E D I T O R I A L   P A G E

EDITORIALS

Relaxing capital controls
FINANCE Minister Jaswant Singh announced on Friday a slew of measures aimed at encouraging overseas investment by Indian mutual funds, companies and individuals, and integrating the Indian financial operations with the global markets. This is quite a departure from the earlier policy and thinking that discouraged and opposed any outflow of Indian money. Earlier, the stress was more on attracting foreign money into the country.

Korean, Iraqi syndrome
IF the nuclear arms race ever gets out of hand, there will be no country left to blame the USA for the Armageddon. Foreign policy experts must be tearing their hair in exasperation over America’s blatantly irrational response to developments in North Korea and Iraq. President George W Bush has begun to resemble a horse with blinkers on, headed towards the Arabian desert unmindful of the more disquieting development of “nuclear dust”, in a manner of speaking, being raised in South-East Asia.

OPINION

A flawed nuclear command
Little relevance to the doctrine of No First Use
Harwant Singh
INDIA became a nuclear power in 1974, when it exploded a nuclear device at Pokhran. It took the country 24 long years to decide to go nuclear overtly and fully, in May, 1998. It formulated a nuclear doctrine in 1999 and now in the year of our Lord 2003, it has decided to form a Nuclear Command structure. Thus, while we have joined the nuclear club, our decision-making speed is still mired in the bullock cart age. How else do we explain the delay of nearly four and a half years in the structuring of a nuclear command from the time we became a full-fledged nuclear power?

MIDDLE

The shifting of a “speed-breaker”
Narinder Sharma
A “speed-breaker” is a hump constructed on the road at some vulnerable points to check overspeeding. However, the “speed-breaker” being discussed here is entirely different and does not bear even remote relation with the road safety hump. I was transferred to a project for a senior-level assignment. I was given the feedback that the controlling officer of the project was of negative nature and by and large did not enjoy good reputation amongst the staff and officers working under his control.

POINT OF LAW

Supreme Court on education, a complete turnaround
Anupam Gupta
DELIVERED by an 11-member Bench, the largest Bench ever constituted to hear a case since 1973, the October 31 judgement of the Supreme Court relating to educational institutions continues to be shrouded in a miasma of public silence.

TRENDS & POINTERS

Mobile phones blamed for sparrow deaths
THE remarkable decline of the sparrow remains one of the wildlife’s most enduring mysteries. Cats, lead-free fuel and even loft insulation have all been blamed for the disappearance of 10 million house sparrows. Now scientists seeking to unravel the cause of their disappearance have identified a new culprit: the mobile phone.

SPIRITUAL NUGGETS

EDITORIALS

Relaxing capital controls

FINANCE Minister Jaswant Singh announced on Friday a slew of measures aimed at encouraging overseas investment by Indian mutual funds, companies and individuals, and integrating the Indian financial operations with the global markets. This is quite a departure from the earlier policy and thinking that discouraged and opposed any outflow of Indian money. Earlier, the stress was more on attracting foreign money into the country. This was understandable since the country was on the verge of defaulting on its foreign loan repayments in 1991. The precarious balance of payment crisis had led the then newly formed government of Mr P. V. Narasimha Rao and its Finance Minister, Dr Manmohan Singh, to launch the historic economic reforms. Within a decade or so of opening up the Indian economy to foreign investment, the country has accumulated a massive foreign direct investment of $ 70 billion. This is quite an achievement for the Union Government, which was once forced to pledge its gold abroad to save its reputation for regular loan repayments. Because of the fear generated by the financial bungling and mismanagement of certain Asian Tiger economies, India slowed down its process of integrating with the global economies. Soon the talk of rupee convertibility went out of circulation and Indian cautiousness (which was actually official dithering and an election-induced strategy) was hailed globally and the Indian economy along with that of China escaped the heat that the fast-growing Asian economies had to face with dire consequences as many investors burnt their fingers.

Now, the political leadership of the country seems to have gathered enough courage and confidence, largely because of the abundance of dollars in the Indian kitty, to allow Indian investors — individuals, listed companies and mutual funds — to invest in companies listed on stock exchanges abroad. But there is a caveat: the companies targeted for investment abroad must have a 10 per cent shareholding in a company listed on an Indian stock exchange. The ceiling on the foreign investment by mutual funds has been doubled to $ 1 billion. Then there are concessions like companies being allowed to buy immoveable property abroad and retain their ADR/GDR proceeds. There may not be immediate outflow of Indian investment in companies abroad, but the temptation is quite strong, given the large profit margins and colossal size of multinational companies, apart from Indians’ known notoriety for greed and risk-taking. Since the interest rates in the developed countries are very low compared to those in India, Indian companies will increasingly move out to raise cheaply available foreign currency, while NRIs, PIOs and foreign investors will like to park their surplus funds in India to take advantage of the high interest rates and bright growth prospects here. The government has indeed moved closer to full capital convertibility. A review of the emerging situation will be undertaken within six months — not to roll back the sops, but to further relax the capital controls.

Korean, Iraqi syndrome

IF the nuclear arms race ever gets out of hand, there will be no country left to blame the USA for the Armageddon. Foreign policy experts must be tearing their hair in exasperation over America’s blatantly irrational response to developments in North Korea and Iraq. President George W Bush has begun to resemble a horse with blinkers on, headed towards the Arabian desert unmindful of the more disquieting development of “nuclear dust”, in a manner of speaking, being raised in South-East Asia. Iraq has met the United Nations Security Council deadline of coming clean on its weapons programme by dispatching a 10,000-word dossier to UN Secretary-General Kofi Annan and other world leaders. US experts went through the document with a toothcomb and cried foul just because father Bush did not like the face of President Saddam Hussein and the present President is out to prove that he is his father’s son in the matter of war-mongering. The Iraqi leader has said time and again that he has no secret laboratories for making weapons of mass destruction and the UN weapons inspectors have so far not complained of being denied access to suspected sites. Yet, the USA has put its troops on high alert for the possible invasion of Iraq. This in spite of fervent pleas from its allies to give the UN weapons inspectors in Iraq time to complete their work. If Iraq is spared a pummelling in late January or early February the credit would go to the allies for having acted more responsibly than the self-appointed global peacekeeper.

In sharp contrast North Korean leader Kim Jong II is in a defiant mood. He began the process of cocking a snook at the international community in October by announcing reopening of its nuclear facilities. Now he has decided to withdraw from the nuclear non-proliferation treaty. Reports from Washington indicated a split in the Bush Administration’s response to the disquieting development. Some senior officials are counselling careful engagement while others are urging complete isolation of the North Korean regime. Only President Bush and his close circle of advisers can explain why they are after the Iraqi leader in spite of the free access allowed to the UN weapons inspectors. And why are they hesitant to recommend military action against North Korea for following a policy that is bound to raise the level of insecurity across Asia, and subsequently the globe? Why has President Bush failed to convince North Korean leader Kim Jong II to heed to the well-intentioned global expression of concern over his nuclear programme? As of today North Korea poses a far greater threat to global security than Iraq. Saddam Hussein has publicly apologised to the Kuwaiti people for invading their country. American paranoia about Iraq’s potential to threaten global peace notwithstanding, the North Korean development should not be seen as yet another attempt to extract some concessions from the USA before going back to sleep. America has established itself as a selfish super power and a partisan peacekeeper. The not-so- clandestine nuclear partnership between North Korea and Pakistan is a source of threat to the security of the most populous democracy in the world. Yet, America is unwilling to change its priorities that should logically seek the isolation of North Korea and Pakistan at the global level. Firm action against the Kim Jong II regime would send out a clear signal to President Saddam Hussein as well that if the UN weapons inspectors find even a shred of evidence of a clandestine weapons programme he too shall not be spared.

OPINION

A flawed nuclear command
Little relevance to the doctrine of No First Use
Harwant Singh

INDIA became a nuclear power in 1974, when it exploded a nuclear device at Pokhran. It took the country 24 long years to decide to go nuclear overtly and fully, in May, 1998. It formulated a nuclear doctrine in 1999 and now in the year of our Lord 2003, it has decided to form a Nuclear Command structure. Thus, while we have joined the nuclear club, our decision-making speed is still mired in the bullock cart age. How else do we explain the delay of nearly four and a half years in the structuring of a nuclear command from the time we became a full-fledged nuclear power? In between we have faced nuclear threats from our adversary on more than one occasion. This inexplicable and inordinate delay of over four years in formulating a nuclear command and control structure has been explained by the Deputy Director, Institute of Defence Studies and Analysis (IDSA), as a reflection of the admirably “strong point of the nature of India’s distinctive strategic culture.” The IDSA is a government-funded institution. Sycophancy is certainly scaling new heights !

In the Indian setting, if the requirement is to delay, defer or derail an important, nay an urgent decision, then it is best to form a ministerial committee to examine it. If, instead of taking an early decision, the need is to bury the issue altogether, then form a committee of secretaries. It would sure do a thorough job. The country at one time had a Prime Minister who subscribed to the theory that “no decision is also a decision”. Unfortunately, a war situation demands firm and quick decisions. Often an imperfect decision well implemented is better than no decision or an inordinately delayed wise decision. In a fast moving modern battle scene the requirement is to speed up the decision-making process. It is all the more so in a situation where threat of use of nuclear weapons or other weapons of mass destruction exists or can, all too suddenly, surface. In such cases premeditated contingency plans to cater to all possibilities need to be evolved so as to reduce reaction time.

Yet another feature of our policy formulation is to leave scope for different interpretations of it, so as to delay and derail the intended purpose. Thus, in the recently released document, the insertion of the clause, “major attack against it (India) and its forces anywhere by nuclear, biological and chemical weapons, India retains the option of retaliating...”, leaves the issue of retaliation, an essential element of our nuclear doctrine, in mid-air. Now the term “major” is wide open to different interpretations. It leaves room for ambiguity, selective interpretation and doubt. Will the use of these weapons of mass destruction (WMD) — a rubric term currently in use by the nuclear weapon-states to denote nuclear, biological and chemical weapons — against, say, Chandigarh or a bridge-head by our troops or against some of our defences in J and K which the enemy has in the past repeatedly failed to take, constitute a major attack! Will such an attack be followed by a debate to determine if the attack is major or minor, and does it warrant the exercise of the option of a massive retaliation by India! What sort of signals will this kind of equivocal policy throw to an unscrupulous adversary, who only understands firm and unambiguous language and needs to be convinced that we mean precisely what we say.

The formulation of a nuclear command structure must flow out of the nuclear doctrine of the country. The No First Use doctrine enjoins upon us the overwhelming need for an immediate and massive response to the use of WMD against our troops, population centres, national assets, etc. There is, in such a doctrine, an in-built powerful deterrence against the use of nuclear weapons by the adversary. Any delay or dithering in the decision-making process in our response to a nuclear strike can give the adversary time for a second strike or/and hope to bring in, or what may come about on its own, pressure from the UN and other nations to restrain retaliation. Thus, any structural infirmity in-built into the nuclear command structure, policy and decision-making process with potential for delay in the retaliatory response militates against the essential elements of deterrence of massive and immediate retaliation, so thoughtfully built into our nuclear doctrine.

The key elements of the nuclear command structure place a body called the National Command Authority (NCA) at the top with the Prime Minister being the sole authority to order a nuclear strike. The NCA is more or less a Cabinet Committee on Security (CCS) consisting of the Prime Minister, the Home Minister, the Defence Minister, the Finance Minister and the Foreign Minister. In a No First Use setting, the flow of information relating to the use of nuclear and/or other weapons of mass destruction by the enemy will be from the troops or the population centres, etc, so targeted, up the chain of command. The Chiefs of Staff Committee, on getting the information, would obtain inputs from the Strategic Forces Command, pass on the details of the attack and its assessment thereof to the Executive Council headed the National Security Adviser. This body in turn will carry out its own assessment and inform/advice the NCA, which will, presumably, deliberate on the issue and decide on the extent of retaliation and pass the orders down the same chain to the Strategic Forces Command.

Some considerable time must elapse before these committees can assemble, assess, deliberate, decide and pass the orders. All this militates against the inevitability of “immediate” and massive response to a nuclear strike by an adversary and vastly dilutes the element of deterrence, a must in our nuclear doctrine and nuclear command decision-making process. What has been evolved, as a nuclear command structure, is more in line with the requirements of a nuclear weapon state unhindered by the doctrine of No First Use. Therefore, when Mr K. Subrahmaniam, a well-known defence analyst, records that India is merely copying the Pakistan system, he implies that we have blindly copied the pattern from nuclear power states, uninhibited by the compulsions of No First Use. Rightly he emphasises the need to clearly spell out as to who will be in-charge in a No First Use nuclear weapons doctrine. Once the enemy decides to initiate a full-scale nuclear war, the first target could be the National Command Authority and perhaps the back up or the alternative chain of command to the NCA.

The No First Use nuclear doctrine not only reduces to half the deterrence value of nuclear weapons in inhibiting the adversary from starting a conflict but also imposes severe tactical disadvantages on the field commanders. While operating in the face of a possible use of nuclear weapons by the enemy, the field commanders will be inhibited from seeking a concentration of their troops and formations so as not to present a lucrative nuclear target. At the same time the enemy commanders will have no such compulsions. This will at once push our field commanders into an unenviable position where they would be hesitant to concentrate troops to defend or attack. Now without the concentration of forces little can be achieved, in both offensive and defensive operations. Moreover, where the threat of use of nuclear (biological and chemical as well) weapons against our forces exists, troops will have to be burdened with an extra load of clothing and equipment to survive and fight in nuclear, biological and chemical warfare environments. It would, in simpler terms, mean that troops and field commanders would have to fight with one arm tied behind their back.

It is not clear how wide-ranging were the discussions which preceded the formulation of the National Command Authority and the connected organisations and the chain of command. What has been finally evolved would certainly not create the fear that must prevail with the potential aggressor intent on using nuclear weapons against India. The No First Use doctrine with the spelt out command and control structure will doubly disadvantage the country.

Is it possible to contemplate a situation where the enemy undertakes nuclear strikes against India and the Prime Minister on his own or on the advice of the NCA, declines to press the nuclear button for a retaliation! If we admit of such a situation then it knocks the bottom out of the powerful deterrence built into our doctrine of massive retaliation and encourages the adversary to go ahead and use nuclear weapons against us.

Finally, if such a situation is unthinkable and the massive retaliation inevitable, then why this unwarranted paranoia that only the Prime Minister’s finger must press the nuclear button, regardless of an altogether different setting of a doctrine of No First Use. Our nuclear command structure must be time-sensitive in its response, and one that must carry conviction with the adversary and act as a powerful deterrence against the use of nuclear and/or other weapons of mass destruction by him. Retaliation has to be predicated, in accordance with the contingency plans, to immediately deal with an attack with WMDs by the enemy.

The writer, a retired Lieut-General, was a Deputy Chief of Army Staff.

MIDDLE

The shifting of a “speed-breaker”
Narinder Sharma

A “speed-breaker” is a hump constructed on the road at some vulnerable points to check overspeeding. However, the “speed-breaker” being discussed here is entirely different and does not bear even remote relation with the road safety hump.

I was transferred to a project for a senior-level assignment. I was given the feedback that the controlling officer of the project was of negative nature and by and large did not enjoy good reputation amongst the staff and officers working under his control. I dismissed this on the ground that the boss is always under criticism from his staff for various reasons. Moreover, I had an experience of about three decades and had the confidence that I could handle all type of bosses compassionate or tormentors.

I landed at the place of my new assignment and as a measure of goodwill decided to pay a courtesy call to him. As soon as I entered the corridor of the office there was some commotion and whispering amongst the peons. After formal “Jai Hind” by them, I was inducted in the officer’s chamber. Missiles of arguments were being fired between the officer and his superintendent and allied staff. The issue was the sanction of benefits to the widow of a project employee. During the course of heated discussions, I was stumped when the officer reprimanded his superintendent, saying: “What do you think, you will get this case through from me’, No, not at all. Even if you put up this case to me hundred times I will not approve it. I have got about 50 “ifs” on my right hand and almost 50 “buts” on my left hand to ground it”.

Sensing that I had been in his office for some time, the discussions were tapered and deferred for some other time. After formal introduction and exchange of compliments, I returned to my office and formally issued the letter of taking over my assignment. I asked the superintendent to send the joining letter to the controlling officer. The superintendent immediately called his assistant and asked him: “Deliver this letter immediately in the Speed Breaker’s office”.

I was amazed to learn that our controlling officer was known as “speed-breaker” due to his acts of omission and commission. Any way, I did not like this and advised him to stop the nicknaming. The superintendent also apologised quickly even without batting his eyes.

All remained well for about two months until a procurement case was sent to him for his approval. It gave me a feel of his working. It was observed by him: “As prices of the items are high negotiate and bring them down”. Keeping in view the overall scenario, I asked my officer to do the needful. Although he expressed his reluctance as prices shown therein were reasonable, yet he succeeded to some extent. The case was re-submitted for approval. I was informed by the officer on the telephone that the case had been approved and procurement be expedited. But I was red with rage after going through the approval letter: “As recommended, the case has been approved. BUT-you are advised to once again negotiate the rates with the firm ensuring that the items are procured at lesser rates than the approved one. Otherwise the responsibility will rest with your office”.

I could then realise why the officer was known as “speed-breaker”. He never gave clear-cut orders and used “ifs and “buts” without any reservation to break the speed of the job. I was informed by my colleagues and other friends that the officer was highly suspicious by nature and created problem for others and brought disrepute to himself. He was stringent in sanctioning G.P. Fund, house building advances etc. Once, he went to the extent of physical check of an officer’s house before releasing the next instalment and so on.

My colleague narrated an interesting anecdote about the officer pertaining to sanction of leave. An official lost his mother and applied for leave. The suspicious officer insisted on attending the funeral while expressing condolence. The officer on reaching the official’s place felt embarrassed and realised his folly as funeral preparations were in process. His suspicious nature, however, cost him two days’ casual leave besides expenses on the to and fro journey.

After a few days, the officer was shifted to the corporate office and everybody heaved a sigh of relief. Clandestinely, even “laddoos” were distributed by those who were either suffering because of the ‘speed- breaker’.

POINT OF LAW

Supreme Court on education, a complete turnaround
Anupam Gupta

DELIVERED by an 11-member Bench, the largest Bench ever constituted to hear a case since 1973, the October 31 judgement of the Supreme Court relating to educational institutions continues to be shrouded in a miasma of public silence.

Generally believed to be a verdict confined to the minorities and their rights under Article 30 of the Constitution, the judgement covers, in fact, non-minority institutions as much as, if not more than, institutions run by the minorities. And while it does not accomplish any major change in our understanding of minority rights, it would be no exaggeration to say that it turns the law relating to non-minority institutions upside down.

Based avowedly on the “economics and ideology of privatisation”, the leading opinion of the then Chief Justice of India, Justice B.N. Kirpal (for himself and five other Judges), secures for non-minority educational institutions a degree of freedom from state and governmental control that they have not enjoyed since Independence, reading into Article 19 the entire package of jural considerations germane to Article 30.

Article 30 is the fundamental right of minorities to establish and administer educational institutions of their choice, while Article 19 guarantees all citizens free speech and expression and the right to assemble, form associations, move or reside in any part of India as well as to practice any profession or carry on any occupation, trade or business.

That minorities, as much as non-minorities, are entitled to the protection of Article 19 has never been doubted, but that non-minorities can, under that Article, claim all that is available to minorities under Article 30 is a proposition that has been affirmed for the first time since the adoption of the Constitution.

This curious telescoping of Articles 19 and 30 has resulted partly from what is now commonly felt by even the enlightened sections of the majority community: that the minorities always manage to get what they want and that it is actually the majority that is being discriminated against in this country. Therefore, what the minorities already have (under Article 30), the majority too must be given.

But the more important reason why it has been done is that the Supreme Court has, as an institution, given up its commitment to what Granville Austin, in his slender but matchless work on the making of India’s Constitution, calls “the social revolution”.

Few, if any, in the Constituent Assembly, writes Austin, discussing the adoption of the Directive Principles of State Policy, disagreed with the “humanitarian socialist precepts that were, and are, the aims of the Indian social revolution”.

The roots of the Directive Principles may be traced back to the 1931 Karachi resolution or farther to the two streams of socialist and nationalist sentiment in India that had been flowing ever faster since the late 1920s. In fact, it is not unreasonable to conjecture, says Austin, that “the placing on the government of a major responsibility for the welfare of the mass of Indians had an even deeper grounding in Indian history.”

As for contemporary instances of the same process, he adds, apart from the USA (where it had become constitutional practice for the federal and state governments to play an increasing role in social and economic life), the Congress’s long-standing affinity with Irish nationalism made the example of constitutional socialism — as expressed in the Directive Principles of Social Policy of the Irish Constitution — especially attractive to a wide range of members in the Constituent Assembly.

It is this example of constitutional socialism that the Supreme Court has now completely and officially forsaken by its judgement of October 31.

There is not a word, literally not a word, in the entire 129-page opinion of Justice Kirpal about the Directive Principles incorporated in the Constitution, one of which, Article 41, obligates the State to make effective provision for the right to education, besides the right to work and to public assistance in cases of unemployment, old age, sickness and disablement.

Nor does any of the other four opinions rendered in the case — by Justice V.N. Khare, Justice S.S.M. Quadri, Justice Ruma Pal and Justice S.N. Variava (for himself and Justice Ashok Bhan) — take notice of Part IV of the Constitution containing the Directive Principles, almost as if that part of the Constitution did not exist or had been repealed by judicial fiat.

It is possibly for the first time since 1973 when the Kesavananda Bharati case was heard and decided by the entire strength of the Supreme Court, 13 at that time, that a Constitution Bench of the court adjudicating the nature and scope of fundamental rights in Part III of the Constitution has failed to make even a passing reference to Part IV.

“To ignore Part IV,” ruled the court in Kesavananda Bharati, speaking through Justices K.S. Hegde and A.K. Mukherjea, “is to ignore the sustenance provided for in the Constitution, the hopes held out to the nation and the very ideals on which our Constitution is based. Without faithfully implementing the Directive Principles, it is not possible to achieve the Welfare State contemplated by the Constitution.”

Swept off their feet by the winds of globalisation, the Supreme Court of today would rather agree with T.T. Krishnamachari’s pungent description of Part IV in the Constituent Assembly.

This Part, said Krishnamachari, joining issue with Dr Ambedkar in November, 1948, eight years before he became the Union Finance Minister, is “ a veritable dustbin of sentiment.... sufficiently resilient as to permit any individual of this House to ride his hobby horse into it.”

Only such a dim view of State responsibility could have moved the Supreme Court to do what it did on October 31: overrule its own 1993 judgement in the Unnikrishnan case and, lifting all State controls, give a free hand to private unaided institutions to administer themselves as they will and charge virtually as much as they like.

The Unnikrishnan case, holds Justice Kirpal, identifying the vice, “has the effect of nationalising education in respect of important features, viz the right of a private unaided institution to give admission and to fix the fee.”

A common entrance test, in other words, and centralised counselling by universities and/or State governments for admission to private medical and engineering colleges — the scheme framed in Unnikrishnan’s case — amount to nationalisation of education!

As for the economics of education, “it is well known all over the world”, reads the October 31 judgement, “that those who seek professional education must pay for it.”

If this be the philosophy of the Supreme Court, what remains of the welfare state?

More next week.

TRENDS & POINTERS

Mobile phones blamed for sparrow deaths

THE remarkable decline of the sparrow remains one of the wildlife’s most enduring mysteries.

Denis Henshaw, professor of physics at Bristol University, pointed to tests where the egg-laying ability of chickens had been affected by electromagnetic waves. Other studies have pointed to reduced sperm counts in rats. ‘It is very difficult to determine the size of the effect. Humans face an increased cancer risk with long-term exposure, but the problem is that sparrows may not live long enough for that to be a factor.’ The Guardian

SPIRITUAL NUGGETS

Children are God's apostles, day by day

Sent forth to preach of love, and hope, and peace.

— James Russel Lowell, "On the death of a friend's child"

***

— Joseph Joubery, Pensees