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Supreme Court’s digressions
Beware of snoopers! |
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The gay issue
Cold war between Iran, Israel
A Friend in Dad
AN IDEA WHOSE TIME HAS COME
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Supreme Court’s digressions
Now
that the euphoria over the Supreme Court’s cancellation of the 122 mobile licences has died down the government has defended its 2-G spectrum allocation policy, something on which it had been non-committal for almost a year. In a review petition filed in the court on Friday the government emphasised that the court had overstepped its powers by stating in its February 2 order that scarce natural resources should be allocated only through auctions. The setting of a four-month time-frame for the return of the cancelled spectrum is also questionable. While the court wants a fresh auction of 2G spectrum as soon as possible, the government has sought 400 days to complete the process. Lately, there have been a number of examples of judicial overreach. The comments of Supreme Court judges – distribute food exposed to rain damage among the poor, interlink rivers and set up a committee to monitor it, among them – have been seen as an encroachment on the Executive’s territory. Policy-making, of course, is a government prerogative. The court may not have the required expertise to decide on technical issues. The government has to study various implications of its policies, implementation hurdles and their bearing on the finances. Auctions, for instance, can squeeze out smaller players and raise the costs for product users. The judiciary can judge only the legality of a policy. To be fair, auctions are common in the developed world since they are simple, transparent and reliable. But if the government accepts the court’s argument that auctions alone should be followed, then the spectrum allocations made during the NDA regime also would become questionable and open up a Pandora’s box. Although the government has defended its right to follow the first-come, first-served policy of spectrum allocation, it has not challenged the Supreme Court’s cancellation of the 122 licences, which were granted through a flawed and manipulated procedure followed by the then Telecom Minister, A. Raja, to benefit certain firms. Some foreign investors have threatened litigation over violations of their treaties with Indian partners but they have no case as buying something illegally cannot be granted legal protection.
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Beware of snoopers!
The
stray ‘pin-shaped device’ found in Defence Minister A.K. Antony’s office in South Block which led the ministry to call in the Intelligence Bureau amid suspicion that it could be a remote electronic listening device has rekindled the controversy over whether our key decision-makers are duly protected from snoopers. Though Mr Antony has strongly denied that his office was ‘bugged’, and the IB has reportedly claimed that nothing ‘worrying’ was found in the thorough ‘sweep’ of the room, there is no room for complacency considering that a ‘bugging’ alarm was raised even by Union Finance Minister Pranab Mukherjee a few months ago when he took the Prime Minister into confidence on it. At that time too, it was suspected that the chewing gum-like substance found at 16 places in the Finance Minister’s room might have been used to implant electronic listening devices. Mr Mukherjee had thought it fit to call in a snooping team of the Central Board of Direct Taxes which fell under his ministry rather than adopting the natural course of calling in the IB. The explanation given at that point of time that the adhesive was ‘some sort of chewing gum’ which workers who swept the room may have left behind on the walls, seemed unconvincing. With more and more sophisticated electronic snooping gadgetry becoming available, the threat to national security cannot be treated lightly. This is not something on which political parties must play partisan politics and score brownie points. When the suspicion over Pranab Mukherjee’s office being bugged was first made public, BJP leader Sushma Swaraj had described it as “India’s Watergate”. Such loose statements must be avoided unless proper investigation reveals any such thing. But on its part the government must strengthen its safety mechanism to ensure that the new technology for snooping with different agencies is used only against strongly-suspected wrong-doers under a laid-down procedure approved at the highest level. The other aspect is the kind of unbridled freedom given to intelligence agencies. There must be due accountability of these agencies so that the temptation to snoop on private citizens, violating their privacy without due reason, as was done in the case of corporate lobbyist Niira Radia, is resorted to only if national security is jeopardized or national interest is compromised.
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The gay issue
It’s
mockery time. The Supreme Court accused the government of making a mockery of the system by going flip- flop on the issue of decriminalisation of Article 377 of the IPC ( Indian Penal Code). After the Additional Attorney-General, representing the Home Ministry, had declared the issue of decriminalisation of homosexuality as ‘highly immoral’ last Thursday, yesterday, Additional Solicitor-General, appearing on behalf of the Health Ministry took a stand contrary to the stand taken up by the Home Ministry. Later, that very day, The Home Ministry declared it had not taken any stand over the issue. Piqued, the apex court demanded a sworn affidavit to the effect from the Health Ministry, so that it does not change its stand later. While article 377 is tossed around- between courts and ministries, the gay community feels betrayed and its concerns being mocked. In 2009 the Delhi High Court had passed a landmark judgement decriminalising section 377 of the Indian Penal Code that deals with sexual acts in private between consenting adults. The court had responded to a PIL filed by a Delhi-based NGO that had requested the court to repel section 377. The courts had responded to a world becoming more open in terms of accepting people’s sexuality, which, it rightly treats as personal choices made by consenting adults. The court’s decision was preceded by several gay parades, petitions filed by NGOs and a lot of effort put in by gay rights activists towards mobilising public opinion. What has been accepted by the courts, the government is reluctant to recognise in toto. While its own Health Ministry insists, homosexuality should be legalised so that gays do not shy away from seeking medical help. The gay community has a higher ratio of HIV positive cases, by legalising it, spread of the disease can be checked. Some other sections claim that this section alone provides protection against sexual abuse of the young boys. Added to this, the home ministry is shy of sections of clerics from various religious groups. It finds itself between the devil and the deep blue sea.
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Experience enables you to recognise a mistake when you make it again. — Franklin P. Jones
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Cold war between Iran, Israel
The
attack on the Israeli embassy car on February 13 in the Diplomatic Enclave area, New Delhi, was part of the Iran-Israel feud going on for years. Similar attacks on Israeli vehicles had been reported in Georgia in Central Asia and Bangkok (Thailand) in East Asia. In Bangkok there were three bomb attacks, according to the Thai authorities, who reportedly detained a person responsible for one of the bombings. The arrested person turned out to be an Iranian national, who was inexplicably carrying an ID card with him. While the investigating authorities in Delhi are not prepared to say that Iranians were involved in the attack, the needle of suspicion undoubtedly points towards Iran. Iran's ambition to go nuclear is known. The numerous centrifuges for enriching uranium that Iran had set up in recent months have increased Israel's anxiety. Israel selectively carried out attacks against some of the scientists working in the nuclear reactors in Iran. The last of such attacks was carried out by Israel in January this year. The US and the European Union imposed several crippling sanctions on Iran in recent months to send across the message that Iran should not cross the red line without inviting direct intervention militarily. The US has been carrying out a balancing act between Israel and Iran to ensure that the situation does not go out of control. More importantly, Israel has to be restrained from carrying out its long-term plan of launching crippling strikes against the nuclear facilities in Iran. Such an attack would lead to a much bigger war, not excluding the US. Iran has offered to hold talks with the International Atomic Energy Agency (IAEA) authorities so as to assure them that Tehran is not really going nuclear. The US has a greater responsibility in the entire Iran-Israel faceoff. The US has to keep nuclear weapons out of Iran's hands so as to prevent the global balance from imploding, and also control Israel, which seems to be looking for an opportunity to launch a nuclear attack on Iran if it is convinced that Iran's nuclear facilities at Natanz and elsewhere are now dangerously close to nuclear explosion. President Obama's worry is that once there is a nuclear attack by Israel on Iran, the responsibility of bringing the conflict to a close would fall on the US which may willy-nilly be forced to intervene. The financial and other consequences will be enormous. Where does India come in this large canvas of the Iran-versus-Israel-and-US conflict? India can afford to wait and watch. The Vice-President of the European Union, Catherin Ashton, who was in Delhi recently, said in an interview that Iran was a signatory to the Nuclear Non-Proliferation Treaty (NPT) and hence it was binding on it to comply with the provisions of the NPT. She went on to say that India and other countries should review their relationship with Iran to ensure that Iran complied with the provisions of the NPT. US and European Union officials believe that Iran is planning to build nuclear weapons which means a serious threat to Israel. The IAEA has stated that it has credible information that Iran has carried out activities relevant to the development of nuclear device. It is also reported that Iran has a medium-level uranium enrichment facility near Qom. The IAEA ordered Iran to stop uranium enrichment as the technology used for it can also be used to enrich it to the higher level needed for a nuclear explosion. In a riposte to the European Union measures against Iran, the latter put out a threat that it would cut all oil supplies to EU countries. President Obama sent a nuclear warship to be stationed in the Straits of Hormuz which was meant to be a standing warning to Iran that it stood to face crippling strikes if it crossed the limits drawn by the IAEA. Even before he was sworn in as President, Obama was talking to Israel about Iran's nuclear programme. Obama reportedly impressed the Israelis, including Prime Minister Netanyahu, for his determination to stop Iran from going nuclear. There were reports that the Israeli Prime Minister was not very happy with President Obama putting more emphasis on the need to safeguard the non-proliferation policy and Iran's compliance to it than ensuring Israeli security. The US and the EU have been putting pressure on India for cutting its ties with Iran, particularly stopping the import of oil. However, India has told the US that India's energy needs made it necessary for the oil import to continue. India also has pointed out that it has over six million people in the Gulf region who send millions of dollars back home regularly and Iran is the only country which provides land access to Afghanistan. It is not easy for India to take decisions like cutting of its ties with Tehran because of these considerations. In any case, India is not convinced as yet that Iran would disregard its NPT obligations and opt for nuclear power notwithstanding occasional claims by Iran regarding its nuclear capability. In a recent interview, President Shimon Peres of Israel made some important observations. He said nuclear bombs did not shoot themselves. In whose hands the bombs were made all the difference. A bomb with North Korea alarmed the world, but not with countries like China. He referred to the two decade-old Indo-Israeli relations and Israel having become an important and dependable supplier of weapons to India over the years. India values its relations with Israel, which was demonstrated by the recent visit of Foreign Minister S.M. Krishna to Israel. Indo-Israeli relations are, therefore, too important to be trifled with. The cold war between Iran and Israel will continue and India can afford to watch and keep a close eye on the
developments. The writer is a former chief of the Intelligence Bureau and an ex-Governor of UP and West Bengal.
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A Friend in Dad He sat in blue scrubs on his hospital bed, ready for his angiography, when I reached the advanced cardiac centre at Chandigarh’s PGI that morning. His cheerful greeting welcomed me, but his uneasy smile betrayed him. I, too, was equally knotted up on the insides and very worried. That comes naturally when the patient in question is your father. But I was not about to give that away, or let it show. At any cost. After all, I had an image to live up to, a reputation to guard---of rising to the occasion when it so demanded. Just the way my mother described me during her illness--that I will not ever let down anybody who reposes faith in me. So, fear wasn’t about to clog the gregarious me when everybody was banking on me. As I sat joking about my brother’s nervousness and my dad’s fuss over nothing, the knot in the pit of my stomach kept growing. Dad seemed a misfit; he didn’t belong there. From my earliest recollection of him, he has always been a charmer — amiable, affable and more perfect than perfection itself. Anybody who heard him was, without exception, bowled over by his speech and diction. His art had not only won him many a heart, but even awards for documentaries he lent his voice to. Once, in fact, he was the voice of God as well. For a play on creation staged by students of Sacred Heart, when the then Principal requested him to be the voiceover for Jesus Christ. And my heart swelled with pride because, after all, not many fathers could be gods! So, I have always been in awe of him. That’s probably why while I was growing up, I laid down this one condition for my parents when choosing my husband---that he must speak as impeccably as dad does. In setting such high standards, I forgot that there can’t be two of his kind ever. He’s inimitable. As we sat chatting in that hospital room, my scared mind was adrift, traversing the bends down memory lane. Somewhere I was a baby, elsewhere I was holding his hand in the Sector-17 plaza (that was my favourite fun place and my dad made sure he took me there often to run and jump and be happy) or whispering a chocolate-demand in his ear. I can’t remember an unfulfilled wish and there was never a scope for a “no” when his darling daughter wanted something, though my mother would be ticked off often about him “spoiling” me. Yes, he spoilt me. To the hilt. So much so that I wouldn’t eat my food on my own if he was at home. I enjoyed eating from him, sitting in his lap, hugging him (still do) and asking him who he loved more ---- my brother or me. His answer was our little secret. That day, in hospital, I realised we had come a long way together from those days and times. So much had changed and yet things were still the same, the feelings intact. Just the way we left them in every indelible moment in memory lane or carried them forward to create more happy memories. I know he loves me like nobody ever will. As for me, he will be the only hero I will ever have. That’s why though it is not one of those commercially-hyped Father’s Days today, I want to say this: Papa, for all the times I fight with you or upset you or, sometimes, even make you angry, I just want you to know that I love you. Very much. And, this one’s for all the girls — remeber that your dad, and not your diamond, is your best
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AN IDEA WHOSE TIME HAS COME The
decision of the Central government to operationalise the ambitious National Counter Terrorism Centre (NCTC) from 1st March, 2012 sparked off protests from the Chief Ministers of a number of non-Congress States. Chief Ministers like Naveen Patnaik, Jayalalithaa, Mamata Banerjee and Narendra Modi criticised the powers given to the NCTC as an assault on the federal structure of the Constitution.
Indeed, the issue has turned into a full-blown controversy between the Centre and the non-Congress State governments. In view of stiff opposition from the non-congress Chief Ministers, the central government was forced to put off indefinitely the operationalisation of the NCTC. A pet project of the Home Minister P. Chidambaram, NCTC got approval from the Cabinet committee on security (CCS) in January 2012. The draft of the NCTC was sent to the PMO as early as 2010 but, there was opposition to the setting up of such a powerful body from different quarters. It was kept pending in PMO for a long time. The present NCTC is a compromise reached after prolonged inter-departmental meetings and consultations.
Powers & provisions According to the official order, NCTC will integrate Intelligence pertaining to terrorism, analyse it, pursue or mandate other agencies to follow up the leads and coordinate with existing agencies for effective response. It will further maintain a comprehensive data base of terrorists and their associates and of all information pertaining to them. It will prepare threat assessment reviews and disseminate them at appropriate levels of Central and State governments. It will be a single window organisation that will gather and disseminate Intelligence to Central and State security organisations. The operational wing of the NCTC can arrest and search any suspect under Unlawful Activities (Prevention) Act, 1967. It will have a Standing Council, which will comprise heads of anti-terror organisations of the States. Apprehension Under the Section on receiving information about terrorist threats or “design of the terrorists to commit an offence”, NCTC can launch operations without the consent of the State governments. Under this Section, “personal knowledge or information given by a person” can be the basis for launching such operations.Further, NCTC will have powers to requisition the services of NSG or any other special force for undertaking counter-terrorist operations. 26/11, an eye-opener It was a case, as a security expert aptly put it, in which every individual and agency had all the materials to defend itself but, collectively little to defend the nation. US security officials in their testimonies to the Senate Committee have said that India’s response to Mumbai terrorist attack was hamstrung by lack of coordination among the different levels of the government and due to local police’s inadequate training and lack of powerful weapons. Fears of similar vicious attacks in future cannot be ruled out. The US think-tank Rand Corporation, in its report has warned of similar attacks in future. The report said that India is likely to remain a target of Pakistan based terrorist attacks because, among other things, of its inability to compel Pakistan to dismantle its terrorist infrastructure. NCTC in the US But NCTC in USA does not conduct counter-terrorist operations. This is the responsibility of Homeland Security. In USA, NCTC integrates all foreign and domestic Intelligence analyses to produce detailed assessments designed to support senior policy makers, law enforcement agencies, Homeland Security and other groups. But in US, NCTC is a legal institution set up under Congressional Legislation after bi-partisan consultations. But it has no powers to act on its own in matters such as arrest, detention, interrogation, searches etc. Its official fact-sheet says that the organisation, “does not direct operations or collect Intelligence, it is the primary organisation in the US government for analysing and integrating all Intelligence pertaining to terrorism”. Again, NCTC in USA is an independent institution because it was felt that an independent body would be able to take an objective view of the counter-terrorist operations and bring about better coordination in the functioning of the different Intelligence agencies and ensure their proper coordination. In UK also, the Joint Terrorism Analysis Centre (JTAC) analyses intelligence culled from different quarters while anti-terrorist operations are carried out by a Regional Counter-Terrorism Command and local police. IB should be kept out There is also another inherent danger in this arrangement. Arrests made by NCTC, a wing of IB, will be challenged in the courts of law. IB and NCTC will be preoccupied in defending arrests before courts of law and also allegations of violation of human rights. This will definitely affect IB’s efficient functioning. Idea whose time has come
Further, Intelligence apparatuses in most of the States are in a bad shape. They are packed with people who have been picked up on considerations other than competence. There is substance in the complaint that they are often utilised for political surveillance and collection of Intelligence about inter-party and intra-party problems. The State Chief Ministers, who are assailing the NCTC, should not however forget that the State governments depend pathetically on the Centre for containing even minor law and order problems. State police chiefs at the drop of a hat, seek the help of central para-military forces to deal with situations arising out of various bundhs and agitations. Again, under article 355 of the Constitution it is the responsibility of the central government to protect States from external aggression and internal disturbances. State Chief Ministers’ objections against giving police powers to the NCTC are possibly valid but the need for a strong NCTC with a comprehensive reach is also of crucial importance. It has a pivotal role to play in collection and dissemination of Intelligence for combating terrorism. The Union Home Minister, in his letter to the Chief Ministers, has maintained that powers conferred on NCTC under Section 43(a) of Unlawful Activities (Prevention) Act must be read with duties under 43(b) of the Act, to produce the person arrested or article seized without unnecessary delay to the officer-in-charge of the nearest police station (which will be under the state government) and the concerned Station House Officer would take further action in accordance with the provisions of CrPC. He feels that these “bare minimum powers” are necessary for successful counter-terrorist operations. But this is unlikely to assuage the concerns of the State Chief Ministers. It is, therefore, necessary for the Home Minister to revisit the proposed NCTC architecture in consultation with the State Chief Ministers and other political parties. In this context, the Union Home Secretary’s meeting with the Directors General of Police and Chief Secretaries of States is unlikely to serve the purpose. The writer, presently a Senior Fellow at the Institute of Social Sciences, was Director, National Police Academy at Hyderabad and the first Director General of the National Human Rights Commission. He is a retired IPS officer from the Odisha cadre.
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Sankar Sen
