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A Tribune Special
‘Shoot-to-kill’ order has dangerous implications |
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An instrument of power sharing
On Record Profile
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A Tribune Special A threat to India’s national security, as The Tribune Roving Editor Man Mohan finds out
INDIAN intelligence and security agencies are quite jittery about huge telecommunication contracts given to Chinese vendors by state corporations with blessings of the top political and bureaucratic leadership in the Telecommunications Ministry. They are wondering “what price we are going to pay for getting our national security compromised.” The telecom industry is split on whether there should be a ban on procuring the telecom equipment from Chinese vendors. On the one hand, the low prices that the Chinese vendors offer are attractive to the operators, but on the other the security concerns associated with it may mean these cheap bargains involve a bigger cost in terms of national security risk and a well-crafted war-game strategy at play by the Chinese military. Using Chinese vendors’ bids to put pressure on their Western rivals to sell their products for less is a good thing, but putting an entire network in the hands of Chinese vendors with remote access to Chinese equipment vendors for interception and monitoring could be allowing a ‘Trojan Horse’ of a foreign power to gain control of our communication assets, particularly when the same company runs networks for the Chinese military. That is precisely what is happening in the telecom world in India, where none other than our state-owned corporations are falling prey to the low-price bargains. BSNL awarded mega-GSM tender for its south zone to a major Chinese firm this year despite concerns expressed by India’s security agencies. “There is little or no capability to test and certify the telecom elements such as routers and switches, from a security point of view, before deployment. Despite objections by the Intelligence Bureau (IB), the Chinese firm is supplying the mobile equipment to BSNL. This poses a serious threat to telecom security in terms of denial of service and eavesdropping,” says a highly confidential IB communication to the Department of Telecommunications (DoT). One has to first understand the sequence of events. In February 2009, BSNL gave a 90-lakh lines order worth Rs 2500 crore, to the Chinese firm through state-owned ITI Ltd in the guise of PSU quota allotment. Under this order, the Chinese firm is importing finished goods from China in ITI’s name. This is on back-to-back terms, which means BSNL will make payment to ITI, which will pay the Chinese firm, making it 4 per cent in the supply chain. This order for south zone consists of states like Karnataka, Tamil Nadu (including Chennai), Kerala and Andhra Pradesh; it contains the sensitive IT sector, nuclear installations, Hindustan Aeronautics Limited (HAL), Indian Space Research Organisation (ISRO) and other set-ups that were strategically located away from border areas. Allowing access into the heart of south zone communications has gravely compromised national security, worry security agencies. On April 9, during a meeting held to oppose the award of a contract by BSNL to Chinese companies the top IB brass said: “Considering the present security scenario in the country, even the southern region with its coastline can be considered sensitive,” while adding that “with the reference to the sensitive communication sector, distinction in terms of zones was irrelevant.” This is more sensitive, given the recent hostile environment concerning both countries over border-related disputes. In the minutes of this meeting, a senior IB officer added that “BSNL should not award contracts to Chinese companies, as these companies are known to have links with the Chinese state and security apparatus and, therefore, their presence in this critical sector has national security implications in a variety of ways.” The representatives of the Ministry of Defence (MoD) and India’s foreign intelligence gathering agency, RAW, who attended the meeting, were of the view that the Chinese firm has been set up with the assistance of the Chinese army and has a tainted past in addition to being black-listed in the US. “Similarly, another Chinese company also does not have a good track record and, in any case, these two companies should not be allowed to come in any part of the country,” the Defence Ministry representatives added. On April 27, disregarding the IB, MoD and RAW warnings, BSNL wrote a letter to DoT, informing that the Chinese firm had cleared its technical evaluation, in the South, West and East, and an European company in the North and the East. On May 14, the Telecom Ministry cleared BSNL’s proposal to open the financial bids of both firms. On the evening of May 14, after office hours, BSNL opened the financial bids of the European firm for the East and North Zones, and the Chinese firm for the South Zone. In fact, BSNL had disqualified many reputed global companies and rejected their bids for not submitting a few pieces of paper as part of the bid — thus crushing potential competition. On May 15, just a day before the ballot counting for 2009 parliamentary elections, the Telecom Ministry rushed through the award of a tender worth Rs 35,000 crore for 9.3 crore cell phone connections. According to telecom experts, these are turnkey contracts. That means the Chinese are provided digitised maps of the entire South Zone for radio planning. It also means that their officials can roam without restrictions with digitised maps; take photographs during site surveys, all of which may well end up with Chinese security agencies. A China expert says that the Chinese believe that the enemy is most vulnerable during the early phase of the war and Computer Network Attack (CAN) can raise the cost of conflict to an unacceptable level for the enemy. “So now, imagine the possibility of the Chinese establishment using CAN to strike an India with a paralysing blow through the Internet to seriously disrupt and render our computers and information systems ineffective,” he points out. Recently, the Australian media alleged that the Chinese equipment-maker (which has got huge orders in India) was being investigated for spy activities. A report in the UK’s Sunday Times said the Pentagon had cited this Chinese firm as a key part of the cyber-threat from China, noting that it retained close ties with the People’s Liberation Army (PLA). Many who cannot fathom the depth of this strategy may discount the military war game at play. Even then this may well be an economic warfare at our doorsteps to earmark India as a strategic region for creating long-term manufacturing dependencies by killing indigenous capabilities through systematic dumping and undercutting — and virally spread into our system to eventually make India vulnerable to military intrusion. The Chinese “Go Global” policy of the last decade — they are already knocking on our doors in Arunachal Pradesh and Ladakh — is an extension of its military endgame. While the latter has limitations due to international policing and global checks and balances of parallel power equations, the scope of the former is infinite as the Chinese have come to realise. They have not only seen unprecedented economic growth through these pro-dumping lucrative safe-havens, but also are eyeing to invest significantly in critical infrastructure sectors of economies they hope to dominate in Asia and Africa. In the Indian context, with many private operators also using Chinese equipment, it seems clear that not only is there a new Chinese aggression visible, but this time around it is also a breach that’s being welcomed, aided and abetted by state corporations with the support and blessings of the top political and bureaucratic leadership in the Telecom Ministry, which is behaving, as someone in North Block put it, “as if they are the new Rajas of India!”
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‘Shoot-to-kill’ order has dangerous implications
THE “Shoot-to-kill” order is often issued by magistrates or senior police officers to the police or personnel of the Army or paramilitary forces to firmly deal with cases of widespread violence and lawlessness. Such orders are often hurriedly issued in response to widespread lawlessness or threats or perceived threats from terrorists, instead of finding out whether preventive measures have been taken in good time or accepted policing techniques have been used to deal with the situations. Under the Indian law, such orders are sought to be justified under different provisions contained in the Code of Criminal Procedure and the Indian Penal Code. However, the legal basis of such orders --- as pointed out by Prof. P. Singh of the Department of Law, Delhi University, in a paper presented before the National Human Rights Commission --- has not been so far authoritatively decided by the courts. A close scrutiny of such orders is called for. There is no specific provision in any statute to authorise any executive to issue such an order. And such orders are justified on grounds of maintenance of public order or saving the lives of innocent citizens from indiscriminate mob violence. The “shoot-to-kill” order is, prima facie, illegal and can be justified in exceptional situations of serious mob violence or imminent terror strikes or threats of such strikes which leave no option for the magistrates or the police officers but to order firing to save the lives of innocent citizens or themselves. It can be justified only as a measure of private defence under Sections 96-106, IPC, which deal with rights of private defence of life and property. Section 46(3) of the Cr PC permits use of force to the extent of causing death of a person accused of an offence punishable with death or with imprisonment for life if such a person forcibly resists an endeavor to arrest him or an attempt to evade the arrest. Legal provisions thus exist to justify use of force against criminals or terrorists which may result in causing their deaths. Thus, for protecting persons from mob violence or lawlessness the “shoot-to-kill” order can be sustained, but the subordinate officer who has been ordered “shoot-to-kill” is required to fully exercise his own judgment. The plea of “respondent superior” cannot be upheld for carrying out illegal orders of superior officers. International standards like Torture Convention (1987) clearly negate the plea of “respondent superior” in cases of gross violations of human rights and enjoin on subordinate officers not to carry out such illegal orders. If the order of the superior officer is manifestly illegal such an order offers no protection to the subordinate officers. In the case of State of West Bengal vs. Shew Mangal Singh (1981,4 SC), the Supreme Court as well as the Kolkata High Court justified the “shoot-to-kill” order in respect of a situation that warranted the police to open fire. In England, a Committee on Featherstone Riots took the view that taking life by the security forces could be justified by the necessity of protecting persons or property against various forms of violent crime. There are no set rules to govern each and every instance. The question whether there is justification for firing on the mob depends upon the necessities of the case. Human rights activists and humanitarian law experts have held the view that the rhetoric of “shoot-to-kill” or its equivalents poses an enduring threat to human rights-based law-enforcement approaches. In counter-terrorist operations the police and security forces often lose sight of the fact that human rights law permits the use of legal force when doing so is strictly necessary to save human lives. The rhetoric of “shoot-to kill” often causes confusion among law enforcement officers, endangers the lives of innocent persons, giving scope for rationalising mistakes while avoiding the genuinely difficult challenges that are posed by the relevant threats. Under the human rights law, states must respect and ensure the right to life. Principle 9 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, issued by the United Nations, lays down that “Intentional legal use of firearms may only be made when strictly unavoidable in order to protect life”. For combating suicide bomber who now form a key feature of deadly terrorist operations, many states have issued instructions to the security forces to employ “shoot-to-kill” policies. However, it is necessary for the states to develop a legal framework to properly incorporate intelligence information and analysis into both the operational planning and post-incident accountability phases of the state’s responsibility. If there is a solid factual basis for believing that a suspect is a suicide bomber and capable of detonating his explosives if challenged, the immediate use of legal force is justified. But the “shoot-to-kill” procedure must ensure that only solid information combined with the adoption of appropriate legal safeguards will lead to the use of lethal force. The consequences of mistakenly killing innocent persons on the basis of “shoot-to-kill” policies are counter-productive, and will go to erode public confidence in the police. In counter-terrorist operations, it is also a fact that minorities sometimes bear the burnt of shoot-to-kill policies. It can be mentioned in this connection that training keys have been issued by the International Association of Chiefs of Police (IACP), the world’s largest non-profit organization of police executives with 20,000 members in over 101 countries, to guide police officers on how to detect and neutralise a suspected suicide bomber. Officers have been instructed to look for specific behavioral and physical characteristics to identify threats and aim at the suspect’s head and then shoot-to-kill. Human rights groups like the Centre for Human Rights and Global Justice (CHRGJ), New York, have criticised it and held that training keys promote the use of lethal force even when the threat of harm is not imminent and existence of a bomb has not been confirmed. Instead, officers are encouraged to infer such a threat on the basis of physical and behavioral characteristics that may largely target minorities like Muslims, Arabs, South Asians or those perceived to fit into these categories. Thus, only in the rarest of rare circumstances will it be possible to justify shooting with the intent to kill orders. Such orders often militate against legal and human rights norms and have to be subjected to close social and judicial scrutiny.
The writer, a retired IPS officer, is a former Director-General, National Human Rights Commission.
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An instrument of power sharing
THE Right to Information Act 2005 was passed for setting out the practical regime of right to information to promote transparency and accountability in the working of public offices. Whether this Act should be reviewed and amended is a complex issue. The main point that is being debated is whether the noting should be taken out of the purview of the RTI. At present, noting as such is not referred to in the RTI Act. However, the definition of "record" under Section 2(f) includes, inter alia, "file" also. File means a collection of papers on a specific subject matter, assigned a file number and consisting of one or more parts known as correspondence, notes, appendix to correspondence and appendix to notes. The Act explicitly lays down that it is necessary to harmonise the revelation of information in actual practice with other public interests, including efficient operations of the governments, optimum use of limited fiscal resources and preserving the confidentiality of sensitive information while protecting the paramount position of democratic ideals. The Act has provided sufficient safeguards under Section 8 not only to protect the interests of the country and to preserve the confidentiality of information but also to safeguard the privacy of an individual. Section 8 of the Act is too broad and it covers all the necessary exemptions from disclosure. It provides that notwithstanding anything contained in this Act, there shall be no obligation to give any citizen the following: A. Any kind of information, the disclosure of which would prejudicially affect the sovereignty and integrity of India --- strategic, scientific or economic interests of the country --- relations with any foreign country or any information that may lead to incitement of offence. B. Information which has been expressly forbidden to be published by any court of law or tribunal, or the disclosure of which may constitute contempt of court. C. Information, the disclosure of which would cause a breach of the privilege of Parliament or a state legislature. D. Information, including that which is of the nature of commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. E. Information available to a person in his fiduciary relationship, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information. F. Information received in confidence from a foreign government. G. Information, the disclosure· of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes; apprehension or prosecution of offenders. H. Cabinet papers, including records of deliberations of the Council of Ministers, secretaries and other officers, provided that the decisions of the Council of Ministers, reasons thereof and the material on the basis. of which decisions were taken shall be made public after the decisions have been taken and the matter is complete and over, provided further that those matters which come under the exemptions shall not be disclosed. I. Information which is of personal nature and the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies disclosure of such information: Provided that the information which cannot be denied to Parliament or a state legislature shall not be denied to any person. In addition to the above, as per Section 9 of the Act, a Public Information Officer may reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person. Similarly, Section 11(1) protects the third party information involving trade or commercial secrets protected by law. Section 24 protects the information relating to the operational activities of the intelligence and security organisations specified in the Second Schedule to the Act. Thus, the public authorities can withhold information as per the provisions of the Act. Any information which is not covered by the restrictive provisions of the Act, including notings, must be disclosed to the citizens as the consequences of mala fides are to be borne by a person, not by the system. Such an approach would strengthen the system against mala fide notings. There is, therefore, hardly any need to amend Section 2(i) of the Act so as to exclude notings from the purview of the RD. In fact, it is too early to review the Act that was enacted in June 2005 with some of its provisions becoming effective only from October 2005 and really became known by the end of 2007. There is need to strengthen the institution of Public Information Officer by giving some monetary benefit or other incentive to the officials appointed as PIOs so that it attracts willing officials. Under Section 24, relating to intelligence and security organisations, information in respect of administrative matters should also be allowed for the men of the organisations covered by this Section specified in Schedule II of the Act, otherwise it places them in a disadvantageous position. Section 29 says that the rules made by the Central Government shall be laid down before each House of Parliament while in session for a total period of 30 days, which may be in one session or more successive sessions. But there is no such stipulation in the case of the rules made by the states. Thus, there is need for a regulatory mechanism on the exercise of the rule-making power of the states on the pattern of that for the Central Government. Section 26 of the Act places responsibility on the government, to the extent of availability of financial and other resources, to develop and organise educational programmes to advance the understanding of the public, in particular, of disadvantaged communities, as how to exercise the rights contemplated under this Act. This is, in fact, empowerment of the citizens to open up the system, which till now had a close-to-the-chest approach. A lot is required to be done in this regard by the governments. Even the training of the officers is not being undertaken with the intensity, which would widen their horizon in the matter of positive response to information seekers. We inherited a system where sharing of information with the public was not considered necessary. It will take some time before this legacy vanishes and this instrument of power sharing becomes a great asset for the
people.
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On Record
For
the past three consecutive terms, Mohammad Yousuf Rather Tarigami, State Secretary of the Communist Party of India (Marxist), has been elected from his home constituency of Kulgam in South Kashmir as the lone party candidate in the state. He was first elected in 1996, when the seven-year-long Governor’s and President’s rule, in the wake of militancy, ended. Tarigami, 60, has since his student days remained active highlighting the problems faced by the people. He has headed the state CPM since 1979 and has visited different countries like Pakistan, Sri Lanka, Japan, the US and Canda discussing the Kashmir issue at international forums. He talked to The Tribune in Srinagar about his political career, the problems facing the people and the Kashmir question. The following are the excerpts from the interview: Q. How do you look at the Kashmir problem? A. It is a long-pending political issue rooted in history with deep concerns of the people of Kashmir for their unique identity. Secondly, it is the failure of India and Pakistan to overcome the trauma of Partition. Both countries and their people, including those of J&K, continue to suffer. Q. Are you satisfied with the initiatives on the dialogue process? A. Attempts have been made by India and Pakistan to impose solutions, while the solutions must emerge out of the process of dialogue within the state. All the separatist and mainstream leaders must share the responsibility by playing their role that would lead to solutions, which have to be acceptable to all across the divide. All stakeholders are to be involved and that is possible only when there is statesmanship and sincerity. Unfortunately, the Kashmir question has become a big industry of vested interests. Q. What about the recent initiatives on “quiet diplomacy and dialogue”? A. Dialogue has to be meaningful and there must be a sustained process at different levels. We have been urging India and Pakistan to identify common areas of concern, where the protection of interests of the common man is involved. The two countries must come closer. If the gap widens, it only provides room for big powers to fish in the troubled waters. The people of this state must act together and not allow any further division of the state as the diversities are assets and must be protected. Q. What influenced you the most in the political atmosphere? A I was first influenced by Abdul Kabir Wani, the then National Conference leader and two-time MLA from South Kashmir, and had the company of some other fellow students in highlighting public issues and problems of the people in the rural areas. After a meeting that discussed the problems of the people in a house in Katrusoo village, it was raided by the police in the night arresting me with other colleagues. The police had also raided my house in Tarigam, miles away, and took into custody my brothers and guests. Q. How did you get closer to the CPM while there were other major political parties? A. Being active since school and college days, I joined a group of people who were, in my opinion, doing a good job by agitating over issues facing the poor people in the area. Secondly, because of their ideological and political persuasion I got convinced to be part of this ideology which stands for the emancipation and liberation of humankind irrespective of the locations and beliefs. I think this ideology suited best the people living across the world, including Kashmir . Even today I have no regrets but feel proud of being part of this stream of politics which stands for an alternative system — scientific socialism. It is not the question of beliefs, and I think, it is only under exploitative system where human being loses his freedom of expression. It is only when this ruthless system of capitalist path of development is changed and a new system based on justice and respect for human life is established that one attains the fullest amount of freedom, including his freedom to believe in any ideology. Q. How was the going since the eruption of militancy? A. Vested interests have been propagating against our ideology. But wellbeing of the people remained our primary concern, which has been widely appreciated. Unfortunately, since the eruption of the turmoil people remained under crossfire and have been victims of the cycle of terror and counter-terror. They have been targets of all shades of violence both from state and non-state actors. I have been trying to be within the reach of my people and continuously voicing against their harassment and abuse of human rights. Not claiming having done anything big, but the fact remains that I have tried to do whatever was possible to shoulder the responsibility of providing relief to the suffering people. That is how we got the support of our people and the mandate in two Assembly constituencies in the 2002 elections.
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Profile Trained as a physicist, Venki made a successful transition to biology, which has now earned him global recognition. He confessed in a recent interview, “I was a theoretical physicist but my Ph.D work was on a problem that was not particularly interesting to me at the time. And, I used to subscribe to Scientific American. I found that there were all these wonderful discoveries happening in biology and I also knew that a number of physicists had gone into biology and been successful. So I decided to switch over.” Indeed, studying biological phenomena is an exciting area of chemistry. Venkatraman’s research on mapping of ribosome (Ribosome is one of numerous particles in a cell on which proteins are assembled) will lead to the development of more effective antibiotics with lesser side-effects. The new antibiotics attack only the bacteria and do not cause any side-effect to human beings. Venki’s wife, an American, helped him to acquire a good background in biology and one university was prepared to admit him for doctorate in biological science. He got a scholarship of $3000 per year. That sum of money was insufficient, but his American wife told him to go ahead. Thus encouraged, he did all the integrated course for two years while his wife managed the family, enduring great difficulties. She stopped eating processed foods and grew vegetables in her garden to save money. After completing the course, the prestigious Yale University offered Venki a scholarship of $30,000-40,000 to work on ribosome. Venki moved to Utah University as a professor of biochemistry and this is how the man who started with physics began teaching biochemistry. Later on, he found work on ribosome. At this juncture, the MRC Laboratory of Molecular Biology, a small but prestigious institute in Cambridge, England, approached him. The institute is housed in a two-storey building with 20-25 people working on various research projects. Moreover, the institute has so far produced 15 Nobel Laureates. The advantage was that he got in touch with brilliant scientists, got full freedom and latest equipment. Though the salary was average there, Venki accepted the offer. To succeed in this kind of work Venki had to have knowledge of biochemistry, physics, maths and computer science. Because of this, he could make a discovery in nine years with the help of laboratory while similar kind of work takes 30 years at other places. The Ramakrishnans present a wonderful portrait of a family with diverse interests. Venki’s wife, Vera Roseberry, is author and illustrator of the popular Vera books for children, while her son and daughter-in-law are both professional musicians. The son, Raman, who holds a bachelor’s degree in physics from Harvard University, had initially toyed with the idea of a career in science, before turning to music. Daughter-in-law Melissa started playing the violin at the age of three. Melissa and Raman met at the Marlboro Music Festival in 2001, and six years later they got married. Although they played together, they belong to different quartets. “Whenever we get a chance to play together, it is fun, but it is nice to keep away from each other a little when we go out to work”, says Raman. “ After all, we do keep seeing each other at home.” |
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