BANGALORE

THE HINDU

FRIDAY, FEBRUARY 3, 2012

OP-ED

15

Wholly arbitrary, capricious and contrary to public interest

Reproduced here are excerpts from the concluding paragraphs of the Supreme Courts verdict cancelling 122 2G licences issued during A. Rajas term as Minister of Communications and Information Technology.
9. ...There is a fundamental aw in the principle of rst-comerst-served inasmuch as it involves an element of pure chance or accident. In matters involving award of contracts or grant of licence or permission to use public property, the invocation of rst-come-rst-served principle has inherently dangerous implications. Any person who has access to power corridor at the highest or the lowest level may be able to obtain information from the Government les or the les of the agency/instrumentality of the State that a particular public property or asset is likely to be disposed of or a contract is likely to be awarded or a licence or permission would be given. He would immediately make an application and would become entitled to stand rst in the queue at the cost of all others who may have a better claim the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised the State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum etc., the State must always adopt a method of auction by giving wide publicity so that all eligible persons may participate in the process. Any other methodology for disposal of public property and natural resources/national assets is likely to be misused by unscrupulous people who are only interested in garnering maximum nancial benet and have no respect for the constitutional ethos and values. 70. The exercise undertaken by the ofcers of the DoT [Department of Telecommunication] between September, 2007 and March 2008, under the leadership of the then Minister of C&IT [Communications & Information Technology] [A.Raja] was wholly arbitrary, capricious and contrary to public interest apart from being violative of the doctrine of equality. The material produced before the Court shows that the Minister of C&IT wanted to favour some companies at the cost of the Public Exchequer and for this purpose, he took the following steps: (i) Soon after his appointment as Minister of C&IT, he directed that all the applications received for grant of UAS [Universal Access Service] Licence should be kept pending till the receipt of TRAI [Telecommunication Regulatory Authority of India] recommendations. (ii) The recommendations made by TRAI on 28.8.2007 were not placed before the full Telecom Commission which, among others, would have included the Finance Secretary. The notice of meeting of the Telecom Commission was not given to any of the non permanent members (iii) The ofcers of the DoT who attended the meeting of the Telecom Commission held on 10.10.2007 hardly had any choice but to approve the recommendations made by TRAI [or] they would have incurred the wrath of Minister of C&IT. (iv) In view of the approval by the Council of Ministers of the recommendations made by the Group of Ministers, DoT had to discuss the issue of spectrum pricing with the Ministry of FinanceHowever, as the Minister of C&IT was very much conscious of the fact that the Secretary, Finance, had objected to the allocation of 2G spectrum at the rates xed in 2001, he did not consult the Finance Minister or the ofcers of the Finance Ministry. (v) The Minister of C&IT brushed aside the suggestion made by the Minister of Law and Justice for placing the matter before the empowered Group of Ministers. Not only this, within few hours of the receipt of the suggestion made by the Prime Minister in his letter dated 2.11.2007 that keeping in view the inadequacy of spectrum, transparency and fairness should be maintained in the

Inside the camps that foment terror

Answers from a series of interviews might make it possible to dene the Hizbul Mujahideen, an otherwise nebulous entity.
Nikhil Raymond Puri Salahuddin, Syed reafrmed hissupreme commander of Hizbul Mujahideen (HM), organisations healthiness last Tuesday, telling Kashmir News Service that HMs infrastructure is intact and that J&K will be freed soon. He made a similarly convincing statement last May, claiming to possess hundreds of training camps where he could freely recruit and train the mujahideen. Salahuddin knows that his groups strength must be seen before it can be disbelieved. So long as Pakistans evolving terror apparatus remains shrouded in secrecy, he is at liberty to exaggerate HMs muscle.

STAGE-MANAGED: The verdict says the cut-off date decided by A. Raja for consideration of applications for grant of 2G licences was intended to benet real estate companies with no real telecom experience. A le picture of the former Minister for Communications and IT at South Block. PHOTO: RAMESH SHARMA
matter of allocation of the spectrum, the Minister of C&IT rejected the same by saying that it will be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants because it will not give them level playing eld. He simultaneously introduced cut off date as 25.9.2007 for consideration of the applications received for grant of licence despite the fact that only one day prior to this, press release was issued by the DoT xing 1.10.2007 as the last date for receipt of the applications. This arbitrary action of the Minister of C&IT though appears to be innocuous was actually intended to benet some of the real estate companies who did not have any experience in dealing with telecom services and who had made applications only on 24.9.2007, i.e. one day before the cut off date xed by the Minister of C&IT on his own. (vi) The cut off date, i.e. 25.9.2007 decided by the Minister of C&IT on 2.11.2007 was not made public till 10.1.2008 and the rst-come-rst served principle, which was being followed since 2003 was changed by him at the last moment through press release dated 10.1.2008. This enabled some of the applicants, who had access either to the Minister or the ofcers of the DoT, to get the bank drafts etc. prepared towards performance guarantee etc. of about Rs.1600 crores. (vii) The manner in which the exercise for grant of LoIs [letters of intent] to the applicants was conducted on 10.1.2008 leaves no room for doubt that every thing was stage managed to favour those who were able to know in advance change in the implementation of the rst-come-rst served principle 71. The argument of Shri Harish Salve, learned senior counsel that if the Court nds that the exercise undertaken for grant of UAS Licences has resulted in violation of the institutional integrity, then all the licences granted 2001 onwards should be cancelled does not de-

serve acceptance because those who have got licence between 2001 and 24.9.2007 are not parties to these petitions and legality of the licences granted to them has not been questioned before this Court. 72. In majority of judgments relied upon by learned Attorney General and learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in nancial matters. There cannot be any quarrel with [this]. However, when it is clearly demonstrated before the Court that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken oath to discharge duties in accordance with the Constitution and the law 73. Before concluding, we consider it imperative to observe that but for the vigilance of some enlightened citizens and non governmental organisations who have been constantly ghting for clean governance and accountability of the constitutional institutions, unsuspecting citizens and the nation would never have known how scarce natural resource spared by the Army has been grabbed by those who enjoy money power and who have been able to manipulate the system. 74. In the result, the writ petitions are allowed in the following terms: (i) The licences granted to the private respondents on or after 10.1.2008 pursuant to two press releases issued on 10.1.2008 and subsequent allocation of spectrum to the licensees are declared illegal and are quashed. (ii) The above direction shall become operative after four months. (iii) Within two months, TRAI shall make fresh recommendations for grant of licence and allocation of spectrum in 2G band in 22 Service Areas by auction, as was done for allocation of spectrum in 3G band. (iv) The Central Government shall consider the recommendations of TRAI and take appropriate decision within next one month and fresh licences be granted by auction. (v) Respondent Nos.2, 3 and 9 who were beneted by a wholly arbitrary and unconstitutional action taken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band and who off-loaded their stakes for many thousand crores in the name of fresh infusion of equity or transfer of equity shall pay cost of Rs.5 crores each. Respondent Nos. 4, 6, 7 and 10 shall pay cost of Rs.50 lakhs each because they too had been beneted by the wholly arbitrary and unconstitutional exercise undertaken by the DoT for grant of UAS Licences and allocation of spectrum in 2G band. (vi) 50% of the cost shall be deposited with the Supreme Court Legal Services Committee for being used for providing legal aid to indigent litigants. The remaining 50% cost shall be deposited in the Prime Ministers Relief Fund. (vii) However, it is made clear that the observations and conclusions contained in this order shall not, in any manner, affect the pending investigation by the CBI, Directorate of Enforcement and others agencies or prejudice the defence of those who are facing prosecution in the cases registered by the CBI and the Special Judge, CBI shall decide the matter uninuenced by this judgment. Justice G.S. Singhvi Justice Asok Kumar Ganguly New Delhi

Camps and questions

Though press conferences, political speeches, news articles, and reports routinely contribute to the entitys mainstream familiarity, they stop short of demystifying the terrorist camp. Important questions persist: Where are such camps located? What do they look like? What are their specic functions? Do similar levels of secrecy characterise them all? Based on interviews I conducted in Jammu and Kashmir in 2011 with law enforcement ofcials and surrendered HM militants about the training camps operated by HM in Pakistan and Pakistan-Occupied Kashmir (all interviews with surrendered militants were conducted in the presence of the authorities), I believe it is possible to lend some denition to an otherwise nebulous entity. At its peak in the mid- to late-1990s, HMs physical infrastructure was primarily concentrated in PoK, with a few camps and ofces located in Punjab, Khyber Pakhtunkhwa (then the North-West Frontier Province), and Islamabad. While the experiences of individual militants vary signicantly, any recruit who spent more than a few months in Pakistan would likely encounter several such facilities. After crossing the border into Pakistani territory, often with the help of a guide on the Inter-Services Intelligences (ISI) payroll, recruits were typically housed in an HM ofce in Kotli or Muzaffarabad. Since both towns hosted ISI ofces, it was easy for newcomers to acquaint themselves with their patron representatives. Once these preliminary introductions were complete, recruits were sent to one of a few possible locations depending on the functions they were to assume, and the specic type of training they required. While the media tends to homogenise terrorist camps, the latter in fact represent a diverse collection of administrative and liaison ofces, communication stations, base camps, and training camps. The larger constellation of a particular groups terrorist camps is thus characterised by diversity of location, function, size, appearance, secrecy and demography.

Syed Salahuddin PHOTO: AFP

ment of a mosque, three kilometres from central Mirpur). In addition to its training and base camps, HM established a media ofce on Rawalpindis Murree Road, not far from the branch ofce of the Jang Group of Newspapers. In Islamabad, apart from its administrative ofce in the Khanna neighbourhood, HM previously used one ofce to store photographs and computerised biographies of all its militants, and another to administer computer courses.

Communication with India

In order to maintain regular contact with active operatives on the Indian side of the border (or LoC), HM also established wireless command stations, including those in Zafarwal (Punjab) and Samani (PoK). The facility in Zafarwal was run out of the staff quarters of a rural health centre, allowing HM wireless operators to communicate with militants in Jammu and Kashmirs Doda and Kathua districts, and in parts of Udhampur district. The second facility was situated on the outskirts of Samani, providing communication links with militants operating in Jammu and Kashmirs districts of Rajouri and Poonch, and parts of Udhampur district. While HM might be impartial towards all the facilities it uses, its ISI patrons are more discerning. Amongst the multitude of installations that HM militants come into contact with in the course of their careers, some are marked by more secrecy than others. In general, surrendered militants tend to recall quite vividly the names and attributes of the camps they encounter. But often there is a stop on the itinerary about which they know surprisingly little. They call it ilaqa-e-ghair (which most appropriately translates in this context to forbidden territory). Ilaqa-e-ghair refers to a peculiar type of training camp. In fact, the only dening characteristic of ilaqae-ghair is that the journey to and from this camp is always unusual: trainees are transported to the facility blindfolded, or in tarpaulin-covered trucks, to ensure they dont pick up on their destinations location and surroundings. The destination itself typically constitutes an isolated training camp surrounded only by kachcha road and round-the-clock patrolling. By the end of a two- to three-month stint at ilaqa-e-ghair, trainees are adept at handling weapons including AK-47s, RPG-7s, hand grenades, and light machine guns. A possible explanation for these elevated standards of secrecy might be that ilaqa-e-ghair directly represents, or is sufciently proximate to, military installations about which the ISI prefers not to divulge any details neither to the HM militant, nor to the people he might speak with following disengagement. An important implication of this relative secrecy is that all other assets used by HM to train and host its militants are more easily replaced, and hence dispensable. Indeed, the Boi Camp in Abbottabad attests to the non-essential character of most terrorist camps. It accommodated more than 300 HM militants until 2008, was abruptly shut down, and has since served as a poultry farm. Continuously mounting international pressure since 9/11 has compelled the ISI to reign in many terrorist camps under its watch. As a consequence, HMs infrastructural presence in Pakistan and PoK stands diminished. Aside from its peripheral ofces, the organisation currently runs two training camps, each targeting a distinct demographic. The Garhi Habibullah Camp is located in Mansehra district of Khyber Pakhtunkhwa and caters to trainees from Pakistan. The Sensa Camp lies in PoKs Kotli district and is geared towards youth from PoK. Both camps have strict orders: recruits from Indias side of the border are unwelcome at least for the time being. (Nikhil Raymond Puri is a D.Phil candidate at the University of Oxford.)
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A small core
HMs infrastructural network is best depicted by a small core of training camps, attended to by a larger landscape of base camps and support ofces. Training camps are intended and designed to impart physical, ideological, and military training stereotypical imagery of young men surrounded by monkey bars and AK-47s is not far off. Base camps, on the other hand, simply serve to house militants before, between, or after such training courses. Generally speaking, training camps tend to be larger, and more removed from urban environments. Examples of former training camps include the Kotli Training Camp (in PoKs Kotli district) and the Gujar Khan Training Centre in Rawalpindi. Each camp was located in hilly, forested terrain, accommodating over 300 trainees in tents. In addition to these conventional training camps, HM also made use of the Mangla Dam Camp. Located on the banks of the Mangla Lake in PoK, this camp was reserved for 30-40 trained militants, offering them swimming lessons that lasted 15 days to a month. HMs base camps generally took the form of single-storey rented buildings providing six to eight bedrooms for 35 to 70 trained or untrained militants. Former examples include: Kot Jamial Camp (located on the outskirts of Kot Jamial in PoKs Bhimber district), Bhimber Camp (situated on Gujrat Road in PoKs town of Bhimber), Samani Camp (located on Mirpur Road, two kilometres from the main bus stand in PoKs Samani), the Kotli Camp (located less than a kilometre from the main bus stand in PoKs Kotli), and Al Markaz Camp (located in the base-

Real-life Dickens characters traced

Dalya Alberge

ill Sikes and Scrooge are among the most well-known characters in English literature but rather than being gments of Charles Dickenss imagination, their names were derived from real people and new research has pinpointed the writers sources of inspiration. The thug from Oliver Twist, the miser in A Christmas Carol and the ghost of his deceased partner, Jacob Marley, among others, have been linked to people who lived or worked near Dickenss rst London home. Detective work by Ruth Richardson has revealed that a trader named William Sykes sold tallow and oil for lamps from a shop in the same bustling east Marylebone street in which Dickens lived between the ages of 17 and 20. Nearby, Richardson discovered the home of a sculptor derided by locals as a miser, the premises of two tradesmen named Goodge and Marney, and a local

cheesemonger called Marley so suggestive of Scrooge and Marley, she said. They all lived yards from Dickenss modest lodgings at 10 Norfolk Street above a small cornershop. Crucially, he lived nine doors from the barbaric workhouse now thought to have inspired Oliver Twist a few years later.

Recent discovery; research

Richardson, the author of Dickens and the Workhouse, published to coincide with next weeks 200th anniversary of his birth, described the number of ctional characters she has linked to Dickenss neighbours as breathtaking. Although Dickens based other ctional characters on actual people notably Micawber on his father biographers have overlooked the inhabitants around Norfolk Street and its link to Dickens was only recently discovered by Richardson, an afliated scholar at Cambridge University. It was her research that last year identied the four-storey 1770s

workhouse in Cleveland Street as an inspiration for perhaps the worlds most famous workhouse in Oliver Twist. That led her to Dickenss house. She realised that the address had changed since Dickenss day 22 Cleveland Street was formerly 10 Norfolk Street. While previous biographers had only briey mentioned the house, if at all, assuming it had disappeared long ago, she found the building. It had been a peculiar biographical void, she said. Sykess business was at 11 Cleveland Street. Richardson said: He was certainly there while Dickens was planning Oliver Twist. So too, she added, was a local publican called Sowerby: the ctional Mr Sowerberry is the parochial undertaker who takes Oliver into his service. She also found a glover-hosier called Corney, a possible inspiration for the Mrs Corney, whom Mr Bumble marries in Oliver Twist. In the churchyard, she spotted a Mrs Malie, a doctors wife, whose name may have served for the

kindly Mrs Maylie. At No 20, opposite Dickenss home, was Dan Wellers shoe shop, from whom he might have cobbled the inimitable Sam Weller for The Pickwick Papers. A dancing master like the one Dickens described in one of his Sketches by Boz was a fellow lodger. Norfolk Street in Dickenss day was full of shops. Its businesses included a pawnbrokers that may be central to Oliver Twist, Richardson said. Its plot and Olivers identity hinge on a locket taken from his mothers corpse and pawned. Readers learn that the pawnbrokers was visible from the workhouse. Richardson considers it signicant that the pawnbrokers stood diagonally opposite the Cleveland Street workhouse, and was visible from Dickenss front in Norfolk Street. Dickens himself had to pawn family belongings before his father was imprisoned for debt. Its all too much of a coincidence, Richardson said. Guardian Newspapers Limited, 2012

Amongst the multitude of installations that Hizbul militants come into contact with in the course of their careers, some are marked by more secrecy than others.