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BRICS talk
show Punjab
exchequer bleeds |
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Judicial
accountability
Meeting
the Maoist challenge
Chasing
dreams!
A huge number of
Indian youths — the majority from Punjab — are stuck in foreign
jails for want of proper travel documents to return. If the Government
of India wants, our law provides for — even mandates — it to
intervene and issue temporary travel documents Punjab
human smuggling Bill in limbo
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Punjab exchequer bleeds
That
the Punjab finances are in bad shape is well known. But the Comptroller and Auditor General’s latest report makes them look scary. What can be more damning than the CAG accusing the Finance Minister of under-stating the fiscal deficit by 6.5 per cent in the 2010-11 budget? According to the vote-on-account figures, Punjab’s debt has climbed to Rs 77,585 crore by the end of this fiscal. This is bad enough; worse is 78 per cent of the fresh debt is used to service the old one. Only 6.2 per cent of the debt is spent on asset creation. To top it, the Shiromani Akali Dal-BJP government does not even acknowledge that the situation is grim. A major drain on the state exchequer is the collective loss suffered by the public sector undertakings (PSUs). The three biggest loss-making PSUs are Punjab State Power Corporation Ltd (Rs 1,301 crore), Punjab State Grains Procurement Corporation Ltd (Rs 137 crore) and Punjab Warehousing Corporation (Rs 84 crore). The Punjab government spends Rs 3,832 crore on the corporations but the return on investment is just 0.05 per cent. In addition to the state government debt, the PSUs have taken loans amounting to Rs 66,000 crore. Banks are reluctant to lend more. The CAG says that at least 22 PSUs are non-functional and should be shut down. The Punjab leadership is unlikely to buy such sane advice because many of the PSUs are there not to serve any public purpose but to accommodate Akali-BJP MLAs as chairmen and vice-chairmen. Neither the political appointees nor the IAS officers running the boards and corporations are held accountable for the losses, mismanagement or corruption. Every year the CAG points out malpractices but hardly any punitive or corrective action is taken. After the 2-G scam, the CAG reports are taken seriously at the Central level. In states, however, these are largely ignored. The CAG keeps exposing reckless spending in Punjab – an excess payment of Rs 21.78 crore, for instance, for acquiring Mohali land for Chandigarh airport’s expansion – but neither the Opposition nor the media follows up startling disclosures.
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Judicial accountability
The
Judicial Standards and Accountability Bill, 2011, has been passed by the Lok Sabha, but without any debate. This is regrettable and speaks poorly of Parliament. One can only hope that it will be scrutinised more closely in the Rajya Sabha. At the moment, one has the Union Law Minister Salman Khurshid’s assurance that the Bill seeks to strike a balance between independence and credibility of the judiciary on the one hand and accountability of judges on the other. Anyone, under the Bill, can file a complaint against Supreme Court and High Court judges. A National Judicial Oversight Committee (NJOC) will then examine the complaints and, if necessary, forward them to a scrutiny panel or a separate investigation committee to take a closer look. The NJOC will then decide on its recommendation to either remove the judge concerned, issue a warning, call for voluntary retirement, recommend withdrawal of judicial work or refer the matter to Parliament. While currently, at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha are required to initiate impeachment proceedings against a judge, the Bill empowers all citizens, even a solitary individual, the right to level allegations. The Bill in its new avatar has also reduced the quantum of punishment for frivolous or false complaints from five years’ rigorous imprisonment to one year’s simple imprisonment and the fine from Rs five lakh to Rs 50,000. While the Bill defines judicial standards, most of them laid down by a full court meeting of apex court judges in 1997, it appears to have left the composition of the scrutiny panel and the investigation committee to the Oversight Committee. Any oral observation by a judge against another Constitutional authority has also been defined as judicial misbehaviour and one indiscreet comment now may land a judge in trouble. Pressure on the judiciary has increased manifold in recent years. And while arbitrary appointment of judges, judicial overreach and misconduct are of utmost concern, Parliament must ensure that the Bill does not give the executive pretexts to interfere with the independence of the judiciary. Cynicism over the aberrations should not be allowed to cloud the fact that the higher judiciary has been a strong pillar of democracy.
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Common sense in an uncommon degree is what the world calls wisdom. — Samuel Taylor Coleridge
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Meeting the Maoist challenge
The
recent killing of 12 CRPF personnel at Gadchiroli in Maharashtra and the abduction of an MLA and two Italian nationals in Odisha — one of whom has since been released — have once again highlighted the fragility of the situation along the Maoist belt in central and eastern India. This has also exposed the inability of the state police forces to deal with the Maoist challenge effectively, even as a debate is raging about the structure and powers of the proposed National Counter-Terrorism Centre. In May 2006, Prime Minister Manmohan Singh described the Maoist/ Naxalite insurgency as India’s most serious internal security challenge. Maoist incidents, which have accounted for almost 60 per cent of terrorism-related violence in India over the last decade, include intimidation, killings of innocent civilians, reprisal killings, abductions and kidnappings, extortion, IED blasts and the destruction of government and private property, and that of grassroots level political institutions. In many of the areas of their influence, the Maoists have been collecting taxes and dispensing instant and brutal justice through kangaroo courts. Through their sheer capacity to cause violence, the Naxalites extort huge sums of money from a wide variety of sources: the corporate sector, mine owners, forest and public works contractors, individual businessmen, rich landlords and corrupt government officials. According to a former Director of the Intelligence Bureau, the Communist Party of India (Maoist), or CPI (Maoist), collects Rs 200 crore annually through extortion. However, some other unofficial sources hold that this could be as high as Rs 500 crore or Rs 700 crore. A substantial portion of these ill-begotten funds goes towards clandestine arms procurement. At present, Naxalite activities have spread to about 230 districts across 20 states, though some are very moderately affected. Maoist attacks on the security forces and the symbols of state power are characterised by meticulous planning, systematic preparation, near-surgical execution and a high degree of coordination. On several occasions, the rebels have achieved considerable success in launching synchronised attacks on multiple targets involving a large number of cadres. For the Maoists, besides waging a protracted people’s war with the ultimate objective of capturing or seizing political power, participating in a peace process and talks is a ‘tactic’, and is considered ‘war by other means’. The response of various state governments and the Centre has often, if not always, been reactive and has been found to be lagging behind the Maoists. While the Maoists have been expanding to newer areas, gaining ground, consolidating themselves and have steadily been enhancing their military capabilities, the approach of the state governments has often been to ignore the Maoist movement. The reasons for this apathetic approach have been at least three. Firstly, Naxal terrorism is not an emotive issue at the national level like the insurgency in Jammu and Kashmir. Secondly, there has been some confusion whether the Naxalites are terrorists or not as they have a ‘social justice’ tag attached to them. Lastly, an impression has gained currency that the Naxal menace is not ‘as bad as the media makes it out to be’. Coordination between the police and intelligence agencies of various affected states has been generally unsatisfactory. The acquisition, compilation, collation, analysis, synthesis and dissemination of intelligence are still a grey area. The Naxalites are continuing to spread their tentacles, and it is crucial that intelligence about their activities, arms and equipment, training, sources of funding and future operations is shared on a daily basis so that it trickles down in near real-time to the functional level. A great deal more needs to be done if the states are to coordinate anti-Maoist operations across their borders. State police forces as well as the Central police and paramilitary forces (CPMFs) need to be better equipped and better trained to successfully combat the serious threat posed by the Naxalites. At present they lack the Army’s organisational structure and cohesiveness, the Army’s institutionalised operational experience and ethos and its outstanding junior leadership, the qualities that are mandatory if the Naxalites have to be defeated on their own turf. Calling in the Army to tackle the rising tide of Maoist violence will be a grave mistake for a number of reasons. The Army is already managing the border along the Line of Control (LoC) with Pakistan and parts of the country’s border on the Line of Actual Control (LAC) with China and has deployed a large number of troops for counter-insurgency and internal security duties in J&K and the north-eastern states. These prolonged commitments are hampering the Army’s preparedness for conventional conflict, gradually but perceptibly affecting morale and wearing down its equipment and transport fleet. Calling on the Army to commit additional troops for anti-Naxalite operations would be a retrograde step. What the Army can do and has been doing for some time now is to provide advanced training to the state police forces and the CPMFs to enable them to acquire the necessary skills. The Army can ‘train the trainers’ of the CPMFs at its training establishments so that they go back and train their respective forces. The Army can also send its instructors on deputation to the training academies of the state police forces and the CPMFs to train their personnel. Some police personnel could be trained by utilising the spare capacity of the Regimental Training Centres of the Army such as the Punjab Regiment Centre, Ramgarh, the Bihar Regiment Centre, Danapur, and the Grenadiers Regiment Centre, Jabalpur. In addition to the support that it can extend for training, the Army, and the Air Force can provide some technical equipment for better reconnaissance and surveillance. One UAV detachment has reportedly been deployed in the Bastar region of Chhattisgarh. The Centre has also consented to provide ‘air support essentially for transport of security forces, evacuation and air dropping of food and medicines’. Chhattisgarh has started a school of counter-insurgency warfare headed by a former Army Brigadier who had earlier headed the Army’s Counter-Insurgency and Jungle Warfare School, Vairangete, Mizoram. The Army can help other state governments establish similar training academies. The Maoist threat presents a clear and present danger. It can be ignored or neglected only at great peril to India’s national security interests. So far the national response has been inadequate, both at the policy formulation and execution levels. To cope with this serious threat, India needs a well-deliberated and finely calibrated response strategy with matching operational doctrines and the necessary civil and military resources. Only a skilfully coordinated response between the Centre and the states, with all concerned pooling in their resources to achieve synergy in execution, will achieve the desired results. Above all else, a comprehensive socio-economic strategy must be evolved to treat the root causes of this malaise that is gnawing away at the nation’s innards, along with a skilfully drawn-up plan for
perception management. The writer is Director, Centre for Land Warfare Studies, New Delhi.
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Chasing dreams! After
cricket legend Sachin Tendulkar reached the much-awaited milestone of hundred hundreds, he just had one suggestion to make to youngsters: "Don’t stop dreaming even if dreams do not come true. I had to wait for 22 years to realise the dream of winning the World Cup!” According to famous psychologist Sigmund Freud, dreams play a significant role in shaping our lives. In his view, dreams are all forms of "wish fulfilment" or an attempt by the subconscious mind to resolve a conflict of some sort, whether something recent or something from the recesses of the past. Coming from a small hamlet in Punjab, I visited Chandigarh for the first time with my father, a journalist, decades ago. It was like love at first sight. Though I went back to Abohar, I had a dream to make Chandigarh my home. Like Sachin's 22 years to achieve the milestone of winning the World Cup and hitting the lofty century of centuries for the nation, I too had taken exactly 22 years for getting my dream realised. As a day-dreamer, I used to look for all opportunities to touch this soil by participating in cultural foras, literary competitions and expositions at Panjab University and its affiliated colleges. The idea was to come close to my dream. Then the moment that I had been looking for came when I got selected as a manager in a nationalised bank. Excited at the very thought of my dream turning into a reality, I opted for Chandigarh as my place of posting. The fulfilment of the long-cherished desire of realising one's dream brings immense joy. However, as one dream leads to another, I had another dream of stepping into the shoes of my father who had earned for himself a niche with his writings and social work. I slowly started taking up the cause of organ donation, which was a taboo till recently. Success came soon, and I referred many cases to the prestigious PGI as many spirited people came forward to donate their body parts for research and for transplant so that one may give the ultimate gift of life to others! Side by side my articles started appearing in leading newspapers. Indeed, such is the power of dreams! Microsoft was a distant dream once and so was YouTube, Facebook and Google. Without the dreams that Bill Gates, Sergey Brin and Larry Page had, there would have been no Microsoft or Google today. Ditto for Apple, whose Steve Jobs had a dream. After having a dream, one needs to work hard, have firm belief, a clear vision and Sachin-like passion to chase our
objectives!
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A huge number of Indian youths — the majority from Punjab — are stuck in foreign jails for want of proper travel documents to return. If the Government of India wants, our law provides for — even mandates — it to intervene and issue temporary travel documents In terms of the law laid down by the Supreme Court in the “Satwant Singh Sawhney vs. A.P.O, New Delhi, (AIR 1967 SC 1836)” case — holding that deprivation of passport amounts to infringement of right to personal liberty under Article 21 of the Constitution and that right to travel abroad includes the right to return to India — all Indian citizens detained abroad are entitled to emergency travel documents under Section 4 (2) of the Passports Act, 1967, read with Rules 3 and 4 of the Passport Rules, 1980. n The Protection of Human Rights Act, 1993, defines “human rights” in Section 2 (d) as follows: (d) human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.” n Likewise, ‘International Covenants’ in Section 2 (f) is defined as follows: “International Covenants means the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December 1966.” n Article 6 (1) of the
ICCPR, 1966: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” n Articles 3 and 5 of the Universal Declaration of Human Rights, 1948, provide for the protection of life and human rights in the following words: Article 3
“Everyone has the right to life, liberty and security of person.” Article 5
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” As per a report of the UN Office on Drugs and Crime (UNODC) on “Smuggling of migrants from India to Europe and in particular to UK: A Study on Punjab and Haryana, 2009”, over 1 lakh illegal immigrants from India are behind bars in foreign jurisdictions. The cites statistics from the Ministry of External Affairs to say that over 1 lakh residents of six districts of Punjab — Jalandhar, Nawanshahr, Gurdaspur, Amritsar, Hoshiarpur and Kapurthala — faced deportation from different countries for not travelling on valid travel documents during the past five years. Every year, more than 20,000 youths from Punjab attempt irregular migration, a phenomenon that is spreading to Haryana too. According to the Passports Act, 1967, emergency certificates authorising an Indian citizen to enter the country can be issued in exceptional and urgent cases for a period not exceeding 12 months. After doing so, the applications in such cases can be transferred to the area passport authority concerned, which can then establish family and residential antecedents. Unfortunate victims of unscrupulous travel agents often end up being detained in jails abroad, without any resources, documents and financial or legal aid. They are unable to contact their families in India. This leads to loss of self-respect, dignity and liberty, and they are in no situation to secure their liberty. Indian consular offices abroad can come to their aid. However, despite the law providing for their rescue, these victims of human smuggling are mostly left to their fate. No tangible steps have been taken by the Government of India to secure their release and facilitate their return. International instruments, covenants and Indian legislation warrant their release and return to India. The Passports Act and Rules clearly establish that such detainees abroad can be permitted to return on emergency travel documents upon verification of their antecedents by the respective state governments. Get consulates going Just as the Central government has already conducted an exercise to review “blacklisted” non-resident Indians (NRIs) who could not return to India on account of alleged offences committed by them here, an exercise can also be carried out for illegal immigrants detained abroad. The government can seek information regarding such Indian nationals from the respective embassies or high commissions. Once the names and identities are received, the states governments can be asked to verify their antecedents. Thereafter, the consular section of the high commissions abroad can grant the detainees travel documents under the Passports Act to enable their return to India. This would be in larger interest of protection of human life and personal liberty guaranteed under Articles 14, 19 and 21 of the Constitution, besides several international instruments. The author practises at the Punjab and Haryana High Court.
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Punjab human smuggling Bill in limbo The
new Punjab government would do a service to victims of emigration rackets if it can get the approval of the Vidhan Sabha for the Punjab Prevention of Human Smuggling Bill that was first approved by the House on October 1, 2010, but subsequently held up. It was reserved by the Governor of Punjab for consideration and for assent of the President of India under Article 254 (2) of the Constitution. This provision states that if there is an inconsistency between laws made by Parliament and a law made by a state legislature, then Presidential assent would be needed for it. The Punjab Prevention of Human Smuggling Bill is described as a law to provide for the regulation of the profession of travel agents with a view to check and curb their illegal, fraudulent activities, and malpractices of persons involved in organised human smuggling. Among its noteworthy features are: n For the first time, it defines “human smuggling” and “travel agent”. n Provides for a licensing regime for agents and requires compulsory bank guarantees. n Gives power of search, seizure and arrest. n Creates special designated courts for trials. n Identifies defined variable punishment for offences under the Act. n Provides for making of complaints by aggrieved persons to Judicial Magistrates for trial before Special Courts. n Authorises special courts to decide whether any illegally acquired property is liable to be confiscated. The Punjab Prevention of Human Smuggling Bill subsequently passed through various Central ministries. After incorporating amendments as suggested by the Ministry of Overseas Indian Affairs, the Punjab government has it ready to be presented in the Vidhan Sabha. Till the approval comes, it fate remains unsure. Human smuggling from Punjab to “El Dorado” spins fortunes for merchants of death dealing in human merchandise. Yet, no law defines it and none punishes it. The delay in having a law to check such unscrupulous agents allows them to thrive while more and more youths continue to fall prey to their racket. Smuggled migrants often find their lives at risk, suffocating in containers, trudging across deserts, drowned in sea or forced to work as slaves. Smuggling of migrants is a deadly business that must be addressed as a matter of grave urgency. Given the huge profits to be made from continuation of the illegal migration business, there are lobbies at work that would like to derail the new law, the initiative for which has already been taken by Punjab. The state government now has to guard against any such elements trying to influence the course the Bill takes. Central law needed too The Emigration Act, 1983, meant to consolidate and amend the laws relating to emigration of citizens of India, neither defines human smuggling nor even looks at the problems connected with this trade. There is, thus, a need for Parliament too to legislate a national law to deal with human smuggling. Benefits of piecemeal state legislations will be confined to the state territorial borders. A Central law would be a composite solution. As enactment of such a law is likely to take long, it is good that Punjab has taken the initiative. State can go ahead Even as Punjab sought the approval of the President for the new law, examination of the matter suggests the approval was probably not even required, as it was not in conflict with any Central law, including the Emigration Act, 1983. The Emigration Act, 1983, creates a “Protector of Emigrants” for providing emigration clearance to ensure that conditions of employment of Indian citizens are not discriminatory, exploitative, unlawful, against public policy, violative of norms of human dignity and decency, besides, do not prescribe sub-standard working or living conditions. The ambit of the Act extends to Indian citizens only and exempts control of recruitments in India for service in foreign countries. Clearly, the regulatory provisions of the Central Act provide beneficial legislation to rein in Indian recruiting agents operating in India under licence. In contrast, the Punjab Prevention of Human Smuggling Act, 2010, enacted to provide a licensing regime for travel agents with penal provisions, has different regulatory functions to check human smuggling not covered under the Central law. It is stated in the Punjab Bill that “cheating” shall have the same meaning as assigned to it in Sections 415 and 416 of the Indian Penal Code. Therefore, the Punjab law looks at the menace of human smuggling by defining it as an offence and creates a process for its regulatory enforcement by compulsory registration and imposition of punishment upon violations through a legal process. The two Central and Punjab laws, thus, enshrine regulatory mechanisms for recruiting agents and travel agents separately. Viewed objectively, both carry independent purposes in their own spheres, and do not overlap. They neither appear inconsistent, nor repugnant to each other. In fact, they complement each other. In fact, “human smuggling” does not find mention in the Emigration Act. In view of this, Punjab could finalise the law by having it passed in the Assembly, and then getting the assent of the Governor. The urgency for that, of course cannot be overstated, given the vast number of youths suffering. — Anil Malhotra |
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