The Tribune, Chandigarh, India

Under cloud
Punjab Speaker must clear his name

Thursday saw more turmoil in the Punjab Assembly as the Congress, refusing to participate in the debate on Ludhiana violence, chose to target the Speaker, Mr Nirmal Singh Kahlon, who has reportedly been indicted by the CBI in a “cash-for jobs” scandal. The case pertains to Mr Kahlon’s tenure as the Rural Development and Panchayat Minister (1996-2001). It was alleged that money had exchanged hands in the selection of 909 panchayat secretaries. The subsequent CBI inquiry into the allegations was challenged first in the state High Court and then in the Supreme Court and both courts gave a go-ahead to prosecution. For the past nine months the SAD-BJP government has denied the CBI the mandatory permission to prosecute Mr Kahlon.

Since his continuation in the august office of Speaker is no longer tenable, Mr Kahlon should have resigned on his own, thus avoiding the unpleasant happenings in the House over which he presides. In the past Mr Ravi Inder Singh had resigned when faced with a situation to uphold the dignity of the office he held. However, the quality of politics and politicians has deteriorated over the years. Ethical values and democratic practices, once respected, are abandoned for personal and political convenience. Leaders occupying high positions do not quit over mere filing of charges. The justification: everyone is innocent until held guilty by a court.

That is why, perhaps, the Badal government did not find it unusual to choose a person who was under investigation for the office of Speaker. By denying or delaying permission to the CBI the government is further harming the reputation of Mr Kahlon. If the case is allowed to proceed, Mr Kahlon will have an opportunity to explain his position and get exonerated if he is innocent. Alternatively, he would function under the shadow of an unseemly controversy not befitting the office of Speaker.

Measles deaths
India’s record needs to improve

While the rest of the world, except South East Asia, has achieved the UN goal of reducing measles deaths two years ahead of target, India has not only fallen short but continues to account for the bulk of measles deaths. As three out of four children dying of measles are from India, three-quarters of the 1,64,000 measles deaths in 2008 were from this country. That a large number of children continue to die of an easily preventable disease is shocking and a cause for concern.

Measles, a highly infectious disease characterised by symptoms like fever, cough, runny nose and rash is one of the leading causes of death among children. It can lead to several health complications even among healthy children and in vulnerable populations it becomes deadly. However, the disease can be prevented through two-dose vaccination. Measles vaccine was included in India’s vaccination drive when the Expanded Programme on Immunisation was renamed Universal Immunisation Programme in 1985. Measles vaccine was included in India’s vaccination drive when Expanded Programme on Immunisation was renamed Universal Immunisation Programme in 1985. Sadly, vaccination drives leave a large section of the underprivileged population out of their ambit. According to District Level Household Survey while only 54.1 per cent of the nation’s children are fully immunised, nearly 11.3 per cent children have not received any form of vaccination. Shortage of vaccines makes matters worse. India is short of 17 crore vaccine doses, including 90 lakhs for measles.

India not only needs to step up its immunisation drives but also must adopt two-dose measles control strategy. Besides, it must focus on awareness campaigns. If massive vaccination drives worldwide could prevent an estimated 4.3 million measles deaths in 10 years and India could eradicate smallpox, there is no reason why children should still be dying of measles. An exporter of vaccines, the nation cannot allow its children to die for want of vaccine or gaps in its immunisation drives whose coverage as of now is rather dismal.

Thought for the Day

The world speaks to me in pictures. And my soul answers in music. — Rabindranath Tagore

ARTICLE

Choosing judges
Need for greater transparency
by Fali S. Nariman

In 1981, the Supreme Court said in S.P. Gupta’s Case (also known as the First Judges’ Case), by a narrow majority of 4:3, that the Chief Justice of India’s opinion in the judges’ appointment was not constitutionally binding on the Centre. The majority of the justices consisted of Justices Bhagwati, Fazal Ali, Desai and Venkataramiah, and the minority consisted of Justices Gupta, Tulzapurkar and Pathak.

The majority decision may or may not have been correct in constitutional law (it probably was); but it was definitely not in accordance with constitutional convention. And it proved to be a disaster for “judicial independence” because it enabled governments to “manipulate” appointments. As for instance when in the case of some recommendations of the executive, the CJI stood firm, the Centre attempted to persuade the High Court Chief Justice concerned (in the case of appointment of a judge to a High Court).

When Justice P.N. Bhagwati, who delivered the majority judgment in the First Judges’ Case (1981) became the CJI in July 1985, he was administered by the government some of the bitter medicine that he himself had prescribed when presiding over the Bench of seven justices in the First Judges’ Case. Justice Bhagwati (who was CJI for 18 months) made recommendations of persons who deserved to be appointed as judges. But at the end of his tenure as CJI, Bhagwati chafed quite a bit at the government’s refusal to accept the names proposed by him!

It was all this accumulated experience — as a result of the majority judgment in the First Judges’ Case — that prompted the now new faces on India’s Supreme Court to take a fresh look at the problem. The new faces were: Justices S. Ratnavel Pandian, A. M. Ahmadi, Kuldip Singh, J. S. Verma, M. M. Punchhi, Yogeshwar Dayal, G. N. Ray, Dr A. S. Anand and S. P. Bharucha. They came to the conclusion that it was time to review the correctness of the ratio of the majority decision in the First Judges’ Case.

This is where I come in. I had led the main argument on behalf of the petitioner, Supreme Court Advocate-on-Record Association in the
Second Judges’ Case and we had succeeded. But the fallout was
not as we had expected.

What the majority in the Second Judges’ Case (1993) prescribed (7:2) was not the status quo ante but it was — as the Americans would call it — an entirely new “ball game”!

The CJI’s primacy on which the whole edifice of an independent judiciary under our Constitution rested was a doctrine that had been sorely misused during the internal Emergency (1975-77) during which period Chief Justice A.N. Ray had got transferred judges from one high court to another not on the basis of the exigencies of work but solely because these judges had decided certain important cases which had political overtones against the Centre or the relevant state government. It was in this background that the majority in the Second Judges’ Case said that they would not endorse the doctrine of the CJI’s primacy.

Justice Verma, (who, in 1997, succeeded Justice Ahmadi as CJI) said (in the Second Judges’ Case) that the reason given by the majority in the First Judges’ case could not be supported, and was not in accordance with existing practice, and that the doctrine of primacy would henceforth mean the CJI’s opinion after taking into account the views of his senior colleagues required to be consulted by him for formation of a collegiate opinion: the opinion of a collectively of judges was to be preferred to the opinion of the primus inter pares of that body viz. the CJI.

Subject to introducing the idea of a collegiums, the judges (7:2 in the Second Judges’ Case) restored the pre-1981 position in matters relating to the judges’ appointment in the higher judiciary with one caveat: if the government did not accept the collegium’s recommendation, it would be presumed that the government had acted without bonafides. In the Second Judges’ Case, the majority held that the court’s prior decision of 1981 was erroneous and it was expressly overruled.

The truth is that although good competent honest men and women have been appointed to the superior judiciary under this judge-evolved procedure, many fit and competent persons have been passed over for unknown reasons simply because there is no institutionalised system for making recommendations.

Thus, when Justice Punchhi became the CJI in January 1998 and suggested that a list of five named persons be appointed in vacancies to the highest court (all strictly in accordance with the methodology laid down in the Second Judges’ Case), the government, having genuine reasons to doubt the suitability of one or two of the names in that list, dragged its feet.

When the government suggested to the CJI that some of the names could be accepted but not all, the CJI said “no”; he was firm and there were apprehensions in the minds of the executive of possible “contempt” proceedings being initiated suo motu against the executive if the CJI’s en bloc proposal was not accepted!

Ultimately, to avoid a possible ugly situation, a Presidential Reference was filed by the government for the advisory opinion of the Supreme Court for “clarification” of some dicta in the Second Judges’ Case. In this Reference, only a few ‘creases’ were ironed out; and the collegiate was enlarged (by judicial decree) from three to five of the seniormost justices on the highest court on the (somewhat dubious) principle that there was greater safety in larger numbers!

As for the suggestion made in the Third Judges’ Case (1998), which has been implemented, the criticism is that the system of recommendation for appointments by a collegium of five seniormost judges (like that of three went before) has also not been institutionalised. No mechanism has been prescribed (by the collegium itself) nor any criteria evolved as to which amongst the high court judges, all aspirants to a place in the Supreme Court should be recommended.

As a general rule, some, or perhaps many, of the recommendations of this five-member collegium have been “good”, but some have been “not-so-good” and a few positively “bad”: with the constantly changing combinations in the collegium (all Supreme Court judges having to compulsory retire at 65 years).

So nothing has worked well. Neither the system of appointments during 1981-92 (where the government had the veto) nor even the post-1993 system of appointments (where three and later five seniormost judges of the court) had the right to recommend judges for appointment.

But is the National Judicial Commission the right answer? Will there not simply be more confusion in even greater numbers? Perhaps there would. The answer to all this lies not in the number of persons who select nor in the range of persons entitled to select. There must be a greater transparency in the method and procedure of judges’ appointment.

I do not imply that there should be publicity. Once the method and procedure is known, the confabulations within the judiciary must be left to the justices without the intruding eyes of members of the public or the media. The problem today is that not much care is taken by the collegium in recommending judges for appointment to the Supreme Court simply because they are otherwise too busy in deciding cases that come before them.

Today, for reasons I need not expand upon, I can only express my extreme anguish at the current state of ground realities. The extra-curricular activity (imposed upon five judges by a judgement of the court itself) that of recommending appointments to the highest court has not been conducted with the care and caution that it had deserved. There is too much ad hocism and no established process of selection for recommendation.

This article is excerpted from the writer’s Annual Dr Kailash Nath Katju Memorial Lecture delivered at Teen Murthi House, New Delhi, on December 11, 2009

MIDDLE

People’s war
by Brig Harwant Singh (retd)

During the War of liberation of Bangladesh in December 1971, apart from aspects like politico-military synergy, grand strategy, thorough planning, excellent leadership at all levels and exemplary bravery of troops, local people’s commitment to help to win the war was also a major contributory factor.

One example of spontaneous and voluntary help by them would suffice. Our advance in Jessore-Khulna Sector (then East Pakistan) was faster than expected. But suddenly the leading troops encountered unexpected and very heavy opposition. Also a counterattack was developing against a crucial locality. Both needed immediate and most urgent artillery fire support.

Most of our guns were on the move and those deployed on the ground were inadequate to the task. To provide additional and vital fire support to overcome the critical situation, “Quick Action” was ordered wherein normal procedures are cut short and guns deployed immediately even if the area may not be fully suitable. Accordingly, we decided to deploy battery wise, in the nearest areas available next to the road and those patches happened to be soggy.

Since the gun towing vehicles would have got stuck in the soft ground, the gunners started handling their guns to their firing positions (platforms). It so happened that we were close to a village and the locals gathered to see the spectacle of our deployment. However, the villagers voluntarily joined our gunners like a swarm and in no time the guns were put into action and started firing to the delight and amusement of those locals.

Those days our guns, the famous 25 Pounders, had only 32 rounds in their gun trailers and towing vehicles each. So great was the requirement of the fire support that those rounds were about to finish soon as the guns were firing at intense rates of fire.

A cry went for the fetching the ammunition from the lorries which were some distances away. The entire vehicles having been strung on the only narrow road available, those vehicles could not be brought closer to the guns. The road was on the raised ground, the rest of area being wet and low lying, it was not possible to move the other vehicles to make way for the ammunition lorries. Also, the ground being soggy, they could not have reached the guns even if they had come closer.

It was a crisis situation. How our Dogra gunners, who spoke only Punjabi, overcame the language barrier and communicated the gravity of the situation to the bystanders, remained a mystery but soon the villagers were carrying heavy ammunition boxes, and bringing them to the guns.

The artillery ammunition is amongst the heaviest components of all warlike stores. It was a sight to see those short and lanky Bengalis struggling to carry heavy boxes. But carry and bring them to the blazing guns they did, all the time shouting cheerfully. Guns were firing rounds directly fed to them from the hands of unknown Bengali villagers.

That day, the impoverished villagers who lived from hand to mouth in a nine-month-long civil war, helped scoring a great victory for the liberation of their country by feeding the guns from “Hand to breech”. They felt it was not ours but their war, a “People’s War”.

OPED

India-Pak stalemate
The US tries to fill the vacuum
by Kuldip Nayar

The Pakistan Army Chief, Gen Ashfaque Parvez Kayani, demanded some time back that America “gives Pakistan and its interests a consideration and consult us when they design a new Afghan policy.”

There is no reason to believe that President Barrack Obama ignored Islamabad before announcing the surge of another 30,000 American troops to Afghanistan. Nor is there any protest from Pakistan that “its interests” were not considered.

Whatever the truth, the induction of additional US forces – 20,000 are already there – is not a healthy development for the region. Afghanistan’s Commander Stanley McChrystal reportedly remarked that “a tremendous amount of things are going to happen, and they are good things.” He is leading the forces in the area.

It is too early for America to make such observations because the past experience tells us that the US forces, wherever they have gone – Vietnam, Iraq or elsewhere – they have left ruin and devastation in their wake. They have yet to prove their mettle.

The history of Afghanistan says that no power, neither Great Britain in the past nor the Soviet Union in modern times, has been able to discipline, much less suppress, the defiant tribals. Foreign troops are only grist to their propaganda that their religion, Islam, is sought to be curbed.

The uneducated masses, with limited avenues for gainful employment, are more driven towards fundamentalism than to the ways to oust poverty. The tribal people are in perpetual poverty because their overlords have accepted money to keep quiet. They do not inspire confidence in the future.

Pakistan is the only country which has the necessary credentials. But its problem is that it cannot forget that the Taliban, who also dealt with the wayward tribal people, were far more friendly and dependable than the Karzai government, which has again assumed charge at Kabul, by hook and by crook.

Another fear that eats up Islamabad is that India, through its economic programme, has a far more say with the people of Afghanistan than all others. Islamabad still has the dream that Afghanistan would one day give Pakistan “its strategic depth.” Therefore, it is a matter of conjecture how far Islamabad would go to finish the tribal menace once and for all.

True, the Pakistan forces have driven the Taliban from Swat in the North Western Province and vanquished them in southern Wazirastan. Swat is part of Pakistan and the refugees who have gone back there are Pakistanis. Their loyalty cannot be questioned.

But the victory in Wazirastan may be difficult to sustain until local people rally behind Pakistan as the liberator. Probably the doubt on this point has made Islamabad realise that negotiations with the Taliban are a far better bet in dealing with them than the use of sheer force.

Also, the destructive manner in which the Taliban are blasting even the safest localities – Lahore is again the target – suggests that they have more collaborators all over than Islamabad or the West. It cannot be ruled out that some insiders are involved because of the ease with which they blast the most defended places.

And when President Obama says in the same breath that the forces inducted have a deadline of 18 months to quit – although in driblets – he is telling Pakistan to put its act together within that time-fame. That means building up Pakistan’s capability to defend the area in the absence of American troops.

The Taliban have only to find ways to lie low till the deadline. That may be the reason why the American offensive is not finding any meaningful resistance. Pakistan or, for that matter, America knows that the tribal people who have defied authority for hundreds of years cannot be defeated within 18 months. This is particularly so when the war against the Taliban is not a popular war in Pakistan.

A survey conducted recently in Pakistan shows that democracy and the Shariat way of governance have an equal number of supporters – 30 per cent each. The public is not so much against fundamentalists as against America and the NATO powers.

This may not be to the liking of the US and Europe but this is becoming clearer as the days go by. People in Pakistan have a stake in economic development, not in hostilities, because they have found that their condition has not changed for years. In fact, they find more solace in pursuing the religion vigorously than in wasting money in what they consider the Western games.

That the sum of $750 billion in the next five years has counted with Islamabad while making its policy against the Taliban is clear. But what is not clear is the reason for accepting humiliating terms in getting the money. If this amount is to line the pockets of some high-ups, as has happened in the past, or to strengthen the arsenal and the armed forces, what stake the public has in what the rulers are doing?

It is difficult to imagine that the rulers of whatever party will give way to some type of welfare state in the next five years. To begin with, feudalism has to go. There is no sign that even the first step has been taken in that direction.

Still terrorism has to be eliminated because it has made people in the region, including India, insecure. They do not know how to live when they know that they can be a prey to terrorism anywhere at any time.

The approach should have been regional. All the three countries, Pakistan, India and Afghanistan should have agreed upon a common strategy and forced a joint front to combat terrorism.

It is unfortunate that India and Pakistan are not on talking terms. Islamabad may find New Delhi intransigent. But when the latter has a feeling that the Pakistan rulers use terrorism to further the state policy, they have to do more than issuing statements to convince New Delhi.

Therefore, there is a vacuum which the America is filling. Both New Delhi and Islamabad are allowing Washington to do so because their mistrust in each other has been deepening since Independence. Mistrust is the core of the problem, not Kashmir. Unless that mistrust goes, there would be yet another Kashmir to keep them distant even if they are able to solve the current Kashmir problem.

Hot air at ‘Hopenhagen’
by Johann Hari

Every delegate to the Copenhagen summit is being greeted by the sight of a vast fake planet dominating the city's central square. This swirling globe is covered with corporate logos – the Coke brand is stamped over Africa, while Carlsberg appears to own Asia, and McDonald's announces "I'm loving it!" in great red letters above. "Welcome to Hopenhagen!" it cries. It is kept in the sky by endless blasts of hot air.

Yet the first week of this summit is being dominated by the representatives of the rich countries trying to lace the deal with Enron-style accounting tricks that will give the impression of cuts, without the reality. It's essential to understand these shenanigans this week, so we can understand the reality of the deal that will be announced with great razzmatazz next week.

Most of the tricks centre around a quirk in the system: a rich country can "cut" its emissions without actually releasing fewer greenhouse gases. How? It can simply pay a poor country to emit less than it otherwise would have. In theory it sounds okay: we all have the same atmosphere, so who cares where the cuts come from?

A study by the University of Stanford found that most of the projects that are being funded as "cuts" either don't exist, don't work, or would have happened anyway. Yet this isn't a small side-dish to the deal: it's the main course. For example, under proposals from the US, the country with by far the highest per capita emissions in the world wouldn't need to cut its own gas by a single exhaust pipe until 2026, insisting it'll simply pay for these shadow-projects instead.

It gets worse still. A highly complex system operating in the dark is a gift to corporate lobbyists, who can pressure or bribe governments into rigging the system in their favour, rather than the atmosphere's. It's worth going through some of the scams that are bleeding the system of any meaning. They may sound dull or technical, but they are life or death to countries like Leah's.

Trick one: hot air. The nations of the world were allocated permits to release greenhouse gases back in 1990, when the Soviet Union was still a vast industrial power – so it was given a huge allocation. But the following year, it collapsed, and its industrial base went into freefall – along with its carbon emissions. It was never going to release those gases after all. But Russia and the eastern European countries have held on to them in all negotiations as "theirs". Now, they are selling them to rich countries who want to purchase "cuts". Under the current system, the US can buy them from Romania and say they have cut emissions – even though they are nothing but a legal fiction.

We aren't talking about climatic small change. This hot air represents 10 gigatonnes of CO2. By comparison, if the entire developed world cuts its emissions by 40 per cent by 2020, that will only take six gigatonnes out of the atmosphere.

Trick two: double-counting. This is best understood through an example. If Britain pays China to abandon a coal power station and construct a hydro-electric dam instead, Britain pockets the reduction in carbon emissions as part of our overall national cuts. In return, we are allowed to keep a coal power station open at home. But at the same time, China also counts this change as part of its overall cuts. So one tonne of carbon cuts is counted twice. This means the whole system is riddled with exaggeration – and the figure for overall global cuts is a con.

Trick three: the fake forests – or what the process opaquely dubs "LULUCF". Forests soak up warming gases and store them away from the atmosphere – so, perfectly sensibly, countries get credit under the new system for preserving them. It is an essential measure to stop global warming.

But the Canadian, Swedish and Finnish logging companies have successfully pressured their governments into inserting an absurd clause into the rules. The new rules say you can, in the name of "sustainable forest management", cut down almost all the trees – without losing credits. It's Kafkaesque: a felled forest doesn't increase your official emissions... even though it increases your actual emissions.

There are dozens more examples like this, but you and I would lapse into a coma if I listed them. This is deliberate.

And the rich countries are flatly refusing to make even these enfeebled, leaky cuts legally binding. You can toss them in the bin the moment you leave the conference centre, and nobody will have any comeback. On the most important issue in the world – the stability of our biosphere – we are being scammed.

Our leaders are aren't giving us Hopenhagen – they're giving us Cokenhagen, a sugary feelgood hit filled with sickly additives and no nutrition. Their behaviour here – where the bare minimum described as safe by scientists isn't even being considered – indicates they are more scared of the corporate lobbyists that fund their campaigns, or the denialist streak in their own country, than of rising seas and falling civilisations.n

— By arrangement with The Independent

Inside Pakistan
Another South Waziristan?
by Syed Nooruzzaman

The southern part of Pakistan’s Punjab is on the way to becoming another South Waziristan. This fear is now being openly expressed through newspaper columns. Some of the religious seminaries or madarsahs are believed to be providing raw material to make human bombs, which are being used to cause havoc in different parts of Pakistan almost daily. These Punjabi suicide bombers are more effective than those belonging to the tribal areas. As a result, most Pakistanis feel terrorised beyond belief.

According to Daily Times, “For a long time now the authorities have not been very forthright about the seminaries in south Punjab. There is a strong presence of jihadi outfits in south Punjab, and if we do not take steps to deal with them immediately, it would be too late and there might be another South Waziristan on our hands very soon. It seems as if the nexus between other jihadi organisations and the Tehrik-e-Taliban Pakistan is getting stronger.”

An editorial in Business Recorder has it “…the Punjabi Taliban, as these holy warriors are known, share a kind of camaraderie with the Taliban based in the tribal areas, straddling the Pak-Afghan border, but they are quintessentially remnants of a proxy war fought in Pakistan by the principal exponents of Wahabism and Shiaism….

Crippling price rise

The prices of essential commodities in Pakistan have been going sky high for some time. The depreciating rupee and the rising prices of essential commodities as also of power, gas and petrol are adding to the discontent among the people. But, unfortunately, with the President and Prime Minister of Pakistan quietly engaged in a war of supremacy, and the Establishment busy with fighting the war against the Taliban in the tribal areas, those who matter in the government have no time to concentrate on the price front.

“In a country already marked by huge socio-economic disparities… the backlash of the rising popular discontent and frustration has, meanwhile, fast eroded the ratings of President Asif Zardari….”, according to Business Recorder. “The present economic scenario, marked by galloping inflation, does not bode well either for the stability of the government or for the fixed income groups”, the economic daily adds.

If no immediate efforts are made to arrest the rupee depreciation this will not only make it difficult for Pakistan to honour its loan repayment commitments but also further slow down the economy owing to a rise in the imported raw materials and machinery needed by industry.

The rejected Balochistan package

Almost all political parties in Balochistan have rejected Islamabad’s 39-point package – Aghaz-e-Huqooq-e-Balochistan – presented on November 24 for removing the grievances of Pakistan’s largest province. The remedy is not acceptable to the Baloch because it has been prepared without their involvement. As Daily Times says, “Baloch leaders eye the package with suspicion and have criticised it for disregarding certain aspects considered critical by the people of Balochistan.”

In an analysis in The News (Dec 9), Tayyab Siddiqui, a former ambassador, expresses the view that “The package is an honest effort, but lack of trust in Islamabad has made Baloch leaders wary of the Establishment and the federal government, and hence more imaginative and realistic options need to be explored to meet the Baloch aspirations.”

The Baloch have been fighting for the right of ownership of the province’s natural resources and financial autonomy even since Pakistan was created. Nothing less than this is acceptable to them. The history of relations between Quetta (Balochistan’s capital) and Islamabad has been marked by bitterness.