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Small is governable And now bird flu Ludhiana to Mumbai |
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A
Tribune Debate
Letter of
discomfort
Northeast smoulders
on many fronts Defence
notes Bush’s Gulf tour
is a mockery of reality
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And now bird flu SINGUR,
Nandigram, Kolkata fire and now bird flu! West Bengal is not having the best of times, of late, it seems. It has been confirmed that the death of thousands of chickens has been caused by the dreaded H5N1 virus, which might have come via Bangladesh. Since the variant is dangerous to human beings, it is among the biggest challenges the state faces. On paper, a contingency plan is already in operation, but reports from the two affected districts of Birbhum and Dakshin Dinajpur tell a sorry tale of mismanagement, with hundreds of dead chickens lying scattered. The sooner the rapid response teams start responding, the better, because the situation can worsen all too quickly. The first priority, of course, is to ensure that human beings are not affected, especially the cullers who come in direct contact with the birds. Then there is the need to confine the disease within the 10-km radius of the area where the birds have been found to be affected. Poultry farmers have to be given adequate compensation. After all, more than 3.75 lakh birds may have to be culled. All these tasks can be accomplished only if the Centre and the state work in tandem. What is more worrying is the fact that this is the third outbreak of bird flu in the country in two years. If it was Maharashtra in February 2006, it was Manipur in July 2007. There is need to go deeply into the reasons for these frequent outbreaks. One possible cause is the insensitivity of the local administration to such developments. For instance, the West Bengal government did issue an alert, which even reached the District Magistrate in time. But personnel of the animal husbandry department just did not act on it. Now that there are reasons to suspect that many people might have feasted on the infected birds, the problem will be far more difficult to tackle. This tendency to delay unavoidable action must be curbed with a firm hand.
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Ludhiana to Mumbai THE extension of the Delhi-Mumbai industrial corridor to Ludhiana will boost Punjab’s industrial development. Conceived when Prime Minister Manmohan Singh visited Japan in December 2006, the project is modelled on the Tokyo-Osaka industrial corridor and will cost Rs 4 lakh crore. It will be completed with Japanese help in two phases. The first phase (2008-12) will see the establishment of one investment region of about 200 sq km and one industrial area of a smaller size in each of the participating states. Originally, six states — UP, Rajasthan, Gujarat, Maharashtra, Haryana and Delhi — were part of the project. Now Madhya Pradesh and Punjab, too, have been included. India’s creaky infrastructure has been a major constraint in accelerating the pace of industrialisation. Traditional industries, which are not strategically located, suffer from infrastructural bottlenecks like poor road-rail-air connectivity and fund constraints to upgrade technology. The industrial corridor and a Japanese investment of $10 billion in the first phase will ease these problems to some extent. The corridor will have new and upgraded airports, several logistics and agro-processing parks apart from two ports in Gujarat and Maharashtra. The industry in Punjab will also get a railway connectivity to the eastern region. A dedicated freight corridor will connect Ludhiana first to Sonnagar in West Bengal and then to Kolkata, where a deep-sea port is to be set up. The Mumbai-Ludhiana freight corridor has been extended to Amritsar. Now it is for the participating states, especially Punjab, to make the best possible use of the proposed facilities by creating a congenial atmosphere for industry. Good governance, removal of red tape and transparency in administration can help in attracting private investment. Industrial houses like the Tatas do show interest in Punjab, but somehow proposals do not materialise. The scope for employment generation in the manufacturing and processing sectors is immense and the states concerned will have to impart the required technical skills to youth well in time.
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When a man wants to murder a tiger he calls it sport; when a tiger wants to murder him, he calls it ferocity.
— George Bernard Shaw |
A Tribune Debate
Much
has been written about the observations made by a two-Judge Bench of the Supreme Court in its judgement in the Aravali Golf Club case on December 6, 2007, regarding the need for the judiciary to maintain restraint and leave it to the people to correct the defects in the functioning of the legislature and the executive by exercising their franchise properly or through other lawful methods like peaceful demonstrations. Startling as it may be, one of the reasons given by the Bench for observing judicial restraint is that when “courts encroach into the legislative or administrative fields, almost inevitably voters, legislators and other elected officials will conclude that the activities of the judges should be closely monitored”, and that “there is bound to be a reaction from the politicians and others (and) the politicians will then step in and curtail the powers, or even the independence, of the judiciary”. No one can dispute that the judiciary has to function within the limits of the powers conferred by the Constitution, and in that context it has to observe restraint. But the principle of judicial restraint also includes within its ambit the question of judicial discipline, decorum and propriety. The only issue involved in the appeal before the Bench of the Supreme Court was whether a gardener (mali) in a golf club of the Haryana Tourism Corporation, who had also been working as a tractor driver for about a decade without there being a post of tractor driver, could get a post of “tractor driver” created and then be regularised to that post. The Bench held, and rightly so, that the court cannot direct the creation of a post. But the Bench did not stop there. It went further to observe that there were cases where judges were, in the name of judicial activism, unjustifiably trying to perform executive or legislative functions. The Bench observed that the Indian judiciary was very often rightly criticised for “over-reach” and suggested that judges should not behave like emperors. The Bench chose to give specific instances of such “over-reach”. In the Aravali Golf Club case, it was within the jurisdiction of the trial court and the Punjab and Haryana High Court to decide the grievance of the gardener and they did so, rightly or wrongly. The two-Judge Bench of the Supreme Court declined the relief sought by the gardener. The Bench thereafter became functus officio and had no jurisdiction to give findings on issues not before it such as the Constitution Bench orders in the Legislative Assembly cases, the separation of powers, and the powers of the Delhi High Court in matters pending before it. There is hierarchy in the Supreme Court and the High Court where larger Benches overrule smaller Benches and the differing views of Benches of co-ordinate jurisdiction are referred to a bigger Bench. This practice over the years has been crystallised as a rule of law. In its 2001 decision in Vijay Laxmi Sadho vs Jagdish, the Supreme Court summarised the settled law that if a Bench of co-ordinate jurisdiction disagrees with another Bench of coordinate jurisdiction on a question of law, it is appropriate that the matter be referred to a larger Bench for the resolution of the issue as “judicial decorum, no less than legal propriety forms the basis of judicial procedure and must be respected at all costs”. The sitting in over judgement by the two-Judge Bench of the Supreme Court in the Aravali Golf Club case over the decisions of the Constitution Benches in the Legislative Assembly cases of 1998 and 2005 has struck at the very root of judicial discipline, and hence judicial restraint. Even if the two-Judge Bench had differed in 2007 from the Constitution Bench decisions of the Supreme Court in the Legislative Assembly cases of 1998 and 2005, the only course open to it would have been to refer the question to a larger Bench for an authoritative pronouncement. Ironically, in at least two judgements reported in 2007, the Supreme Court had referred to judicial discipline and propriety to be maintained by the judicial fraternity. In the State of UP vs Jeet S. Bisht, one of the judges comprising the two-Judge Bench recorded that it is wholly inappropriate for his brother judge to criticise the various orders passed in that case itself by other Benches. After all, one Bench of the Supreme Court does not sit in appeal over another Bench. The judge emphasised that it would be equally inappropriate for the Bench to express total disagreement in the same matter as also in similar matters with the directions and observations made by the larger Bench. These propositions, according to the judge, were equally well developed in the doctrine of judicial restraint. The most outstanding feature of our Constitution is that it provides not only the fundamental rights guaranteed to the people but also a quick and efficacious constitutional remedy for their enforcement under Articles 32 and 226. The first Chief Justice of India, Justice Harilal Kania, at the inauguration of the apex court, proclaimed that the principal function of the court was to safeguard the fundamental rights and liberties of the people. Soon after the commencement of the Constitution, the Supreme Court recognised in Romesh Thapar’s case in 1950 its great responsibility in the matter of safeguarding the fundamental rights of the citizen. The apex court held that “this court is thus constituted the protector and guarantor of fundamental rights and with responsibility so laid upon consistently it cannot refuse to entertain applications seeking protection against infringement of such rights.” Coming back to the observations made by the two-Judge Bench of the Supreme Court, the pleadings of those cases were not before the Bench, nor were the cases connected in any manner with the gardener’s grievance. One would need to go through the pleadings in each of the case referred to by the Bench in order to arrive at a finding whether these cases fell within the legitimate exercise of the jurisdiction of the Delhi High Court under Article 226 of the Constitution or were they instances of judicial overreach. In the absence of pleadings and material before it, the apex court Bench simply had no basis for making its sweeping observation. The principle of judicial restraint dictated that the Bench should have refrained from commenting on cases or matters unconnected with the case before it, more so in the absence of any material to justify its observation. While the framers of our Constitution had not recognised the doctrine of separation of powers in a rigid form, they had certainly defined the functions of the executive, legislative and judicial branches of the government as being distinct. The Supreme Court is vested with the power of judicial review to preserve and protect the supremacy of the Constitution and keep the legislature and the executive within their respective constitutional limits. Coupled with that power is the constitutional obligation of the Supreme Court to exercise it when violations of fundamental rights or breaches of statutory duties are brought to its notice. The suggestions of the two-Judge Bench in the Aravali Golf Club case that it should be left to the people to correct the defects in the improper functioning of the legislature and the executive, and that the court should exercise judicial restraint so as to dissuade the politicians from stepping in and curtailing the powers or independence of the judiciary are not consistent with such constitutional obligations of the Supreme
Court. The writer is a senior advocate of the Supreme Court. The article is in continuation of The Tribune Debate, “Judges vs Judges”, in which a number of legal luminaries participated with their articles, carried on this page on Dec 15, 17, 19, 20, 21, 22 and 25, 2007.
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Letter of discomfort LAL BAHADUR SHASTRI was senior to me at the school. He was in the first batch of the English medium stream started in Mar Savarios High School, Ranni in Kerala, and I in the second. He came from a family which can be described as neither very rich nor very poor. His father was a farmer, who valued education and wanted all his children to get the best possible education. M.S. High School was one of the best schools in the area and students came from far-off places. When he joined the school, his name was quite different. In fact, he was my namesake. He got the name of the former Prime Minister under not-so hilarious circumstances. One day, the headmaster of the school, V.I. Abraham, a stickler for discipline and brother of V.I. Idicula, who was once an MLA, called for the school assembly. Over the public address system, he read out a letter one of the students had written to the then Prime Minister of India, Lal Bahadur Shastri, who gave the country the memorable “Jai Jawan, Jai Kisan” slogan during the 1965 war with Pakistan. The student wrote that he belonged to a very poor family and he would not be able to continue his studies as the monthly tuition fee of Rs 6 was beyond his means. It is true that those days many students could not continue their studies beyond Class IX because of the fees. In that letter, the student requested the Prime Minister to send him some money so that he could pursue his studies. The headmaster then called the student concerned to the podium and asked him whether he had consulted his father before sending the letter to the Prime Minister. He also asked him whether what he wrote was true or not. When the answers to his questions were in the negative, the headmaster rebuked him for writing falsehood and thereby causing disrepute to the school and his own parents. The headmaster also told him that his letter amounted to begging which was unacceptable. For all his labour, he got two cane lashes from the headmaster who believed in the dictum, spare the rod and spoil the child. Worse, he was instantly nicknamed Lal Bahadur Shastri. The mystery about the letter reaching the headmaster was solved when Abraham Sir himself disclosed that the Prime Minister’s Secretariat had forwarded it to him for necessary action. The PMO would not have thought that “action” meant caning the epistle writer. The student would not have even in his wildest dreams thought that his letter would land him in such trouble and also give him a new identity. I remembered my schoolmate, who is now settled in the US, when I read the recently published
My Life by Fidel Castro. The Cuban leader had also sent a letter to the US President F.D. Roosevelt while he was at school. In that letter he asked the American President to send him $10. This is what Castro says about the incident, “I got a reply - you know how it is, they are very organised, they have teams of people working for the President. So one day I get out of class and I find myself the centre of this huge ruckus at school: Roosevelt had sent a letter to Fidel! “There was a copy of it on exhibition on the bulletin board. After the triumph of the Revolution, the Americans found my letter and published it, thanks to which I have a copy of it, because I did not keep one. And there are people who’ve told me that if Roosevelt had only sent me $10, I would not have given the United States so many headaches!” While Castro was feted for his letter, our poor Shastri was caned for what the headmaster called his
misdemeanour. |
Northeast smoulders on many fronts
In
the past weeks, a former member of Parliament from Arunachal Pradesh, Wangcha Raj Kumar, was shot and killed at his home town in Arunachal Pradesh while a former Chief Minister of Nagaland, SC Jamir, survived as assassination attempt, in two separate incidents. For Mr. Jamir, currently Governor of Goa – a sinecure which he has long chafed at after being toppled by a former aide of Nephiu Rio nearly five years ago – it is the fourth assassination attempt that he has survived. In both cases the needle of suspicion initially pointed at the National Socialist Council of Nagalim (Nagaland) led by Isak Chisi Swu and Th. Muivah, who have conducted peace talks and implemented a ceasefire with the Government of India since 1997. The elegant Wangcha Raj Kumar, a three-time MP from Eastern Arunachal was gunned down as he played badminton on Christmas Eve at Deomali. Mr. Jamir, a colourful and courageous Congress politician who has never made any secret of his loyalty to the idea of India and his antipathy for the major faction of the Naga insurgency. The group has denied any connection to the incidents but supporters of both men are not convinced (indeed, Mr. Jamir told me in a telephone conversation soon after the event that he believed that the NSCN (I-M) was responsible). These incidents in the last days of the previous year and a handful of events in the first days of the New Year indicate challenging days ahead for the region. Indeed, few Indians can be blamed if they are not just perturbed but completed baffled by the news of developments from the region. On the one hand the Government speaks of investing not less than Rs. 50,000 crore on roads alone in the region in the next years and projects a positive spin relating to regional growth as well as connectivity to the burgeoning economies of South East Asia. This statement was made at a conference in Guwahati by Jairam Ramesh, the eloquent Minister of State for Commerce (who spends a lot of his time working hard in the Northeast), organized by the Confederation of Indian Industry, in partnership with the Government of India and the Government of Assam. Yet, that very event on encouraging investment in the region distributed a folder that lumped the region clearly with West Bengal. Since when has Bengal become part of the NER? This is another example of insensitive attempts by Kolkata to dominate Assam and the North-east. In addition, a spate of bandhs or threat of bandhs, with organizations thumbing their nose at the other Supreme Court edict banning such work stoppages, stall governments and governance, disrupt the economy and give a free hand to entrepreneurial pirates and armed groups, which claim to be insurgents of various hues. Then there are the political complexities and conflicts in an ethnically diverse and difficult area, populated by not less than 220 ethnic groups and about 40 million people of just about 2.5 per cent of the national population, as well as efforts to deescalate or address these conflicts. Thus, while governments in four states demanded and succeeded in pressuring the Centre into withdrawing a delimitation exercise for parliamentary constituencies, ethnic minorities in the hills are furious and demanding that the exercise be conducted. In such a complex region, it is difficult to satisfy one demand without spurring the alienation of many groups who are aggrieved by the initiative. Thus, parts of Assam are awaking to a new threat to peace, in the shape of small armed groups from the tea tribes, which have long demanded their listing in the Constitution as STs. These groups have had training from the Nagas who are negotiating with the government of India, those captured say and with a Kuki tribe group, which is also on the Government’s side. Then who is fighting whom? Is everything happening with the Centre’s knowledge and seeming consent? Or is it just letting it happen anyway, hoping that something solid will emerge from the mess? The forebears of the tea garden community from central India, now largely Jharkhand, were shanghaied into traveling to Assam in the 19th century to work under horrible conditions in a strange land and tropical, malarial weather, in the tea gardens. Today, these tribes (including Santhals, Adivasis, Oraons and Mundas and over two million in number or nearly eight percent of Assam’s total population) are demanding re-recognition and disrupting life with strikes, bandhs and protests. In Assam, the novelist Indira Goswami keeps proclaiming tirelessly that there are good auguries for talks and negotiations between the United Libation Front of Asom, the major armed non-state group there, with the Government of India. This is questionable as invariably Ulfa comes out with a declaration that it will not talk until New Delhi agrees, in writing, no less, to negotiate the core issue of “sovereignity,” a word that is anathema to the Indian State. In Nagaland, the state government led by an opposition leader was dismissed with barely two months to go for legislative elections, eliciting cries of foul from those ousted. Different standards – one for Goa, another for Nagaland. But, of course: what is to be expected, either of the Congress or any other party? The two major insurgent groups contest each other, not really the Centre, with guns and rhetoric. Fewer Nagas and Indian soldiers have died in fighting each other since the ceasefires began in 1997. But the number of Nagas killed in fratricidal combat has soared. What does that tell us – that a stand-along issue, that once sought sovereignty and was negotiated bilaterally, has now become an internal problem of India. The Indian negotiators appeared to have done better than the Nagas. The Nagas know that sovereignty is out of the question, even if they cannot say it publicly. Their demand for greater lands has been rejected by their neighbours; and now they have fallen back on a demand that seeks to define something as esoteric as “asymmetric federalism” with their own Constitution that will give them powers to conduct some degree of foreign relations, international trade and even defence with India having a collaborative role. Whoever is advising them is doing a very shabby job of it: this proposal will not even pass the first cut in Parliament and create total uproar across the country, not least in the North-east. The Nagas have been ill-served by their foreign and domestic advisers: they need an agreement that will create goodwill with their neighbours, Assam, Manipur and Arunachal Pradesh, not further ill-will. |
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Defence notes The
transfer row involving a senior Lt General and the Chief of Army Staff General Deepak Kapoor continues to dog the Indian Army with the Army Chief facing repeated questions from the media. While the Lt. General has refused to move to his new posting, alleging bias on the part of General Kapoor, reports emanating from Army Headquarters say that the Lt General would have no option but to move. General Kapoor was specifically asked whether Lt General H.S. Panag would be assuming his new posting as head of the relatively insignificant Lucknow-based Central Command on March 1, from his current position at the Northern Command. The General replied: ‘I had recommended the transfer in the organisational interest. It is for the government now to take a view on this’. The transfer row and the other scams which have hit the army in the recent past has the Army Chief worried. He said so in as many words to the men he commands. At the Army Day parade address he made a special reference to the image problem which the force was facing. Chinese incursions on Prime Minister Manmohan Singh is back from his three-day visit to China. But on the day he met his Chinese counter part in Beijing and instructed their officials to set a deadline for ‘arriving at an agreed framework of settlement’ of the boundary dispute, Chief of Army Staff General Deepak Kapoor said here that incursions by Chinese troops across the frontier were ‘no cause for concern’. When asked about this specifically at the annual press conference, General Kapoor said: “Have the incursions gone up phenomenally? That hasn’t happened. Overall, they are somewhat at the same level (as in previous years). There is no cause for concern”. His reaction came just days after External Affairs Minister Pranab Mukherjee said that Chinese incursions were taking place. ‘We have a perception (of where the border lies), so do the Chinese. They carry out patrols up to their perception (of the boundary) and we carry out patrols up to our perceptions,’ General Kapoor added. Chinese troops had recently destroyed certain bunkers constructed by the Indian Army which, the force later said, were in Bhutan and not in India. Mission to Iran Critically injured Indian security personnel from a town in Iran were recently evacuated by an IAF air ambulance, a converted AN-32 transport aircraft. The air-ambulance, belonging to ‘Camels’ – a squadron based at the air force station at Chandigarh, carried out the evacuation mission on January 9 from Zabol town in Iran, which borders Afghanistan. Five personnel of the Indo-Tibet Border Police (ITBP) were critically injured in a suicide attack on their convoy in Zaranj province of southwest Afghanistan on January 3. The personnel were being deployed at Project Zaranj on the Deleram highway in Afghanistan when the attack was carried out. The injured were rushed to a border town in Iran where they were given immediate medical attention. However, their evacuation became necessary due to the seriousness of their condition. |
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Bush’s Gulf tour is a mockery of reality Between
silken sheets – in a bedroom whose walls are also covered in silk – and in the very palace of King Abdullah of Saudi Arabia, President George Bush awakes to confront a Middle East which bears no relation to the policies of his administration nor the warning which he has been relaying constantly to the kings and emirs and oligarchs of the Gulf: that Iran rather than Israel is their enemy. He had even received a jangling gold “Order of Merit”, though it was not disclosed which particular merit earned Mr Bush this kingly reward. Could it be the hypocritical merit of supplying yet more billions worth of weapons to the Kingdom, to be used against the Saudi regime’s imaginary enemies? It was illusory, of course, like all the words that the Arabs have heard from the Americans these past seven days, ever since the fading President began his tourist jaunt around the Middle East. After promising the Palestinians a “sovereign and contiguous state” before the end of the year, and pledging “security” to Israel – though not, Arabs noted, security for “Palestine” – Mr Bush had arrived in the Gulf to terrify the kings and oligarchs of the oil-soaked kingdoms of the danger of Iranian aggression. As usual, he came armed with the usual American offers of vast weapons sales to protect these largely undemocratic and police state regimes from potentially the most powerful nation in the “axis of evil”. It was a potent – even weird – example of the US President’s perambulation of the Arab Middle East, a return to the “policy by fear” which Washington has regularly visited upon Gulf leaders. He agreed to furnish the Saudis with at least £ 41 million of arms, a figure set to rise to more than £ 10 billion in weaponry to the Gulf potentates under a deal announced last year – all of which is supposed to shield them from the supposed territorial ambitions of Iran’s crackpot President, Mahmoud Ahmadinejad. As usual, Washington promised the Israelis that their “qualitative edge” in advanced weapons would be maintained, just in case the Saudis – who have never gone to war with anyone except Saddam Hussein after his 1990 invasion of Kuwait – decided to launch a suicidal attack on America’s only real ally in the Middle East. This, of course, was not how the whole shooting match was presented to the Arabs. Mr Bush could be seen ostentatiously kissing the cheeks of King Abdullah and holding hands with the autocratic monarch whose Wahhabi Muslim state had only recently showed its “mercy” to a Saudi woman who was charged with adultery after being raped seven times in the desert outside Riyadh. The Saudis, needless to say, are well aware that Mr Bush’s reign is ending amid chaos in Pakistan, a disastrous guerrilla war against Western forces in Afghanistan, fierce fighting in Gaza, near civil war in Lebanon and the hell-disaster of Iraq. The President has such close ties with the Saudi regime – despite the fact that the majority of hijackers in the crimes against humanity of 11 September 2001 came from the kingdom – that he allowed its junior princes to fly home from the United States immediately after the attacks. Two trips to Mr Bush’s Texas ranch by King Abdullah was apparently enough to earn the US President a night in the Saudi king’s palace-farm, surrounded by groomed lawns and grassy hills. For Arab leaders, Mr Bush’s message to the Gulf leaders was wearily familiar. In the 1980s, when the Reagan administration was supporting Saddam Hussein’s invasion of Iran, Washington spent its time warning Gulf leaders of the danger of Iranian aggression. Once Saddam invaded Kuwait, America’s emphasis changed: It was now Iraq which posed the greatest danger to their kingdoms. But once the emirate was liberated, the oil-wealthy monarchs were told that – yet again – it was Iran that was their enemy. Arabs are no more taken in by this topsy-turvy “good-versus-evil” narrative than they are by Washington’s promises to help create a Palestinian state by the end of the year, scarcely a day before Israel publicly admitted to plans for yet more houses for settlers on Arab land amid Jewish colonies illegally built on Palestinian territory. Yet to understand the nature of this extraordinary relationship with the Gulf monarchs, it is necessary to recall that ever since the President’s father promised a weapons-free “oasis of peace” in the Gulf, Washington – along with Britain, France and Russia – has been pouring arms into the region. Over the past decade, the Gulf Arabs have squandered billions of their oil dollars on American weapons. The statistics tell their own story. In 1998 and 1999 alone, Gulf Arab military spending came to £ 40 billionn. Between 1997 and 2005, the sheikhs of the United Arab Emirates – Mr Bush’s hosts before he continued to Riyadh – signed arms contracts worth £ 9 billionn with Western nations. The West may have a short memory. The Arabs, who happen to live in the piece of real estate which we call the Middle East and who are not stupid, have not. They understand all too well what George W Bush now stands for. After advocating “democracy” in the region – a policy which gained electoral victories for Shia in Iraq, for Hamas in Gaza and a substantial gain in political power for the Muslim Brotherhood in Egypt – it seems to have dawned on Washington that something might be slightly wrong with Bush’s priorities. Instead of advocating a “New Middle East”, Mr Bush, lying amid his silken sheets in the Saudi king’s palace, is now pursuing a return to the “Old Middle East”, a place of secret policemen, torture chambers – to which prisoners can be usefully “renditioned” – and dictatorial “moderate” presidents and monarchs. And which of the Gulf despots is going to object to that? By arrangement with
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