be they in the print, broadcast or digital medium. This can be observed in numerous functions such as the amount of time spent by judges in preparing for oral hearings, time allowed for oral arguments, the quality of the questions posed to the lawyers, the depth of the deliberations amongst the judges in a Bench and, most tellingly, the manner in which orders and judgments are written. Such prioritisation is at least partly, if not significantly, shaped by what sitting judges see, hear and read in the news media, in relation to both the substance of a controversy and the description of their own involvement. In the context of the Supreme Court of India, an open acknowledgment of this symbiotic relationship with the press can provide a better understanding of why and how the justices often prioritise one case over another, especially given the limited time and resources at their disposal for handling a multitude of freshly instituted cases every week. However, one can sense some discomfort with this realist view, especially in light of a judgment that was pronounced by a Constitution Bench of the apex court last year (see order in Sahara India Real Estate Corp. Ltd & Ors vs Securities and Exchange Board of India, pronounced on September 11, 2012, by the then Chief Justice of India S.H. Kapadia). The origins of the case lay in a dispute where a particular investment scheme floated by a private firm was under the scanner of the securities regulator. The firm alleged that its business reputation was seriously damaged after a news story carried on a television channel disclosed the contents of a letter that it had sent to the regulator. The grievance was that unchecked reporting or commentary on a sub judice matter (that is, a case pending for adjudication) was likely to cause prejudice in the minds of the adjudicators. This grievance was the point of entry into a much broader attempt to frame guidelines for the reporting of legal proceedings. Framed as a balancing act between press freedom and the integrity of judicial proceedings, the judgment crafted a new remedy wherein litigants can seek postponement of the publication of news coverage relating to their cases. While explicitly acknowledging this as an act of judicial lawmaking, it was prescribed that litigants who apprehended a substantial risk of prejudice in ongoing trials could approach the respective High Courts by way of filing writ petitions to seek such postponement. The duration and form of enforcing this postponement would then be decided by the High Court, effectively empowering litigants in lower courts to seek temporary gag orders. The declaration of this remedy rested on the reasoning that the freedom of speech and expression enumerated in Article 19(1)(a) of the Constitution is
not absolute and must yield to the rights of litigants to receive a fair trial, the latter being derived from the open-textured protection for life and liberty enumerated in Article 21. This judgment has been criticised as an exercise in judicial overreach, given that it imports a remedy that appears in the Contempt of Courts Act, 1981, of the United Kingdom and has no textual basis in Indian law. The assumption in the judgment was that uncontrolled reporting of court proceedings frequently hurts the litigants expectation of fair adjudication, thereby warranting the use of the law of contempt against erring news providers. In that sense, the new remedy of allowing litigants to seek postponement orders was described as a preventive measure that would help reporters avoid such harsh measures. This line of reasoning is not just baffling; it also appears to be circular. The judgment made the leap towards a prophylactic measure even though the perceived cause of the harm that was sought to be avoided, namely prejudicial reporting, had not been sufficiently demonstrated. Stated in more general terms, should we make a blanket assumption that judges will necessarily make bad decisions if there is intrusive, excessive or inaccurate reporting about ongoing or pending matters? Given that the apex court was considering general prescriptions, we can surmise that special attention was reserved for those suspected or accused of having committed violent crimes, especially since their identification in the press and the publication of stories recounting the details of their alleged actions are more likely to vitiate the presumption of innocence. The need to prevent a trial by the media from playing on the mind of a trial judge is on a higher footing in criminal cases since the liberty of the accused is at stake. However, attempts to regulate the reporting of what happens in criminal proceedings can also be easily undone since journalists can gather information from the investigators, witnesses and other interested parties outside the courtroom. Reports and commentaries can be framed so as to avoid direct discussions of courtroom proceedings and yet disclose information that might lead to assumptions of guilt and undeserved social stigmatisation of the accused. It is difficult to buy the claim that this newly announced remedy will generate marginal gains over and above the interests that have already been protected under existing statutory provisions. For example, trial judges can order in-camera proceedings to protect the privacy of litigants, especially in cases involving matrimonial disputes, sexual offences and the rights of minors. This power was prominently used in the ongoing trial of the accused in the Delhi gang-rape incident of December 16, 2012. The members of the press have by and large cooperated with the trial judge to respect the privacy of the deceased victims immediate family. The relocation of an ongoing proceeding is
another device that is available to neutralise the effect of prejudicial reporting on the adjudicator and the risk of physical harm to unpopular defendants. Apart from prejudicial reporting, there is also the problem of statements made by lawyers and judges being misrepresented or quoted out of context. In some cases, inaccuracies in reporting can either feed into or escalate into unsubstantiated criticisms directed against judges and their decisions. Very often, selective quotations of statements made or questions asked in an argumentative capacity inside the courtroom are conflated with the final disposition of the case. Undeniably, uninformed reporting of this kind can portray the judicial process in a poor light. This begs the question of whether courts should insist on some entry-level qualifications for legal correspondents. One can readily anticipate the objection that journalism does not necessarily require previous training or expertise in the subject matter that is being reported or commented upon. The Supreme Court, acting in its administrative capacity, has already prescribed a bachelors degree in law coupled with seven years of experience in covering lower courts as requirements for accrediting correspondents. Those who are accredited are given the daily-cause lists in advance so as to help them keep track of the concurrent proceedings before the multiple Benches. Despite such filters, justices routinely make observations about how their own statements are either misunderstood or selectively quoted. In respect of substantive judgments rendered after lengthy hearings, this problem has been curtailed to a large extent since the text of the decisions is made available on the Internet through the Judgment Information System (JUDIS). Furthermore, substantive judgments are published periodically by way of official and commercially run law reports. As suggested elsewhere, errors or inconsistencies in the reporting of substantive judgments can be minimised by publishing court-approved summaries that clarify the legal propositions for a general readership. Lack of reliable records However, oral arguments by lawyers and questions asked by justices during preliminary hearings in particular are prone to misquotation in the press, sometimes even by seasoned hands. Much of this gap in translation arises owing to the lack of reliable records of the entirety of the proceedings. On Mondays and Fridays, the various Benches of the Supreme Court hear preliminary arguments on whether the cases before them should be admitted for a substantive hearing on the merits of a case. Given the large number of
cases processed by each Bench, these proceedings tend to be hurried and the exchanges between the Bench and the respective lawyers are usually quite short. In most of these preliminary hearings, it is difficult for anyone else in the courtroom to even comprehend the facts of a case, let alone form an authoritative opinion on the merits of the same. As Nicholas Robinsons study on the Supreme Courts caseload has shown, a fairly large proportion of cases are either dismissed in limine (that is, without statement of reasons) or with short orders passed after the preliminary hearings. The official records compiled by the court staff are limited to the disposition of the case or short orders, thereby leaving only journalists with a keen sense of hearing and prompt note-taking abilities able to record the entirety of what is said inside the courtroom. The more resourceful reporters cultivate connections with lawyers so as to gather the relevant information from them outside the courtroom. This is at best a piecemeal solution since many lawyers are understandably reluctant to share the content of their pleadings before the final disposition of a case. DANISH SIDDIQUI / REUTERS
SAHARA GROUP CHAIRMAN SUBRATA ROY. The firm alleged that its business reputation was seriously damaged after a news story carried on a television channel disclosed the contents of a letter it had sent to the regulator. The assumption in the apex court judgment was that uncontrolled reporting of court proceedings frequently hurts the litigant's expectation of fair adjudication. A far more effective means of preventing inaccurate reporting would be that of
comprehensive and reliable record-keeping of the proceedings in court. This can be easily achieved through audio-visual recording of the proceedings or at least the recording of the oral utterances. While the suggestion for courtauthorised recording may face the familiar obstacle of budgetary limitations, one can make a limited case to allow interested parties of all kinds, be they lawyers, litigants, journalists or even a casual visitor, to record the proceedings on their own. However, this suggestion appears to be contentious if we take note of an instance that took place in the Delhi High Court on March 15 where a judge refused permission for a litigant who wanted to record proceedings inside the courtroom. In fact, a lower court had rejected a similar request from the litigant before he approached the High Court in appeal. The judges reluctance led to an unruly exchange in the courtroom and might have undermined the litigants credibility for future engagement with the same issue. Nevertheless, the concern raised is valid. A comprehensive record of the oral utterances in courtrooms is likely to improve the quality of court reporting and the performance of the judges themselves. If authenticated recordings are made available to sitting judges, they can be useful for revisiting the oral arguments and thereby improving the quality of both the subsequent deliberations among the members of the Bench and the eventual writing of judicial opinions. Given that there is a strong emphasis on oral arguments in Indian courts when compared with their Western counterparts which place more importance on written briefs, the gains from recording the former will be considerable since written briefs frequently do not capture the nuances of a case with the same depth. In the alternative, permitting interested parties to record proceedings in their private capacity will also generate noticeable gains, principally that of improving public confidence in the courts. As far as substantive criticism of decisions is concerned, there ought to be no restraints on commentary, whether in the news media or elsewhere. Judicial opinions become a matter of public record, and all citizens should be free to comment on them irrespective of their lack of training or proximity to legal practice. Should there be errors in reporting, pointed clarifications can be issued. As pointed out earlier, lawyers, litigants and other interested parties frequently use the press to draw attention to contentious issues and the merits of the case for their respective sides. Whether such attention forms part of a credible feedback loop for the judges is a subject of deep disagreement. It is still not too late for sitting justices to recognise the role of legal journalists as important contributors in our justice delivery system.
Sidharth Chauhan has previously clerked in the Supreme Court of India, New Delhi, and taught at the National Law School of India University, Bangalore.
High-stakes race RAVI SHARMA The Congress enjoys a slight edge in the fragmented political landscape of Karnataka, where the May 5 Assembly elections are expected to throw up some surprises. V. SREENIVASA MURTHY
Supporters of ticket aspirants demonstrate in front of the Karnataka Pradesh Congress Committee office in Bangalore on April 2. A SERIOUS phase of political uncertainty grips Karnataka as it gets ready for elections to the 224-seat State Assembly on May 5. The main contenders for power, the ruling Bharatiya Janata Party (BJP), the Congress and the Janata Dal (Secular), and the fledgling Karnataka Janatha Paksha (KJP), launched in December by former BJP leader and Chief Minister B.S. Yeddyurappa, have their own sets of worries. Yet, it must be said that the Congress is by far better placed than its political rivals to get a fair share of the seats though it is not likely to hit the magic figure of 113. With the Lok Sabha elections less than a year away and elections to the Madhya Pradesh, Rajasthan, Delhi and Chhattisgarh Assemblies coming up by the year end, the Congress expects the Karnataka results to be the forerunner of good tidings. Not only will a good showing in Karnataka help the party make up for the anti-Congress mood prevalent in
many parts of the country but, more importantly, it will help propel the grand old party towards a third consecutive run at the helm of the country. The Congress stands to benefit from the absence of any real political wave in Karnataka; besides, the rampant corruption that has beset the United Progressive Alliance (UPA) government led by it at the Centre is not likely to be a determiner of electoral outcome here. According to political pundits, the Karnataka elections will be determined by factors such as local influences, the candidates capability to deliver, the stability of the government promised, and, more than anything else, money power and caste identities. Predicting the results of an Assembly election in India can be tricky business even for the most wizened journalist, political analyst or psephologist. But as campaigning hits the ground in Karnataka, one can say with finality that the incumbent BJP will not secure the largest number of seats. That honour will most likely go to the Congress, whose managers have been heartened by the partys showing in the March 7 urban local body (ULB) elections. The Congress won 1,960 of the 4,952 wards and emerged as the single largest party in 69 of the 207 ULBs. SHAILENDRA BHOJAK/PTI
AT A BJP RALLY on April 8 in Bangalore, (from right) State unit president Prahlad Joshi, Chief Minister Jagadish Shettar and former Chief Minister M. Sadananda Gowda.
However, depending on the number of seats short of a majority, the Congress will have to bank on independents, or even the JD(S) or the KJP, for support to form the government. But such support, as was amply demonstrated by the JD(S) in 2004 and 2006 (when the party formed coalition government with the Congress and the BJP respectively), will come with some pitfalls. Neither the KJP nor the JD(S) led by H.D. Deve Gowda and his son H.D. Kumaraswamy will be willing to be bought off cheaply. The price they will demand is power far in excess of the seats they win. But first, the Congress managers have to complete the onerous task of seat distribution. Tricky at most times, the task has become even more so since the party, thanks to it being the pre-election favourite, has become a lightning conductor for power-hungry aspirants whose only aim is to be with the winner. Although the Congress has unusually taken the lead in announcing the names of short-listed candidates, there has been much heartburning and melodrama, with hopefuls and their supporters storming the party office. There was also the sorry spectacle of a disappointed ticket aspirant immolating himself. A senior Congress leader told Frontline that ticket distribution became further complicated because the Karnataka Pradesh Congress Committee president G. Parameshwar asked each ticket seeker to pay Rs.10,000 towards the party fund. When the ticket for sale issue was taken to the Karnataka High Court, Parameshwar explained to the media that it was only a processing fee. But far more problematic than the legal implications of this fee collection is the fact that the Congress, having received over 2,200 applications, had to perforce disappoint more than 1,900 aspirants. Many of them, with political and financial clout, have turned rebels. A senior party functionary explained: In order to find good, winnable candidates, we had asked for reports from block- and district-level Congress committees. We had also sent observers. When this was being done, there was no justification for asking aspirants to file applications. Applicants who have not secured a seat are now causing problems. Loyalty, a cherished value in the party, is long gone. Today, power is the only criterion. Most of my fellow applicants lack principles and values. Having been denied the ticket, they have started working against the party. Another factor causing stress for the Congress is the numerous chief ministerial aspirants. Siddaramaiah, M. Veerappa Moily, Mallikarjuna Kharge, N. Dharam Singh, and R.V. Deshpande are all in the race. However, one of them explained, the Congress does not recognise anyone as its chief ministerial candidate before the elections. Several Congressmen, notably
Siddaramaiah (Leader of the Opposition in the Legislative Assembly), C.M. Ibrahim and B.L. Shankar, who crossed over to the party from the JD(S) a few years ago, are still viewed as outsiders. It is to be seen how the party high command handles this issue. BJPS TROUBLES The BJP has more troubles than the number of spines on a prickly pear. By declaring that Chief Minister Jagadish Shettar will lead the party campaign, the high command may have solved one prickly issue. But incumbency brings its own set of problems. Party bosses grappling issues relating to ticket distribution (most of the sitting legislators, including the three MLAs who were caught watching pornographic clips in the Assembly, have been renominated) have realised party discipline cannot be imposed through old-fashioned bullying or by invoking ideology. Money and caste are what count.
KJP PRESIDENT B.S. Yeddyurappa addressing a public gathering in Devarahipparagi constituency in Bijapur district on April 8. The saffron party prided itself on being a party with a difference when it came to power in May 2008, winning 110 seats, largely benefiting from an electorate that wanted stability after two failed coalitions and a wave of sympathy for the BJPs then poster boy, Yeddyurappa, who was denied his turn to be the Chief Minister for the remaining 20 months of the JD(S)-BJP coalition government. It even had visions of making Karnataka its political springboard to conquer the south, but the dream turned sour. After all, the electoral victory in Karnataka was the first ever for the party in a southern State. But
the BJPs Pandoras box was ever ready to throw up some of the worst possible scandals and controversies. The BJPs script went wrong right at the beginning. Led by Yeddyurappa, it emerged as the single largest party in the 2008 elections. But through the infamous Operation Lotus, the party lured Congress, JD(S) and a few independent legislators into its fold to form the government. The partys overwhelming dependence on and patronage of the Bellary iron ore mining mafia led by G. Janardhana Reddy, his two brothers and some of his associates kicked up another controversy. Janardhana Reddy, who was a Minister in the Yeddyurappa Cabinet, is the key accused in the case of financial wrongdoings by his Obulapuram Mining Company and has been in the custody of the Central Bureau of Investigation since September 2011. Yeddyurappa was himself indicted by the then Karnataka Lok Ayukta, N. Santosh Hegde, in July 2011 in the illegal mining scandal, which is alleged to have caused a Rs.25,000-crore loss to the exchequer. This forced a prevaricating BJP leadership to finally remove him from office. But the damage to the partys image had been done. Yeddyurappas reign was known for internecine battles, nepotism, caste politics and sex scandals. Yeddyurappas hand-picked successor D.V. Sadananda Gowda, a Vokkaliga, took over in August 2011, but his tenure lasted hardly a year. He walked the tightrope between the wishes of strongman Yeddyurappa, the BJPs central leadership, and factions within the State unit. In July 2012, he was replaced by Shettar, who like, Yeddyurappa, is a Lingayat, as the party did not want to displease a politically, economically and numerically strong community. Agreeing that combating the disastrous 3Dsdissidence, desertions and deceit had distracted the BJP from providing good governance, Sadananda Gowda opined that it was good that the blackmailers (in an obvious reference to Yeddyurappa) had left the party. The party has coined a new slogan, Development is the aimBJP is the way, and has vowed not to abandon its Hindutva ideology. The BJP is trying hard to give its political fortunes a boost by wooing back urban voters (the party failed to provide infrastructure or adequate civic amenities in the cities and towns) and holding on to the Lingayats, a community that is predominant in 96 constituencies in the northern districts. But the BJP will have to contend with the KJP. Though regional parties have never fared well in Karnataka (even political giants such as D. Devaraj Urs, R. Gundu Rao, Ramakrishna Hegde and S. Bangarappa were rejected by the
electorate), the KJP, which is contesting around 175 seats, will in all probability eat into the BJPs vote. According to party supporters, the KJP hopes to win around 30 seats in the Lingayat-dominated constituencies. We know that we will not get a majority, and neither will the BJP. Besides destroying the BJPs chances, we also aim at ensuring that the Congress does not get more than 100 seats. They will then be forced to seek our support or that of the JD(S), a party leader said. The JD(S) draws most of its support from the old Mysore area. But the party, which is seen more as a Deve Gowda family business with six of his kin in the fray, will be happy to better its 2008 tally of 28 seats. Faulty seat distribution by the Congress will certainly help the JD(S). Another outfit in the fray is a party that claims to belong to poor workers and peasants (Badavara Shramikara Raitara Congress), founded by B. Sriramulu, who was a business associate of Janardhana Reddy and was Health Minister in the Yeddyurappa government. Seat-sharing talks between the outfit and the JD(S) failed. The party will be lucky if it wins a handful of seats.
Soaring assets ELECTIONS are expensive business, but not too weighty a challenge for the well-off legislators of Karnataka. This is what an analysis, done by Karnataka Election Watch (KEW), of the affidavits filed by Ministers and Members of the Legislative Assembly (MLAs) in the southern States before the Election Commission of India has found. According to KEW, which is a citizen-led, non-political, non-partisan NGO hoping to improve democracy, the average assets of Karnatakas MLAs (on the basis of the affidavits they filed during the 2008 elections) are worth Rs.5.98 crore, the highest among the four southern States. The average assets of legislators from Tamil Nadu (as per the 2011 affidavits) are worth Rs.3.98 crore, Andhra Pradesh (2009) Rs.3.78 crore, and Kerala (2011) Rs.1.43 crore. Interestingly, the average assets of Karnatakas MLAs show a quantum jump from the 2004 figure of Rs.1.29 crore (which is based on the affidavits filed by 186 of the 224 MLAs during the 2004 elections). KEW, which analysed the affidavits of 24 of the 27 Cabinet Ministers, including the Chief Minister, pointed out that the average assets of a Minister in Karnataka were worth Rs.6.96 crore, recording a growth of 665 per cent over the previous (2004) Assembly elections, when they were only Rs.91 lakh. While KEW estimates that parties and candidates will spend anywhere between Rs.6,000 crore and Rs.7,000 crore in the forthcoming elections, political analysts aver that each candidate from the main political outfits will be required to spend between Rs.5 crore and Rs.25 crore, depending on factors such as the geographic location and spread of the constituency, and the candidates popularity and financial wherewithal. Ravi Sharma
Landmark verdict V. VENKATESAN The Supreme Courts ruling against Novartis patent claim for the cancer drug Glivec paves the way for generic drug companies to keep crucial, life-saving drugs affordable to the common people. AMIT DAVE/REUTERS
BUYING GLIVEC at a pharmacy in a government-run hospital in Ahmedabad on April 2. IN their 112-page judgment delivered on April 1, Justice Aftab Alam and Justice Ranjana Prakash Desai of the Supreme Court began with a simple proposition: in order to understand what the law really is, it is essential to know the why and the how of the law. In seeking to resolve the question whether the anti-cancer drug Glivec qualifies as an invention justifying Novartis claim for a patent under the Indian Patents Act, the Aftab AlamRanjana Prakash Desai Bench enquired into why the law is what it is and how it came to be in its present form. This journey into the history and philosophy of patent legislation in the country enabled the Bench to note clearly the thin dividing line between patent and monopoly and what a blurring of this distinction could mean to making life-saving drugs affordable to patients suffering from serious ailments across the world. The Bench concluded that Glivec was not an invention and that Novartis had failed to prove its claims over its patentability. The facts of the case were simple enough: Novartis, the appellant, challenged the June 26, 2009, order of the Intellectual Property Appellate Board (IPAB)
rejecting its claim of a patent over Glivec. Natco Pharma Ltd, a generic drug company, and the Cancer Patients Aid Association (CPAA), a nongovernmental organisation (NGO), had also challenged portions of the IPAB order that had favoured Novartis. The IPAB, while holding that Glivec was not patentable, however, found that Novartis invention satisfied the tests of novelty and non-obviousness. Right at the outset, the Supreme Court was conscious of the broad framework of the debate before it. The court believed that it had to strike a balance between the need to promote research and development in science and technology and the need to keep private monopoly (called an aberration under our constitutional scheme) at a minimum. Indias obligation to faithfully comply with its commitments under international treaties had to be met without compromising the responsibility to protect Indias status as the pharmacy of the worlda compliment to Indias emergence as a major supplier of affordable generic medicines to countries that lack the capacity and resources to produce the drugs or pay the high prices demanded by those claiming patents. The court clearly understood that an error of judgment would put life-saving drugs beyond the reach of ordinary people not only in India but also in many developing and underdeveloped countries dependent on generic drugs from India. But these broader, altruistic considerations could not have determined the outcome of the case as they could be construed as extralegal issues. Therefore, the Bench plunged into the crux of the case before it. The Bench acknowledged that the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, which came into force on January 1, 1995, had led to the concern that patent protection given to pharmaceutical and agriculturalchemical products might have the effect of putting life-saving medicines beyond the reach of a very large section of people. Therefore, the Bench sought to know how the Indian Parliament addressed this concern while harmonising the patent law in the country with the provisions of the TRIPS Agreement, and how India strove to balance its obligations under the international treaty and its commitment to protect and promote public health considerations. Amending the Patents Act in 2005 to allow for grant of product patents for pharmaceutical and agricultural chemical substances was the one final step needed to make the law compliant with the mandate of TRIPS. This was achieved through the Patents (Amendment) Ordinance, 2004, as the government was under pressure to meet the deadline of January 1, 2005, to
avoid retaliatory action under the World Trade Organisation (WTO) disputes mechanism. Having availed itself of the entire 10-year transition period provided under the TRIPS Agreement, India had no legal basis to defend its default on the deadline. The ordinance had to be replaced by an Act of Parliament before it lapsed on March 31, 2005. The Supreme Court noted that under the twin pressures of time and anxiety to safeguard public health objectives, Parliament was called upon to deliberate over the amendments required in the patent law to make it fully compliant with the TRIPS Agreement. The Bench observed: The Bill [to replace the ordinance] evoked a highly insightful and informed debate [in Parliament] on the subject. To anyone going through the debate on the Bill, Parliament would appear keenly alive to national interests, human rights considerations and the role of India as the producer and supplier of drugs to different parts of the world where impoverished humanity is critically in need of those drugs at cheap and affordable prices. Some of the very important amendments that were incorporated in the Bill related to Section 2(1) (ja) and Section 3(d), and the insertion of the provision for pre-grant opposition to the grant of a patent. Section 2(1) (ja) defines inventive step to mean a feature of an invention that involves technical advance as compared to the existing knowledge, or having economic significance, or both, which makes the invention not obvious to a person skilled in the art. Something may be an invention as the term is generally understood and yet it may not qualify as an invention for the purposes of the Act. Further, something may even qualify as an invention as defined under the Act, and yet may be denied a patent because of other, larger, considerations as may be stipulated in the Act. MANISH SWARUP/AP
ANAND GROVER, a lawyer for the Cancer Patients Aid Association, who led the legal fight against Novartis, shows a package of the generic drug made by an Indian company, at a press conference in New Delhi on April 1. A month's supply of this drug costs $175 whereas Novartis' drug would cost $2,600. Section 3 explains what are not inventions. Section 3(d) says the following are not inventions within the meaning of the Patents Act: the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Section 3(d) is followed by an Explanation which says: For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy. According to a scholar, this efficacy clause has been borrowed from a directive of the European Parliament relating to the drug regulation of medicinal products for human use. The provision is also traced to a class of patents, known as selection patents in English jurisprudence, according to which patent protection is granted only to those members of the class that can demonstrate a new use or form. The Bench took note of the introduction of subtle changes in these provisions, and the addition of the Explanation through the 2005 amendment as proof of Parliaments intention to set up a second tier of qualifying standards for chemical substances/pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds. Evergreening Evergreening is a term used to label practices wherein a trifling change is made to an existing product and claimed as a new invention. The coverage/protection afforded by the alleged new invention is then used to extend the patentees exclusive rights over the product, preventing competition. Section 3(d) aims to prevent evergreening. The Bench refused to accept the view of Novartis counsel that Section 3(d) is
ex majore cautela (out of abundant caution). This submission, the Bench said, completely missed the vital distinction between the concepts of invention and patentabilitya distinction that was at the heart of the Patents Act as it was framed in 1970, and which is reinforced by the 2005 amendment in Section 3(d). The Bench observed that the amendment in Section 3(d) was the only provision cited by the government to allay the fears of the opposition members concerning the abuses to which a product patent in medicines may be vulnerable. Section 3(d) represents patentability, a concept distinct and separate from invention, as defined under Section 2. Put in this legislative context, the Bench went on to examine the merits of Novartis application for a patent for imatinib mesylate, which is marketed under the name of Glivec. In the face of the material before it, the Bench was completely unable to see how imatinib mesylate could be said to be a new product having come into being through an invention that has a feature that involves technical advance over the existing knowledge. The Bench found that imatinib mesylate is a known substance from the Zimmermann patent (a U.S. patent application granted in 1996). Novartis too had always maintained that imatinib mesylate was fully part of the Zimmermann patent and did not call for any separate patent. In view of this, the Bench added that its pharmacological properties were also known in the Zimmermann patent. Therefore, imatinib mesylate did not pass the test of invention under the Patents Act, the Bench held. It also held that the beta crystalline form of imatinib mesylate was a new form of a known substance, that is, imatinib mesylate, the efficacy of which was well known. The Bench drew attention to Novartis patent application, which had made a clear and unambiguous averment that all the therapeutic qualities of the beta crystalline form of imatinib mesylate were also possessed by imatinib in free base. Since all the pharmacological properties of the beta crystalline form of imatinib mesylate are equally possessed by imatinib in free base form or its salt, the question of the subject product, Glivec, having any enhanced efficacy over the known substance did not arise, the Bench opined. Novartis argued before the court that in terms of invention, the beta crystalline form of imatinib mesylate was two stages removed from imatinib in free base form. The Bench, however, pointed out that this position was not
reflected in the patent application, in which all the references were only to imatinib in free base form. Therefore, the court inferred that the beta crystalline form of imatinib mesylate was derived directly from imatinib free base. The Bench also held that the mere change of form, with properties inherent to that form, would not qualify as enhancement of efficacy of a known substance. Thus, it held that the physical-chemical properties of the beta crystalline form of imatinib mesylate could not even be taken into account for the purpose of the test of Section 3(d) of the Act since these properties had nothing to do with therapeutic efficacy. While concluding that the beta crystalline form of imatinib mesylate did not pass the test of Section 3(d) of the Act, the Bench made it clear that the provision did not bar patent protection for all incremental inventions of chemical and pharmaceutical substances. Misleading application The court questioned Novartis duplicity in applying for a patent for imatinib mesylate in beta crystalline form, whereas Glivec as sold in the United States and in India did not refer to this form. Novartis had obtained a patent on Glivec in 1993 for the amorphous molecule of imatinib mesylate. The beta variant of the molecule is already present in this amorphous salt. India did not recognise this patent as at that time product patents were not in vogue. Novartis used the transition to product patents in 2005 to apply for a patent for the beta variety. It argued that since the beta variant was better absorbed in the body, it constituted therapeutic efficacy under Section 3(d). The Bench said: The case of the appellant appears in rather poor light and the claim for patent for beta crystalline form of imatinib mesylate would only appear as an attempt to obtain patent for imatinib mesylate, which would otherwise not be permissible in this country. The Bench observed in a footnote: Here it will be unfair not to state that in course of hearing of the case when the court expressed its bewilderment over the price of the drug, it was strenuously stated on behalf of the appellant (Novartis) that they also ran a huge charitable programme under which the drug was supplied free to the needy persons. However, to the question by the court why the appellant could not abolish the charitable programme and at the same time bring down the price of the drug so as the total revenue from the sale of the drug remains the same as it is with the abnormally high price and
the charitable programme, no satisfactory answer was provided on behalf of the appellant. Imatinib mesylate helps in the treatment of chronic myeloid leukaemia, a form of blood cancer. According to a study, it controls the cellular action that allows the cancer to grow but does not cure the disease. It has been patented in many countries by Novartis, which has, therefore, questioned the merits of the Supreme Courts judgment. It has been reported that Novartis currently sells Glivec for Rs.4,115 a tablet, while Resonance, an Indian generic drug company, sells it for Rs.30 a tablet. Novartis had secured exclusive marketing rights (EMR) in 2003 to market Glivec, and this was challenged by the companies selling its generic variety at much cheaper rates. Healthy precedent Frontlines comprehensive coverage of the issue in its May 4, 2012, edition had brought out how Indias ability to produce and market life-saving drugs at affordable prices faced a stiff challenge from some global pharmaceutical companies fighting to prolong their patent monopolies beyond the mandatory 20-year period. The Novartis case in the Supreme Court marked such a challenge, which has been decisively resolved in favour of the legislative intention behind the 2005 Patents Act amendments. Observers expect the judgment to benefit not just cancer patients but others suffering from serious ailments such as HIV, diabetes and hepatitis. The ruling may well set a healthy precedent for the remaining legal battles between generic manufacturers and fraudulent patent seekers.
Cloud in the sun JOHN CHERIAN The Korean peninsula is on the boil again following North Koreas nuclear test earlier this year and the month-long, unusually threatening U.S.-South Korean military exercises. KCNA VIA KNS/AFP
Soldiers of the Korean People's Army training at an undisclosed place in North Korea. EVER since the end of the Korean War in 1953, the Korean peninsula has been a source of serious military tensions that have impacted on the international community. The war, which pitted North Korea, then backed by the Communist bloc, against South Korea, supported by the United States, ended in a stalemate, with the Korean nation remaining divided along the 38th parallel. The war, for that matter, is not even officially over as the U.S. has only agreed to an armistice, which is only a temporary agreement for the cessation of hostilities. When the armistice agreement was signed, all the sides involved pledged that a peace treaty that would lead to a final, peaceful settlement and reunification of the divided country would soon follow. Successive U.S. administrations, however, have been consistently refusing to sign a peace treaty with North Korea, or the Democratic Peoples Republic of Korea (DPRK). The North has been demanding for the past 60 years an end to the U.S. military presence in South Korea and the annual joint military exercises the U.S. conducts on the Korean peninsula. The U.S. has anything between 25,000 and 40,000 troops
on the peninsula. There are many other U.S. military bases near the Korean peninsula, bristling with nuclear weaponry.
This year, the month-long U.S.-South Korean military exercises have been more threatening than usual, with the Americans deploying nuclear-capable B2 Stealth bombers near the border with the North. The scale of military exercises has dramatically increased since the death of Kim Jong-il and the assumption of the top post by his son. The exercises, code-named Key Resolve Foal Eagle, which started in late March, have come in the wake of the nuclear and missile tests conducted by the North. Before the joint exercises with South Korea, the U.S. conducted exercises with another of its close allies in the region, Japan. The new right-wing Prime Minister of Japan, Shinzo Abe, is using the alleged threat from North Korea to officially give up Japans pacifist policies, which it adopted after its defeat in the Second World War. Using the recent developments as a pretext, there is increasing clamour in Tokyo and Seoul for building a national nuclear deterrent of their own. South Korea had in fact started secretly preparing for a nuclear bomb in the early 1970s until it was arm-twisted by the U.S. into giving up the project. The South at the same time keeps its military budget relatively low in comparison with the strength of its buoyant economy. South Korea prefers to let the U.S. play the role of its protector, while focussing mainly on economic growth. South Koreas economy is booming in comparison to that of the North, which
now has to mainly depend on China for trade and aid. The other long-standing demand of the DPRK was the holding of direct talks with the U.S. to defuse the tensions on the peninsula and hasten the goal of Korean unification. Washington has refused to countenance these demands though there were signs of a rethink during the last months of the Clinton administration. President Bill Clinton despatched his Secretary of State, Madeleine Albright, to Pyongyang to kick-start talks with the North. Both sides seemed to be on the verge of starting a dialogue, but the change of guard in the White House in 2001 brought the situation to square one. After the events of 9/11, President George W. Bush put North Korea, along with Iraq and Iran, in his axis of evil, thus readying the countries for regime change. Bush vowed to squeeze North Korea with every financial sanction possible until the economy collapsed. President Barack Obama is continuing with the same policies.
Sunshine policy But there was a silver lining as far as the North was concerned as the government in the South adhered to the sunshine policy that was ushered in by President Kim Dae-jung in 1998. President Kim, known as Koreas Mandela, was a recipient of the Nobel Peace Prize. The sunshine policy encouraged political and economic engagement with the North, which since the 1990s had been on an economic downturn due to a variety of factors,
including a cycle of droughts and floods. The collapse of the Soviet bloc, North Koreas traditional trading partner, was also an important factor. The scrapping of the sunshine policy in 2008 after the right-wing leader Lee Myung-bak came to power significantly contributed to the growing military tensions in the region. In the elections this year, another right-wing candidate, Park Geun-hye, narrowly won the presidency against a candidate who wanted to restart the sunshine policy. The new President is the daughter of the long-serving South Korean dictator Park Chung-hee. During his term in office from 1963-71, Gen. Park stood out for his hard-line polices towards the North and his crackdown on civil liberties internally. He is, however, credited with being the architect of the South Korean economic miracle. KCNA VIA KNS/AFP
NORTH KOREAN LEADER Kim Jong-un in discussion with officers at an operation meeting at the Supreme Command. The current escalation of hostilities in the peninsula coincided with the swearing-in of Obama for a second term as President and the inauguration of the new South Korean President. There were warning signs that things were once again heating up on the peninsula after North Korea went ahead with its successful satellite launch late last year and followed it up with a nuclear test earlier this year. In all, North Korea has conducted three nuclear tests after walking out of the Nuclear Non-Proliferation Treaty (NPT) in 2003. The first two tests were conducted in 2006 and 2009. The latest one happened after the United Nations Security Council imposed even more draconian sanctions last December on an already beleaguered North to punish it for its satellite launch. The West succeeded in characterising the launch as a disguised long-range missile test. Pyongyang said that a different yardstick was being applied to it as other nations were allowed to freely launch satellites into space for peaceful
scientific missions. The North Korean satellite was only one among the 75 satellites launched by various nations, including India, last year. India and Pakistan tested nuclear-capable ballistic missiles around the same time the North Koreans successfully launched their satellite into space. South Korea placed its own satellite in space with the help of the U.S. in January this year. The North Korean government had then said that the February nuclear test was in response to the reckless hostility of the United States. It had warned at the time that it would be left with no option but to take stronger steps if the U.S. further complicates the situation with continued hostility. An article in the U.S. journal Foreign Policy in Focus by Christine Hong and Hyun Le in February notes that it is convenient for the U.S. to characterise North Korea as the foremost security threat in the region. The authors argue that it fits in with Obamas policy in the regionthat of strategic patience on the one hand and alliance with regional hawks on the other. James Hardy, an editor with Janes Defense Weekly, wrote that the Obama administration might be using the crisis to further bolster the missile build-up in the region in step with Washingtons military pivot towards the Asia Pacific. LEE JIN-MAN/REUTERS
NORTH KOREAN WORKERS at a shoe factory run by South Koreans in Kaesong, North Korea. A 2007 picture. The new leadership in the North, led by the young Kim Jong-un, apparently feels that the only avenue open to bring the West to the negotiating table is by increasing its belligerent rhetoric. Stratfor, a news network having close links with the American intelligence community, observed: Much of North
Koreas behaviour can be considered rhetorical, but it is still unclear how far Pyongyang is willing to go if it is still cannot force negotiations through belligerence. In the first week of April, North Korea warned that it had issued clearance for the use of smarter, lighter and diversified nuclear weapons in case of an attack on its territory. Before that, Pyongyang had announced that it would be restarting its plutonium reactor at Nyongbyon. The reactor was voluntarily shut down in 2007 after the U.S. and South Korea promised to supply electricity and build two new reactors under international safeguards. The promises were never kept. The central committee of the ruling Workers Party recently announced that North Koreas nuclear weapons were a treasure that would not be bartered away for billions of dollars. The U.S. has been demanding that North Korea give up its nuclear weapons as a precondition for talks. The Obama administration knows fully well that there is little likelihood that the North will exceed its rhetoric, but is taking no chances. All the same it is becoming clear that Washington wants to take some time off from the ongoing exercise in sabre-rattling. The Cuban leader Fidel Castro, in his Reflections published in early April, provided some friendly advice to the North Korean leadership. He said the crisis enveloping the Korean peninsula was the most serious one since the Cuban nuclear crisis of 1962, which almost unleashed a holocaust. Now that the country [North Korea] has demonstrated its technical and scientific achievements, we remind her of her duties to the countries that have been her good friends, and it would be unjust to forget that such a war would particularly affect more than 70 per cent of the planet, cautioned Castro. The Cuban leader also had words of advice for the U.S. President about the dangers of playing nuclear roulette. If a conflict of that nature should break out there, the government of Barack Obama in his second mandate would be buried in a deluge of images which would present him as the most sinister character in the history of the United States. The duty of avoiding war is also his and that of the people of the United States, he wrote. In a significant move, the U.S. announced on April 7 that it was postponing the testing of a Minuteman 111 Intercontinental Missile. The missile was scheduled to be launched in the second week of April from a military base in California. The decision came shortly after the North Korean government said that it had moved two medium-range missiles to a location on the countrys east coast. An unnamed U.S. official told the media that the postponement of the test was
done to avoid any misperception or miscalculation. The official said that it was a logical, prudent and responsible action to take while insisting that the proposed long-range missile test was unconnected to the escalating crisis on the Korean peninsula. Senior U.S. officials have told the American media that the Obama administration, while trying to maintain military pressure on Pyongyang, is also trying to create a more advantageous scenario for talks to end the current crisis. In early April, the North Korean government told foreign diplomats stationed in its capital that it could not guarantee their safety until such time as the U.S.-South Korean military exercises continued. The exercise will go on for most of April. Pyongyang fears that the military exercises are a prelude to a full-scale military attack. The Wall Street Journal has reported that the Pentagons Pacific Command had approved a detailed plan to ratchet up tensions with the North during the war games conducted with the South Korean Army. The U.S. Stealth and B-52 bombers made mock bombing raids in broad daylight near the border with the North. Experts have described this kind of a military exercise as sub critical warfare. Much of the North was carpet-bombed by the U.S. during the Korean War. In the last week of March, Pyongyang cut its military hotline with Seoul, which it had maintained to keep abreast of military movements of their respective armies along the border. Before that, it had renounced the 1953 armistice agreement and declared that it was in a state of war with the South. In the first week of April, the North closed its doors to South Korean workers employed in the Kaesong Industrial Complex, run by Korean conglomerates inside the North. The crisis has already started taking a toll on South Koreas economy. Its capital, Seoul, is only 50 km from the demilitarised zone dividing the two countries and would be devastated in case of an armed conflict. South Korea and the U.S. have now reached a new agreement whereby the U.S. will have operational control of the South Korean army if war breaks out. After the invasion of Iraq and of Libya, the North Koreans may be justified in thinking that they are next on the American hit list. At this juncture, the North Korean leadership must be feeling more isolated than ever. China, its strongest ally, voted with the U.S. to impose additional sanctions on North Korea after the satellite launch last year. China has, however, been consistently advocating the resumption of the six-party talks that were last held in 2008 and has voiced its disagreement on additional sanctions being imposed on the country. On April 6, Chinese Foreign Minister Wang Yi said that Beijing was opposed to
provocative words and actions from any party and that it would not allow trouble-making on its doorstep. He stressed that the only way to resolve the situation was through dialogue. The Obama administration is so far holding out against the resumption of the dialogue process. Senior U.S. officials keep saying that bad behaviour should not be rewarded.
Promoting war JOHN CHERIAN The violence in Syria escalates to a new high as the United States and its Western allies airlift lethal weaponry to the rebels.
THE MONTH OF MARCH WITNESSED A DEADLY SPIKE IN violence in the Syrian conflict. It was fuelled to a large extent by a surge in the weaponry supplied by the West to rebel factions operating inside Syria and along its borders with Jordan and Turkey. President Barack Obama still insists that the United States is only supplying non-lethal aid to the Syrian rebels despite ample evidence being available since the beginning of the conflict that the West has been arming and training many of the rebels with the help of its allies in the region. The New York Times reported in late March that Turkey, Saudi Arabia and Qatar had sharply increased their military aid to the Syrian rebels, with significant help from the American Central Intelligence Agency (CIA). According to the newspaper, more than 160 military cargo planes, overflowing with lethal weaponry, had landed in Turkey and Jordan. Officially, the U.S. has only committed to non-lethal military assistance worth $60 million to the Syrian opposition. The CIA, according to multiple sources, helped in the sourcing and procuring of
the weaponry from countries like Croatia. The arms from Croatia being used by the rebel groups inside Syria include portable M79 Osa rocket launchers and RBG-6 grenade launchers capable of piercing tank armour. The governments backing the rebels are desperately hoping that the huge influx of new weaponry will act as a game changer and pave the way for a regime change in Damascus. The New York Times report said that the CIA was directing the flow of weapons to rebel groups it favoured in the ongoing conflict, which has entered its third year. The Obama administration favours the National Council of the Syrian Revolution. This group has nominated Ghassan Hitto as its candidate for Prime Minister. Hitto is an American citizen and is adamantly opposed to holding talks with the government. Moaz alKhatib, the National Council President, resigned in March. He had expressed a willingness to hold talks with the government. A conservative estimate of the payload of these flights would be 3,500 tonnes of military equipment, estimates Hugh Griffiths of the Stockholm International Peace Research Institute (SIPRI), which monitors the illicit transfer of arms. The intensity and frequency of these flights are suggestive of a well-planned and coordinated clandestine military logistics operation, Griffiths told The New York Times. The former CIA chief, David Petraeus, according to informed sources quoted in the newspaper, had played a key role in the organisation of the clandestine network supplying weapons to the rebel groups, which have been responsible for horrendous acts of terrorist violence inside Syria. Last year, Western governments blamed the Syrian government for the massacre in Houla that claimed the lives of over 90 people and were quick to expel the Syrian envoys from their capitals. It was later conclusively proved that the rebels were responsible for the killings.
An unnamed Arab official told the media that the arms airlift had been doubled in March so as to put in motion a master plan to seize Damascus. The rebels have been increasingly targeting civilian areas in the Syrian capital with mortar fire. It is the continuing supply of weapons and funds that has motivated the disparate rebel groups to keep on fighting. Otherwise, they would have been defeated a long time ago and spared the Syrian populace unnecessary chaos and suffering. Even key elements within the rebel groups want to have a negotiated settlement with the government to end the bloody conflict that has already claimed thousands of lives and made many Syrians flee their homeland. Community under threat The Christian community, numbering around two million, is among the most affected. They have been selectively victimised by the Salafist factions among the rebels, who are doing most of the fighting. There is growing fear that they will meet the same fate as their religionists in neighbouring Iraq. Most Iraqi Christians, who constituted around 5 per cent of the population before the American invasion, have fled the country. The so-called Free Syrian Army, or rebels, or whatever you choose to call them in the West, emptied the city of Christians, and very soon there will be no Christians left in the country, a refugee from the town of Rasel-Eyn, which was briefly overrun by the rebels, told a Swedish journalist, Nuti Kino. Kinos visit was sponsored by a Swedish charity. He filed a report, Between the Barbed Wires, based on hundreds of interviews with refugees.
MUHAMMED MUHEISEN/AP
DAMAGED BUILDINGS in Aleppo. Most recently, there was a chemical attack on a government-controlled suburb in Aleppo, and the Damascus University too was targeted when students were in attendance. Sixteen Syrian soldiers were killed in the chemical attack, along with 11 civilians. Syria wasted no time in calling for a United Nations inquiry into the use of chemical weapons by the rebel groups supported by the West. The Syrian military has said that the weapons that the rebels fired contained chlorine. The Army has blamed the jehadist Al Nusra Front for the chemical attack, the first serious one of its kind in the ongoing conflict. The rebels have now come out with the incredulous claim that the Syrian Army accidentally bombed itself with chemical weapons. The Obama administration has been repeatedly warning Syria that there will be severe consequences if it crosses the red line of using chemical weapons. After the Aleppo incident, senior Obama administration officials accused the Syrian government of not securing its chemical weapons. In other words, Washington was blaming Damascus for allowing the rebels to use chemical weapons on its territory. President Obama again warned Syria on the use of chemical weapons, saying that he was deeply sceptical about claims that it was the rebels who had used them. The mortar attack on the Damascus University cafeteria killed 15 students. Again, the rebels claimed with a straight face that it was the government that was responsible for bombing the prestigious centre of learning located in the heart of the capital. The U.S. has, of course, refused to condemn the serial terror attacks. In February, Washington blocked a Russian-sponsored U.N. Security Council resolution condemning the multiple terror attacks that had taken place in Damascus that month. The Russian Foreign Minister, Sergei Lavrov, had strongly condemned the U.S. vote in the Security Council. We believe these are double standards
and see in it a very dangerous tendency by our American colleagues to depart from the fundamental principle of unconditional condemnation of any terrorist act a principle which assures the unity of the international community in the fight against terrorism, Lavrov told the media. While Turkey is openly assisting the rebel groups, Syrias other neighbour, Jordan, is professing to play a neutral role while actually lending a helping hand to those opposed to the government in Damascus. Syrian officials have warned the Jordanian authorities that they are playing with fire by allowing the U.S. and its allies to train and arm opposition fighters on its territory. Syrias official daily newspaper Al Thawra, in an editorial, accused the Jordanian government of adopting a policy of ambiguity by publicly calling for a political settlement of the crisis while at the same time training the rebel forces. There are more than a thousand militias fighting inside Syria. The biggest groups are the Al Qaeda-linked Al Nusra and the Syrian Islamist Front led by Salafists. Israel, which has been illegally occupying Syrian territory and which has always viewed Syria as its major foe in the region, has also got into the act. As some Syrian opposition leaders started expressing a desire for a dialogue with the Syrian government, the Israeli government saw fit to order a bombing raid on a Damascus suburb in late January. The Israeli army has since been intermittently lobbing artillery shells across the border as Syrian security forces battle rebel groups. There are reports in the Western media that Israel wants to create a 20-km buffer zone along its border with Syria, using the ongoing crisis as a pretext. A former Mossad chief, Efraim Helavy, admitted in an article that the crisis in Syria had created a third option to rid the world of the Iranian menace. Helavy argued that a regime change in Syria would radically alter the entire balance of forces in the region in favour of Israel and the West. The former Israeli Military Intelligence Chief, Major General Amos Yadlin, described the Syrian Army as the most significant one along the countrys border. He observed that its ability to confront Israel is declining by the day as it is wearing itself down in the struggle to preserve Syrias national integrity. This is a positive development from both the military and political aspects. The radical anti-Israel axis that goes through Tehran, Damascus, Beirut and Gaza is falling apart, said Yadlin. Apparently, it is not only Israel that is interested in undermining the axis of resistance, comprising Syria, Iran and the Hizbollah. The Arab League, which is supposed to be representative of all Arab nations, took the unilateral and unprecedented step of giving Syrias seat in the organisation to the opposition. The move was initiated by Qatar, one of the main sponsors of the opposition,
despite the objections of many leading Arab League members such as Algeria. Syria was suspended from the Arab League in 2011 under pressure from the Gulf monarchies, which today effectively bankroll and run the organisation. The Arab League lacks legitimacy. It is a League that represents the Arab states, not the Arab people, so it cant grant or retract legitimacy, Syrian President Bashar al-Assad told a Turkish newspaper. The Russian Foreign Minister said that the Arab League had in effect voted against a peaceful resolution to the conflict in Syria. A huge question emerges as regards the mandate of Lakhdar Brahmi, who until the summit was the U.N. and Arab League representative for promoting and developing contacts between the government and the opposition, Lavrov said. He said that it would now be difficult to consider Brahmi the representative of the Arab League anymore. Bouthaina Shaaban, the political and media adviser to Assad, who was in New Delhi in March, also questioned the bona fides of the Arab League. She reminded the media about the dubious role the organisation had played in covering up the report presented by General Mohammad al-Dabi, head of its observer mission to Syria in 2011. The report, prepared under the auspices of the Arab League, had blamed the rebels for much of the violence. Bouthaina Shaaban also pointed out that Kofi Annan, who briefly headed the U.N. peacekeeping mission to Syria, had blamed those countries supplying arms to the rebels for fuelling the cycle of violence. President Assad, in a recent interview to a Turkish paper, said that his country was surrounded by enemies. He specifically blamed the Turkish government for supervising and vetting the terrorists who were allowed to cross into Syria. The Syrian President excluded Iraq from the list of hostile neighbours, saying that the government in Baghdad was unable to control the flow of fighters and arms across its long, porous borders. The Iraqi government has promised to introduce tougher monitoring measures to secure its border with Syria. Bouthaina Shaaban, who was in India to canvas support for Syrias position before the BRICS (Brazil, Russia, India, China, South Africa) summit in Durban, said that the rebels were unwilling to accept the Geneva Agreement between the U.S. and Russia signed in the middle of last year, which called for a negotiated settlement of the conflict. Every passing day is a tragedy for Syria. Two million Syrians have been displaced; 1,800 factories, many of them producing essential items like medicines, have been destroyed or transported to Turkey. Museums have been looted, she said. It is a war against the Syrian people and an attempt to infuse sectarian behaviour into our system, stressed Bouthaina Shaaban. According to her, the war in Syria can be stopped in one day if the U.S. cooperates with Russia in implementing the five-point
Geneva Agreement. She said that the Syrian Army remained united and strong. It will not be defeated, but at what cost! she said. She stressed that the priority was to end the fighting that had already taken a huge toll on the civilian populace.
Inside the matrix GITHA HARIHARAN Israels facts on the ground, Palestines people on the ground. GITHA HARIHARAN
ROOFTOP THOROUGHFARE for Israeli settlers in East Jerusalem. FACTS on the groundIsrael has plenty of these. In fact, the state of Israel seems to exist only to build facts on the ground, then flaunt them. This was evident the day I arrived in Tel Aviv and made my way to Occupied Ramallah. Over the days that followed, I saw and heard more of these facts in Nablus, Jerusalem, Bethlehem, Hebron; and in the villages between these cities, some of them nestling in a curve of hills.
The facts are solid. It is hard to argue with facts made of steel, concrete or stone. The Israeli settlements sit on hilltops, kings of all they survey. They are easy to identifythe prefabricated units look alike. And there are so many of them, whichever window I look out of, whichever road I take, whichever hill I climb or valley I go down, that I feel I am inside the Matrix. These units are cloning themselves like Mr Smith. The settlements eat up the land, bite after large bite. They cut into and gouge out hills; they dislocate villages that have been there as long as people can remember. They steal springs, uproot venerable olive trees. They demolish houses. They destroy the lives of the people who live there, their work, their community life, their memories of the past, their hopes for the future.
I saw these facts over and over again. Beit El, Ariel, Benyamin, Har Gilo, Alkana, Maale Adumin, Maale Lavona, more Maales than I can remember settlements with judaised names of old places, often referring to their hilltop location. GITHA HARIHARAN
ABU JAMAL SHOWS THE LAND that used to be his. In January 2013, Al-Akhbar summed up data collected by the Israeli advocacy group Peace Now on the record level of settlement expansion in the last 10 years. Benjamin Netanyahus government issued 3,148 tenders in 2012, a record for a single year. The umbrella committee of Jewish settlements in the West Bank, the Yesha council, welcomed Peace Nows findings, saying, We hope that in the years following construction data will be twice as much.
This record and reaction have to be digested along with three facts. One, international law rules settlements in occupied territory illegal; they constitute war crimes. Two, in November 2012, the United Nations voted, by more than a two-thirds majority, to recognise Palestine. Three, one month later, in one week alone, Netanyahus government pushed plans for 11,000 homes beyond the Green Line which marked Israels 1967 border. Nearly as many settler homes were approved as in the previous 10 years combined. Building plans include the last usable patch of Palestinian land east of Jerusalem, a parcel known as E1. In effect, this would bifurcate the West Bank, isolate East Jerusalem from the Palestinian territories, and enable the Israeli project of judaising Jerusalem. Not all the settlements need the expanse of hills. In Jerusalem, the strategy is to take over the city house by house. In East Jerusalem, I saw, for the first time, what rooftop colonisation looks like. If the Palestinians in the building resist intimidation or money, the Israeli settler can take over the rooftop with a prefab house, fly an Israeli flag like a signpost, and commute across rooftops made secure with Israeli guard-cabins and surveillance cameras. The rooftops have been fixed, a friend from Jerusalem told me wryly, so the settlers can walk or cycle across the rooftops without having to see an Arab.
ABU JAMAL has blocked his driveway with stones to keep settlers out. In Hebron, the settlement tactic, I was told, is slicing. I saw the old market, the commercial heart of Hebron, in shreds. The functioning part is covered with netting; the settlers above throw their refuse on this net. To one side of the market, I looked up and saw some settler children playing. One of them, a little girl with unruly curls, saw me looking. Before my lips could stretch into a smile, she turned around, bent over, pointed at her bottom mockingly. Contempt seeps easily into the cement and the blood of the settlements, even
the youngest of blood. GAUTAM BHATIA
SETTLEMENTS AND SETTLER ROADS carve up the hills and the land below. This is a view from Walajeh village. In the ghost-town part of Hebron Market, three Palestinian children sat bent over their laptops, one modem among them. I climbed the pitch-dark stairway to the houses above a sealed shop. The terrace opened onto a congested world of rooftops, cheek by jowl. I was shown the holes on the silvery water tank on the terrace; I was told they were made by the settler family next door. I was told how easy it is for settlers to walk from one rooftop to another, harass residents. Hilltops, rooftops, markets, water, land and more land have been grabbed. Israel is the only nuclear power in the region. It has the fourth strongest army in the world. It has the consistent backing of the pre-eminent military power, the United States. But still, the settlements and settlers have to be protected. Security is the most important word in Israel. So the next set of hard facts on the ground: checkpoints, watchtowers, barricades; electrified fences; loops of barbed wire; army-only roads; an entire network of roads connecting settlements, to keep settlers safe from the Palestinians who have to use bypasses, tunnels, circuitous routes that turn a 15-minute trip to an hours bumpy ride. And the Wall: a separation barrier now cuts up the West Bank, walls in more land for Israel, walls in more people in Palestine. GITHA HARIHARAN
THE "MOSES TANK" in Abu Jamal's land. He says the Israelis badger him to give them the house and the tank because they claim these form part of their history. If these are Israels facts on the ground, here are some of Palestines facts on the ground. Except these facts live and breathe because they are people on the ground. Abu Nidal. Omar. Abu Jamal. Muneer. Among many others. Abu Nidal is actually Hani Amer. But his eldest son is called Nidal, or struggle; so he is Abu, father of, Nidal. His wife is Umm Nidal. (I came across any number of Abu Nidals and Umm Nidals.) Our Abu Nidal lives in a village called Masha, except that his house is separated from the village, and the Israeli settlement nearby, by four layers of security. One of them is an electrified fence. Even in a land where barbed wire is ubiquitous, this is an eloquent sight. This is what occupation looks like. Alongside a grey concrete wall and a wire fence, there is a small openinga gate to which Abu Jamal has the key. This was not always so; he tells his visitors of the time his son, then three years old, got stuck outside until late at night. Abu Jamals family was helpless, locked in.
At the entrance of this gate, by a painted flag, there is a declaration in graffiti: this is neither Israel, says Abu Nidal, nor Palestine, nor no-mans-land. Its his. Our dignity comes from this land, he says. Abu Nidals father and grandfather were farmers. He used to be allowed to go through the Alkana settlement to his land. The permit was for three months, but there was always a run around. He never knew if it would work for three months, whether he would get it again. He wasted time and money; he felt assaulted, he says. Anyway, working the land is no longer profitable.
One afternoon, he came home to find a bulldozer at work. The workers said they were building a security fence. Abu Nidal told them: I will take this rock and smash your heads. As long as the international peace solidarity activists were there, things were okay, he says. When they were not there, the workers came back, finished the wall in a day. Part of his house was demolished. Abu Nidal refused the compensation offered for his house and land. GAUTAM BHATIA
IN THIS PHOTO from a Hebron rooftop, the roof with the holes in the water tank is Palestinian. The house above to the right is a settler's.
The barriers and fences enclose his house anyway. The actual bit of wall is only there to block his view of the valley. The wall stands ugly and grey, but there is a bird painted on it, wings open in flight. I will resist both the Israelis and the P.A. [Palestinian Authority], he says. Khalid, or Abu Jamal, lives in Lubban, a village between Ramallah and Nablus. Except his house and what remains of his fields, are cut off from the village. The settlement of Maale Livona above is a daily threat to his family. GAUTAM BHATIA
THE NETTING COVERING the old Hebron market. The settler houses are above. The house is an old one. When I admire the door, he tells me it is a replacement. The old door was beautiful but the settlers took it away. The settlers want the house and the land around it for a specific reason. To one side of the house is a small tank by what used to be a spring and a well. Many Israelis believe that Moses once washed himself in this tank. They badger me to give them the house and tank because they think it is their history, Abu Jamal says. I said I would if they gave us Jerusalem. The settlers have not given up. Once, when Abu Jamal was not home, they came down, beat up his young sons. His wife was stuck alone inside the house not knowing what to do. Abu Jamal has not given up either. He brings out papers to the land and house, neat coloured maps he must have shown many times before. He blocks the driveway with stones. He takes down the sign that this is a resort stop for Israelis every time it is put up. He has emptied the alleged Moses tank. He
grows vegetables behind his house, he cultivates what remains of his land; volunteers from Palestinian and international groups often help him do this. I admire a tree heavy with lemons. He brings us juicy pears, fat lemons, thick and succulent mint as parting presents. Deep in the old market in Hebron, past the stores sealed with iron, there is a checkpoint. Emerging from this dark checkpoint into the sunlight, the famous Ibrahami Mosque is to the left, the market to the right. Except this is a ghost market, and young Israeli guards man entry to it. The road is divided; the main thoroughfare is for settlers, leaving a narrow strip for Palestinians. This is Shuhada Street, the main street of the market. Muneer runs a shop here. Or he used to, as did his father before him. Shuhada Street was closed in 2000 and is now under the Border Security Force. Muneer has to check with the guards before his family or friends can visit. As for customersI needed three people to run a shop before, he says. Now I can run all the six open shops here myself. But I will stay. I will try to open the shop every day. He speaks quietly, with great dignity, this man. Past Muneers shop, the streets are deserted. I see a childish face peeping out at me from a balcony enclosed like a cage. We reach a turning with a road sign to stop. The young Palestinians with me say they cannot go beyond that point, but I could. I turn back. Omar lives in Walajeh, a hilly village outside Bethlehem that has been shrinking since 1948. Standing before his house, Omar indicates a hill across the Green Line: that was the village, he says, and everyone was expelled in 1948. Most went to refugee camps. Some moved to the hill we are standing on. Parts of this hill, the new Walajeh, were confiscated in 1967. Then, in 2006, Omar saw the Nakba (catastrophe) for the third time. The Wall came to Walajeh. They used 2,000 tonnes of dynamite building the wall, says Omar. They must have hoped my house would fall. Looking at the Wall, it seems to grow more forbidding by the minute. When the Wall is done with Walajeh, it will encircle the village, and there will be a gate under army control. Two per cent of the village land will be left to the villagers. The house that Omar refuses to leave will be surrounded on all sides with an electric fence five metres away. Cameras will monitor the house. The only exit, a tunnel made just for this house, is already there. It is hard to take in this one-house apartheid tunnel built at considerable cost sitting before me. Omars work permit was revoked at the checkpoint when he was on his way
home from work. The reason? Security. How will he live? We are farmers, he says. We can live simply, on small gardens. He adds, But I want everyone in the world to know thishe indicates the Wall, the tunnel, the plan of the electric fence looming before him. This is the reality of occupation. Of colonisation.
Yankee Hindutva VIJAY PRASHAD To Narendra Modis fan base among proud Hindutva supporters in the U.S., his unique combination of free-market rhetoric and cultural nationalism appears as a tonic.
NARENDRA MODI would like to journey to New Delhi on his Vikas Yatra: he wants his standards to proclaim him as the incarnation of Development and Efficiency. Unfortunately for Modi, he cannot put behind him his saffron supporters, whose eagerness for his role in the Gujarat massacres of 2002 sours Modis standing amongst liberals and the generally apolitical middle class. The most vocal of these saffron supporters are not within India. Those within, such as the Rashtriya Swayamsewak Sangh (RSS), recognise the mathematics of the Indian general election and would not like to put allies such as the Janata Dal (United) and Nitish Kumar, its Chief Minister in Bihar, in a difficult spot. In Chicago and Houston, on the other hand, Modi has a much more excitable fan basepeople like Shalabh Shalli Kumar, the nonresident Indian (NRI) businessman from Chicago who organised the yatra by three U.S. Congress members to visit Modi in March. They have no compunctions about the sentiments of Nitish Kumar. For them, self-identified as self-made Yankees and proud Hindutva supporters, Modis unique
combination of free-market rhetoric and cultural nationalism appears as a tonic. Shalli Kumar and other NRI businessmen who support Modi possess a large megaphone to exaggerate the popularity of their views. I was involved in the two campaigns against Modi in the United States: the popular groundswell to deny him his visa in February-March 2005 and the successful bid to have Financial Times revoke the 2009 Asian Personality of the Year award to him. This year, my colleagues at the University of Pennsylvania raised a ruckus when they heard that he was to speak at Wharton; the mainstream mood kicked in and the initiation was rescinded. It is certainly true that the U.S. government acted in 2005 on the initiative as well of Christian groups that had been concerned about the RSS-VHP (Vishwa Hindu Parishad) violence in the Dangs region of Gujarat, and it is also true that the U.S. government felt emboldened to act because the Bharatiya Janata Party (BJP) was no longer in power in New Delhi. But it would be a mistake to reduce the visa issue and the revocation of the prize as a signal only of U.S. government designs with the Congress-led United Progressive Alliance (UPA) government. There is a general sentiment against Modi in the Indian American community that finds his brand of politics intolerable. Amongst mainstream groups such as the Global Organisation for People of Indian Origin there is a strong view that Modi is divisive and bad for business.
The Gujarati poet Adil Mansuri (1936-2008), who lived in New Jersey, told me that amongst Gujarati Americans there is an edge of embarrassment about Modi. He was too muscular for them. The pogrom of 2002 had revealed a side of their State that they did not wish to acknowledge. Even those who held views close to the BJP did not like the exaggerations of Modi. They preferred their Hindutva genteel. Republican Indians Since 9/11, a section of the Indian American community has veered rightward, into the camp of the Republicans (as far as U.S. politics is concerned) and concomitantly into the arms of the BJP. The sentiment in this demographically small section of Indian America is that both Republicans and the BJP are programmatically opposed to Islam and that both Republicans and the BJP are in favour of untrammelled free-market policies that ignite the animal spirits of Man. Despite his own self-identification as a Reagan Democrat, Shalli Kumar is a fitting representative of this unity between Republicans and the BJP. In 2011, Kumar launched the National Indian American Coalition (NIAC) with a meeting, funded by his firm AVG Group. Kumar and some of his friends had been fervent Ronald Reagan supporters in the 1980s. His love of Reagan is so strong that Kumars India home in Bangalore is called the Rana-Reagan Palace (named for Maharana Pratap Singh and Reaganwith pictures of the two adorning the entire house, with Bhagat Singh set next to Reagan in one of the galleries). Kumars group went into hibernation for three decades and reemerged in the summer of 2010 to promote the candidacy of Nikki Haley (Republican) for the governorship of South Carolina. The NIAC has another name, Indian Americans for Freedom, which gives it its proper Republican flavour. Kumars NIAC and Indian Americans for Freedom are committed to such firm Republican nostrums as ending deficit spending, lowering taxes and strengthening immigrant laws, as well as firm BJP ideas such as Pakistansponsored terrorism and promotion of Hindu culture. AFP PHOTO/GUJARAT INFORMATION DEPARTMENT
GUJARAT CHIEF MINISTER NARENDRA MODI interacting with representatives of the U.S. Congress (from left) Aaron Schock, Cynthia Loomis and Kathy Memorris Rodgers in Gandhinagar on March 28. Kumars NIAC is part of a web of organisations set up by the overseas RSS, including groups such as the Indian Intellectuals Forum and Americans for Free Speech (which organised the pro-Modi protests at Wharton School of Business) headed by an RSS worker, Narain Kataria. As an old hand at NRI politics told me, Kumar is an active member of the Overseas Friends of the BJP and an associate of Chicagos most well-known RSS worker Bhailal Patel. Kumar shares with his brand of Republican Indians an obsessive fascination with the way the Israel lobby functions. In his remarks at a 2011 event to celebrate Nikki Haleys victory, Kumar pointed to the Jewish Americans, who he claimed had a disproportionate hold over the U.S. Congress to benefit Israel. We have about half the population of Jewish Americans, he pointed out, with even better education and economic status, but ask yourself as to how much influence do we have on national policy as compared to Jews? Since we are half, so do we carry half the clout? 25 per cent? 10 per cent? How about 1 per cent? Nobody seriously doubts that it is not even on the radar. Kumar and his friends assume that it is the Jewish American community that is responsible for Israels ability to move U.S. policy. There is no rational analysis here, with an assessment of the lingering guilt for the Holocaust, of the calculations of U.S. foreign policy in West Asia and of the power of Israel to sell itself as the only European country in the region. There is no appraisal, as well, of Indias neighbourhood, with Pakistan an essential part of the U.S. projections in the region. However much money the Republican Indians spread around Washington, India cannot have the same kind of special relationship with the U.S. as Israel does. If their mission is ill-fated from the start, it succeeds in one aspect: it allows the Republican Indians a platform to dispel
ruinous views on Islam, on India-Pakistan relations and on the economic ails of the Indian population. It also allows them to place their distant hopes on Modi, whose history emboldens them to believe that India can within their lifetimes become Americas Israel in South Asia. SHIV KUMAR PUSHPAKAR
SHALABH "SHALLI" KUMAR (FOURTH FROM RIGHT), the non-resident Indian businessman from Chicago, and Vijay Jolly (to his right), BJP convener of overseas affairs, with U.S. Congress members during their visit to Bangla Sahib gurudwara in New Delhi on April 2. Kumar and the Republican Indians are outliers in the Indian American community. In the last election, 89 per cent of Indian Americans voted for Barack Obama, the Democrat (97 per cent of Bangladeshi Americans supported Obama). Most of the analysis of the political life of Indian Americans shows that they tend to vote Democrat because they favour a robust healthcare system, more public financing for infrastructure, better education opportunities, a more just immigration system and less warfare. Most of them make their voices heard through the electoral process or through their involvement for this or that reform of the U.S. system. On the Indian side, the NIAC has pinned its hopes on Modi. Congressman Joe Walsh, supported generously by Kumar, campaigned for a U.S. visa for Modi. Hes kind of like a Tea Party free market guy in India, Walsh said in June 2012. Walshs district, the 8th in Illinois, has the highest density of Asians, including a large number of Indian Americans. A few months later, Walsh lost his reelection bid. In May, Kumar visited Modi and appraised him about the NIAC. In January 2013, U.S. Congressman Aaron Schock (Illinois) wrote a letter of congratulations to Modi on his re-election, which he read into the Congressional register. Kumar took that letter to Modi a week later,
accompanied by Vijay Jolly, the BJPs diaspora head. The visit of Schock and his fellow Republicans to Modi in March 2013 had been in the works. It was Kumars National Indian American Public Policy Institute that funded the business delegation led by Congressmen Schock, Stutzman, Loomis and Gardner (as their flyer put it), all Republicans, to visit India and share a private dinner meeting with top leadership of India including Chief Ministers Modi, Badal, Shettar and Top Leadership of BJP. The delegation came, mired itself in controversy and left. What Modi fears most is what once more came to pass: his record in the 2002 pogrom. Any discussion of the visa denial will return us to Modis actions in those fateful moments during the mass murders, and the RSS role in the Dangs killings. Modi will not be able to insulate himself so effectively from his own record. Yankee Hindutva will not have it. They want all of Modi, even the murkier parts. Vijay Prashads Uncle Swami: South Asians in America Today will be published by HarperCollins in late April 2013.
Halfway measures VENKITESH RAMAKRISHNAN RECENTLY IN BALI The Bali meeting of the High-Level Panel designated to prepare the post-2015 global framework to the MDG offers little hope of a rethink on the development paradigm.
HOW IS THE UNITED NATIONS PLANNING TO ADVANCE THE post-2015 successor development framework to the Millennium Development Goals (MDG) which sought to combat poverty in the developing world on the basis of measurable indicators and parameters? What concrete shape will this successor framework have? The last of the major, official consultative meetings of the 26-member HighLevel Panel (HLP) of eminent persons designated to prepare the post-2015 framework was held in Bali in the last week of March, and indications are that the process is largely mixed up and will need much more effort to develop tangible dimensions. Several formulations of the HLP have already been criticised by parliamentarians and civil society leaders from different countries as not being conducive to sustainable development or social justice. Many of those who have appreciated the HLPs work have qualified it by categorising it as a halfway measure that can be improved upon.
With barely two months left for the HLPco-chaired by British Prime Minister David Cameron, Liberian President Ellen Johnson Sirleaf and Indonesian President Susilo Bambang Yudhoyono, to present its report and recommendations to U.N. Secretary-General Ban Ki-moon, who in turn will present his own formulations based on them before the U.N. member states rationalising these streams will undoubtedly be laborious. Particularly so because the HLP has visions of promoting a single and coherent post-2015 development agenda that integrates economic growth, social inclusion and environmental sustainability. The Bali meet, which had participatory and parallel sessions involving parliamentarians and representatives of civil society organisations (CSOs) from different parts of the world, was indeed billed as a continuation of the HLP-led consultative processes that were held earlier in New York, London and Monrovia (Liberia). Different aspects of the MDG framework, including its eight goals, 18 targets and 48 measurable indicators, and the future trajectory it should take were discussed in the scores of plenary and thematic sessions. A two-day session prior to the HLP meet focussed specifically on Alternative Narratives, and this meeting too came up with its recommendations. Many narratives A number of civil society players, including representatives of the Global Call to Action Against Poverty (GCAP) and the Wada Na Todo Abhiyan (WNTA),
carried the eight-point Red Flag identified by a group of activists and networks who met in Bonn before the Bali meet. The issues of land grab and privatisation of water and essential services such as education and health figured prominently in these red flag issues. All this marked a higher degree of engagement with political and civil society players and this engagement was at many levels impassioned. A number of observers had pointed out even as these sessions were being held that it would be difficult to bring out a concerted and clear approach out of all this. The multidimensional responses to the HLPs Bali communique also underscore this observation. The responses have ranged from the critical to the laudatory. SONNY TUMBELAKA/AFP
HLP co-chairs Liberian President Ellen Johnson Sirleaf and Indonesian President Susilo Bambang Yudhoyono during a conference in Nusa Dua on the Bali island on March 27. Liberian President Ellen Johnson Sirleaf, also a co-chair, said all the key areas that needed progress for realising the post-2015 agenda had been realistically addressed at the meet. Thematically, the Bali meet had spelt out certain premises to advance its discussions. These included the premise to identify critical lessons learned from the MDG experiences that would accelerate the MDG achievement in the remaining years and to agree on key responsibilities. There was also the parameter seeking to identify and agree on priority issues, key principles and critical building blocks for the post-2015 development framework. More importantly, there was the premise to discuss the core elements of global partnership for development, including development financing options in the
changing international context, and identify critical actions that different actors should undertake. A point stressed in this context was that resource flows from and into developing countries should not end up damaging the economy of these countries. Along with all this, there was also the emphasis to establish a comprehensive accountability framework. It is in the evaluation based on these premises that the Bali meet has resulted in a plethora of nuanced and even contradictory responses. Those who have lauded the Bali meet and its outcome, including some members of the HLP, have termed it a watershed and an event that has concretised a vision to lay the ground for a more equitable and sustainable world. Advocates of this approach, including HLP co-chair Ellen Sirleaf, pointed out that all the five key areas that needed progress for realising the post-2015 agenda had been realistically addressed at the Bali meet. These key areas are reshaping and revitalising global governance and partnerships, protection of the global environment, sustainable production and consumption, strengthening means and implementation, and better accounting in measuring progress. Sharing responsibilities Participants and observers of the process, such as the U.K.- and Africa-based Development Initiatives, are of the view that the insistence on clearly specifying the means of implementation is a major step forward. The organisation points out that the MDGs were silent on implementation, and given the rapid growth in the number of actors involved in international development (and the resources they control), the need for agreement on responsibilities and funding is greater now than ever. A framework that specifies the means of implementation should address how responsibilities can be shared among actorspublic and private, national and internationaland should look to increase the contributions that wider resources, such as remittances and foreign direct investment, make to the post-2015 goals. It is important that this imperative is not lost as the HLP process gives way to intergovernmental processes later in 2013 and beyond, an assessment by Development Initiatives said. The HLPs communique did state that a post-2015 agenda should clearly specify the means of implementation, including financing for development. It went on to add: A greater commitment to improving and using country systems as well as the global system in this regard is particularly important. Ownership at all levels is crucial. Adequate, stable and predictable financing, as well as efficient use of resources, is required to support development. This
will require honouring international, regional, and national financing commitments, enhancing domestic resource mobilisation, and multiple complementary and innovative sources of finance such as private investment, corporate social responsibility, philanthropy, North-South, South-South and triangular cooperation, public-private partnerships, debt swaps, guarantees and market mechanisms. Particularly important will be the regulation of tax havens and illicit financial flows. Enhanced knowledge sharing, capacity building, technology transfers, data collection and trade will also be key. Red Flag issues V. SREENIVASA MURTHY
THE ALTERNATIVE NARRATIVES at Bali highlighted the "red flags" to development such as privatisation of water and essential services like education and health care. Here, a rally against privatisation of water in Bangalore in January 2012. While this, particularly the reference to illicit financial flows, is indeed a firstof-its-kind statement in the HLP process, parliamentarians and civil society organisations who raised the red flag issues demanded a more categorical assertion on private investment and public-private partnerships. Interacting with Frontline after raising the red flag issues repeatedly at the meet, Amitabh Behar, co-chair of GCAP and executive director of the National Foundation for India, said: We need to urgently address the poison threads in society. Corporate land grabs, mega-mines, unjust global trade rules, financial speculation, corruption, and the privatisation of essential social services are heightening inequalities, ruining our environment and impoverishing communities across the globe. The HLP and the U.N. Secretary-General will have to address these red flags, which also include privatisation of water and
essential services like education and health; corporate accountability; unjust global trade and governance architecture; and sources of funding for development. These fault lines and the responses of the HLP to these are going to decide the future of the post-2015 framework. A bold new narrative challenging the existing dogmatic thinking based on neoliberalism and market fundamentalism (and dependence on private sector) and these red flags is essential for making our shared commitment to human rights and planetary boundaries a reality. Corporate grab Gita Sen, Professor at the Centre for Public Policy at the Indian Institute of Management Bangalore (IIMB), who was part of several consultative sessions, evaluated the exercise to Frontline as follows: Bali was the epitome of the complex and confused state of the post-2015 development agenda process. Most people, including me, werent aware before they came to Bali just how many parallel meetings were going on, let alone how they were supposed to add up to anything. One thing was clearthe voices from South countries, whether CSOs, parliamentarians or alternative thinkers, called consistently for global justice to address the challenges of multiple and intersecting inequality, the destruction of the global and local commons, violation of human rights, the deepening crisis of survival for the poorest and most subordinate groups, and violence, including violence against women and girls. This call often seemed to fall on tin earsthe response was all too often about the potential of the private sector and public-private partnerships with very little said about regulation, transparency or accountability. The final official communique from Bali, even allowing for the blandness that is intrinsic to such documents, was disappointing. It appeared to avoid substantive content altogether, leaving all those who came to Bali to hear something tangible about the post-MDGs development agenda high and dry. Sukhjargalmaa Dugersuren, an opposition leader from Mongolia who is leading a campaign against alleged land grab by Turquoise Hill Resources, an international mining company, also argued in the discussion forums at the Bali meet for a clear stand on issues relating to privatisation and public-private partnerships. Lack of clarity on these issues would be self-defeating to the very goals of the MDG. Poverty cannot be addressed without taking a clear stance on unfair trade and corporate practices. Halfway measures are of no use in tackling these issues, Dugersuren told Frontline. Many advocates of these red flag concerns pointed out that these arguments had found reflection even among HLP members. Former German President
Horst Koehler, who is part of the HLP, had pointed out that we cannot talk about food security without regulation of financial markets... poverty without (addressing) unfair trade, peace and security without small arms control, land degradation without talking of climate. However, it is also significant that such clear formulations are not part of the official HLP documentation, pointed out Dugersuren. Neoliberal approach There is, of course, a diverse range of opinions in the HLP, ranging from Koehlers to that of Cameron, who pursues a neoliberal approach, to that of his fellow co-chair Ellen Sirleaf, whose main theme is reducing social and economic inequalities. But the most important question is about the theme that takes centre stage at the end of it all, points out Walden Bello, a member of the House of Representatives of the Philippines. In a document circulated at the Alternative Narratives meet, Bello pointed out that the pro-privatisation approach had been dominating the evaluation of the MDG too over the past few years. There appears to be a consensus among the World Bank, United Nations agencies, and key development researchers that, contrary to expectations, global poverty data show that the world has already met a United Nations goal to halve extreme poverty in the worlds poorest countries by 2015.... And there are researchers who attribute all this to the rise of globalisation, the spread of capitalism and the improving quality of economic governance.... But, Bello pointed out to Frontline, these theorists refused to look at the experiences of countries such as Venezuela, where a combination of government intervention, economic nationalism and redistributive populist policies promoted equity and expanded internal markets. This oversight is a big limitation and this is finding reflection in the MDG processes, Bello added. This stream of opinion did find reflection in the statement released after the Alternative Narratives meetings. It pointed out as follows: The discourse on a successor development framework to the MDGs is taking place at a time of profound shifts and changing dynamics. We are deeply concerned about the continuing harsh environment for sustained well-being, inclusive economic growth, social transformation, and fulfilment of human rights. The structural and systemic underpinnings of the crisis of finance, energy, food, land and water, and the resulting turbulence and uncertainties; widening global and national inequalities; a model of global economic governance that imposes excessive fiscal discipline on borrowing countries; cutbacks in public spending in areas such as health, education, water, sanitation and programmes for
social protection; and poorly regulated privatisation and public-private partnerships continue to stifle economic and human potential. According to Behar, this Alternative Narratives meeting is also a strong reminder to the HLP and the U.N. that business as usual will not work and a fundamental rethink of the developmental paradigm is a prerequisite for any legitimate global framework for post-2015. However, it is unclear as to how these concerns and pressures will reflect in the processes to finalise the HLP report and the U.N. Secretary-Generals formulation. There is also the additional factor that the HLP consultations need to be seen in conjunction with other processes on post-2015, including over 100 country consultations that address issues in different sectors relating to the MDG. Again, it is unclear whether any of the official agencies, including the Secretary-Generals office, involved in the preparation of the post-2015 agenda has a comprehensive understanding of these diverse engagements. Responding to the question where all this is headed, Gita Sen said: I am expecting a lot of lofty words in the HLPs report; but the most substantive point is likely to be about an expanded role for the private sector. This could really be an opportunity to re-balance the U.N.s excessive tilt towards the private sector in recent years without real mechanisms of accountability. Will such a rebalancing happen? David Cameron speaks about a golden thread that means for him open economies and open societies; not much there about the possible conflicts between the two. And then it will all land in the tug of war of realpolitik between countriesthe G8, the G20, the least developed, and on and on. I dont think anyone can predict whether it will add up to anything, let alone anything that will mean real development for those who need it most. Still, alternative voices have to keep trying. It will be even worse if that does not happen.
A paradise for endemic wildlife TEXT & PHOTOGRAPHS BY SUDHA MAHALINGAM A trip to the unique archipelago called Galapagos, off the west coast of Ecuador, conjures up images of the weird and wonderful world that inspired Charles Darwin.
CHARLES DARWIN, all of 22 years old in 1832, stumbled upon Galapagos Islands, partly to escape his persistent seasickness while on a five-year voyage on HMS Beagle. At the end of just five weeks stay on the islands, he collected enough specimens of both flora and fauna to come up with a path-breaking theory that would turn upside down the worlds of science and religion. At that time, Darwins theory of natural selection and evolution ruffled many feathers, elicited many jeers and earned the wrath of the Church. But since then, evidence adduced by Darwin himself and other researchers who followed in his footsteps validated beyond doubt not only the theory of natural selection but also the revolutionary theory of evolution that rocked the very foundations of Christendom inasmuch as it questioned the theory of Creation.
SEA LIONS ON Ochoa beach in San Cristobal Island.
I am on a quest to retrace Darwins footsteps, if only to gawk at all those weird and wonderful creatures that inspired Darwin. Most of them are found nowhere else on the planet except in the unique archipelago called Galapagos. Visiting Galapagos, straddled across the Equator some 950 kilometres off the west coast of Ecuador in the Pacific Ocean, entails effort, expense and time. The journey from New Delhi involves five flights and 23 hours of flying time, not including the many hours spent waiting at airports for flight connections. As if this was not daunting enough, one had to pick the right vessel that would tour a combination of islands that would offer the opportunity to see every species that inhabits this archipelago. The Galapagos administration does not allow visitors to stay on the islands. The only option is to stay on board a ship that sails to various islands. The sailing is usually at night, and the ship stops over during the day at different islands, mostly uninhabited, allowing visitors to explore the land.
LETTY, ONE OF THE YACHTS that take tourists on guided tours of Galapagos Islands. The islands can only be visited in tour groups escorted by a certified guide. Picking the right season to visit the islands is crucial if one does not want to miss the captivating courtship dance of blue-footed boobies, or the clownish vanity of the male frigate bird that puffs up its bright red neck pouch to the size of a balloon to impress the female. Even the Galapagos penguin puts in an appearance only during certain months. So, some homework is required if one is to derive the maximum benefit from this trip. The government of Ecuador regulates tourist arrivals into Galapagos and allows no more than 140,000 visitors a year. On a bright and sunny morning towards the end of January, my friend and I land in San Cristobal Island, which has a population of about 8,000. There are 10 major islands in Galapagos, of which five are inhabited. Santa Cruz is the
biggest of them all, with a population of 20,000, while Floreana has just 150 people. Galapagos has two airports, the second one at Baltra which also doubles as a fuelling station for the 65 boats that are licensed to sail in these islands. We are greeted by our naturalist guides Ivan and Orlando, who briskly shepherd our tour group of 18 through immigration and quarantine and put us on the minibus that will take us to the boat jetty on the other side of the island. Two pangas (inflatable rafts with outboard motors) are waiting to take us to Econventuras MV Letty, the vessel that will be our home for the next eight days. San Cristobals boat jetty is teeming with yachts and boats of various sizes as well as marine birdspelicans, lapwings, coots, mallards, frigates.
Kicker Rock, a rock formation that was once a single piece. Our adventure begins even before we board the pangas. There are sea lions snoozing on each step of the jetty leading to the panga. It is, after all, their territory, and they show no inclination to let us pass. Our cameras out, lenses poised, we begin clicking when something orange crawls into my viewfinder. It is the first of the many frisbee-sized sally crabs that we would encounter everywhere on the islands. The oarsmen make no move to shoo off the sea lions and we learn our first Galapagos lesson; wildlife has primacy and right of way on these islands; if they choose not to let you go, you do not go! After about 10 minutes of waiting, we move to another jetty where only two steps are occupied by sea lions. We take our chance, gingerly ease ourselves onto the far corner of the step, avoiding the flapping tail of the mermaid-like sea lion, and somehow make it to the panga with injury to neither. A short panga ride brings us to Letty, a lovely little yacht with just 10 climatecontrolled twin cabins, compact but comfortable. Our cabin on the foredeck has a large glass window that gives us a panoramic view of the deep blue ocean, decidedly an advantage when the view out of your window often presents leaping dolphins or soaring frigate birds. Ecoventura, which owns Letty, has long experience in sailing these islands and gets up-to-date information on
wildlife sightings in various islands from its identical sister yachtsEric and Flemingo. Captain Pablo keeps us informed of the latest sightings.
After a quick lunch while Letty sails away to Kicker Rock, a dramatic rock formation on the horizon, we are bundled off, wetsuits, flippers and all, into the pangas again for our first snorkel session. The sea is very rough and the panga pitches violently, especially when we near the dramatic split between the rocks. The receding tide reveals a row of barnacles clinging to the base of Kicker Rock and going all around it like a jewelled anklet. Barnacles are arthropods related to the crab and lobster family and are exclusively marine organisms. They stay permanently attached to rocks where they feed on plankton from tides washing in. Ivan informs us that Kicker Rock must have been a single rock formation, but the relentless onslaught of waves created a crack which eventually split it into two. Our panga sways in the rapids rushing through the gap, and we hang on for dear life. However, the blue-footed boobies perched on the slimy rock face above seem to have no problem dodging the powerful winds. Our first snorkel session of the trip introduces me to the magic of the underwater world, one we have known only from the images beamed on our LED/plasma screens. It is a stunning world of colourful creatures in silent communion with their surroundings. Fish come in all hues and designs painted, translucent, transparent, striped, embellished, bejewelled and decorated. Tiny salema swim companionably with much larger fish or sharks. Sting rays with their eyes set on the top of their flat faces eye us warily but
make no effort to move away. Curious fish hide in the rock crevices and check us out. An occasional turtle passes by, flippers flapping lazily. From time to time, Ivan makes deep-throated sounds through the snorkel, guiding us towards a sea lion cub or a shoal of salema that swirl to an invisible choreography. Ivan tells us that 70 per cent of the fish found in this part of the Pacific are endemic to Galapagos. He reels out names like barber fish, butterfly fish, angel fish, yellowtail surgeon fish, amberjack, skipjack, rainbow runner and barracuda, all of which appear before our eyes for a moment and vanish. Sharks also swim around us, white-tipped black creatures, with not a hint of menace. Ivan assures us that Galapagos sharks do not harm humans. There are also hammerheads in these waters, although we do not sight any. As the suns slanting beams illuminate the seabed and light up the phosphorescent colours of the fish, I regret not having brought a good underwater camera before embarking on this trip.
GIANT CACTUS AT SAN CRISTOBAL airport with a male Darwin finch feeding on the nectar. Unbeknownst to Darwin, Alfred Russell Wallace, another British naturalist, explorer and anthropologist, had independently conceived an identical theory of natural selection and evolution of species almost contemporaneously. Yet, posterity today fetes and remembers Darwin as the author of the discovery. That Wallace was generous enough to let Darwin take credit for the discovery is perhaps less well known. Darwins discovery of natural selection owes not a little to a very common bird, the Galapagos finch, which resembles the sparrow. Darwin had collected
finches from various islands in Galapagos but had failed to tag them according to their island origins. But during the journey, he found that there were minor variations in the birds, primarily in the structure of their beaks and also in their colour, and so on. On his return to England, with the help of the ornithologist John Gould, Darwin was able to classify as many as 13 species. While one had a parrot-like beak ideal for crunching nuts, another had an elongated one suited for picking insects, and a third had a beak good for grinding grain. Darwin formed the hypothesis that the variations stemmed from adaptation to the resources available on the particular island from which the species had originated. He could postulate convincingly that natural selection played a major role in determining which species would survive and which would perish and that the successful evolution of species was based on natural selection.
SNOOZING SEA LIONS at the boat jetty at San Cristobal. They have right of way. It is hardly surprising that Galapagos Islands should have played so important a role in this spectacular discovery. Formed by volcanic eruption, and detached from the mainland, which precluded any biological contamination, the islands became a living laboratory in which Darwins theories were tested and validated. Crucially, the very isolation of these islands and the absence of human contact until 500 years ago provided an environment in which wildlife could flourish unmolested. The absence of predators has virtually rendered the islands a paradise for endemic wildlife. Almost every island has at least one volcanic cone, while some have many. The soil is black and appears charred in some islands. There is an occasional smoking volcano too. While the islands today are somewhat removed from
their original pristine state as Darwin would have seen them, the Ecuador government stops at nothing to ensure that they at least retain their unique character. Limiting and strictly regulating tourism, eliminating introduced species and restoring the local environment are part of the efforts launched by Ecuador to restore Galapagos to some measure of its former wilderness.
A SEA LION with its young. The volcanic lava that clothes the islands has given rise to unique flora that can thrive on very little fresh water. The islands get only 50 to 60 mm of rainfall in a year, and water is a scarce resource found only in a few of these islands, which explains why the other islands are uninhabited. On high islands like San Cristobal, Floreana and Santa Cruz, the vegetation changes from semi-arid to surprisingly verdant forest, whereas in low islands like Baltra and Espanola, the arid zone covers the entire island. Giant cactuses are common on some islands, while others have vegetation that thrives on saline soil. Santa Cruz has Scalesia forest whose trees can trap and store water and is a habitat for eight different varieties of finches. This forest hosts orchids too. We wrap up our first day with a visit to one of the golden beaches occupied by several colonies of sea lions. They lie companionably in groups on the beach, their bodies glistening with the golden sand. Sea lions are sociable animals that usually live in assorted groups. Mothers, young adults and babies lie side by side, soaking in the sun. Mother sea lions swim out to sea only to fish, and after feeding spend the rest of the day lazing around in the beach, on the
rocks and almost everywhere. Sea lions have no legs, but only four flippers which they use to move rather clumsily, but quite swiftly. In Galapagos, sea lions are ubiquitous and numerous and can be found on every island. Sometimes, when the mother sea lion has gone fishing, the babies are left alone on the shore. Hungry, confused and lonely, the babies make plaintive noises and try to suckle any female nearby only to be rudely rebuffed. Sea lions do not indulge in foster parenting, and any baby whose mother has been killed faces certain death due to starvation and rejection. But in one of natures great wonders, even in a colony of a few hundred, the mother sea lion unerringly recognises its offspring and vice versa. The sea lions in Galapagos are now used to human visitors and ignore them most of the time. However, if one of us gets close enough, the mother might rear up and bite, inflicting a serious bacteria-infested wound that may take months to heal.
A baby sea lion waiting for its mother, at Floreana Island. On the next day, on Santa Cruz Island, walking through the same meadows that Darwin might have crossed 180 years ago, I come across the same primordial spectacle of giant tortoises lumbering up the slopes in search of water. Once ubiquitous, giant tortoises are now much fewer and even these are confined only to Santa Cruz where they number 1,500. The name Galapagos, meaning saddleback in Spanish, derives from the profusion of saddleback tortoises in the island when the Bishop of Panama landed here, quite accidentally. On a journey from Panama to Peru in 1535,
Bishop Tomas de Berlanga found himself shipwrecked on the islands which teemed with unique wildlife. His search for water on the island came to fruition when he followed the giant tortoises ambling up the slope towards a waterbody. But the poor tortoises that revealed the source of water to the early visitors to the island themselves went on to become the favourite menu on their diet. In fact, tortoise meat was considered a delicacy and was much sought after. Soon, the islands reputation for harbouring an apparently unlimited supply of giant tortoises spread and many buccaneers, whalers and pirates would stop by to pick up hundreds of tortoises and load them alive on their ships. Tortoises could live many days without food or water and provide fresh meat for the crew. No wonder then that Galapagos Islands became some sort of a free tortoise supermarket for every passing ship. Even scientists and researchers who thronged the island to carry back live tortoises for study and research ended up eating all of them, so much so that by the time they reached their destination, there was not a single specimen left! It is rumoured that Darwin himself was guilty of such gluttony, and it took many trips before a single uneaten giant tortoise reached its destination in Europe alive!
IN SAN CRISTOBAL, a Pelican at the boat jetty and (below) in flight. Today, tortoises are not only protected but also bred in captivity so that their population can be restored to the multitudes that they once were. In fact, at the Darwin Centre in Santa Cruz, there are many enclosures where tortoises are bred, each enclosure dedicated to a particular species. We see many enclosures with tortoises of different age groups, some just hatching. Lonesome George, believed to have been over 100 years old, died in 2012
and, by all indications, is sorely missed on this island. He has become the symbol of conservation in Galapagos. There are restaurants, shops, souvenirs of all kinds and posters bearing the name and photos of Lonesome George, raising him to iconic status. In fact, Lonesome George has been commercialised and immortalised at once. Conservationists hope that one day they can restore the islands to their former state where thousands of tortoises ambled everywhere and only the availability of resources would limit their numbers.
A SALLY LIGHTFOOT crab.
ONE OF LETTY'S PANGAS about to pass through the gap in Kicker Rock.
SMOOTH-BILLED ANI, an introduced species at Santa Cruz.
RODRIGO BUENDIA/AFP
LONESOME GEORGE, THE LAST KNOWN Pinta Island tortoise, at the Galapagos National Park's breeding centre in Puerto Ayora, Santa Cruz Island, in March 2009. He died on June 24, 2012. (Below) A memorial to Lonesome George at Santa Cruz.
THE SANTA CRUZ bus stop colonised by sea lions.
SCHOOLCHILDREN ON A visit to Santa Cruz.
A VISITOR IN a giant tortoise shell.
Stuff of legends VIKHAR AHMED SAYEED Van Ingen & Van Ingen of Mysore were the master taxidermists of colonial India at a time when hunting was a thriving sport, and their work was prized and sought after around the world. With the death of Edwin Joubert Van Ingen in March 2013, a fascinating saga has come to a close. PHOTO COURTESY: AJOY LOBO, BANGALORE
Edwin Joubert Van Ingenwith his hunting dogs at his bungalow in Mysore. An undated photograph from the 1980s. "When he stuffed a lion... he could make it look more terrifying than it would be in the jungle. His stuffings go all over the world. He was a master, and he taught me the art. After all, we are civilised human beings, educated and cultured, and it is up to us to prove our superiority to nature. Science conquers nature in a new way each day; why not in creation also? That's my philosophy, sir. I challenge any man to contradict me." Vasu, the taxidermist; from The Man-Eater of Malgudi by R.K. Narayan. Naval Headquarters, New Delhi To: Van Ingen and Van Ingen, Taxidermists, Mysore I received yesterday the trophies which you have been
mounting for me. I am extremely pleased with the results. The expressions on the heads of the trophies are admirable, and the `finish' leaves nothing to be desired. It is quite obvious that this is all the work of a Master. (Sd.) Admiral Charles Thomas Mark Pizey, Chief of the Naval Staff (Letter received by Messrs. Van Ingen and Van Ingen sometime between 1951 and 1955.) IN the introduction to one of his collected volumes of stories, R.K. Narayan described how, in India, the writer has only to look out of the window to pick up a character and thereby a story. The Mysore-based author must have often spotted a member of the Van Ingen family in a Willys jeep as he looked out of his window, providing inspiration for the character of Vasu, the irascible taxidermist in The Man-Eater of Malgudi. The Van Ingen family made Mysore its home in the 19th century and its members were internationally reputed taxidermists. The firm Van Ingen & Van Ingen was started by Eugene Melville Van Ingen (d. 1928) in 1912 and was managed by his sonsJohn de Wet (1902-1993), Henry Botha (1904-1996) and Edwin Joubert (1912-2013)until it shut shop in 1999. A fourth brother, Kruger, seems not to have been active in the taxidermy business. With the death of Joubert on March 12, 2013, at his home in Mysore at the age of 101, the fascinating saga of the Van Ingen taxidermists has come to an end. His death also means that a vital link with Indias wildlife history has been snapped forever as the Van Ingen factory was one of the worlds largest, if not the largest, taxidermy firms in the 20th century. Hunting and taxidermy have gone hand in hand since at least the 19th century in India when hunters wanted to remember their shikars with more than a photograph. In India, hunting is an ancient, royal tradition. Kings (and some queens) had reputations as fearless hunters, and it was a widely accepted royal pastime. The Mughal emperor Jahangir is said to have personally killed 80 tigers. ALKAZI COLLECTION OF PHOTOGRAPHY
"THEIR EXCELLENCIES LORD AND LADY CURZON with the first day's bag" from the album "Souvenir of the Visit of their Excellencies Lord and Lady Curzon to Hyderabad, Deccan". Photograph taken by Deen Dayal & Sons, 1902. The tradition continued during colonial rule. One of Indias major attractions for young British officers who spent long years away from home was big-game hunting. Through most of the 19th century and the first few decades of the 20th, the colonial government strongly encouraged hunting, as some big mammals like tigers were considered little better than vermin. According to Mahesh Rangarajan, the well-known environmental historian, rewards were paid out for the capture and killing of 80,000 tigers and 150,000 leopards between 1875 and 1920. Some people like George Yule, the fourth president of the Indian National Congress, had an astonishing tally of 400 tigers, while another Briton, Montague Gerrard, was not far behind with 227. After a successful shoot and the obligatory post-hunt photograph, the tiger, or any other large animal that was shot, was carefully skinned. The skin was then immediately dispatched to a professional taxidermist with instructions on how this most important memento should be saved for posterity. The lure of accumulating trophies that could then be shipped back home was most attractive and the theme has been immortalised by Saki (pen name of Hector Hugh Munro), the acclaimed Edwardian-era British writer. ALKAZI COLLECTION OF PHOTOGRAPHY
SIKAR PARTY AMARKANTAK 1914, from the Album "Rewa Royal House, 1883-1918". Photograph taken by J. Nath & Badri Pd. Misra. Why were the colonialists such keen hunters? Some answers are provided in The Empire of Nature: Hunting Conservation and British Imperialism, a work by the renowned historian of imperialism John M. Mackenzie. He writes that ...hunting represented a historic cultural interaction which the British were able to use to build social bridges with Indians, particularly the Indian aristocracy. They consciously sought to inherit the mantle of the Mughals through an opulent and highly visible command of the environment, as well as to establish relations with the princely states through an apparently shared enthusiasm. Another historian, Joseph Sramek, writes that ...tiger hunting was an important symbol in the construction of British imperial and masculine identities during the nineteenth century. William K. Storey, a historian who has written on the connection between big cats and imperialism, writes that ...colonial big-game hunting was an invented tradition appropriated from the original inhabitants of the colonies and reinterpreted. It articulated a language of power over restless natives... While the British were keen hunters, the native princes were not far behind in their blood lust. Mahesh Rangarajan writes in Indias Wildlife History that Sadul Singh, the Maharajah of Bikaner, shot nearly ...50,000 head of animals and a further 46,000 birds..., including 33 tigers, over a quarter-century period. His tally when it came to the majestic cat was overwhelmingly exceeded by the Nawab of Tonk, who is supposed to have shot a total of 600 tigers. Another native prince, Ramanuj Saran Singh Deo of Sarguja, is said to
have shot an astounding 2,000 leopards. Rangarajan writes that for the native princes, the killing of wild animals was a rite of passage into adulthood. An elaborate hunt organised for the benefit of a British official or a visiting dignitary by a native rajah was also often a chance for the Indian ruler to demonstrate his loyalty to the British crown. A report in Journal of the Bombay Natural History Society (Vol. 28, 1922), for example, describes in detail a hunt organised in Nepal by the Maharajah for the visiting Prince of Wales. In a space of seven days, between December 14 and 21, 1921, the Prince and his entourage were responsible for bagging 17 tigers, nine rhinoceroses, two bears and two leopards, apart from other, smaller game. VIKHAR AHMED SAYEED
A VAN INGEN ELEPHANT HEAD trophy. This is part of the Mysore Palace collection. This provides the context to the work of the Van Ingens. Hunting was widespread in India. Magazines and memoirs celebrating hunting abounded, attesting to the sports popularity. Conversations in social clubs revolved around the latest shooting expedition. The services of professional taxidermists were much sought after to fuel the demand for trophies. From the 1920s onwards, the Van Ingens in Mysore emerged as the taxidermists of choice. They were not the only taxidermists in the country but easily the largest and the most well-known. To appreciate the scale of the work done by the Van Ingens, one must turn to
a study done by P.A. Morris, a zoologist formerly at the Royal Holloway College, University of London, and the foremost authority on taxidermy in the world. According to him, the Van Ingen factory was processing 400-500 tigers annually from the 1920s to the late 1950s. Most of the tigers were processed in three basic ways: rugs, whole mounts and head or shoulder trophies. Apart from tigers, a wide variety of other animals like leopards, bears, antelopes and bison also passed through the portals of the Van Ingen factory during its heyday, well before the passage of the landmark Wildlife Conservation Act of 1972 put a stop to hunting for sport. A representative table for seven years from 1933 to 1939 should give the reader an idea of the scale of work that took place at the factory (see table). Ajoy Lobo, a family friend of Edwin Joubert Van Ingen, fished out a bulging file of yellowing brittle paper when this journalist visited his home on the outskirts of Bangalore. Even a cursory survey of this file containing the Van Ingens correspondence for the year 1941 gives one the geographical range of the firms clientele. Princes from the native states of Vizianagram, Vijaynagar, Wankaner, Manipur and Jaipur had placed orders with the Van Ingen firm. Correspondence with British military and administrative officers and civilians (doctors and tea estate owners) from Peshawar, Ahmednagar, Kirkee (Khadki), Lahore, Nagpur, Ahmedabad, Jubbulpore (Jabalpur), Mirpur Khas, Ceylon (Sri Lanka), Madurai, Cochin (Kochi), Indore, Baluchistan, Pachmarhi, Bareilly, Poona (Pune) and Bombay (Mumbai) shows how the Van Ingen firm had emerged as the leading taxidermist across British India. There were even orders from London, Sussex and New York, showing how its work was recognised beyond the subcontinent as well. VIKHAR AHMED SAYEED
A VAN INGEN STOOL made from an elephant foot. This is part of a private collection in Mysore. According to a brochure printed sometime in the 1950s, the Van Ingens counted the King of Spain, a prince of Iran, 14 Indian princes, seven Viceroys, six provincial governors, nine British peers, two admirals and several other dignitaries among their patrons. Even today, the work of the Van Ingens has tremendous cachet internationally, particularly among taxidermy aficionados. There is a firm in Perth, Australia, that calls itself Van Ingen Mysore and specialises in sourcing and selling Van Ingen products. Prominent British taxidermists also have Van Ingen products for sale. Van Ingen mounts find themselves at the pinnacle of historical taxidermy work along with the work of taxidermists like Rowland Ward. Their products are spread all over the worldin private collections, natural history museums, social clubs, and so on. One of the finest collections of Van Ingen work is, unfortunately, not available for public viewing as it lies sequestered at the Mysore Palace. A special permit is required to visit the trophy room, which has mounts and shields of several tigers in various poses, bears, lions, wild boar, elephants, assorted deer, rhinoceroses, crocodiles and leopards. There are also African animals such as giraffes and zebras. The Mysore Maharajahs were great patrons of the Van Ingens, and there is also a mount of a pet mastiff called Brumel, a favourite of Jayachamarajendra Wodeyar, the last ruler of Mysore, in the trophy room.
VIKHAR AHMED SAYEED
A VAN INGEN TIGER HEAD trophy. This is part of the Mysore Palace collection. The Regional Museum of Natural History in Mysore is another place where several Van Ingen mounts can be seen (including perhaps what could be a mount of Indias last cheetah, shot dead in 1947). John Thomas, a taxidermist at the museum, marvelled at the quality of the Van Ingen products but pointed out that their method differed slightly from that of modern taxidermists as the factory operated like an assembly line, handling hundreds of skins, whereas a contemporary taxidermist would work on one model at a time. A modern taxidermist would also prepare a mould to fit each specimen perfectly, whereas Van Ingens papier-mch manikins came in pre-fixed sizes. VIKHAR AHMED SAYEED
A DISPLAY OF THREE GAURS, or Indian bisons, with a mastiff in the foreground. The mastiff, named Brumel, was a pet of Jayachamarajendra Wodeyar, the last king of Mysore. The Mysore royalty were patrons of the Van Ingens. This is part of the Mysore Palace collection. The factorywhich employed close to 200 people during its heyday according to Kendaganna Swamy, a 70-year-old former employee of the factoryseemed to process the humungous quantities of animal skins that they were receiving from across the country by slightly tweaking the rigorous methods of modern taxidermists but they also had the advantage of experimenting with thousands of skins. The Van Ingens were also hunters themselves and often went hunting in the lush forests that surrounded Mysore. Prominent residents of Mysore have vivid memories of their encounters with the Van Ingens, particularly Edwin Joubert Van Ingen, a veteran of the Second World War, who remained sprightly until a few years before his death. Ullas Karanth, the leading tiger conservationist, remembers taking carcasses of road kills of big cats to the Van Ingen factory in the 1980s. He said: With Juberts death, we have lost the last hunter-naturalist. He was the last of his kind and it is a pity that we do not have taxidermy artists of the Van Ingen calibre anymore. Dr K. Javeed Nayeem, a writer and a practising physician based in Mysore, said: He knew a lot about animal behaviour. He loved nature and even knew when different flowers bloomed in and around Mysore. He was also a keen angler.
Output of the Van Ingen factory between 1933 and 1939. P.A. Morris said: Meeting Joubert Van Ingen was a memorable experience. Shaking his hand was like building a bridge into the past, reaching out to a major part of Indias history. Over cups of strong tea, he would tell tales of hunting and fishing, the like of which we seldom hear today. As a trained sculptor, he made a vital contribution to the excellence of Van Ingen taxidermy. VIKHAR AHMED SAYEED
ANIMAL MOUNTS done by the Van Ingens. From the Mysore Palace collection. It is hard to believe now that there was a time in the nottoo-distant past when thousands of tigers and other animals passed through the portico of the Van Ingen factory. Current estimates put the tiger population in India at fewer than 2,000. The density of the historical tiger population in India, and its furious destruction, can be gauged when we realise that more tigers were processed by the Van Ingens in a few years than the entire tiger population in
India today. Similar studies can be done for other animals as well, but efforts need to be made to professionally archive the records of Van Ingen & Van Ingen: Artists in Taxidermy. VIKHAR AHMED SAYEED
AN ESPECIALLY WELL DONE VAN INGEN TIGER mount. Part of the Mysore Palace collection.
Art and science of taxidermy PHOTO COURTESY: KENDAGANNA SWAMY, MYSORE
Anatomical sketches and notes made by Edwin Joubert Van Ingen in the 1930s. THE Van Ingens published a booklet in the 1920s with detailed instructions and explanatory figures on the correct methods of the preservation of shikar trophies in the field as a badly removed skin cannot be turned into a perfect trophy. It was a practical, field-based guide that hunters could consult after they had shot their animals. There are chapters on Skinning a Tiger, Skinning Heads, Skulls and Skeletons and Preservatives. On the skinning of a tiger, they write: Place the carcass on its back, and make an incision through the chinnot the corner of the mouthand carry it along the centre of the throat to the chest.... Then carry the incision along from the vent to tip of tail. Similar precise instructions are available for all animals, including crocodiles and snakes. P.A. Morris in his work on the Van Ingens describes their methods in detail. Once the salted skins or the masks (heads of the animals) came to the factory, which was located on a vast area on the outskirts of Mysore, lower-caste workers would cure the skin by placing it in
chrome tan. The skins would then be pared by men using their sharp knives to reduce the skin thickness as far as possible. After this treatment, the tanned skins would be transferred to the finishing area of the factory where pre-fixed moulds and manikins were available to give the desired shape to the animal. After the finishing touches were applied (whiskers, eyes, and so on) the fine mounts and trophies were despatched to different parts of the world. The Van Ingens guarded their methods carefully and were very reluctant to have outsiders present in the factory. A sculptor in Mysore, who did not want to be named, narrated a story about how he was thrown out by Joubert Van Ingen when he managed to sneak into the factory in the early 1980s. Vikhar Ahmed Sayeed
Invaluable data VIKHAR AHMED SAYEED
Bisal Munti,the disputed family bungalow of the Van Ingens. JOUBERT VAN INGENS death has led to a nasty inheritance row. At stake are the majestic family bungalow, Bisal Munti, located on a sprawling piece of land in a prime part of Mysore, a vast coffee estate in Kerala, and several animal mounts and trophies, big cat skins, ivory and assorted animal paraphernalia that the Van Ingens acquired in the almost 100-year history of their operations in Mysore. But perhaps what is most important for researchers of Indian wildlife are the priceless records they have maintained. The bungalow, where the family lived for a century, has been sealed by the Mysore Police. The remnants of the detailed records that were maintained at the factory and an impressive library on natural history have also been locked away. While Joubert has relatives in Mysore and England who are his heirs, the presence of an aide, Michael Eswar, who claims that he was adopted by the late taxidermist, has complicated matters. Krithi K. Karanth, Adjunct Professor at The Nicholas School of Environment, Duke University managed to briefly look at the Van Ingen records in 2005 while she was researching for her doctoral thesis. She said: There were 80 to 100 registers from the 1910s all the way down to the 1980s containing detailed information about Indias natural history, and the data they had was invaluable. The Indian government needs to get involved to make these records available to researchers and care needs to be taken so that they are not lost.
Vikhar Ahmed Sayeed
Failing to deliver RAVI SHARMA Indias indigenous defence research and production capabilities have not kept pace with the countrys military requirements. MANJUNATH KIRAN/AFP
Defence Minister A.K. Antonygets into the cockpit of an HAL Rudra helicopter while Chief of the Air Staff Air Chief Marshal N.A.K. Browne looks on during Aero India 2013 at the Yelahanka Air Force station in Bangalore on February 6. HAL Rudra is an armed version of the Dhruv multi-role/utility helicopter manufactured by Hindustan Aeronautics Limited. DEFENCE Minister A.K. Antony has said on numerous occasions that India still meets around 70 per cent of its military hardware and software requirements through imports. This makes India the worlds largest importer of major conventional weapons, which means it is vulnerable to supply lines being chocked at inappropriate times and arms procurement scandals (Bofors howitzer, Tatra truck, and more recently AugustaWestland VVIP helicopter) erupting occasionally. It also reflects poorly on the countrys capabilities and efforts to indigenise its military requirements. According to data released recently by the Stockholm International Peace Research Institute, India in 2008-12 accounted for 12 per cent of global arms imports, significantly ahead of second-placed China.
It is also an established fact that neither the indigenous defence research and development efforts nor the defence production capabilities despite both being around for well over half a centuryhave kept pace with the armed forces requirements, either qualitatively or quantitatively. India, unlike China, is yet to build a robust and responsive defence technology and industrial base. In the face of the allegations that Rs.362 crore was paid as kickbacks in the purchase of 12 VVIP helicopters from AugustaWestland, Antony has again asked the armed forces to ensure that military hardware imports are the last resort and not the easiest resort. He has also indicated that the government is looking to tweak its defence production and defence procurement policies so that indigenisation of military hardware can be speeded up in mission mode. K. MURALI KUMAR
A TEJAS LIGHT COMBAT AIRCRAFT takes off at its Initial Operational Clearance function in Bangalore on January 10, 2011. However, the clearance is now called a "pre-IOC", and a proper IOC is probably a year away. Antonys desire for indigenisation has been welcomed by the armed forces. In the Eleventh Plan period, the Indian Air Force (IAF) handed out 325 capital acquisition contracts worth Rs.1,52,000 crore (around $28.5 billion). Of these, 217 contracts totalling Rs.84,000 crore ($15.5 billion), a good 66 per cent, went to Indian companies. But delays and quality issues persist. Now, with all the three services buying equipment worth billions as they look to modernise and recast themselves for the 21st century, the task of indigenisation is daunting. The armed forces are overwhelmingly equipped with and dependent on platforms and systems acquired from Russia, the United Kingdom, France, Italy and now increasingly Israel and the United States. According to numerous
reports to Parliament by the Comptroller and Auditor General, a high proportion of these imported systems are frequently not serviceable, thus affecting the combat readiness of the armed forces. P.V. SIVAKUMAR
DR K. TAMILMANI, CHIEF EXECUTIVE, Centre for Military Airworthiness & Certification, and M.M. Pallam Raju , Union Minister of State for Defence, at a function in Hyderabad on November 26, 2011. Tamilmani: "We need the willingness and have to mandate ourselves that we will look to indigenise our military requirements." Defence experts also highlight the fact that even the so-called indigenously built platforms have an unacceptably high degree of imported content. The indigenously developed light combat aircraft Tejas is a prime example: the engine and the multi-mode radar are imported from the U.S. and Israel respectively. The countrys defence research establishment is represented mainly by the 50odd laboratories and other establishments of the Defence Research and Development Organisation (DRDO), with a collective budget of over Rs.10,000 crore. These and the defence industry, almost exclusively the preserve of defence public sector units (DPSUs), are strongly convinced that the armed forces will rather buy from abroad than allow them to develop, design and produce. The armed forces complain of time and cost overruns and unreal promises. The DRDO and, to a lesser extent, Hindustan Aeronautics Limited (HAL), a DPSU, complain that the armed forces have unrealistic expectations and constantly change general/air staff qualitative requirements. The armed forces counter this by saying that delayed deliveries force them to change
requirements in order to keep pace with newer technologies. During the Aero India 2013 air show in Bangalore, Antony and the Chief of the Air Staff Air Chief Marshal N.A.K. Browne criticised the DPSUs and the DRDO for their inability to deliver quality products in time. Antony singled out Indias biggest aerospace company, the HAL, and said that it must show results and that the DRDO must design products that are acceptable and meet the users requirements. Antony said: Delay in delivery is a big problem for the armed forces. The [indigenous] Light Combat Aircraft Tejas [under development by a number of DRDO laboratories and manufactured by the HAL] is yet to get its IOC-2 [initial operational clearance-2]. And the intermediate jet trainer [under development at the HAL] is delayedwe must make it a reality. Quality must also improve. A number of other indigenous projects, most notably the DRDOs Kaveri engine, Arjun tank and Airborne Early Warning and Control System, the HALs basic trainer, and the National Aerospace Laboratories Saras light transport aircraft, are long behind schedule. PTI
INDIA'S FIRST INDIGENOUS Light Combat Helicopter on its maiden flight at the HAL airport in Bangalore on May 23, 2010. Delayed deliveries are the armed forces biggest worry because they hamper operational availability and maintainability and drastically affect modernisation. Air Chief Marshal Browne, who has frequently called for restricting imports and increasing indigenous content, is of the view that penalties should be imposed on designers and production houses if they do not deliver on time. He explained: We need to get our project management right before we embark on programmes. Many of our key projects have faltered because of poor management. He spoke of a disconnect between design houses and the production agency and added that production houses must also have their own design centres so that quality specifications can be maintained. He wanted the user to be enmeshed in the project management
team and closely connected at various levels of the project in all indigenous programmes, as in the Tejas programme, where, after decades of resistance by the DRDO hierarchy, an air vice marshal was appointed Director, IAF Project Management Team, a sort of IAF pointsman for the programme. He also wanted user groups working full time at the factory level so that the users inputs and work patterns could be taken into consideration. The user would be aware of the projects progress and any delays could be immediately communicated back to service headquarters. Explained a senior military officer dealing with acquisitions: Both the HAL and the DRDO are guilty of not wanting to fix accountability and responsibility for delays. There are no realistic timelines; they promise unrealistic schedules in front of the Defence Minister and then change deadlines without the concurrence of the armed forces/customers. Under existing procedures, when the armed forces raise a statement of case for procurement of equipment or systems to maintain their operational preparedness, an exhaustive process is followed, governed by the guidelines of the defence procurement policy (DPP), which is updated and revised every few years. And the first option, rightly so, is for indigenous equipment. But service personnel closely associated with procurement procedures allege that this clause gets into a mire. Under the DPP, a requirement by any of the armed forces is first assessed by the Integrated Headquarters (IHQ), which then collectively decides the category and mode of the procurement of that specific item; whether it should be Make Indian, Buy global or Buy global and then make in India under licence. The IHQ, through the Defence Acquisition Council (DAC), then makes all possible attempts to go the indigenous way, provided the technology is available in the country. During the categorisation, the DRDO is given the first option to make a commitment and proposal if it can develop a piece of equipment or a device within the DRDO and offer it to the armed forces within the scheduled time and in the desired quality according to the specifications given by the respective service, so as to maintain or enhance operational effectiveness and capabilities. This, according to the armed forces, is where problems set in. The DRDO readily opts to make the device indigenously and grabs such development projects, but it has rarely met the production specifications in terms of quality or schedule. Hence, the services suffer as they neither possess the desired equipment nor are allowed to procure it from a foreign vendor. It is learnt that the government is thinking of amending the DPP procedures by agreeing to the armed forces long-standing request that while 40 per cent of the equipment will have to be compulsorily procured locally, 60 per cent can be bought from abroad. Explained an officer from Air Headquarters: The DRDO
gets projects in the name of indigenisation and promises to deliver irrespective of the cost, capability or state of development. And then it falters. This is hurting us. Take the case of Tejas, which has been under development by the DRDO since the 1980s. The light weight trainer made its maiden flight in January 2001, but a good dozen years later it is still to enter squadron service. There have been serious glitches like Tejas being underpowered (there is a mark 2 version being developed with a more powerful engine), the indigenous radar is years away, and many on-board systems of the fly-by-wire aircraft such as the open architecture computer (OAC), which in laymans terms are the brains of the aircraft, and the digital flight control computer (DFCC) have been found wanting in reliability. In other words, the mean time between the failure rate of the Mil (military) specification components in the OACwhich is being developed by 14 vendors, integrated by the DRDOs Aeronautical Development Agency (ADA), and produced under a transfer of technology agreement by the SLRDC (HAL Hyderabad)and the DFCC (being developed by the Aeronautical Development Establishment and produced by Bharat Electronics Limited) were too high for the IAF to accept. Components were failing primarily because of obsolescence in technology and the expiry of usable lives. The OAC itself is of 1994 vintage, and components in it have been extensively used, with many of them acquired years ago from overseas and stockpiled even while the component manufacturers themselves have closed shop. Delays in development have further accentuated the issue over reliability. Tejas is still to get its IOC, a step which means that the fighter is ready for limited service in a fighter squadron. While the IAF has termed the IOC function of January 2011, when a release to service document was handed over to Antony, a motivational IOC, the ADA has now begun calling it a preIOC. Officials on the Tejas programme confessed that an IOC was at least a year away, with the fighter having to clear more than 1,500 test points, including air-to-air refuelling, before this is achieved. This will need at least another 300 more sorties. Officials of the DRDO have their own woes. Speaking to Frontline during the Aero India 2013 air show, K. Tamilmani, Chief Executive, Centre for Military Airworthiness and Certification, a DRDO facility, said: We need the willingness and have to mandate ourselves that we will look to indigenise our military requirements. The HAL should also be prepared to invest in modern production technologies so as to produce, both in terms of quality and quantity. The
HALs slow production rate and ability to absorb technology are also areas of concern. According to Antony, the private sector also has a large role to play in the defence indigenous effort. Recently, the Ministry of Defence, acting under advice from the IAF, mandated that the aircraft to replace the 40-year vintage Avro HS-748 medium transport aircraft (used by the IAF for communications and troop movement) would be designed, developed and manufactured in the private sector. Requests for proposals (RFPs) are to be sent out shortly to a number of private sector companies, including Reliance, Tatas, Larsen & Toubro and Bharat Forge, for the manufacture of 56 aircraft in the six-toeight-tonne payload capacity, which can operate in hot, cold, saline and dry weather conditions. The chosen player will be designated the Indian Production Agency and will be allowed to choose its partner, foreign or Indian. Though thus far the response has not been very positive for the contract, which is expected to be worth around Rs.12,000 crore, Antony feels that this is the only way forward to push indigenisation. He said: The HAL is unhappy and angry about us giving the project to the private sector. But it is good for the HAL that it should have rivals and competition. At the air show, Antony repeatedly highlighted the need for the Indian private sector to play a larger role in the defence industry. But thus far, companies in the private sector have not shown the willingness to invest heavily in an industry that is capital intensive and where the returns are unsure and painfully slow. According to Air Chief Marshal Browne, the defence sector needs long-term partners with commitment from the private sector who will stay the course, avoid risk aversion, start small, and build up to tier 1 projects.
Illusory rights VENKITESH RAMAKRISHNAN AND AJOY ASHIRWAD MAHAPRASHASTA PESA, which is seen as an enabling law for tribal self-governance, is violated brazenly by both the Union government and State governments in the name of development. AP
Participants play traditional musical instruments during the march. SINCE October 2012, the Ministry of Rural Development of the United Progressive Alliance (UPA) government has apparently been engaged in an exercise to evolve a National Land Reforms Policy. Over these months, the Ministry wrote to various State governments, highlighting the importance of the initiative. In January, it also constituted a national-level Task Force on Land Reforms comprising nine official and eight non-official members. These steps were in pursuance of the October 11, 2012, agreement the Ministry had signed in Agra with the Jan Satyagraha, a movement that had launched a padayatra (foot march) demanding a comprehensive National Land Reforms Act and institutions for its effective implementation and monitoring in order to provide landless, homeless and marginalised communities access to land and livelihood resources. Ironically, while the Ministrys efforts have been continuing apace, other segments of the Union government and some State governments have actuated a number of measures that decisively undermine the initiative. These acts of sabotage are essentially related to the Panchayat (Extension to Scheduled Areas) Act (PESA), 1996, which, under the Fifth Schedule of the Constitution, seeks to enable tribal self-governance. The Agra agreement,
which virtually forms the basis of the efforts to formulate a new National Land Reforms Policy, also lays emphasis on effective implementation of PESA as a prerequisite for developing a just and balanced land rights system. However, on February 5, the Union Ministry of Environment and Forests accorded a general approval for diversion of forest land for undertaking developmental activities by the State Government Departments for the welfare of the people, under its guidelines F. No. 11-9/1998-FC (pt). The explanation of developmental activities for the welfare of the people apparently involves infrastructure projects in different sectors. Observers of tribal and environmental issues, such as E.A.S. Sarma, former Secretary to the Government of India, have pointed out that this government guideline is in clear violation of PESA and the Forest Rights Act (FRA), 2006. The FRA was enacted to recognise and vest forest rights and occupation in forest land in forest-dwelling Scheduled Tribes and other traditional forest dwellers who had been residing in such forests for generations but whose rights could not be recorded. U-turn on Governors powers A few days after the promulgation of the guideline, the Union government filed an affidavit in the Bilaspur High Court in Chhattisgarh which overturned its own earlier positions on the Fifth Schedule of the Constitution and PESA. The government, through the affidavit filed by the Additional Solicitor General, negated the discretionary powers entitled to the Governor in the Fifth Schedule. Its contention was that the Fifth Schedule was after all only a part of the Constitution and the general principle of the Governor acting only on the aid and advice of the Council of Ministers applied here too. A.M. FARUQUI
OCTOBER 3, 2012: Thousands of protesters, mostly poor farmers and
tribal people, set out from Gwalior on the Jan Satyagraha march demanding land rights. Interestingly, this also negated the opinion placed on record by former Attorneys General Goolam E. Vahnavati and Soli J. Sorabjee. Both had held that the Governor did indeed have discretionary powers under the Fifth Schedule of the Constitution. Vahanvati undertook a detailed study of the provisions of the Fifth Schedule before giving this opinion in April 2010. In fact, the position articulated by Vahanvati has been the line consistently taken by the Supreme Court since 1997, for example in Bhuri Nath and Ors vs Govt. of J&K and in the Samata case. But in one single stroke, the UPA seems to have subverted the governments own considered positions of the past. The Union governments affidavit came about in the context of a public interest petition against the Bharatiya Janata Party (BJP) government in Chhattisgarh. The State government had anointed Chief Minister Raman Singh as the Chairperson of the Tribal Advisory Council (TAC) and the petition filed by the social activist B.K. Manish had argued against this, stating that it was a violation of Para 4(2) of the Fifth Schedule, which stipulated that the TAC would advise on matters referred to it by the Governor. Clearly, both the ruling UPA and the principal opposition party, the BJP, are on the same page when it comes to undermining PESA and the Fifth Schedule. Referring to these developments, the land rights activist Ramesh Sharma, who is associated with the Ekta Parishad, stated that these manoeuvres of the countrys two principal mainstream parties pointed to an organised attempt to thwart tribal land rights in general and PESA in particular. Even at the best of times the implementation of PESA was faulty and patchy. It seems that the effort is to institutionalise its ineffectiveness. In other words, make the Act a paper tiger. This, in fact, has been an ongoing process, which has gathered increasing momentum over the past decade and a half, Sharma told Frontline. Other land rights activists and observers point out that while the Adivasis have historically depended on their traditional rights over the regions jal, jangal aur jameen (water, forests and land), indiscriminate land acquisition by different governments for multinational mining corporations in the past two decades has led to considerable displacement and exploitation of these people. The legal rights and immunity that were guaranteed to Adivasis in the Constitution were frequently bypassed or misinterpreted by various governments to suit corporate interests in the mineral-rich lands of Indian forests. While the governments have justified the acquisition of lands in the name of economic growth, the Adivasis were never made stakeholders in the
process of industrial development. Neither their participation nor their consent was sought in the rush for industrialisation, nor were they given any proper rehabilitation benefits. However, Adivasis have resisted such government and corporate initiatives and struggled to retain their rights over the natural resources. In many places, the struggles have been violent, as in the case of the Bastar region in south Chhattisgarh; in other areas, Adivasis, along with civil society groups, have tried to regain their rights by fighting militant social and legal battles and reminding the government time and again of their constitutional rights. Exploitation by States As activists like Sharma point out, it is in this context of indiscriminate land acquisitions and industrialisation that PESA has become the most violated legislation at present. The governments, both in the States and at the Centre, have exploited semantic loopholes in the Act to circumvent its provisions and deny the tribal people any sort of self-governance. And in the past few years, this has become the most important point of contestation for the tribal people in Indias hinterland. In almost all such land acquisitions in tribal areas, PESA has been violated in some way or the other. There are three important gaps that the governments exploited to bypass the Act: first, PESA is a loosely drafted Act; second, there is no overarching clause that protects it from being bypassed by the State governments; and third, the word consultation with the tribal people, as mentioned in the Act, is not clearly defined, Neelabh Dubey, an advocate in the Bilaspur High Court, told Frontline. PESA uses the word consultation with the tribal people, and the governments have used it to their own advantage by not taking the consent of the villagers concerned before any acquisition of land. Activists have pointed out several incidents where the State governments have falsely claimed that the villagers were consulted; as PESA does not require a written approval from the gram sabha, the governments are not bound to show a written statement. V.V. KRISHNAN
OCTOBER 11, 2012: Jairam Ramesh, Union Minister for Rural Development, and P.V. Rajagopal of Ekta Parishad in Agra before the Parishad and the Union Ministry of Rural Development signed the agreement on land reforms. The Jan Satyagraha march the Parishad led was called off subsequently. PESA mandates that the gram sabha or panchayats should be consulted at an appropriate level before any decision. Videh Upadhay, an advocate, points out that the governments have, however, distorted the meaning of appropriate level and have not even bothered to consult the gram sabhas and have resorted to seeking opinions only from district-level committees, most of whose representatives are stooges of one political party or the other. In many instances, the consultations for land acquisition were done with district committees 500 kilometres from the area where land had to be acquired. Such problems stem from the larger fact that PESA empowers the State governments to frame rules. PESA mandates that within a year of its promulgation, the rules for the panchayats in the Fifth Schedule areas have to be legislated keeping in mind the regional contexts. But except for Madhya Pradesh, no other State has done this. Recently, Union Rural Development Minister Jairam Ramesh, on his visit to Kalahandi, Odisha, was shocked to find out that none of the villagers knew about PESA. Odisha remains among the many States that have not framed rules for PESA even 16 years after its promulgation. That PESA offers flexibility and does not have universal rules owing to the varied conditions and contexts of every tribal area has been used by State governments to their own advantage. For example, PESA does not make it necessary for the governments to empower the panchayats with fiscal and administrative powers such as collecting taxes and fees. And this limits the autonomy of the tribal areas.
In the past few years, more than 600 villages were converted into urban panchayats as the State governments have the power to upgrade rural panchayats. Upgrading has generally been an effective tool to bypass PESA, which mandates the gram sabhas approval for land acquisition for industrial and mining projects. In most of the upgraded villages, there is a conspicuous industrial drive at present. Barring Madhya Pradesh, the States, in stark violation of Section 4(n) of PESA, have enacted laws that provide the bulk of the powers to the gram panchayat instead of the gram sabha. Panchayats, being an elected body, have also been heavily corrupted by money and muscle power. In addition to all these violations, activists have noticed that in many places, districts came up with their own rules for PESA to dilute the powers of the gram sabha. PESA was drafted in an open-ended manner to make it flexible so that its vision of guaranteeing tribal autonomy is not compromised. But the way the State governments have gone about formulating rules for it have completely violated that spirit. In a 2006 report on PESA violations, a joint effort of the Planning Commission, the Land Resources Department of the Ministry of Rural Development, and the Ministry of Panchayati Raj, a number of such violations have been reported from Raigarh, a district of Chhattisgarh. In at least four blocks of Raigarh, where there are many investment proposals, PESA has not only been bypassed but also not considered by the State government (Standing up to the state, Frontline, June 17, 2011). Because of such violations, which are in stark contrast to the spirit of PESA, more and more lands are being alienated from the tribal people, and the natural resources that they had been dependent on are being taken away from them on a daily basis. Out of the total tribal population of India, more than 40 per cent has already been displaced. This is happening when, even by government estimates, more than 60 per cent of the Adivasis are classified as living in extreme poverty with no access to land, adequate food, health facilities and education. In such circumstances, even minor violations of laws like PESA and other provisions of the Fifth Schedule have an enormous impact on them. Violations of PESA make a mockery of Indias boasts participatory democracy.
PESA and pressures MOHAMMED YOUSUF
P.V. Narasimha Rao. His government amended the Constitution to empower panchayats and municipalities. IN order to understand violations of the Panchayat (Extension to Scheduled Areas) Act, it is imperative to know its history. Most of the tribes in India are collectively identified under Article 342 (1&2) of the Constitution as Scheduled Tribes, which provided them overarching immunity to the extent of granting them the right to self-determination as guaranteed under Article 244 (Administration of Scheduled Areas and Tribal Areas) of Part X: The Scheduled and Tribal Areas. The Indian Constitution protects tribal interests through the Fifth and Sixth Schedules. While the Sixth Schedule, applicable in Assam, Meghalaya, Tripura and Mizoram, gives tribal people freedom to exercise legislative and executive powers through an autonomous regional council and an autonomous district council, the Fifth Schedule, applicable in all the other identified tribal regions, guarantees tribal autonomy and tribal rights over land through a Tribal Advisory Council in each State. With centralism in governance coming in for increasing criticism, the P.V. Narasimha Rao government in 1992 passed the 73rd and 74th Constitutional Amendment Acts, which empowered panchayats and municipalities with a vision of local self-governance. The Fifth Schedule areas, because of the constitutional immunity against overarching laws, did not fall in its domain legally. While village-level democracy became a real prospect in other areas, the Fifth Schedule areas remained bereft of that privilege. It was for this
reason that PESA was enacted under the Fifth Schedule, which extended panchayat rule to the tribal areas. The fundamental spirit of PESA is that it does not delegate powers but devolves them to the village-level gram sabhas, paving the way for participatory democracy. The Bhuria Committee in 1995 formulated a three-tier structure to extend the panchayati raj functions in the scheduled areas. The lowest but most important constituent of the structure is the village-level gram sabha, which will exercise command over natural resources, resolve disputes and manage institutions such as schools and cooperatives under it. Above it will be a gram panchayat, an elected body of representatives of each gram sabha, also to function as an appellate authority for unresolved disputes at the lower level. At the top of it will be a block- or taluk-level body. When it was enacted, PESA was seen as a legislative revolution as it empowered gram sabhas to take decisions on important and contested tribal matters such as enforcing a ban on the sale and consumption of intoxicants, ownership of minor forest produce, power to prevent alienation of land and to restore unlawfully alienated land, management of village markets, control over moneylending, an land acquisition. Along with this, it made it mandatory for all legislation in the scheduled areas to be in conformity with the customary law, social and religious practices and traditional management practices of the community. PESA comes under the Fifth Schedule, which mandates tribal advisory councils to oversee tribal affairs and also gives extrajudicial, extraconstitutional powers to the Governors of each State to intervene in matters where they see tribal autonomy being compromised. However, the councils, with the Chief Minister as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics, and its representatives hardly speak against the State governments policies. The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters. Tribal activists have constantly complained that there is not even a single instance where the Governors have responded to their petitions for interventions in threatening crises, such as deepening clashes over land, mining or police excesses. Even if one were to expect proactive intervention from the Centre, PESA would get entangled in bureaucratic shackles. Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have overlapping influence on the implementation of PESA and they function almost without any coordination.
Ajoy Ashirwad Mahaprashasta
NAC recommendations gathering dust AMID the conflicting pulls at different levels of the government and the not-sosubtle efforts to undermine the Panchayat (Extension to Scheduled Areas) Act, or PESA, a set of recommendations formulated by the National Advisory Council (NAC) aimed at protecting the Act from violations and dilutions is gathering dust. The NAC put together these recommendations after sections of civil society highlighted in a sustained manner empirical evidence of PESA violations. The recommendations are yet to be made public. The changes the NAC has sought to introduce into the Act have two elements. Firstly, it has recommended amendments to address the linguistic loopholes in the loosely drafted Act. Secondly, it has emphasised and spelt out the powers of the Governor to intervene directly under the provisions of the Fifth Schedule. The recommendations seek to make the PESA draft concrete and thus reduce the scope for misinterpretation. The NAC has further elaborated on the powers of the gram sabha and defined words that are frequently misinterpreted or misused. Some of the words in the existing draft, such as community resources, access rights, alienation of land, customary law, minor forest and water produce, and community resources have been explained. It proposes to introduce concrete definitions of loosely defined terms in the existing PESA. For example, the recommendations define appropriate level mentioned in PESA thus: Panchayat at appropriate level means the gram panchayat in whose area a particular resource is situated or the next higher tier, namely, the intermediate panchayat/zilla parishad, if the resource in question is situated in more than one panchayat or intermediate panchayat as the case may be. It also recommends that the word consultation be replaced by consent. Prior informed consent means, it says, freely given written assent or agreement to permit an occurrence or to permit an act or to allow an occurrence only after a complete disclosure of facts needed to make the reasoned decision free from any coercion or inducement. Similarly, it provides for better complaint mechanisms to prevent any refusal by the authorities. Complaint refers to any representation, whether oral or in writing, made to a competent authority regarding violation of provisions of the Act by a member/s of the gram sabha or the gram sabha itself. The idea is to address the existing problems, and that is why it has elaborated
substantially on the powers of the gram sabha. If the amendments are accepted, the gram sabha will also have the power to identify beneficiaries, approve plans, conduct social audits and ensure increased accountability of government functionaries. The NAC has also recommended the need to align Central and State laws in conformity with PESA, and it wants the Centre to be able to issue directions so that the various laws remain in conformity with PESA in order to ensure the autonomy of the gram sabhas and the panchayats in Scheduled Areas. To redress any sort of problems, it has also recommended a grievance redress body and a task force to oversee the implementation of its decisions. In order to prevent any bypassing of PESA by upgrading the rural panchayats, the NAC has directed the Central government to expedite the Provisions of the Municipalities (Extension to Scheduled Areas) Bill. Activists have welcomed the NAC recommendations. Videh Upadhay, an advocate, told Frontline: I am happier that the Governors power has also been delineated. While amendments and their enactments are a long process, the NAC has explained how the Governor can intervene directly in case he sees any violations in the present PESA. The Governor, constitutionally, is not just a rubber stamp. The focus should not be on what now but on how to best implement PESA. We have to energise the law by mobilising courts, public opinion and governments. But such appreciation from civil society has made no impact on the government. The affidavit filed by the Additional Solicitor General in the Chhattisgarh High Court to remove the discretionary powers of the Governor under the Fifth Schedule underscores the governments intent. Ajoy Ashirwad Mahaprashasta and Venkitesh Ramakrishnan
Seeking consensus G. SRINIVASAN Interview with Union Rural Development Minister Jairam Ramesh. P.V. SIVAKUMAR
Union Minister for Rural Development Jairam Ramesh said abuse of the provisions of the Land Acquisition Act, 1894, was rampant, denying landowners fair compensation and livelihood losers adequate relief. Poohpoohing criticisms that he stands in the way of project clearance by making land acquisition tough for project owners and thereby obstructs high growth, he quipped: You cannot ensure high growth in a lawless atmosphere. You need a framework of laws, morality and ethics and then you need high growth. Excerpts from an interview he gave Frontline a day after the all-party meeting to discuss the new Land Acquisition Bill on April 9: What is the sticking point in bringing about a consensus on the land Bill? There is no sticking point. We have already introduced the Bill. We are now going to introduce the official amendments. We are trying to create a consensus so that when the debate takes place in Parliament there is not much acrimony and the Bill can get passed unanimously. The Union Parliamentary Affairs Minister, Mr Kamal Nath, and I have been making a serious and systematic effort to consult with all the political parties before we make a debate in Parliament. The Left parties have demanded that the Bill be referred once again to the House panel. Why has it not been accepted? We can accommodate concerns/suggestions if they are operational, but many of the points the Left is making are ideological. The fact of the matter is that
the Bill allows for acquisition of land for private companies. You can have an ideological position that it should not be done. But, to give an example, this Bill allows for the acquisition of land for private companies and for publicprivate partnership projects after securing the written consent of 80 per cent of the owners of the land. So there is a consent clause, there is a compensation clause, and there is an R&R [resettlement & rehabilitation] clause. The Left says this should not be there, but that is an ideological position. In that case, we can never arrive at a consensus. This Bill is the product of many years of deliberations. All the political parties agreed at the April 9 meeting that we need a new Act very soon. Because the 1894 Act is an invitation for the abuse of the eminent domain clause. Under this, much more land than is actually required is being acquired. Land is being acquired for public purposes but is being diverted for private purposes. The abuse is rampant, and there is unrest across the country because the 1894 Act gives extraordinary powers to the administration to acquire land under the garb of eminent domain. No doubt, we have exempted from the new Act transmission towers, highways, the Railways and special economic zones. But we have said that where the laws are exempted, their R&R and compensation provisions should be brought on a par with the new Act within one years time. If a State government wants to be more progressive, they are welcome to do so, but this is the bare minimum which they cannot subtract from but can add on. If a State wants to increase the compensation or R&R or tighten some provisions, it is fine. In an interview, the Leader of Opposition in the Rajya Sabha accused you of being a killjoy for development and growth during your tenure as Minister of Environment. Now the same criticism has been hurled at you by industry and project owners. If Mr [Arun] Jaitley said that I was a killjoy for growth, I am not somebody who does blind vakalat [recommendation] for corporates. My job is to implement the laws of the land, which have been passed by Parliament in which he is a distinguished member. Is he for those people who make profits by circumventing laws that are being passed by Parliament? [Narmada Bachao Andolan leader] Medha Patkar and her ilk think that this Bill is not progressive enough. [Industrial bodies] CII/FICCI think that this Bill is very tough. If I have succeeded in displeasing Medha Patkar on the one side and CII/FICCI on the other, it means I have done something right.
I would like to highlight some of the salient points in the amendment Bill that encompass multiple checks and balances. Monitoring committees at the national and State levels to ensure that R&R obligations are met have also been set forth. Again, no land can be acquired in the Scheduled Areas without the consent of the gram sabhas. In case land remains unutilised after acquisition, the new Bill empowers States to return the land either to the owner or to the State Lead Bank. No income tax could be levied and no stamp duty charged on any amount that accrues to an individual as a result of the provisions of the new law. Where acquired land is sold to a third party for a higher price, then 40 per cent of the appreciated land value (or profit) would be shared with the original owners.
Almost perfect R. RAMACHANDRAN The precise picture delivered by Planck conforms most spectacularly to the expectations of the Standard Model of the universe, but the evidence of anomalous features also indicates that something fundamental may be missing from the standard framework. IMAGES COURTESY: EUROPEAN SPACE AGENCY
FIGURE 1: The Cosmic Microwave Background, or CMB, as seen by ESA's Planck satellite (upper right half) and by its predecessor, NASA's Wilkinson Microwave Anisotropy Probe (lower left half). With greater resolution and sensitivity over nine frequency channels, Planck has delivered the most precise image so far of the CMB. THE universe and its evolution, as cosmologists have tried to describe, particularly after the 1980s, by the so-called Standard Model of Cosmology (SMC) is indeed a fairly good description. In the main, the SMC, built on Albert Einsteins theory of gravity based on general relativity, Edwin Hubbles discovery of an expanding universe with its implication that the universe came into existence following a Big Bang, the discovery of the free-streaming relic
radiation from the early hot universe, known as the Cosmic Microwave Background (CMB), which bathes the entire universe nearly uniformly, and the idea of an inflationary epoch when the universe underwent a rapid exponential expansion within fractions of a second after its birth, is on firm grounds nearly in all its key aspects. This is the upshot of the new, best-resolution all-sky map of the CMB, the earliest light of the universe emitted about 380,000 years after the Big Bang that we can detect today, based on data that the Planck satellite of the European Space Agency (ESA) gathered over 15.5 months in its nine different microwave frequency bands. The new results were announced on March 21. This affirmation of the SMC was only to be expected because Planck was not the first space-based high-resolution measurement of the CMB and the basic correctness of the SMC was already evident from earlier, but coarser, measurements. But, significantly, while the ESAs press release was titled Planck reveals an almost perfect universe, its detailed information release was titled Simple, but challenging. This was because Planck data have revealed some unexpected features in the large scale, which the SMC that does remarkably well in the smaller scales would find hard to accommodate, and it will be a challenge for physicists to come up with theories that can explain them. So what is this standard model of cosmology? The SMC is based on the assumption that on the very large scale, the universe is homogeneous and isotropic, which is known as the Cosmological Principle. That is, the properties of the universe are similar at every point and there is no preferred direction in space. But on the smaller scale, we know that this is not truethere are stars, galaxies and clusters and superclusters of galaxies. The understanding, according to the SMC, is that, while the CMB is smooth and uniform in the large scale, the rich structure on relatively small scales is the result of tiny random quantum fluctuations that were embedded in the CMB during cosmic inflation. Inflation is the extremely short period of accelerated expansion immediately after the Big Bangwhich lasted only 10-32 to 10-30 seconds, much quicker than the blinking of an eye, when the size of the universe ballooned by an enormous factor of 1030! These tiny fluctuations, typically of the order of 1 part in 100,000, on an otherwise almost uniform density of plasma (ionised matter comprising mainly protons, neutrons and electrons) of the very early universe, were amplified to cosmologically large scales during inflation. Denser regions grew increasingly denser owing to gravity to give the highly rich structure of the universe that
we see around us today, with different densities in the different large regions in the sky. The primordial seeds of this are hidden in the temperature variations in the CMB. These variations, which show up as splotches in a highresolution CMB map, such as that of Planck, reveal the imprints of the sound waves (density oscillations) in the plasma on the photons when electrons and nuclei recombined and the matter and radiation decoupled. The relationship of the temperature fluctuations in the CMB and the density fluctuations in the plasma during the inflationary epoch can be understood as follows: if photon was in the denser region of space, it would have spent more energy to break away from the gravitational attraction of the region, thus becoming colder than the average energy of the emerging photons, and vice versa. To understand this evolution of the matter distribution in the universe, from an almost homogeneous state to a highly substructured one of today, requires an enormous amount of information about the universes history and the nature of its different components. Scientists try to reconstruct this evolution by taking snapshots of the universe at different epochs in its history. For a snapshot of the present, a survey of the galaxies that populate the neighbourhood universe is done. Observations of distant galaxies give the picture of earlier cosmological times. The CMB pattern is thus the snapshot of the earliest observable shell of the universe, 380,000 years after the Big Bang when photons broke free of all matter and began to propagate freely through the universe. The SMC is the result of knowledge derived from a number of different astronomical observations based on entirely different physical processes. Indeed, in spite of the highly intricate substructure of the universe at relatively smaller scales, the universe appears remarkably homogeneous and isotropic on the very large scale. The observed data sets, based on entirely different astrophysical processes and sources, over different scales and in different regions of the sky, have agreed extremely well within the framework of the SMC built on its two pillars: homogeneity and isotropy. However, for the data to strictly conform to theory, cosmologists have had to postulate, besides the idea of rapid cosmic inflation itself, two additional ingredients, direct evidence for both of which are yet to be seen: dark matter, which does not interact with light and only weakly interacts with visible matter, mainly through gravity; and, dark energy, a mysterious component that permeates the universe whose negative (repulsive) pressure acting against gravity is pushing the universe apart. Both dark matter and dark energy are required for the universes mass-energy balance. Dark matter is
invisible and can be detected only by its gravitational effect on normal matter. Dark energy is considered responsible for the accelerated expansion of the universe evident in the present epoch. Both these concepts now form an integral part of the SMC. A relatively small number of parameters suffice to characterise the SMC: the density of ordinary matter, dark matter and dark energy, the rate of expansion of the universe at the present epoch (known as the Hubble constant), the geometry of the universe (closed, like a sphere; or open, say, like a saddle; or flat), and the relative amount of the primordial fluctuations that were embedded on different scales and their amplitudes. Different values of these parameters give a different distribution of structures in the universe, and, projecting back in time, a correspondingly different pattern of fluctuations imprinted on the CMB. The importance of studying the CMB in the greatest detail possible essentially arises from this fact. Measuring CMB There were two important space missions to measure the CMB in detail that preceded Planck. In 1989, the American National Aeronautics and Space Administration (NASA) launched the Cosmic Background Explorer (COBE), which provided us with the first precision map of the CMB ( Frontline, July 17, 1992). Among its key discoveries was that the CMB, averaged across the whole sky, conformed very accurately to a black body (or pure thermal) radiation at a temperature of 2.73 Kelvin. At the same time, the temperature also shows tiny fluctuations of the order of 1 part in 100,000 across the sky. These findings fetched John Mather and George Smoot the 2006 Physics Nobel ( Frontline, December 15, 2006). NASA followed this up with the Wilkinson Microwave Anisotropy Probe (WMAP) satellite launched in 2001 to give an allsky CMB survey with even better resolution to map these temperature fluctuations in greater detail ( Frontline, September 14, 2001). These observations, together with the observations by ground-based radio telescopes such as the Atacama Cosmology Telescope (ACT) in Chile and the South Pole Telescope (SPT) and balloon-based observations such as BOOMERanG and MAXIMA, have provided a fairly good picture of the CMB which, in all its key details, could be explained fairly well by the simple SMC. But a few questions remained to be resolved, which required more accurate and sensitive measurement of the CMB than the WMAP.
FIGURE 2: Planck's high-precision CMB map has allowed scientists to extract the most refined values yet of the universe's ingredients. The `before Planck' figure is based on the WMAP's nine-year data. Enter Planck. It was launched on May 14, 2009, with the primary objective to map these fluctuations across the whole sky with greater resolution and sensitivity than ever before and it is continuing to scan the sky ( Frontline, July 3, 2009). By analysing the distribution pattern of these fluctuations, virtually all important quantities that describe the universe soon after it formed, the composition and evolution of the universe through billions of years can be determined. This, in turn, would determine all the important quantities necessary to characterise the SMC that describes the observable universe completely and accurately. To achieve this, Planck observed the CMB in nine wavelength bands (1 cm 0.3 mm), ranging from microwaves to the very far infrared (with two different instruments operating in 30-70 GHz and 100-857 GHz frequency bands respectively). Plancks detectors are cooled to temperatures very close to the absolute zero. Otherwise, thermal radiation of the instruments themselves will spoil the measurements. To measure the CMB temperature at every point, Planck observes every point an average of 1,000 times.
Analysing Planck data Planck released its first all-sky uncorrected image in 2010. A major painstaking exercise in extracting the new results, which contain the real information from the observed CMB data, was the removal of all possible contamination due to foreground sources that lie between the instrument and the universes first light emission by other galaxies as well as interstellar dust and gas and other intervening matter in our own galaxy. Only then can the CMB data be fully analysed and cosmological models compared. The significance of the new Planck measurements is that they have not only greatly refined our knowledge about the universe but constitute the most sensitive and precise measurements of the CMB possible. While COBE measured the CMB down to an angular resolution of about 7 degrees only, the WMAP improved it to half-a-degree resolution and Planck three times better (5-10 arc minutes). In terms of the CMB temperature at different points of the sky, Plancks sensitivity is such that it can detect variations up to a millionth of a degree, which is 10 times better than the WMAP (Figure 1). According to the ESA, Plancks instruments are so sensitive that they are limited not by the instruments limitations but by fundamental quantum astrophysical effects themselves. In other words, as the ESAs overview of Planck says, it will be impossible to take better images of this radiation than those obtained from Planck.
FIGURE 3: This graph shows the temperature fluctuations in the CMB detected by Planck at different angular scales on the sky, starting at 90 degrees on the left side of the graph through to the smallest scales on the right hand side. The red dots are measurements made with Planck;
these are shown with error bars. The green curve represents the best fit of the Standard Model of Cosmology to the Planck data. The pale green area around the curve shows the predictions of all the variations of the standard model that best agree with the data. While the observations on small and intermediate angular scales agree extremely well with the model predictions, the fluctuations detected on large angular scales on the sky-between 90 and six degrees-are about 10 per cent weaker than the best fit of the standard model to Planck data. Planck data have been found to conform most spectacularly to the expectations of the simple SMC, and on the basis of these, scientists have been able to extract much more accurate values of some of the key parameters of the SMC. These suggest that the universe is expanding more slowly than previously thought; it is 13.8 billion years old, 100 million years older than the earlier estimate. The new value for the Hubble Constant, which gives the rate of expansion of the universe, is 67.15 km/s/megaparsec +_ 1.2 km/s/mpc, which is significantly less than the current estimate of around 72 km/s/mpc derived from NASAs space telescopes, Spitzer and Hubble, using a different technique. (A megaparsec, or mpc, is about three million light years.) The WMAPs measurements had provided fairly good data on the proportions of the different constituents of the universe. Now, on the basis of Planck data, those values have got significantly refined. The data show that there is less dark energy and more matter, both normal and dark, in the universe than previously estimated. According to Planck, dark matter content is 26.8 per cent instead of the 24 per cent estimated earlier, normal matter is 4.9 per cent instead of 4.6 per cent and dark energy has dropped to 68.3 per cent from 71.4 per cent (Figure 2). Anomalous features While this most detailed and accurate picture of the CMB has confirmed once more that the relatively simple standard model describes the universe amazingly well, but with refined key cosmological parameters, the highprecision data have also revealed some curious features and subtle anomalies in the CMB that cannot be explained easily. These, according to scientists, will require revisiting some of the fundamental assumptions made in the SMC and may even require bringing in some new physics. Earlier measurements, too, had indicated the presence of some of the anomalous features but needed to be confirmed with greater confidence in the measurements. These have now been determined with such great accuracy that they can no longer be wished away.
The picture delivered by Planck, Jan Tauber, Planck project scientist at the ESA, commented when the new results were released, is so precise that we can use it to scrutinise in painstaking detail all possible models for the origin and evolution of the cosmos. After this close examination, the SMC is still standing tall, but at the same time, evidence of anomalous features in the CMB is more serious than previously thought, suggesting that something fundamental may be missing from the standard framework. By analysing the Planck data, it has been possible to set very tight constraints on the parameters that characterise the SMC, which include the relative amount of primordial fluctuations on different scales. This is equivalent to measuring correlations of the CMB temperature across different angular scales in the sky. Cosmologists use the SMC to predict such correlation. Predictions of the SMC match the Planck data amazingly well at small angles. But for larger angles (separated by more than 60), which means points farther apart in the sky, the temperatures seem to be more correlated than the SMC would predict (Figure 3). This is one of the most surprising findings of Planck. The signals of fluctuations in the CMB temperatures at large angular scales are about 10 per cent weaker than predictions. This has provided for the first time evidence that the distribution of primordial fluctuations was not the same at all scales. Since these fluctuations were generated during cosmic inflation, this finding can test within an extremely short time the validity of many models that describe the dynamics of this accelerated expansion of the universe.
FIGURE 4: Two CMB anomalous features hinted at by Planck's predecessor, the WMAP, are confirmed in the new high-precision data. One is an asymmetry in the average temperatures on opposite hemispheres of the sky (indicated by the curved line), with slightly higher average temperatures in the southern ecliptic hemisphere and slightly lower average temperatures in the northern ecliptic
hemisphere. This runs counter to the prediction made by the standard model that the universe should be broadly similar in any direction we look. There is also a cold spot that extends over a patch of sky that is much larger than expected (circled). In this image the anomalous regions have been enhanced with red and blue shading to make them more clearly visible. While this was the first ever detection of such an anomaly in the CMB, Planck also confirmed a number of other anomalies which the WMAP data too had suggested, but the evidence was not strong enough to unequivocally rule them out as artefacts of data processing or foreground emissions. One of them is the asymmetry in the average temperatures on opposite hemispheres of the sky. This runs counter to the basic isotropy assumption of the SMC that the universe should be broadly similar in all directions. The other is the presence of the so-called cold spot (Figure 4). One of the low temperature spots in the CMB extends over a patch of the sky that is much larger than expected. These findings are perhaps an indication that the SMC may not be adequate to describe the universe at all scales. In arriving at some of these important conclusions on anomalies there has been a significant Indian contribution. Tarun Souradeep, Sanjit Mitra and the formers graduate student, Aditya Rotti, from the Inter-University Centre for Astronomy and Astrophysics (IUCAA), Pune, were involved in the statistical analysis of the data by using the formalism called BipoSH, which they had developed to confirm the anomalies that had been found. The IUCAA groups work involved the removal of artefacts arising from the complex instrumental response as well as in the search for subtle violations of the cosmological principle of isotropy. The former was critical for the accurate estimation of the key cosmological results from the Planck data. The Indian team will continue to contribute towards the next major release of Planck results in 2014, which will include the full data set, in particular CMB polarisation data, and further refinement in the analyses. One way to explain the anomalies is to give up isotropy as a fundamental tenet for building a model of the universe; that is, the universe is not the same in all directions on a larger scale than we can observe. One class of models that are based on such a theoretical framework is called Bianchi models. In such a scenario, the light rays from the CMB may have taken a more complicated route because of the complex geometry of space-time in such models, resulting in some of the unusual patterns observed by Planck, according to some scientists. Indeed, says Krzystof M. Gorski of the Jet Propulsion Laboratory (JPL),
California Institute of Technology, When we take into account the large-scale anisotropy described by the Bianchi models in the analysis of Planck data, several anomalies are simultaneously reduced by a significant amount. However, it is not possible to merge this very specific anisotropic scenario with the SMC that holds very well on local scales. So cosmology after Planck stands at an interesting crossroads. On the one hand, the SMC is still the best way to describe the CMB data although it includes components that still lack even a sound theoretical understanding, such as dark matter, dark energy and inflation. And, on the other, there are these anomalies that point to something fundamental missing in the foundations of cosmology.
The oldest light THE Cosmic Microwave Background (CMB) is the leftover radiation from the Big Bang. According to the Big Bang model, the universe began about 14 billion years ago as an extremely hot, dense plasma of particles (mostly protons, neutrons and electrons) and photons (light) occupying a space of a few millimetres across. The theory also tells us that the universe has been expanding from the instant it was born. From this extraordinarily dense state it has expanded into the vast and much cooler cosmos that we see today. Since photons are scattered by electrons, for the first 380,000 years or so after the Big Bang, light remained trapped inside the hot, dense particle cloud. This particle cloud was opaque, like a thick fog. As the universe expanded, it cooled and when the temperature dropped to around 3,000 Kelvin (0o C corresponds to 273 K and 0 K corresponds to absolute zero or total absence of heat), which is the threshold temperature for protons and electrons to combine, hydrogen atoms formed and the temperature was too low to ionise them again. Neutral hydrogen is almost transparent to light, and, in the absence of free electrons, photons were able to travel unhindered through the universe. That is, at this epoch of recombination (of electrons and nuclei), light decoupled from matter. During the intervening billions of years, the universe has expanded and cooled greatly. This afterglow of the Big Bang has been expanding with the universe and freely propagating and spreading through the cosmos. Owing to the expansion of space, the wavelengths of this decoupled light from the baby universe have also got stretched (that is, they have been red-shifted) to millimetre wavelengths (or gigahertz frequencies, the microwave region) at the present. These decoupled photons now fill the universe as background radiation almost uniformly in all directions with about 412 photons in every cubic centimetre of space. Multiple scattering within enclosed space, with little leakage of energy, produces what is known in physics as thermal or black body radiation. The characteristic of black body radiation is that its intensity and spectrum are determined by temperature alone and are independent of the composition of the source. The spectral distribution of this red-shifted light peaks at wavelengths around 1-5 mm and corresponds to a thermal or black body radiation corresponding to the chilly temperature of about 2.7K. This is the CMB
radiation. It is the oldest light that can be detected. But to see it one needs antennae tuned to these wavelengths, like the far-infrared and radio telescopes on board Planck. The distribution characteristics of the CMB contain information about the surface of last scatter, before light freed itself from matter to fill the universe. When we observe the CMB, we effectively see the epoch of recombination. The CMB, therefore, carries the image of the early universe, and therefore, scientists believe that the traces of the seeds of the formation of stars and galaxies, and clusters of galaxies that eventually formed, should be finely imprinted on the image of the present cold 2.7 K afterglow. Thus, the pattern of the detected CMB is a treasure trove of information for cosmologists to unravel and understand how this elaborate structure of the universe, which appears the same in all directions, came to be. Therein lies the importance of the high quality of Plancks measurements. R. Ramachandran
Daughter deficit? R. KRISHNAKUMAR in Thiruvananthapuram Is there a shift in the attitude of Kerala society towards the value of daughters? Is son preference spreading in a State once known to be above extreme gender bias? A recent study on child sex ratio generates more questions than it answers. H. VIBHU
A tribal child in Poringalkuthu Kadar Colony near Vazhachal Forest Division, Thrissur district. ABORTION of female foetuses after parents learn of their gender using medical diagnostic techniques is believed to be one of the central reasons for the fall in the number of female children vis-a-vis male children in many States. A decline in the sex ratio at birth, or the ratio of female live births per 1,000 male births, is therefore considered a sign of the growing scale of sex-selective abortions and of a societys dislike to having daughters, though many other factors could also contribute to it. Another facet of the worrisome phenomenon of gender bias is the prejudice that girls face vis-a-vis boys in getting an equal share of household resources or identical access to health care and nutrition. Such discrimination is so intense in many parts of India that it often affects the very survival of female children.
The girl child may be disadvantaged thus at birth and in childhood too, and social scientists gauge the intensity of such discrimination by estimating also the child sex ratio, the ratio of females per 1,000 males in the 0-6 age group. This ratio reflects both the scale of mortality of girl children in the 0-6 age group and of sex-selective abortions of the female foetus that may be happening in a region, among other things. So whenever a decline in the child sex ratio is noticed, the question raised is whether the shortfall in the number of female children is mainly (a) because of the preference of parents for boys over girls, which leads to increasing sexselective abortions, or (b) because the female children face discrimination after birth in terms of nutrition and health care, which leads to the nasty trend of unusually high mortality of girls in the under-six age group. Changing scene Kerala, a State with very high levels of womens literacy, a long tradition of education for women and their perceived liberated position in society, traditional property rights favouring women in sections of society, early exposure to the outside world and an egalitarian political culture, had for long been considered to be above the national trend of bias against daughters. But by the late 1990s such assumptions were being challenged by some scholars who pointed out citing the 1991 Census figures that the ratio of female children per 1,000 males in the under-six population was indeed falling in Kerala too. They chose to link their observations to what they termed as obvious signs of diminishing status of women in the State, such as the rise of the dowry system, increasing instances of crime and violence against women, and their growing marginalisation from paid employment. They also called attention to the unbridled growth of private hospital facilities and diagnostic services specifically targeting women in Kerala, the unjustified (as per World Health Organisation norms) rise in the number of caesareans and hysterectomies conducted in many hospitals, and the fact that in a State where nearly all births took place in hospitals, the number of abortions too had gone up manifold. The fertility rate was falling and the sterilisation rate was rising. The number of institutions approved by the government to conduct medical termination of pregnancy also had increased and, they said, couples in Kerala increasingly chose abortion as an option, instead of adopting family planning measures.
The suggestion that all this meant a growing preference for sons and the possibility of sex-selective abortions being on the rise in Kerala were, however, met with much scepticism. And nobody even dared argue then that discrimination of daughters could also be a reason for the noticed fall in the child sex ratio in the State. The Kerala unit of the Indian Medical Association (IMA) denied that sexselective abortions were being resorted to in the State. Some argued that the demographers who suggested it as a possibility made a mistake by concentrating on the decline in the child sex ratio in 1991 alone, whereas a similar decline could be noticed in the 1981 Census too, representing a period when the technology for sex-selective abortions was not available in the State. Many cautioned against the State jumping to quick conclusions. There is fairly strong medical evidence all over the world to suggest that males outnumber females at birth. Given the decline in the total fertility rate and the intensity with which female sterilisation is adopted in Kerala, a masculining of the population can happen on its own, a researcher had told Frontline then. Others, however, said policymakers should stop being complacent. The environment is conducive. Facilities for sex determination and abortion are widely available. Just because doctors continue to deny it, can we say it is not happening in Kerala? they said. The flutter died down on its own after some time, and some researchers pointed out that the fall in the child sex ratio in 1981 and 1991 in fact reversed in 2001, with the 2001 Census figures indicating an improvement. New study A recent study commissioned by the Social Welfare Department of the Kerala government has reopened the debate. The study, Child sex ratio in Kerala, by M. Kabir, former Head of the Department of Economics of the Government College for Women, Thiruvananthapuram, and K. Pushpangadan, formerly a Professor at the Centre for Development Studies (CDS), argues that interdistrict and time-trend analysis of data do not provide a promising picture of the widely held view of comparatively better gender equality in Kerala. H. VIBHU
Pulse polio distribution at the General Hospital in Thiruvananthapuram. Several sources of data indicate that there has been excess female mortality in the 0-6 age group in an increasing number of districts in the State since 1981. The State government decided to commission the study because the latest Census figures showed that there was a reduction in the child sex ratio in Kerala. It is a worrisome trend in a State like this and unless you monitor it closely, it could explode on your face. So we wanted to look into it in detail, Rajeev Sadanandan, Principal Secretary, Health and Family Welfare Department, said. The conclusions of the study were presented at a seminar at the CDS in early March soon after it was submitted to the State government. Among its major findings were: (a) In the two decades from 1991, child sex ratio showed a declining trend in Kerala. It fell from 976 to 958 in the two decades from 1971 to 1991; it registered a marginal increase to 960 in 2001; and fell again to 959 in 2011; (b) The female deficit in the 0-6 age group increased in six of the total 14 districts during the same period. The six districts were Kasaragod, Kannur, Wayanad, Palakkad, Thrissur and Idukki. The northern district of Palakkad, bordering Tamil Nadu, showed a steady decline in all the censuses from 1991; (c) A trend of lower female-male child sex ratios seemed to be spreading in clusters of contiguous taluks in the State. Altogether, 26 of the total 63 taluks in Kerala had lower female-male child sex ratios in 2001 than in 1991; and 39 taluks had lower female-male ratios (FMRs) in 2011 than in 2001. However,
no taluk had a sex ratio below 900, the threshold level to be called alarming, in any of the censuses from 1991; (d) A trend of increasing masculinisation at birth was also visible. However, despite the fall in the sex ratio at birth, in all the districts those ratios were within the demographically accepted normal range of 104 to 107 males for every 100 females; and (e) Several sources of data indicated that there was excess female mortality in the 0-6 age group in an increasing number of districts from 1981. Kabir told the seminar that he considered three of these as the most important findings of the study: One, the contiguous nature of the declining child sex ratio trend in taluk clusters; two, though the sex ratio at birth is within the normal range, a decline is observed in all the districts; three, and perhaps the most important, is the finding of higher female mortality among children. According to Pushpangadan, the multi-variant analysis, which took into account the child sex ratio, sex ratio at birth and data relating to mortality of children, showed that the mortality story is a very valid proposition. Disturbing percept The report therefore concludes with a stunning statement: Statistical analysis indicates that both sex ratios at birth and mortality differentials are significant in explaining child sex ratios in Kerala. But, the sex ratio at birth, despite the fall in some of the districts, is within the internationally accepted normal range. On the contrary, the excess mortality of female children raises serious questions which relate to the discrimination of the female child. The data point towards the question, Is Kerala not different from the north Indian States? Kabir said: Though an increase in masculinity at birth has taken place, the ratio is within the normal range. We cannot be sure whether such an increase is due to random biological variationsit is well known that, left to nature, more males are born than femalesor due to some extraneous intervention. But since it is within the normal range it is not a matter of very serious concern; but, of course, the decline matters and why it has taken place needs to be studied. The report seeks to set aside the possibility that the fall in the child sex ratio observed in Kerala could be a result of a rise in sex-selective abortions, as it
was suggested earlier. Instead, it embraces the second possibility, so far considered unlikely in Kerala, that it could instead be that female children are facing such discrimination in the State that it results in relatively more of them dying by the age of six. So does it mean that there is surely a shift in the attitude of Kerala society towards the value of daughters? And is son preference spreading in the southern State to such an extent that girls in the 0-6 age group are dying because of it? (Interview with Prof. T.K. Sundari Ravindran on page 114.) A heated discussion has ensued with some participants terming it as a disturbing percept and claiming that if it is discrimination against the girl child, then there are enough facilities in Kerala which allows people who do not want a baby girl, not to have one. Valid doubts are in the air: If it is discrimination of the female child after it is born, as the report suggests, then what is the explanation for the trend spreading in contiguous taluks? Is it possible that both sex-selective abortion and gender discrimination factors may be at work? How many girls in the 0-6 age group are actually dying in Kerala, and what are the causes of death? Questions are also raised about the reliability of some of the data used in the study. The continuing lack of hard evidence or dependable studies to prove or disprove any of the theories on an issue that has been disturbing researchers and planners in Kerala for over two decades is painfully becoming evident. We may have to go for fresh inquiries. The questions regarding declining child sex ratio in the State have not been satisfactorily answered by the commissioned study, Rajeev Sadanandan said. Interestingly, according to the 2011 Census, Kerala had 1,084 females for every 1,000 males in the entire population, up from 1,058 females per 1,000 males a decade earlier.
Is the bias so severe as to cause death? R. KRISHNAKUMAR Interview with Dr T.K. Sundari Ravindran, activist researcher on gender, health and equity issues. S. GOPAKUMAR
We will probably have to wait and watch before jumping to any conclusion, says Dr T.K. Sundari Ravindran. DR T.K. SUNDARI RAVINDRAN is Professor at the Achutha Menon Centre for Health Science Studies, Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram, and Chairperson of CommonHealth, an organisation advocating quality maternal neonatal health and safe abortion services and better access to them. She has a doctorate in Applied Economics from the Centre for Development Studies, Thiruvananthapuram, and is an activist researcher on gender, health and equity issues with focus on womens health and reproductive health and rights. She has worked with the World Health Organisation, has been on the United Nations MDG [Millennium Development Goals] Task Force on Maternal and Child Health and is the former co-editor of Reproductive Health Matters. My interest in looking at sex ratios comes from the way it is affecting access to safe abortion. All the policy moves to prevent declining female sex ratio are happening in a way that is restricting access to safe abortion. So from that angle I have been studying it, she told Frontline. Excerpts from an interview with her in the context of a recent study commissioned by the Kerala government on the changing child sex ratio in the State and its inconclusive findings. How do you see the recent report on Child sex ratio in Kerala in the
larger context of decline in child sex ratio in India as a whole? In all Indian States now, sex ratio studies are being conducted. The concern is, how do you interpret these sex ratios once you have them? Most often the media assume that it is all because of sex-selective abortions. I have not seen a serious discussion in the media about excess female mortality in childhood as an important contributor to a decline in juvenile female sex ratio. There is no effort to look closely at details. In Kerala, there is one more issue. When the number of child deaths is becoming smaller and smaller, does excess female child mortality signify anything unusual, or is it within the realm of random variations that may occur from one year to another? What are your impressions on the major findings in the report? The hypothesis of the authors runs like this: that the sex ratio at birth in Kerala is not very abnormal; however, the sex ratio in the 0-6 age group is coming out to be abnormal and, therefore, this has to do with higher female child mortality in the State. That there is higher female child mortality in Kerala is corroborated by several data sources. According to recent Sample Registration System (SRS) data, under-five mortality is higher for girls than for boys in every State of India, including States such as Kerala. So this could definitely be contributing to the decline in child sex ratio, but may have to be interpreted keeping in mind the very small number of child deaths overall. But the other part of the question is, is there not an abnormality in the sex ratio at birth too? Can we say with confidence that there is no abnormality? This is something which we need to pursue further. The data on sex ratio at birth, even if we are confident about it, will have to be corroborated with other data sources (in order to rule out the sex-selective abortion angle). Moreover, studies indicate that the sex ratio at birth is not a universal constant but can vary and sometimes vary very abnormally without deliberate human intervention. So we will probably have to wait and watch before jumping to any conclusion. So, is it really a problem of pre-birth sex determination or abnormal sex ratio at birth without deliberate human intervention? Or is it something that is happening post-birth? This doubt is still there. It has not been resolved by the study. An important result seems to be that a decline in child sex ratio occurs in contiguous taluks and that the trend may be spreading. That was the most intriguing finding. If that is happening, then one has to
seriously examine the sex-selective abortion angle: because it is only technology that catches on like that. If there are two possible components, abortion and mortality, then mortality cannot suddenly happen in contiguous regions unless there were epidemics. So then, the contiguity finding challenges you to look at whether the practice of sex-selective abortions is catching on and there is a general sense of, say, it is okay to do it, like people learning from one another. Contiguity patterns have been observed elsewhere, in increase in family planning acceptance in contiguous areas. They call that the demonstration effect. If the contiguity that they observed in the study can be proved beyond doubt, then I would ask them to relook at their Sex Ratio at Birth (SRB), look at other data sources and examine the abortion angle rather than get into the mortality angle. If, on the other hand, the issue is one of mortality, then we will have to pursue various hypotheses that have been put forth about what causes it. Why are more girls dying, especially at such a low level of mortality? That is a big question for researchers. The other big thing is that although sex ratio at birth in Kerala has been changing, it has been changing still only within the normal range. In fact, the sex ratio at birth in Kerala has improved from 2001-03 to 2006-08, as SRS data show. What does it mean? Does it mean earlier there was sex-selective abortion and now it has stopped? Or is it that this is just happening at random? Also, this is another reason to ask whether the vital registration data used in the study is reliable. This is why I say it is still intriguing, because, from this, it may not seem like the problem lies at birth, one because the sex ratio at birth seems to be improving, secondly, even when it was not improving, it was not so bad and was well within a range that is considered normal. So the authors of the study could be right when they claim the sex ratio at birth is within the normal range and in concluding that there is no issue of sex-selective abortions in Kerala? H. VIBHU
In Idukki district, children of an estate worker. They may be right, but if they are right what are we observing? What explanation can you give [for female children dying in the 0-6 age group]? I have seen a lot of discrimination of female children at many places, but Kerala does not seem to be a place where that may be happening blatantly enough to cause death. Because that only happens in places where resources are allocated so sparsely that the child dies. For ascertaining whether something like that is happening or not we need to look at the cause of death. Overall, we also have to look at how many deaths are actually taking place. But we have not done that exercise. I did a work for the WHO in 1983 and at that time in whichever country we found excess female mortality in childhood, we looked at causes of death. And we found that under-nutrition-related causes, communicable-diseases-related causes etc. were more for the girls. So you could say that it is most likely the lack of adequate nutrition and medical attention that has led to it. These are several hypotheses to work on. Instead of looking at sex ratios further and further, it is better to look at cause of death, age at death, is it happening immediately after birth, within a month, or, subsequently, after one year? These are areas that need much further investigation and yes, some funding for research as well. Have you come across any evidence that sex-selective abortions may be taking place anywhere in Kerala? I have never seen any evidence. There is not even anecdotal evidence being written about. But some people working in the prevention of sex-selection campaign say that it is a problem but it is not being adequately studied. It is very difficult to ascertain because the usual methods used in other places would not work in Kerala. For example, in many other States, they see a link between the increase in the number of ultrasound scanning centres and the
fall in sex ratios at birth and say, therefore, that it must be because of an increase in sex-selective abortions. In Kerala, however, scan centres have increased because people are overusing the facility as part of routine antenatal care to ascertain the normal progress of pregnancy. So the demand has gone up and it will be very difficult to say it reflects a general desire for sex determination or abortion. But how does then one go about finding out the truth? In Kerala (and Tamil Nadu, and so on), use of abortion is pretty high. One reason is they want a small family, but they are not using spacing methods. So what other method will they use? Obviously, it is abortion. But where abortion use is generally high it is very difficult to make the necessary connections to find out whether it is sex-selective abortion. The other option is to interview women and find out through discussions. But to my knowledge, such questioning has not yielded results because it is a State where people are highly aware of the legal implications, that it is a crime, and hence would not say the truth. But there is neglect of the girl child in Kerala? This is very difficult to say. Discrimination of the female is definitely happening. The point is, is it so severe as to cause death? Definitely there is abuse; there is data from a study at the Achutha Menon Centre by Joy Elamon on how immunisation of girls was actually less than that of boys. Some of those things have been observed. It is not as much as in the other States, but it exists. Are you saying that discrimination of the girl child is a reality in the State? I do not know. What I am saying is here, first of all every child is a precious child because of the low fertility pattern in Kerala. So is there a situation in which investment in the girl child becomes difficult for the parent? I have not seen any evidence of discrimination that is severe. Definitely discrimination in terms of putting your son in engineering college and your daughter in a correspondence course is very visible. But still, it is not as if the parents stopped her from school. They gave her an education, but relatively less investment in terms of option. So nobody can say there is equal treatment. The more resource constraint there is, the more that kind of choice is forced on a family. So, finally, is it really the birth data that is becoming important here
and needs to be explored further to understand the situation? We have to be cautious of the validity of sources of data we use. The study has used birth registration data for getting the sex ratio at birth. Since there is very high birth registration in Kerala, it is considered a very reliable source of data. But some researchers have found there is a fair amount of underregistration of births in Kerala (though much less than in other States)I think up to 10 per cent or 15 per cent or so of under-registration. If there is no biased reportingbecause some earlier studies from other States say that people wont report the birth of the girl, but only the boythen it still should not matter. But if there is biased reporting and they do not report the girls, but only the boys, then that could be a source of error. I think they have to look at multiple sources of birth data, may be look at the Census data, SRS data, and birth registration data and then come to a conclusion. And probably look at five or six big hospitals in a district where a large number of births happen in the State and see what the sex ratio is at birth. If we think that more than 60 per cent of the births are taking place in these five or six hospitals, then just monitoring those five hospitals should tell us what the situation is really. They have to pursue further lines of inquiry to be able to give any conclusive policy recommendations. Otherwise we would not know which way to go and what to make of all this.
Sterlite in trouble S. DORAIRAJ The Tamil Nadu Pollution Control Board orders the closure of its copper smelter unit in Tuticorin even as the Supreme Court stays a 2010 High Court order to close down the plant. N. RAJESH
MDMK general secretary Vaiko leading a protest by various organisations against Sterlites copper smelter unit in Tuticorin on March 28. STERLITE Industries India Limited (SIIL), the principal subsidiary of the United Kingdom-based mining giant Vedanta Resources plc and Indias largest diversified metals and mining company, is once again in the news for all the wrong reasons. Operations at its copper smelter unit in Tuticorin, Tamil Nadu, came to a halt on March 30 following an order of the Tamil Nadu Pollution Control Board (TNPCB), which was issued a week after an alleged high-volume release of sulphur dioxide from the plant, located in the SIPCOT complex, caused health problems to people residing in and around the port town. Power supply to the company was disconnected. The Peoples Struggle Committee Against Sterlite welcomed the TNPCB order against the noxious industry and demanded that it should not be allowed to resume operations. Environmental activists said governments action was necessary to safeguard the globally significant and ecologically sensitive Gulf of Mannar biosphere reserve in the region.
Even as the demand for the closure of the copper smelter gained momentum, District Collector Ashish Kumar indicated to the media on April 1 that the district administration was contemplating stringent action against the unit. Sterlite suffered further humiliation when the Supreme Court on April 2 slapped a Rs.100-crore penalty on the company for the damage it caused to the environment between 1997 and 2012 and for running the copper smelter for a fairly long period without a valid renewal permit. The court directed the company to deposit the amount with the Collector within three months. It said the money should be used for improving the environment in the vicinity of the plant. Although the Supreme Court Bench comprising Justices A.K. Patnaik and H.L. Gokhale set aside the Madras High Courts 2010 order to close down the plant, it made it clear that its judgment would not come in the way of the TNPCBs order, including the one directing the closure of the plant to protect the environment in accordance with the law. While fixing the penalty, the apex court cited the observation made by a Constitution Bench in the M.C. Mehta and Another vs Union of India and others [(1987) 1 SCC 395] case that the quantum of compensation must be correlated to the magnitude and capacity of the enterprise because it must have a deterrent effect. In this context, it also referred to the Annual Report2011 of SIIL, which spoke of the financial performance of its copper project. The report had put the companys profit before depreciation, interest and taxes for 2010-11 at Rs.1,043 crore, which was 40 per cent higher than the PBDIT of Rs.744 crore earned during 2009-10. Considering its magnitude, capacity and prosperity, we are of the view the appellant company [Sterlite] should be held liable for a compensation of Rs.100 crore and according to us, any less amount would not have the desired deterrent effect on it, the Supreme Court observed. On April 1, SIIL moved a petition before the National Green Tribunals (NGT) Southern Bench challenging the TNPCBs order. The company said the order to close down the copper smelter and the interruption of power supply were in gross violation of natural justice and made in unseemly haste. It argued that the Tuticorin plant met more than 55 per cent of Indias requirement of copper and that its workforce would be left without remuneration if the unit remained closed. On April 9, the NGT allowed Marumalarchi Dravida Munnetra Kazhagam (MDMK) general secretary Vaiko, the environmentalist Fatima Babu, and counsel for the National Trust for Clean Environment to implead
themselves in the case. The TNPCB, in its counter-affidavit, made it clear that its direction to close down the unit was made on the basis of more than one instance of emission of sulphur dioxide in excess of the permitted limit. It also submitted that the Sterlite plant was not fit for operation and should not be permitted to resume work in view of numerous incidents of excessive emissions of the toxic gas. If the plant commences operations, irreparable injury and hardship will be caused to the public, as there is imminent threat and danger of a chemical disaster, the TNPCBs Member-Secretary said. On April 8, a dawn-to-dusk bandh was observed in Tuticorin demanding permanent closure of the Sterlite unit. The protest was sponsored by 60 organisations, including political parties, fishermens unions, traders associations and non-governmental organisations (NGOs). Giving a detailed account of the circumstances that necessitated the closure of the Sterlite plant, the Collector told Frontline that the district authorities had received telephone calls from the local residents right from 7 a.m. on March 23 complaining of severe irritation and suffocation. He said he too felt the impact of the emission. It was found that some of the affected persons were treated as outpatients in some private hospitals. Officials, including the Revenue Divisional Officer (RDO), the Deputy Director (Health Services) and the District Environment Engineer of the TNPCB were instructed to visit the affected areas, including Anna Nagar, Bryant Nagar, West Great Cotton Road and the central market area, to gather first-hand information about the toxic emission. The district administration received 12 complaints from the public and three petitions from the associations about the incident. A team was sent to the copper smelter plant. During the course of its investigation, it was found that one of the sensors located near the Sterlite unit had recorded a high concentration of sulphur dioxide in the ambient air, he said. Though it was found prima facie that Sterlite was the villain of the piece, the Collector called an emergency meeting of the officials concerned to check if the emissions could be from any other source. The next day, the TNPCBs Member-Secretary visited the Sterlite plant and carried out a thorough inspection. It was established through the chimney recordings that the sulphur dioxide emission was about 2,950 milligrams per cubic metre against the permitted level of 1,250 mg/c, Ashish Kumar said. The RDO served notice on Sterlite under Section 133 of the Code of Criminal Procedure (conditional order for removal of nuisance).
Many residents of Tuticorin town and people living in adjacent villages suspected that the emissions were from the Sterlite plant. J. Balakumar (name changed), who runs a petty shop at Pudurpandiapuram, said the release of sulphur dioxide from the plant between 4 a.m. and 6 a.m. every day was a routine affair, but the emission on March 23 was on an unprecedented scale. Groundwater in villages such as Therku Veerapandiapuram, Kayaloorani, Ayyalurutti, Meelavittan and Pandarampatti located around the smelter plant is highly polluted. Skin diseases and respiratory problems were not uncommon in these villages, Balakumar said. A resident of Pudurpandiapuram for close to 15 years, Balakumar said he now planned to move out of the area with his family. S. Selvaraj, a resident of Muthammal Colony, said he experienced severe sneezing and coughing, and irritation in the throat and developed rashes. According to Dr K. Sankaranarayanan, former Resident Medical Officer of the Tuticorin Government Hospital and an ENT specialist, upper respiratory infections due to industrial pollution is common among the residents of the densely populated town. Most of the industrial units handling hazardous chemicals are located close to the town. These units should adopt strict pollution control measures instead of attempting to hoodwink the public and the authorities concerned, he said. SIIL stand In a bid to absolve itself of the charges, SIIL, through a press release on March 29, clarified that the copper smelter was under shutdown for maintenance since the early hours of March 21 until around 10 a.m. on March 23. In the morning hours on March 23, 2013, during plant start-up, there were normal emissions within prescribed parameters and since then the plant is functioning normal. A team of government officials have already inspected Sterlites copper plant on March 23 and 24, 2013, and has verified the plant status. We understand that the district health officials have confirmed that no case of illness was reported due to alleged gas leakage, it said. HANDOUT
The sterlite plant. On March 30, SIIL came out with another release asserting that it had been operating its copper smelter at Tuticorin for the last 17 years with requisite approvals and consents issued by regulatory authorities. Reiterating that the smelter adhered to the highest standards of environment, health and safety practices benchmarked to international standards, it said the plant had undergone continuous upgradation of technology over the years, including the implementation of numerous environmental upgradation measures based on recommendations of the TNPCB, NEERI [National Environmental Engineering Institute] and CPCB [Central Pollution Control Board] in the last two years. Referring to the preliminary inspection conducted by the TNPCB in the wake of public complaints of emission, SIILs updated release said: We provided to the TNPCB all the technical details of the operations, which confirmed that all parameters and key readings of the particular period of March 23 were well within the permissible range. Since all parameters were found within permissible levels and there were no cases of illness, we believe that this should have been the subject matter of detailed technical evaluation by TNPCB, it said. Referring to the closure of the unit, the Sterlite release said, We will engage with the TNPCB to explain the factual position and are committed to cooperate fully with the authorities in this regard, in order to be able to restart operations. The company welcomed the Supreme Courts verdict and pledged to continue to work in close association with the government of Tamil Nadu and other regulatory bodies, towards maintaining highest standards of health, safety and environment.
Making it clear that SIIL was not averse to improvements, D. Dhanavel, general manager (Projects), Sterlite Copper, said: We reiterate our commitment to cooperate with them [TNPCB]. We only seek a proper review of the data given by us and consideration of the fact that the parameters were normal we are very open to discuss, understand and implement. The company also claimed that it had complied with almost all the 30 directions issued by the TNPCB as part of upgrading its pollution control technology. Workers of the copper smelter and members of some womens self-help groups promoted by the company staged demonstrations demanding that the plant be allowed to resume operations. This is not the first time that SIILs copper smelter is in the eye of a storm. Right from its inception in 1997, the plant has had a chequered history. In fact, the Sterlite unit was closed for brief periods in 1998 and 2010. The company obtained the TNPCBs no objection certificate in August 1994 to set up the copper smelter at the SIPCOT complex in Meelavittan village. In January 1995, it got a clearance from the Ministry of Environment and Forests (MoEF) subject to certain conditions, including those laid down by the TNPCB and the Tamil Nadu government. Four months later, SIIL got approvals from the State government and the TNPCB under relevant laws. After its bitter experience in Gujarat, Goa and Maharashtra, where it had allegedly made a vain bid to establish the copper smelter, SIIL probably heaved a sigh of relief when it was granted the approvals and clearances for its Tuticorin project. But its hopes of a smooth sailing were belied. Various environmental groups and political parties, including the Left and the MDMK, were against the setting up of the plant in Tuticorin under the guise of industrialisation of the backward southern district. Fatal accidents at the plant owing to inadequate safety measures and the employment of unskilled labourers added fuel to the protests. The port town witnessed various forms of protests by farmers, fishermen, traders and workers demanding the closure of the plant. Political parties and environmental groups launched sustained legal battles against the copper major. Writ petitions pleading for action against SIIL were filed before the Madras High Court by the National Trust for Clean Environment in 1996, Vaiko in 1997, and the Centre of Indian Unions (CITU) district secretary K. Kanagaraj in 1998. Flouting of rules
The petitioners pointed to the flouting of various rules and norms while granting clearances to the company. The report submitted by NEERI in 1998 had brought this to light. The first and foremost among the violations related to the location of the plant within 25 km from the ecologically sensitive Gulf of Mannar, which has around 3,600 species of fauna and flora in three ecosystemsseagrass, mangroves and coral reefsand 21 islands running almost parallel to the coastline. At least two of them, Van Tivu and Koswari Tivu, in the Tuticorin group of islands, fall within a 7-km radius from the smelter plant. The second contention was that the MoEF should have fulfilled the mandatory requirement of holding a public hearing before clearing the project, as the investment exceeded Rs.50 crore. The petitioners also demanded the closure of the plant on the grounds of nonadherence to the condition stipulated by the TNPCB to provide a 250-metrewide greenbelt around the battery limit of the industry as contemplated under the Environmental Management Plan. They also cited the NEERI report of 2005, which had recorded the severe pollution caused by the plant. The groundwater samples taken from the area indicated that the proportions of copper, chromium, lead, cadmium and arsenic and chlorides and fluorides were too high when compared with Indian drinking water standards. The anti-Sterlite campaign scored its first major victory on September 28, 2010, when the Division Bench of the High Court, which heard the writ petitions, directed the company to close down its plant. The court also declared that the employees of the company would be entitled to compensation under Section 25FFF of the Industrial Disputes Act, 1947. It directed the Collector to take all necessary steps immediately to re-employ the workforce in other firms. Protracted legal battle However, SIIL appealed in the Supreme Court against the order. The apex court passed an interim order on October 1, 2010, staying the judgment of the High Court. The protracted legal battle exposed the inconsistency and failure of the Centre and the State government to take timely administrative and legal measures to conserve the Gulf of Mannar biosphere, environmentalists point out. They say the proposal sent by the Chief Wildlife Warden on April 30, 2003, to the State government to declare the Gulf of Mannar a marine national park under Section 35(4) of the Wildlife Protection Act, 1972, was kept in cold storage for nearly 10 years.
The TNPCB, which in its consent order of May 22, 1995, under the Water (Prevention and Control of Pollution) Act, 1974, stipulated that the copper smelter should be located 25 km from ecologically sensitive areas, conveniently removed the stipulation in its consent order of October 14, 1996. The TNPCBs inconsistency was betrayed when it scaled down the width of the mandatory green belt from 250 m to 25 m, they allege. Despite the apex courts order, the anti-Sterlite campaigners appear to be firm in their resolve to carry on with their struggle seeking the closure of the copper smelter. Vaiko said: We might have lost a battle now but we will continue with our war. Fatima Babu said: Though the verdict is disappointing, it is not scary. With the level of public awareness growing steadily, if people put up a real resistance, I think our struggle will succeed. She said her optimism stemmed from the pro-people stand taken by Chief Minister Jayalalithaa on various issues such as the laying of a pipeline by Gas Authority of India Limited through farmlands in the Thanjavur delta, attack on fishermen by the Sri Lanka Navy, and retrieval of the Katchativu island from Sri Lanka. The chambers of industry are of the view that the TNPCBs closure order would hamper investment in the area. Describing the incident as unfortunate, former president of the All India Chamber of Commerce and Industry and secretary of Tuticorin Hub Port Development Council, J.P. Joe Villavarayar, said the TNPCBs order had come at a time when the State and Central governments were planning to implement projects such as the MaduraiTuticorin industrial corridor, an outer harbour, a ship-building yard and the expansion of the airport in the region. However, he maintained that the industry should adhere to safety norms and pollution control measures as stipulated by the government. Company sources say that the copper smelter recorded a phenomenal growth in the past 17 years. It started production with an installed capacity of 60,000 tonnes per annum (TPA) in 1997 and touched the 4,00,000 TPA mark in 2007. The plants phosphoric acid production has already reached 2,30,000 TPA. It has a captive power plant with a generation capacity of 160 MW. According to the sources, the companys performance graph indicates an increase in turnover from Rs.50 crore in 1997 to the present Rs.18,085 crore. The company contributes 0.18 per cent to the gross domestic product at the national level and 3.3 per cent at the State level. Ten per cent of the total cargo volume handled at the Tuticorin port is supplied by Sterlite, and the
company contributes Rs.3,000 crore to the exchequer. It has a workforce of 4,100, including 3,000 contract workers. Besides, it offers indirect employment to 20,000 persons. Claiming that the Tuticorin unit had contributed Rs.200 crore to the local economy, the company said it had plans to increase the amount to Rs.700 crore by 2023. Environmentalists said that they were not opposed to industrialisation. We welcome any industry which does not destroy the environment and the ecosystem of the region. Our genuine concern is that Tuticorin should not become another Bhopal, T. Subash Fernando, secretary of the National Forum for Environmental Protection, said. M. Jhonson and R. Raj, leaders of the Northern Region Country Craft Fishermens Association, said the fisherfolk bore the brunt of the industrial pollution. The district had started losing its traditional trades such as pearl diving, salt production and fishing. The fish catch in the Gulf of Mannar had dwindled owing to pollution, they lamented. Environmental groups maintained that although the Supreme Courts April 2 order permitted the copper smelter to continue its operation in Tuticorin, it had made two important points. One, it praised the petitioners for taking up the cause of the general public at a time when very few would venture to litigate for the cause of environment, particularly against the mighty and the resourceful. Secondly, it made a significant point relating to the eventuality of relocating the plant in order to safeguard the Gulf of Mannar biosphere reserve. As and when the Central government issues an order under Rule 5 of the Environment (Protection) Rules, 1986, prohibiting or restricting the location of industries within and around the Gulf of Mannar Marine National Park, then appropriate steps may have to be taken by all concerned for shifting the industry of the appellants [Sterlite Copper] from the SIPCOT industrial complex depending upon the content of the order or notification issued by the Central government under the aforesaid Rule 5 of the Environment (Protection) Rules, 1986, subject to the legal challenge by the industries, the court pointed out.
Lamenting a legacy JOHN CHERIAN Margaret Thatcher was a deeply divisive figure as Britains longest serving Prime Minister, with her pro-industry, anti-people policies. CATHAL MCNAUGHTON/AFP
Margaret Thatcher attending a church service in Berkshire to mark the 25th anniversary of the Malvinas War on June 14, 2007. THE death of the longest-serving British Prime Minister in the 20th century and the first woman to hold the post, Margaret Thatcher, has led to an outpouring of tributes from various capitals. Heads of state and titans of industry were magnanimous in their tributes to the lady whom they credited for arresting Britains post-imperial decline and breaking the back of the working-class movement. She was also extolled for her co-starring role with the U.S. President Ronald Reagan in hastening the demise of the Soviet Union and the collapse of the socialist bloc. In fact, the name Iron Lady was bestowed on her by the Soviet Unions army newspaper Red Star in the 1980s to highlight her uncompromising and rigid ideological posturing. She, however, got along well with Mikhail Gorbachev, the man who presided over the dissolution of the Soviet Union. I like Gorbachev. I can do business with him, she had said. The West won the Cold War without firing a shot, she would say later. Alongside Reagan, she was responsible for the escalation of the Cold War. Both had threatened to introduce more nuclear weapons to prepare better for a possible theatre nuclear war. She had put Cruise nuclear-capable missiles on British soil disregarding widespread protests. A world without nuclear weapons would be less stable and more dangerous for all of us, she had once
said. But, besides the praise, her demise has stirred negative emotions in Britain as well as in other countries that suffered as a consequence of her actions. Many Labour Members of Parliament have refused to re assemble in Parliament to pay formal tributes to Margaret Thatcher despite summons from their leader, Ed Milliband, to do so. The British government had a change of heart about calling it a state funeral. The last British Premier to receive a state funeral was Winston Churchill. In London and Glasgow, many people took to the streets to celebrate, toasting her death with champagne and cider. One Briton left a bottle of milk at the doorstep of the Thatcher residence. As Education Minister, Margaret Thatcher had scrapped the provision of free milk for schoolchildren. Maggie Thatcher, Milk Snatcher was a favourite refrain of protesters during her years in power. For many schoolchildren coming from a poor background, a glass of milk was equivalent to their morning breakfast. When Thatcher came to power, one in seven of Britains children lived in poverty. By the time she completed her reforms, the number had risen to one in three. MIKE SARGENT/AFP
U.S. President Ronald Reagan at ameeting with British Prime Minister Margaret Thatcher in New York on October 23, 1985. Margaret Thatcher, while undermining domestic British industry and deregulating the countrys financial sector, made tens of thousands of ordinary Britons jobless. She had first come to power with only 40 per cent of the vote. Her handling of the miners strike (1984-85), the defining event of her tenure, was particularly brutal. Mathew Parris, a former aide to her, has said that the miners strike will be her abiding legacy. It did seem as if half of Britain was taking up arms against another half of Britain. She would say that it was a necessary battle, Parris said.
The National Union of Mineworkers (NUM) had an entirely opposite view. Margaret Hilda Thatcher is gone but the damage caused by her fatally flawed policies sadly lingers on. Good Riddance, NUM said on its website after the announcement of her demise. George Galloway, MP, noted that Margaret Thatcher destroyed more than a third of Britains manufacturing capacity, significantly more than Hitlers Luftwaffe ever achieved. The Labour Party, rechristened New Labour in the early 1990s, adopted similar policies, abandoning its roots in the labour movement. Britain instead became a haven for oligarchs and trade union-busting media magnates like Rupert Murdoch. The city of London is now completely free of any meaningful anti-monopoly regulations. Many Britons have said that Margaret Thatchers true legacy was Tony Blair, who matched her propensity for neo-liberalism, commitment to Washington and war. The Malvinas War Margaret Thatcher considered her suppression of the trade unions an even more important victory than the one she scored over the Argentine army two years earlier. She had successfully ordered the British army to expel the Argentine army which had re-established the countrys sovereignty over the Malvinas. The islands, which the British had named the Falklands, continue to be under the imperial stranglehold of the British though they are situated thousands of miles away from England. She had drawn comparisons between the miners struggles and the war with Argentina, saying that the victory over the miners was more important. We had to fight the enemy without in the Falklands. We have always to be aware of the enemy within, which is much more difficult to fight and more dangerous to liberty, the former Prime Minister had observed. Ken Loach, the iconic British film-maker, described Margaret Thatcher as the most divisive and destructive Prime Minister of modern times. He said that she left behind a legacy of mass unemployment, factory closures and destroyed communities. Loach, maker of many international award-winning films, said that the right way to honour Thatcher was to privatise her funeral. Put it out on competitive tender and accept the cheapest bid. Its what she would have wanted, Loach said. In Northern Ireland, her uncompromising policies led to unnecessary additional suffering. She withdrew the status of political prisoners for incarcerated Republican fighters and starved 10 of them to death when they demanded the restoration of their fundamental rights. Gerry Adams, the public spokesman for the Irish Republican Army (IRA) for three decades and the current leader
of the Sinn Fein (Northern Irelands second biggest Party), said that Margaret Thatchers Irish policy had failed miserably. Her espousal of old draconian militaristic policies prolonged the war and caused great suffering, Adams said in a statement following her demise. There were demands that Margaret Thatcher should be tried for war crimes committed during the war with Argentina in 1982. The charges mainly relate to the sinking of the Argentine naval cruiser General Belgrano by the British navy. A British submarine targeted the ship as it was sailing away from the conflict zone. Three hundred and twenty-three Argentine sailors, most of them young cadets, died in the operation. When the Belgrano was sunk, it was well outside the 320-km exclusion zone that the British army had unilaterally declared around the disputed islands. The territorial dispute is now on the front burner, with Argentina mobilising international opinion to regain sovereignty over the Malvinas. Even Washington is urging London to find a negotiated settlement to the dispute that resulted from what American officials have described as the de facto occupation of the islands. Giving a helping hand to Margaret Thatcher in the war against Argentina was her good friend, the Chilean dictator Augusto Pinochet. Chile, which shares a long border with Argentina, provided Britain with a great deal of military intelligence during the war. Using its long-range radar tracking facilities, the Chilean army was able to warn the British of impending Argentine air attacks. After his ouster from power in 1990, Pinochet was an annual visitor to London, where he was regularly hosted by Margaret Thatcher. When Pinochet was arrested in London in 1998, she made a strong plea for his immediate release and visited him when he was under house arrest in 1999. She openly said at the time that Britain owed a debt to the fallen dictator for all the help he had provided during the Falklands war. Thousands of people in Chile were tortured and killed during the 17-year Pinochet era. AFP
Chile's former dictator General Augusto Pinochet (centre) and his wife being visited by Margaret Thatcher at their temporary residence while under house arrest at Wentworth in Surrey, United Kingdom, on March 26, 1999. Margaret Thatcher, however, could not militarily arm-twist China on the Hong Kong issue. Beijing refused to budge on the issue of sovereignty. Margaret Thatcher had to reluctantly hand over Hong Kong to the mainland. In 1984, Britain and China signed an agreement for the transfer of Hong Kongs sovereignty in 1997. Britain duly adhered to the deadline. The Iron Lady had more than met her match in the Chinese leader, Deng Xiaoping. Margaret Thatcher had taken a tough stance initially during the two-hour-long meeting she had with the Chinese leader to resolve the future of the British colony but was forced to accept the inevitable when Deng showed absolutely no signs of compromising. Support to apartheid The former British Premiers cosy relationship with the apartheid regime in South Africa has been well documented. When the rest of the world was calling for the release of Nelson Mandela and urging a speedy end to apartheid, Margaret Thatcher threw in her support behind the racist regime and its bid to stem the inevitable. She went to the extent of describing Mandela as a terrorist and the ANC as a typical terrorist organisation. She described those predicting the demise of apartheid as living in cloud cuckoo land. Margaret Thatcher, along with Reagan, provided financial aid and succour to rebel groups allied to the apartheid regime in Southern Africa like the UNITA in Angola and the Renamo in Mozambique. The civil wars in these two countries alone led to the deaths of more than a million people.
Margaret Thatcher also was a supporter of the Khmer Rouge and its leader, Pol Pot, in the 1980s despite strong evidence emerging about the massacres of Cambodian citizens. A Vietnamese-led invasion force ousted Pol Pot from the capital in 1979 but the West continued to recognise him as the legal head of the Cambodian state until the late 1980s. The new, moderate Communist government was seen in the West as being too close to Moscow and that was anathema when the Cold War was at its height. Margaret Thatcher was also a great admirer of the Indonesian dictator General Suharto, who she described as one of our best and most valuable friends. Suharto had played a key role in the bloody purges in Indonesia in 1965-66 in which more than 5,00,000 Indonesian Communists and sympathisers were killed. Even after being pushed out of power, Margaret Thatcher continued to exert her influence over world politics. Two months after leaving office, she was credited with influencing President George Bush the senior to start the first Gulf War after having a long meeting with him in Aspen, Colorado. Before that as Prime Minister, she had encouraged Saddam Husseins ill-advised invasion of Iran in 1980. Secret files, recently revealed, show that Britain was trying to sell Hawk jet fighters to Iraq in 1981. Margaret Thatcher, along with Reagan, was effusive in her welcome of the Afghan mujahideen, the precursors of the Taliban and the Al Qaeda, hailing them as freedom fighters. Through the good offices of another strongman, General Zia ul-Haq of Pakistan, the mujahideen and Arab fighters were lavishly funded and trained. It is another story that British troops are now bleeding in Afghanistan fighting the Taliban militia, many of whom were once closely linked to British Intelligence agencies.
Looking for money in news C.P. CHANDRASEKHAR The digital revolution is fundamentally transforming the news as business even as the once-dominant print news segment wrestles with a broken revenue model and looks to price online news in a feeble attempt to fix it.
The newspaper industry had for long considered the Internet a poor, if not inappropriate, medium to carry its editorial content and a mere add-on to direct traffic to print, but it is now being forced to rethink. All of a sudden online editions are being seen as potential sources of subscription revenue to support the industry. The practice of setting up paywalls for access to online editions, which was earlier restricted to a few newspapers such as The Wall Street Journal and Financial Times, and then adopted by some general interest papers such as The Times and The New York Times is spreading fast. The most recent adopters of the practice include The Washington Post, Orange County Register (OCR), The Telegraph, San Francisco Chronicle and The Sun. Most of them have set up metered paywalls offering free access to a specified number of articles or for a certain time period before the meter starts ticking. In the case of the OCR, for example, aspiring readers can register and do so for free for seven days, after which they will have to pay either $2 a day or $365 a year. The effort to charge for access to online content is gathering momentum.
The reasons for this search for online reader revenue are many. To start with, across the world, but with some exceptions like India, newspapers and magazines have experienced a steep decline in circulation numbers and advertising revenues. Back in 2010, the Organisation for Economic Cooperation and Development (OECD) in its study The Evolution of News and the Internet found that the annual growth of global newspaper circulation had been slowing since 2004 and had reached zero in 2007 and then turned negative. Relative to 2004, circulation in 2010 had fallen by 34 per cent in the United States, 22 per cent in the United Kingdom, and 18 per cent in Japan. Matters have only worsened since. In the U.S., in particular, weekday newspaper circulation, according to the Newspaper Association of America (NAA), peaked at 63.1 million in 1973, and fluctuated in the 60-63 million range until 1990, fell sharply to 50.7 million in 2007 and further to 44.4 million in 2011. Over 2012, the industry association WAN-IFRA reports, newspaper circulation fell by 4.3 per cent in North America. The drop in print circulation is due to larger numbers of people accessing news from other sources. The first shift was to television. But the substantial difference in the way news is purveyed in that medium made this more an opportunity than a challenge. If newspapers could restructure themselves to provide the background and analysis to the events and developments captured by televisions immediacy, those whose interest is triggered by television news would turn to print. This did indeed happen in many contexts. The problem arises when both news and analysis of varying authenticity are made available from multiple sources that can be accessed on the Internet. According to the Pew Research Centres 2012 News Media Consumption survey, 39 per cent of respondents reported accessing news online or from a mobile device the day before they were canvassed. When combined with other online and digital news sources, the share of people who got news from one or more digital forms on an average day rose to 50 per cent. That came close to the audience for television news, and was well ahead of the figures for print newspapers and radio (29 per cent and 33 per cent respectively). The drop in circulation and the competition from the Internet for advertising dollars has, in turn, affected print advertising revenues adversely. According to the U.Ks Offcom, between 2007 and 2011 global newspaper advertising revenues declined at a compound annual rate of 6.9 per cent to reach 60 billion, while for magazines advertising revenues declined at an annual rate of 6.8 per cent to 28 billion. On the other hand, expenditure on all Internet advertising grew at a
compound annual rate of 16.0 per cent, to touch 48 billion. Only a small part of Internet advertising revenue accrued to the online editions of newspapers, which was inadequate to neutralise the loss in print. In the U.S., for example, print advertising revenue fell from a peak of $48.7 billion in 2000 to $18.9 billion in 2012: a fall of $29.7 billion or 61 per cent (without counting for inflation). Newspaper online advertising revenues on the other hand rose from a meagre $1.2 billion in 2003 to a paltry $3.4 billion in 2012. The trend seems relentless. Since 2000 there have been only four years in which print advertising revenue growth was positive; in the crisis years 2008 and 2009, the decline was as large as 17.7 per cent and 28.6 per cent respectively. Not surprisingly, many argue that the news as business is fundamentally threatened and that print (besides radio) as the means to deliver news is in terminal decline. The decision of Newsweek magazine to stop publishing its print edition after nearly 80 years of presence and to go only digital on a subscription platform as of the start of this year seems to confirm this assessment. The words, after the closure, from Tina Brown, editor-in-chief of Newsweek and the online-only The Daily Beast, were also a form of corroboration. When I returned to print with Newsweek, it did very quickly begin to feel to me an outmoded medium. While I still had a great romance for it, nonetheless I feel this is not the right medium anymore to produce journalism, Tina Brown reportedly said. Clearly, the digital revolution is fundamentally transforming the news as business. The challenge is, of course, not just to the news business. In the realms of book publishing, music and film, for example, the way in which content is produced and delivered to the user has changed and is changing dramatically. This has posed challenges to traditional businesses engaged in the production, marketing and retailing of these sources of information, analysis and entertainment. It is not just that the physical formsink-and-paper books, CDs and DVDsin which these services were embodied to make them products that can be sold like goods on shelves are now disappearing. The wholesale and retail outlets that stocked and sold these services packaged as products are also disappearing as download becomes the mode of delivery and/or consumption. The coming revolution in higher education
Even higher education is seen as being challenged. Just two months ago, the U.K.-based think tank Institute for Public Policy Research released a report prepared by a team led by Sir Michael Barber, education expert and chief education adviser to the Pearson Group (which publishes Financial Times and The Economist), ominously titled An avalanche is coming: Higher education and the revolution ahead. It warned that unless traditional brick-and-mortar, contact-based, face-to-face universities respond to the challenge from much cheaper, or even free, online education, they risk closure. Massive open online courses, or Moocs, now not only provide high-quality course content and lectures on the Internet free of charge, but, as is likely to happen in the State of California that boasts the best public universities, could be recognised sources that deliver credits which regular universities must accept. Finding niche strengths In ways that are obvious and perceptible, the combination of computing power, advances in communication and human ingenuity have indeed brought about dramatic changes and posed new challenges. However, the challenge to the news business is even greater. In the other areas noted above, the challenge is to reorganise the way services are delivered and find niche strengths that permit charging a relatively high price or fee for physical, or face-to-face, delivery. This is because these, to start with, are services marketed at a price that covers costs and offers a profit. What the digital revolution has done is to change the way in which outputs are produced and sold. The brick-and-mortar distribution business may be challenged, but the industry is not. The problem in the business of collecting, collating and reporting news and offering long-form news analysis is that its costs have not been covered by the price charged, whether it is in print or in television. It is not just newspaper profits but newspaper production costsnewsprint, industrial (printing, shipping, delivery) and editorial coststhat have been covered by revenues from advertising. Based on the basis of data from 17 representative newspaper companies, the NAA estimates that in 2012 circulation revenues accounted for only 27 per cent of total newspaper media revenue, whereas print advertising delivered as much as 46 per cent, despite its long-term decline. The balance came from digital advertising (11 per cent), new revenue sources such as digital marketing and e-commerce (8 per cent), and niche publishing and direct marketing (8 per cent). Given this revenue structure, the conclusion must be that the sharp decline in advertising revenues is destroying the current revenue model in the industry. If looked at in terms of opportunities offered by audience behaviour, the
appropriate strategy seems to be an increasing emphasis on online news repackaged to attract a larger share of netizens. Most newspapers seem to be doing just that. But that, too, does not seem to be a solution for a number of reasons. The first is that it does not resolve the cost-price discrepancy that characterises the industry, with price falling far short of unit costs. As of now, online editions and news websites for print news enterprises are not substitutes but add-ons. So there are only additional costs to be incurred with little saving. But if the move, as in the case of Newsweek, is away from print to the web, some savings are inevitable. In the case of print, for example, one estimate suggests that costs can be divided into core promotional, editorial and administrative costs, amounting to 40 per cent of the total, and production and distribution costs that account for 60 per cent. The shift to the web is expected to cut production and distribution costs by at least half. High cost business However, this does not go far enough. As of now, costs are seen as absorbing close to 90 per cent of revenues in successful news ventures. But only about a quarter of those revenues come from sales, with the remaining coming from non-circulation revenues, principally advertising. So, even an online news venture must draw substantial advertising revenues. This is where the catch lies. Technology companies, such as Google, Yahoo, Facebook, Microsoft, and AOL dominate the digital advertising market, taking as much as two-thirds of the total. That leaves little for print providers seeking to move increasingly online. Which is why there is a drive to monetise the web by creating metered or fullfledged paywalls. The idea clearly is to make news pay for itself to the maximum extent possible. The evidence is quite strong that those looking for quality reportage and news analysis are not too responsive to price. So setting up price walls may not in itself damage the transition in all cases, unless what is being offered is not worthy. The problem, however, stems from three other sources. Most newspapers did not choose to invest in the transition to online delivery when the times were good. Being worthy requires money, and the best time to spend it is not when times are bad. Second, there are institutions, including The Guardian, that are investing time, money and ingenuity to build a valuable web presence. The Guardian has emerged as the third most visited newspaper website across the world but has done so while staying with a free access model. The presumption must be that
advertising revenues would respond to finance the costs that give a news website its distinguishing character. Whether it does or not, the presence of such sites undermines those seeking to draw revenues from readers. Finally, the competition from free access sources that news websites face are immensely more than the loss that music, book publishing or higher education sectors suffer on account of piracy. Copyright in the news business is difficult to define and administer. And there are innumerable netizens and their collectives that are willing and eager to use the net to report news and analyse developments for free. All this only establishes the commonly accepted principle that the revenue model for the news business on the web is yet to be defined. The problem is that the current revenue model of the print news business is also broken. The attempt to price online news is a feeble attempt to fix it.
Tamil cinemas double act

New Delhi: End of a fast PTI
Aam Admi Party chief Arvind Kejriwal during his indefinite fast against the hike in power tariffs, at Sundar Nagari in New Delhi on April 1. It is a part of Delhi where the OB vans never go. Even walking is a challenge because the narrow road is chock-a-block with rickshaws, horse carts, scooters, people and vendors occupying every inch of the footpath. But since March 23, this particular corner of Delhi, called Sunder Nagri, has undergone a symbolic makeover. This is the place where Arvind Kejriwal, convener of the Aam Aadmi Party (AAP), chose to go on a fast to protest the hike in water and power tariffs in Delhi and urge people to stop paying their inflated bills. The narrow road turned into a political battleground for the AAP. But there were no elaborate security arrangements, big speeches or huge rallies. People went about their routine lives, and Kejriwal continued his fast in a nondescript house. Initially, nobody paid much attention, but as the days progressed and he started looking weak, people began to take note. By the 13th day, people started lining up just to see Kejriwal. Asked why they were going to see the man, a woman named Salma said Aajkal kaun neta hamare jaise logon ke liye apni jaan deta hai. Yeh kar reha hai to jaroor kuchh alag hoga (Which political leader gives his life for people like us. If he is doing it, he must be different from others).
He ended his fast on April 6, the 15th day. On that day the AAP started another civil disobedience movement by reconnecting the power connections of those whose connections had been cut for not paying their bills in response to the AAPs call. So far, a few connections have been restored with no news of any cases being lodged against anyone. This is exactly what we are trying to do. We are trying to convince people that they need not fear the government; they need not fear action and if they collectively stand up against injustice, the government will not be able to do anything against them, said Manish Sisodia of the AAP. But what next? How does one convert sympathy for a fasting man to votes and how does one convince people that they should vote for a party which has a skeletal organisational structure and which has not made its views known on many other serious issues? This is our challenge. We are here to change the way politics is viewed and practised in this country. We have to convince people that politics is not for the good of a handful of leaders but for the good of people at large who have had no say in the way governance is administered in the country today, said Kejriwal. Prashant Bhushan, the noted lawyer and an AAP member, says much will depend on the outcome of the Delhi elections which are due in November. We hope to contest the Delhi elections, and hopefully, that will energise things in the rest of the country, he said. Purnima S. Tripathi
West Bengal: A death in custody PTI
IN KOLKATA on April 8, a protest in the wake of the police action on SFI activists and the custodial death of Sudipto Gupta. Chief Minister Mamata Banerjees comment on the death of Sudipto Gupta, a 22-year-old leader of the Students Federation of India (SFI), the student wing of the Communist Party of India (Marxist), in police custody in Kolkatathat it was a small matter, a petty mattershocked both the political class and civil society. The remark, made in Bangalore two days after Sudiptos death, pointed to a growing streak of insensitivity in her towards political opponents. On April 2, as part of a law-defiance programme in protest against the postponement of college elections in the State, Sudipto and other SFI activists courted arrest and were being taken to the Presidency Central Correctional Home in a private bus. According to the police, Sudipto leant out of the vehicle and was hit by a lamp post. He died subsequently in a State-run hospital. However, eyewitnesses, including SFI activists, claimed that Sudipto was pushed out of the bus by the police personnel who were inside the vehicle. They also alleged that even after he had fallen the police assaulted him with lathis. According to a preliminary investigation by the police, Sudiptos death was accidental. His injuries are consistent with the head hitting a blunt, stationary object and subsequently falling on a rough surface, said Joint Commissioner of the Kolkata Police (Headquarters) Jawed Shamim. However, even before the report of the post-mortem examination had been submitted, Mamata Banerjee announced that the incident, though unfortunate, was an accident.
SHAHBAZ KHAN/PTI
Outside Yojana Bhavanin New Delhi on April 9, West Bengal Finance Minister Amit Mitra is jostled by SFI activists even as the police try to ensure his safety. Critics alleged that she was trying to influence the investigation. They claimed that whenever the government or the State administration found itself in an uncomfortable position Mamata Banerjee lapsed into denial mode instead of addressing the issue. For instance, she initially dismissed the now-infamous Park Street rape case in February 2012 as staged in order to malign her government. Investigations, however, proved her wrong. Again, when farmers were committing suicide in the face of an agrarian crisis, Mamata Banerjee attributed the deaths mainly to personal reasons. When Kolkata was reeling under a dengue epidemic, she claimed it was a creation of the media. CPI(M) Polit Bureau member and Leader of the Opposition Surya Kanta Mishra said, She has a limited vocabulary consisting of words like petty, small, concocted and shajano [Bengali for staged]. She picks one of them from time to time. He also maintained that the police cannot shrug off responsibility as Sudiptos death did take place in police custody, though it may have been in transit custody. The Left has demanded a judicial probe into the incident. State Congress president Pradip Bhattacharya criticised Mamata Banerjees comment and said such remarks did not behove a Chief Minister. The legendary film director Mrinal Sen said: For me the one who rules the State, under whom the police are, that is, the Chief Minister, is responsible for this death. Sudiptos family sought the intervention of Governor M.K. Narayanan. We have not received any word from Mamata Banerjee. If we did, we would not have come to the Governor, said Sudiptos elder sister Sumita after her family met the Governor on April 5. The family made it clear that it wanted
justice and not assistance as initially offered by Mamata Banerjee and requested the Governor for an inquiry by the Central Bureau of Investigation (CBI). All India general secretary of the SFI, Ritabrata Banerjee, said a 22-year-olds death cannot be a trivial matter. Mamata Banerjees priorities are all wrong. On the day Sudipto was killed, she was seen amid the revelry of the opening ceremony of the IPL [Indian Premier League], he said. According to him, Sudipto has become a martyr for democracy as his death has prompted other organisations to come out and demand the restoration of democratic rights. Sudiptos death led to widespread protests by the SFI and other Left forces not just in West Bengal but in other areas of the country. PTI
Chief Minister Mamata Banerjee arrives there amid protests. In New Delhi, matters took an ugly turn on April 9 when protesters turned violent as Mamata Banerjee and her team of Ministers were entering Yojana Bhavan for a scheduled meeting with Planning Commission Deputy Chairman Montek Singh Ahluwalia. The States Finance Minister, Amit Mitra, in particular, who got separated from his colleagues, was roughed up and his clothes were torn. Left leaders, including CPI(M) West Bengal State secretary and Left Front chairman Biman Bose, former Chief Minister Buddhadeb Bhattacharjee and Surya Kanta Mishra, strongly condemned the incident in New Delhi. However, that very evening Trinamool Congress supporters took to the streets in different parts of the State and targeted CPI(M) party offices. The following
day, too, the violence continued; Presidency University, Kolkata, became a battleground between supporters of the Trinamool Chhatra Parishad and the SFI. Mamata Banerjee, on getting news of the spreading violence, cancelled her appointments in New Delhi and returned to Kolkata. Suhrid Sankar Chattopadhyay
Delhi: Radiation row A petition filed recently in the Delhi High Court seeking the removal of mobile phone towers from the vicinity of schools, colleges and residential localities has highlighted the lack of adequate regulatory mechanisms to deal with hazardous radiation. The writ petition, filed by Sriniwas Sharma, a resident of Pitampura, points out that the towers emit harmful radiation. Sharmas family was allegedly affected by radiation emitted from one such tower; his elder son died of cancer in 2012. The High Court issued notices to the Union of India and the Delhi government on March 8 on the matter. Vikas Nagwan, the advocate representing Sharma, highlighted the lack of a coherent policy to check emissions from radiation towers. He said: We filed RTI [Right to Information] applications before different government departments asking about the policy on installation of mobile towers in residential localities. The Telecom Regulatory Authority of India, in reply to the RTI application, informed us that TRAI has not issued any guidelines regarding the erection of mobile towers in residential areas. We have not received replies yet from other government departments. A number of studies illustrate the harmful effects of mobile phone tower radiation. A study titled Report on Cell Phone Tower Radiation Hazards by Sujoy K. Guha and Sudarshan Neogi of IIT Kharagpur states: The base stations are connected to directional antennas that are mounted on the roofs of buildings [RTT, or Roof Top Tower, and RTP, or Roof Top Pole] or on ground based towers (GBT). The antennas may have electrical or mechanical down-tilt so that the signals are directed towards ground level. Large numbers of these towers are mounted near schools, hospitals, residential and office buildings to provide good mobile phone coverage to the users. These cell towers transmit radiation 247, so people living within 100s of metres from the tower will receive 10,000 to 10,000,000 times stronger signal than required for mobile. The Rajasthan High Court, while deciding a PIL petition in August 2012, had cited an inter-ministerial report that details a number of studies on the adverse effects of mobile radiation on health. Also, in several significant judgments the Supreme Court has extended the constitutional right to life to include the right to a healthy environment, including in M.C. Mehta vs Kamal Nath in 1997. However, the government is yet to formulate concrete measures to address this serious public health concern. Sagnik Dutta
Sugar Industry: More decontrol RAMESH SHARMA
Dr C. Rangarajan (centre) along with members of the committee that looked into issues relating to deregulation of the sugar sector, at a press conference in New Delhi on October 12, 2012. HAVING followed a policy of partial control of the sugar industry since 1966, save for two brief spells of decontrol, the Centre decided to partially decontrol the Rs.80,000-crore industry for the 688-odd sugar mills in the public, private and cooperative sectors. The Cabinet Committee on Economic Affairs (CCEA) approved the move on April 4. The government had progressively pruned the levy obligation on mills from 65 per cent in 1984-85 to 10 per cent in the 2010-11 sugar season (October-September), in lockstep with its neoliberal economic policy. Sugar for the public distribution system (PDS) will now be procured by State governments from the open market. In a written reply to a query in the Lok Sabha on February 26, Minister of State for Consumer Affairs, Food & Public Distribution Prof. K.V. Thomas conceded that while Tripura and West Bengal disfavoured the removal of levy obligation, others, including Andhra Pradesh, Chhattisgarh, Delhi, Himachal Pradesh and Andaman & Nicobar Islands, preferred the status quo so that the supply to the PDS was not affected. The Ministry clarified that the quantity of sugar procured for the PDS and its retail price for below poverty line (BPL) families would remain unchanged at Rs.13.50 a kg. The Centre will reimburse States the difference in the price from the PDS retail price for sugar procured from the open market. But this is subject to a maximum purchase price of Rs.32 a kg for the next two years. The end of the regulated monthly release mechanism for free sale sugar, which partial decontrol entails, is to benefit the industry. It is expected that the industry will now be able to clear the mounting arrears to cane growers and also plough back investment into the industry.
AKHILESH KUMAR
A farmer waiting to deliver his crop at a sugar factory in Punjab. It is unfortunate that the other critical issues flagged by the Rangarajan Committee, such as rationalisation of sugarcane pricing, abolition of cane area regulation and the bonding of sugarcane farmers with specific mills, and dispensing with the minimum distance criterion for setting up sugar factories, have been left for the States to address. The scrapping of the levy sugar obligation and the regulated release mechanism was roundly assailed by the All India Kisan Sabha. In a statement, it said the decision would only promote the interests of the profit-seeking corporate sugar mills, leaving farmers, consumers and the cooperative sector in the lurch. Critics also cautioned the government that the fresh burden of Rs.2,500 crore or so on sugar subsidy would be the first casualty if sugar prices flared up. If past experience of controlled decontrol of the petroleum, diesel, seed, pesticide and fertilizer industries is any guide, high sugar prices for the consumers and hefty profits to sugar barons will be the unavoidable outcome. G. Srinivasan
Seven sexes of an organism PHOTO COURTESY WIKIPEDIA
Tetrahymena Thermophila. A CILIATED protozoa, or unicellular organism, called Tetrahymena thermophila, has been found to have seven sexes that can mate with each other! In a paper published in PLoS Biology, a team of scientists has described the intricate process of DNA editing and rearrangement which determines the sex of a new T. thermophila. T. thermophila is covered with short, hair-like cilia. Although ciliates are single-celled, unlike bacteria, they house their DNA in a nucleus the same way that plants, animals and fungi do. In fact, ciliates are remarkable for having two nuclei, a larger one and a smaller one. While multicellular animals have special cells for reproduction (sperm and eggs), ciliates, being unicellular, have multiple nuclei instead. The larger nucleus (macronucleus) is used for the day-to-day running of the cell, while the smaller micronucleus is used only for sexual reproduction. When two ciliates reproduce, the macronucleus disappears from both partners, while the micronuclei undergo meiosis and then come together to form a new macronucleus. It is during this process that the sex of the new T. thermophila gets determined.
The researchers used modern sequencing techniques to track down the sexdetermination genes. In T. thermophila, the sex-determination genes are active during mating, when they control whether two T. thermophila cells can get together. Actually, ciliates, fungi, and similar organisms have mating types instead of sexes. Unlike sexes, mating types look the samethey are just incompatible when it comes to mating. Cells which express different sexdetermination genes can mate, while those with the same gene cannot. While T. thermophila has seven different mating types, some kinds of fungi have thousands of different mating types! The researchers identified a pair of genes, dubbed MTA and MTB, which are responsible for the sex of T. thermophila. The proteins made by these genes are probably expressed on the surface of the cell, where they can interact with the MTA and MTB proteins of other T. thermophila cells to find out whether they are different. By studying the macronucleus and micronucleus, the researchers discovered that MTA and MTB, which are always located side by side, come in different versions corresponding to the different sexes. The sex of the new T. thermophila cell depends on which copy of MTA and MTB it gets, which seems to be randomly decided. R. RAMACHANDRAN
Directing algae PHYSICAL REVIEW LETTERS
When exposed to light, certain micro-algae converge to the centre of a pipe, a behaviour that could prove advantageous in industrial uses of these organisms. CERTAIN marine phytoplankton move vertically in water to reach regions with sufficient illumination for photosynthesis. A research team in France has investigated similar behaviour in the algae Chlamydomonas reinhardtii. When their light-sensitive part is exposed to light, the algae can move two flagella to swim towards the light source. The researchers placed these algae in water flowing through a pipe and used a fast-imaging technique to observe them as they moved in response to the illumination. The combination of the flow drag and the attraction due to light caused the algae to gather around the central axis of the pipe. The effect, say the researchers, could be exploited for biohydrogen production where algae expel hydrogen gas during photosynthesisto prevent the organisms from clinging to walls and facilitate the gas separation process. R. RAMACHANDRAN
Breakthrough in crystallography
X-ray crystallographic observation of liquid guest molecules using crystalline sponges. A RESEARCH team led by Makoto Fujita of the University of Tokyo, Japan, and complemented by Kari Rissanen of the University of Jyvskyl, Finland, has made a fundamental breakthrough in single-crystal X-ray analysis, the most powerful method for molecular structure determination. The teams breakthrough was reported in a recent issue of Nature. X-ray single-crystal diffraction (SCD) analysis has the intrinsic limitation that the target molecules must be obtained as single crystals. Now, Fujita and Rissanen have established a new protocol for SCD analysis that does not require the crystallisation of the target molecule. In this method, a very small crystal of a porous complex absorbs the target molecule from the solution, enabling the crystallographic analysis of the structure of the absorbed guest along with the host framework. As the SCD analysis is carried out with only one crystal, smaller than 0.1 0.1 0.1 mm in size, the required amount of the target molecule can be as low as 80 ng. Fujitas and Rissanens work reports the structure determination of a scarce marine natural product from only 5 g of it. Many natural and synthetic compounds for which chemists have almost given up the hope of analysing crystallographically can now be easily and precisely characterised by this method.
R. RAMACHANDRAN
Exotically shaped nuclei PHYSICAL REVIEW LETTERS
Researchers have found a rare example of an atomic nucleus whose shape resembles a squashed American football. ATOMIC nuclei can exist in a variety of shapes: depending on how the neutrons and protons arrange themselves, they can be spherical, ellipsoidal (resembling an American football) or, in rarer cases, triaxial (like a squashed, flattened American football). Triaxial nuclei were predicted in the 1960s and initially believed to be fairly common. Yet, triaxial deformations have only been observed in excited states (such as those formed during nuclear reactions), in which nuclei oscillate between squashed and unsquashed shapes. Now, a team of researchers from Japan, the United States and the United Kingdom has figured out the symmetry of an isotope of germanium (76Ge) by measuring the radiation emitted by the nuclei as they were smashed into a uranium target. The results show that the atom, in its lowest energy state, is a rare, perhaps unique, example of a triaxial nucleus. R. RAMACHANDRAN
First independent confirmation of global land warming A UNIQUE new observational study that did not use temperature recordings from land stations has confirmed global land warming, according to a scientist at the National Oceanic and Atmospheric Administrations (NOAA) Cooperative Institute for Research in Environmental Sciences (CIRES) in the United States. The finding refutes concerns that artefacts in land-based observing systems have led to an artificial global land-warming trend. Since 1952, using a network of weather stations dotted around the globe to take daily readings, scientists have recorded an increase of 1.2 degrees Celsius in the earths air temperature over land. Several scientists have, however, questioned the accuracy and representativeness of the land station observations that were used to determine this warming trend and, therefore, do not have confidence in it. Imagine that a house is built next to the thermometer that was taking the measurements, said CIRES scientist and lead author Gilbert Compo of the NOAAs Earth System Research Laboratory. How much does that affect the long-term trend at that measuring site? Changes in a weather stations surroundingssuch as trees being replaced by concretecan affect the temperatures recorded at that station. Urban development uses materials that effectively retain more heat than natural cover, leading to a local warming. Similarly, even minor relocation of a weather station can introduce an inconsistency in the recorded temperatures over time, especially if it involves a change in altitude. So you need to try and get rid of that unrepresentative warming. Scientists have made corrections to the recorded temperatures to compensate for urban warming and have also corrected several other factors that would cause the observed data to inaccurately represent the true situation. The question is: Did those corrections work? To determine whether the observed warming trend is accurate, Compo and his colleagues used a different approach to investigate land surface temperature trends. The scientists used 20th Century Reanalysis (20CR), a physically based, state-of-the-art data assimilation system that circumvents the problems faced in using weather station temperature data. 20CR doesnt have those problems because we never used a thermometer to determine air temperatures over land, Compo said. Given the variables of barometric pressure, sea surface temperature, sea-ice concentration, and carbon dioxide, volcanic and solar variations, the scientists were able to use the 20CR method to infer the air temperatures over land across the globe. The derived
temperatures agreed both annually and centennially with those found by weather stations. The scientists published their findings in the recent issue of Geophysical Research Letters. R. RAMACHANDRAN
This article was downloaded by calibre from http://frontlineonnet.com/stories/datacard.pdf
Kashmir debate SHUJAAT BUKHARI An in-depth study of the real Kashmir problem, with the focus on Azad Kashmir, backed by facts and figures.
THE Australian politico-strategic analyst, author and academician Christopher Sneddens latest book Kashmir: The Unwritten History is not an ordinary addition to a long list of books on the protracted conflict in the State of Jammu and Kashmir. The book is by any means a different one for it not only gives a twist to the cause of the division of Kashmir in 1947 but also throws up a solution on the basis of what the author sees as realities on both sides of the Line of Control (LoC). Although mainly focussing on Pakistan-Administered Kashmir (PAK), or Azad Kashmir since it is officially called as such there, the book opens up a wider debate on the causes of the division and also talks at length about how the dispute can be resolved. Snedden argues that the people of Jammu and Kashmir have been marginalised in the process of resolution of the conflict and that India and Pakistan have failed to break the ice as it seems that both the dominions have subtly reconciled to the fact of retaining their portions of the State. Calling the residents of the State J&K-ites, he envisages a primary role for them to decide the future of the State. Let the People Decide is the peg of his proposal to resolve the dispute, although he adds a caveat that the biggest challenge will be forcing India and Pakistan to agree on the process. The book is well researched and gives a comprehensive overview,
substantiated with figures and facts, of Azad Kashmir, its polity, economics, governance, administrative structure and electoral processes. This is perhaps the first book that devotes half of its pages to appendices, highlighting statistics and other relevant material dating back to 1947. The most significant issue that Snedden has tried to bring to the fore is the debate around how and why Maharaja Hari Singh was forced to accept Kashmirs accession to India in 1947. The general impression, which is mainly the outcome of the Indian discourse, which bails out New Delhi from any allegation of forcibly occupying the state, has been that it was the October 22, 1947, raid by the Pukhtoon tribal people from Pakistan that forced the Maharaja to seek Indias help and temporarily accede to India. The theories that have revolved around this are many, and one that was dominant in history books was that the Maharaja was not keen to accede to India and would have opted for an independent and sovereign Jammu and Kashmir. The raid and Sheikh Mohammad Abdullahs (he was the tallest leader of Kashmir then) liking for India made the Maharaja shoot off a request for military help from India. Historians have hardly contested this theory as it has always been projected by New Delhi as the reason, thus legitimising the accession. But Snedden, taking full advantage of the events that shaped a little before and after 1947, tries to emphasise that there were at least three important factors that instigated the division of the state that ultimately were responsible for the present status of Jammu and Kashmir. According to many analysts, this bails out Pakistan as well, as it is held responsible for pushing the tribal people to annex Kashmir. The three major actions, which the author highlights, include the Muslim uprising in Poonch in western Jammu, serious inter-religious violence throughout the Jammu region, and the creation of the Azad Kashmir government on October 24, 1947, which he believes was the final blow to the unity of the state. Snedden also blames the disunity among Muslims for this division, as they constituted 77 per cent of the princely domain. But, according to him, the Maharaja was quite unpopular with his Muslim subjects, and his armed forces had lost control of large parts of the state. Had they (Muslims) been united, it would have been difficult for the Maharaja to take such a decision. Snedden also suggests that the people of the state were desperate to decide their fate. He cites two further actions to strengthen this argument. In late October-November, Kashmiris formed a peoples militia to defend themselves against the invading Pukhtoons who intended, after looting, raping and
pillaging Kashmiris, to capture J&K for Pakistan and in early November proPakistan Gilgitis rebelled and sought to join Pakistan. These actions were enough to indicate their participation in 1947 in the attempts to determine the regions international status, he says. The author further tries to assert that the people of Jammu and Kashmir are the stakeholders in the unresolved Kashmir dispute. All these actions, the author maintains, suggest the need for taking the people on board to resolve the dispute. An important aspect of the book is the detailed and in-depth study of Azad Kashmir. The author shows how Azad Kashmir has virtually become an integral part of Pakistan and is completely dependent on Islamabad. But for the pending resolution of the dispute on which Islamabad has tried to harp on, it is short of being a de jure part of the country. SHUJAAT BUKHARI
A PROTEST BY members of the Jammu and Kashmir National Students Federation on the Azad Kashmir University campus in Muzaffarabad in November 2004. Going by the present status and the actions carried out by Islamabad since 1947, the author says that Azad Kashmir has been totally subjugated and could as well be called Pakistan Integrated Kashmir. The author has done an exhaustive post-mortem of the evolving political system, governance, elections and role of Islamabad in the day-to-day affairs of Azad Kashmir. He concludes that the region has not been fully empowered despite the electoral processes that have taken place regularly, as Azad Kashmiris really do not determine the longevity of their Prime Ministers. This, in other words, means that it is Islamabad that holds the key. It is worth mentioning that the general impression that has been too wide is that it is the Army corps headquarters in the Murree tourist resort on the way to Azad Kashmir which is ruling
Muzaffarabad. The book emphasises a greater role for the people of Jammu and Kashmir (on both sides) and calls them the third party in the dispute since India and Pakistan have failed to resolve it. Surprisingly, there are still no large, vocal pressure groups in India and Pakistanno compelling constituencies encouraging and pressuring their leaders to resolve the Kashmir dispute. This may be because Indians and Pakistanis have not properly understood the indirect cost to them of the dispute, he notes. Equally, he says, the two nations citizens have not fully understood what the long-suffering and politically peripheral people of J&K have endured since 1947. He argues that the people of Jammu and Kashmir are at the centre of the dispute in every way and they need to be taken on board and not marginalised. According to the author, the Simla Agreement of 1972 has changed the nature of the dispute as it was taken up by India and Pakistan as a bilateral issue, among many others. Snedden opines that the task of resolving the dispute must be taken up through an extended process of dialogue. He suggests that the people of Jammu and Kashmir, under the slogan Let the People Decide, must convene by whatever means they see fit, a body that I have called the Council to Resolve International Status of J&K. He then outlines the steps the leadership on both sides of the LoC have to take, and suggests that India and Pakistan provide non-partisan support. He is confident that his proposal is worth considering and that it will not only benefit India, Pakistan and the J&K-ites but also resolve the status of Azad Kashmir, which is what the book is all about. While the author is strong in his argument as well as in narrating the events that led to the division of the state, it is difficult to misjudge the 1947 tribal raid, for had it not happened the state may have been pushed to a better solution. The book, in that sense, should not be seen as a final analysis of the events that shaped the present status of the State. Nevertheless, it is a good read.
Migrants and culture SAGNIK DUTTA The essays will be of immense value to students of diaspora studies as they encompass significant cultural transformations over a long period of history.
THE multiple dimensions of the phenomenon of migration have long aroused the interest of sociologists and anthropologists alike because of the complex interplay of socio-economic and cultural factors that shape the identity of the migrant subject. The study of diasporic cultures has considerably shifted focus in recent times from an earlier preoccupation with the purely economic aspects of migration to a more holistic appraisal of the enduring cultural configurations that it produces. In the early and late phases of colonialism, migration was often an instrument for furthering the interests of exploitative colonial capitalism leading to largescale displacement and uprooting of people from their native cultures. For the migrants, especially those employed as cheap labour in a variety of colonial projects, the initial phase of acclimatisation to the alien land was strewn with difficulties. Culturally speaking, this period was also marked by a longing for the native land and consequent attempts at preservation of an authentic native culture. This cultural transformation by no means follows a straightforward and similar trajectory across the entire spectrum of diasporic populations.
For instance, the Punjabi diaspora in the United Kingdom has an interesting history of cultural transformationfrom a deep emotional attachment to the authentic culture of the native land, there has been a gradual shift to shaping their own more complex cultural configurations in the 1980 and 1990s. The anthropologists R. Ballard and G. Baumann, in their work in the 1990s, have presented a nuanced ethnography of contesting cultural identities among the diaspora in multi-ethnic Britain. On the other hand, in Bangladesh, migration to West Asia as well as to the West led to the reintroduction of a more authentic, pure Islam among the migrant population shorn of local rituals, which were perceived as impurities. The anthropologist Katy Gardners work in the 1990s dwells at length on these aspects of migration from Bangladesh. The book under review, a collection of essays on the Indian diaspora in the Caribbean edited by Rattan Lal Hangloo, touches upon the diverse aspects of the history of Indians who migrated to the Caribbean between the 1840s until the 1920s, mostly as indentured labourers. The understanding of the migrant Indian populations in the Caribbean is complicated by the heterogeneity of the group in terms of cultural practices and the complex nature of the encounter between indigenous cultures and colonial domination. This collection of essays successfully teases out the complex cultural reconfigurations of the Indian diaspora in the Caribbean. Culture is seen as a dynamic, ever-changing entity, which even while asserting itself as a form of resistance to colonial hegemony also emerges as a site of contestation for competing power centres within the indigenous community. The essays compiled in the volume speak to each other in complicating the emergence of an Indian culture against the backdrop of a range of historical events shaping the diasporic identity. Drawing on a range of archival sources and secondary literature on the subject, including newspaper articles and colonial records, the essays engage with the question of reconstruction of culture emerging at the interstices of significant socio-economic and political changes. One of the central concerns that most of the essays address is how the notion of an Indian culture is shaped through contestations between heterogeneous, at times competing, cultural ideologies and how in the postindentureship period this ideology is used as an instrument of nation-building. While the book makes a significant contribution in delineating the diverse ways in which the cultural identity of the Caribbean diaspora is constituted,
one would have expected a more detailed and nuanced treatment in some essays of the question of nationalism and nation-building in the post-colonial societies in the Caribbean. The question of nation-building and the attendant need for legitimacy in a post-colonial society emerge from a project of cultural reconstruction of the colonised. In this context, adequately analysing the tenuous connections between cultural reconstruction and nationalism is significant to understand the history of a diasporic population. RAVEENDRAN/AFP
PRIME MINISTER KAMLA PERSAD-BISSESSAR of Trinidad and Tobago with President Pratibha Patil after she was conferred the Pravasi Bharatiya Award at the 10th Pravasi Bharatiya Divas 2012 in Jaipur on January 9, 2012. This collection of lucid essays would have been further enriched by contributions that highlighted these links in a nuanced way. The dynamic nature of the culture of the Indian migrants, which evolved through a complex interaction of socio-economic and political processes, is adequately brought to the fore by some essays in this collection. Radica Mahase, in her essay titled Indian culture in Trinidad, notes how the Indian culture transported to Trinidad by the indentured labourers comprised a variety of Aryan, Dravidian, Hindu and Muslim traditions as well as cultures of different villages, castes, districts and religions. The essay also touches upon the complex negotiation of the colonial masters
with the cultural practices of the labourers: it notes that while every attempt was made to suppress the culture of African slaves, less repressive measures were used for the Indian indentured labourers. The colonial masters were selectively intolerant of the cultural practices of the labourers that they deemed to be a threat to colonial domination and order. The essay also traces the gradual evolution of an Indian culture as forging a sense of solidarity among Indians placed in a hostile environment of oppression and enslavement. Sherry-Ann Singhs essay titled The Ramayana in Trinidad looks critically at the question of cultural reconstruction in an alien environment and outlines the processes of formation of new cultural configurations shaped by the contingencies of the diasporic condition. The essay illustrates these processes with the variety of ways in which Tulsidas Ramcharitmanas was introduced into the socio-cultural and emotional life of the indentured labourers. The author notes that the wide appeal of the religious text led to its integration into the ideologies of any religious organisation attempting to gain a following among Hindus in Trinidad. The 1980s witnessed a relaxation in caste considerations in ritual matters, which was evident in the increasing number of non-Brahmins officiating at the yagnas. In fact, the author mentions that there was a practice of non-Brahmin Ramayana readers presiding over informal satsangs. Several ideals posited by Ramcharitmanas have been reconsidered and reshaped according to changing social norms. The other essay by the same author, titled Trinidad Hindusim, 1917-1945, outlines the process of Sanskritisation that had begun by the beginning of the 20th century whereby there was a move towards attaining a standardised form of Hinduism by eliminating rituals that were seen as not in keeping with the spirit of sanatan dharma. Growth of nationalism Some of the essays in the book trace the growth of nationalism and the emergence of a national culture in the post-colonial period in the Caribbean. Rattan Lal Hangloos essay titled Nationalism and Education: Dr Eric Williams throws light on the ways in which the nationalist project was shaped by Dr Eric Williams through concerted efforts to forge solidarity between nationalists of different cultural, ethnic and even territorial roots in the Caribbean. Other essays in the book also touch upon the growth of nationalism. Radica Mahases essay traces the growth of a Trinidadian middle class that made attempts to propagate Indian culture in the colony. Radica Mahase does gesture towards some of the obstacles to a process of emergence of a common national consciousness as well as the wider socio-cultural ramifications of the
nationalist project. She mentions an article in East Indian Weekly, which reprimanded women for not reverting to the glorious past of Mother India and called on the Trinidadian Indian population to marry Indian. The project of nationalism in a society with diverse strands of culture, however, needs to be problematised further. One is left wondering after reading the essays that touch upon this subject if the project of nationalism involving the integration of diverse cultural practices was an entirely seamless activity. What kind of tensions did it produce across the contours of caste and religion of a heterogeneous diasporic population? The book raises these important questions but does not adequately answer them. The project of nationalist integration in multicultural societies in the post-colonial period has never been an easy one. The enterprise of nationbuilding has always encountered the difficult questions of the position of minorities in the project, the risk of lapsing into majoritarian cultural domination, and the legitimacy of the project itself vis-a-vis its vision of a multicultural society. There could have been a deeper engagement with these concerns. There are other essays in the book that throw light on the salient aspects of the cultural identity and history of indentured labourers in the Caribbean. Ann Marie Bissessars essay titled Breaking the Glass Ceiling traces the experience of the female indentured labourers who migrated to the Caribbean. Shaheeda Hussains article presents a general history of the economic and labour activities of women who had adopted occupations apart from plantation labour, including market-vending, small-scale agriculture and market gardening. The article traces the gradual emergence of entrepreneurship and the emphasis on being self-reliant among Indian women who wanted to engage in economic activities outside the state structure. The book will be of immense value to students of diaspora studies, historians and anthropologists as it encompasses significant cultural transformations over a long and turbulent period of history.
Flawed greatness A.G. NOORANI The two volumes cover, among other things, a period of tension in India-China relations over the boundary issue and Nehrus role in it.
THESE volumes cover a critical phase in the relations between India and China as they glided from the bhai-bhai phase to estrangement. Prime Minister Jawaharlal Nehru does not come out well from the record. The compiler of his works, Madhavan K. Palat, comes out worse and confirms the impression of ineptness commented in an earlier review. Nehrus important letter to Prime Minister Zhou En-lai on December 14, 1958, complaining of Chinese maps, which initiated the correspondence in which the dispute was laid bare, is editorially sourced to Subimal Dutt Papers, NMML. Also available in JN Collection and PIB [Press Information Bureau]. A competent editor, equipped for the job, would have properly provided the only authoritative sourcethe first White Paper, published on September 7, 1959. Foreign Secretary Subimal Dutts papers are a secondary source. The PIB could not have released it before the White Paper. A footnote on Walter Lippman ends with his books published as far back as in 1913 and 1915, to the neglect of more relevant and copious writings later. As far back as on November 20, 1950, Nehru declared in Parliament that the McMahon Line is our boundary while the frontier from Ladakh to Nepal is defined chiefly by long usage and custom, which is untrue. It was never defined. The McMahon Line was defined by an Indo-Tibetan exchange of very
brief notes on March 5, 1914, which confirmed the line drawn on an annexed map. This is what Nehru wrote to Subimal Dutt in a note dated November 11, 1958: In regard to the controversy we are having with the Chinese government about our frontier in Ladakh, there is one point which we should bear in mind. I am told that the frontier as claimed by us is not only marked in our maps but is part of the McMahon Line. If we touch the McMahon Line in one place, then there is no particular reason why it should not be varied elsewhere (emphasis added, throughout). These words should prod serious reflection. They expose the arrogant unilateralism which marked Nehrus approach. Forget the contradiction between the 1950 declaration and this 1958 sophistry. But if anyone told the Prime Minister of India this utter falsehood, what prevented him from simply sending for the agreed map? What he was told was indeed an utter falsehood. The McMahon Line did not extend to Ladakh. It was confined to the north-east. To think that Indias Prime Minister entertained the idea he apparently did is disturbing. THE HINDU ARCHIVES
JAWAHARLAL NEHRU AND ZHOU EN-LAI in Beijing on October 19, 1954. Nehru ordered the withdrawal of "all our world maps" a mere two months after the Panchsheel Agreement of April 29, 1954, and a few months before his visit to China. The McMahon Line was properly depicted as a clear line in the official map. He made, however, an even more consequential assertion later. On September 12, 1959, well after the boundary dispute erupted in the open, Nehru told the Lok Sabha apropos the McMahon Line, that in the Subansiri area or somewhere there, it was not considered a good line and it was varied afterwards by us, by the Government of India. The line was not defined in words but on a map, which was an agreed treaty map. If a party can legally
and morally alter a treaty map, so can it the words of a treaty, an unthinkable proposition. But if Nehru could vary the line in the east so could he in Ladakh, he evidently felt. He had done so earlier. On July 1, 1954, Nehru wrote a memo ordering the withdrawal of all our old maps. The White Papers on the Indian States published in 1948 and 1950 had official maps which showed the entire northern boundary from the Sino-IndoAfghan trijunction in the west right up to the Sino-Indo-Nepal trijunction in the east to be undefined. This was historically true. The McMahon Line was properly depicted as a clear line. The 1954 map, which followed the memo, showed a clear boundary line in the Aksai Chin, a line which had no basis in history or geography, in law or morality. It is over this line that the Nehru-Zhou talks in New Delhi in April 1950 collapsed. It is over this line that New Delhi routinely blocks out foreign maps. The Economist of March 30, 2013, is the latest victim. The map on page 21 is defaced by the authorities; but, anticipating this, the paper provides, at page 20, helpful guidance for using our interactive map at Economist.com/asian borders. There is a yet graver aspect. Our media and academia revel in accusing others of deception and cheating. They would do well to reflect on Nehrus unilateral change of maps a mere two months after the Panchsheel Agreement of April 29, 1954. Its pledge to respect each others territorial integrity applied to Indias maps of April 1954, not those of July 1954. What would the Chinese have made of the change, which was made shortly before Nehrus visit to their country in October 1954. THE HINDU ARCHIVES
The Sadar-i-Riyasat Karan Singh (right) administering the oath of office and secrecy to Bakshi Ghulam Mohammed as Prime Minister of Jammu and Kashmir. On July 29, 1957, Sheikh Abdullah was dismissed as Prime Minister. India was well aware of the existence of a boundary dispute with China even before the issue was joined in the correspondence with Zhous letter of January 21, 1959. Subimal Dutt warned Nehru on January 9, 1959: The Chinese have not yet raised a dispute with us about Tawang, but I am not sure that they will not do so some time in future. Zhou did so on September 8, 1959, but conceded it in April 1960. Tawang was ceded to India by Tibet in 1914. Now, China demands its return, which no Indian government can accept. In the phase covered by these two volumes, there must have been considerable internal debate with Nehru as the prime participant. The volumes yield little information. Nehrus note to Subimal Dutt on February 6, 1959, was typical of the man condemn sin, but practise it. It read thus: I agree that a discussion in Parliament at this stage will not be desirable. But I do not like asking the Speaker to disallow this question. It creates a bad impression on Parliament as people get to know about it. I think it should be possible, as you say, to give an answer to the question without embarrassing ourselves or the Chinese. I do not see any harm in mentioning that some negotiations have taken place and will be continued, though Barahoti need not be mentioned. We might say that
there are small pockets or territories on the border in regard to which there has been some controversy and discussions have taken place. In one or two of these disputed pockets, we receive a report that some Chinese soldiers came there just when the winter set in. Owing to climatic conditions, it is not easy to go there till the winter is over. There was no excess of candour here. SHEIKH ABDULLAHS ARREST An editorial footnote tells the reader: Sheikh Abdullah was under house arrest from August 1953 to January 8, 1958. House arrest means confinement in the detainees house as in the case of Aung San Suu Kyi. On August 8, 1953, Sheikh Abdullah was taken to Udhampur under armed escort after his arrest and dismissal from office as Prime Minister of Jammu and Kashmir. He was imprisoned in Tara Niwas Palace Jail. It was a military operation as ordered by Nehru (vide Major General Hiralal Atal; Nehrus Emissary to Kashmir; 1972). A critic, Mir Qasim, described what followed in Srinagar. The New Delhi-installed stooge, Bakshi Ghulam Mohammed, stopped his daily walks. His house was under attack ( My Life and Times; page 70). This writer has described in detail the planning and execution of that constitutional crime in his book due to be published in April ( The Kashmir Dispute 1947-2012; Tulika Books, New Delhi). To this day both separatists and unionists denounce Nehrus action. The wound is yet to heal. Sheikh Abdullahs prosecution on false charges of plotting to accede to Pakistan was also ordered by Nehru. His letter to Nehru on October 27, 1958, soliciting his advice in the selection of a suitable counsel to defend him might seem odd, but not if one knows the background. As Sheikh Abdullah writes in his memoirs Flames of the Chinar: We tried to engage top lawyers for our defence, but under pressure from the government they all refused. THE HINDU ARCHIVES
SHEIKH ABDULLAH COMING OUT of the Jammu Jail in April 1964.
The letter was not a request for advice. It was a taunt. Having installed Bakshi Ghulam Mohammed in power, Nehru defended the rigged polls he staged for mutual benefit. The protege knew he was indispensable to New Delhi and began to expand his reach. It is not a normal situation. And difficult situations have to be faced sometimes in abnormal ways. Nevertheless, in spite of all this, elections have been held in Kashmir twice. You may sayand you may perhaps be rightthat the elections are not of that high standard as we would like them to be or as they have been held in the rest of India. Nevertheless, whatever be the standard, it does give a great opportunity to the people. It has given them that opportunity. There are those difficulties. We cannot have it in ideal conditions anywhere. In these conditions, the situation throws up men to deal with those conditions. And the present Prime Minister of Kashmir, Bakshi Ghulam Mohammed, is a person who undoubtedly has shown quite remarkable qualities of organisation and leadership. He has done something. I am quite free to confess here that sometimes he has acted in ways which I have not liked at alljust as all of us may act in some waysand I have ventured to draw his attention to these too. But the fact is that here is this great problem and this great responsibility which he is shouldering, and carrying this burden. But when Bakshi attacked Nehru himself, he had to be admonished albeit as a friend and colleague. He downplayed it, Probably you lost your temper. This is what Bakshi said at his press conference on October 2, 1958: I would have kicked this prime ministership long ago but I dont know what holds me here. It is preferable for the Muslims of Kashmir to eat pork rather than take the rice from Delhi. Does not smuggling go on in India? There is corruption in India everywhere. What is going on in Central government? Look to LIC [Life Insurance Corporation of India] and other concerns. Those fat Lallaswith their big belliesare taking lakhs of rupees and dealing in smuggling day and night. Why they are not exposed? If a Kashmiri Muslim takes a four anna bit as a bribe, he is being bad named everywhere. But those Lallas are Hindus. Those smugglers and corrupt people are bearded Sikhs also. But Kashmiri Muslimsbastardsare Muslims because they have acceded to India. Bakshi was rattled by charges of corruption which were being aired in New Delhi. Would Nehru have permitted any other person to talk thus? This leniency was strange in a person so intolerant as Nehru. He denounced Prof. Nirmal Kumar Bose for his book My Days with Gandhi because of his comments on the Mahatmas experiments with his own sexuality. According to Nehru, he ran Gandhiji down. Nehru had his friend Mridula Sarabhai thrown out of Constitution House in New Delhi because of her support to Sheikh Abdullah.
Volume 46 is rich in material on M.O. Mathai, who resigned as Special Assistant to Nehru on January 12, 1959, following press reports of corruption. Nehru wrote to Y.B. Chavan on January 28, 1959. Mathai was of great help to me in a variety of ways. He was with me long before I joined government. I found him to be a man of integrity, loyalty and efficiency. His work did not directly deal with governmental problems. It was partly to organise my office, which he did very efficiently, and partly to process papers which came up to me. This saved me a good deal of trouble. It was not the kind of work which would normally be done by other Secretaries. In fact, I have today a Principal Private Secretary, who is a senior ICS officer, apart from a number of other secretaries, who do various kinds of work for me adequately. I do not at present intend having anyone in place of Mathai, because I do not think that particular type of work can be done by anyone else that I know of. It was a unique relationship. To him Nehru confided about V.K. Krishna Menons waywardness. Mathai was an employee of the American forces in Assam drawing a very high salary before joining Nehrus staff in January 1946. His assets were in the range of Rs.2-3 lakh. (How much would they be worth in 2013?) The question cannot be evaded. How did Nehru, a man of refinement, allow so coarse a person as Mathai to get close to him? He was close also to Indira Gandhi. She sought his advice on her desire to visit Sheikh Abdullah very shortly after his imprisonment. Clearly, she did not believe in the charges her father had levelled against him. Mathais written opinion will be published soon enough. TYAGIS LETTER A letter by Mahavir Tyagi to Nehru on January 31, 1959, warned him against making Indira Gandhi president of the Congress. Please dont be under the misapprehension that this lining up of supporters for the proposal to put up Indus name is due entirely to the force of her personality. It is being done hundred per cent to please you. If you are unable to understand this little fact, then I would say that there is a curtain over your eyes. I am writing this harsh letter because it is only with alum that this cataract can be excised from your eyes though the alum itself gets dissolved in the process. You must understand that today there is such an atmosphere of self-serving greed for position and that you would be hard put to point to two individuals who are true friends and can talk to each other openly. You must accept that the old values and dreams when we would take people of all hues to our bosom have shattered. Today the dreams of our individual ambitions are separate and we are all running after them. This is what is known as individualism. In this atmosphere, it is
natural to have a mindset of fear, selfishness and suspicion. Today when the structure of governance is weakening, bribery and blackmarketeering are holding sway, each one is engaged in stabbing the other in the back, when most of the leaders are adorning ministries and the Lok Sabha and State Assemblies and only the four-anna ordinary members are left in the Congress cadres, how is poor Indu going to hold up this weakened frame? So far the people have been forgiving you, saying what is poor Jawaharlal to do when he gets no time from government preoccupations. The responsibility for reforming the Congress is Dhebar Bhais. Indus election will take away this safety valve. People will start calling the Congress an offspring of the government. THE HINDU ARCHIVES
INDIRA GANDHI WITH MAHAVIR TYAGI at the All India Congress Committee session in Bombay on May 23, 1966. In a letter to Nehru on January 31, 1959, Tyagi warned him against making Indira Gandhi party president. Under Indira Gandhi that came to pass, but not before she, as Congress president, forced Nehru to sack the democratically elected E.M.S. Namboodripad government in Kerala from office in 1959. Her ideas of reforming the party and the government were different from those of poor Mahavir Tyagis. Nehru suffered him. Indira sent his likes packing. Tailpiece: Beyond a doubt, Jawaharlal Nehru was one of the most clear-headed statesmen of modern times. This is very evident in his address to the International Commission of Jurists in New Delhi on January 5, 1959. He said with breathtaking clarity and consistency: There is, as the AttorneyGeneral [M.C. Setalvad] said, the judge who protects the individual from the
dangers of wrong executive action that is very necessary. I think, and yet it may be that in a changing society, the judge may be left a little behind by the changes that have come over society and may not quite represent that mood which happens to be the mood of society and which perhaps represents reality more than the statute law which the judge administers. It may be even the executive represents that much more for the moment, it may of course be that the executive acts wrongly and oppressively and should be pulled up, but there are all these aspects of these questions, which are not so simple as to be put down in a phrase, in a simple phrase. Nothing can be, of course.
Muslim bogey A.G. NOORANI The book provides powerful intellectual tools to Indian secularists in the struggle against reducing Muslims to the other in polity.
ON the 50th anniversary of Indias independence, L.K. Advani, who still aspires to be Prime Minister of the country, wrote an article in his partys organ, BJP Today. It was not, as you might expect, on national issues. It was on his pet hatethe Muslims of India. A.B. Vajpayees style was different. But he must be the only Prime Minister in a multicultural society to denounce a section of his own people, and that too, shortly after they had been subjected to a pogrom in Gujarat in which at least 2,000 Muslims were killed. Vajpayee attacked Muslims shortly thereafter in two speeches, in Goa and while on a trip abroad. Right now deputations of Muslims wait on Ministers to seek redress against arbitrary arrests of Muslims on charges of terrorist activity, which the courts seldom uphold. Anne Nortons book, published on March 25, makes a very timely appearance indeed. The author is Professor of Political Science at the University of Pennsylvania. She writes: In our time, the figure of the Muslim has become the axis where questions of political philosophy and political theology, politics and ethics meet. Islam is marked as the preeminent danger to politics; to Christians, Jews, and secular humanists; to women, sex, and sexuality; to the values and institutions of the Enlightenment.
The Wests response to Islam reveals more about the West than it does about Islam. It reflects its own insecurities. Anne Norton calls for the emancipation of Muslimsnot for Muslims, not for Muslim societies, and not for Islam, but to ensure nothing less than the survival of Western civilisation. The brave band of Indian secularists who fight against the BJPs and its mentor the RSS plans to reduce the Muslims of India to the other in our polity are, in truth, battling for the survival of Indias democracy and the values cherished by its founding fathers. This book provides powerful intellectual tools in that struggle. Anne Norton systematically demolishes Western myths which find a very ready acceptance among the chatterati in India. She tackles subjects like freedom of speech, sex and sexuality, and equality and democracy and relentlessly describes how Muslims have been repeatedly miscast as anti-free speech, as opponents of human rights; in short the enemy. Even seemingly benign calls for tolerance mark Muslims as undesirable. The author points out that the liberal and social democratic states of our time hesitate to include them and extend to them the rights and privileges of citizenship. Though we maintain our belief that law is neutral, that the Constitution secures rights, and that America has true freedom of religion, American citizenship has not protected Americas Muslim citizens from surveillance, detention, unlawful searches, and the assaults of discrimination. The American confrontation with the Muslim question has exposed non-Muslim Americans to the same threats of discrimination, surveillance, detention, and imprisonment when they act as allies. Europe has furnished no stronger, surer protection of rights. Frances severe republican secularism, laicite, has not produced the promised neutrality of the public sphere. The same places that once heard calls for the expulsion of the Jews now hear demands for an end to Muslim immigration. France burns in the riots of its Muslim suburbs, the banlieues dslam. French society is torn by controversies over the veil. RAJEEV BHATT
A RALLY DURING the Anti-Terrorism Global Peace Conference in New Delhi on May 31, 2008. Prof. Anne Norton tackles subjects like freedom of speech, sex and sexuality, and equality and democracy and relentlessly describes how Muslims have been repeatedly miscast as anti-free speech and as opponents of human rights; in short, as "the enemy". Prof. Robert Papes erudite study traced the roots of terrorism to the humiliation of foreign occupation. Ehud Barak, once Israels Prime Minister, publicly declared, If Id been born a Palestinian, I would have been a terrorist. Anne Norton renders a service by pointing out that while much of what Sayyid Qutb wrote on jehad is unacceptable, a lot of what he wrote on other themes deserves praise. Qutbs concern is most evident in Social Justice and Islam, originally published in 1949. The title will sound odd to early twenty-first century ears, for social justice is a phrase more resonant of the Society of Friends than of the Muslim Brotherhood. Qutb wrote that women have complete equality with men, and that the education of women is not merely possible, it is obligatory. He takes the presence of women in the workplace for granted. He recognised, long before the idea was common among Western feminists, that the workplace should be a place in which women are as comfortable as men and no one need face sexual harassment. Qutb regarded care for the earth as reverence for God. The Koran requires that part of the profits from mining and other activities be paid into a common fund. Qutb read this as the Korans recognition of the need to repair the damaging effects of these activities and to acknowledge that the earth belongs in the first instance
not to men but to God. That care extends to animals. Qutb recalls the stories of Muhammad in which he praises a man for giving water to a thirsty dog and condemns a woman who failed to feed a cat. The Muslim asks, Is there a reward for us in the case of animals? and Muhammad answers, There is such a reward in the case of every living creature. It is important to understand this because the Muslim Brotherhood is in power in Egypt today. Branding Muslims the other serves to divert attention from ones own failings. In the deserts of Iraq and Afghanistan, Israel and Palestine, the harshest questions the West confronts are not about Islam, but about ourselves. We acknowledged that a few Americans had done evil abroad. We failed to acknowledgeeven to seethat America as a whole does similar evils at home. We were, as a people, willing to acknowledge the evil of sexual licence, of pornography, of a culture of celebrity, narcissism, and exploitation. Acknowledging these defects served to draw the eye away from other failings we are less willing to examine. The United States had become a carceral society, imprisoning a large portion of its own population. The design, building, maintenance, supply, and staffing of the American prison system is a major industry. The role of former prison guards in the abuses at Abu Ghraib should raise questions about the practices of prison guards at home. Anne Norton deserves gratitude for her powerful contribution to the discourse on secular values all over the world, India included.
Editors Note ITS the onset of summer in Chennai. The beginning of a long season of heat, sweat and swear words, a season in which one never ceases to long for a sojourn in hill stations. So when I got an invite from P.S. Venkatasubramanian, Vice President, Circulation, for the All India Sales Conference in Udhagamandalam, or Ooty, the immediate response was to accept it. The added incentive was his assurance that there would be no speeches, seminars, presentations and brainstorming sessions. It was going to be a grand get-together of his colleagues from all over the country celebrating their success and the leadership recognising with rewards the hard work that went into that success. I was not disappointed. The five days from the time we landed at the Coimbatore airport to the time we returned to the same airport were filled with moments of joy and shared experiences. The Coimbatore team of the Circulation Department, led by Apollo Rajkumar, surprised us with high standards of hospitality by taking care of every little need of the 200-odd participants. Its meticulous planning and execution were evident in every minute of our stay. When Frontline was relaunched with added features and a 60 per cent increase in its price, apprehension was palpable in and outside the organisation. The relaunch idea itself was viewed with an element of suspicion by friends and well-wishers. The dominant impression was that it was part of a marketing strategy in which the editorial side was complicit. Six months down the road, the good news is that the increased price has not deterred our loyal readers a bit. What is more, we have won over many new readers. Enriched content without any compromise on the character of the magazine is a major factor. What is equally important is the effort taken by the sales team to take it to every nook and cranny of the country with unprecedented enthusiasm and determination. The internal news about the increased reach and revenue of Frontline was encouraging. The hard evidence for this good news came at the conference. It was a great experience to learn firsthand from the salespersons on the ground that the magazine after its relaunch had been received very well by readers across the country. Its circulation has doubled in Udupi. There is a renewed interest in West Bengal. IT professionals of Bangalore responded with enthusiasm to the teams subscription campaign. Such encouraging news came in bits and pieces from young men and women (champs as Venkat would call
them) across dinner tables, on the lawns of Fernhill, and during karaoke and dance sessions and a mind-blowing awards ceremony that saw talent being rewarded generously. I overheard a conversation in the bus on our way back from Ooty to Coimbatore. The Frontline sales team freaked out, said a sales officer. Because they have achieved their targets, said Venkat. The success of a newspaper or a magazine depends much on the close, coordinated efforts of the editorial, advertising and circulation teams. About a decade ago, N. Ram, then Editor-in-Chief of The Hindu Group of Publications, declared that the walls dividing the different wings of the organisation were down. The Ooty conclave has once again proved what the vanishing of the walls could do to a magazine like Frontline. R. Vijaya Sankar
Building trust
THE interview with Hina Rabbani Khar by A.G. Noorani is one of the best I have read in recent times (Cover Story, April 19). She came across as an intelligent Foreign Minister with a passion for harmony and good relationship with India. She was candid and pragmatic in expressing her opinions. It is time for India to reciprocate her longing for peace. S.S. Rajagopalan Chennai YOUR cover story is a big boost to efforts to improve India-Pakistan ties. Hina Rabbani expressing her commitment to normalising relations with India offers hope. Her desire to remove the animosity in the hearts of people in both countries is encouraging. Even though she reiterates Pakistans view on resolving the Kashmir issue, one hopes that whoever forms the next government in Pakistan will follow the same policy in the interest of all concerned. Jacob Sahayam Thiruvananthapuram THE new visa agreement between India and Pakistan and the latter granting the Most Favoured Nation (MFN) status to India have revived hopes of improving bilateral ties. Although there are many unresolved issues, a sincere effort to start the composite dialogue process is the best way out. P. Senthil Saravana Durai Vazhavallan, Tamil Nadu ALTHOUGH Hina Rabbani says war is not even a remote option and speaks of a road map to resolve the vexed problem of Kashmir, she is silent on the November 2008 terror attacks on Mumbai and says very little on whether
Pakistan will dismantle the terror machinery in her country. N.C. Sreedharan Kannur, Kerala PAKISTANS animosity towards India is never going to change. The only difference now is that even while aiding and abetting insurgency and fomenting trouble in India, the civilian government in Pakistan is trying to befool India by pushing every now and then superficial confidence-building measures (CBMs) to foster its commercial interests. At the time of Partition and Independence, Pakistan was ably led by Mohammed Ali Jinnah, a secular intellectual, who struggled for a progressive Islamic nation. Unfortunately, he died the year after Independence. He did not have sufficient time to secure the moorings of his new homeland. Thereafter, with the exception of Benazir Bhutto, no politician has as prominently defended secular values in Pakistan. Ettirankandath Krishnadas Palakkad, Kerala THE Pakistan Peoples Party-led coalition government completing its full constitutional term is no mean achievement (Milestone of sorts, April 19). Although President Asif Ali Zardaris shrewd management of allies helped the civilian government survive and last its full term, the going may not be smooth for the PPP in the coming elections, with former Prime Minister Nawaz Sharif and cricketer-politician Imran Khan in the fray. Former President Pervez Musharrafs return to the country could make Pakistan politics more interesting. Coming from a person who only a couple of months ago accused India of warmongering, Hina Rabbanis assertions about Pakistans commitment to normalising relations is amusing. There is no reason for India to trust Pakistan now and it is better to wait for the election results before it takes any concrete steps.
K.R. Srinivasan Secunderabad, Andhra Pradesh SAURABH DAS/AP
Heritage THE article Buddhist treasures of Sri Lanka by Benoy K. Behl (April 19) accompanied by rare and excellent photographs makes Frontline a collectors item. It reminded me of Behls earlier articles such as those on the composite Hindu-Muslim architectural marvels of the Kashmir Valley, paintings in the Ajanta Caves, and rock-cut temples and viharas of India. Frontline, perhaps, is the only magazine that regularly publishes such articles on art, culture and architecture. These are not only informative but also throw light on our glorious past. S. Balakrishnan Jamshedpur, Jharkhand Tamil politics THE kind of competitive politics played out by political parties in Tamil Nadu over the Sri Lankan Tamils issue can only be described as a drama aimed at the vote bank (Tipping point, April 19). The resolution passed by the Tamil Nadu Assembly demanding a referendum on Eelam and calling for economic sanctions against Sri Lanka was clearly an act of one-upmanship by Chief Minister Jayalalithaa. At the behest of political parties in Tamil Nadu, the United Progressive Alliance government at the Centre has pumped in crores for relief and rehabilitation of the displaced Tamils. The aggression shown by political parties in Tamil Nadu to anything connected to Sri Lanka will undo all those initiatives.
J. Anantha Padmanabhan Trichy, Tamil Nadu THE article Tipping point was a cogent narration of the opportunistic propaganda of political parties of all hues and the emotionally charged atmosphere in Tamil Nadu on the Sri Lankan Tamils issue. The leaderships of both the Dravida Munnetra Kazhagam and the ruling All India Anna Dravida Munnetra Kazhagam are using the situation to project themselves as the saviours of Tamil interests, adroitly concealing their own political agendas. B. Rajasekaran Bangalore Sanjay Dutt AT last the law has caught up with Sanjay Dutt (Justice, at last and The Sanjay Dutt saga, April 19). The weapons and grenades that were found in his possession are not boys toys. Just because he is an actor, he does not deserve sympathy or leniency. REUTERS
S. Raghunatha Prabhu Alappuzha, Kerala DUTTS decision to respect the Supreme Courts verdict and the fact that he has not sought clemency is bold and reveals his inner strength. Bidyut Kumar Chatterjee Faridabad, Haryana
TO serve more time in prison is definitely unfortunate for Dutt. Although some may feel he committed the crime unwittingly, the act has tainted his reputation as an actor and as a human being. Unless there is some effort to arrest Dawood Ibrahim and Tiger Memon, the prime perpetrators of the 1993 Mumbai blasts, people directly affected by the bombings will not get full justice. Jayant Mukherjee Kolkata Social issues THE article Disempowered Dalits (April 19) is a shocking expose of how the functioning of democratic institutions and their elected representatives are being systematically stifled, manipulated and sabotaged by casteist forces and vested interests. That Dalit panchayat presidents continue to face caste-based discrimination and intimidation in several districts in Tamil Nadu makes a mockery of the much-touted concept of decentralisation of power. If this is the plight of panchayat presidents, one can very well imagine the plight of Dalits without economic or political power. S. JAMES
B. Suresh Kumar Coimbatore, Tamil Nadu Civil services THE controversial changes proposed in the scheme of the Union Public Service Commission (UPSC) examination are retrograde (Language of reason, April 19). These proposals are grounded on the belief that people who are educated in rural areas and lack proficiency in English cannot be able administrators. Equally impractical was the proposal to have a minimum of 25 candidates for conducting the examination in a particular language. If Hindi is available as a language unconditionally, so should other languages be. Proficiency in a language is by no means a measure of the governing abilities of a person.
Going ahead with the proposals would not only have left many such potential good administrators schooled in regional languages in the lurch, but may also have over a period of time bred a class of administrators who consider proficiency in English a mark of intellectual superiority. V. SREENIVASA MURTHY
Ritvik Chaturvedi New Delhi Hugo Chavez ROBERTO CANDIA/AP
HUGO CHAVEZ will be remembered as a shrewd helmsman who, through diligence and erudition, navigated Venezuela from turbulent waters to safe shores (Cover Story, April 5). The various regional groupings that he helped form have offered stiff resistance to the exploitative policies of the United States. Meraj Bhat Repora Ganderbal, Kashmir ANNOUNCEMENT Letters, whether by surface mail or e-mail, must carry the full postal address and the full name, or the name with initials.

Frontline

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Frontline

Uploaded by

Copyright:

Available Formats

[Fri, 19 Apr 2013]

Lessons from Novartis case Interview:

Supreme Court and the aam aadmi

PIL losing out

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

Age, seniority, diversity Karnataka:

Misunderstood relationship with the media

Novartis' patent: Syria:

Korean peninsula: West Asia: MDG:

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

Yankee Hindutva Galapagos:

Art and science of taxidermy Invaluable data Failing to deliver

Illusory tribal rights PESA and pressures Interview:

NAC recommendations gathering dust

`Almost' perfect universe The oldest light Kerala: Interview:

[Fri, 19 Apr 2013]

[Fri, 19 Apr 2013]

Margaret Thatcher: Sashi Kumar: New Delhi: Health: West Bengal:

[Fri, 19 Apr 2013]

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

Sugar Industry: Directing algae

Seven sexes of an organism

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

Breakthrough in crystallography Exotically shaped nuclei

[Fri, 19 Apr 2013] [Fri,

[Fri, 19 Apr 2013] [Fri, 19 Apr 2013]

[Fri, 19 Apr 2013]

[Fri, 19 Apr 2013]

[Fri, 19 Apr 2013]

[Fri, 19 Apr 2013]

| Next | Section Menu | Main Menu |

21 per cent of its disposals.

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300800400.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300800800.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300801000.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300801400.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300801600.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300801700.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300801900.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300802200.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300802400.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |

This article was downloaded by calibre from http://frontlineonnet.com/stories/20130503300802800.htm

| Section Menu | Main Menu |

| Next | Section Menu | Main Menu | Previous |