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Code for safe tourism
Pawar at ICC’s helm |
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Snooping for security
Fighting limited wars
TV and I
Even though the Centre is yet to fulfill Haryana’s demand for a separate High Court, several issues need to be addressed before notifying the new High Court. These include, its location, its building if the High Court is to be located in Chandigarh itself, the judges’ seniority and, above all, its jurisdiction. An in-depth look
A matter of compulsion
How a common HC came into being
Remove constitutional hindrances first Clear hurdles expeditiously
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Code for safe tourism
It
will be foolhardy to expect the ‘Code for safe and honourable tourism’, unveiled on Thursday by Union Tourism Minister Kumari Selja, to make much of a difference. While the initiative is welcome, it is disappointing to find that the code is not binding. It is doubtful if too many hotels, restaurants or tour operators would voluntarily come forward to uphold the code which expects them to ensure the safety, security and dignity of the tourists, particularly women. Protecting their guests from the use of drugs, molestation or sexual exploitation, providing them with the correct information and alerting the visitors about dubious places, practices or people would normally be an act of faith. But the failure of the tourism sector to do so is evident as Goa alone has reported the death of 126 foreign tourists in the past two years, a majority of them dying unnatural deaths. A cosmetic code can hardly address the severity of the problem. There is no reason why people engaged in the business of tourism should not be made responsible for the safety and security of their guests. It is not understood why the hotels, restaurants , tour operators or taxi drivers cannot be forced to register, undergo training and orientation and be held accountable. The World Travel and Tourism Council, which surveyed 174 countries, estimates that the Indian tourism industry will grow at the rate of 8.8 per cent on an average every year over the next 10 years. The tourism sector in India has been outperforming the global tourism industry in recent years in terms of both the number of international tourists and revenue. But while ‘Incredible India’ continues to draw visitors, the infrastructure, trained manpower and facilities continue to lag behind. Concern has been voiced by the Supreme Court over increasing ‘sex tourism’, growing number of paedophiles among the visitors, crime and drug trafficking. The government, therefore, needs to move beyond unveiling voluntary codes. While tourism does provide employment, it also tends to displace local inhabitants and exploit their relative poverty. Cultural invasion, ecological degradation and increasing pollution are just some of the negative impacts of the industry. But while the government appears focused on dealing with foreign visitors during the Commonwealth Games and Delhi mulls over the need for a stringent anti-touting law, there is an urgent need to take a long-term view of the subject and promote an informed public discourse.
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Pawar at ICC’s helm
The
spectre of an escalating race row hangs over the International Cricket Council (ICC) as Mr Sharad Pawar takes over as its president for the next two years. That Mr Pawar’s election has come close on the heels of the rejection of former Australian prime minister John Howard as ICC vice-president by seven of its 10 members belonging to the Afro-Asian bloc has sharpened the racial divide with UK, Australia and New Zealand. It would indeed require all of Pawar’s political adroitness and diplomacy to steer the world’s top cricketing body out of the bad blood and acrimony that now grip it. Clearly, the white nations have been accustomed to their unchallenged sway over the sport for over a century and look upon the Afro-Asian bloc’s new-found unity with suspicion and disfavour. In particular, India’s new assertiveness stemming from the fact that the Board of Control for Cricket in India’s brand value is a whopping US$2 billion, more than that of UK soccer’s Manchester United or US baseball teams like the Yankees, has piqued the West’s cricket bosses no end. In that context, former ICC CEO Malcolm Speed’s snide remark that Pawar knows little about cricket administration and the implication that he is unfit for the ICC president’s job is significant. Cricket Australia chairman Jack Clark betrayed his frustration over India’s clout when he said “In any business model where a company has 75 per cent of the income, it’s not an ideal model,” but qualified it by saying that this was not India’s fault. Though it is in principle unwise to mix sport with politics, it can hardly be denied that the accusation that John Howard is a racist has stuck after he, as Prime Minister, opposed economic sanctions against apartheid-era South Africa, supported sanctions against Robert Mugabe’s Zimbabwe and whipped up anti-immigrant sentiment in the run-up to his 2001 election. His calling ace Sri Lanka spinner Muthiah Murlidharan a chucker was also seen in racist light. If, in the bargain, the Afro-Asian nations have refused to elect him as ICC vice-president, he must accept the verdict gracefully. As for Pawar, he must seek to bridge the gap between the two warring groups in the ICC in the larger interests of the game.
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Snooping for security
The
Department of Telecom’s decision to ask BlackBerry, Skype and Gmail services to provide data going through their networks to security agencies in a readable format, or face a ban in India, is flawed. So is the concern about fast data services offered by Tata Teleservices and Reliance Communications being a threat to the nation simply because security agencies are unable to tap into their communications. While the legitimate concerns of security agencies can and should not be ignored, it is also reasonable to expect the Intelligence Bureau and the National Technical Research Organisation to identify specific persons whose actions are a threat to national security and thus need monitoring. They can and do seek the cooperation of communication service providers to tap into specific phones or e-mail IDs, and keep a tab on such individuals and their associates. A carte blanche to such security agencies would be counterproductive, both because it would potentially strip Indian users of privacy as well as open up possibilities of its misuse. It is only recently that illegal phone tapping of mobile phones was exposed by the media. Much was said, but not much has been done to ensure accountability among the security agencies. Research in Motion, the company that provides BlackBerry phones and services, routinely encrypted prior to transmission, which makes it impossible to monitor it. What is a boon for business and other commercial usage, has turned to be a bane of the security agencies. RIM faced a similar situation in India 2008, but the matter was put on a backburner. Google’s battle with Chinese censors led to the much-publicised “withdrawal” of its search engine facilities. International corporations have to conform to local laws, but in an increasingly borderless world, communication is the infrastructure backbone for development, and it is growing at a tremendous pace. DoT and representatives of the service providers would be well advised to work out a solution that addresses the fundamental concerns of security agencies, and empowers them to monitor anti-national activities, without compromising the commercial services which have millions of subscribers in India.
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Emulate the learned and the pious in all your thoughts and deeds. — The Upanishads
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Fighting limited wars
In
January 2000, when I spoke about the concept of limited conventional wars under the nuclear threshold at an international seminar in New Delhi, there was considerable uproar in the media and the strategic community, particularly in Pakistan. My articulation was pronounced as highly provocative. What the Pakistani media did not state or realise was that the idea of a limited war came from their country. It was the Pakistan Army which had initiated Kargil war and surprised us. But its military leaders then had failed to think it through and thus created strategic imbalance for themselves at Kargil, and in future. The limited conventional wars concept was prepared after going through the full conflict spectrum scenarios to find an answer to the Pakistani challenge below the nuclear threshold, other than launching a covert or a proxy war. I am happy to see that this concept and its realisation have been progressed and continuously refined since then. There are two strategic conditions which can spark off and then escalate a military conflict between India and its neighbors. First, the border disputes where a serious skirmish can lead to a conventional military conflict, and second, intense proxy war that may lead to a conventional war. When a conventional war does break out in such conditions between two nuclear nations, it is expected to be fought under a nuclear overhang. Some people call that a sub-conventional war or a limited conventional war. The Chinese call it ‘local border wars’. Such a conflict could also spread out in time, in what could possibly be termed as a war in ‘slow motion’. It will have to be conducted within the framework of carefully calibrated political goals and military moves that permit adequate control over escalation and disengagement. The limited wars concept is far removed from the classical ‘no holds barred’ attitude. It is typically characterised by severe limitations and constraints imposed by the political leadership on the employment of the military. It would imply limited political and military objectives, limited in duration, in geography, and in the actual use of force levels. Important political and military objectives, the time available to the armed forces to execute their missions and achieve politico-military goals, would be crucial for their planning and conduct of operations. There would have to be complete understanding between the political and military leadership over this. We can also expect restricting political terms of reference, as were given during the Kargil war. In a ‘reactive’ situation like the Kargil war, the war duration can be prolonged. However, the duration available will be much less if we decide to take the initiative. There is also a linkage between deterrence and limited conventional war escalation. Capability to wage a successful conventional and nuclear war is a necessary deterrent. A war may well remain limited because of a credible deterrence or ‘escalation dominance’ (which means that one side has overwhelming military superiority at every level of violence). The other side will then be deterred from using conventional or nuclear war due to the ability of the first to wage a war with much greater chances of success. It means that more room is available for manoeuvre in diplomacy and in conflict. A limited conventional war does not mean limited capabilities but refers to their use. In such a war scenario, politico-diplomatic factors will play an important role. Careful and calibrated orchestration of military operations, diplomacy, and domestic political environment is essential for its successful outcome. Continuous control of the escalatory ladder requires much closer political oversight and politico-civil- military interaction. It is, therefore, essential to keep the military leadership within the security and strategic decision-making loop and having a direct politico-military interface. During a conflict situation, all participants must remain in constant touch with the political leadership, as was done during the Kargil war. Important challenges in the limited wars concept are: The political definition of the goals and its translation into military objectives would be difficult, sometimes uncertain and indirect. Yet, it is critical to the attainment of the political goals. The key military concepts pertaining to the desired end result such as victory, decision, and success, are fundamentally transformed to reflect a much heavier political emphasis and attributes. The successful outcome of such a war hinges on the ability to react rapidly to an evolving crisis, which often erupts by surprise. This would be a major challenge for the military. For the military is expected to react quickly to the changing circumstances in order to localize/ freeze/ reverse the situation on the ground, and to arrest its deterioration, enhance deterrence, and diminish incentives for escalation. Mobilising and sustaining domestic and international political support for such military operations in the present age of transparency and openness would depend on the ability of the military to operate in a manner that conforms to political legitimacy, i.e. minimum civilian and military casualties and collateral damage. Militarily, the greatest challenge could be in the political reluctance to commit a pro-active engagement and insistence to retain the authority for approving not just key military moves, but also many operational decisions pertaining to deployment and employment of military assets. Political requirements and military targeting would need heavy reliance on accurate intelligence, surveillance and reconnaissance before and during the battles. Surgical strikes would be a common option. Airpower, precision guided weapons, standoff armaments, and information would be the weapons of choice. Employment of ground forces across the borders could be discouraged, or delayed, due to fear of casualties and difficulty in disengagement at will. Information operations become important due to the growing transparency of the battlefield to the public. The political requirements of the military operations, in order to achieve and retain the moral high ground and deny that to the adversary, would need a comprehensive and sophisticated media, public affairs and information campaign. This would have to be fully integrated and synchronised with the planning and execution of the military operations. Counter-intervention and defensive measures cannot be overlooked. Lucrative targets would have to be defended and denied through dispersal and other means, taking into account the symmetrical as well as asymmetrical capabilities of the adversary. At the operational level, the military implications on the ground are effective and continuous surveillance, integrated capabilities, rapid concentration and launch, surprise, multiple choices/thrust lines, short, sharp intense actions, maximum use of Special Forces, force multipliers, and a pro-active deployment. In a meeting of the National Security Advisory Board with the Prime Minister on the day Op Prakaram was called off, I had recommended ‘strategic relocation’ of ground forces and the need to prepare joint contingency plans which can be implemented at a short notice or during the course of mobilisation. The logic is that the sooner an intervening force can arrive to influence the course of a military event; the lesser is the chance of the conflict devolving into a firepower intensive, wasteful slugging match. Rapid mobilisation and contact out-paces enemy, and has the same asset as surprise. For a limited conventional war environment, therefore, it is necessary to carry out strategic relocation and tasking of combat formations, particularly those which take a long time to be moved and deployed. We need not wait for mobilisation of the entire theatre or border to be completed. This important aspect and its military application on the ground have led to what is now euphemistically called the ‘cold start’ doctrine. In a post-Kargil war India Today Conclave, Ashley Tellis had stated “Limited war should be viewed not as a product of the proclivities of the state, but rather as a predicament resulting from a specific set of structural circumstances.” No one in their right senses would want to have a war. Least of all democracies like India, and people like me who have studied, participated, and had to conduct a war. But the armed forces of the nation must be prepared for all possible conflict contingencies.n The writer is a former Chief of
Army Staff
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TV and I This
happened a very long time ago, when I was much younger and still had the roving eye. The voice at the other end of the telephone sounded as if it belonged to someone young and attractive. “We’re doing a round-up of retired persons,” she said, “and we’d like to interview you”. I tried to keep the pleasure and excitement out of my voice. “When would you like me to come to the station?” “Oh no,” she said. “We’re coming to you. We want to get the right background. How you live, hobbies, that sort of thing. Would 12 noon on Monday suit you?” “Let me see,” I said. I wanted to give the impression that I was consulting my engagement diary. Actually, I was looking at the calender beside the telephone. It had a picture on it of a bikini-clad, brown-skinned beauty on Wakiki beach in Honolulu. “Yes,” I said. “I think I can manage it.” I spent the next three minutes explaining how to find my house. Came Monday and I put on a navy-blue bush-shirt. A dark colour, I am told, shows best on TV. Unfortunately, the rather heavy material made me sweat profusely. The girl telephoned. “I’m dreadfully sorry. The TV crew let me down. They’ve got held up at another assignment. Would tomorrow do at the same time?” I tried to put a little asperity into my voice. “Now let me see,” I said. I took a little longer this time staring at the girl in the bikini. I noticed that she had a hibiscus flower stuck in her hair. What’s the point in that, I wondered, when you are going to swim? “I think I can just fit it in,” I said to the TV girl. Came Tuesday. Came 12 noon, 12.30, 12.45 and then my wife was truly annoyed, having spruced up the drawing room two days running. “ I think someone is making a fool of you. And it’s a damned nuisance.” I agreed. “But that was 31 years ago,” I added. She was going to flare up but just then two dogs began to bark. The TV crew had arrived. “You have been in retirement 10 years,” said the girl. “Do you ever feel bored?” “Do I look bored?” I said, putting as much of a leer on my face as I could manage in the glare of the lamps. The whole thing took about 30 minutes. I was soaked to the skin by the end of it. That night the family and I walked across to a neighbour’s house. I saw and heard myself in “TV Folio”. We walked home in silence. As I was brushing my teeth, my wife said: “You looked about 80 and you sounded as if you had a hot potato in your mouth.” “Well,” I said. “It’s not likely to happen again. Nor am I likely to waste money on a TV set of my
own.”
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Even though the Centre is yet to fulfill Haryana’s demand for a separate High Court, several issues need to be addressed before notifying the new High Court. These include, its location, its building if the High Court is to be located in Chandigarh itself, the judges’ seniority and, above all, its jurisdiction. An in-depth look Even
as Haryana has been fighting for a separate high court for the state, Chief Minister Bhupinder Singh Hooda wants it to be located in Chandigarh, that too, carved out of the existing high court building. The Union Law Ministry has no objections to the state’s petition, apparently. Ask Law Minister M. Veerappa Moily, and he gently nods his head. Even the Supreme Court has no problems in putting its stamp of approval. Former Chief Justice of India Justice K.G. Balakrishnan, just before demitting the office, had asserted that a separate High Court could be set up “anywhere”. According to current indications, the move may come through soon. Punjab, of course, does not wish to see the bifurcation of the High Court, a “worthy successor” to th Lahore High Court, which produced stalwart judges like Sir Shadi Lal, Bakshi, Tek Chand and Mehar Chand Mahajan. Punjab Chief Minister Parkash Singh Badal says a separate High Court for Haryana in Chandigarh will adversely affect Punjab’s claim on Chandigarh. “Each state has it,” Hooda asserts. “States such as Jharkhand, Chhattisgarh and Uttarakhand, which were created much later, have already set up their High Courts”, he says. Claiming to have full right over the Union Territory, Hooda says if Punjab is ready to pull out of Chandigarh, they will have no problem in establishing their High Court at some other place in Haryana. For a local Haryanvi involved in litigation, the bifurcation is expected to expedite justice. Combined figures suggest more than 10 per cent of the Punjab and Haryana population is affected by litigation. The number is higher than the national average; just about 6 per cent population in India is affected by litigation. Break the figures, and the number of people involved in litigation in Haryana is reduced to less than half, as it is believed the ratio of cases between Punjab and Haryana is 60:40. As of now, the combined High Court has a pendency of more than two lakh cases. Old cases in the courts for two years and more are approximately 1.7 lakh. After bifurcation, Haryana can hope to see speedier delivery of justice due to decreased workload. Though the number of judges too will be reduced, the disposal will still be more as Haryana’s litigation substantially hovers around land and service matters — cases often disposed of by single judgment. The seniormost judges of two courts — instead of one — will move out to become the Chief Justices of other courts. Greater representation in the Supreme Court will also be ensured. The High Court judges’ seniority will also be affected. As of now, the Punjab and Haryana High Court has a sanctioned strength of 68. After bifurcation, junior judges will climb up the ladder faster. But then, jurisdiction will be the main problem. The combined High Court of both the states also deals with litigation involving Chandigarh and its residents. Will the cases go to Haryana or Punjab? Another issue will be of the High Court’s jurisdiction to deal with cases involving decisions taken at Chandigarh. The High Court has the authority to deal with developments within its jurisdiction. If both states have their High Courts in the Capital, can an order passed by the Punjab Civil Secretariat be challenged in the Haryana High Court by virtue of the directive being issued in Chandigarh? Hooda says the jurisdiction issue can be worked out. Punjab, on the other hand, says it’s not going to be easy, as necessary amendments will need to be carried out in the Constitution and The Punjab Reorganisation Act of 1966. Legal experts assert all the jurisdictional problems can be tackled by meticulously drafting the notification for a separate High Court. Chandigarh’s cases can be dealt with by Special Benches, comprising judges of both the High Courts. Hooda is in complete agreement. Haryana’s claim for a separae High Court has more weightage, tilting the scale in its favour. It’s now for the Centre to adjudicate the matter and pass the final
orders.
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A matter of compulsion Jharkhand
has its own High Court. Chhattisgarh too has its own court of appeal. Uttarakhand is no exception. But when it comes to Punjab and Haryana, a common High Court is thought to be good enough by many.
Almost half a century has lapsed since the demand for a separate High Court for Haryana was raised by the legal fraternity and others concerned with the justice delivery system. Almost the same time has gone by since a section of politicians raised their voices of dissent against the much-awaited move. However, what they do not realise is that a separate High Court for Haryana, that too at Chandigarh, is not a political issue or a ploy, but a matter of constitutional right and convenience for both the lawyers and the litigants, and also for the general public. Each state has the right to have its own High Court. And when states like Jharkhand, Chhattisgarh and Uttarakhand, which came into being much later, can have their own High Courts, why can’t Haryana have it? The Punjab and Haryana High Court has some of the best judges in the country. But they are reeling under work pressure with over two lakh cases pending. A separate High Court will help streamline the work better. For the people of Haryana, it will obviously mean speedier justice, as just about 40 per cent of the total cases before the Punjab and Haryana High Court are from the state. Time and again much has been said on the issue of location and jurisdiction. Having a separate High Court at Chandigarh is more a matter of compulsion and convenience than anything else. You just cannot displace the lawyers. A High Court at another place will only mean asking the lawyers to relocate themselves, leave practice at one of the two places, or travel down to the other place for contesting the cases. It will also connote compromising with the quality of justice as litigants of both the states will not have easy and full access to similar talent among the advocates, as they will be located in different cities. Lawyers specialise in fields, not in states. A lawyer will take up a case regardless of the state it pertains to because the laws of the land hold good for both the states. You just cannot prevent them from offering their services to clients of one state or the other by locating High Courts in different cities. There cannot be any problem in the co-existence of the two High Courts at the same place especially when two Chief Ministers, two Speakers and two Governors can stay side by side in the same city. Even the High Court building has the offices of two Advocates-General. The writer is the Additional Solicitor-General of India
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How a common HC came into being
In 1966-67, I was the President of the Punjab and Haryana High Court Bar Association. I was pained at the idea of the division of the High Court… Our delegation met Mr G.L. Nanda, the then Union Home Minister. He told us plainly that he was willing to continue common High Court for Punjab and Haryana at Chandigarh. But if a separate High Court were asked for by Punjab or Haryana, then the jurisdiction over Chandigarh will be vested in the Delhi High Court. This inevitably would have serious consequences for the Bar. All the writ work and original jurisdiction in the High Court would go to Delhi. Thus, all orders passed by both governments would have to be challenged before the Delhi High Court — loss to the Bar, the inconvenience to the client, the embarrassment of both governments being answerable to an outside High Court. Nanda had said that he will not take any initiative on his own the matter being contentious but if both the Chief Ministers agreed he would have a common High Court having jurisdiction over both the states and Chandigarh. S. Gurnam Singh, former Judge of Pepsu and Punjab High Court, was the Chief Minister of Punjab at that time. It did not take any time to get the consent from him — he understood the delicacy and uncomfortable situation of having the Punjab government action and orders being supervised by the Delhi High Court. But Rao Birender Singh, the Chief Minister of Haryana, was a hard nut to crack. I told him that he must realise that High Court judges to be appointed to Delhi and who alone would be hearing cases against government orders, none of them would have any role, not even of consultation as in the case of Punjab and Haryana. It is not that he could in any way influence local Judges of Punjab and Haryana High Court, but it was his own mistaken bloated sense of importance which he thought will suffer in public that a Chief Minister had no say in the appointment of these high offices that really clinched the issue and thereupon he wrote to Nanda agreeing to a common High Court. Excerpts from the writer’s article in The Tribune (March 20, 2009)
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Remove constitutional hindrances first —
Harbhagwan Singh, former Advocate-General, Punjab —
Alka Lamba, Secretary, All India Congress Committee
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Every state has a High Court of its own. It is the state’s right. But there are constitutional difficulties that have to be taken care of before a separate High Court can be carved out of the combined High Court for Punjab and Haryana. For example, the High Court’s jurisdiction over Chandigarh is an issue that needs to be resolved. Having a Division Bench with one Judge from Punjab and another from Haryana will not resolve the issue, as jurisdiction is always territorial. It will not be possible for Haryana to have a separate High Court till such constitutional hindrances are taken care of. 
I am in complete agreement with Haryana Chief Minister Bhupinder Singh Hooda in his demand for the Punjab and Haryana High Court’s bifurcation and a separate High Court for Haryana. Each state should have its own High Court. It is its constitutional right. The obstacles in the way of a separate High Court should be expeditiously resolved so that the people of Haryana can get justice all the more expeditiously.