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From Badal to Badal Damages for
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Fighting
for the tiger
Terrorists at large
Driving
force
A.Q. Khan is the
issue The case for judicial
restraint Inside Pakistan
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From Badal to Badal With
the families’ hold on political parties tightening, a son stepping into the shoes of his politician parent has become common in India. Only Left parties and the BJP can claim to resist the dynastic transition. The Akali Dal was free from the tradition so far but has made amends with the baton being passed on from Mr Parkash Singh Badal to Mr Sukhbir Singh Badal. Atmospherics for the anointment were being created for long. As such, there is no one in Punjab who is surprised over Mr Sukhbir’s taking over the charge of the party from his father. In fact, there are many who think that the appointment of Badal Junior as party president is only a prelude to his being made Chief Minister. In that case, it is a matter of time. With the kind of acceptability that has come to be given to the tradition of political power remaining within the family, the Badal-to-Badal transfer is seen at best as an internal matter of the Shiromani Akali Dal (B). For the time being, party stalwarts far senior to him are going along with his appointment, while the few detractors are already cooling their heels on the sidelines. However, what matters is how the new man in will discharge his responsibility. At 46, Mr Sukhbir Badal has become the youngest president of the party. The test of his mettle will be how far he is able to make the Akali Dal into a youthful, modern unit fit for present-day challenges. So far, it has been largely a panthic organisation. Of late, some attempt has been made to transform it into a Punjabi dispensation. The statement of Mr Sukhbir Badal that it will not be a party of the Sikhs of Punjab but an organisation of the entire Punjabi community all over the world is encouraging. The question is whether he will be able to change the mindset of the old-fashioned jathedars. Making its presence felt at the national level is not going to be an easy task unless he changes the character of his party. The Akali Dal will be helping itself by breaking free of the apron strings that tie it with the Shiromani Gurdwara Parbandhak Committee. Its political graph can look upwards if it does not remain enmeshed so much in the gurdwara politics. There is no doubt that the two activities have been two sides of the same coin over the decades, but the time has come to make a new beginning. Mr Sukhbir Badal’s advent could be the trigger for many breaks from the past, even if the task is not going to be easy.
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Damages for callousness The
Supreme Court has rightly upheld the National Consumer Dispute Redressal Commission’s ruling awarding a compensation of Rs 38.04 lakh to the mother of an eight-year-old girl who died after being trapped in the escalator at New Delhi’s Indira Gandhi International Airport eight years ago. Jyotsna, daughter of Geeta Jethani, was sucked into a hole at the base of the escalator, maintained by the Airports Authority of India (AAI). Its impact was such that the escalator’s comb plate sliced Jyotsna’s face and her body was crushed. Then followed a protracted legal battle between Geeta Jethani and the AAI. Geeta squarely blamed the AAI for its callousness and indifference towards the passenger safety and demanded compensation. The AAI, however, was not prepared to accept its culpability for the offence. It refused to admit its failure to maintain the escalator properly. Even as the AAI authorities tried to pull the wool over everyone’s eyes and hoodwink justice, a firm and resolute Geeta knocked at the doors of the National Consumer Dispute Redressal Commission. In August 2004, it fixed accountability on the AAI for the tragedy and directed it to pay compensation of 2.5 lakh French franks to Geeta along with interest from January 2000. “Not to keep staff at the escalator to switch it off in case of calamity by itself is deficiency in service”, the commission ruled. The apex court Bench consisting of Justice B.N. Agrawal and Justice G.S. Sanghvi aptly rejected the AAI’s plea as “without merit” and upheld the consumer commission’s ruling on the award of compensation. The law of torts is crystal clear on the award of damages. In this case, the AAI is guilty of committing a grievous wrong and will have to pay compensation to Geeta as directed. This salutary gesture of the apex court will act as an important precedent for all cases under the law of torts and serve as a warning to institutions like the AAI which refuse to admit lapses and improve passenger safety. Consumer safety should be the prime concern of every essential service and passenger utility. Yet, there is a need to increase public awareness on the law of torts and the role of consumer commissions so that institutions like the AAI are forced to improve passenger safety and stop playing with their lives.
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Fighting for the tiger The
decision of the Cabinet Committee on Economic Affairs (CCEA) to include eight new reserves in Project Tiger for the 11th Plan is a step in the right direction to save the beleaguered national animal — and an affirmation of faith in a much criticised project. It was only last year, after all, that the Comptroller and Auditor General’s (CAG) report slammed Project Tiger for not being quite as successful as touted, even in its early years. The CAG report, tabled in Parliament, found that in the 15 reserves under the project, in 18 years, the tiger population rose by a mere 20 — from 1121 to 1141. If the population of tigers in protected reserves is only holding its own, it is small wonder that the number of tigers has dwindled over all. Current estimates posit a figure of around 1400, and some fear that it may be as low as 1000. After the tiger vanished from reserves like Sariska, plenty of prime ministerial visits, meetings and census exercises have taken place. It is significant that the government has not even owned up to a final, official estimate for the current population. What is worse, the powers that be are not even agreed on the best approach to save the tiger. The Tiger Task Force of 2005 squarely pitted tiger against tribal, and dissenting voices within the Task Force cried foul, pointing out that an animal like the tiger needed protected reserves, and they could not possibly co-exist with humans. On the other hand, many insist that the forest peoples are the real conservators, and may be our best defence yet against poaching, the most serious threat to the tiger, along with the problem of compromised environments. A forest bureaucracy and field force incapable of meeting the challenge adds to the tiger’s woe. A hint as to how this is going to be resolved was given by the finance minister, who has said that apart from the sum of Rs 320 million for the new reserves, the CCEA had approved a sum of Rs 6 billion for tiger preservation, five billion of which was going to be spent on just rehabilitating people from core areas. Whatever approach is followed, it will become important to take a holistic approach, and keep all stake-holders on board. The tiger’s future depends on it.
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There are two kinds of people who never amount to much: those who cannot do what they are told, and those who can do nothing else. — Cyrus Curtis
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Terrorists at large There
is a story of a potter who married a blind woman because in those days of buying brides she came cheap. Poor woman as she moved about the house with a stick in hand she would inadvertently break the pots her husband kept out to dry. A tragic case of penny wisdom and pound foolishness. The Manmohan Singh Government is similarly handicapped in its Home Minister. An otherwise good man, Shivraj Patil, was a tolerably efficient Lok Sabha Speaker. He had combined suavity with firmness while presiding over the country’s apex legislature. But handling national security is not his cup of tea. The allusion to cheapness does not mean that he is devoid of the trappings that go with the office, like a special IAF plane for domestic travel, but he has not the ghost of an idea about national security and saving the lives of a billion Indians. As ill luck would have it, he lost the 2004 Lok Sabha election from his home constituency of earthquake-ravaged Latur in Maharashtra. Public-spirited publishers of Malayala Manorama — the celebrated scions of the immortal of K.C.Mammen Mappillai of Kottayam in Kerala — raised funds to rebuild the town and rehabilitate the residents in quakeproof tenements. Apparently, instead of nursing his constituency in its hour of distress, he was playing court to the dynasty. The upshot was he lost the election but being a favourite of the “ Gandhi family” — as the newspapers put it — was nominated to the Rajya Sabha and straightaway made Union Home Minister. Thus, Latur’s loss has become the nation’s albatross. It has been the government’s practice for more than two and a half years to pack the Cabinet with Rajya Sabha members. Thus, former External Affairs Minister Natwar Singh and Law and Justice Minister H.R. Bhardwaj, among others, are from the Upper House — as if to keep the Prime Minister company. The only exceptions are Finance Minister Palaniappan Chidambaram and Pranab Mukerjee, shifted from defence to external affairs after Natwar Singh fell from the madam’s grace. The corollary is rewarding defeated Congress chief ministers with governorships. Narain Dutt Tewari is the latest in this respect. Defeated in Uttarakhand he moved to Hyderabad Raj Bhavan, said to be the coziest among gubernatorial habitats. The Nagaland ex-chief minister, S.C.Jamir, is the Goa Governor and so on. Was the scrapping of the draconian POTA (Prevention of Terrorism and Disruptive Activities) Act responsible for the laxity of internal security? There is no empirical evidence of it. Moreover, Shivraj Patil’s thinking and approach to internal security are so warped that the tools do not matter. For instance, the thrust of his speech at a conference of States’ home ministers recently was provision of religion-based reservations to the minorities in the teeth of the judiciary’s resistance. Besides, when the Communist pillars of the government had made an issue of scrapping POTA — out of concern for human rights (sic) —the government had no alternative. That is notwithstanding the Supreme Court upholding its validity. The rub, however, is that the provision for the state governments to — implement the law — which court had counted as a safeguard with the Centre barred from forcing it down their throats has proved cold comfort. The Jayalalitha a Government in Tamil Nadu had used it most vindictively against Vaiko Narayanswamy of PMK. Vaiko was a minister in the predecessor National Democratic Alliance (NDA) Government. He was detained without chargesheet or trial for over two years in very trying conditions. Vaiko, incidentally, is a gem of a man and a straightforward politician. Reverting to Shivraj Patil’s handling of internal security, the record of 18 months — from March 2006 to Dec. 2007 — speaks for itself: March 2006,twin bombing at the railway station and the Kasi Viswanath temple, Varanasi, 20 persons killed; July 2006, seven serial bombings of a Mumbai suburban train killing more than 200 and injuring over 700 others, (the Prime Minister ducked participating in the city observance of the anniversary of the outrage July last lest it should ruffle Muslim sentiment); Sept.2006, at least 30 persons were killed and 100 injured in twin blasts at a mosque/ graveyard at Malegaon in Maharashtra; Feb.2007,bombs detonate on the Samjhauta (friendship)Express from Amritsar to Lahore; May 2007, 11 persons killed in a bomb attack at the historic Jama Masjid in Hyderabad and 25 Aug.2007 bombs rip through crowded public areas in Hyderabad killing at least 42 persons. The toll adds up to 303. And not a single case against the accused! At another level, the National Security Adviser, M.K. Narayan Swamy has been warning that terrorists — not militants, from Kashmir and Pakistan and lately Bangladesh as well are operating in India. But Shivraj Patil is not worried if security personnel die in droves facing the multiple
threat.
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Driving force Those
who had crossed over to Pakistan were trickling back in batches, after obtaining training in the use of weapons and terrorist acts. Some of these batches would cross the LAC from the areas of Poonch and over the Pir Panjal Range to enter the valley. Guides were being handsomely paid for each crossing. A few of these guides were won over by the Indian intelligence. One such batch of 43 terrorists was held up near the LAC in a sort of “no man’s land,” because the guides told them that the Indian Army was in a high state of alert and chances of being intercepted were high. Terrorists were getting impatient and wanted to get to the valley at the earliest. One of them sprained his ankle and the group decided to split into two: the one consisting of 23 terrorists asked the guide to arrange for a truck which could take then to a point from where they would across over to their part of the valley. The group insisted that the driver of the truck should be a Sikh. This demand was understandably so because, the terrorist problem in Punjab was at a high and they had been briefed in Pakistan that the Sikhs were sympathetic to their cause. The junior guide was sent to Poonch to arrange for a truck and bring it to the rendezvous at midnight. While there were a number of trucks but on that day no Sikh driver was available. The brigade commander’s driver volunteered to drive the truck. Dressed as a civilian truck driver, with a pistol strapped on to his leg, he took the truck along with the guide to the point where the terrorists were to board it. He asked the group to conceal their weapons etc in the truck’s tool boxes but the terrorists refused to part with the weapons. Three terrorists mounted on the front end of the truck, above the driver’s cabin while the rest of them along with all their weaponry, which included grenades, explosives etc got into the truck. Alongside the driver sat the senior guide and next to him the leader of the terrorist group. In the body of the vehicle sat the junior guide and the rest of the lot. When the truck was negotiating a bridge, a sentry stepped forward and signalled it to stop. Picturing the worst, terrorists panicked and one of those sitting above the driver’s cabin opened fire on the sentry. The sentry slumped forward. The junior guide sitting in the body of the truck too panicked and jumped out and ran. He too was shot. The leader of the group, suspecting that they had been betrayed, shot the senior guide, sitting with him. He told the driver to speed through what he feared was an ambush. All this happened in a matter of 5 to 7 seconds. In this short period, the driver displaying great presence of mind and in an agitated voice, told the leader of the group to look to his left and himself slipped out of the truck and jumped over the railing of the bridge on to the dry sandy bed of the nullah, some eight feet below. He immediately got under the bridge with his pistol at the ready to take on any one who followed him. Just then two light machine guns “opened up” and near-hell broke loose. As the machinegun fire ripped through the truck, grenades and bombs in the truck started exploding, tearing open the vehicle body. Many died and the injured were immediately evacuated to the military hospital. The second group too was intercepted. At the recent NDTV award ceremony with the PM in the chair, the Soldier was declared, “Indian Of The Year.” The driver of this story is one such
soldier.
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A.Q. Khan is the issue
Either
Kim Jong Il or Pervez Musharraf is lying about whether Pakistan’s Dr. Strangelove, Abdul Qadeer Khan, gave centrifuges to North Korea for uranium enrichment. Unless the truth can be established, the hitherto-promising denuclearisation negotiations with Pyongyang are likely to collapse. Khan has been shielded from foreign interrogators since his arrest three years ago for running a global nuclear Wal-Mart. Musharraf wrote in his memoir, In the Line of Fire, that the former czar of Pakistan’s nuclear program provided “nearly two dozen” prototype centrifuges suitable for uranium enrichment experiments to North Korea – a charge flatly denied by Pyongyang. “Why don’t you invite A.Q. Khan to join the negotiations?” North Korea’s UN representative, Kim Myong Gil, asked with a broad smile over lunch recently. “Where is the invoice? Give us the evidence.” Former UN Ambassador John Bolton and other opponents of the denuclearisation agreement reached with North Korea last February 13 are seeking to undermine it by reviving the CIA’s 2002 assertion that Kim is operating a secret weapons-grade uranium-enrichment plant. Unless Pyongyang reveals the plant’s location and dismantles it, Bolton argues, the denuclearization accord should be scrapped. US negotiator Christopher Hill counters that it was never clear whether such a plant existed. All that the United States knows, Hill said in a little-noticed speech last February at the Brookings Institution, is that North Korea imported certain equipment that could be used for uranium enrichment, notably aluminum tubes from Russia. “It would require a lot more equipment than we know that they have actually purchased,” Hill said, to make the thousands of centrifuges needed for a weapons-grade enrichment facility. The denuclearisation agreement requires North Korea to provide a full declaration of “all its nuclear programs” as part of a series of parallel, reciprocal steps in which the agreement’s five other signatories provide energy assistance to North Korea and the United States removes it from its list of terrorist states. Although Pyongyang denies that it has a uranium enrichment program, it has promised to “address U.S. concerns” by showing that suspect equipment imports were for other purposes if the United States produces evidence of such imports. Regarding the aluminum tubes, the CIA has satellite photos and a bill of lading, and the North Koreans are seeking to prove that the tubes were not used for uranium enrichment. But for the centrifuges, Pakistan has not provided any documents or details that back up Musharraf’s claim. Why is Musharraf determined to keep Khan under wraps? The official answer in Islamabad is that Pakistan’s sovereignty would be affronted by letting US intelligence agents cross-examine him. Khan is regarded as a national hero, and the United States is widely hated in Pakistan for invading Iraq and Afghanistan and for its insensitivity to civilian casualties. If Musharraf wanted to cooperate, however, he could permit the International Atomic Energy Agency to interrogate Khan, as former Pakistani Prime Minister Benazir Bhutto had suggested, or Musharraf could find out what Khan knows and give the United States the information it needs to confront the North Koreans. Many Pakistanis say Musharraf is stonewalling because he and some of his army generals collaborated with Khan and fear exposure. Another possible explanation is that the documentary evidence does not exist. Still another is that Musharraf changed his position on the centrifuges and invented the “facts” in his memoir to curry favor with the Bush administration; by strengthening its case against North Korea, in this view, he hoped to offset dissatisfaction in Washington with his ineffectual performance in combating This explanation cannot be dismissed, since in a February 2004 New York Times interview Musharraf “emphatically denied” US reports of Pakistani nuclear technology transfers to Pyongyang. Whatever the explanation, the United States should put the Khan issue at the top of its agenda in Islamabad. At the very least, the IAEA should be able to question him about what he gave not only to North Korea but also to Iran and Syria. If Musharraf’s allegation can be substantiated, North Korea would have to cooperate in establishing the facts in order for the denuclearization process to be completed. Pyongyang might well say that the centrifuges were obtained for a research and development program. North Korea, like Iran, is permitted under the nuclear Non-Proliferation Treaty to make low-enriched uranium fuel for civilian reactors if it accepts IAEA inspection safeguards to prevent weapons-grade enrichment. Pyongyang is unlikely to surrender its plutonium stockpile and move to full denuclearization unless this right is accepted and unless it is promised light-water plutonium reactors for electricity when and if its nuclear weapons program is dismantled. The writer is director of the Asia program at the Center for International Policy. He has visited North Korea 10 times and is the author of “Korean Endgame: A Strategy for Reunification and U.S. Disengagement.” He has covered Pakistan as a journalist since 1951. By arrangement with
LA Times-Washington Post
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The case for judicial restraint There
have long been murmurs of protest over a sort of expansionist attitude of the judiciary. Lately, there was open talk about the need for clipping its wings. Possibly, under the pressure of all this, two of the learned judges of our apex court felt hot under the collar and decided to do some introspection. Their finding was that the higher judiciary had, indeed, been hyper-active and freely creeping into the reserved areas of the other two organs of the state. This self-reproach has already started a healthy debate in many forums and may have the effect of forestalling any ugly situation that may have been in the making. Out of the three well-known organs of the state, the judiciary, in the absence of direct control over the police and purse-strings, is regarded as the weakest. Yet, the esteem that the judiciary is held in declares the civilisational status of a nation. The founding fathers of our Constitution understood it well. So, they opted for a highly virile and independent judicial structure. It could, however, never be their intention that the country should be ruled from the court-rooms. The situation, most certainly, has not deteriorated to that stage, but a need for course correction in the matter is already being felt. In the Golak Nath case, it was ruled that the Parliament had nothing like a constituent power. Earlier it was thought that when the Parliament went for amendment of the Constitution, it did so in exercise of its constituent authority that could not be questioned in a court of law. The judgement, thus, threw open the constitutional amendments to judicial review. In the Keshvanand Bharti case, a thirteen judge bench of the apex court set aside this view and agreed that the Parliament did have constituent power to amend any part of the Constitution. But it was of the view that ‘amendment’ did not mean complete over-haul of the Constitution, so as to change it beyond recognition. Thus, the court could not intervene so long as the Parliament went for pure and simple amendments. This meant that the legislature could amend only while taking care not to destroy the essential character of the Constitution. In other words, the Parliament could not touch the basic features of the statute. What these basic features are would be decided by the court on case to case basis. The implication of this is that every constitutional amendment by the Parliament is subject to the judicial review and can be struck down by the Supreme Court on the grounds that it violates some basic aspect of the Constitution. Another judgement in the infamous Ranga Billa case rules that the apex court can review the cases related to the Presidential pardon also. These rulings and of course, a host of others, have the effect of putting the privilege of the last word in the hands of the judiciary rather than the Parliament which is supposed to reflect the will of the people. It is for consideration whether the things should be allowed to stand this way in a democratic set up. The only check on the judges through Parliamentry impeachment has proved to be totally unworkable. Whenever somebody talks of imposing any sort of accountability on them in any other manner from outside, a cry goes up in the air that this would imperil the independence of the judiciary. The judges, thus, want to be to be a self-administering body that would brook no external control over them in the matter of their discipline, transfer and promotion etc. One rather feels that nobody should be allowed to go beyond remedy this way. There is hardly any doubt that if judicial discipline and accountability are entrusted exclusively to devices like internal-control or self-audit etc., things can go very wrong. The higher judiciary has been entertaining all sorts of ‘public interest litigation’ cases. Taking up the really crucial public matters where the judiciary is in a position to undo a grave injustice to a section of a society or set right a conspicuous case of misgovernance is absolutely fine. But trying to bite more than what it can chew could eventually result in all round confusion. It is heartening to note that our apex court is already thinking in terms of laying suitable guidelines for dealing with P.I.L. cases. In the U.K., the legislature is supreme. A judicial commissioner who tried to defy the British Parliament in the past was promptly put to death. The executive enjoys supremacy in France. In the case of the U.S.A., it is the judiciary that is dominant. We ourselves had quite a state of harmony among the three organs of the state during the first three decades of our independence. Our legislature and executive, in any case, are hyphenated together. There is very little scope of misunderstanding between the two. The judiciary has also enjoyed respect and independence all through. This equilibrium started getting disturbed after the Allahabad High Court judgement in the Indira Gandhi case. Mrs. Gandhi went to the length of nullifying the adverse effect of this judgement through a constitutional amendment, because she did not want to take a chance with her appeal in the Supreme Court. Our present problem arises out of the failure of the executive to deliver because of the coalition constraints and the poor bureaucratic back up and the judiciary feeling frequently tempted to move in. The solution lies in mutual respect for each other’s turf and the judiciary reconciling to the fact that the privilege of the last word belongs to the people through their Parliament. It also must agree to a reasonable control from outside. The writer is a Supreme Court advocate
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Inside Pakistan These days Pakistan Army chief General Ashfaq Kiyani is engaged in an unusual task. He has reportedly initiated a drive to depoliticise this most important institution he heads. The idea appears to be aimed at achieving three major objectives. One, the Army must be seen to be interested only in its constitutional responsibility of defending Pakistan’s borders. Two, its reputation of being a super police force must change so that its battered image among the public improves considerably. Three, the Army must not be perceived to be taking sides in the coming elections. The last point is of immediate importance because the general belief is that the February 18 elections cannot be free and fair so long as the Army is involved in the task in any manner. Or there may be a message from President Pervez Musharraf to the Army chief that he and his party, the PML (Q), can ensure favourable poll results without the Army’s overt support. The credibility of the exercise started by General Kiyani will remain doubtful so long as he does not do what Nasim Zehra, a respected newspaper columnist, points out in her article in The News (January 31). “One, the Army and Musharraf should not be seen as twins. Two, it should distance itself from the coming elections and clarify what role it will be playing in the elections... “Three, the new chief should be able to make the changes he wants in the Army. Four, the new chief should pull out army officers from civilian institutions. Five, the serving officers in the ISI must not be allowed to dabble in politics.” The main problem is the ISI. As Business Recorder says, “Over the years, because of its nose-poking in political affairs – thanks to this additional role bestowed upon it by Zulfikar Ali Bhutto in the name of strengthening internal security – the ISI is cast in the image of a godfather ensuring the ‘correctness’ of national politics. Therefore, much of the murkiness of electoral politics, rightly or wrongly, is attributed to the ISI, which then finds its way to GHQ …” Ex-CJ as a political factor Deposed Chief Justice Iftikhar Mohammad Chaudhry continues to remain an important political factor in Pakistan. He is under house arrest and, therefore, unable to openly influence the course of politics. Yet President Musharraf considers him a major threat to his authority. That is why he recently released a long list of “misdemeanours” of Justice Chaudhry in London. But this has evoked sharp criticism from the media in Pakistan. An editorial in Dawn (February 1) says: “It is unlikely … that President Musharraf’s attempts to convince the international community of the deposed judge’s improper conduct will be successful. This is especially so since his own credibility is being held in considerable doubt following his draconian measures last year to put curbs on democracy by silencing a judiciary that was finally seen as coming into its own, and suspending fundamental rights.” In the meantime, lawyers all over Pakistan observed January 31 as “Iftikhar Day” on a call given by the Pakistan Bar Council. According to The Frontier Post, “The idea was not only to acknowledge the services of the deposed Chief Justice and his colleagues for the cause of the independence of the judiciary but also to make the world aware of his plight due to his continued detention.” Race for power According to The Nation, “on Wednesday, a 10-member PML(N) delegation led by Mian Shahbaz Sharif met PPP Co-Chairman Asif Ali Zardari where the issue (of ensuring free and fair elections) was discussed by the two sides. Both criticised what they called the misuse of government resources by the PML-Q … and demanded an end to the measures being allegedly taken to steal the elections.” This may be interpreted as the two main opposition parties working together to bring about a change of government. The reality, however, is different. Both have adopted a different strategy and are working to defeat each other in the race for power. PML (N) leader Nawaz Sharif is more aggressive in his speeches nowadays because he is getting feelers from the breakaway PML (Q) returning to the parent organization. But Mr Zardari, as it is believed, is not averse to having a rapprochement with President Musharraf. Daily Times of January 31 said the PPP chief was ready “to live with the President if the party so decided”. President Musharraf, it seems, is busy playing some interesting game to perpetuate his rule.
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