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COVER STORY

25-05-2001

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Briefing

POLITICS AFTER DISQUALIFICATION

N. RAM cover-story

The mid-2001 State Assembly election outcomes will bring no cheer to the BJP, but are likely to boost the Congress(I)'s political stock. In Tamil Nadu, Jayalalitha and the AIADMK-led front seem to be riding a powerful popular wave, but her disqualification introduces a factor of great political uncertainty. A look at her prospects and the legal-political road ahead.

THE outcomes of the Assembly elections in four major States - two each in the southern and eastern regions of India - and one southern Union Territory are certain to have a major national political impact. While they can bring no cheer at all to the party ruling at the Centre, the Bharatiya Janata Party, they are likely to boost the stock of the main Opposition party, the Congress(I), in a significant way.

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Pre-election public opinion polls and other indications have sent the signal out into the polity that the Congress(I) would emerge victorious in Assam and Kerala, be on the winning side in Tamil Nadu (even if in the capacity of a very junior partner), and fare reasonably well in Pondicherry. However, in West Bengal, amidst the chaotic, bizarre pre-election power play indulged in by Mamata Banerjee's Trinamul Congress in a desperately opportunist search for a winning formula, the political stock of both the Congress(I) and the BJP took a beating. A resurgent Left Front, with realistically scaled-down expectations, looked set to score yet another famous political victory.

One major issue that has come to the fore in this round of State Assembly elections is the question of electoral disqualification on account of criminal conviction. As a result of a drastic change in the legal position that occurred in 1997 but has been little noticed until now, the supremo of the All India Anna Dravida Munnetra Kazhagam (AIADMK), Jayalalitha, has become the first major figure on the national political stage to be declared disqualified by the electoral process on account of conviction in corruption cases. The acceptance in a Kerala constituency of the nomination of R. Balakrishna Pillai, a former Kerala Congress(B) Minister, who has actually been convicted and sentenced to a longer term of imprisonment than Jayalalitha, has highlighted the existence of a strange and shocking anomaly in the electoral law. To put it simply, the electoral law as it now stands discriminates, in an unjustifiable way, between sitting legislators and other, non-privileged citizens with respect to their prospective right to contest elections under comparable circumstances.

In popular terms, Jayalalitha is clearly riding a powerful wave captured by several pre-election public opinion surveys and political commentaries. All the indicators point to the AIADMK-led front, a formidable political combination that includes the Tamil Maanila Congress (TMC), the Congress(I), the two Communist parties, and the Pattali Makkal Katchi (PMK), not just winning decisively in Tamil Nadu, but sweeping the polls in a way familiar to those who have followed the 1991 and 1996 State Assembly outcomes. What is clear beyond the shadow of a doubt is that the pendulum has swung a long, long way from the conjuncture of circumstances that shaped the powerful anti-Jayalalitha wave in the last Tamil Nadu Assembly election.

Why and how precisely this has happened might be a matter of psephological and media discussion and conjecture for weeks to come, but the sharp swing of the pendulum is - a political fact. Given an electoral system that translates leads, especially sizable leads, in vote share disproportionately into seats, given the distinctive patterns of electoral fragmentation and alliance arithmetic in the State, and given the decidedly bipolar nature of the State-wide contest, a difference of anything in excess of ten percentage points between the vote shares of the two fronts means a clean electoral sweep for the favoured front.

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Why, under the circumstances, the AIADMK supremo took the legal-political route she did and suffered a significant setback to her own prospects of becoming Chief Minister of the State must remain a matter of conjecture. But political setback it is, even if Jayalalitha appears to have succeeded in converting the rejection of her nomination in four Assembly constituencies into some kind of sympathy factor among her committed mass following, and especially among women voters.

The legal problem Jayalalitha faced ever since her conviction and sentences in two cases, by a special court, in October 2000 was a formidable political obstacle in any case. She has been convicted of offences under the Prevention of Corruption Act and also some sections of the Indian Penal Code. She has been sentenced to jail terms of three years in one case and two years in another (these sentences are to run concurrently). Ever since her conviction, her political future has hinged on the appeals process. As expected, she appealed to the Madras High Court, which suspended her sentences and granted her bail in November 2000. Other criminal cases against the prospective Chief Minister, including the 'disproportionate wealth case', are in different stages of prosecution or investigation. All this has introduced a factor of great uncertainty in the State's politics.

Back to the wall, the AIADMK supremo has fought back determinedly. She has demonstrated, against the odds, that she is an important political leader on the national stage. In an excruciatingly protracted run-up to the State elections, when much was uncertain even about the shape of the two alliances, she kept everyone guessing. She promptly declared herself the next Chief Minister of Tamil Nadu and it seemed a credible enough declaration at the political level. Yet she delayed moving the Madras High Court for a stay of her conviction. Neither did she challenge in court the real legal obstacle in her path, the Election Commission of India's Order of August 28, 1997 on the subject of "Criminalisation of Politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding."

The particulars and legal-political significance of this Order have not received the informed public and media discussion they have warranted. In effect, the Order changed the law relating to 'Disqualifi-cation on conviction for certain offences', that is the application of Section 8 of the Representation of the People Act, 1951.

This section provides for disqualification of candidates to parliamentary and State Assembly elections on account of conviction for different categories of offences. Under sub-section (3) of Section 8, a person convicted of "any other offence" [that is, an offence not mentioned in sub-sections (1) and (2)] and sentenced to imprisonment for not less than two years shall be disqualified "from the date of such conviction and shall continue to be disqualified for a further period of six years since his release."

Prior to the Election Commission's Order of August 28, 1997 (which was crafted by Dr. M.S. Gill, the Chief Election Commissioner, and G.V.G. Krishnamurthy, then an Election Commissioner), persons who had been convicted of disqualifying offences under Section 8 but had gone on appeal were allowed to contest elections. Basing itself on the recent decisions of three High Courts - the Madhya Pradesh High Court, the High Court of Judicature at Allahabad, and the Himachal Pradesh High Court - and on a judgment by the Supreme Court, and noting that the country was facing "the serious problem of criminalisation of politics in which criminals, i.e., persons convicted by courts of law for certain offences, are entering into [the] election fray and contesting as candidates," the Election Commission introduced a radical change in the rules of the game. It came to "the considered view that the disqualification under section 8 of the Representation of the People Act, 1951 for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal [subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said section 8 of the Representation of the People Act, 1951]." In its Order, the Election Commission, invoking its powers of superintendence, direction and control of elections to Parliament and State legislatures vested by Article 324 of the Constitution, directed all returning officers, at the time of scrutiny of nomination, to "take note of the above legal position and decide accordingly..."

This was the major obstacle Jayalalitha faced in her ambitious and spirited drive for the chief ministership. In April 2001, she unsuccessfully moved the Madras High Court to get her convictions stayed so that she could contest. (While she got some consolation from the single Judge's non-binding view that "conviction and sentence are inseparable twins under the law," that "the moment the sentence is suspended, conviction is deemed to have been suspended," and that therefore Jayalalitha might not face disqualification, she failed to get the relief sought - suspension of the conviction.) Strangely, she did not challenge the validity or constitutionality of the Election Commission's Order of August 28, 1997. Eventually, her nomination filed in four constituencies (which also ran against a provision in the electoral law that limits a candidate to filing nominations in two constituencies per election) was rejected in all four by the returning officers.

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This means it is unlikely that Jayalalitha can be sworn in immediately as Chief Minister under the constitutional provision that enables an unelected person to be sworn in Minister, Chief Minister or even Prime Minister and given six months to be elected. Somebody else - almost certainly her nominee since the AIADMK leads the alliance, no question about that - can take the chair in the event of the AIADMK-led front winning the Assembly elections. Legally, given the bland, non-demanding wording of Articles 164(4) and 75(5) of the Constitution, the issue is arguable. Should a triumphant Jayalalitha or the legislators backing her press the demand for swearing her in as an expression of the people's will, the Governor of Tamil Nadu will find herself in a hot seat. It is even conceivable that Centre-State relations will come under strain. The democratic and best legal course open to the AIADMK supremo is frontally to challenge the Election Commission's Order of August 28, 1997 in the Supreme Court, among other things on the ground that the differential rules of the game that currently apply to sitting legislators vs other citizens are "hit by the vice of discrimination under Article 14 of the Constitution" (as one legal expert has put it).

After all, sub-section (4) of Section 8 of the Representation of the People Act, 1951 protects sitting legislators in a constitutionally as well as morally indefensible way: A disqualification under this section "shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."

Jayalalitha's not being an MLA at the time of her convictions was entirely fortuitous. She happened to lose at Bargur in the 1996 Assembly contest, else she would be protected from disqualification by the electoral law, just as Balakrishna Pillai has been in Kerala. The law continues to be an ass, at least in certain respects, and this represents both an obstacle and an opportunity for the once and future Chief Minister of Tamil Nadu.

Questions of legality

ERA SEZHIYAN cover-story

A small step for the Election Commission, but a great assault on Parliament and the judiciary.

THE rejection of the nomination papers of Jayalalitha in Tamil Nadu and the acceptance of the nomination papers of R. Balakrishna Pillai in Kerala have evoked varied reactions in political quarters. Irrespective of the success or failure of individuals and parties, the Order of the Election Commission introducing a new clarification for rejection of nominations, unless reversed, will have a lasting impact on the course of electoral process in the years to come.

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Section 8 of the Representation of the People Act (RPA) deals with disqualification of persons convicted under certain offences classified into three. The first category in Section 8(1) attracts disqualification for a period of six years on mere conviction itself without reference to the quantum of punishment therefor. In the second category of Section 8(2) where the sentence of imprisonment is not less than six months, disqualification is from the date of conviction and shall continue for a period of six years from the date of release. Section 8(3) provides that a person convicted of all other offences and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and shall continue to be disqualified for six years from the date of release.

These disqualifying provisions have been there in the Election Law since its inception in 1951. So far, the Supreme Courts has upheld the right to contest election by a person coming under one or other of the categories of Section 8 during the pendency of appeal. The judicial decisions have asserted that every step in appeal is part of natural justice. The general view has been that if a person is exonerated of his offence in the final decision of the appellate court, a rejection of his nomination, during pendency of appeal, will become irreversible. The case of Manni Lal v Parmai Lal (AIR 1971, SC 330) was about the acceptance of the nomination of a person convicted and sentenced to ten years. Parmai Lal was a candidate in the Uttar Pradesh Assembly election of 1969. The last date for nomination was January 9, 1969 and the date of scrutiny January 11. On the day of scrutiny, Parmai Lal was convicted by a trial court to ten years' imprisonment for offences under Section 148 (rioting with deadly arms liable for punishment upto three years) and Section 304 (homicide not amounting to murder liable for punishment of imprisonment for life or for a term of ten years). However, the returning officer accepted his nomination. Parmai Lal filed on January 16 an appeal in the High Court against his conviction in the criminal case. Polling took place on February 9 and Parmai Lal was declared successful on Febraury 11.

Manni Lal, one of the candidates, challenged the election, one of the grounds being that Parmai Lal was disqualified for being chosen as a member of the Assembly because of his conviction for more than two years. Before the High Court could give its judgment in the election petition, the conviction and sentence of Parmai Lal in the criminal case were set aside on appeal on June 30, 1969. The High Court in its judgment on October 27, 1969, in the election petition held that the acceptance of nomination was valid as acquittal had the effect of wiping out the conviction. In the appeal (AIR 1971, SC 330) by Manni Lal, the Supreme Court upheld the High Court decision stating: "In this case the High Court proceeded to pronounce the judgment on 27th October 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January 1969. It was therefore impossible for the High Court to arrive at the opinion that on 9th or 11th February 1969, respondent was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election could not be formed. The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from 11th January 1969."

A similar view was taken in the Vidya Charan Shukla Case (AIR 1981, SC 547). V.C. Shukla had been convicted to two years' imprisonment in January 1979 in the criminal case relating to Kissa Kursi Ka; but his nomination for the parliamentary election was accepted in December 1979 by the returning officer citing the reason that an appeal was pending. Shukla got elected. In an election petition, the Madhya Pradesh High Court held that the nomination of Shukla was improperly accepted. Sukla went on appeal to the Supreme Court. Before the apex court pronounced judgment, Shukla's conviction was set aside in appeal. Following the Manni Lal case, the Supreme Court set aside the High Court decision and upheld Shukla.

Fortunately, the returning officers accepted the nominations in both the cases mentioned above on the principle of pendency of appeal. Suppose the returning officer had rejected the nomination of a person disqualified as on the date of scrutiny, and later the appellate court were to set aside the conviction and punishment. Then, the returning officer's decision would become irreversible and any appeal or application of the principle of acquittal wiping the conviction retrospectively will become infructuous. The Supreme Court in the Shukla case recorded its concern about the possibility of such an acquittal of a person by an appellate court while his nomination had been rejected by the returning officer on the basis of a trial court conviction.

In its order of August 28, 1997, the Election Commission has instructed the returning officers that the disqualification becomes operative from the date of the order of the trial court itself, "regardless of whether the person intending to be a candidate is out on bail or not". This is in blatant contradiction to the view hitherto taken by the Supreme Court and the practice followed by the Election Commission itself. The law has not been changed by Parliament and the decisions of the Supreme Court have not been reversed. The Election Commission has issued the impugned order under Article 324 of the Constitution. Article 324 reads: "The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to Parliament and to the Legislatures of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.) This Article defines the functions of the Commission in the conduct of elections; but it does not confer any legislative power to the Commission in the matter of elections. It is Parliament and Parliament alone that has the exclusive power to legislate in all matters relating to all elections. This is made clear in Article 327: "Subject to the provisions of this Constitution, Parliament may from time to time make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House including the preparation of electoral rolls for securing due constitution of such House or Houses" (emphasis added).

Even otherwise, Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule in which Item No.72 provides thus: "Elections to Parliament, to the Legislatures of the States and to the Offices of President and Vice-President; Election Commission." Article 327 only amplifies Entry 72 with the inclusion of preparation of electoral rolls and delimitation of constituencies.

It is unmistakably clear that Parliament has the exclusive power to make laws and rules with respect to all matters relating to elections and that the Election Commission has no right to act as a super-Parliament or as a super-Supreme Court to issue orders supplanting the law made by Parliament and the law laid down by the Supreme Court. The Supreme Court has gone extensively into the limitation of the power of the Election Commission. In the case of Mohinder Gill v Chief Election Commissioner (1978 AIR, SC 851), Justice V.R. Krishna Iyer, speaking for the court, observed: "No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commission cannot defy the law armed by Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Untouched power is alien to our system... Article 324 in our view operates in areas unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms."

Another case arose when the Election Commission issued an order for the use of voting machines in the Kerala Assembly elections of May 1982. At that time, the election law provided only for ballot papers and ballot boxes. The Election Commission submitted a proposal to the government for the use of voting machines; but the government did not want to do so without studying the implications fully. Without waiting for a suitable amendment in the law, the Election Commission issued orders under Article 324 to use electronic machines. In the Parur Assembly constituency, voting machines were used in 50 out of the 84 polling stations. In the election, Sivan Pillai secured 30,450 votes against 30,327 votes by A.C. Jose. The defeated candidate filed an election petition and the trial court upheld the validity of the Election Commission's order and the use of the voting machine.

In the appeal preferred by A.C. Jose in the Supreme Court, it was argued on behalf of the Election Commission that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Article 324 will prevail over any Act passed by Parliament. It was contended that the power of Parliament under Article 327 relating to elections would be deemed to be subsidiary to the power of the Commission under Article 324.

Speaking for the court, Justice Murtaza Fazl observed: "If we were to accept the contention of the respondents, it would convert the Commission into an absolute despot in the field of election as to give directions regarding the mode and manner of elections bypassing the provisions of the Act and the Rules purporting to exercise powers under the cover of Article 324. If the Commission is armed with such unlimited and arbitrary powers, and if it ever happens that the person manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system" (AIR 1984, SC 921, Para 21).

In this case, the Supreme Court stipulated the limitation to the powers of the Election Commission: "To sum up, therefore, the legal and constitutional position is as follows:

(a) When there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,

(b) Where there is Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Acts and Rules.

(c) Where the Acts and Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of elections and

(d) Where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

Parliament, by means of the Representation of the People (Amendment) Act 1988, inserted a new sub-section for the use of machines in elections. Thus even a simple procedure to employ voting machines got legality only under the legislative power of Parliament, not under the power of the Commission armed with Article 324.

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It appears that the Election Commission failed to get statutory sanction or a verdict of the court to adopt the new procedure of disqualification. The Election Commission has published in July 2000 a collection of its 'Proposals on Electoral Reforms' to the Government of India from July 1998 to June 2000. In this publication it has reproduced a proposal given in the Chief Election Commissioner's letter dated July 15, 1998 to the Law Minister and reiterated in a letter dated November 22, 1999 to the Prime Minister regarding 'Criminalisation of politics'. The CEC has stated therein: "It is difficult to define as to who a criminal is. Under the jurisprudence, a person is presumed to be innocent unless proved otherwise and convicted by a court of law. Thus, in strict legal parlance, a criminal may be one who has been convicted by a court of law. But a common man perceives otherwise. In his eyes, a person who has been charged with certain types of offences and is under trial is also a criminal... The Election Commission has been devoting serious thought to this vital issue. In August 1997, it issued an order Article 324... The Commission also clarified that the conviction by the trial court itself is sufficient to attract disqualification... It is a small step forward in combating the situation, but has been greatly welcomed by the common people."

In the Foreword dated September 5, 2000 to the Report 'Elections in India - Major Events and New Initiatives 1996-2000', Chief Election Commissioner M.S.Gill said: "The country is concerned at the entry of what is popularly called criminal elements into the electoral fray. The Election Commission has made every effort to curb and control this phenomenon. It is to be remembered that the Commission can recommend but make no law. Only Parliament can... The Commission has made repeated recommendations, in all-party meetings, to leaders and in letters to successive Prime Ministers for amendments to this section, to make it more stringent, simple and easy to apply. Unfortunately, the Commission still waits for some amendments to be passed by Parliament."

Now the wily cat is out of the bag. The Chief Election Commissioner made recommendations for amendment of the provisions concerned and no response came from the government. Then the Commission proceeded to take the law into its own hands - to change the law made by Parliament and to defy the law as laid down by the Supreme Court. At the same time it is conscious that "the Commission can recommend but make no law. Only Parliament can."

In the case of voting machines in 1982, the order of the Commission issued under Article 324 invited harsh strictures from the Supreme Court. Further, in case of inaction or disapproval on the part of the government, the instructions of the Supreme Court are clear that "it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

It is evident that in formulating its own interpretation of a law made by Parliament and in defiance of the law as laid down by the Supreme Court, the Election Commission has again issued an order in August 1997 which is patently unconstitutional and illegal, and moreover dangerously undemocratic.

The Commission has no right to denigrate the judicial process and the 'legal parlance' and to deliver an atrocious declaration that "a criminal may be one who has been convicted of crime by a court of law. But a common man perceives otherwise." Then the question arises how to judge an accused as a criminal, by the judicial process or by the norms of the Election Commission. How does the Chief Election Commissioner know what the 'common man' perceives about the legal process?

In a democratic system, change of government is inevitable. Probably those in power may derive some satisfaction in the use of such draconian measures against those in the Opposition. They should not forget that the position may be reversed and that, pushed to the Opposition side, they may become targets of frivolous charges and criminal cases. On the other hand, we find that persons accused of serious offences, such as murder, kidnapping, dacoity, possession of explosives and arms, extortion, breach of peace, etc., are not only moving freely, but also contesting and winning election after election to the State legislature and to Parliament. One such typical case has been reported about the present Member of Parliament from Siwan constituency in Bihar against whom serious cases, about 30 in number, have been registered. If an accused has the protection of the party in power, then prosecution is lethargic and conviction at the trial court gets postponed indefinitely, with the net result that he or she will not face disqualification under Section 8. The objectives of eradication of corruption and exclusion of persons of criminality are indeed laudable, not only in the field of election, but in every other walk of life. If the procedure adopted to implement such a laudable objective is unconstitutional and undemocratic, the very purpose of the scheme will be irretrievably defeated.

Era Sezhiyan is Senior Fellow of the Institute of Social Sciences, New Delhi, and a former member of Parliament.

The disqualification debate

T.S. SUBRAMANIAN cover-story

The seeming discrimination in allowing R. Balakrishna Pillai to contest in Kerala while rejecting Jayalalitha's papers in Tamil Nadu emerges as the most contentious point in the disqualification debate.

IF the campaign in Tamil Nadu lacked dash and colour, there has been plenty of sound and fury over the disqualification of All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha from contesting. Election platforms reverberated with the cut and thrust of arguments; newspapers discussed the Election Commission of India's Order of August 28, 1997, which virtually barred the former Chief Minister from contesting.

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Jayalalitha filed her nominations from four constituencies - Krishnagiri, Andipatti, Bhuvanagiri and Pudukottai. The Returning Officers rejected her nominations on two grounds. The first ground was that she has been convicted and sentenced to two years' and three years' of imprisonment in two cases of corruption against her, and so Section 8 (3) of the Representation of the People Act disqualifies her from contesting. The 1997 order states that disqualification under Section 8 of the RPA for conviction for offences mentioned in the Act "takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal..."

Her papers were rejected also on the ground that Section 33 (7) (b) of the RPA bars candidates from filing nominations from more than two constituencies.

Her disqualification to contest is a major obstacle to her being sworn in Chief Minister even if her party wins an absolute majority in the 234-member Assembly. The overwhelming legal opinion is that the Governor cannot have her sworn in Chief Minister even if a victorious AIADMK elects her as the leader of the legislature party unless the Madras High Court sets aside her conviction. Senior Advocate N. Natarajan, former Union Finance Minister and lawyer P. Chidambaram, former Tamil Nadu Law Minister and advocate S. Madhavan, and Janata Party president Subramanian Swamy argue that Jayalalitha cannot make use of the provision that allows a person who is sworn in Chief Minister to get elected within six months. Natarajan asked: "When the disqualification starts under the RPA from the date of conviction and continues for six years even after the person serves the sentence, how can she competently get elected? Even after six months, she suffers the same disqualification."

What has generated controversy is the seeming "discrimination" in the RPA which allows a sitting legislator like R. Balakrishna Pillai of the Kerala Assembly to contest, even though he has been convicted and sentenced to five years of imprisonment.

Jayalalitha was convicted and sentenced by P. Anbazhagan, Special Judge, Chennai, on October 9, 2000 to three years' rigorous imprisonment in the "Jaya Publications case", involving a deal for land of the State-owned Tamil Nadu Small Industries Corporation (TANSI) when she was Chief Minister from 1991 to 1996. In the "Sasi Enterprises case", the same Judge convicted and sentenced her to two years' rigorous imprisonment. Her close friend Sasikala Natarajan received similar sentences. The sentences were handed down to both under Sections 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by a public servant or banker, merchant or agent) of the Indian Penal Code (IPC), and Sections 13 (2) and 13 (1) (c) and (d) of the Prevention of Corruption Act.

Jayalalitha appealed to the High Court, which suspended the sentences and granted her bail in November 2000. But the High Court did not suspend the convictions. She filed writ petitions in April 2001 seeking suspension of the convictions so that she could contest the elections. She, however, did not challenge the Election Commission's order.

Section 8 (3) of the RPA says that "a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) ) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period six years since his release."

Section 8 (4) of the RPA states that "Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed by the court."

Section 33 (7) (b) of the RPA says that "Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies) from more than two Assembly constituencies in that State." This provision was introduced in the RPA in 1996.

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So Jayalalitha cannot contest elections for a minimum of three years plus six (years after her release), unless the High Court sets aside her conviction. Jayalalitha was not a legislator when she was convicted in the two cases. She was defeated at Bargur in the 1996 Assembly elections.

In Kerala, the Returning Officer of the Kottarakara constituency accepted the nomination of Balakrishna Pillai, a former Kerala Minister, who was sentenced by a special court to five years' rigorous imprisonment in "the Edamalayar case". The Kerala High Court had suspended the sentence but not the conviction. The Returning Officer said he accepted the nomination after studying Section 8(4) of the RPA and a Calcutta High Court judgment. The Supreme Court had not taken any decision on the Section till date, he said. As a sitting MLA, Balakrishna Pillai was entitled to enjoy the benefit of Section 8(4) of the RPA, he said.

JAYALALITHA quickly alleged that "an injustice" had been done to her. She said officials in Kerala were not forced to reject the nomination unlike in Tamil Nadu where, she alleged, Chief Minister M. Karunanidhi had "threatened" officials. She also alleged that her papers were rejected to pave the way for Chennai Mayor M.K. Stalin to succeed his father Karunanidhi as Chief Minister.

Harkishan Singh Surjeet, general secretary, Communist Party of India (Marxist), which is an ally of the AIADMK, alleged that "two different standards" had been adopted. He wondered whether "sitting MLAs are allowed" to commit crimes. He, however, did not blame the Dravida Munnetra Kazhagam (DMK) government for the rejection of Jayalalitha's papers.

Karunanidhi said he was not happy over the rejection of Jayalalitha's nominations. "The law had done its duty," he said. He stoutly denied that his government had interfered in the rejection. "In a democratic battle, I want to take on the enemy face-to-face. I don't want to fight the enemy after tying his hands." Besides, Karunanidhi asked: "If the enemy has willingly trapped herself (by filing her nominations from four constituencies), how can I be held responsible for it ?"

The controversy subsided when Chief Election Commissioner Dr. M.S. Gill on April 30 concurred with the decisions taken by the Returning Officers both in Tamil Nadu and Kerala. He said the Election Commission's order of August 28, 1997 had legal backing and the returning officers had correctly interpreted it. The law was "clear" on the exemption given to sitting MLAs like Balakrishna Pillai. Section 8 of the RPA had been upheld by two separate orders of the Madras High Court in April this year, he said.

The subject of the Election Commission's Order dated August 28, 1997, No.509/Disqln./97-J.S.I., was "Criminalisation of politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding." It pointed out that "the country was facing the serious problem of criminalisation of politics in which criminals, i.e., persons convicted by courts of law for certain offences, are entering into election fray and contesting as candidates." The Order, however, pointed out that "Section 8 of the Representation of the People Act, 1951, lays down the conditions under which a person would be disqualified on grounds of conviction for contesting the elections to the Parliament and Legislature of a State..." The Order quoted from the judgments of High Court and the Supreme Court that convicted persons should not be allowed to stand in the election.

The six-page Order said, "Now, therefore, the Election Commission has, after taking due note and paying due regard to the above judicial pronouncements of the Hon'ble Supreme Court and the Hon'ble High Courts, come to the considered view that the disqualification under Section 8 of the Representation of the People Act, 1951 for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal (subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said section 8 of the Representation of the People Act, 1951).

"Accordingly, the Election Comm-ission, in exercise of its powers of superintendence, direction and control of elections to Parliament and State Legislatures vested by Article 324 of the Constitution, hereby directs that all the Returning Officers, at the time of scrutiny of nominations, must take note of the above legal position and decide accordingly about the validity or otherwise of the candidature of the contestants disqualified under the said section 8 of the Representation of the People Act, 1951."

M.S. Gill and then Election Commissioner G.V.G. Krishnamurthy reportedly drafted the Order. Gill himself said on April 30 that the Order had quoted extensively from three judgments of the Madhya Pradesh, Allahabad and Himachal Pradesh High Courts. "The Himachal Pradesh High Court (order) was upheld by the Supreme Court. There is no case in which any other court has taken an opposite view", Gill said.

The Order changed the legal position overnight because, according to Era Sezhiyan, former Member of Parliament, "until August 1997, the Election Commission followed the procedure that a person, convicted under one or other of the statutory provisions of disqualification and released on bail during the pendency of his appeal, is not disqualified from contesting an election." (The Hindu, April 30, 2001). "I strongly feel that there is no legal validity" for the Order, Sezhiyan said. He added, "If a change in the law or its application is to be made, it can be done only by Parliament by amending the provisions involved or by the court by its interpretation and decision." While it was true that for the conduct of free and fair elections, the Constitution and the Election Law have vested the Election Commission with enough powers, there was a limitation under Article 324. "The order of August 1997 is illegal and invalid; it is a clear case of arbitrary action and of deliberate defiance of Parliament and the Court," he said.

V. Ramaswami, former Supreme Court Judge, writing in The Hindu on April 10, 2001, said it was "doubtful" whether the Election Commission could give a direction under Article 324 "which (the direction) interferes or has the tendency to interfere with the decision of the Returning Officer who has to exercise his independent judicial mind in the determination of the question on disqualification." Ramaswami spoke about the "vice of discrimination" in Section 8 of the RPA. He argued that if Section 8 (4) of the RPA "is construed as treating differently a person who has been convicted, with reference to his position as a Member of Parliament or legislature of a State from others who are not, then it may be hit by the vice of discrimination under Article 14 of the Constitution."

The Election Commission came into the picture in deciding the validity of Jayalalitha's nominations after Justice Malai. Subramanian of the Madras High Court stated that "there may not be any disqualification" for Jayalalitha to contest the elections even as he dismissed her two writ petitions seeking suspension of her convictions so that she could be a candidate. On her apprehension that should she be disqualified her statutory right to contest would be affected, the Judge said: "All these aspects have to be placed before the Election Commission and not before this court."

Earlier, appearing for the State, N. Natarajan, Senior Public Prosecutor in the corruption cases against Jayalalitha, contended that the spirit of the RPA's disqualification clauses was that persons convicted for criminal offences should not be allowed to be candidates in elections. Natarajan said that no distinction should be made between political public servants and bureaucratic public servants insofar as the conviction was under the Prevention of Corruption Act because the interest of purity of administration should prevail over any other consideration.

P.P. Rao, Senior Advocate and counsel for Jayalalitha, quoted from the orders of the Supreme Court and High Courts which said that the courts had the power to suspend conviction under the Code of Criminal Procedure if the damage that one would suffer would be irreversible in case he or she succeeded in appeal. The Supreme Court had said the presumption of innocence should prevail throughout the period of appeal (Frontline, May 11, 2001).

On April 24, when nominations were scrutinised, there was fear of violence but Jayalalitha instructed the AIADMK cadres to stay calm. The Returning Officers for Andipatti, Bhuvanigiri, Krishnagiri and Pudukottai, S. Jaya, P. Santhanam, M. Mathivanan and E. Kandasamy respectively, rejected Jayalalitha's nominations either because, under Section 8 (3) of the RPA, her disqualification started from the date of conviction by the trial court or because she filed her nominations from four constituencies or on both the counts.

The Returning Officers rejected arguments from Jayalalitha's counsel including Siddharth Shankar Ray, V. Ramaswami, N. Jothi and K. Malaisamy that the High Court had suspended her sentence and so the Election Commission's Order did not hold good. Jothi and Malaisamy argued that a candidate could file nominations from more than two constituencies but reserved the right to contest in two.

Subramanian Swamy, election agent for V.S. Chandralekha, who had filed her nominations from Andipatti, highlighted three points before the Returning Officer. The first was that Jayalalitha had admitted in her nomination of her being convicted under the PCA for two years (and three years). This attracted Section 8 (3) of the RPA and implied her disqualification from contesting. The second point was that since the Returning Officers were subject to the control, superintendence and discipline of the Election Commission, they should comply with its Order. The third was that the Madras High Court had dismissed her petition seeking a stay on her conviction. Besides, she had never challenged the validity of the Election Commission's Order.

Chidambaram also said there was no way Jayalalitha could become Chief Minister. The convention was that a Minister or a Chief Minister against whom the police filed a charge-sheet would resign. Former Union Minister Sedapatti R. Muthiah and former Bihar Chief Minister Laloo Prasad Yadav resigned under similar circumstances. Chidambaram said: "There is no precedent for a person convicted and sentenced by a court to be sworn in Chief Minister. I have every faith that the Tamil Nadu Governor will respect the Constitution." It was not possible for the Governor who gave the sanction to the State government to prosecute Jayalalitha in the corruption cases to invite her to form the government, Chidambaram said.

Subramanian Swamy said the rule that one should get elected to the legislature within six months of becoming the Chief Minister was applicable only to those who were not disqualified from becoming a member of the legislature.

Former Law Minister S. Madhavan said: "It may be political chicanery to claim that a person barred by the RPA to contest the election can be sworn in Chief Minister. But it will be ruinous for democratic governance." Madhavan said Jayalalitha had filed nominations from four constituencies even after giving an undertaking before the Returning Officer that she had not filed nominations from more than two.

When asked about the "discrimination" in the RPA between a sitting MLA or MP, and others, Natarajan said the Election Commission was a constitutional body which took decisions on the basis of the Constitution to maintain purity in elections. It interpreted laws, expressed its views and directed its officers uniformly. So one did not have the right to say that this was wrong or one-sided. If any party was genuinely aggrieved over its views, that party should necessarily seek clarification from a court of law. Without doing that, it was not good in democracy to criticise the Commission.

According to Natarajan, lawmakers decided on the qualification and disqualification in an enactment. The object of Section 8 (3) of the RPA was there in the object and reasons of the Act itself, which said that criminalisation of politics should be avoided. "No one till today can say it is wrong. But Section 8 (4) is meant for a totally different situation. It gives weight to the will of the people because it comes into play after a person gets elected to the Assembly or Parliament, and his becoming guilty of a crime after that."

Natarajan added: "If it is felt now that such a person should be immediately disqualified, it is for the people to make proper amendments to that section. In the absence of this, the Election Commission's hands are tied. It has to go by the law that is available."

The law and the Order

Legal experts raise questions about the validity of the Election Commission's Order on disqualification and see certain incongruities with regard to the powers of the Returning Officers in this context.

DID the Returning Officers (R.Os) concerned err in rejecting the nomination papers of All India Anna Dravida Munnetra Kazhagam general secretary Jayalalitha in four constituencies in Tamil Nadu while those of Kerala Congress(B) leader and former Minister R. Balakrishna Pillai were accepted in Kottarakkara constituency in Kerala? Chief Election Commissioner M.S. Gill has endorsed both decisions, saying that the Election Commission's (E.C.) Order issued in August 1997 had legal backing and that the R.Os had interpreted it correctly. While Jayalalitha attracted disqualification under Section 8(3) of the Representation of the People Act (RPA), 1951, Balakrishna Pillai derived benefit from Section 8(4) of the Act. According to Gill, Section 8(4) says that conviction against a Member of Parliament or a Member of the Legislative Assembly gets postponed for three months from the date of the trial court order, and once an appeal is filed disqualification does not come into effect till the disposal of the appeal.

The acceptance of Balakrishna Pillai's nomination has been challenged in the Kerala High Court. Whatever the outcome of this case, observers see certain incongruities in this context with regard to the R.Os' powers.

First, there is lack of clarity about the contents of the E.C.'s Order of 1997. Legal experts, for instance, pointed out that the Order suffers from insufficient phraseology. Its operative part says: "The disqualification under Section 8 of the Representation of the People Act, 1951, for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal (subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said Section 8 of the Representation of the People Act, 1951)."

The Order is silent about suspension of sentence by an appellate court. Suspension of sentence amounts to a stay and it appears that there have been occasions when courts have granted bail to convicted persons without suspending the sentence. It is argued that since Jayalalitha has secured, by means of a stay order, the suspension of the sentence imposed by the trial court, the E.C.'s Order may not strictly apply in her case.

However, since the Order cites three High Court judgments to assert that suspension of sentence alone is not sufficient to prevent disqualification, it could well be suggested that the operative part of the Order should be understood in the context of the court rulings cited in it. A convict who has secured bail could argue that his sentence also stands suspended, but a convict who has secured a suspension of sentence through a stay order appears to be on a stronger wicket.

For Section 8(3) of the RPA to be invoked against a person, it is necessary that he or she should have been convicted and sentenced to imprisonment for not less than two years. Some legal experts suggest that if the sentence is dormant because of a stay order secured from an appellate court, Jayalalitha may be right in arguing that Section 8(3) could not be invoked against her. P.P. Rao, a senior lawyer, argues that if sentence is suspended, conviction does not come into operation. Conviction minus sentence is an inconsequential finding, he says. According to him, Justice Malai Subramanian's 'inconsistent' judgment (dismissing Jayalalitha's writ petition in the Madras High Court seeking suspension of her conviction in two corruption cases) has perhaps resulted in the R.Os' decision against Jayalalitha. (P.P. Rao appeared in the Madras High Court in the case on behalf of Jayalalitha.)

The chief culprit in this controversy, according to senior lawyer Rajeev Dhavan, is the E.C.'s Order. He says: "It is not a detailed circular. It treats the grant of bail and suspension of sentence as two sides of the same coin, which I consider is inexactitude of phraseology. The E.C. must have been absolutely clear about its stand. If the Returning Officer has to decide, then it should have said so, and refrained from issuing this circular."

Experts raise the following questions: If R.Os are quasi-judicial officers according to the E.C., why do they need this Order? In that case, can the E.C. issue administrative directions to R.Os? In the absence of the Order, can R.Os not interpret the relevant provisions in the RPA and enforce them?

In its order the E.C. has cited the Allahabad High Court's judgment in the Sachindra Nath Tripathi vs Doodnath case. A reading of the judgment shows that the criticism of the E.C.'s Order is not entirely without legal merit. Doodnath was convicted by the trial court for offences under Sections 302 and 307 of the Indian Penal Code and was on bail during the period of the election. While declaring his election to be void, the High Court said: "The disqualification, which is an automatic effect of conviction, springs up right at the time of pronouncement of conviction, which finding is yet to be reversed or set aside... It is to be seen as to what is the effect of the bail granted to the respondent before the date of filing the nomination paper. If no bail is granted and the execution of the sentence is not suspended by the stay orders then the accused will remain in jail and the only effect of granting bail is that he is released from the confinement. Grant of bail does not interfere with the finding of conviction and that cannot render the disqualification automatically emerging from conviction inoperative."

The E.C.'s Order also cites the Supreme Court's judgment in the Rakesh Singha case. Although the Supreme Court dismissed Singha's appeal against the Himachal Pradesh Court's ruling (in Vikram Anand vs Rakesh Singha, etc.) that Singha's election was void in view of his conviction in a criminal case, it did not dismiss Singha's election appeal. A careful reading of the Supreme Court's judgment, say experts, shows that it was Singha's counsel who withdrew the election appeal, conceding that it became irrelevant in view of the dismissal of his appeal in the criminal case. But the E.C.'s Order says that the Supreme Court "dismissed the election appeal holding that Shri Singha was disqualified ab initio for contesting election under Section 8(3) of the RPA, 1951." However, experts point out that the Supreme Court did not use the expression ab initio, and indeed, had no occasion to consider Singha's election appeal, which was withdrawn by his counsel. Therefore, the E.C.'s claim about the disqualification of Singha under Section 8 (3) of the RPA appears to be the result of an oversight and, perhaps, a wrong impression.

Some analysts point to the E.C.'s failure to consider the Supreme Court's judgment in the V.C. Shukla case. The E.C.'s Order cites the Madhya Pradesh High Court judgment in Purshottamlal Kaushik vs Vidya Charan Shukla, declaring as void Shukla's election to the Lok Sabha in 1980 in view of his conviction in a criminal case. The court held that the R.O. must depend on facts as they existed on the date of scrutiny of nominations to decide the validity of the nomination and that the R.O's acceptance of Shukla's nomination was wrong. However, by the time Shukla's election appeal was heard by the Supreme Court, he was acquitted in the criminal case on appeal. Applying the 'doctrine of relation back', the Supreme Court held Shukla's election to be valid.

Although the Supreme Court did not consider whether the suspension of sentence would stop disqualification, this judgment is considered relevant. According to P.P. Rao, the judgment shows that if the appeal of one who is convicted - whose nomination stands rejected by the R.O. - is allowed by the superior court, then disqualification would mean an irreparable loss. There is another scenario: the R.O. accepts the nomination of a convict who has filed an appeal and the convict wins the election; if the appeal is dismissed, then it could result in disqualification, necessitating a byelection. In such a case, disqualification would not mean an irreparable loss.

According to P.P. Rao, the offences covered by Section 8(3) of the RPA were not considered very serious by the law-makers and that was why they were not included under Section 8(1) or Section 8(2). Under Section 8(1), mere conviction is sufficient for disqualification, and under Section 8(2) conviction and sentence up to six months' imprisonment would attract disqualification. According to P.P. Rao, if Section 8(4) gives immunity from disqualification for sitting MPs and MLAs if they have appealed against their conviction and till the case is disposed of, the law-makers would not have intended to deny the benefit of suspension of sentence to a non-legislator who might have been convicted by a trial court. He does not think that the spirit of Section 8(4) is to give protection to the current term of a legislator facing conviction, and not to help him or her contest an election. He said: "The language of this sub-section does not suggest that. It gives unqualified immunity for the first three months, and extends it till the appeal, filed within those three months, is disposed of. It could be appeal or application for revision in respect of conviction or sentence. The intention of the law-makers is clear. Under the rule of law, presumption of innocence continues till the appeal is disposed of. Hence, how can you disqualify a person during the interregnum, and inflict a punishment? It could be defective wording, but there is need to reconcile Section 8(4) and 8(3) of the RPA in order to avoid a serious anomaly."

If Jayalalitha is indeed aggrieved by the E.C.'s Order, why has she not challenged its legal validity? According to some observers, she tried to interpret the Order in her favour through her counsel. It is argued that her problems do not stem from the Order, but from the manner in which it is sought to be implemented. As the Order is not a "binding" document, her plea to the R.Os was to ignore the Order, which "directed" them to decide the validity of her candidature in the light of what the E.C. had vaguely found as the legal position. The R.Os were apparently not convinced by her argument that they should, according to the R.Os' manual/handbook of 1998, reject a nomination only if there was a clear case of disqualification. Even if there was the slightest doubt on this, they should accept the nomination. An "improper rejection", counsel for Jayalalitha argued, would have serious consequences.

If the AIADMK wins a majority of seats in the Assembly elections, the Governor would be faced with a ticklish situation. It is not clear whether the Governor can invite Jayalalitha to form the government but there seems to be no legal impediment to her being sworn in Chief Minister. Experts say that whatever the post-election scenario, Jayalalitha could legally challenge the rejection of her nomination. If her appeal against conviction is allowed in the meantime, she can contest again.

POLITICS AFTER DISQUALIFICATION

N. RAM cover-story

The mid-2001 State Assembly election outcomes will bring no cheer to the BJP, but are likely to boost the Congress(I)'s political stock. In Tamil Nadu, Jayalalitha and the AIADMK-led front seem to be riding a powerful popular wave, but her disqualification introduces a factor of great political uncertainty. A look at her prospects and the legal-political road ahead.

THE outcomes of the Assembly elections in four major States - two each in the southern and eastern regions of India - and one southern Union Territory are certain to have a major national political impact. While they can bring no cheer at all to the party ruling at the Centre, the Bharatiya Janata Party, they are likely to boost the stock of the main Opposition party, the Congress(I), in a significant way.

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Pre-election public opinion polls and other indications have sent the signal out into the polity that the Congress(I) would emerge victorious in Assam and Kerala, be on the winning side in Tamil Nadu (even if in the capacity of a very junior partner), and fare reasonably well in Pondicherry. However, in West Bengal, amidst the chaotic, bizarre pre-election power play indulged in by Mamata Banerjee's Trinamul Congress in a desperately opportunist search for a winning formula, the political stock of both the Congress(I) and the BJP took a beating. A resurgent Left Front, with realistically scaled-down expectations, looked set to score yet another famous political victory.

One major issue that has come to the fore in this round of State Assembly elections is the question of electoral disqualification on account of criminal conviction. As a result of a drastic change in the legal position that occurred in 1997 but has been little noticed until now, the supremo of the All India Anna Dravida Munnetra Kazhagam (AIADMK), Jayalalitha, has become the first major figure on the national political stage to be declared disqualified by the electoral process on account of conviction in corruption cases. The acceptance in a Kerala constituency of the nomination of R. Balakrishna Pillai, a former Kerala Congress(B) Minister, who has actually been convicted and sentenced to a longer term of imprisonment than Jayalalitha, has highlighted the existence of a strange and shocking anomaly in the electoral law. To put it simply, the electoral law as it now stands discriminates, in an unjustifiable way, between sitting legislators and other, non-privileged citizens with respect to their prospective right to contest elections under comparable circumstances.

In popular terms, Jayalalitha is clearly riding a powerful wave captured by several pre-election public opinion surveys and political commentaries. All the indicators point to the AIADMK-led front, a formidable political combination that includes the Tamil Maanila Congress (TMC), the Congress(I), the two Communist parties, and the Pattali Makkal Katchi (PMK), not just winning decisively in Tamil Nadu, but sweeping the polls in a way familiar to those who have followed the 1991 and 1996 State Assembly outcomes. What is clear beyond the shadow of a doubt is that the pendulum has swung a long, long way from the conjuncture of circumstances that shaped the powerful anti-Jayalalitha wave in the last Tamil Nadu Assembly election.

Why and how precisely this has happened might be a matter of psephological and media discussion and conjecture for weeks to come, but the sharp swing of the pendulum is - a political fact. Given an electoral system that translates leads, especially sizable leads, in vote share disproportionately into seats, given the distinctive patterns of electoral fragmentation and alliance arithmetic in the State, and given the decidedly bipolar nature of the State-wide contest, a difference of anything in excess of ten percentage points between the vote shares of the two fronts means a clean electoral sweep for the favoured front.

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Why, under the circumstances, the AIADMK supremo took the legal-political route she did and suffered a significant setback to her own prospects of becoming Chief Minister of the State must remain a matter of conjecture. But political setback it is, even if Jayalalitha appears to have succeeded in converting the rejection of her nomination in four Assembly constituencies into some kind of sympathy factor among her committed mass following, and especially among women voters.

The legal problem Jayalalitha faced ever since her conviction and sentences in two cases, by a special court, in October 2000 was a formidable political obstacle in any case. She has been convicted of offences under the Prevention of Corruption Act and also some sections of the Indian Penal Code. She has been sentenced to jail terms of three years in one case and two years in another (these sentences are to run concurrently). Ever since her conviction, her political future has hinged on the appeals process. As expected, she appealed to the Madras High Court, which suspended her sentences and granted her bail in November 2000. Other criminal cases against the prospective Chief Minister, including the 'disproportionate wealth case', are in different stages of prosecution or investigation. All this has introduced a factor of great uncertainty in the State's politics.

Back to the wall, the AIADMK supremo has fought back determinedly. She has demonstrated, against the odds, that she is an important political leader on the national stage. In an excruciatingly protracted run-up to the State elections, when much was uncertain even about the shape of the two alliances, she kept everyone guessing. She promptly declared herself the next Chief Minister of Tamil Nadu and it seemed a credible enough declaration at the political level. Yet she delayed moving the Madras High Court for a stay of her conviction. Neither did she challenge in court the real legal obstacle in her path, the Election Commission of India's Order of August 28, 1997 on the subject of "Criminalisation of Politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding."

The particulars and legal-political significance of this Order have not received the informed public and media discussion they have warranted. In effect, the Order changed the law relating to 'Disqualifi-cation on conviction for certain offences', that is the application of Section 8 of the Representation of the People Act, 1951.

This section provides for disqualification of candidates to parliamentary and State Assembly elections on account of conviction for different categories of offences. Under sub-section (3) of Section 8, a person convicted of "any other offence" [that is, an offence not mentioned in sub-sections (1) and (2)] and sentenced to imprisonment for not less than two years shall be disqualified "from the date of such conviction and shall continue to be disqualified for a further period of six years since his release."

Prior to the Election Commission's Order of August 28, 1997 (which was crafted by Dr. M.S. Gill, the Chief Election Commissioner, and G.V.G. Krishnamurthy, then an Election Commissioner), persons who had been convicted of disqualifying offences under Section 8 but had gone on appeal were allowed to contest elections. Basing itself on the recent decisions of three High Courts - the Madhya Pradesh High Court, the High Court of Judicature at Allahabad, and the Himachal Pradesh High Court - and on a judgment by the Supreme Court, and noting that the country was facing "the serious problem of criminalisation of politics in which criminals, i.e., persons convicted by courts of law for certain offences, are entering into [the] election fray and contesting as candidates," the Election Commission introduced a radical change in the rules of the game. It came to "the considered view that the disqualification under section 8 of the Representation of the People Act, 1951 for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal [subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said section 8 of the Representation of the People Act, 1951]." In its Order, the Election Commission, invoking its powers of superintendence, direction and control of elections to Parliament and State legislatures vested by Article 324 of the Constitution, directed all returning officers, at the time of scrutiny of nomination, to "take note of the above legal position and decide accordingly..."

This was the major obstacle Jayalalitha faced in her ambitious and spirited drive for the chief ministership. In April 2001, she unsuccessfully moved the Madras High Court to get her convictions stayed so that she could contest. (While she got some consolation from the single Judge's non-binding view that "conviction and sentence are inseparable twins under the law," that "the moment the sentence is suspended, conviction is deemed to have been suspended," and that therefore Jayalalitha might not face disqualification, she failed to get the relief sought - suspension of the conviction.) Strangely, she did not challenge the validity or constitutionality of the Election Commission's Order of August 28, 1997. Eventually, her nomination filed in four constituencies (which also ran against a provision in the electoral law that limits a candidate to filing nominations in two constituencies per election) was rejected in all four by the returning officers.

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This means it is unlikely that Jayalalitha can be sworn in immediately as Chief Minister under the constitutional provision that enables an unelected person to be sworn in Minister, Chief Minister or even Prime Minister and given six months to be elected. Somebody else - almost certainly her nominee since the AIADMK leads the alliance, no question about that - can take the chair in the event of the AIADMK-led front winning the Assembly elections. Legally, given the bland, non-demanding wording of Articles 164(4) and 75(5) of the Constitution, the issue is arguable. Should a triumphant Jayalalitha or the legislators backing her press the demand for swearing her in as an expression of the people's will, the Governor of Tamil Nadu will find herself in a hot seat. It is even conceivable that Centre-State relations will come under strain. The democratic and best legal course open to the AIADMK supremo is frontally to challenge the Election Commission's Order of August 28, 1997 in the Supreme Court, among other things on the ground that the differential rules of the game that currently apply to sitting legislators vs other citizens are "hit by the vice of discrimination under Article 14 of the Constitution" (as one legal expert has put it).

After all, sub-section (4) of Section 8 of the Representation of the People Act, 1951 protects sitting legislators in a constitutionally as well as morally indefensible way: A disqualification under this section "shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."

Jayalalitha's not being an MLA at the time of her convictions was entirely fortuitous. She happened to lose at Bargur in the 1996 Assembly contest, else she would be protected from disqualification by the electoral law, just as Balakrishna Pillai has been in Kerala. The law continues to be an ass, at least in certain respects, and this represents both an obstacle and an opportunity for the once and future Chief Minister of Tamil Nadu.

Questions of legality

ERA SEZHIYAN cover-story

A small step for the Election Commission, but a great assault on Parliament and the judiciary.

THE rejection of the nomination papers of Jayalalitha in Tamil Nadu and the acceptance of the nomination papers of R. Balakrishna Pillai in Kerala have evoked varied reactions in political quarters. Irrespective of the success or failure of individuals and parties, the Order of the Election Commission introducing a new clarification for rejection of nominations, unless reversed, will have a lasting impact on the course of electoral process in the years to come.

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Section 8 of the Representation of the People Act (RPA) deals with disqualification of persons convicted under certain offences classified into three. The first category in Section 8(1) attracts disqualification for a period of six years on mere conviction itself without reference to the quantum of punishment therefor. In the second category of Section 8(2) where the sentence of imprisonment is not less than six months, disqualification is from the date of conviction and shall continue for a period of six years from the date of release. Section 8(3) provides that a person convicted of all other offences and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and shall continue to be disqualified for six years from the date of release.

These disqualifying provisions have been there in the Election Law since its inception in 1951. So far, the Supreme Courts has upheld the right to contest election by a person coming under one or other of the categories of Section 8 during the pendency of appeal. The judicial decisions have asserted that every step in appeal is part of natural justice. The general view has been that if a person is exonerated of his offence in the final decision of the appellate court, a rejection of his nomination, during pendency of appeal, will become irreversible. The case of Manni Lal v Parmai Lal (AIR 1971, SC 330) was about the acceptance of the nomination of a person convicted and sentenced to ten years. Parmai Lal was a candidate in the Uttar Pradesh Assembly election of 1969. The last date for nomination was January 9, 1969 and the date of scrutiny January 11. On the day of scrutiny, Parmai Lal was convicted by a trial court to ten years' imprisonment for offences under Section 148 (rioting with deadly arms liable for punishment upto three years) and Section 304 (homicide not amounting to murder liable for punishment of imprisonment for life or for a term of ten years). However, the returning officer accepted his nomination. Parmai Lal filed on January 16 an appeal in the High Court against his conviction in the criminal case. Polling took place on February 9 and Parmai Lal was declared successful on Febraury 11.

Manni Lal, one of the candidates, challenged the election, one of the grounds being that Parmai Lal was disqualified for being chosen as a member of the Assembly because of his conviction for more than two years. Before the High Court could give its judgment in the election petition, the conviction and sentence of Parmai Lal in the criminal case were set aside on appeal on June 30, 1969. The High Court in its judgment on October 27, 1969, in the election petition held that the acceptance of nomination was valid as acquittal had the effect of wiping out the conviction. In the appeal (AIR 1971, SC 330) by Manni Lal, the Supreme Court upheld the High Court decision stating: "In this case the High Court proceeded to pronounce the judgment on 27th October 1969. The High Court had before it the order of acquittal which had taken effect retrospectively from 11th January 1969. It was therefore impossible for the High Court to arrive at the opinion that on 9th or 11th February 1969, respondent was disqualified. The conviction and sentence had been retrospectively wiped out, so that the opinion required to be formed by the High Court to declare the election could not be formed. The situation is similar to one that could have come into existence if Parliament itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from 11th January 1969."

A similar view was taken in the Vidya Charan Shukla Case (AIR 1981, SC 547). V.C. Shukla had been convicted to two years' imprisonment in January 1979 in the criminal case relating to Kissa Kursi Ka; but his nomination for the parliamentary election was accepted in December 1979 by the returning officer citing the reason that an appeal was pending. Shukla got elected. In an election petition, the Madhya Pradesh High Court held that the nomination of Shukla was improperly accepted. Sukla went on appeal to the Supreme Court. Before the apex court pronounced judgment, Shukla's conviction was set aside in appeal. Following the Manni Lal case, the Supreme Court set aside the High Court decision and upheld Shukla.

Fortunately, the returning officers accepted the nominations in both the cases mentioned above on the principle of pendency of appeal. Suppose the returning officer had rejected the nomination of a person disqualified as on the date of scrutiny, and later the appellate court were to set aside the conviction and punishment. Then, the returning officer's decision would become irreversible and any appeal or application of the principle of acquittal wiping the conviction retrospectively will become infructuous. The Supreme Court in the Shukla case recorded its concern about the possibility of such an acquittal of a person by an appellate court while his nomination had been rejected by the returning officer on the basis of a trial court conviction.

In its order of August 28, 1997, the Election Commission has instructed the returning officers that the disqualification becomes operative from the date of the order of the trial court itself, "regardless of whether the person intending to be a candidate is out on bail or not". This is in blatant contradiction to the view hitherto taken by the Supreme Court and the practice followed by the Election Commission itself. The law has not been changed by Parliament and the decisions of the Supreme Court have not been reversed. The Election Commission has issued the impugned order under Article 324 of the Constitution. Article 324 reads: "The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of all elections to Parliament and to the Legislatures of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission.) This Article defines the functions of the Commission in the conduct of elections; but it does not confer any legislative power to the Commission in the matter of elections. It is Parliament and Parliament alone that has the exclusive power to legislate in all matters relating to all elections. This is made clear in Article 327: "Subject to the provisions of this Constitution, Parliament may from time to time make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House including the preparation of electoral rolls for securing due constitution of such House or Houses" (emphasis added).

Even otherwise, Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule in which Item No.72 provides thus: "Elections to Parliament, to the Legislatures of the States and to the Offices of President and Vice-President; Election Commission." Article 327 only amplifies Entry 72 with the inclusion of preparation of electoral rolls and delimitation of constituencies.

It is unmistakably clear that Parliament has the exclusive power to make laws and rules with respect to all matters relating to elections and that the Election Commission has no right to act as a super-Parliament or as a super-Supreme Court to issue orders supplanting the law made by Parliament and the law laid down by the Supreme Court. The Supreme Court has gone extensively into the limitation of the power of the Election Commission. In the case of Mohinder Gill v Chief Election Commissioner (1978 AIR, SC 851), Justice V.R. Krishna Iyer, speaking for the court, observed: "No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commission cannot defy the law armed by Article 324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Untouched power is alien to our system... Article 324 in our view operates in areas unoccupied by legislation and the words 'superintendence, direction and control' as well as 'conduct of all elections' are the broadest terms."

Another case arose when the Election Commission issued an order for the use of voting machines in the Kerala Assembly elections of May 1982. At that time, the election law provided only for ballot papers and ballot boxes. The Election Commission submitted a proposal to the government for the use of voting machines; but the government did not want to do so without studying the implications fully. Without waiting for a suitable amendment in the law, the Election Commission issued orders under Article 324 to use electronic machines. In the Parur Assembly constituency, voting machines were used in 50 out of the 84 polling stations. In the election, Sivan Pillai secured 30,450 votes against 30,327 votes by A.C. Jose. The defeated candidate filed an election petition and the trial court upheld the validity of the Election Commission's order and the use of the voting machine.

In the appeal preferred by A.C. Jose in the Supreme Court, it was argued on behalf of the Election Commission that the Commission being a creature of the Constitution itself, its plenary powers flowing directly from Article 324 will prevail over any Act passed by Parliament. It was contended that the power of Parliament under Article 327 relating to elections would be deemed to be subsidiary to the power of the Commission under Article 324.

Speaking for the court, Justice Murtaza Fazl observed: "If we were to accept the contention of the respondents, it would convert the Commission into an absolute despot in the field of election as to give directions regarding the mode and manner of elections bypassing the provisions of the Act and the Rules purporting to exercise powers under the cover of Article 324. If the Commission is armed with such unlimited and arbitrary powers, and if it ever happens that the person manning the Commission shares or is wedded to a particular ideology, he could by giving odd directions cause a political havoc or bring about a constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system" (AIR 1984, SC 921, Para 21).

In this case, the Supreme Court stipulated the limitation to the powers of the Election Commission: "To sum up, therefore, the legal and constitutional position is as follows:

(a) When there is no parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,

(b) Where there is Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Acts and Rules.

(c) Where the Acts and Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of elections and

(d) Where a particular direction by the Commission is submitted to the government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

Parliament, by means of the Representation of the People (Amendment) Act 1988, inserted a new sub-section for the use of machines in elections. Thus even a simple procedure to employ voting machines got legality only under the legislative power of Parliament, not under the power of the Commission armed with Article 324.

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It appears that the Election Commission failed to get statutory sanction or a verdict of the court to adopt the new procedure of disqualification. The Election Commission has published in July 2000 a collection of its 'Proposals on Electoral Reforms' to the Government of India from July 1998 to June 2000. In this publication it has reproduced a proposal given in the Chief Election Commissioner's letter dated July 15, 1998 to the Law Minister and reiterated in a letter dated November 22, 1999 to the Prime Minister regarding 'Criminalisation of politics'. The CEC has stated therein: "It is difficult to define as to who a criminal is. Under the jurisprudence, a person is presumed to be innocent unless proved otherwise and convicted by a court of law. Thus, in strict legal parlance, a criminal may be one who has been convicted by a court of law. But a common man perceives otherwise. In his eyes, a person who has been charged with certain types of offences and is under trial is also a criminal... The Election Commission has been devoting serious thought to this vital issue. In August 1997, it issued an order Article 324... The Commission also clarified that the conviction by the trial court itself is sufficient to attract disqualification... It is a small step forward in combating the situation, but has been greatly welcomed by the common people."

In the Foreword dated September 5, 2000 to the Report 'Elections in India - Major Events and New Initiatives 1996-2000', Chief Election Commissioner M.S.Gill said: "The country is concerned at the entry of what is popularly called criminal elements into the electoral fray. The Election Commission has made every effort to curb and control this phenomenon. It is to be remembered that the Commission can recommend but make no law. Only Parliament can... The Commission has made repeated recommendations, in all-party meetings, to leaders and in letters to successive Prime Ministers for amendments to this section, to make it more stringent, simple and easy to apply. Unfortunately, the Commission still waits for some amendments to be passed by Parliament."

Now the wily cat is out of the bag. The Chief Election Commissioner made recommendations for amendment of the provisions concerned and no response came from the government. Then the Commission proceeded to take the law into its own hands - to change the law made by Parliament and to defy the law as laid down by the Supreme Court. At the same time it is conscious that "the Commission can recommend but make no law. Only Parliament can."

In the case of voting machines in 1982, the order of the Commission issued under Article 324 invited harsh strictures from the Supreme Court. Further, in case of inaction or disapproval on the part of the government, the instructions of the Supreme Court are clear that "it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the government is not given."

It is evident that in formulating its own interpretation of a law made by Parliament and in defiance of the law as laid down by the Supreme Court, the Election Commission has again issued an order in August 1997 which is patently unconstitutional and illegal, and moreover dangerously undemocratic.

The Commission has no right to denigrate the judicial process and the 'legal parlance' and to deliver an atrocious declaration that "a criminal may be one who has been convicted of crime by a court of law. But a common man perceives otherwise." Then the question arises how to judge an accused as a criminal, by the judicial process or by the norms of the Election Commission. How does the Chief Election Commissioner know what the 'common man' perceives about the legal process?

In a democratic system, change of government is inevitable. Probably those in power may derive some satisfaction in the use of such draconian measures against those in the Opposition. They should not forget that the position may be reversed and that, pushed to the Opposition side, they may become targets of frivolous charges and criminal cases. On the other hand, we find that persons accused of serious offences, such as murder, kidnapping, dacoity, possession of explosives and arms, extortion, breach of peace, etc., are not only moving freely, but also contesting and winning election after election to the State legislature and to Parliament. One such typical case has been reported about the present Member of Parliament from Siwan constituency in Bihar against whom serious cases, about 30 in number, have been registered. If an accused has the protection of the party in power, then prosecution is lethargic and conviction at the trial court gets postponed indefinitely, with the net result that he or she will not face disqualification under Section 8. The objectives of eradication of corruption and exclusion of persons of criminality are indeed laudable, not only in the field of election, but in every other walk of life. If the procedure adopted to implement such a laudable objective is unconstitutional and undemocratic, the very purpose of the scheme will be irretrievably defeated.

Era Sezhiyan is Senior Fellow of the Institute of Social Sciences, New Delhi, and a former member of Parliament.

The disqualification debate

T.S. SUBRAMANIAN cover-story

The seeming discrimination in allowing R. Balakrishna Pillai to contest in Kerala while rejecting Jayalalitha's papers in Tamil Nadu emerges as the most contentious point in the disqualification debate.

IF the campaign in Tamil Nadu lacked dash and colour, there has been plenty of sound and fury over the disqualification of All India Anna Dravida Munnetra Kazhagam (AIADMK) general secretary Jayalalitha from contesting. Election platforms reverberated with the cut and thrust of arguments; newspapers discussed the Election Commission of India's Order of August 28, 1997, which virtually barred the former Chief Minister from contesting.

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Jayalalitha filed her nominations from four constituencies - Krishnagiri, Andipatti, Bhuvanagiri and Pudukottai. The Returning Officers rejected her nominations on two grounds. The first ground was that she has been convicted and sentenced to two years' and three years' of imprisonment in two cases of corruption against her, and so Section 8 (3) of the Representation of the People Act disqualifies her from contesting. The 1997 order states that disqualification under Section 8 of the RPA for conviction for offences mentioned in the Act "takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal..."

Her papers were rejected also on the ground that Section 33 (7) (b) of the RPA bars candidates from filing nominations from more than two constituencies.

Her disqualification to contest is a major obstacle to her being sworn in Chief Minister even if her party wins an absolute majority in the 234-member Assembly. The overwhelming legal opinion is that the Governor cannot have her sworn in Chief Minister even if a victorious AIADMK elects her as the leader of the legislature party unless the Madras High Court sets aside her conviction. Senior Advocate N. Natarajan, former Union Finance Minister and lawyer P. Chidambaram, former Tamil Nadu Law Minister and advocate S. Madhavan, and Janata Party president Subramanian Swamy argue that Jayalalitha cannot make use of the provision that allows a person who is sworn in Chief Minister to get elected within six months. Natarajan asked: "When the disqualification starts under the RPA from the date of conviction and continues for six years even after the person serves the sentence, how can she competently get elected? Even after six months, she suffers the same disqualification."

What has generated controversy is the seeming "discrimination" in the RPA which allows a sitting legislator like R. Balakrishna Pillai of the Kerala Assembly to contest, even though he has been convicted and sentenced to five years of imprisonment.

Jayalalitha was convicted and sentenced by P. Anbazhagan, Special Judge, Chennai, on October 9, 2000 to three years' rigorous imprisonment in the "Jaya Publications case", involving a deal for land of the State-owned Tamil Nadu Small Industries Corporation (TANSI) when she was Chief Minister from 1991 to 1996. In the "Sasi Enterprises case", the same Judge convicted and sentenced her to two years' rigorous imprisonment. Her close friend Sasikala Natarajan received similar sentences. The sentences were handed down to both under Sections 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by a public servant or banker, merchant or agent) of the Indian Penal Code (IPC), and Sections 13 (2) and 13 (1) (c) and (d) of the Prevention of Corruption Act.

Jayalalitha appealed to the High Court, which suspended the sentences and granted her bail in November 2000. But the High Court did not suspend the convictions. She filed writ petitions in April 2001 seeking suspension of the convictions so that she could contest the elections. She, however, did not challenge the Election Commission's order.

Section 8 (3) of the RPA says that "a person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2) ) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period six years since his release."

Section 8 (4) of the RPA states that "Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed by the court."

Section 33 (7) (b) of the RPA says that "Notwithstanding anything contained in sub-section (6) or in any other provisions of this Act, a person shall not be nominated as a candidate for election in the case of a general election to the Legislative Assembly of a State (whether or not held simultaneously from all Assembly constituencies) from more than two Assembly constituencies in that State." This provision was introduced in the RPA in 1996.

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So Jayalalitha cannot contest elections for a minimum of three years plus six (years after her release), unless the High Court sets aside her conviction. Jayalalitha was not a legislator when she was convicted in the two cases. She was defeated at Bargur in the 1996 Assembly elections.

In Kerala, the Returning Officer of the Kottarakara constituency accepted the nomination of Balakrishna Pillai, a former Kerala Minister, who was sentenced by a special court to five years' rigorous imprisonment in "the Edamalayar case". The Kerala High Court had suspended the sentence but not the conviction. The Returning Officer said he accepted the nomination after studying Section 8(4) of the RPA and a Calcutta High Court judgment. The Supreme Court had not taken any decision on the Section till date, he said. As a sitting MLA, Balakrishna Pillai was entitled to enjoy the benefit of Section 8(4) of the RPA, he said.

JAYALALITHA quickly alleged that "an injustice" had been done to her. She said officials in Kerala were not forced to reject the nomination unlike in Tamil Nadu where, she alleged, Chief Minister M. Karunanidhi had "threatened" officials. She also alleged that her papers were rejected to pave the way for Chennai Mayor M.K. Stalin to succeed his father Karunanidhi as Chief Minister.

Harkishan Singh Surjeet, general secretary, Communist Party of India (Marxist), which is an ally of the AIADMK, alleged that "two different standards" had been adopted. He wondered whether "sitting MLAs are allowed" to commit crimes. He, however, did not blame the Dravida Munnetra Kazhagam (DMK) government for the rejection of Jayalalitha's papers.

Karunanidhi said he was not happy over the rejection of Jayalalitha's nominations. "The law had done its duty," he said. He stoutly denied that his government had interfered in the rejection. "In a democratic battle, I want to take on the enemy face-to-face. I don't want to fight the enemy after tying his hands." Besides, Karunanidhi asked: "If the enemy has willingly trapped herself (by filing her nominations from four constituencies), how can I be held responsible for it ?"

The controversy subsided when Chief Election Commissioner Dr. M.S. Gill on April 30 concurred with the decisions taken by the Returning Officers both in Tamil Nadu and Kerala. He said the Election Commission's order of August 28, 1997 had legal backing and the returning officers had correctly interpreted it. The law was "clear" on the exemption given to sitting MLAs like Balakrishna Pillai. Section 8 of the RPA had been upheld by two separate orders of the Madras High Court in April this year, he said.

The subject of the Election Commission's Order dated August 28, 1997, No.509/Disqln./97-J.S.I., was "Criminalisation of politics - participation of criminals in the electoral process as candidates - disqualification on conviction for offences - effect of appeal and bail - regarding." It pointed out that "the country was facing the serious problem of criminalisation of politics in which criminals, i.e., persons convicted by courts of law for certain offences, are entering into election fray and contesting as candidates." The Order, however, pointed out that "Section 8 of the Representation of the People Act, 1951, lays down the conditions under which a person would be disqualified on grounds of conviction for contesting the elections to the Parliament and Legislature of a State..." The Order quoted from the judgments of High Court and the Supreme Court that convicted persons should not be allowed to stand in the election.

The six-page Order said, "Now, therefore, the Election Commission has, after taking due note and paying due regard to the above judicial pronouncements of the Hon'ble Supreme Court and the Hon'ble High Courts, come to the considered view that the disqualification under Section 8 of the Representation of the People Act, 1951 for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal (subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said section 8 of the Representation of the People Act, 1951).

"Accordingly, the Election Comm-ission, in exercise of its powers of superintendence, direction and control of elections to Parliament and State Legislatures vested by Article 324 of the Constitution, hereby directs that all the Returning Officers, at the time of scrutiny of nominations, must take note of the above legal position and decide accordingly about the validity or otherwise of the candidature of the contestants disqualified under the said section 8 of the Representation of the People Act, 1951."

M.S. Gill and then Election Commissioner G.V.G. Krishnamurthy reportedly drafted the Order. Gill himself said on April 30 that the Order had quoted extensively from three judgments of the Madhya Pradesh, Allahabad and Himachal Pradesh High Courts. "The Himachal Pradesh High Court (order) was upheld by the Supreme Court. There is no case in which any other court has taken an opposite view", Gill said.

The Order changed the legal position overnight because, according to Era Sezhiyan, former Member of Parliament, "until August 1997, the Election Commission followed the procedure that a person, convicted under one or other of the statutory provisions of disqualification and released on bail during the pendency of his appeal, is not disqualified from contesting an election." (The Hindu, April 30, 2001). "I strongly feel that there is no legal validity" for the Order, Sezhiyan said. He added, "If a change in the law or its application is to be made, it can be done only by Parliament by amending the provisions involved or by the court by its interpretation and decision." While it was true that for the conduct of free and fair elections, the Constitution and the Election Law have vested the Election Commission with enough powers, there was a limitation under Article 324. "The order of August 1997 is illegal and invalid; it is a clear case of arbitrary action and of deliberate defiance of Parliament and the Court," he said.

V. Ramaswami, former Supreme Court Judge, writing in The Hindu on April 10, 2001, said it was "doubtful" whether the Election Commission could give a direction under Article 324 "which (the direction) interferes or has the tendency to interfere with the decision of the Returning Officer who has to exercise his independent judicial mind in the determination of the question on disqualification." Ramaswami spoke about the "vice of discrimination" in Section 8 of the RPA. He argued that if Section 8 (4) of the RPA "is construed as treating differently a person who has been convicted, with reference to his position as a Member of Parliament or legislature of a State from others who are not, then it may be hit by the vice of discrimination under Article 14 of the Constitution."

The Election Commission came into the picture in deciding the validity of Jayalalitha's nominations after Justice Malai. Subramanian of the Madras High Court stated that "there may not be any disqualification" for Jayalalitha to contest the elections even as he dismissed her two writ petitions seeking suspension of her convictions so that she could be a candidate. On her apprehension that should she be disqualified her statutory right to contest would be affected, the Judge said: "All these aspects have to be placed before the Election Commission and not before this court."

Earlier, appearing for the State, N. Natarajan, Senior Public Prosecutor in the corruption cases against Jayalalitha, contended that the spirit of the RPA's disqualification clauses was that persons convicted for criminal offences should not be allowed to be candidates in elections. Natarajan said that no distinction should be made between political public servants and bureaucratic public servants insofar as the conviction was under the Prevention of Corruption Act because the interest of purity of administration should prevail over any other consideration.

P.P. Rao, Senior Advocate and counsel for Jayalalitha, quoted from the orders of the Supreme Court and High Courts which said that the courts had the power to suspend conviction under the Code of Criminal Procedure if the damage that one would suffer would be irreversible in case he or she succeeded in appeal. The Supreme Court had said the presumption of innocence should prevail throughout the period of appeal (Frontline, May 11, 2001).

On April 24, when nominations were scrutinised, there was fear of violence but Jayalalitha instructed the AIADMK cadres to stay calm. The Returning Officers for Andipatti, Bhuvanigiri, Krishnagiri and Pudukottai, S. Jaya, P. Santhanam, M. Mathivanan and E. Kandasamy respectively, rejected Jayalalitha's nominations either because, under Section 8 (3) of the RPA, her disqualification started from the date of conviction by the trial court or because she filed her nominations from four constituencies or on both the counts.

The Returning Officers rejected arguments from Jayalalitha's counsel including Siddharth Shankar Ray, V. Ramaswami, N. Jothi and K. Malaisamy that the High Court had suspended her sentence and so the Election Commission's Order did not hold good. Jothi and Malaisamy argued that a candidate could file nominations from more than two constituencies but reserved the right to contest in two.

Subramanian Swamy, election agent for V.S. Chandralekha, who had filed her nominations from Andipatti, highlighted three points before the Returning Officer. The first was that Jayalalitha had admitted in her nomination of her being convicted under the PCA for two years (and three years). This attracted Section 8 (3) of the RPA and implied her disqualification from contesting. The second point was that since the Returning Officers were subject to the control, superintendence and discipline of the Election Commission, they should comply with its Order. The third was that the Madras High Court had dismissed her petition seeking a stay on her conviction. Besides, she had never challenged the validity of the Election Commission's Order.

Chidambaram also said there was no way Jayalalitha could become Chief Minister. The convention was that a Minister or a Chief Minister against whom the police filed a charge-sheet would resign. Former Union Minister Sedapatti R. Muthiah and former Bihar Chief Minister Laloo Prasad Yadav resigned under similar circumstances. Chidambaram said: "There is no precedent for a person convicted and sentenced by a court to be sworn in Chief Minister. I have every faith that the Tamil Nadu Governor will respect the Constitution." It was not possible for the Governor who gave the sanction to the State government to prosecute Jayalalitha in the corruption cases to invite her to form the government, Chidambaram said.

Subramanian Swamy said the rule that one should get elected to the legislature within six months of becoming the Chief Minister was applicable only to those who were not disqualified from becoming a member of the legislature.

Former Law Minister S. Madhavan said: "It may be political chicanery to claim that a person barred by the RPA to contest the election can be sworn in Chief Minister. But it will be ruinous for democratic governance." Madhavan said Jayalalitha had filed nominations from four constituencies even after giving an undertaking before the Returning Officer that she had not filed nominations from more than two.

When asked about the "discrimination" in the RPA between a sitting MLA or MP, and others, Natarajan said the Election Commission was a constitutional body which took decisions on the basis of the Constitution to maintain purity in elections. It interpreted laws, expressed its views and directed its officers uniformly. So one did not have the right to say that this was wrong or one-sided. If any party was genuinely aggrieved over its views, that party should necessarily seek clarification from a court of law. Without doing that, it was not good in democracy to criticise the Commission.

According to Natarajan, lawmakers decided on the qualification and disqualification in an enactment. The object of Section 8 (3) of the RPA was there in the object and reasons of the Act itself, which said that criminalisation of politics should be avoided. "No one till today can say it is wrong. But Section 8 (4) is meant for a totally different situation. It gives weight to the will of the people because it comes into play after a person gets elected to the Assembly or Parliament, and his becoming guilty of a crime after that."

Natarajan added: "If it is felt now that such a person should be immediately disqualified, it is for the people to make proper amendments to that section. In the absence of this, the Election Commission's hands are tied. It has to go by the law that is available."

The law and the Order

Legal experts raise questions about the validity of the Election Commission's Order on disqualification and see certain incongruities with regard to the powers of the Returning Officers in this context.

DID the Returning Officers (R.Os) concerned err in rejecting the nomination papers of All India Anna Dravida Munnetra Kazhagam general secretary Jayalalitha in four constituencies in Tamil Nadu while those of Kerala Congress(B) leader and former Minister R. Balakrishna Pillai were accepted in Kottarakkara constituency in Kerala? Chief Election Commissioner M.S. Gill has endorsed both decisions, saying that the Election Commission's (E.C.) Order issued in August 1997 had legal backing and that the R.Os had interpreted it correctly. While Jayalalitha attracted disqualification under Section 8(3) of the Representation of the People Act (RPA), 1951, Balakrishna Pillai derived benefit from Section 8(4) of the Act. According to Gill, Section 8(4) says that conviction against a Member of Parliament or a Member of the Legislative Assembly gets postponed for three months from the date of the trial court order, and once an appeal is filed disqualification does not come into effect till the disposal of the appeal.

The acceptance of Balakrishna Pillai's nomination has been challenged in the Kerala High Court. Whatever the outcome of this case, observers see certain incongruities in this context with regard to the R.Os' powers.

First, there is lack of clarity about the contents of the E.C.'s Order of 1997. Legal experts, for instance, pointed out that the Order suffers from insufficient phraseology. Its operative part says: "The disqualification under Section 8 of the Representation of the People Act, 1951, for contesting elections to Parliament and State Legislatures, on conviction for offences mentioned therein, takes effect from the date of conviction by the trial court, irrespective of whether the convicted person is released on bail or not during the pendency of appeal (subject, of course, to the exception in the case of sitting members of Parliament and State Legislatures under sub-section (4) of the said Section 8 of the Representation of the People Act, 1951)."

The Order is silent about suspension of sentence by an appellate court. Suspension of sentence amounts to a stay and it appears that there have been occasions when courts have granted bail to convicted persons without suspending the sentence. It is argued that since Jayalalitha has secured, by means of a stay order, the suspension of the sentence imposed by the trial court, the E.C.'s Order may not strictly apply in her case.

However, since the Order cites three High Court judgments to assert that suspension of sentence alone is not sufficient to prevent disqualification, it could well be suggested that the operative part of the Order should be understood in the context of the court rulings cited in it. A convict who has secured bail could argue that his sentence also stands suspended, but a convict who has secured a suspension of sentence through a stay order appears to be on a stronger wicket.

For Section 8(3) of the RPA to be invoked against a person, it is necessary that he or she should have been convicted and sentenced to imprisonment for not less than two years. Some legal experts suggest that if the sentence is dormant because of a stay order secured from an appellate court, Jayalalitha may be right in arguing that Section 8(3) could not be invoked against her. P.P. Rao, a senior lawyer, argues that if sentence is suspended, conviction does not come into operation. Conviction minus sentence is an inconsequential finding, he says. According to him, Justice Malai Subramanian's 'inconsistent' judgment (dismissing Jayalalitha's writ petition in the Madras High Court seeking suspension of her conviction in two corruption cases) has perhaps resulted in the R.Os' decision against Jayalalitha. (P.P. Rao appeared in the Madras High Court in the case on behalf of Jayalalitha.)

The chief culprit in this controversy, according to senior lawyer Rajeev Dhavan, is the E.C.'s Order. He says: "It is not a detailed circular. It treats the grant of bail and suspension of sentence as two sides of the same coin, which I consider is inexactitude of phraseology. The E.C. must have been absolutely clear about its stand. If the Returning Officer has to decide, then it should have said so, and refrained from issuing this circular."

Experts raise the following questions: If R.Os are quasi-judicial officers according to the E.C., why do they need this Order? In that case, can the E.C. issue administrative directions to R.Os? In the absence of the Order, can R.Os not interpret the relevant provisions in the RPA and enforce them?

In its order the E.C. has cited the Allahabad High Court's judgment in the Sachindra Nath Tripathi vs Doodnath case. A reading of the judgment shows that the criticism of the E.C.'s Order is not entirely without legal merit. Doodnath was convicted by the trial court for offences under Sections 302 and 307 of the Indian Penal Code and was on bail during the period of the election. While declaring his election to be void, the High Court said: "The disqualification, which is an automatic effect of conviction, springs up right at the time of pronouncement of conviction, which finding is yet to be reversed or set aside... It is to be seen as to what is the effect of the bail granted to the respondent before the date of filing the nomination paper. If no bail is granted and the execution of the sentence is not suspended by the stay orders then the accused will remain in jail and the only effect of granting bail is that he is released from the confinement. Grant of bail does not interfere with the finding of conviction and that cannot render the disqualification automatically emerging from conviction inoperative."

The E.C.'s Order also cites the Supreme Court's judgment in the Rakesh Singha case. Although the Supreme Court dismissed Singha's appeal against the Himachal Pradesh Court's ruling (in Vikram Anand vs Rakesh Singha, etc.) that Singha's election was void in view of his conviction in a criminal case, it did not dismiss Singha's election appeal. A careful reading of the Supreme Court's judgment, say experts, shows that it was Singha's counsel who withdrew the election appeal, conceding that it became irrelevant in view of the dismissal of his appeal in the criminal case. But the E.C.'s Order says that the Supreme Court "dismissed the election appeal holding that Shri Singha was disqualified ab initio for contesting election under Section 8(3) of the RPA, 1951." However, experts point out that the Supreme Court did not use the expression ab initio, and indeed, had no occasion to consider Singha's election appeal, which was withdrawn by his counsel. Therefore, the E.C.'s claim about the disqualification of Singha under Section 8 (3) of the RPA appears to be the result of an oversight and, perhaps, a wrong impression.

Some analysts point to the E.C.'s failure to consider the Supreme Court's judgment in the V.C. Shukla case. The E.C.'s Order cites the Madhya Pradesh High Court judgment in Purshottamlal Kaushik vs Vidya Charan Shukla, declaring as void Shukla's election to the Lok Sabha in 1980 in view of his conviction in a criminal case. The court held that the R.O. must depend on facts as they existed on the date of scrutiny of nominations to decide the validity of the nomination and that the R.O's acceptance of Shukla's nomination was wrong. However, by the time Shukla's election appeal was heard by the Supreme Court, he was acquitted in the criminal case on appeal. Applying the 'doctrine of relation back', the Supreme Court held Shukla's election to be valid.

Although the Supreme Court did not consider whether the suspension of sentence would stop disqualification, this judgment is considered relevant. According to P.P. Rao, the judgment shows that if the appeal of one who is convicted - whose nomination stands rejected by the R.O. - is allowed by the superior court, then disqualification would mean an irreparable loss. There is another scenario: the R.O. accepts the nomination of a convict who has filed an appeal and the convict wins the election; if the appeal is dismissed, then it could result in disqualification, necessitating a byelection. In such a case, disqualification would not mean an irreparable loss.

According to P.P. Rao, the offences covered by Section 8(3) of the RPA were not considered very serious by the law-makers and that was why they were not included under Section 8(1) or Section 8(2). Under Section 8(1), mere conviction is sufficient for disqualification, and under Section 8(2) conviction and sentence up to six months' imprisonment would attract disqualification. According to P.P. Rao, if Section 8(4) gives immunity from disqualification for sitting MPs and MLAs if they have appealed against their conviction and till the case is disposed of, the law-makers would not have intended to deny the benefit of suspension of sentence to a non-legislator who might have been convicted by a trial court. He does not think that the spirit of Section 8(4) is to give protection to the current term of a legislator facing conviction, and not to help him or her contest an election. He said: "The language of this sub-section does not suggest that. It gives unqualified immunity for the first three months, and extends it till the appeal, filed within those three months, is disposed of. It could be appeal or application for revision in respect of conviction or sentence. The intention of the law-makers is clear. Under the rule of law, presumption of innocence continues till the appeal is disposed of. Hence, how can you disqualify a person during the interregnum, and inflict a punishment? It could be defective wording, but there is need to reconcile Section 8(4) and 8(3) of the RPA in order to avoid a serious anomaly."

If Jayalalitha is indeed aggrieved by the E.C.'s Order, why has she not challenged its legal validity? According to some observers, she tried to interpret the Order in her favour through her counsel. It is argued that her problems do not stem from the Order, but from the manner in which it is sought to be implemented. As the Order is not a "binding" document, her plea to the R.Os was to ignore the Order, which "directed" them to decide the validity of her candidature in the light of what the E.C. had vaguely found as the legal position. The R.Os were apparently not convinced by her argument that they should, according to the R.Os' manual/handbook of 1998, reject a nomination only if there was a clear case of disqualification. Even if there was the slightest doubt on this, they should accept the nomination. An "improper rejection", counsel for Jayalalitha argued, would have serious consequences.

If the AIADMK wins a majority of seats in the Assembly elections, the Governor would be faced with a ticklish situation. It is not clear whether the Governor can invite Jayalalitha to form the government but there seems to be no legal impediment to her being sworn in Chief Minister. Experts say that whatever the post-election scenario, Jayalalitha could legally challenge the rejection of her nomination. If her appeal against conviction is allowed in the meantime, she can contest again.

'Jayalalitha can create good conventions'

cover-story

Frontline met Cho S. Ramaswamy, Editor of the Tamil weekly Thuglak, to get his views on the issue of Jayalalitha's disqualification. Excerpts from the interview he gave T.S. Subramanian:

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You said recently that there was no legal bar on Jayalalitha being sworn in Chief Minister. But you also pointed out that Union Ministers Sedapatti R. Muthiah or Bihar Chief Minister Laloo Prasad Yadav had to resign when charges were framed against them.

The Constitution has not laid down that only persons who are not disqualified on the date of the Governor's invitation can become Chief Minister. In the Article empowering the Governor to invite a person to take office as Chief Minister, the Constitution could have said the person so appointed by the Governor shall on the date of such invitation be one who does not suffer any disqualification as prescribed in law. It has merely said the Governor will appoint the Chief Minister and if the person concerned does not become a member of the Assembly in six months, he will lose the post.

Let us look at it in an academic way. A person has been convicted and sentenced to two years imprisonment and has been disqualified to contest the elections. But if the MLAs of the majority party elect that person as their leader, and that person stakes claim to form the government, can the Governor say, "I don't see any chance of your becoming an MLA"? The higher court may turn aside the lower court's judgment or it can reduce the sentence to less than two years or it could grant a stay on the conviction. Any one of these eventualities will enable the person to contest a byelection. How can the Governor anticipate the judgment of the appeal court and say, 'No, I don't think any court will allow your appeal'?

Supposing the appellate court does not turn aside the conviction within six months...

He or she will lose the office (of chief ministership).

Take a hypothetical situation. Now 234 members (the strength of the Tamil Nadu Assembly) are elected and the Assembly is full. There is no vacancy. But the majority party chooses a person from outside the Assembly to lead them. Can the Governor say, 'I see no possibility of your becoming an MLA because all seats are filled'? (If) the Governor can tell a person in the earlier instance that there is no possibility of his appeal being allowed, the Governor can say now in this context that he sees no possibility of a seat falling vacant. What is the guarantee that one person will resign? Why should the Governor administer the oath of office to someone from outside the Assembly when all the seats are filled and there is no possibility of anybody getting elected?

Supposing the Governor wants to go into the morality of the entire issue, the Governor has to take this into consideration. The Representation of the People Act allows a sitting MLA or member of Parliament to contest the election and become an MLA or MP even if he or she has been subjected to a conviction and sentenced to imprisonment. Such a person can now become Chief Minister because he is qualified to contest. There is no disqualification attached to him or her. You take the case of Balakrishna Pillai in Kerala. Supposing he had been in Tamil Nadu. He does not contest the election but he is still qualified under the Representation of the People Act (to contest the election) because he is a sitting MLA. Can he stake his claim?

To become the Chief Minister?

Yes, to become the Chief Minister. The Governor cannot tell him, 'You are disqualified.' He is qualified under the exemption given under Section 8 (4) of the Representation of the People Act. So where is the morality in that? A sitting MLA in an Assembly can contest the election, or even without contesting the election, he is qualified and can become the Chief Minister. But a person who is not an MLA, if he gets convicted, cannot stake his claim. What is the morality in this?

Going into conventions, persons against whom charges have been framed have had to vacate their office. Laloo Prasad Yadav had to go. Sedapatti Muthiah was asked to go. There are several such instances. If that is so in the case of persons against whom there is no conviction as yet, the same should apply to the person already convicted. But as per this convention, it cannot apply to a person who has been convicted and held to be disqualified under a statute.

Unless and until that conviction is stayed and acquittal obtained, that person cannot assume office as per convention. But will these conventions be accepted as law or not? The courts have not so far given an opinion on this matter. The courts have not so far said the persons against whom charges have been framed cannot continue as Minister or Chief Minister. The matter has not so far reached the courts.

The conventions are political conventions. But depending on the attitude of the judge who hears such a case in future, it may be held that the Constitution should not be interpreted in a manner that will lead to absurdities because political conventions have been built in such a way that even persons facing charges cannot hold office. That convention must be accepted, and he may decide the case accordingly, saying that it is the spirit of the Constitution. Or a different judge may say that he can only go by what the Constitution has explicitly stated. Since the Representation of the People Act allows a sitting MLA to get elected and become the Chief Minister even while facing a sentence of more than two years, there is no reason why a person who has gone in appeal against his conviction should not assume office. That may the view of another judge. It all depends on the attitude the judge takes.

But in my opinion, no law should be interpreted in such a manner that it will lead to absurd conclusions. The conclusion that a convicted person cannot become an MLA but can become a Chief Minister should not be read into the law because it will not be a good precedent. So in my opinion Jayalalitha will be well advised to opt out of the race for chief ministership even if she wins majority and thereby help create good conventions. The letter of the law is in her favour. But it will be better if she acts in favour of creating good conventions.

A fierce fight

T.S. SUBRAMANIAN cover-story

In one of Tamil Nadu's most bitter electoral battles, neither do adverse findings by pollsters fail to unnerve the Dravida Munnetra Kazhagam workers nor does Jayalalitha's disqualification dampen the spirit of her party's cadre.

THERE is no wave or visible anti-incumbency sentiment, nor is there any big issue that apparently affects the daily lives of the people in Tamil Nadu. Yet the elections to the State Assembly to be held on May 10 are the most fiercely fought in recent times.

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The main contenders are the National Democratic Alliance (NDA) headed in the State by the ruling Dravida Munnetra Kazhagam (DMK), and the front led by the All India Anna Dravida Munnetra Kazhagam (AIADMK) and comprising the Congress(I), the Tamil Maanila Congress (TMC), the Pattali Makkal Katchi (PMK) and the Left parties. The separate presence of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) makes it a triangular fight as it were.

The important developments during the run-up to the elections have been the rejection of nominations filed by AIADMK general secretary and former Chief Minister Jayalalitha in four constituencies and the sharp polarisation of voters on caste and even linguistic lines. The rejection of Jayalalitha's nominations in Andipatti, Krishnagiri, Bhuvanagiri and Pudukottai constituencies led to strong exchanges between NDA leaders and Jayalalitha.

The nominations were rejected on two grounds. One was that she had been convicted and sentenced to two years' and three years' rigorous imprisonment by a Special Judge in October 2000 in two cases of corruption, and the second was that she had filed nominations from more than two constituencies. According to Section 8(3) of the Representation of the People Act (RPA), a person convicted and sentenced to imprisonment of not less than two years shall be disqualified (from contesting the elections) from the date of conviction and shall be disqualified for another six years after release. Section 33(7)(b) of the RPA, introduced in 1996, states that "a person shall not be nominated as a candidate... from more than two Assembly constituencies in that State."

If DMK president and Chief Minister M. Karunanidhi and his allies were careful not to make too much of the rejection of her nominations, Jayalalitha concentrated on whipping up public resentment on the issue and capitalising on the resultant sympathy. She branded it "the victorious culmination of five years of conspiracy". She asserted that she is the chief ministerial candidate of her secular front.

Karunanidhi explained that the law took its course in her case. He pointed out that her nominations had been rejected under the Election Commission of India Order dated August 28, 1997, which directed Returning Officers to decide the validity or otherwise of the nominations of contestants disqualified under Section 8 of the RPA. Karunanidhi asked: "When the law does its duty, how can it generate any sympathy wave?" He added: "To be frank, I am not happy over the rejection of her papers. In a democratic battle I want to take on the enemy face to face. I don't want to fight the enemy after tying up his/her hands. But if the enemy has willingly trapped herself, how can I be held responsible for it?"

JUST as the opinion polls published by a section of the press predicting a sweep for the AIADMK-led front have not unnerved the DMK and its partners, Jayalalitha's disqualification has not dampened the fighting spirit of AIADMK cadres. At Tiruverumbur in Tiruchi, T. Arivazhagan, a 50-year-old DMK functionary said: "The poll surveys will only galvanise us further. We will win a simple majority." At Tirumangalam, an AIADMK stronghold near Madurai, a shopkeeper said the party's cadres "have risen with fervour" and there was a "mountain of sympathy for Amma."

The Tamil Nadu Assembly has 234 seats. The DMK-led front is a conglomeration of 18 parties. The DMK is contesting from 167 constituencies and its principal ally, the Bharatiya Janata Party, in 21 constituencies, on its lotus symbol. Nine other parties (the Puthiya Tamizhagam, a Dalit-based political party; the MGR ADMK; and caste-based parties such as the Makkal Tamil Desam, the New Justice Party and the Kongu Nadu Makkal Katchi) are contesting on their symbols from 30 constituencies. Six parties are contesting on the DMK's rising sun symbol in 16 constituencies. These include Dalit Panthers (eight seats).

The AIADMK has fielded candidates in 141 constituencies, the TMC in 32, the Congress(I) in 15, the PMK in 27, the Communist Party of India (Marxist) and the Communist Party of India (CPI) in eight each, and the Indian National League, the Forward Bloc and the Tamizhaga Munnetra Kazhagam in one each.

The MDMK, headed by Vaiko, is contesting as many as 213 seats. The party, which pulled out of the NDA in the State but continued in the government at the Centre, has not fielded candidates in the remaining 21 constituencies that are contested by the BJP.

IN spite of the bitterness, the campaign has largely lacked punch, partly because elections have come to be held all too frequently. Another factor is the Election Commission's strict monitoring of the code of conduct, which bars parties from using for graffiti the compound walls of government-owned buildings, or private buildings if the owners objected. Workers of the DMK erased the 'rising sun' symbols painted on the long wall of the government-run Queen Mary's College in Chennai. There was virtual inactivity as this correspondent drove around Villupuram, Panruti, Nellikuppam, Sivakasi, Kovilpatti and Tirunelveli constituencies. But where political heavyweights such as K. Kalimuthu of the AIADMK (Tirumangalam), K.K.S.S.R. Ramachandran (Sattur), R. Karuppasamy Pandian (Tenkasi) and Minister K. Ponmudi of the DMK (Villupuram) are in the fray, the campaign is high-profile and colourful.

There are no public meetings at night, and long-winded speeches are out. The stress is on personal contact through door-to-door campaign. At Sattur, Ramachandran was going round Anna Nagar in an open jeep, promising voters implementation of the Irukkangudi water scheme. At Tirumangalam, AIADMK women cadres were doing intensive door-to-door campaign for Kalimuthu, who is recovering from a heart surgery. At Chepauk, Chennai, where Karunanidhi is in the fray, the DMK volunteer force, led by State secretary Nanjil R. Kennedy, went round the narrow bylanes, canvassing votes. Kennedy said, "We are not bothered by poll surveys. I have gone all over the State and I know the people's mood."

Travelling in vans, Karunanidhi and Jayalalitha adopted different campaign styles. Karunanidhi often stepped out of the van to climb a podium and address big gatherings. The speeches - the candidate spoke first, and then Karunanidhi - were short. In villages, Karunanidhi would cite the prices of essential commodities when Jayalalitha was Chief Minister from 1991 to 1996 and compare them with the lower prices since 1996. The skilled orator that he is, Karunanidhi varied the tenor and content of his speeches. A point he highlighted was his government's achievements: competing with Maharashtra, Tamil Nadu had reached the first place in attracting industrial investments; the State had the largest pool of software engineers; his government had framed a separate policy for Information Technology; it had set up software parks; Tamil Nadu stood first in controlling AIDS, infanticide and polio; and so on.

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Never getting out of her van, Jayalalitha addressed wayside gatherings, often reading out prepared speeches. She spoke about the plight of weavers, peasants and construction workers under the DMK government. She alleged that illicit liquor flowed everywhere and that terrorism and secessionism had struck roots in the State in the past five years. She charged Karunanidhi with paving the way for dynastic rule by grooming his son and Chennai Mayor M.K. Stalin as his successor. She drew massive crowds at Pollachi, Udumalpet and Madathukulam, almost wherever she went, in Coimbatore district. Women demonstrated their affection for her by stepping up to her van and offering a tender coconut here and guavas there, besides performing the traditional "arati".

After April 24, the rejection of nominations dominated the campaign. As the news reached her at Tirupattur in Sivaganga district, Jayalalitha stepped out of her van and climbed on an open jeep. Quoting from a song from a film featuring AIADMK founder and actor M.G. Ramachandran, she said, "Let people there (in the rival camp) laugh with arrogance. But on the day of the verdict, we shall know who is going to laugh and who will weep." She alleged that pressure was brought on the Returning Officers to reject her nominations.

The Chief Minister, answering her allegations, said his government filed cases against her because in the 1996 elections people had given his party the mandate to punish the corrupt. He accused her of having consciously filed nominations from four constituencies.

WHAT many voters find disturbing is the DMK aligning itself with caste parties, which is contrary to the party's basic principle of fighting casteism. Among its allies are the New Justice Party claiming to represent Mudaliars, the Makkal Tamil Desam (Yadavas), the Kongu Nadu Makkal Katchi (Gounders), the Mutharaiyar Sangam (Mutharaiyars), the All India Moovendar Munnetra Kazhagam (Mukkulathor) and the Tamizh PMK (Vanniyars). Interestingly all these parties are of recent origin.

On the National Highway between Tirumangalam and Sattur, a labourer belonging to a group strengthening the road asked:

"Why should Karunanidhi tie up with caste parties?" At Tiruppur municipal colony peopled by Dalits, B. Eswaran, a young hosiery worker, was angry that the DMK had joined hands with the caste parties. Although a Dalit himself, he argued that Puthiya Tamizhagam and Dalit Panthers were also caste parties. N. Rajesh, his friend, asked, "How can Tirumavalavan join hands with the BJP, which is against Dalits?" Eswaran added, "Dalits are angry that they have been made a vote-bank for the BJP."

But Lakshmi and Pandiammal, Yadava women who had reached Sembar village near Usilamaptti, herding their goats from Kadaladi, did not hesitate to say that they would vote for "udaya sooriyan" (rising sun, the DMK's symbol) because "our leader (S.) Kannappan", founder of the Makkal Tamil Desam, had aligned with the DMK. Sekar, son-in-law of Pandiammal, said, "My 'iyah' (father) and I have been voting for AIADMK only. But I will vote for the DMK this time because of the 'koottani' (alliance)".

Similarly, a big chunk of Dalit votes will transfer to the DMK because of its alliance with Puthiya Tamizhagam and the Dalit Panthers. As the Frontline team drives from Ettaiyapuram and enters Kakkarampatti, a board says: "Puthiya Tamizhagam welcomes you." This is the heartland of the party in the Ottapidaram (reserved) constituency, from where its founder Dr. K. Krishnasamy is contesting. His opponent is A. Sivaperumal of the AIADMK. Krishnasamy, a medical practitioner, is contesting also from Valparai.

Ottapidaram is a sensitive constituency where the animosity between Mukkulathors and Pillais on one side and Dalits on the other run deep. Police jeeps ply up and down the constituency. Fear hangs over Ottapidaram itself, a big village. Men are afraid to talk. They claim that it is difficult to predict the outcome. The police, however, feel that any violence that would break out here this year would be of a small scale compared to what happened in 1996, when Dr. Krishnasamy was elected.

At nearby Rangarajapuram, Chellaiah, a Dalit, said Puthiya Tamizhagam supporters would vote for DMK candidates, but DMK voters would not vote for Puthiya Tamizhagam candidates (because most of the former are caste Hindus)".

Dalits are clearly disenchanted with the mainstream political parties. When Puthiya Tamizhagam and the Dalit Panthers were founded, they were thrilled because "men belonging to our own community have raised their flags." Even elderly Dalits, who were with the DMK or the AIADMK for decades, jumped on to the bandwagon. More than men, women in the villages near Villupuram and Pondicherry were vociferous in their support of Dalit Panthers leader Tirumavalavan.

In the Vanniyar heartland of Villupuram, Panruti, Nellikuppam and other places, the support for the AIADMK/PMK was clear. At Panruti, former AIADMK Minister S. Ramachandran is contesting as a candidate of the People's Liberal Party, against Dr. Ramasamy (DMK) and D. Velmurugan (PMK). All the three are Vanniyars. There is some popular disenchantment with Dr. Ramasamy.

People are divided on the basis of not only caste but language. Telugu-speaking Naickers belonging to the Kammawar and Rajakambalam Naidu sects are mostly with the MDMK in many constituencies. At P. Kumaralingapuram near Virudhunagar, elderly residents said that they would vote MDMK. The village has a population of 2,000, mostly Kammawar and Rajakambalam Naidus. The residents said that the Virudhunagar constituency had about 35,000 Kammawar and 37,000 Rajakamabalam Naidus and about 8,000 Telugu-speaking Reddiars. "Most of them will vote for the MDMK," they said.

DESPITE the comparatively good performance of the government, the DMK's chances may be affected by the fall in the prices of agricultural produce. Farmers everywhere complained about the unremunerative prices obtaining for paddy, sugarcane, coconuts, oilseeds and cotton. According to them, the procurement prices of Rs.325 for 75 kg of paddy and Rs.600 for a tonne of sugarcane, would simply not suffice. The steep rise in cement prices was another sore point. A farmer said, "It has gone up from Rs. 160-180 a bag to Rs.205." Pointing to a half-finished house, he said, "Look at that house. Its construction has stopped." Construction activity had slowed down, many people complained. A farmer in Kansapuram near Srivilliputhur warned that farmers would commit suicide if they did not get remunerative prices. A youth had committed suicide but the police reported other reasons for his death, he said.

People also complain of a "lack of money circulation". According to a grocer near Coimbatore, about a hundred bought people groceries from his shop every day until three years ago. "Hardly 10 people come to my shop now," he said. Eswaran, a Dalit youth of the Tiruppur municipal colony, was not impressed with the DMK government's development schemes. He said, "Any government can lay cement roads, conduct medical camps, set up factories and so on. But there is no 'money circulation' now. There is no economic development."

Resentment runs high among the workers of mills that were closed in Coimbatore. At Singanallur, outside the closed Rajalakshmi Mills, a hoarding says: "Let us boycott the polls. If the grant of Rs.250 a month announced by the Tamil Nadu government for workers of closed mills is not given immediately, we and our families will boycott the elections." The hoarding has been put up jointly by a number of trade unions. On the mill's compound wall is a DMK graffiti: "Oh, Tamilians, let this golden age continue. Vote for the 'rising sun". A few feet away is the MDMK's hoarding asking party cadres to gather like "ocean waves" to listen to Vaiko speak on April 14 when he announced the names of MDMK candidates. The public meeting attracted thousands of cadres from all over Tamil Nadu.

According to K. Devaraj and C.M. Kanthanathan, secretaries, Hind Mazdoor Sabha (HMS) at Singanallur, 29 industrial units had closed down in Coimbatore, 24 of them spinning mills and five textile engineering industries. About 20,000 workers were unemployed. All the units had closed because of mismanagement. Kanthanathan said that all the mills had reserve funds until 25 years ago but had nothing now. Devaraj said that if the mills were not reopened, "there will be suicides in Coimbatore, just as handloom weavers in Andhra Pradesh committed suicide."

P. Chidambaram, the former Union Finance Minister, has provided a new angle to this round of elections. He left the TMC in protest against its alliance with the AIADMK and formed the TMC Democratic Front (TMCDF). He has set a punishing schedule for himself, travelling all over the State, drawing sizable crowds. Chidambaram argues that Jayalalitha cannot provide "good governance".

Chidambaram says the TMC wanted to form an alternative (to both the DMK and the AIADMK). "But some compartments in the TMC train derailed on the way. I want to put the coaches back on the rail and drive the train on the proper path." On the rejection of Jayalalitha's nominations, he says: "The law has not bent to accommodate her." He ridicules her claim that she will become Chief Minister if the AIADMK is voted to power. "A big question mark should be put next to her claim," he says.

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INFIGHTING plagues both the fronts. The AIADMK denied the TMC 19 seats the latter held, appropriated 16 and gave three to the PMK. The TMC got 19 new seats where its strength is untested. Several TMC legislators who could not contest have entered the fray as independents or pledged support to the DMK-BJP combine. For instance, A.S. Ponnammal is seeking re-election from Nilakottai, which she has represented in the Assembly for several terms, as an Independent this time, against K. Anbazhagan (AIADMK). K. Ravi Arunan, who lost his Tenkasi seat in the TMC-AIADMK deal, joined the BJP and pledged support to R. Karuppasamy Pandian (DMK). P. Veldurai, The TMC legislator from Cheranmadevi, has announced support to S.S.N. Chockalingam (BJP) against P.H. Manoj Pandian (AIADMK). At Radhapuram, TMC MLA M. Appavu is contesting as an independent.

The DMK denied the ticket to three legislators, Gomathi Srinivasan, K.K. Veerappan and R. Manimaran, and later suspended them for anti-party work. The three were among the 74 sitting members of the Assembly who were replaced by newcomers. Adding to the resentment in the party is the fact that many of those given the ticket are Stalin's men. Karunanidhi's another son, M.K. Alagiri, is campaigning in Madurai West against Assembly Speaker P.T.R. Palanivel Rajan of the DMK.

In the AIADMK too, some of those denied the ticket have raised the banner of revolt. At Vellakovil, Durai Ramasamy, a local leader, is contesting as an independent. At Srivilliputhur, the maverick legislator R. Thamaraikani is in the fray as an independent against his son T. Inbathamizhan who has been nominated by the AIADMK. Thamaraikani alleged that conspiracy by Jayalalitha to split his family.

There is a byelection to the Tiruchi Lok Sabha constituency, caused by the death of Union Minister Rangarajan Kumaramangalam of the BJP. The BJP candidate is M.N. Sukumar Nambiar, and his rival is Dalit Ezhilamalai of the AIADMK. The BJP, which went into hibernation in this constituency after the death of Rangarajan Kumaramangalam on August 23, 2000, is working hard for Nambiar now. The AIADMK here is faction-ridden. Its district secretary T. Rathnavel was removed and A. Murugaiyan appointed in his place. Dalit Ezhilmalai is backed by the CPI(M), which has considerable presence in the industrial belt.

The constituency consists of six Assembly constituencies - Tiruchi-1, Tiruchi-2, Srirangam, Tiruverumbur, Lalgudi and Musiri. Of these six, DMK is contesting in five and the BJP in one. The AIADMK is contesting only in three and has allotted the remaining three to the CPI(M), the Muslim League and the Congress(I).

FROM April-end, the two fronts stepped up their campaign by fielding big guns, who included CPI(M) general secretary Harkishan Singh Surjeet, CPI general secretary A.B. Bardhan, Chattisgarh Chief Minister Ajit Jogi and Union Home Minister L.K. Advani (BJP). Jayalalitha frankly raised the stakes in the last lap by telling her cadres on April 30: "Nobody should forget that this election decides our life or death."

The Pondicherry scene

T.S. SUBRAMANIAN cover-story

BY the last week of April, the Union Territory of Pondicherry was far ahead of neighbouring Tamil Nadu in terms of campaign tempo and election-related activity as reflected in wall graffiti, festoons and the number of election offices.

The DMK has mounted a hectic campaign in the company of the nascent Pondicherry Makkal Congress (PMC) headed by P. Kannan, the Bharatiya Janata Party, the Dalit Panthers and the Janata Dal (United). Matching the DMK-led alliance or even ahead of it, is the ruling front comprising the Congress(I) and the TMC in tandem with the CPI. The third alliance comprises the AIADMK and the PMK.

The Pondicherry Assembly has 33 seats, including 30 elected and three nominated members. While the DMK is contesting 13 seats, its allies the PMC has put up candidates in nine, the BJP five, the Dalit Panthers in two and the Janata Dal (United) in one. In the casse of the other front, the Congress is contesting from 21 constituencies, the TMC seven and the CPI two. The AIADMK has fielded candidates in 20 constituencies while the PMK is in the fray in 10. The MDMK is also in the field.

The AIADMK-PMK alliance is nowhere in the race. The people of Pondicherry appear to be hostile to this front after the AIADMK and the PMK reached a pact in March by which a PMK nominee would be the Chief Minister for the first two and a half years, and an AIADMK nominee would head the government for the next two and a half years if the alliance was voted to power. The agreement was signed by AIADMK general secretary Jayalalitha and PMK founder Dr. S. Ramadoss. The PMK is essentially a Vanniya-dominated party. Pondicherry has a sizable population of Vanniyas.

Dr. Ramadoss was keen to instal a Vanniyar as the Chief Minister of Pondicherry in 2001 and worked hard for several weeks in February and March to achieve this end. Inexplicably, he seems to have given up Pondicherry. "He is not to be seen here nowadays," said a voter. It would seems that the PMK cadres too have switched themselves off.

Chief Minister and Congress(I) leader P. Shanmugham and Pondicherry Congress Committee president V. Narayanaswamy are not contesting. Congressmen claimed that these two leaders were not in the race because they wanted to devote their energies to enable the alliance to return to power. But inside information was that Shanmugham's candidature was "sabotaged". Shanmugham did not attend the function on April 25 at which the Congress(I) manifesto was released. Kannan, who revolted against the TMC leadership and formed the PMC, is also not contesting.

The alliances led by the DMK and the Congress(I) are seeking votes on the strength of their performance. The former lists the achievements of the Janakiraman government during its four years in office and the latter the work done by the Shanmugham Ministry.

The Kasukadai constituency is witnessing a fight between K. Lakshminarayanan, PMC president, and V. Balaji, TMC president.

Kannan had won this seat - three times in - 1985, 1991 and 1996. Balaji is banking on the good work done by the Shanmugham government. "We have given clean government and so command the admiration of the people. Based on this, we will come back to power," he said.

At Mudaliapet, the fight is between Congress candidate V. Sabapathy and PMC candidate M.A.S. Subramanian. The AIADMK's A. Ravindran and the MDMK contestant Muthu are not really in the race. Sabapathy commands the respect of a large section of voters.

Another constituency that is witnessing a keen fight is Villanur, where the PMC candidate J. Narayanaswamy is pitted against Theni C. Jayakumar, a TMC Minister, and Raman of the AIADMK.

Voters blame Dr. Ramadoss for the triangular fight and for breaking the alliance of the Congress(I) and the TMC with the AIADMK. Political analysts point out that Dr. Ramadoss, who had begun the countdown to the inauguration of a Vanniyar Chief Minister of Pondicherry, had stopped it. "There are no sober speeches from the PMK leadership. Dr. Ramadoss' rotational system of Chief Minister is akin to MGR's (M.G. Ramachandran, former Tamil Nadu Chief Minister) suggestion that Pondicherry should merge with Tamil Nadu. The AIADMK came a cropper in the subsequent elections," an analyst said.

The PMK, in several cases, had also denied seats to popular ticket-seekers. For instance, M. Manjini, who left the CPI and joined the PMK, was denied the ticket from Mudaliarpet, where he had been elected in 1996. Manjini has now pledged his support to the DMK. S. Ramsingh, PMK legislator from Ariyankuppam, has been denied the ticket. When the seats were shared with the AIADMK, the PMK eyed the seats held by the Congress but the AIADMK appropriated them, analysts said.

Dalits voters of the Embalam (reserved) constituency are an angry lot. Everywhere in this constituency, Dalit peasant workers, both men and women, were vociferous in their support of Dalit Panthers headed by R. Tirumavalavan. In the fray are S. Palanivel of the Dalit Panthers, Neela Gangadharan of the Congress, M. Nagamani of the AIADMK, and Muthukrishnan of the MDMK. Be it Abhishekhapakkam, Thavalakuppam, Thanampalayam, Nanamedu or Korkadu, Dalits said they would vote for Palanivel because "Tirumavalavan is our leader."

Overall, the fight in Pondicherry is essentially between the Congress-TMC-CPI alliance and the DMK-headed front.

Stand-off and strategy

Engaged in a war of words with Prime Minister A.B. Vajpayee, Sonia Gandhi is determined to take the fight to the President, and the people.

THE daggers put away by the Congress(I) for a brief while to allow the smooth passage of the Finance Bill in Parliament, have been drawn again. The renewed acrimony between the party and the National Democratic Alliance (NDA) government over the issue of a Joint Parliamentary Committee probe into the Tehelka disclosures climaxed on April 27, when in his concluding speech in the Lok Sabha Prime Minister A.B. Vajpayee hit out at it for stalling parliamentary proceedings. Vajpayee said the party had no right to talk of probity and morality in public life since on these issues it could find itself in the dock. As the proverbial last straw, Vajpayee rejected the demand for a JPC probe, although at an earlier meeting with Sonia Gandhi he had said he would consider it with an open mind. "An open mind," he sough to clarify in a mocking tone, "does not mean an empty mind. We have our own yardstick and are following that." Regretting the use of foul language in Parliament by Opposition members, he said in his 40 years in Parliament he had never heard such abuse.

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Although Sonia Gandhi sat through the speech calmly, she gave vent to her anger when Union Home Minister L.K. Advani made an attempt to greet her after the House was adjourned sine die. Obviously flabbergasted, Advani tried in vain to calm Sonia Gandhi down even as she, in an uncharacteristic style, fumed: "In this very House you crucified my husband (Rajiv Gandhi). It was in this very House that you called my mother-in-law a chor. Now you are calling my children thief. I am tired of his (Vajpayee) sermonising on how the Opposition should behave. He cannot have double standards, one for himself as the Leader of the Opposition and another for us." She was seeking to remind Advani of the campaigns the Opposition, with Vajpayee as its leader, had run against members of the Nehru-Gandhi family. She also reminded the Home Minister that it was nothing unusual for the Opposition to stall proceedings on issues of national importance. "You stalled Parliament on a number of occasions: for 19 days on Maruti, for 18 days on Bofors, 14 days on Jayaprakash Narayan's Navnirman andolan and 13 days on Sukh Ram.....but (you) are giving sermons to us now for stalling Parliament.. This will not go without a fight. We will not take things lying down."

It took two days for the stunned Prime Minister to react. On April 29, in a one-page statement, he expressed pain at Sonia Gandhi's "emotional outburst", saying: "I fail to understand how my speech provoked such an angry and personalised outburst from the Leader of the Opposition. Such episodes lower the prestige of Parliament." He also refuted Sonia Gandhi's charges that as Leader of the Opposition he had ever allowed the use of abusive language against anyone. "I refute Shrimati Gandhi's charge that we in the BJP allowed the kind of abusive language which was used against us, to be used against Indiraji and Rajivji. As the Leader of the Opposition and even as an ordinary MP I had always stood up to stop the use of derogatory and unbecoming remarks in Parliament," he said. He rejected Sonia Gandhi's charge that the government was vindictive towards her and her family members. "It is unfortunate for Shrimati Gandhi to have alleged that the government is vindictive towards her and her family members. The allegation is baseless," he said, hoping for better and more constructive cooperation from her in future both inside and outside Parliament.

But this was not the end of the slanging match. BJP president Jana Krishnamurthy joined Vajpayee in the ring and described Sonia Gandhi's outburst as "one of the saddest days in recent times, which lowered the dignity of the House." Unrelenting in his attack, he said: "We expect the Leader of the Opposition to rise to higher level. Parliament is not the place to settle personal scores." He further said that the Congress(I) owed an explanation to the nation for playing such a negative role in Parliament when the Finance Bill was to be discussed and passed.

A provoked Congress(I) has decided to "take the fight to its logical conclusion". And as the first step in this direction, it plans to approach President K.R. Narayanan later in May with a memorandum seeking the dismissal of the NDA government, after apprising him of the murky disclosures in the Tehelka tapes.

According to party general secretary Oscar Fernandes, who was especially deputed by Sonia Gandhi along with Arjun Singh to brief the media, the party has been forced to seek the President's intervention because the government has closed all other options normally available to Opposition parties. "The memorandum will be presented to the President around May 20, after the present round of campaigning for the Assembly elections," he said. The draft memorandum, a copy of which is available with Frontline, says the party is approaching the President "with a deep sense of anguish and anger at the callous indifference and brazen reaction of the Central government presided over by Shri Atal Bihari Vajpayee to the exposure of corruption indulged by important functionaries in the BJP-led Central government."

The memorandum tells Narayanan that a cloud of suspicion hangs over the government since its senior functionaries and persons who enjoyed the highest confidence of the Prime Minister have been seen "bartering away the national security by openly asking for and accepting money to fix defence deals." It further says that the taped conversation indicates involvement at the highest level, even hinting at the Prime Minister himself being a beneficiary. "Unless the persons seen accepting bribe are booked as per the law of the land and are forced to reveal the entire chain of corruption, nation will feel insecure," the memorandum says. Accusing the government of inaction, it says the Prime Minister's response proves that the government wanted to ignore the whole affair, and instead of punishing the guilty it would like to reinstate them. "The nation expected that the Prime Minister would assume moral responsibility and immediately resign, that he would ask CBI to launch formal investigation, arrest and question those involved, and to file FIRs (first information reports), that he would forthwith remove those officials in the PMO (Prime Minister's Office) who are prominently mentioned in the tapes as being the principal actors in the corruption, that he would readily agree for a JPC. However, he has done nothing,"

The memorandum goes on to list other scams, such as the ones in the telecom and banking sectors, saying all these are hurting the economy. Directly accusing the Prime Minister of shielding the guilty, the memorandum delivers the final blow by saying that the "Prime Minister is keen to protect the guilty" and that "he knows more than he is willing to admit." It adds: "He is putting his party above national interest and desperately trying to save his government at the cost of grave damage to national security." It says the Congress(I), as the principal Opposition party, wanted to discuss the matter in Parliament, and the least the government could have done for that was to launch CBI investigations, file FIRs, and agree for a JPC.

Saying that "national security and well-being of our armed forces is too important to be sacrificed at the altar of partisan politics," the memorandum urges the President to use his constitutional authority to dismiss the government.

"We have been forced to take this step because the government's game plan was to scuttle everything," says Oscar Fernandes. According to him, the Prime Minister's turnaround on the issue of JPC was an act of betrayal. "But it is he who is the loser because he has lost credibility, he has lost face. This only proves that we were after all right in stalling Parliament and demanding action first because the crime was so obvious," Fernandes said. Now it is not the question of the Prime Minister's "moral responsibility but his direct involvement". It was not the Congress(I) that first raised the accusing finger but the Rashtriya Swayamsevak Sangh chief and an RSS pracharak, by attacking the officials of the PMO. "Can the PMO be any different from the PM? Is it possible that the Prime Minister would not be aware of the goings on in his own office? The Prime Minister's silence only proves that he is deliberately ignoring the issue because he is personally involved in it," Oscar Fernandes said.

The Congress(I) is busy distributing a charge-sheet against the government, a la Subramanian Swamy. While the Tehelka disclosures find top priority in the charge-sheet, other issues - such as the customs scam, the stock market scam, the telecom scam, inaction on farmers' problems, the disinvestment scam and the overall slowdown in the economy - also figure in the list. "This charge-sheet is distributed to every household. We are now taking the fight to the people, making them see why the government should go. This time the fight will be taken to its logical conclusion," Fernandes said. "The ease with which terrorists infiltrated the Red Fort, the ease with which foreign defence agents have gained access to the ruling party's headquarters, the PMO and the Defence Minister's office and residence, all go to prove that this government is a danger to the country's security and integrity. Now it is for the people to decide whether they want such a government."

But the Congress(I) seems to be getting isolated in its larger fight. Although other Opposition parties have sympathised with Sonia Gandhi they have chosen to be mere spectators in the war of words between her and the Prime Minister.

Says a senior Congress(I) leader: "In a democracy it is not necessary for all the Opposition parties to agree on everything. The question is whether corruption in defence deals is not a serious enough issue, whether the Congress(I) would not be failing in its duties as the principal Opposition party if it allows the issue to rest where it is at the moment, whether it has not been proved that the country's security is being compromised by this government. Since we have been taken for a ride by the Prime Minister on this issue, we will take it to the people and they will decide."

From Parliament the fight has now reached the streets.

An unscheduled lunch

IT was like any other hot afternoon at C-1/6 Pandara Road, the New Delhi residence of Union Home Minister L.K. Advani. Then the telephone rang. The caller was Prime Minister Atal Behari Vajpayee, telling Kamla Advani that he was inviting himself over for lunch at their place that day. Kamala Advani in turn made a frantic call to her husband at his North Block office. Advani rushed home to receive the Prime Minister, who had driven there without the usual hangers-on. He had even left behind his Principal Secretary Brajesh Mishra and foster son-in-law Ranjan Bhattacharya. Unmindful of the flutter his visit caused in political circles, Vajpayee spent more than three hours talking exclusively to his long-time associate.

Although the two leaders have not divulged the details of their discussion, a number of theories have been doing the rounds. One is that it was a deliberate move on the part of Vajpayee to set at rest reports of serious differences between them over the handling of the Tehelka expose.

Advani, according to reliable sources and newspaper reports, was unhappy with Vajpayee's failure to take action against officials of the Prime Minister's Office (PMO) named in the Tehelka tapes, even after the Rashtriya Swayamsevak Sangh (RSS) had made known its displeasure.

According to other theories, Vajpayee was upset with RSS chief K.S. Sudarshan's criticism of the PMO and the latest attack on the government by Dattopant Thengdi, leader of Bharatiya Mazdoor Sangh (BMS), a Sangh Parivar-affiliate. Thengdi threatened to gather nine lakh BMS activists in Delhi on August 9 outside Parliament when it meets for the monsoon session, to protest against the government's anti-people policies. Since Advani is known to be close to both Sudarshan and Thengdi, it is not surprising that the Prime Minister thought it fit to explain matters to him, and through him to the Sangh Parivar.

Officials in the PMO, however, are of the opinion that the Prime Minister may have discussed the Kashmir situation and a slew of other issues such as the overhauling of the PMO in view of Sudarshan's criticism of Brajesh Mishra and N.K. Singh, who has since been shifted to the Planning Commission. Some of them feel that the Prime Minister might be looking for a graceful exit for Brajesh Mishra. One possibility is to remove him from the post of National Security Adviser but retain him as his Principal Secretary. The fact that Mishra held the dual posts of Principal Secretary to the Prime Minister and National Security Adviser had come in for criticism in defence circles.

One unmistakable reaction has been a collective sigh of relief in the BJP headquarters after the two met and talked it out. What most BJP leaders find important is that Vajpayee took the initiative in breaking the ice.

A vacancy in the CBI

The Central Bureau of Investigation is without a Director, thanks to the procedures adopted by the selection committee in disregard of Supreme Court guidelines.

THE Central Bureau of Investigation, the country's premier investigative agency, is once again in the throes of confusion. Dr. R.K. Raghavan retired as its Director on April 30 but the government, for reasons unclear, is yet to name his successor. P.C. Sharma, the senior-most Special Director in the CBI, has taken over as acting Director and will continue "till further orders". Since Raghavan's retirement was never a secret and the Supreme Court guidelines for the choice of the CBI Director are clear, the government's inaction is inexplicable.

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The confusion can be traced to certain questionable actions taken by the committee that chose the CBI Director, which is headed by Chief Vigilance Commissioner N. Vittal. Vittal decided in early April that he would consider only police officials with a minimum remaining tenure of two years for the post. Three days ahead of a scheduled hearing by the Supreme Court on the government's request for a clarification on this matter, the committee announced a panel of three officers to be considered for the post. These officers had little or no experience in "anti-corruption" work, a criterion that had considerable weightage in the norms laid down by the Supreme Court for the appointment of the CBI Director.

In its December 1997 ruling in the "Vineet Narain case," the Supreme Court had said that "recommendations for appointment of the Director, CBI, shall be made by a committee headed by the Central Vigilance Commissioner with the Home Secretary and the Secretary in the Department of Personnel as members. The views of the incumbent Director shall be considered by the Committee for making the best choice." With little ambiguity, it said: "The committee shall draw up a list of IPS officers on the basis of their seniority, integrity and experience in investigation and anti-corruption work." In order to eliminate any scope for confusion, the Court also stated that the final selection shall be made from among the panel by the Appointments Committee of the Cabinet. If none of the panel members was found suitable, the reasons would have to be recorded and the committee should be asked to draw up a fresh panel. The Court specified that the CBI Director would have a minimum tenure of two years regardless of the date of his superannuation. This was to ensure that "an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment".

The present confusion and uncertainty has created a widespread feeling within the CBI that the government is seeking an appointment of political convenience, which will be at the expense of the CBI's autonomy.

In a letter he drafted a day before the selection committee was scheduled to meet, Vittal, ignoring the clear stipulation of the Supreme Court, asserted that it would be a "healthy tradition" to consider only officers who have clearly two years more in service. He further said that seniority, like maternity, was an unquestionable fact and that merit, like paternity, could be questioned.

The selection committee met on April 17 and drew up a panel of three names. At the top of the list was H.J. Dora, an IPS officer of the 1965 batch who is currently Director-General of Police in Andhra Pradesh. The other two officers are also from the 1965 batch: S.C. Chaubey, Director-General of the Indo-Tibetan Border Police and K. Chakraborty, Director-General of Police, Gujarat. Chaubey, who belongs to the Uttar Pradesh cadre, is believed to enjoy the support of the leadership of the Bharatiya Janata Party's State unit. But Chakraborty is likely to be eliminated from the panel since the Gujarat government has put on record its reluctance to release him for Central duties.

According to some top level officers in the CBI, the selection committee took into account only the fact that these officers had more than two years of service left, ignoring all the other norms set by the Supreme Court. "They may be excellent officers in their own right but they have little or no experience in anti-corruption work and investigation," said a senior officer. He also said that it was highly unjust that the committee left out Sharma, who was "obviously the most suitable candidate" in terms of the number of years of service in the CBI and experience in anti-corruption work.

Sharma, who began from the rank of Superintendent of Police, has served the CBI in various capacities for 21 years. Having assumed charge as Special Director in March 1999, he is in charge of all the major investigations. He has the Police Medal for Meritorious Service in 1984 and the President's Police Medal for Distinguished Service in 1991.

The extent of resentment among CBI officers can be gauged from the fact that a paper has been doing the rounds in the agency's headquarters, detailing why Sharma should have been the obvious choice for the top post. It is also known that Raghavan had recommended Sharma as his most appropriate successor. But the selection committee disregarded this recommendation. Perhaps the only reason for this was Vittal's understanding of the relative importance of the criteria of seniority and merit. Sharma, an IPS officer of the 1966 batch, has a residual tenure of less than two years. In terms of the Supreme Court guidelines, this is not a valid ground for disregarding his candidature.

On April 20, the Supreme Court ruled that no further clarification was required to its December 1997 ruling on the process of choice of the CBI Director. But by then, the selection committee's own interpretation had seemingly won the day. The government continued to equivocate. Rather than choose an officer from the panel recommended by the CVC or ask the selection committee for a reconsideration, it decided to make an interim arrangement with Sharma as acting Director. This has led to a feeling within the CBI that Sharma will finally be eliminated from consideration in favour of somebody more "politically suitable". Sharma, it is felt, would not be quite amenable to the powers that be, given his track record and the advantages he has as an insider in the CBI.

CBI officials point out that the Court has reaffirmed that a minimum residual tenure of two years is not an essential requirement for being considered for the top job. The government sought a specific clarification on the question whether the Court's stipulation that the CBI director should hold office for a minimum of two years would "exclude from the zone of consideration an officer who is found suitable in all respects even though his period of tenure at the time of selection is less than two years". The Court merely said that its earlier order was clear enough: that the two-year tenure clause was laid down with a view to ensuring that superannuation did not come in the way of appointing deserving officers to the post and not to exclude officers otherwise found suitable.

A petition filed by N. Radhakrishnan, a 1966 batch officer of the Karnataka cadre, before the Bangalore bench of the Central Administrative Tribunal (CAT) has complicated matters further. CAT had earlier this year struck down Raghavan's appointment in response to a petition filed by another Karnataka officer, C. Dinakar, who is now arguing Radhakrishnan's case before it. Though its order has been stayed, CAT has now taken up the case of Radhakrishnan who claims that he has a better claim to the post on grounds of merit than other officers of the 1966 batch.

THE National Democratic Alliance government's inaction is also being attributed to pressures from some of its key constituents. "The exigencies of alliance politics have come into play," said a senior official in the Department of Personnel. Senior officials in the Prime Minister's Office, however, deny that there was any controversy or any mystery in this affair. They also deny that there is any political angle to it.

Yet it is unlikely that the appointment process will be free of controversy in future too. If the government goes along with the selection committee's recommendation, many other eligible officers who have been left out of consideration, including Sharma, could seek legal redress. The government might decide to wait for CAT's ruling on the petition before it and then request the selection committee to draw up a fresh panel. This would mean inordinate delay in making a decision.

The dividing line

Disputes over territories and demarcation of border keep India and Bangladesh apart as less-than-friendly neighbours.

THE Indian government's invitation to Bangladesh for talks to settle the border issue has not come a day too soon. In December 1999, India had asked for a meeting at the level of Foreign Secretaries in order to set up a Joint Working Group (JWG) to discuss the issue. It was in December 2000 that Bangladesh responded, by sending its Foreign Secretary Safi Sami to New Delhi. The JWG's terms of reference were finalised in February.

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New Delhi has now asked Dhaka to send a team of senior officials for talks from May 22 to 25 or suggest alternative dates. In response, Bangladesh Foreign Minister Abdus Samad Azad said: "We will favourably consider it with a due sense of urgency."

The decision to hold talks with Bangladesh has been widely welcomed. Popular opinion favours India ratifying the 1974 accord between Prime Ministers Indira Gandhi and Mujibur Rahman. J.N. Dixit, former High Commissioner to Bangladesh and former Foreign Secretary, said: "The decision to hold talks with Bangladesh is a long-awaited step and I hope it leads to concrete results, including exchange of maps between the two countries. This should be followed by a decision on the enclaves and exchange of areas of adverse possession to their rightful owners." Describing the decision as a positive step, Aravinda Ramachandra Deo, former Indian Ambassador to Nepal, said: "The border issue can be solved only if both sides as well as all the government departments make a concentrated effort to demarcate the border."

The recent skirmish underlined the fact that even after five decades of Independence, India does not have a clear, demarcated border with Bangladesh (East Pakistan, before 1971) and that little attention has been paid to effective border management.

The latest trouble on the eastern border began on the night of April 15-16, when the Bangladesh Rifles (BDR) captured the India-held Pyridwah village. The Border Security Force (BSF) was caught unawares. Intelligence failure on the Indian side was obvious. Worse, after the Pyridwah offensive, the Union Home Ministry felt that something drastic had to be done. It gave orders to overrun a post at the Bangladeshi village of Boraibari and destroy houses as an act of retaliation against the BDR's occupation of Pyridwah.

On receiving reports of the Boraibari incident, the Vajpayee Government became paralysed. It was only on April 19 that the Cabinet Committee on Security met. It was not until April 23, nearly a week after the 16 BSF jawans made the ultimate sacrifice, that Defence Minister Jaswant Singh made a statement in the Rajya Sabha to the effect that there was no intelligence failure involved. Such statements fly in the face of facts. The government was clearly trying to hide its tactical and command failure.

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The government then tried to fine-tune its initiative with Bangladesh Prime Minister Sheikh Hasina for the restoration of the status quo on the border. Hasina remained guarded in her response. The Bangladesh establishment stuck to the version that it was the BSF which triggered the tragedy at Boraibari. Hasina did not apologise and merely expressed regret over the skirmishes. She did, however, assure India of a "thorough" investigation into any torture of BSF personnel.

Sheikh Hasina's ambivalence is understandable, given the criticism she faces from the Bangladesh Nationalist Party (BNP) which accused her of being an Indian "stooge" and her party Awami League of being "subservient to India". Seen in this context, it is not surprising that Sheikh Hasina cancelled her proposed visit to India. She obviously had second thoughts and did not want her visit to be misconstrued as an act of surrender to New Delhi. What one hopes, however, is that Indian and Bangladeshi officials go ahead with their proposed talks. It is also to be hoped that they would address three important issues: First, there are 111 Indian enclaves in Bangladesh and 51 Bangladeshi enclaves in India. Secondly, a 6.5-km stretch of the border is yet to be delineated. Thirdly, the issue of adverse possession of land remains.

The problem of the enclaves can be traced to the actions of the rulers of two princely states of Cooch Behar in North Bengal and Rongpur in South Bengal (what is today Bangladesh). They routinely staked pieces of their estates in their card games. Thus they came to possess pockets of land in each other's territory. After Partition, the ownership of these estates passed on to India and Pakistan respectively.

India points to bilateral issues that need to be resolved before it ratifies the accord. One of the contentious issues is the 6.5-km stretch that remains to be demarcated. The nature of the terrain has made it difficult for the two sides to reach an agreement. This area is spread across the Muhuri river in the Tripura-Noakhali sector, Dumabari on the Tripura-Sylhet border and the Daikhata sector. In each case, the two sides are yet to arrive at an agreement on where the border lies.

In the Muhuri river sector, India quotes Article 1(5) of the 1974 accord which says: "The boundary in this area should be demarcated along the mid-stream of the course of Muhuri river at the time of demarcation." However, the Muhuri river is known to change its course. Bangladesh insists on referring to the international boundary outlined in an 1893 map that gives it about 44 acres more than what it would have if the demarcation is done on the basis of the current course of the Muhuri. Since 1893, the Muhuri has changed course, flowing around the conclave that Bangladesh claims to be its territory as per the 1893 map. India asserts that Bangladesh's insistence on referring to the 1893 map is contrary to the commitment outlined in 1974 that the border should be delineated along the course of the Muhuri "at the time of demarcation".

The Dumabari sector was a part of Sylhet revenue district, now in Bangladesh. Here, the dispute continues, thanks to the non-availability of maps. India insists that the maps are with Bangladesh and Bangladesh says they are with India.

In the Daikhata sector, about 19.34 acres of land is in India's possession and 72.36 acres is with Bangladesh. India insists that the ground situation should be left undisturbed but Bangladesh claims the 19.34 acres in India's possession as its own. Not surprisingly, India wants to clear some of these contentious points with Bangladesh before it ratifies the 1974 accord.

The lack of mutual trust is another reason for the two sides not being able to reach an agreement on border demarcation. In the last five years that Sheikh Hasina has been in power, most people have been lulled into forgetting the long-standing tension.

The euphoria in both countries following the birth of Bangladesh has long since dissipated. From the time of Bangladesh's formation, commodities such as jute and rice have been smuggled into the Indian States of Assam and West Bengal through a porous border. Goods manufactured in India are smuggled into Bangladesh just as easily. Attempts by both sides to curtail smuggling have failed owing to the length of the border and the nature of the terrain. Although smuggling in itself is not a serious issue, it has become symptomatic of the difficulties in the relations between the two sides.

India expected Bangladesh to be a docile or a quiescent neighbour. In the initial flush of goodwill after the creation of Bangladesh, this was possible, particularly when Sheikh Mujibur Rahman was in power. Following his assassination, however, successive regimes in Bangladesh have been increasingly hostile towards India.

Tin Bigha was a particularly sticky issue as most Bangladeshis believed that the Indian government was using all kinds of legal means to delay the transfer of the corridor to Bangladesh. The corridor was finally transferred to Bangladesh in 1992 amid protests by some groups on the Indian side and euphoria in Bangladesh. But the euphoria was short-lived and the Ganga water dispute was on top of the list of charges against India.

Some of these tensions explain the unusual ferocity that marked the recent clashes. The incidents can only be seen as the price both countries have to pay for having neglected to keep their relationship cordial. At the same time, brushing off the entire episode as a consequence of complacency in the matter of bilateral relations would be too simplistic. It was the result of intelligence and command failure at the highest levels of the Indian government. The sequence of events, when pieced together, testify to the Indian government's accountability.

A brush with Bangladesh

HAROON HABIB in Dhaka world-affairs

Versions of the exact sequence of events differ, but there is unanimity in general on the need to resolve the outstanding issues.

THE third week of April 2001 will be marked as a black chapter in the history of India-Bangladesh relations. Perhaps for the first time since East Pakistan became independent Bangladesh about 30 years ago, the peoples of the two neighbouring countries came close to experiencing the effects of a major standoff on the border. Exchange of fire between the Border Security Force (BSF) and the Bangladesh Rifles (BDR) even while they were in the midst of joint operations against smugglers, cross-border kidnapping of people and theft of cattle and the recovery of bodies of villagers or security personnel are not uncommon along the 4,000- km-long border, densely populated except in a few sections. But the bloody encounters between the BSF and the BDR at Padua and Baroibari came as a shock to people on both sides of the border. In the encounters, 15 BSF personnel and three BDR jawans were killed.

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Bangladesh's version of the story runs like this: Padua (or Pyrdwah) in Sylhet's Tamabil area adjoining Meghalaya has been a Bangladeshi enclave that has been controlled as land of "adverse possession" by India since Bangladesh's war of liberation in 1971. During this war, Bengali freedom fighters set up a camp in this strategic border village. As India gave all-out assistance to the freedom struggle, the BSF also used this camp. The BSF did not withdraw from the camp after the war was over. Padua, however, did not become an issue because the two neighbours had bigger bilateral problems to resolve. The construction of a pucca road by the BSF connecting Padua with the mainland reportedly raised the hackles of the BDR. Alleging that the construction of the road was illegal, "violating international laws and the India-Bangladesh border agreement", the BDR asked for a flag meeting. As its request went unheeded, the BDR launched action on the night of April 15 and "recaptured" Padua "without any bloodshed".

This story, however, leaves many questions unanswered: Was there any clearance from the government for the BDR's action? Why did it choose a line of action that was contrary to the spirit with which disputes involving the two countries have been settled?

Even before the shock of Padua subsided came the attack on Baroibari, 80 km from Padua, in the Roumari-Mankerchar area adjoining Assam. In a pre-dawn action on April 18, as the accounts in major Bangladesh dailies put it, nearly 300 heavily- armed BSF jawans entered Roumari to attack the Baroibari post, reportedly to avenge the "defeat" at Padua. Baroibari is also a land of "adverse possession" under Bangladesh's control. The BSF suffered heavy losses in the April 18-19 clashes. As the story goes, when the BSF opened fire on a BDR camp the BDR personnel did not retaliate immediately, giving the impression that there was nobody inside the camp. But they struck when the BSF moved closer to the camp. With the help of quick reinforcements from nearby border posts and the support of the people of the village, the BDR launched a full-scale counterattack. Heavy exchange of fire continued for more than two days, forcing nearly 10,000 people to flee their homes. The bodies of BSF men were lying in the paddyfields for more than two days as the fight continued. The people recovered several bodies from the fields and handed them over to the BDR later. Two injured BSF men were flown to Dhaka by helicopter for treatment.

The Baroibari incident also raised some questions. What prompted the BSF to attempt to capture the border post, which is inside Bangladesh territory? Did it have any clearance from the higher authorities?

Bangladesh argues that the BSF men were attacked by the BDR when they were inside Bangladesh territory. Referring to the Indian allegation that the BDR fought with the BSF without the knowledge of the Bangladesh government, a Foreign Office spokesperson said that the BDR had the power to act on its own in the event of an emergency. The BSF and the BDR have their own charters which allow them to repulse an attack or to fire in self-defence without waiting to take orders from government. While some major Bangladesh newspapers have questioned BDR chief Major General Fazlur Rahman's role in the incidents, many others have supported him and glorified the BDR's action in Padua and Baroibari. Newspapers have also carried reports citing official accounts that 415 civilians and 10 BDR personnel were killed by the BSF in the past two decades and that in most cases the bodies were not returned. They also alleged that Bangladesh nationals had been mistreated by the BSF along the border. Some media reports said that the bodies of BSF personnel might have decomposed before their delayed recovery, implying that they were not disfigured deliberately.

New Delhi's angry reaction caused serious concern in Dhaka. Quick high-level interventions stopped the exchange of fire on the border and brought down the level of tension. But the Bangladesh government was embarrassed by Indian newspapers and television channels flashing pictures of BSF men who were captured or killed and by allegations that BSF personnel were "tortured to death" by the BDR and not by a mob of villagers as it claimed earlier.

On April 22, Prime Minister Sheikh Hasina spoke to Prime Minister Atal Behari Vajpayee, saying that the BDR had to open fire "in self-defence". She also expressed her shock and grief over the casualties and agreed to order a high-level investigation into the circumstances that led to the incidents on the border and the allegation of torture of BSF men.

The Hasina government was criticised by the Opposition for "surrendering national sovereignty" to India and withdrawing the BDR from Padua. The border conflict has occurred at a time when Bangladesh is getting ready for general elections in an atmosphere of tension created by religious fundamentalists. The elections are crucial for the secular-democratic forces who face a challenge from religious fundamentalists who are reportedly backed by external powers, mainly Pakistan. The fundamentalist groups have declared war against the ruling Awami League and its "pro-liberation" allies. The "neo-Pakistanis", who have consolidated their base over the years, now use as a shield the Opposition alliance led by Begum Khaleda Zia's Bangladesh Nationalist Party (Frontline, March 16).

THE tension on the border has subsided considerably, thanks to the political initiatives of Dhaka and New Delhi. But the reported build-up of the BSF along the border might change the situation for the worse. There were allegations that BSF men burnt villages and kidnapped people even after status quo ante was restored.

Well-meaning observers are of the opinion that political leaders must take the initiative to implement the treaty signed by Indira Gandhi and Sheikh Mujibur Rahman in 1974, in order to avoid any recurrence of border tensions. Bangladesh ratified the treaty soon after it was signed, but India has not.

Mobility and the masses

The outcome of the WiLL controversy will show how far larger social interests find a place in the current phase of deregulation.

A GOVERNMENT that ignores a crusade launched by industrial icons like Ratan Tata and Kumarmangalam Birla in league with new generation entrepreneurs like Sashi Ruia and Sunil Mittal, would need considerable depths of courage and conviction. After a month of high-pitched campaigning that often went beyond commonly accepted rules of rational argument, a group of businessmen functioning under the aegis of the Cellular Operators' Association of India (COAI), wrote to the government on April 29, demanding that the decision to permit basic telephone operators to offer a limited degree of mobility through the Wireless in Local Loop (WiLL) technology be reversed. The signatories included Rajan Nanda of the Escorts group and Rajiv Chandrasekharan of the BPL Group, among others.

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Economic deregulation has forever been a fertile breeding ground for controversy. Periodic eruptions of acrimony are especially likely when the sector is one where profits are reasonably assured and the pace of technological change is rapid. Since the government monopoly in telecommunications was effectively ended by the 1994 policy formulation, a number of commercial groups with potentially conflicting interests have come to flourish in the sector. Some of them have become well entrenched enough to seek to dictate the course of policy. The most recent instance was in mid-1999 when the caretaker Vajpayee government rewrote the rules of entry for telecom operators, permitting them to migrate from a regime of fixed licence fees to a revenue sharing arrangement. Although notionally all telecom licensees benefited from the decision, there was no mistaking the hand of the cellular operators, especially in the metropolitan regions, that had been the principal influence behind the decision.

The paralysis of policy over 'limited mobility' services on WiLL testifies to the enduring power of the new cellular phone operators lobby. The decision to permit basic phone operators to provide this facility was made in March, principally at the initiative of Union Minister for Communications Ram Vilas Paswan. An earlier reference to the Telecom Regulatory Authority of India (TRAI) on the consistency between 'limited mobility' and the New Telecom Policy of 1999 (NTP-99) had been answered in the affirmative. This decision was hastened by the fact that as far as basic phone services are concerned, WiLL is no mere technical luxury. Rather, it is being recognised increasingly as an imperative of providing reasonable connectivity to remote areas. A local loop in conventional basic telephone services is a pair of copper cables that connects the subscriber to the exchange. In the older telecom network designs, the local loop used to be as long as 8 to 9 km in length. With the high and rising costs of copper factored in, the 'local loop' was known to account for over 80 per cent of the cost of providing a telephone connection. In the case of areas with low demand density, the costs were prohibitive, imposing a major obstacle to the growth of rural telephony. That apart, reliability was often poor with cable faults being frequent.

In the early 1980s, technological innovations were introduced that enabled the shortening of the local loop to about 3 km. The multiplex facility enabled a multiplicity of messages to be transmitted over the same cable, permitting several subscribers to share a common transmission medium between a remote line unit (RLU) or remote switching unit (RSU) and the main telephone exchange. The local loop between subscriber and RLU (or RSU) could then be shortened considerably, making a massive saving in cost. The contribution to the local loop to the total cost of providing a phone connection now fell to just over 50 per cent of the earlier level. Yet there was no escape from the basic requirement of having a distinct line for each subscriber, though now of a dramatically shorter length.

Further breakthroughs were made in the mid-1990s when universally accepted codes and protocols came to be enforced, governing the transmission of signals from subscribers to exchanges. This meant that if the appropriate kind of signal processing equipment was available at both ends, any kind of transmission medium could be used - coaxial cable, electric power line, optical fibre, conventional copper wire pairs, or even the radio frequency spectrum. For obvious reasons, the wireless option using the radio frequency spectrum (or wireless in local loop, WiLL) became a technological possibility which promised to bridge some of the glaring lacunae in the telecom network, notably in rural areas.

Apart from this element of choice, there was one of technological and economic necessity. Deregulation in basic phone services meant that a subscriber would have a hypothetical choice of operators. But in allowing him or her to exercise this choice, the social costs of maintaining separate pairs of copper wires running into his or her premises would have been prohibitive. If the wireless option was available, the radio frequency spectrum could be shared between competitive operators, offering the subscriber a genuine choice. This seemed a much more feasible manner of structuring a competitive phone service than to have rival operators sharing a common pair of copper wires.

Recognising this element of technical necessity, the 1994 telecom policy formulation specifically identified optical fibre and WiLL as the preferred technologies for expanding the basic services network. There were no restrictions imposed on the range of services that a basic telephone operator could provide nor on the kind of terminal equipment that the subscriber could use. As the technological options expanded, it was found that WiLL could support a limited degree of subscriber mobility. This is very different from the cellular service. In fact, it is very much like the now-ubiquitous cordless telephone with a greatly expanded range. Seeking to curtail the limited mobility option would be in the estimation of most observers as futile a step as the Department of Telecommuni-cation's (DoT) effort in the 1980s to check the operation of cordless phones on the grounds that it threatened to undermine the integrity of the radio frequency spectrum.

Limited mobility became a reality when Mahanagar Telephone Nigam Limited (MTNL) introduced a service in Delhi and Mumbai in 1998. The entry of the government-owned MTNL into the market was delayed for over a year by some disingenuous interventions by the TRAI, which under its erstwhile chairman S.S. Sodhi was seen to be excessively solicitious of the cellular lobby's interests. The obvious limitations of MTNL's service in relation to full-fledged cellular mobile telephony ensured that it did not become wildly popular.

The initiative to provide the limited mobility option to private phone service operators began within the government in October 2000. Despite gaining their licences almost concurrently with the cellular service operators, basic phone operators had not really made much of an impact. Initial infrastructural costs were large in relation to cellular telephony and there were multiple uncertainties of demand, especially since the established service provider - once the DoT, now known in the service avatar as Bharat Sanchar Nigam Ltd (BSNL) - had considerably improved its level of demand fulfilment. What changed the parameters for decision-making considerably was the entry into the fray of the powerful Reliance Industries Ltd (RIL). Most licences issued for basic phone services had lapsed over time, in the main because the competitive bidding process had been vitiated by financially rather wild offers from a clutch of companies with no known competence in the field. RIL had the licence to the Gujarat Circle, where it has introduced a number of connections, though principally for the benefit of its own industrial units. More important, it was seriously exploring the option of buying out a number of licences and beginning basic services in at least 18 States.

Late in March, a number of letters of intent were issued to the licensees for basic telephone services, permitting them to introduce mobile communications over a limited range using the WiLL technology. There was an immediate uproar from the cellular telephone operators who have constituted themselves into a business lobby with substantial influence and clout. The allegation was that this decision was contrary to NTP-99, which clearly distinguished between mobile and fixed phone services. Under the notion of 'limited mobility' the cellular phone lobby was a new entity that had no legal existence under the terms of the policy statement.

Rapidly, the imperatives of optimal technological choice for the larger social good were becoming submerged in the bitter turf war between rival industrial families. When in early-April a cabal of some of the country's most influential businessmen petitioned him for a review of the WiLL policy, Prime Minister Atal Behari Vajpayee evidently had no option but to comply. The matter was referred to the Group of Ministers on Telecom and Information Technology (GoT-IT), which came up with the Solomonic verdict of splitting the difference between the cellular and basic phone operators. It recommended that the basic phone operators pay a larger share of their revenue from long distance calls as access charges to the public sector BSNL. It also proposed that the range of limited mobility be drastically curtailed to 10 km from the earlier 50 km.

This failed to satisfy either side, and the COAI has taken the matter to the Telecom Dispute Settlement and Appellate Tribunal (TDSAT), a body created last year in a conscious effort to take the adjudicatory function out of the scope of TRAI's powers. The cellular lobby's rather simple-minded argument is that NTP-99 provides no room for a 'limited mobility' service. This is evidently a rather fundamentalist reading that seeks to elevate a policy text to the status of holy writ, impervious to the possibilities offered by technological change.

BSNL has meanwhile intimated that it will go ahead with its own plans for limited mobility. The service is already on offer in parts of Haryana. Ironically, Tata Teleservices also is offering this option in Hyderabad, though it obviously values its cellular licences more than the future promise that WiLL offers. Then again, the compulsion that one of India's oldest industrial families feels to curb the growing power of the Ambanis and their RIL, is an undoubted factor.

Nobody can quite discount the COAI's formidable lobbying powers. The Association of Basic Telecom Operators (ABTO) alleges that the cellular lobby managed all through Sodhi's tenure as TRAI chairman to change the ground rules in its favour. They managed to hike the monthly rental charged despite explicit clauses restraining them in the licence agreement. Tariffs have also been well above the cost of providing the service. In depositions before Sodhi, different cellular operators quoted widely divergent figures for the cost incurred in setting up their service. Ironically, all these claims were accepted uncritically by the regulatory authority and its recommendations fashioned accordingly.

The question that the COAI has referred to the dispute settlement body seems trivial. Whether or not NTP-99 specifically mentions it, 'limited mobility' is very much a reality. Indeed, a credible case can be made that NTP-99 allows for this service implicitly, in the sections where it refers to the rapid convergence of communications media, with the distinction between both 'wireless and wireline' tending increasingly to be obliterated. The outcome of the WiLL controversy will be a test case of how far the authorities overseeing the current phase of deregulation have larger social interests at heart and how far they are swayed by the simulated anger and outrage of narrow commercial lobbies.

Another summer of terror and hope

Six months into the Ramzan ceasefire, even as the K.C. Pant mission continues, peace remains as elusive as ever in Jammu and Kashmir.

THE annual migration of the headquarters of the Jammu and Kashmir government to the summer capital of Srinagar shall be complete this year on May 8. For the last decade, the opening of government offices boarded up for the winter has represented more than a return to business as usual. The darbar move marks a reassertion of authority by the state apparatus. It is resisted, for that reason, by terrorist groups, now reinforced by new cadre who have made their way across the snow-free mountain passes from Pakistan. So, when Indian and Jammu and Kashmir flags are unfurled on the Srinagar Secretariat to signal that it is again the seat of state power, it serves a little like a declaration of war.

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Summer, as the Union government-appointed mediator K.C. Pant is now discovering, is a particularly bad time to talk peace in Jammu and Kashmir. On April 26, the executive committee of the secessionist All Party Hurriyat Conference (APHC) formally refused to enter into any dialogue with Pant, and reiterated its long-standing commitment to a three-way dialogue with both India and Pakistan. "Unless a comprehensive dialogue based on an honourable, judicious and everlasting solution of Kashmir is started," APHC chairman Abdul Ghani Bhat said after the meeting, "peace cannot be restored and any such process will be unrealistic." India, Bhat continued, "had to accept the basic facts and make way for a meaningful dialogue." One of the ways in which it could make way, he suggested, was by allowing an APHC team to visit Pakistan before initiating a dialogue with Pant.

It seems increasingly clear that APHC centrists pushing for a dialogue have been marginalised. The centrists led by Abdul Ghani Lone, who command a six-to-one majority in the executive, were forced to refer Pant's offer to the organisation's 21-member working committee, and then to its 23-member general council. In these larger forums the centrists found themselves isolated. One reason appears to have been fear of terrorist reprisal. Four people were injured when a grenade went off at an April 23 meeting of the general council, providing graphic illustration of the hostility of the terrorist groups to talks. All four of those injured were from centrist groups - the Awami Action Committee of Srinagar religious leader Umar Farooq and Bhat's Muslim Conference. APHC sources told Frontline that there was a consensus within the general council that the rejection by terrorist groups of the proposal for a dialogue made any engagement with Pant meaningless.

As important, events in New Delhi seem to have done not a little to undermine the centrists. Union External Affairs and Defence Minister Jaswant Singh, for one, dug his heels in, and refused to allow an APHC delegation to leave for Pakistan. The Ministry of External Affairs had earlier argued in a note that this would amount to recognising the organisation as the legitimate representative of the people of Jammu and Kashmir. Jaswant Singh had the support of Union Home Minister L.K. Advani, who insisted that the APHC delegation should not include far-right Jamaat-e-Islami leader Syed Ali Shah Geelani. Geelani, whose rejection of the peace process made him something of hero for terrorist groups, had argued from the outset of the Ramzan ceasefire in November last year that the Indian government was insincere about a dialogue. Jaswant Singh and Advani, as far as the APHC general council was concerned, proved him right.

PANT has, however, managed to make some inroads into more marginal figures on the political landscape of Jammu and Kashmir. One advocate of dialogue has been former Chief Minister G.M. Shah, who has in recent years positioned himself as an advocate of independence to the State. On more than one occasion Shah has called for a referendum to resolve the status of Jammu and Kashmir, appropriating a key component of both pro-independence and pro-Pakistan platforms in Jammu and Kashmir. At an April 28 press conference Shah called for the APHC to "come to the table for consensus". Its rejection of a dialogue with Pant, he continued, "means we have been left with no argument". Shah had, in March, sought to organise a conference of leaders from both sides of the Line of Control, but found that his prospective guests were denied visas by the Indian governments.

Shah's credentials, however, have little mass legitimacy. Many believe he is being used by his nephew, Chief Minister Farooq Abdullah, to erode the APHC's position as the sole representative of secessionist opinion. Although Abdullah, deposed by his uncle in a 1985 Congress(I)-sponsored coup, for many years had little love lost for Shah, signs of a rapprochement have been evident in recent months. Shah's son, New Delhi-based businessman Muzaffar Shah, had lobbied against Abdullah from 1997, but has muted his campaign in recent months. Both G.M. Shah and Muzaffar Shah were present at the funeral rites of Abdullah's mother last year, an event that is believed to have opened the way for a family reconciliation. Among National Conference politicians it is widely believed that the central component of the reconciliation process is that Muzaffar Shah will accept Abdullah's son, Umar Abdullah, as the next Chief Minister, in return for rehabilitation and office.

THE other significant endorsement won by Pant is that of Democratic Freedom Party (DFP) chief Shabir Shah, who moved out of the APHC umbrella in 1996. Shabir Shah has written to Pant, offering to send a three-member team for talks subject to several conditions. In essence, Shabir Shah's letter has asked whether the dialogue will be confined to bringing peace to Jammu and Kashmir, and whether it will address the wider issue of its eventual political status. The DFP leader started off as an advocate of Jammu and Kashmir acceding to Pakistan, but has at various points in the last five years called for a dialogue. Pant discussed the contents of Shah's letter with Advani on May 1, but the contents of his response are not yet known. It is possible that some preliminary engagement may take place in coming months. Other non-APHC secessionist figures like Naim Khan, Azam Inquilabi, Ghulam Nabi Hangroo, Hashim Qureshi and Fazl-ul-Haq Qureshi could also join such a process.

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But like his namesake, Shabir Shah has something of a credibility problem. In April 1998, he confessed to holding a staggering Rs. 60 lakhs in cash and Rs. 40 lakhs in the form of "four or five bungalows". The assets, Shah admitted, had come from donations from overseas Kashmiris for "the cause" - presumably his now-defunct terrorist group, the Muslim Janbaaz Force. He offered no explanation of why he had been holding on to cash instead of spending it for the purpose it was donated. Shah was forced to come clean with the disclosure of his assets after a one-time aide, Naim Khan, threatened to blow the whistle on the People's League's finances. Pushed to the wall, Shah responded by saying the money will be deposited in a trust to be used for rehabilitating those orphaned by militancy, and paying for the marriages of victims' children. There has been little word on the trust since, and the confession did little to dispel public outrage about Shah's financial misconduct.

Even if figures like the two Shahs join a dialogue, then, neither they nor other minor politicians appear to have the influence to shape events on the ground. Those who do have made clear their rejection of Pant in the most unequivocal possible way. The Jamaatul Mujahideen, for one, warned that the organisation will "not allow anyone in Kashmir to become another Yasser Arafat".

Al-Umar went even further. Its chief, Mushtaq Ahmed Zargar, the terrorist released to secure the lives of the passengers of Indian Airlines Flight 814 held hostage in Kandahar in December 1999, asserted that "the only solution lies in jehad", and promised to use force against Shabir Shah. The Srinagar-based Dukhataran-e-Millat, a far-right women's organisation, even described Shah as an "infidel".

Sadly, it is clear that such communal venom has a growing constituency in the Kashmir Valley. For the past several months, religious themes and issues have become the principal mode of mass mobilisation, and this is a disquieting trend. In the latest such episode, mobs in Srinagar protested on April 21 after Time magazine reproduced a two-century old Turkish painting of the Prophet Muhammad with the angel Gabriel, now housed in a museum. Such iconographic representation is forbidden in orthodox Islam, and anger against the perceived blasphemy provoked rioting and clashes with the police. Several people were injured when teargas and baton charges were employed to disperse crowds.

New Delhi had been hoping that the U.S. government would be able to influence far right terrorist groups through the agency of Pakistan to allow the dialogue process to proceed. With the release of the U.S. State Department's annual report on global terrorism, those hopes are fading. The report does assert that General Pervez Musharraf's regime "continued the previous Pakistani government support of the Kashmir insurgency", and notes that "militant groups continued to operate in Pakistan, raising funds and recruiting cadre". It did not, however, designate the Lashkar-e-Toiba or the Harkatul Mujahideen, both international terrorist organisations.

Indian security forces have switched back to an aggressive operational mode, notwithstanding the fact that a ceasefire is still supposed to be in place. Security force personnel have now been ordered to take on terrorists where information exists that they may conduct acts of violence, a sharp departure from earlier ceasefire-period mandates not to initiate combat operations.

Guns, it would seem, will shape the course of events in Jammu and Kashmir this summer, as they have done every summer since 1989. Six months into the Ramzan ceasefire, peace is as elusive as ever.

Children as commodities

The Andhra Pradesh government initiates action to check the adoption racket, but the lack of clarity about rules and procedures at various levels raises doubts about its effectiveness.

STUNG by the criticism of its attitude to the murky business that has been going on in the name of inter-country adoption, the Andhra Pradesh government issued on April 18 an order banning the 'relinquishment' of children by their biological parents. While it may help curtail the business in babies in the short run, it might ultimately prove counterproductive as parents who are desperate to relinquish their children may just abandon them or resort to practices such as infanticide. Further, there is the question whether the ban will pass the test of legality. Lawyers have expressed the view that it could be violative of the Central Adoption Resource Agency (CARA) guidelines that govern both in-country and inter-country adoptions. Many people feel that stricter enforcement of these guidelines could have been a better way of handling the situation.

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While the G.O. has evoked different reactions among those associated with adoption, there is unanimity in the view that the State government was slow to react. For over a month, investigations by the police, the media and voluntary agencies have prima facie shown that adoption is a lucrative business in Andhra Pradesh.

A number of institutions, most of them based in Hyderabad, have been asked to stop operations relating to adoption or have been put on the watch-list. The Action for Social Development (ASD), a voluntary organisation, had been functioning despite CARA cancelling its licence in 1999. On April 20, officials of the Andhra Pradesh Department of Women Development and Child Welfare (WD&CW) transferred 34 children in the case of the ASD to the State government-run Sishu Vihar (Children's Home) in Hyderabad. On April 21, they shifted 60 children from the John Abraham Memorial Bethany Home at Tandur, 110 km from Hyderabad, to Sishu Vihar and Niloufer Hospital. The Home has been accused by the Karnataka Police of violating adoption procedures. Hospital records showed many children from the Home as having been immunised months after they died. The authorities of Bethany Home had even buried an infant in the backyard of the home, that too without obtaining a death certificate.

On April 24, the Andhra Pradesh Police rescued from a house in Hyderabad six children who were in the custody of the staff of the John Abraham Memorial Bethany Home. On April 26, WD&CW Department officials shifted to Sishu Vihar 61 children from Precious Moments, an adoption centre at Miyapur on the outskirts of Hyderabad. Similarly, children from adoption centres such as Sparsh, Radhakrishna Home and the Social Action for Social Development, all located in Hyderabad, were shifted to Sishu Vihar. In all 188 children, the majority of them below two years, were moved to Sishu Vihar.

The WD&CW Department hopes that these children, who were relinquished to middlemen or to adoption homes, will now be reclaimed by their biological parents. A notification inserted in leading newspapers asked such parents to reclaim their children within a month after producing documents in support of their claim - a photograph and the birth certificate of the child, evidence of having handed over the child to the adoption home, a copy of the complaint lodged with the police about the missing of the child, and so on. A similiar exercise carried out in 1999, when 228 children were 'rescued' from adoption centres, was not a great success; only parents of five children responded.

Asked whether they would now reclaim their children, a number of Lambadas replied in the negative. The practice of giving female children for adoption is widely prevalent among this nomadic community (Frontline, May 11). But WD&CW Department officials are confident of a better response this time. On May 1, Kaiser Begum and Mahabub Ali 'reclaimed' their six-year-old daughter Sahivi whom they had lost in November.

Chief Minister N. Chandrababu Naidu has announced that the Criminal Investigation Department (CID) would inquire into the working of the adoption agencies. But the police are not sure under what provisions of the Indian Penal Code (IPC) they can book the accused. Said M.A. Basith, Additional-Director General of Police (ADGP) and head of the CID: "We will decide under what sections to book them after we complete our investigations." That Basith's job will be tough is clear from the fact that Anita Sen, the wife of his colleague Swaranjit Sen (an Additional DGP) and a director of Precious Moments, has been charged under Section 175 (omission to produce documents) and Section 471 (using forged document as genuine) of the IPC.

The State government has announced a reward of Rs.5 lakhs for anyone providing information on Savithri Samson, co-founder of the John Abraham Memorial Bethany Home, who has been absconding since April 6, and Rs.1 lakh for information on voluntary agencies violating adoption guidelines. The search for Savithri Samson has prompted politicans to ask why Anita Sen has not been arrested.

The Chief Minister has announced the formation of a special cell to monitor the adoption homesand orphanages in the State. According to WD&CW Department officials, the Cell would give licences and recognition to such homes and maintain a master list of children who have been either abandoned or relinquished. It will also have the power to inspect and seal any adoption centre if it violates rules. The State government will evolve the rules after the formation of the Cell.

The recent events led to a war of words among the representatives of CARA, which functions under the Union Ministry of Welfare and Social Justice, the Voluntary Coordinating Agency (VCA), the nodal adoption agency in the State, and the State government. CARA grants recognition to child adoption agencies on the recommendations of the respective State government, but Andhra Pradesh government officials refuted accusations that they had failed to check the illegal business. Said an official: "The homes were not under our control. Those who had given the homes licences, such as CARA, have to monitor them. It is only after the crisis broke out that the State government is thinking of framing rules and giving us the power to monitor these homes."

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CARA denied the charge that it had been careless in issuing licences. Its chairperson Andal Damodaran said: "Sitting in Delhi, we are not in a position to cross-check documents." An agency that will have to take much of the blame is the VCA, a voluntary body that is registered under the Registration of Societies Act and recognised by the State government. Andal Damodaran said that the VCA in Andhra Pradesh had not sent CARA even a single note. "An active VCA should be coordinating with all the adoption agencies and scouting for prospective Indian foster parents," she said.

Defending the VCA, one of its members said: "We are a very small voluntary body, not a State or Central government body. It is impossible for us to stop the relinquishing of children. The relinquishing document is a secret document. We have written several times to CARA to permit us to see the document, but nothing has happened. We only get to know of the relinquished child when the adoption process is already into two months. By then anything could have happened. Till May 2000 we did not even have an inspection committee, which is mandatory under Chapter 3 of CARA guidelines. Similarly, we did not have monitoring rights till May 2000. That function had to be done solely by the State government.

The VCA also criticises the State government for having failed to create an advisory board on adoption under Chapter 3 of the CARA guidelines. "In 1999 it existed but no meeting ever took place. The board has to meet regularly and specifically to discuss child welfare measures to promote in-country adoption," the VCA member said.

A myriad of rules are also causing problems. Said a State government official: "We wanted to cancel the licences of some of the adoption agencies. Since they are registered under the Registration of Societies Act, we wrote to the Registrar. He said that he had the power only to register (societies) but not to cancel or withdraw (the registration). After a further reading we got to know that the government alone is competent to cancel (the registration). But then the question was which government, State or Central? CARA should be more vigilant and active since it can take action under the Juvenile Justice Act."

The adoption agencies have their own list of complaints. Said Roda Mistry of the Indian Council for Social Welfare (ICSW), one of the four recognised agencies in Andhra Pradesh for inter-country adoption which is now in trouble because of its connections with Precious Moments: "We are doing things according to CARA guidelines. Under Sections 429 to 431 a recognised agency can take babies from an unrecognised agency, rehabilitate them and send them for adoption. Why then this hullabaloo? Anita Sen (of Precious Moments) was getting babies from Joan Reddy, the wife of a village sarpanch in Devarkonde, rehabilitating them, and then sending them to me. Let them (State government) also talk of their mistakes. Even today no agency has been registered for in-country adoption in Andhra Pradesh. We are currently doing Indian adoptions on the strength of CARA guidelines. The State Government can inspect us tomorrow and say that what we are doing is illegal." Mistry is also annoyed that the WD&CW Department, which had recommended that her licence be renewed in January, complained against her institution after the scandal broke out.

Many non-governmental agencies question the provision to give the ICSW a licence to facilitate adoptions. According to them, it is only a scrutinising agency. The ICSW's office is located in the premises of Niloufer Hospital - a violation of the CARA guideline which states that an adoption home should not be located in the same compound as a hospital/nursing home/ maternity ward since it could lead to unhealthy practices.

Similarly, St. Teresa's Tender Loving Care Home (TLCH) is located in the premises of St.Teresa's General Hospital.

Said P. Jamuna, secretary, Gramya Resource Centre for Women, "CARA and the VCA are controlled by people who are in the adoption business. How can there be effective monitoring or rules? It is quite natural that they will make rules that suit themselves."

In the wake of the scandal, agencies such as the TLCH act with a modicum of caution. On the basis of advice from their advisory boards, they have become less aggressive in procuring children. But it is the children who continue to suffer, as state agencies meant to regulate adoption look the other way, while adoption agencies make "comfortable money."

The art of circumvention

ADOPTIONS in India are governed by guidelines laid down by the Supreme Court, in its judgment in the Lakshmikanth Pandey vs Government of India case in 1984, and by the Central Adoption Resource Agency (CARA). As per these guidelines, a baby can be given in adoption by an agency only if it is voluntarily relinquished or abandoned. It is said that there is more room for manoeuvre in the case of relinquished children than in the case of abandoned ones.

Each adoption centre has about 20 agents scouting around in rural areas for babies. They encourage people to give away their female babies for prices ranging between Rs.500 and Rs.3,000. After the 'transaction' the baby is handed over to the adoption home. There are instances of babies being 'booked' even before they are born.

Procedure requires that the parents be first counselled against giving away their baby. They can take the child back within 60 days of relinquishment. After relinquishment, the baby and its biological parents have to be photographed and their addresses noted down. In the case of inter-country adoption, the prospective adoptive parents have to apply to the Voluntary Coordinating Agency and the scrutinising committee for clearance and to CARA for a 'no objection certificate'. Then the family court will have to pass an order making the child legally free for placement. In some instances, the requirement of a court order is dispensed with. In the case of in-country adoption, the file relating to adoption is "just left in the court" and not registered. These procedures take about nine months.

In many cases the relinquishing document is not signed by the child's biological parents. Even if they are the real parents, they are made to affix their fingerprints on a piece of blank paper. A look at the documents shows that middlemen themselves 'sign' away the children. It is also not difficult to find two witnesses who are required to sign the document. After the child is "relinquished", the agency starts preparing the documents to make the child legally free for adoption.

Although the adoption centres are supposed to give first priority to Indian couples (who pay around Rs.30,000), they prefer inter-country adoption because it is more lucrative. The majority of homes collect $3,000, which includes the fees for the child's visa and passport and Rs.150 for each day that the child stays at the home. In the case of inter-country adoption, the child is at times handed over to the adoptive parents without following the procedures. They take the child along with them, claiming that its parents reside abroad and that they are only escorts. A child taken away in this manner will have no legal or hereditary rights and could end up as a domestic help. And, more important, it will have no agency monitoring its progress in an alien environment.

Investigations reveal that adoption agencies in Andhra Pradesh by and large have at one time or the other violated CARA guidelines. Many of them stand accused of soliciting babies and paying for them, falsifying documents, substituting the names and photographs of babies who have died with new ones, dealing directly with representatives of foreign adoption agencies, ignoring the role of CARA, and so on.

With adoptions embroiled in a controversy in the State, children whose adoption has already been cleared have been forced to wait longer in the homes. Family Courts in Hyderabad are also expected to seek more time to clear pending files of adoption.

'Jayalalitha can create good conventions'

cover-story

Frontline met Cho S. Ramaswamy, Editor of the Tamil weekly Thuglak, to get his views on the issue of Jayalalitha's disqualification. Excerpts from the interview he gave T.S. Subramanian:

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You said recently that there was no legal bar on Jayalalitha being sworn in Chief Minister. But you also pointed out that Union Ministers Sedapatti R. Muthiah or Bihar Chief Minister Laloo Prasad Yadav had to resign when charges were framed against them.

The Constitution has not laid down that only persons who are not disqualified on the date of the Governor's invitation can become Chief Minister. In the Article empowering the Governor to invite a person to take office as Chief Minister, the Constitution could have said the person so appointed by the Governor shall on the date of such invitation be one who does not suffer any disqualification as prescribed in law. It has merely said the Governor will appoint the Chief Minister and if the person concerned does not become a member of the Assembly in six months, he will lose the post.

Let us look at it in an academic way. A person has been convicted and sentenced to two years imprisonment and has been disqualified to contest the elections. But if the MLAs of the majority party elect that person as their leader, and that person stakes claim to form the government, can the Governor say, "I don't see any chance of your becoming an MLA"? The higher court may turn aside the lower court's judgment or it can reduce the sentence to less than two years or it could grant a stay on the conviction. Any one of these eventualities will enable the person to contest a byelection. How can the Governor anticipate the judgment of the appeal court and say, 'No, I don't think any court will allow your appeal'?

Supposing the appellate court does not turn aside the conviction within six months...

He or she will lose the office (of chief ministership).

Take a hypothetical situation. Now 234 members (the strength of the Tamil Nadu Assembly) are elected and the Assembly is full. There is no vacancy. But the majority party chooses a person from outside the Assembly to lead them. Can the Governor say, 'I see no possibility of your becoming an MLA because all seats are filled'? (If) the Governor can tell a person in the earlier instance that there is no possibility of his appeal being allowed, the Governor can say now in this context that he sees no possibility of a seat falling vacant. What is the guarantee that one person will resign? Why should the Governor administer the oath of office to someone from outside the Assembly when all the seats are filled and there is no possibility of anybody getting elected?

Supposing the Governor wants to go into the morality of the entire issue, the Governor has to take this into consideration. The Representation of the People Act allows a sitting MLA or member of Parliament to contest the election and become an MLA or MP even if he or she has been subjected to a conviction and sentenced to imprisonment. Such a person can now become Chief Minister because he is qualified to contest. There is no disqualification attached to him or her. You take the case of Balakrishna Pillai in Kerala. Supposing he had been in Tamil Nadu. He does not contest the election but he is still qualified under the Representation of the People Act (to contest the election) because he is a sitting MLA. Can he stake his claim?

To become the Chief Minister?

Yes, to become the Chief Minister. The Governor cannot tell him, 'You are disqualified.' He is qualified under the exemption given under Section 8 (4) of the Representation of the People Act. So where is the morality in that? A sitting MLA in an Assembly can contest the election, or even without contesting the election, he is qualified and can become the Chief Minister. But a person who is not an MLA, if he gets convicted, cannot stake his claim. What is the morality in this?

Going into conventions, persons against whom charges have been framed have had to vacate their office. Laloo Prasad Yadav had to go. Sedapatti Muthiah was asked to go. There are several such instances. If that is so in the case of persons against whom there is no conviction as yet, the same should apply to the person already convicted. But as per this convention, it cannot apply to a person who has been convicted and held to be disqualified under a statute.

Unless and until that conviction is stayed and acquittal obtained, that person cannot assume office as per convention. But will these conventions be accepted as law or not? The courts have not so far given an opinion on this matter. The courts have not so far said the persons against whom charges have been framed cannot continue as Minister or Chief Minister. The matter has not so far reached the courts.

The conventions are political conventions. But depending on the attitude of the judge who hears such a case in future, it may be held that the Constitution should not be interpreted in a manner that will lead to absurdities because political conventions have been built in such a way that even persons facing charges cannot hold office. That convention must be accepted, and he may decide the case accordingly, saying that it is the spirit of the Constitution. Or a different judge may say that he can only go by what the Constitution has explicitly stated. Since the Representation of the People Act allows a sitting MLA to get elected and become the Chief Minister even while facing a sentence of more than two years, there is no reason why a person who has gone in appeal against his conviction should not assume office. That may the view of another judge. It all depends on the attitude the judge takes.

But in my opinion, no law should be interpreted in such a manner that it will lead to absurd conclusions. The conclusion that a convicted person cannot become an MLA but can become a Chief Minister should not be read into the law because it will not be a good precedent. So in my opinion Jayalalitha will be well advised to opt out of the race for chief ministership even if she wins majority and thereby help create good conventions. The letter of the law is in her favour. But it will be better if she acts in favour of creating good conventions.

A fierce fight

T.S. SUBRAMANIAN cover-story

In one of Tamil Nadu's most bitter electoral battles, neither do adverse findings by pollsters fail to unnerve the Dravida Munnetra Kazhagam workers nor does Jayalalitha's disqualification dampen the spirit of her party's cadre.

THERE is no wave or visible anti-incumbency sentiment, nor is there any big issue that apparently affects the daily lives of the people in Tamil Nadu. Yet the elections to the State Assembly to be held on May 10 are the most fiercely fought in recent times.

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The main contenders are the National Democratic Alliance (NDA) headed in the State by the ruling Dravida Munnetra Kazhagam (DMK), and the front led by the All India Anna Dravida Munnetra Kazhagam (AIADMK) and comprising the Congress(I), the Tamil Maanila Congress (TMC), the Pattali Makkal Katchi (PMK) and the Left parties. The separate presence of the Marumalarchi Dravida Munnetra Kazhagam (MDMK) makes it a triangular fight as it were.

The important developments during the run-up to the elections have been the rejection of nominations filed by AIADMK general secretary and former Chief Minister Jayalalitha in four constituencies and the sharp polarisation of voters on caste and even linguistic lines. The rejection of Jayalalitha's nominations in Andipatti, Krishnagiri, Bhuvanagiri and Pudukottai constituencies led to strong exchanges between NDA leaders and Jayalalitha.

The nominations were rejected on two grounds. One was that she had been convicted and sentenced to two years' and three years' rigorous imprisonment by a Special Judge in October 2000 in two cases of corruption, and the second was that she had filed nominations from more than two constituencies. According to Section 8(3) of the Representation of the People Act (RPA), a person convicted and sentenced to imprisonment of not less than two years shall be disqualified (from contesting the elections) from the date of conviction and shall be disqualified for another six years after release. Section 33(7)(b) of the RPA, introduced in 1996, states that "a person shall not be nominated as a candidate... from more than two Assembly constituencies in that State."

If DMK president and Chief Minister M. Karunanidhi and his allies were careful not to make too much of the rejection of her nominations, Jayalalitha concentrated on whipping up public resentment on the issue and capitalising on the resultant sympathy. She branded it "the victorious culmination of five years of conspiracy". She asserted that she is the chief ministerial candidate of her secular front.

Karunanidhi explained that the law took its course in her case. He pointed out that her nominations had been rejected under the Election Commission of India Order dated August 28, 1997, which directed Returning Officers to decide the validity or otherwise of the nominations of contestants disqualified under Section 8 of the RPA. Karunanidhi asked: "When the law does its duty, how can it generate any sympathy wave?" He added: "To be frank, I am not happy over the rejection of her papers. In a democratic battle I want to take on the enemy face to face. I don't want to fight the enemy after tying up his/her hands. But if the enemy has willingly trapped herself, how can I be held responsible for it?"

JUST as the opinion polls published by a section of the press predicting a sweep for the AIADMK-led front have not unnerved the DMK and its partners, Jayalalitha's disqualification has not dampened the fighting spirit of AIADMK cadres. At Tiruverumbur in Tiruchi, T. Arivazhagan, a 50-year-old DMK functionary said: "The poll surveys will only galvanise us further. We will win a simple majority." At Tirumangalam, an AIADMK stronghold near Madurai, a shopkeeper said the party's cadres "have risen with fervour" and there was a "mountain of sympathy for Amma."

The Tamil Nadu Assembly has 234 seats. The DMK-led front is a conglomeration of 18 parties. The DMK is contesting from 167 constituencies and its principal ally, the Bharatiya Janata Party, in 21 constituencies, on its lotus symbol. Nine other parties (the Puthiya Tamizhagam, a Dalit-based political party; the MGR ADMK; and caste-based parties such as the Makkal Tamil Desam, the New Justice Party and the Kongu Nadu Makkal Katchi) are contesting on their symbols from 30 constituencies. Six parties are contesting on the DMK's rising sun symbol in 16 constituencies. These include Dalit Panthers (eight seats).

The AIADMK has fielded candidates in 141 constituencies, the TMC in 32, the Congress(I) in 15, the PMK in 27, the Communist Party of India (Marxist) and the Communist Party of India (CPI) in eight each, and the Indian National League, the Forward Bloc and the Tamizhaga Munnetra Kazhagam in one each.

The MDMK, headed by Vaiko, is contesting as many as 213 seats. The party, which pulled out of the NDA in the State but continued in the government at the Centre, has not fielded candidates in the remaining 21 constituencies that are contested by the BJP.

IN spite of the bitterness, the campaign has largely lacked punch, partly because elections have come to be held all too frequently. Another factor is the Election Commission's strict monitoring of the code of conduct, which bars parties from using for graffiti the compound walls of government-owned buildings, or private buildings if the owners objected. Workers of the DMK erased the 'rising sun' symbols painted on the long wall of the government-run Queen Mary's College in Chennai. There was virtual inactivity as this correspondent drove around Villupuram, Panruti, Nellikuppam, Sivakasi, Kovilpatti and Tirunelveli constituencies. But where political heavyweights such as K. Kalimuthu of the AIADMK (Tirumangalam), K.K.S.S.R. Ramachandran (Sattur), R. Karuppasamy Pandian (Tenkasi) and Minister K. Ponmudi of the DMK (Villupuram) are in the fray, the campaign is high-profile and colourful.

There are no public meetings at night, and long-winded speeches are out. The stress is on personal contact through door-to-door campaign. At Sattur, Ramachandran was going round Anna Nagar in an open jeep, promising voters implementation of the Irukkangudi water scheme. At Tirumangalam, AIADMK women cadres were doing intensive door-to-door campaign for Kalimuthu, who is recovering from a heart surgery. At Chepauk, Chennai, where Karunanidhi is in the fray, the DMK volunteer force, led by State secretary Nanjil R. Kennedy, went round the narrow bylanes, canvassing votes. Kennedy said, "We are not bothered by poll surveys. I have gone all over the State and I know the people's mood."

Travelling in vans, Karunanidhi and Jayalalitha adopted different campaign styles. Karunanidhi often stepped out of the van to climb a podium and address big gatherings. The speeches - the candidate spoke first, and then Karunanidhi - were short. In villages, Karunanidhi would cite the prices of essential commodities when Jayalalitha was Chief Minister from 1991 to 1996 and compare them with the lower prices since 1996. The skilled orator that he is, Karunanidhi varied the tenor and content of his speeches. A point he highlighted was his government's achievements: competing with Maharashtra, Tamil Nadu had reached the first place in attracting industrial investments; the State had the largest pool of software engineers; his government had framed a separate policy for Information Technology; it had set up software parks; Tamil Nadu stood first in controlling AIDS, infanticide and polio; and so on.

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Never getting out of her van, Jayalalitha addressed wayside gatherings, often reading out prepared speeches. She spoke about the plight of weavers, peasants and construction workers under the DMK government. She alleged that illicit liquor flowed everywhere and that terrorism and secessionism had struck roots in the State in the past five years. She charged Karunanidhi with paving the way for dynastic rule by grooming his son and Chennai Mayor M.K. Stalin as his successor. She drew massive crowds at Pollachi, Udumalpet and Madathukulam, almost wherever she went, in Coimbatore district. Women demonstrated their affection for her by stepping up to her van and offering a tender coconut here and guavas there, besides performing the traditional "arati".

After April 24, the rejection of nominations dominated the campaign. As the news reached her at Tirupattur in Sivaganga district, Jayalalitha stepped out of her van and climbed on an open jeep. Quoting from a song from a film featuring AIADMK founder and actor M.G. Ramachandran, she said, "Let people there (in the rival camp) laugh with arrogance. But on the day of the verdict, we shall know who is going to laugh and who will weep." She alleged that pressure was brought on the Returning Officers to reject her nominations.

The Chief Minister, answering her allegations, said his government filed cases against her because in the 1996 elections people had given his party the mandate to punish the corrupt. He accused her of having consciously filed nominations from four constituencies.

WHAT many voters find disturbing is the DMK aligning itself with caste parties, which is contrary to the party's basic principle of fighting casteism. Among its allies are the New Justice Party claiming to represent Mudaliars, the Makkal Tamil Desam (Yadavas), the Kongu Nadu Makkal Katchi (Gounders), the Mutharaiyar Sangam (Mutharaiyars), the All India Moovendar Munnetra Kazhagam (Mukkulathor) and the Tamizh PMK (Vanniyars). Interestingly all these parties are of recent origin.

On the National Highway between Tirumangalam and Sattur, a labourer belonging to a group strengthening the road asked:

"Why should Karunanidhi tie up with caste parties?" At Tiruppur municipal colony peopled by Dalits, B. Eswaran, a young hosiery worker, was angry that the DMK had joined hands with the caste parties. Although a Dalit himself, he argued that Puthiya Tamizhagam and Dalit Panthers were also caste parties. N. Rajesh, his friend, asked, "How can Tirumavalavan join hands with the BJP, which is against Dalits?" Eswaran added, "Dalits are angry that they have been made a vote-bank for the BJP."

But Lakshmi and Pandiammal, Yadava women who had reached Sembar village near Usilamaptti, herding their goats from Kadaladi, did not hesitate to say that they would vote for "udaya sooriyan" (rising sun, the DMK's symbol) because "our leader (S.) Kannappan", founder of the Makkal Tamil Desam, had aligned with the DMK. Sekar, son-in-law of Pandiammal, said, "My 'iyah' (father) and I have been voting for AIADMK only. But I will vote for the DMK this time because of the 'koottani' (alliance)".

Similarly, a big chunk of Dalit votes will transfer to the DMK because of its alliance with Puthiya Tamizhagam and the Dalit Panthers. As the Frontline team drives from Ettaiyapuram and enters Kakkarampatti, a board says: "Puthiya Tamizhagam welcomes you." This is the heartland of the party in the Ottapidaram (reserved) constituency, from where its founder Dr. K. Krishnasamy is contesting. His opponent is A. Sivaperumal of the AIADMK. Krishnasamy, a medical practitioner, is contesting also from Valparai.

Ottapidaram is a sensitive constituency where the animosity between Mukkulathors and Pillais on one side and Dalits on the other run deep. Police jeeps ply up and down the constituency. Fear hangs over Ottapidaram itself, a big village. Men are afraid to talk. They claim that it is difficult to predict the outcome. The police, however, feel that any violence that would break out here this year would be of a small scale compared to what happened in 1996, when Dr. Krishnasamy was elected.

At nearby Rangarajapuram, Chellaiah, a Dalit, said Puthiya Tamizhagam supporters would vote for DMK candidates, but DMK voters would not vote for Puthiya Tamizhagam candidates (because most of the former are caste Hindus)".

Dalits are clearly disenchanted with the mainstream political parties. When Puthiya Tamizhagam and the Dalit Panthers were founded, they were thrilled because "men belonging to our own community have raised their flags." Even elderly Dalits, who were with the DMK or the AIADMK for decades, jumped on to the bandwagon. More than men, women in the villages near Villupuram and Pondicherry were vociferous in their support of Dalit Panthers leader Tirumavalavan.

In the Vanniyar heartland of Villupuram, Panruti, Nellikuppam and other places, the support for the AIADMK/PMK was clear. At Panruti, former AIADMK Minister S. Ramachandran is contesting as a candidate of the People's Liberal Party, against Dr. Ramasamy (DMK) and D. Velmurugan (PMK). All the three are Vanniyars. There is some popular disenchantment with Dr. Ramasamy.

People are divided on the basis of not only caste but language. Telugu-speaking Naickers belonging to the Kammawar and Rajakambalam Naidu sects are mostly with the MDMK in many constituencies. At P. Kumaralingapuram near Virudhunagar, elderly residents said that they would vote MDMK. The village has a population of 2,000, mostly Kammawar and Rajakambalam Naidus. The residents said that the Virudhunagar constituency had about 35,000 Kammawar and 37,000 Rajakamabalam Naidus and about 8,000 Telugu-speaking Reddiars. "Most of them will vote for the MDMK," they said.

DESPITE the comparatively good performance of the government, the DMK's chances may be affected by the fall in the prices of agricultural produce. Farmers everywhere complained about the unremunerative prices obtaining for paddy, sugarcane, coconuts, oilseeds and cotton. According to them, the procurement prices of Rs.325 for 75 kg of paddy and Rs.600 for a tonne of sugarcane, would simply not suffice. The steep rise in cement prices was another sore point. A farmer said, "It has gone up from Rs. 160-180 a bag to Rs.205." Pointing to a half-finished house, he said, "Look at that house. Its construction has stopped." Construction activity had slowed down, many people complained. A farmer in Kansapuram near Srivilliputhur warned that farmers would commit suicide if they did not get remunerative prices. A youth had committed suicide but the police reported other reasons for his death, he said.

People also complain of a "lack of money circulation". According to a grocer near Coimbatore, about a hundred bought people groceries from his shop every day until three years ago. "Hardly 10 people come to my shop now," he said. Eswaran, a Dalit youth of the Tiruppur municipal colony, was not impressed with the DMK government's development schemes. He said, "Any government can lay cement roads, conduct medical camps, set up factories and so on. But there is no 'money circulation' now. There is no economic development."

Resentment runs high among the workers of mills that were closed in Coimbatore. At Singanallur, outside the closed Rajalakshmi Mills, a hoarding says: "Let us boycott the polls. If the grant of Rs.250 a month announced by the Tamil Nadu government for workers of closed mills is not given immediately, we and our families will boycott the elections." The hoarding has been put up jointly by a number of trade unions. On the mill's compound wall is a DMK graffiti: "Oh, Tamilians, let this golden age continue. Vote for the 'rising sun". A few feet away is the MDMK's hoarding asking party cadres to gather like "ocean waves" to listen to Vaiko speak on April 14 when he announced the names of MDMK candidates. The public meeting attracted thousands of cadres from all over Tamil Nadu.

According to K. Devaraj and C.M. Kanthanathan, secretaries, Hind Mazdoor Sabha (HMS) at Singanallur, 29 industrial units had closed down in Coimbatore, 24 of them spinning mills and five textile engineering industries. About 20,000 workers were unemployed. All the units had closed because of mismanagement. Kanthanathan said that all the mills had reserve funds until 25 years ago but had nothing now. Devaraj said that if the mills were not reopened, "there will be suicides in Coimbatore, just as handloom weavers in Andhra Pradesh committed suicide."

P. Chidambaram, the former Union Finance Minister, has provided a new angle to this round of elections. He left the TMC in protest against its alliance with the AIADMK and formed the TMC Democratic Front (TMCDF). He has set a punishing schedule for himself, travelling all over the State, drawing sizable crowds. Chidambaram argues that Jayalalitha cannot provide "good governance".

Chidambaram says the TMC wanted to form an alternative (to both the DMK and the AIADMK). "But some compartments in the TMC train derailed on the way. I want to put the coaches back on the rail and drive the train on the proper path." On the rejection of Jayalalitha's nominations, he says: "The law has not bent to accommodate her." He ridicules her claim that she will become Chief Minister if the AIADMK is voted to power. "A big question mark should be put next to her claim," he says.

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INFIGHTING plagues both the fronts. The AIADMK denied the TMC 19 seats the latter held, appropriated 16 and gave three to the PMK. The TMC got 19 new seats where its strength is untested. Several TMC legislators who could not contest have entered the fray as independents or pledged support to the DMK-BJP combine. For instance, A.S. Ponnammal is seeking re-election from Nilakottai, which she has represented in the Assembly for several terms, as an Independent this time, against K. Anbazhagan (AIADMK). K. Ravi Arunan, who lost his Tenkasi seat in the TMC-AIADMK deal, joined the BJP and pledged support to R. Karuppasamy Pandian (DMK). P. Veldurai, The TMC legislator from Cheranmadevi, has announced support to S.S.N. Chockalingam (BJP) against P.H. Manoj Pandian (AIADMK). At Radhapuram, TMC MLA M. Appavu is contesting as an independent.

The DMK denied the ticket to three legislators, Gomathi Srinivasan, K.K. Veerappan and R. Manimaran, and later suspended them for anti-party work. The three were among the 74 sitting members of the Assembly who were replaced by newcomers. Adding to the resentment in the party is the fact that many of those given the ticket are Stalin's men. Karunanidhi's another son, M.K. Alagiri, is campaigning in Madurai West against Assembly Speaker P.T.R. Palanivel Rajan of the DMK.

In the AIADMK too, some of those denied the ticket have raised the banner of revolt. At Vellakovil, Durai Ramasamy, a local leader, is contesting as an independent. At Srivilliputhur, the maverick legislator R. Thamaraikani is in the fray as an independent against his son T. Inbathamizhan who has been nominated by the AIADMK. Thamaraikani alleged that conspiracy by Jayalalitha to split his family.

There is a byelection to the Tiruchi Lok Sabha constituency, caused by the death of Union Minister Rangarajan Kumaramangalam of the BJP. The BJP candidate is M.N. Sukumar Nambiar, and his rival is Dalit Ezhilamalai of the AIADMK. The BJP, which went into hibernation in this constituency after the death of Rangarajan Kumaramangalam on August 23, 2000, is working hard for Nambiar now. The AIADMK here is faction-ridden. Its district secretary T. Rathnavel was removed and A. Murugaiyan appointed in his place. Dalit Ezhilmalai is backed by the CPI(M), which has considerable presence in the industrial belt.

The constituency consists of six Assembly constituencies - Tiruchi-1, Tiruchi-2, Srirangam, Tiruverumbur, Lalgudi and Musiri. Of these six, DMK is contesting in five and the BJP in one. The AIADMK is contesting only in three and has allotted the remaining three to the CPI(M), the Muslim League and the Congress(I).

FROM April-end, the two fronts stepped up their campaign by fielding big guns, who included CPI(M) general secretary Harkishan Singh Surjeet, CPI general secretary A.B. Bardhan, Chattisgarh Chief Minister Ajit Jogi and Union Home Minister L.K. Advani (BJP). Jayalalitha frankly raised the stakes in the last lap by telling her cadres on April 30: "Nobody should forget that this election decides our life or death."

The Pondicherry scene

T.S. SUBRAMANIAN cover-story

BY the last week of April, the Union Territory of Pondicherry was far ahead of neighbouring Tamil Nadu in terms of campaign tempo and election-related activity as reflected in wall graffiti, festoons and the number of election offices.

The DMK has mounted a hectic campaign in the company of the nascent Pondicherry Makkal Congress (PMC) headed by P. Kannan, the Bharatiya Janata Party, the Dalit Panthers and the Janata Dal (United). Matching the DMK-led alliance or even ahead of it, is the ruling front comprising the Congress(I) and the TMC in tandem with the CPI. The third alliance comprises the AIADMK and the PMK.

The Pondicherry Assembly has 33 seats, including 30 elected and three nominated members. While the DMK is contesting 13 seats, its allies the PMC has put up candidates in nine, the BJP five, the Dalit Panthers in two and the Janata Dal (United) in one. In the casse of the other front, the Congress is contesting from 21 constituencies, the TMC seven and the CPI two. The AIADMK has fielded candidates in 20 constituencies while the PMK is in the fray in 10. The MDMK is also in the field.

The AIADMK-PMK alliance is nowhere in the race. The people of Pondicherry appear to be hostile to this front after the AIADMK and the PMK reached a pact in March by which a PMK nominee would be the Chief Minister for the first two and a half years, and an AIADMK nominee would head the government for the next two and a half years if the alliance was voted to power. The agreement was signed by AIADMK general secretary Jayalalitha and PMK founder Dr. S. Ramadoss. The PMK is essentially a Vanniya-dominated party. Pondicherry has a sizable population of Vanniyas.

Dr. Ramadoss was keen to instal a Vanniyar as the Chief Minister of Pondicherry in 2001 and worked hard for several weeks in February and March to achieve this end. Inexplicably, he seems to have given up Pondicherry. "He is not to be seen here nowadays," said a voter. It would seems that the PMK cadres too have switched themselves off.

Chief Minister and Congress(I) leader P. Shanmugham and Pondicherry Congress Committee president V. Narayanaswamy are not contesting. Congressmen claimed that these two leaders were not in the race because they wanted to devote their energies to enable the alliance to return to power. But inside information was that Shanmugham's candidature was "sabotaged". Shanmugham did not attend the function on April 25 at which the Congress(I) manifesto was released. Kannan, who revolted against the TMC leadership and formed the PMC, is also not contesting.

The alliances led by the DMK and the Congress(I) are seeking votes on the strength of their performance. The former lists the achievements of the Janakiraman government during its four years in office and the latter the work done by the Shanmugham Ministry.

The Kasukadai constituency is witnessing a fight between K. Lakshminarayanan, PMC president, and V. Balaji, TMC president.

Kannan had won this seat - three times in - 1985, 1991 and 1996. Balaji is banking on the good work done by the Shanmugham government. "We have given clean government and so command the admiration of the people. Based on this, we will come back to power," he said.

At Mudaliapet, the fight is between Congress candidate V. Sabapathy and PMC candidate M.A.S. Subramanian. The AIADMK's A. Ravindran and the MDMK contestant Muthu are not really in the race. Sabapathy commands the respect of a large section of voters.

Another constituency that is witnessing a keen fight is Villanur, where the PMC candidate J. Narayanaswamy is pitted against Theni C. Jayakumar, a TMC Minister, and Raman of the AIADMK.

Voters blame Dr. Ramadoss for the triangular fight and for breaking the alliance of the Congress(I) and the TMC with the AIADMK. Political analysts point out that Dr. Ramadoss, who had begun the countdown to the inauguration of a Vanniyar Chief Minister of Pondicherry, had stopped it. "There are no sober speeches from the PMK leadership. Dr. Ramadoss' rotational system of Chief Minister is akin to MGR's (M.G. Ramachandran, former Tamil Nadu Chief Minister) suggestion that Pondicherry should merge with Tamil Nadu. The AIADMK came a cropper in the subsequent elections," an analyst said.

The PMK, in several cases, had also denied seats to popular ticket-seekers. For instance, M. Manjini, who left the CPI and joined the PMK, was denied the ticket from Mudaliarpet, where he had been elected in 1996. Manjini has now pledged his support to the DMK. S. Ramsingh, PMK legislator from Ariyankuppam, has been denied the ticket. When the seats were shared with the AIADMK, the PMK eyed the seats held by the Congress but the AIADMK appropriated them, analysts said.

Dalits voters of the Embalam (reserved) constituency are an angry lot. Everywhere in this constituency, Dalit peasant workers, both men and women, were vociferous in their support of Dalit Panthers headed by R. Tirumavalavan. In the fray are S. Palanivel of the Dalit Panthers, Neela Gangadharan of the Congress, M. Nagamani of the AIADMK, and Muthukrishnan of the MDMK. Be it Abhishekhapakkam, Thavalakuppam, Thanampalayam, Nanamedu or Korkadu, Dalits said they would vote for Palanivel because "Tirumavalavan is our leader."

Overall, the fight in Pondicherry is essentially between the Congress-TMC-CPI alliance and the DMK-headed front.

KERALA: Evenly poised

R. KRISHNAKUMAR cover-story

In the last lap, the United Democratic Front seemed to have lost the edge it had over the ruling Left Democratic Front, thanks to the rumblings within the Congress(I) during the seat-sharing exercise.

"PERHAPS the biggest deception in Kerala politics will be laid to rest here in Chertala this time." C.K. Chandrappan, one of the key candidates of the ruling Left Democratic Front (LDF), concluded his campaign speech on this less-than-confident note. His target was A.K. Antony, the Congress(I) leader who defeated him in the 1996 elections. The two major coalitions in Kerala, the LDF and the United Democratic Front (UDF), had decided against changing their candidates, both leaders with unblemished personal records in their long political careers, in the constituency in Alappuzha district. In 1996, Antony, then Chief Minister, defeated Chandrappan by a margin of 8,385 votes in a close race. Kerala thus lost an excellent legislator and gained an uncomfortable Leader of the Opposition. Antony seemed more confident now about his prospects than in 1996. "I am confident that the people of Chertala will not fail me. They know me well. Lies will not work," he said in Thiruvananthapuram.

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Chandrappan thinks otherwise. He told Frontline: "Antony's invincibility is yet another lie. Once the Congress had a very formidable candidate in Vayalar Ravi at Chertala. He was then the Home Minister, son of the soil as we all are. He used to claim that he cannot be defeated. Once he defeated me here in Chertala and the second time we got him. In 1996, Antony approached the people of Chertala after a long gap. He was then the Chief Minister and had the trappings of power attached to him. Not now. He had been an MLA and the Leader of the Opposition for five years. During that time he had come here but occasionally. He had no particular role in development activities in this constituency. He was a big zero in that respect. There is the resultant disillusionment. So this time there is a fair chance that Antony may lose."

In contrast, V.S. Achuthanandan, a senior Polit Bureau member of the Communist Party of India (Marxist), is sure of victory in Malampuzha in Palakkad district, a CPI(M) stronghold held by Finance Minister T. Sivadasa Menon. In 1996, Achuthanandan, widely believed to be the LDF's chief ministerial candidate then, faced a shocking defeat at Mararikkulam in Alappuzha district, considered until then as an impregnable stronghold of the CPI(M). The 1996 elections were held soon after the CPI(M)'s State conference in Palakkad and Achuthanandan had later attributed his defeat to troubles within the party. "We will make sure that the faces at Mararikkulam will not be present there at Malampuzha," he said in Thiruvananthapuram.

The LDF had replaced 40 of its sitting MLAs with new faces, giving representation to youth, the better educated or those who had attained prominence in fields other than politics. Only four Ministers in the E.K. Nayanar Cabinet were contesting again. The CPI(M) had replaced all except one of its Ministers, the young K. Radhakrishnan, who had distinguished himself as Minister for Welfare of Backward and Scheduled Communities. Chief Minister Nayanar, also out of the fray this time, told a meet-the-press programme in the State capital: "No god will be able to engineer Achuthanandan's defeat this time."

Elsewhere in the State, in a remote corner of Puthuppally constituency in Kottayam district, Cheriyan Philip, a Congress(I) rebel, was trying hard to find acceptance as an LDF candidate. Puthuppally is the fief of Oommen Chandy, an Antony loyalist, and a "no-entry zone" for the LDF for the past 31 years. Until recently, Cheriyan was staunch supporter of Antony, the conscience-keeper of Oommen Chandy, and a campaign organiser for both. Now, as a CPI(M)-backed independent he was surrounded by red flags during the campaign and looked very much like fish out of water. But he symbolises the reaction to all that was bad and rotting in the Congress(I) in Kerala. His symbol, a bus, was also symbolic of his promise - "to make the roads of the constituency motorable again" - and a reminder to the constituents of what he alleged was the failure of Oommen Chandy as a legislator. "This is part of my struggle against monopolisation of power by a few in the Congress(I). The trend that one should be an MLA for life should end, that is my slogan," Cheriyan told Frontline. His revolt had surely made Oommen Chandy spare more time and resources to campaign at Puthuppally.

The edge that the UDF seemed to have over the LDF during the initial phase of the election was virtually blunted by the Congress(I) in the course of sharing seats among its four groups, mainly the ones led by former Chief Ministers K. Karunakaran and Antony. And at the end of the exercise, the party was falling apart at the seams. The exercise had steamrolled the aspirations of a lot of young leaders and partymen of long-standing loyalty. Many "rebels" emerged and only the threat of expulsion could make them withdraw their nominations. Four defiant rebels, including Cheriyan, were expelled.

Chandy told Frontline: "Cheriyan's challenge is to the voters of this constituency who had been electing me continuously for 31 years. If it is a monopoly of power, it is in the hands of the voters." As one who played an important role in the selection of candidates, he hinted that lack of dedication to the party was the reason for the rejection of many aspirants. "It is a fact that the party has not been able to bring forward youth in a manner in which it had intended to do. But one reason for this is the failure of Congress(I)'s experiments earlier with people like Cheriyan Philip as party candidates. In 1991, the party had offered the Kottayam seat to a young Cheriyan against CPI(M) leader T.K. Ramakrish-nan. Cheriyan lost only by 2,000 votes. He could have made up that gap in five years, had he continued to work for the party in the constituency. Yet he packed his bags immediately and left and never again bothered about Kottayam. If Cheriyan and his ilk had utilised their opportunity well to justify the party's confidence in them, it would have been a driving force for the Congress(I) to give the youth more prominence in candidate selection." Thiruvananthapuram West in down south was as much the focus of attention for the Kerala electorate as Manjeshwaram and Kasaragod were in the north. The reason: the UDF and the Bharatiya Janata Party allegedly had a symbiotic alliance against the CPI(M). In Thiruvananthapuram West, an area with a dominant presence of the Rashtriya Swayamsevak Sangh, was bristling with posters and wall writings in support of M.V. Raghavan, a candidate of the Communist Marxist Party, an UDF constituent. Raghavan is the CPI(M)'s bete noir since his expulsion from the party.

BJP president Jana Krishnamurthy said in Thiruvananthapuram that the party's limited objective was to make an electoral breakthrough in Kerala. Manjeshwaram and Kasaragod, where it secured second places in 1996, were the most likely constituencies that could help the party achieve this objective with some help. This help, the LDF alleged, would come from the Congress(I) and, in return, the BJP would help the UDF in key constituencies. The BJP did not field its candidates in 10 constituencies, including Thiruvananthapuram West and Pala where Kerala Congress leader K.M. Mani was the candidate. (Mani's party veered towards the BJP in the local body elections held a few months ago.) In Chertala, where Antony was contesting, the BJP-led National Democratic Alliance has put up a candidate who is considered to be a lightweight.

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While Abdul Nasser Mahdani's People's Democratic Party had declared its support for the UDF, the CPI(M) has an "electoral understanding" with Ibrahim Sulaiman Sait's Indian National League (INL). In Kannur, which has witnessed frequent BJP-CPI(M) clashes, INL candidate Kasim Irikkur is backed by the LDF. His main opponent is Congress(I) leader K. Sudhakaran, MLA.

Communally powerful forces were lying low, unlike in 1996 when groups such as the Nair Service Society (NSS) and the Sree Narayana Dharma Paripalana (SNDP) Yogam played an active role, threatening the prospects of many candidates. But with the two major Fronts in the fray accusing each other of having "unholy alliances" with parties that were once considered "untouchables", the picture is hazy in many important constituencies in the State, where even a one per cent shift in support would make a difference to the prospects of either Front.

In Kottarakkara, it was celebration time for R. Balakrishna Pillai, Kerala Congress(B) leader and former Electricity Minister, when the returning officer accepted his nomination papers. He was on bail after being convicted by the Kerala High Court for five years in a corruption case. Balakrishna Pillai seemed to consider the acceptance of his nomination as a vindication of his claim that the case against him was filed out of political vendetta. The two seats allotted by the UDF to his party - Kottarakkara and Pathanapuram in Kollam district - were shared by Balakrishna Pillai and his son, Ganesh, a film actor.

The LDF too had an embarrassment. In Kovalam, the Janata Dal, an LDF constituent, fielded Neelalohita Das, who had been forced to resign as Minister for Transport and Forests after charges of sexual harassment were levelled against him by two officers belonging respectively to the Indian Administrative Service and the Indian Forest Service. Says State Janata Dal president M.P. Veerendra Kumar: "There is a difference between the two cases. Balakrishna Pillai is guilty till he is exonerated by a court. Neelan is innocent till he is found guilty by a court." In Kovalam, the UDF has fielded a woman candidate, Alphonsa John, former MLA from Kundara in Kollam district.

Unusually, local-level development was a predominant campaign issue in Kerala. It is pronounced in Mararikkulam, where P.J. Francis, who defeated Achuthanandan in 1996, had CPI(M) State Committee member Thomas Isaac as his main rival. Isaac, an Associate Fellow at the Centre for Development Studies, Thiruvanantha-puram, and Member of the State Planning Boards in Kerala and Tripura, played a key role in the design and implementation of the People's Plan Campaign, a significant experiment in democratic decentralisation that was launched by the LDF Government about four years ago. The experiment, which has won all-round praise, is still in its infancy. One of its weaknesses was the lack of proper coordination between the activities of the State Government and those of the local bodies. The LDF's decision to field Isaac at Mararikkulam seems to be a promise to provide that crucial link. It was also a sign that political parties in Kerala are at last offering the people a new breed of politicians. Isaac told Frontline: "The result of this election will be extremely vital for the decentralisation process. The process has not been fully institutionalised. Continuous support and intervention are required to stabilise the process. For that it is important that the LDF should come to power."

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The People's Campaign had changed the rules of the electoral game at the grassroots level in Kerala, putting pressure (to some extent) on political parties to give more importance to the performance of the candidates than their promises, to the quality of the candidates than their political affinities and to concrete results on the development front than to claims about accomplishments.

The array of new faces, especially those who are young and well-educated, in the LDF's list of candidates and the extensive focus on developmental issues in the campaign in a majority of constituencies are seen as signs of significantly new choices appearing before the voters. The election results will show to what extent the Kerala electorate will encourage such welcome changes.

WEST BENGAL: Left Front set to take West Bengal

In West Bengal, it is a race between a cohesive Left Front and a fragile and fractious Trinamul Congress-Congress(I) combine.

IF anything is conspicuous in the election campaign of the ruling Left Front in West Bengal, it is the absence of tall promises. Concentrating on developmental issues and politically viable programmes, the Front, led by the Communist Party of India (Marxist), had a headstart on its rivals in electioneering. It appears to be all set to win the Assembly elections for the sixth time, having already won five consecutive elections to the Assembly and to the local bodies. The Front is expected to sweep the polls, particularly in rural areas that account for about 200 of the 294 Assembly seats. It won a two-thirds majority in the 1996 elections. Even if it loses a few seats here and there, as predicted by some psephologists, the "loose alliance" between the Congress(I) and the Trinamul Congress is not really a match to the Left Front, the coherence of which is evident from the absence of tussles among its major constituents such as the CPI(M), the CPI, the Forward Bloc and the Revolutionary Socialist Party (RSP).

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The well-oiled organisational machine of the CPI(M) was in full swing even before the elections were notified. The Left Front started its campaign in early March. In contrast, the Trinamul Congress and the Congress(I) reached an understanding on seat-sharing barely two weeks before May 10, the day of polling.

The fragility of the alliance became evident soon with members of both parties expressing their unhappiness over the seat-sharing arrangement and, in many places, the alliance itself. In many constituencies rebels filed nominations against the official candidates. The rebels in the Trinamul Congress were led by Ajit Kumar Panja, its former chairman and former Union Minister, who is opposed to party leader Mamata Banerjee's decision to quit the National Democratic Alliance (NDA) government at the Centre and ally with the Congress(I) in West Bengal. Congress(I) rebels rallied round veteran leader A.B.A. Ghani Khan Chowdhury.

Ajit Panja campaigned against "the lack of democracy in the Trinamul Congress". He described the "common minimum agenda of governance" of the Congress (I)-Trinamul combine as "nothing but a bluff". (In an attempt to win over young voters, the combine had promised employment to those who had registered their names with employment exchanges in the past 10 years.) Subrata Mukherjee, Mayor of the Calcutta Municipal Corporation and working chairman of the Trinamul Congress, admitted that Panja's outburst against Mamata Banerjee would prove to be a morale booster for the CPI(M).

The spoiler for the Congress(I) was Ghani Khan Chowdhury, who has won the Malda parliamentary constituency for five consecutive times. He denied the very existence of the alliance. He has fielded candidates, including his brother and sister, covering all the 11 Assembly seats in Malda district, leaving none for the Trinamul, defying party president Sonia Gandhi.

Hardly a day passes without Mamata Banerjee or State Congress(I) president Pranab Mukherjee facing disgruntled partymen in different parts of the State. There was growing realisation in both the parties that the purpose of the alliance was defeated by the resentment of party workers who considered it to be an alliance of the leaders. The grassroots workers of the Congress(I), who felt that the Trinamul Congress had humiliated them in the past three years, were in no mood to join hands with their ally. Similar were the sentiments of Trinamul Congress workers who were until recently engaged by Mamata Banerjee to destroy the Congress (I)'s base in West Bengal. The resentment was compounded by the disgruntlement in both parties over the instances of denial of the ticket. Angry partymen from various constituencies descended on their respective party offices to show their displeasure. In some constituencies the local units of both parties have struck deals with the Bharatiya Janata Party and the Party for Democratic Socialism (PDS), a group led by Saifuddin Chowdhury who broke away from the CPI(M).

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Seven of the 15 sitting MLAs of the Congress(I) have formed the Save Bengal Front after they were denied the party ticket. In alliance with the Nationalist Congress Party of Sharad Pawar, the Front has fielded 60-odd candidates to "avenge the Congress(I)'s betrayal".

The Trinamul Congress-Congress(I) alliance faced problems from another quarter: the BJP and its allies in the NDA. It appeared that the sole objective of the BJP was to prevent Mamata Banerjee from coming to power. The NDA has fielded candidates in all the seats and its presence is expected to split the anti-Left vote. BJP leaders say that the resentment among the rank and file of the Trinamul Congress and the "popular disenchantment" with Mamata Banerjee might help the BJP increase its share of votes marginally and also win a few seats.

For the first time in 49 years, Jyoti Basu is not a candidate in the Assembly elections. But the veteran Marxist leader is the chief campaigner for the Left Front. By the end of April he had addressed election rallies in most of the districts. His speeches were simple and optimistic: "The people are with us. It has been proved time and again. Ours is a pro-people government and there is no reason for the voters to discard it."

Chief Minister Buddhadeb Bhattacharya is the other major campaigner for the Left Front. He said that although the Left Front had not done all that it intended to do for the people, they were aware of its achievements. "Mamata Banerjee and her pro-change slogan are no threat to the CPI(M). The Left Front will storm back to power for a sixth consecutive term."

The Left Front won 203 seats in 1996, and its rural vote appears to be intact. Most of the gram panchayats, panchayat samitis and zilla parishads are controlled by the Left Front. That perhaps explains why the Front's leaders remain unperturbed by its poor performance in the last elections to the Calcutta Municipal Corporation.

ASSAM: Alliance trouble

KALYAN CHAUDHURI cover-story

Extremist groups launch a violent campaign against the Asom Gana Parishad-Bharatiya Janata Party combine even as the Congress(I) rises to a position of advantage.

WITH the outlawed United Liberation Front of Asom (ULFA) resorting to attacks on select candidates and campaigners of practically all political parties, the pre-poll situation in Assam provided an alarming picture. Already 18 political workers, including the official candidate of the BJP in Dibrugarh constituency, Jayanta Dutta, have been killed by ULFA militants since the poll process for the 126-member Assembly started in early April. The ULFA and the National Democratic Front of Bodoland (NDFB), another extremist group operating in the Bodo-dominated region of Lower Assam, have been terrorising voters and party workers in their effort to enforce a poll boycott.

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The Centre has sent an additional contingent of paramilitary forces to the State in view of the spurt in violence. Additional units of the Army have been deployed in vulnerable areas to undertake counter-militancy operations and to seal the international border with Bhutan in order to check armed infiltration. Security has been stepped up at all vital installations and in certain areas of Kamrup district and in Nalbari, Naogaon, Barpeta, Bongaigaon, Kokrajhar and Dhubri districts of Lower Assam. Logistically, ULFA enjoys some advantages in Lower Assam. Its cadres can strike at will and then disappear into sanctuaries in nearby Bhutan. Moreover its new-found ally, the NDFB, is always at hand to help in ground-level operations and to provide information.

ULFA and the NDFB are particularly angry with the ruling Asom Gana Parishad for severing its ties with the Left parties, which were a partners of the Prafulla Kumar Mahanta-led coalition government, and allying with the BJP. The extremist outfits backed up their violent campaign against the AGP-BJP electoral alliance with a dictate to the people not to vote for the ruling AGP-BJP combine. ULFA, through an editorial in its mouthpiece Freedom, launched a veiled campaign against the BJP, which it said was spewing the "venom of communalism" in Assamese society. It described the AGP as the "local collaborator" of the BJP, adding that "the people now feel that these local collaborators should be dumped in such a manner that history will have little chance even to condemn them."

The direct attack on the AGP-BJP alliance might have prompted Union Home Minister L.K. Advani to remark during his campaign in Assam that "there is a Congress(I)-ULFA link" and that the Congress(I) should stop encouraging the militant group. Ruling out a ceasefire with ULFA, he said the AGP-BJP alliance would make a winning combination to rule Assam for the next five years.

Reacting sharply to Advani's comments, Kamal Nath, All India Congress(I) Committee (AICC) observer for Assam, stated that the statement linking the party to ULFA was unbecoming of a Union Home Minister. He said the recent attacks on AGP workers were a result of the conspiracy of the AGP-BJP combine to divert people's attention from the AGP's misrule and to win the sympathy vote.

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The AGP and BJP camps are in disarray, faced as they are with an open revolt by the rank and file over the conditions agreed to in the formation of the alliance. While some prominent AGP leaders joined the Congress(I), Hiranya Bhattacharya, founder-member of the State BJP, resigned from the party in protest against the alliance and floated a new party, the Asom Bharatiya Janata Party (ABJP), at an impressive rally on April 11 at Nalbari. Hundreds of BJP workers and supporters attended the Nalbari conference to welcome Bhattacharya's move. BJP workers staged violent demonstrations in the district. The State party office in Guwahati was ransacked for three consecutive days, and slogans were raised against Advani and the party's State organising secretary V. Sateesh. Protesting against the way in which the AGP president and Chief Minister Mahanta had allocated seats, Pradhan Barua, party legislator from Jonai, joined the Congress(I). Sericulture Minister Ramendra Narayan Kalita has extended his support to Barua although he has not formally broken his links with the party. Barua is reported to have mobilised a sizable section of AGP leaders and activists to work for the Congress(I) in the elections. Dissidents in the BJP are angry that the party has been allotted constituencies that are in the Congress(I) bastion and hence unwinnable. In 10 of these costituencies, the AGP and the BJP have agreed to have "friendly contests", further reducing the BJP's chances. The arrangement has also rendered the prospects of some sitting AGP MLAs uncertain.

THE Congress(I), which was initially worried about the impact of the AGP-BJP alliance, is now jubilant. With the bickerings in the party over the allocation of seats having ended, the Congress(I) has put itself in a comfortable position. As the main Opposition party in the State, the Congress(I) is likely to make major gains from the revolts in the rival camps. (Political observers attribute the AGP's sudden decision to dissociate itself from the Left parties and woo the BJP to its fear of the rising strength of the Congress(I). The Congress(I) won 34 seats in the 1996 Assembly elections. And in the three Lok Sabha elections held in 1996, 1998 and 1999, it steadily increased its tally to five, nine and 10 respectively. In sharp contrast, the AGP did not win a single seat in the 1998 and 1999 elections.

This time the Congress(I) is contesting all the 126 seats. The AGP is contesting 82 seats and the BJP 44 (including 10 "friendly" contests with the AGP). From its own quota, the AGP has allotted some seats to the All Assam Students' Union (AASU) and the Bodo Peoples' Action Committee (BPAC). The Nationalist Congress Party (NCP) of Sharad Pawar is a new entrant in the poll arena. It is contesting 54 seats, and some local political groups with which it has formed a front have put up candidates for 11 seats. The Communist Party of India, the Communist Party of India (Marxist) and the Samajwadi Party are contesting under the banner of the People's Front. The Front has put up candidates in 43 constituencies.

The anti-incumbency factor is also likely to spoil the AGP's chances. The track record of the AGP government is unsatisfactory: it failed to tackle the insurgency problem and end the deterioration of law and order; financial mismanagement has resulted in an empty treasury; the government failed to attract investors; and the unemployment figure has risen to 1.5 million.

A brush with Bangladesh

HAROON HABIB in Dhaka world-affairs

Versions of the exact sequence of events differ, but there is unanimity in general on the need to resolve the outstanding issues.

THE third week of April 2001 will be marked as a black chapter in the history of India-Bangladesh relations. Perhaps for the first time since East Pakistan became independent Bangladesh about 30 years ago, the peoples of the two neighbouring countries came close to experiencing the effects of a major standoff on the border. Exchange of fire between the Border Security Force (BSF) and the Bangladesh Rifles (BDR) even while they were in the midst of joint operations against smugglers, cross-border kidnapping of people and theft of cattle and the recovery of bodies of villagers or security personnel are not uncommon along the 4,000- km-long border, densely populated except in a few sections. But the bloody encounters between the BSF and the BDR at Padua and Baroibari came as a shock to people on both sides of the border. In the encounters, 15 BSF personnel and three BDR jawans were killed.

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Bangladesh's version of the story runs like this: Padua (or Pyrdwah) in Sylhet's Tamabil area adjoining Meghalaya has been a Bangladeshi enclave that has been controlled as land of "adverse possession" by India since Bangladesh's war of liberation in 1971. During this war, Bengali freedom fighters set up a camp in this strategic border village. As India gave all-out assistance to the freedom struggle, the BSF also used this camp. The BSF did not withdraw from the camp after the war was over. Padua, however, did not become an issue because the two neighbours had bigger bilateral problems to resolve. The construction of a pucca road by the BSF connecting Padua with the mainland reportedly raised the hackles of the BDR. Alleging that the construction of the road was illegal, "violating international laws and the India-Bangladesh border agreement", the BDR asked for a flag meeting. As its request went unheeded, the BDR launched action on the night of April 15 and "recaptured" Padua "without any bloodshed".

This story, however, leaves many questions unanswered: Was there any clearance from the government for the BDR's action? Why did it choose a line of action that was contrary to the spirit with which disputes involving the two countries have been settled?

Even before the shock of Padua subsided came the attack on Baroibari, 80 km from Padua, in the Roumari-Mankerchar area adjoining Assam. In a pre-dawn action on April 18, as the accounts in major Bangladesh dailies put it, nearly 300 heavily- armed BSF jawans entered Roumari to attack the Baroibari post, reportedly to avenge the "defeat" at Padua. Baroibari is also a land of "adverse possession" under Bangladesh's control. The BSF suffered heavy losses in the April 18-19 clashes. As the story goes, when the BSF opened fire on a BDR camp the BDR personnel did not retaliate immediately, giving the impression that there was nobody inside the camp. But they struck when the BSF moved closer to the camp. With the help of quick reinforcements from nearby border posts and the support of the people of the village, the BDR launched a full-scale counterattack. Heavy exchange of fire continued for more than two days, forcing nearly 10,000 people to flee their homes. The bodies of BSF men were lying in the paddyfields for more than two days as the fight continued. The people recovered several bodies from the fields and handed them over to the BDR later. Two injured BSF men were flown to Dhaka by helicopter for treatment.

The Baroibari incident also raised some questions. What prompted the BSF to attempt to capture the border post, which is inside Bangladesh territory? Did it have any clearance from the higher authorities?

Bangladesh argues that the BSF men were attacked by the BDR when they were inside Bangladesh territory. Referring to the Indian allegation that the BDR fought with the BSF without the knowledge of the Bangladesh government, a Foreign Office spokesperson said that the BDR had the power to act on its own in the event of an emergency. The BSF and the BDR have their own charters which allow them to repulse an attack or to fire in self-defence without waiting to take orders from government. While some major Bangladesh newspapers have questioned BDR chief Major General Fazlur Rahman's role in the incidents, many others have supported him and glorified the BDR's action in Padua and Baroibari. Newspapers have also carried reports citing official accounts that 415 civilians and 10 BDR personnel were killed by the BSF in the past two decades and that in most cases the bodies were not returned. They also alleged that Bangladesh nationals had been mistreated by the BSF along the border. Some media reports said that the bodies of BSF personnel might have decomposed before their delayed recovery, implying that they were not disfigured deliberately.

New Delhi's angry reaction caused serious concern in Dhaka. Quick high-level interventions stopped the exchange of fire on the border and brought down the level of tension. But the Bangladesh government was embarrassed by Indian newspapers and television channels flashing pictures of BSF men who were captured or killed and by allegations that BSF personnel were "tortured to death" by the BDR and not by a mob of villagers as it claimed earlier.

On April 22, Prime Minister Sheikh Hasina spoke to Prime Minister Atal Behari Vajpayee, saying that the BDR had to open fire "in self-defence". She also expressed her shock and grief over the casualties and agreed to order a high-level investigation into the circumstances that led to the incidents on the border and the allegation of torture of BSF men.

The Hasina government was criticised by the Opposition for "surrendering national sovereignty" to India and withdrawing the BDR from Padua. The border conflict has occurred at a time when Bangladesh is getting ready for general elections in an atmosphere of tension created by religious fundamentalists. The elections are crucial for the secular-democratic forces who face a challenge from religious fundamentalists who are reportedly backed by external powers, mainly Pakistan. The fundamentalist groups have declared war against the ruling Awami League and its "pro-liberation" allies. The "neo-Pakistanis", who have consolidated their base over the years, now use as a shield the Opposition alliance led by Begum Khaleda Zia's Bangladesh Nationalist Party (Frontline, March 16).

THE tension on the border has subsided considerably, thanks to the political initiatives of Dhaka and New Delhi. But the reported build-up of the BSF along the border might change the situation for the worse. There were allegations that BSF men burnt villages and kidnapped people even after status quo ante was restored.

Well-meaning observers are of the opinion that political leaders must take the initiative to implement the treaty signed by Indira Gandhi and Sheikh Mujibur Rahman in 1974, in order to avoid any recurrence of border tensions. Bangladesh ratified the treaty soon after it was signed, but India has not.

Deadlock in Nepal

With Prime Minister G.P. Koirala refusing to step down as demanded by the agitating Opposition, the political situation in Nepal continues to be grim.

WITH the stubbornness characteristic of most politicians, Nepalese Prime Minister Girija Prasad Koirala has refused to step down despite sustained demands from both the Opposition and a sizable section of the parliamentary wing of his own Nepali Congress (N.C.). And Koirala's refusal is certainly costing the tiny, landlocked Himalayan kingdom dear. Strikes, rallies, roadblocks (chakka jams in local parlance) and disruption of power supply have all become features of everyday life, especially in Kathmandu, the capital. The Prime Minister's office at the Singha Durbar was picketed and the main Opposition, the Communist Party of Nepal (Unified Marxist Leninist), and five smaller Left parties boycotted for a long period the just concluded winter session of Parliament. According to a survey, tourism, Nepal's biggest industry, loses (Indian) Rs.25 million for every day of shutdown.

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The Opposition and Koirala's opponents in the N.C. want him out but do not want mid-term polls. Krishna Prashad Oli, a standing committee member of the CPN(UML), said: "We are not asking for mid-term elections. All that we have been saying is that the N.C. should give the country a proper alternative to Koirala. We have given the responsibility to find that alternative to the N.C. and Koirala."

But the question is, should a democratically elected Prime Minister who still commands a majority - however thin it may be - in Parliament step down just because those who do not like him or his party want him to do so? And will the charges of bad governance and corruption against his government stick? And will his ouster, some newspaper editorials have said, be good for the country?

While these questions remain, the people continue to suffer. The unemployment rate is at its highest, there is a shortfall in economic benefits despite economic reforms and the privatisation of public enterprises, and there have been delays in setting up key national projects. But on top of the political crisis and the social unrest is the Maoist-led rural insurgency, which escalated in March and April (Frontline, May 11, 2001). Over 70 policemen were killed in separate attacks on police outposts at Rukum, Dailekh, Dolakha, Palpa and Rautahat districts.

Maoist rebels also set off explosions at the Kathmandu homes of a former N.C. lawmaker and a former Inspector-General of Police. In a signed statement issued by Prachanda, the recently elected chairman of the Nepal Communist Party (Maoist), the group not only claimed responsibility for the killings of policemen but stated that the movement had reached a new high with these successful attacks.

Koirala, who is also president of the N.C., came to office a year ago after pulling the rug from under the feet of his colleague Krishna Prasad Bhattarai. According to the Opposition parties and the dissident N.C. camp, Koirala has failed to deliver on any of the three promises - providing good governance, maintaining law and order and clamping down on corruption in high places - he made when he took over.

The rival N.C. faction has only 45 to 46 MPs - not enough to snatch the mantle from the N.C's 113-strong parliamentary wing. But according to Bhattarai, the process to garner the support of at least 57 MPs was already on and would "hopefully be accomplished before the start of the summer session (in June) of Parliament".

The non-fulfilment of the three promises - the very same ones used by Koirala to oust his predecessor - certainly rankles. According to Kirti Nidhi Bista, a former Prime Minister, the ruling N.C. which came to power in the general elections held two years ago on the plank of stability, peace and development, has only been able to offer "insecurity, (political) instability and failed development programmes". And worse, the party has been racked by dissidence, with Koirala and Bhattarai engaged in a tug-of-war to wrest control of the organisation.

If good governance has been a mere slogan of the Koirala government, security concerns, most notably the six-year-old Maoist insurgency, have left people, especially in the midwestern reaches of the country, terror-stricken. The rebels, taking advantage of the pitiable social conditions and abject poverty of the rural masses, have in recent times become a potent political force in several districts. They have even announced the formation of provisional "people's governments" in districts like Rolpa, Rukim, Kalikot, Jajarkot and Salyan. The government's counter-insurgency plan, in the form of the Integrated Security and Development Programme, in which the Nepalese Army plays a major role, has not worked in the absence of support from the Left parties.

The Maoists want, among other things, the scrapping of the Constitution, an end to the multi-party parliamentary system and elected governments and the establishment of a popular republic to be run by a "people's government". They also oppose the Koirala government's recent ordinance authorising the formation of an Armed Police Force and the appointment of regional administrators.

Efforts by the Palace, human rights activists and the government (through the People's Committee for Peace Dialogue) to initiate talks between the government and the rebels have not succeeded. The rebels have accused the government of failing to create a favourable environment for dialogue by releasing their comrades who are in custody. The Maoists - and human rights activists - have also accused the government of placing under arrest and then killing several people known to have been sympathetic to the rebel cause. Even the Commission constituted to probe the incidents of killing and arson at Khara village in Rukum district (around 30 houses of N.C. supporters were allegedly set on fire by the police in a reported bid to defame the Maoists) is to be headed by the same police officer who is alleged to have masterminded the attack.

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For Koirala, however, an even bigger headache is institutionalised corrution. A controversy rages over a deal that the government-owned Royal Nepal Airline Corporation (RNAC) signed with the Austrian airline Lauda Air for the lease of a wide-bodied Boeing 767 last year. As part of the wet lease, the RNAC would have to pay Lauda Air $3,350 per hour of flying time, with a minimum of 300 hours a month. In addition, the boarding and lodging expenses of the flight crew have to be borne by the RNAC.

The CPN(UML) and other Oppos-ition parties have alleged that the deal was not only unnecessary but inimical to the interests of the national carrier. They have accused Koirala of receiving a share of the commission that was allegedly paid. The N.C. and the Opposition parties have crossed swords over the issue, with the Opposition insisting on Koirala's resignation. Said Rajendra Pandey, CPN(UML) MP from Dhading: "The RNAC is losing nearly Rs. (Indian) 200 million a year because of the Lauda Air deal. Just the expenses of the flight crew adds up to $21,000 a month."

Two commissions are already probing the deal, one ordered by the Supreme Court and another by the constitutional body that functions as an anti-corruption watchdog, the Commission for the Investigation of Abuse of Authority (CIAA). Koirala's public statement that he would immediately step down if the CIAA implicated him has not placated the Opposition. According to observers, the CIAA is most likely to opt for one of the three options before it: summon Koirala for interrogation, spare the Prime Minister but file a case against other officials including the then Tourism Minister, or dismiss the case.

Interestingly, a former executive chairman of the RNAC, Hari Bhakta Shrestha, and RNAC board member Tirtha Lal Shrestha, who were both behind the deal, have filed petitions before the CIAA urging it to investigate the deal impartially. They expressed the fear that they would be made scapegoats. They have since been arrested.

But the Left parties lack unity among themselves, which factor has helped the Prime Minister to hold on to power. But Sher Bahadur Deuba, a former Prime Minister who is being propped up by Bhattarai to replace Koirala, feels that the summer session of Parliament would see Koirala being isolated by his own party. He said: "Koirala has not been able to solve the problems related to security, governance or corruption. He talks of unity in the N.C. But there is a lot of difference between talking of unity and doing something about it." The Bhattarai faction is convinced that there is no way out but to replace Koirala.

While the leftists aver that organising chakka jams is the only way to force Koirala out, Bhattarai told Frontline that he and his faction would rather wait for Koirala to lose his majority in Parliament rather than hold the nation to ransom.

With Koirala unlikely to move out unless the CIAA comes out with a verdict finding him guilty or he loses majority support in Parliament, the situation in Nepal could continue to be unstable.

Skulduggery and collusion

RITA MANCHANDA world-affairs

There is growing concern in Nepal over the tendency of criminal and terrorist forces making Kathmandu their major base on the one hand, and it turning into the centre of espionage activity in the region on the other.

ABDUCTIONS, counterfeit currency capers, RDX smuggling, gun running and hijacking - the criminalisation of Shangrila seems complete. Over the last five years, the Nepalese media have been reporting sporadic discoveries of caches of research department explosive and arrests of suspected agents of the Inter Services Intelligence (ISI) smuggling the explosives, counterfeit Indian currency or even walkie-talkie sets. Why is Nepal becoming a haven for criminal and indeed terrorist activities? Is it that Nepal's policing system is weak? Is it that its legal system, which evolved, as former Speaker Daman Dungana says, "to meet the limited challenges of a small insulated state", is unable to cope with the political criminalisation and terrorism that have spilled out from its neighbours?

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What happens to the arrested persons? Two officials of the Pakistani embassy, who were caught red-handed in ISI-sponsored scams - Asim Saboor in January 2000 and Mohammad Arshad Cheema in April 2001, have been sent back amidst much media glare (Frontline, May 11, 2001). But what of the others - Nepali, Indian and Pakistani nationals reportedly implicated in ISI-linked subversive activities in Nepal? Evidently they are not in jail in Nepal. Also there is considerable confusion about what they could be charged with under Nepal's legal system. According to Sushil Pyakurel, a member of Nepal's National Human Rights Commission, the police have not responded to the Commission's repeated inquiries about the whereabouts of 'missing' persons who are believed to have been arrested, or what they were charged with. Apparently no one implicated in such activities has been brought to trial in Nepal. Neither has anyone been extradited, that is, not since Sucha Singh, an accused in the Pratap Singh Kairon murder case in the 1960s. So where are they?

Many of the missing people suggest that they could have slipped through the porous border with India, but there are also reports of cloak-and-dagger collusion between the Nepalese and Indian police and the abduction of 'suspects'. For instance, Prem Bahadur Chettri, a Nepali national, at present in jail in Lucknow, claims he was abducted from Kathmandu with the connivance of Indian embassy officials and taken across the border to Gorakhpur (The Kathmandu Post, April 24). In a letter from jail, Chettri who had served for 22 years in the Indian Army, said he had gone to the pension camp in Thamel, Kathmandu, to collect his pension and had been referred to the Indian Embassy for some clarification. Once there, he claims, he was tied up and rendered unconscious. The next thing he knew was that he woke up in Gorakhpur, he says. According to Chettri, several Nepali ex soldiers have been picked up under suspicion of being ISI agents.

Indian embassy sources have declined to comment. However, they have alluded to a March 23 report in The Hindustan Times, about the arrest of seven serving Nepali (Gorkha) soldiers in the Indian Army who were charged with working for the ISI. Chettri's arrest was linked to that. The issue here is not his arrest but his alleged abduction, a criminal act.

The Indian embassy's ubiquitous presence in Nepal is further clear from the case of Cheema. Madhav Thapa, the police officer who caught the Pakistani diplomat, had referred to a "special source" which by all indications was the Indian Home Ministry's agencies.

The alleged underhand dealings between India and Nepal involve not just fraternal links but a network of quid pro quos and bribes, and have questionable legality, considering the enforced disappearances, denials and abusive practices. A case in point, according to human rights organisations in Nepal, is that of two missing Kashmiris, Mohammad Shafi Rah and Mushtaq Ahmad Rah, who were allegedly taken away from their residence in the Samakhusi area of Kathmandu on the night of August 27-28, 2000 by plainclothes Nepal police. Reports of a police operation against Kashmiri suspects had appeared in several newspapers of the valley. Saptahik Vimarsh, in its September 1 issue, reported the arrest of the Rah brothers and claimed that the Nepal police had handed them over to the Indian authorities. The Himalayan Times, another Nepali daily, carried a similar report on September 6, 2000. Three days later, The Kathmandu Post reported that 27 Kashmiris, mostly businessmen, had been arrested during the first week of September and that their whereabouts were not known. Quoting "reliable sources", the report claimed that they were kept in "secret detention centres" in the Kathmandu valley. Some of the Kashmiris who were arrested and later released said that the police had taken them to unknown destinations, while others said they were taken to police stations. All except the two brothers were released.

To date the Nepal police have not acknowledged the arrests. Ratan Lal, the landlord of Mohammad Shafi Rah, had approached the Thamel police station but was advised to keep out of the matter, as it was a 'militancy'-related matter. Since then the family of the two 'arrested' Kashmiris has approached the Nepal police, the Interpol office in Kathmandu and the Indian embassy in Kathmandu. The eldest brother, Mohammad Yasin, tried in vain to contact two officers in the Indian embassy. The family's appeal to India's National Human Rights Commission, Home Ministry as well as the External Affairs Ministry, did not help. However, a fortnight before the two were picked up, their elderly father was interrogated in Srinagar to ascertain their whereabouts. The National Human Rights Commission of Nepal has written to the Director-General of Police for information about their whereabouts but has received no response.

Mohammad Shafi Rah is one of hundreds of Kashmiris who, during the decade of militancy in Kashmir, migrated to Nepal and set up shops in the tourist market of Thamel. According to the Srinagar-based lawyer Pervez Imroz, who is inquiring into "enforced disappearences", he had come to Kathmandu in 1995 and was working as a dealer in leather goods in Thamel. Early in the 1990s, he had joined the militancy and gone across the border for training. Soon after his return to Kashmir he was captured but was released. To escape continuing harassment by the police as also the suspicion of militants that he was a police informer, he moved to Nepal. His younger brother, who was picked up with him, had come visiting. Reportedly, the arrest of a person in India caused the finger of suspicion to point to Rah. The police continue to deny that the brothers were picked up, let alone handed over to the Indian authorities.

It begs the question as to what Nepal's laws are with regard to persons whose activities are deemed dangerous to or are of a terrorist nature vis-a-vis a friendly neighbour. Why should a clandestine and illegal network be used, and why not the due process of law? Worse still, the public resentment in Nepal against India feeds on the feeling that it bullies Nepal. Human rights activist Tapan Bose, who is the secretary-general of the South Asia Forum for Human Rights in Kathmandu, says that the impression gaining ground in Nepal is that India is pressuring the Nepal police to hand over suspects wanted in India and this will ultimately weaken Nepal's capacity to develop efficient policing practices to control crime and terrorism. Secondly, the underhand means adopted cannot give legitimacy to the cooperation between India and Nepal. And finally, it gives rise to the feeling that there is no popular support for Nepal cooperating with the Indian police and that India is corrupting the Nepal police, according to Bose.

INDIA and Nepal have an extradition treaty that dates back to 1953, but its provisions have been used only once. Indeed, discussions are going on to review the treaty. The Indian side has submitted a draft, which includes two controversial clauses. One relates to the extradition of nationals of third countries wanted for criminal/terrorist activities and the other is a kind of enabling framework for the Indian police to operate de facto across the border. Nepal is unwilling to accept these changes.

"Extradition treaty or no extradition treaty - that is not what is crucial. What is crucial is political will. Basically Nepal has to establish why a third country is permitted to go on the rampage in this country," said an Indian embassy source. Assurances are given at the political level, with Foreign Minister Chakra Prasad Banstola reiterating that "our position is that we will not allow Nepali soil to be used against any of our neighbours". But in India there is mounting suspicion, fanned by intelligence-agency-inspired reports in the Indian media, that Nepal is becoming a hotbed for criminal and terrorist subversive activities by multiple intelligence agencies - the ISI and India's Research and Analysis Wing (RAW) topping the list and the agencies of North Korea, China and the United States not far behind. They have converted Nepal, which is geo-strategically located, has a liberal visa regime and has an open border with India, into a "playground of spies".

In Nepal there is a crisis of credibility about the Indian media's description of the country. Anger at media reports that have been quick to blame Nepal has resulted in scepticism about the ISI's use of Nepal as a base for anti-India activities. Nepal bashing by the Indian electronic media in its coverage of the Indian Airlines hijacking in December 1999 and in particular, the accusation levelled by a passenger that a Nepali Pashmina trader was one of the hijackers, has produced lasting resentment about media irresponsibility. To make matters worse, a Delhi-based weekly published a game plan for subversion, which was virtually a who's who of Nepal. It provokedKunda Dixit, Editor of Nepali Times, to lash out at 'India scapegoating Nepal' to cover up its own weaknesses.

How much is fact and how much is manipulation in the murky spy games may never be known, but there is a growing sense of concern in Nepal about the tendency of criminal and terrorist forces making Kathmandu a base. Moreover, with a five-year-old Maoist insurgency active in two-thirds of Nepal, even the most sanguine in Kathmandu are taking notice.

WHAT then is Nepal planning to do to gear up its policing and legal systems? Legal experts like former Speaker Daman Dungana acknowledge that Nepal's laws - the anti-explosives law, the Act with respect to the possession of illegal arms, the State Offences Act, and so on - were designed to meet the specific and limited challenges of a small self-contained state, and not to cope with the fallout from the criminalisation of politics across the border. Although the Nepal police on occasion have cooperated to stomp out anti-Indian terrorist activities (for which former Indian Ambassador K.V. Rajan praised the Nepal police), police sources candidly admit that it has not been an issue of priority.

Sudheer Sharma, a reporter with Himal Khabar Patrika who has followed the espionage networks, suggests that as these activities are seen not as being against Nepal but as being against India, the police tend not to give it great priority. Nepal's recently established anti-terrorist cell is to deal with all subversive activity. Not surprisingly it focusses more on the Maoist People's War. Also, as yet the police have not been able to get their hands on evidence to establish where the RDX comes from and where it goes. Those arrested have been more like 'runners'. In the Cheema case, Indian intelligence agencies revealed (The Hindu, April 24) that the 16 kg of RDX he was caught with was meant for the Maoist rebels in Nepal. Significantly, no Nepali newspaper has focussed on the Pakistan-Maoist nexus.

Allegations about Nepal being the centre of espionage in the region have grown in strength over the last five years, especially after one of the Memon brothers, implicated in the Mumbai bomb blasts, was picked up in 1994 from Kathmandu and not from New Delhi railway station, as given out officially. The murder of the Nepali Member of Parliament, Mirza Dilshad Beg, as being a fallout of the Dawood-Chotta Rajan gang war exposed the regional spread of communalised criminal gangs. In 1995-96, a series of raids on the basis of 'tip-offs' resulted in several arrests of suspected Pakistani agents and discoveries of RDX caches. One raid blew the cover off an ISI-North Korean operation involving the smuggling of 40 walkie-talkie sets that were to be shipped to militants in northeast India. Indian intelligence agencies have been watching activities in Nepal, especially those relating to the militant groups of the northeastern States.

Much of the intelligence about the ISI link has been gathered through the interrogation of captured militants in India, say intelligence sources in Nepal. For example, Kashmiri militants arrested in connection with the 1996 blast in New Delhi's Lajpat Nagar market confessed to having links with an ISI operative in Nepal, who had supplied the explosives. Close on its heels came the high-profile seizure of 20 kg of RDX on December 25, 1996 from Manzoor Ahmed Dainposh alias "John", a Kashmiri shopkeeper in Thamel. Again, the Nepali police were tipped off by Indian intelligence agents, after the seizure of 4.5 kg of RDX just days earlier in Delhi. According to Indian police sources, the ISI had made available to Kashmiri militants in Kathmandu an improvised explosive device in order to create disturbances on Republic Day. During a raid by the Nepali police, three Kashmiri militants reportedly escaped to India. At the time, a large section of the Nepali media expressed scepticism about the "frequent and convenient" seizures of RDX packets, which were played up in the India media.

It was in 1998 that the needle of suspicion began to point to the Pakistan embassy. In November 1998, a Sikh militant, Lakhbir Singh, was picked up, and his terrorist connection again went back to Nepal where 18 kg of RDX was found and the packaging indicated its Pakistani origin. According to intelligence sources, sketches of three persons were produced on the basis of an "identity kit". They approximated to the identity of two diplomats and a staff member in the Pakistan embassy in Nepal. No action was taken. The evidence was not found to be "clinching", the Nepali authorities explained. Since then Cheema (reportedly the ISI unit chief in Kathmandu) and Asim Saboor, an official in the embassy, were kept under surveillance. In the media reportage of the Indian Airlines hijacking, Cheema was said to have handed over weapons to the hijackers. But there was no clinching proof.

The Cheema story also has its curiosities, not least because the timing of the discovery - on the eve of the diplomat's departure after a three-year stint in Nepal. Apparently his successor had moved into his residence and Cheema was staying in the guest house of a Pakistan road construction company, Satchel Engineering. Pakistan embassy sources vouchsafe his innocence and protest against the Nepal government keeping the embassy in the dark over Cheema's surveillance or the exclusion of the embassy representative during the raid. "Why was the RDX not recovered in Cheema's presence," they ask. The heat is now on Satchel Engineering, which is named as an ISI front company.

According to Nepali police sources, a tip-off from Indian intelligence sources had galvanised them into action. Cheema was released amidst protestations of innocence by the Pakistan embassy while the Indian embassy insisted that Cheema's diplomatic immunity be waived and he be tried for committing a criminal offence in Nepal.

Where do facts end and manipulation begin? In Nepal, credibility is a casualty when it comes to the spy vs spy games. This is especially so "as Kathmandu is crawling with locals, both government officials and private citizens who are only too eager to assist or provide information to anyone for a price," says Suman Pradhan, a special correspondent with The Kathmandu Post. "Foreign intelligence agencies thrive in a 'cash first' environment," he added. The report of a couple of Indian nationals being caught by the police for carrying counterfeit Indian currency is now doing the rounds. The police allegedly encouraged them to say that they were ISI agents. The story may be apocryphal, but it has disturbing implications for not only the corruption of the Nepali police and the corrosion of the police system but, worse, for popular approval for India-Nepal cooperation in tackling the criminalisation of Nepal.

Starting all over again

An offensive by the Sri Lankan security forces in Jaffna peninsula comes to a sorry end, and the process of negotiations between the government and the LTTE seems to be on shaky ground again.

WAR and peace. Sri Lanka see-saws between the two with such clockwork regularity that astute observers can now even predict when exactly the fulcrum will turn.

So there was no great surprise, only a sense of hopelessness, when a process for negotiations (too early to call it a "peace process") between the government and the Liberation Tigers of Tamil Eelam (LTTE) that was being cautiously constructed by Norway suddenly gave way to an outbreak of fierce hostilities between the two sides that killed at least 300 combatants and left hundreds more wounded.

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A military offensive launched by the security forces in the early hours of April 25 in Jaffna peninsula proved disastrous as it met with fierce resistance from the LTTE. After facing a barrage of artillery and mortar fire for three days, and suffering hundreds of landmine casualties, on April 28 the security forces decided to cut their losses and pull back. At least 200 soldiers had been killed and more than 1,000 wounded. The LTTE has admitted to having lost 75 cadres, but the security forces said the Tigers had lost at least 190.

As Norwegian special envoy Erik Solheim flew into Sri Lanka in the wake of the bloodbath, a question mark hung over the prospects for negotiations between the two sides. Talks had seemed imminent just a month earlier, but it was not so after this.

To recapitulate events since last October: after President Chandrika Kumaratunga's People's Alliance wins the general election, the Norwegian special envoy returns to Sri Lanka and pulls off a meeting with LTTE leader Velupillai Prabakaran, which in itself is held to be an indication of his willingness to participate in peace talks.

Later that month, Prabakaran declares himself ready to hold "unconditional" talks with the government though he lists as "essential prerequisites" for such talks the gradual de-escalation of the conflict leading to a cessation of hostilities and the improvement of living conditions in LTTE-held areas by means of the lifting of government restrictions on the free flow of essential articles.

The following month, the LTTE unilaterally declares a Christmas-Pongal truce which seems aimed to avert an impending proscription in the United Kingdom. The government turns down the LTTE's call to reciprocate the ceasefire and instead launches a series of limited offensives in Jaffna peninsula. There is no resistance from the LTTE, and the security forces walk through a large swathe of land they had lost last April. They finally stop 15 km north of Elephant Pass and set up new defence lines across the neck of the peninsula from Eluthumadduval to Nagarkovil.

The government declares that the LTTE had become too weak to fight back, but warns that it is re-arming itself during the unilateral truce and forcibly recruiting cadres to come back on the security forces.

But the military offensives cool off just as it is anticipated that the security forces might make a push for Elephant Pass. The LTTE extends its ceasefire for another month. The British government proscribes the LTTE, which had had an active organisational presence in that country, in February.

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Contrary to threats that if proscribed by the U.K. it would pull out of the Norwegian-assisted process, which has by now progressed to a stage where Solheim is trying to get the two sides to agree to a set of confidence-building measures (CBMs) to create conditions for talks, the LTTE elects to stay on in the process. The ceasefire gets its second extension and then a third, with the government still refusing to reciprocate, but keeping its side of the hostilities to the minimum. Solheim declares this to be an encouraging and positive sign for the process.

Come April, and the stage is believed to be set for talks by June. Foreign Minister Lakshman Kadirgamar announces in Parliament that the government would be ready to give out dates and a venue for talks by the end of the month.

That did not happen. Instead, a full-scale battle, initiated by the government side, erupted at the end of the month, and even though Solheim has declared the process to be still alive, it seems uncertain and on shaky ground again.

Except for the Eelam People's Democratic Party (EPDP), which views talks with the LTTE with suspicion, mainstream Tamil parties reacted with outrage to the renewed hostilities and accused the government of squandering an opportunity for peace. "I said from the beginning that the government should reciprocate the LTTE's ceasefire and begin talks quickly, that it would be impossible for the Army to make an advance on Pallai, 10 km north of Elephant Pass and the LTTE's heavily guarded forward post, leave alone Elephant Pass. Now they have learnt it the hard way," said V. Anandasangaree, parliamentarian and vice-president of the Tamil United Liberation Front (TULF).

The security forces launched the offensive hours after the LTTE ended the four-month ceasefire around midnight on April 24, citing the government's refusal to reciprocate as the main reason for its decision not to extend it again.

The week before had seen two confrontations between the Navy and the LTTE in Sri Lanka's northeastern waters. The Tigers are believed to have suffered heavy casualties in both the battles. In the second, the Navy took alive nine cadres who were floundering at sea. They were transported to Trincomalee.

During the weekend of April 21-22, when it was expected that the LTTE might announce a ceasefire extension, the security forces began shelling LTTE positions near Eluthumadduval and Nagarkovil.

THE LTTE's decision to end the ceasefire might not have been such a big setback in itself. After all, it only did away with a problematic unilateral gesture that was viewed with suspicion by the government from the beginning. There was some hope that it even gave Norway the chance to build a proper bilateral ceasefire.

But for that to happen, it was crucial that both sides showed restraint. After the ceasefire lapsed, there were fears that the LTTE might resume terrorist strikes in southern Sri Lanka and armed offensives in the northeast, but it was the government that blinked first.

Operation Agni Khiela was led by two divisions of the Army and appeared to be aimed at capturing Pallai. The 55 Division broke out of Nagarkovil, while the 53 Division, comprising the elite "Special Forces", began to advance from Eluthumadduval, covered by tanks and artillery and supported by the Air Force and the Navy.

It appears that the LTTE entrenched itself in the middle of these two columns and bombarded both flanks with its own artillery and mortar power. Soldiers were felled by the LTTE's improvised landmines as they scattered for cover. On April 25 alone, 160 emergency amputations on soldiers were performed in Jaffna. The casualties were too high for the security forces to sustain the offensive and the decision was made to pull back to pre-April 25 positions. By dawn on April 28, the operation had come to a sorry end, leaving behind uncomfortable questions about its timing and advisability.

The military claimed that by carrying out the offensive it had pre-empted a massive strike planned by the LTTE on its defence lines the next day. It said the LTTE had been preparing for this by re-arming itself through the period of its unilateral truce.

DESPITE the fact that the LTTE has yet to shed its image as a terrorist group, most of the world, even New Delhi, now sees talks with it as the only way out of the conflict for Sri Lanka. The Norwegians were close to getting the two sides to agree on a set of CBMs that, if implemented, would set the stage for talks. The LTTE had refrained from carrying out terrorist strikes, while the government had loosened restrictions on the flow of goods to the north, although not to the extent to which the LTTE desired. The LTTE released four people whom it had been holding captive for several years.

A demand raised by the LTTE that it should be de-proscribed by Sri Lanka, though projected as a "pre-condition" for talks, was seen as something that could be taken up after talks started.

But the renewed fighting has led to worries that if the fighting spins out of control, it could take the Norwegian efforts back to where they were in June last year. There are fears that the LTTE will try to press home its success in the battlefield by going on a military counter-offensive of its own. Solheim's trip to Sri Lanka seemed aimed to prevent precisely that.

A statement from New Delhi on the eve of the Norwegian envoy's arrival expressing concern at the escalation of hostilities and the loss of life and calling for early talks between the two sides, was seen as strengthening his hands in this task.

It is unclear yet what course of action the LTTE will take now, but its military victory is bound to make it a tougher negotiator, even in the pre-talks stage. It is evident, however, that Solheim will now have to begin all over again to close the gap of mistrust and suspicion between the two sides.

A reality check

VIJAY PRASHAD world-affairs

Confrontation at the venue of the Summit of the Americas in Quebec.

FROM April 20 to 24, two sets of acronyms faced each other. Behind a 4-km perimeter metal fence and a force of 5,000 armed Canadian policepersons, stood the sentinels of NAFTA, MAI, WTO, IMF, OAS - those who came to Quebec with neoliberalism as their mantra and with commerce as their currency. They gathered at the Summit of the Americas in this city dating back to the 17th century to try to agree to the parameters of a Free Trade Area of the Americas (FTAA). The 34 members of the OAS (Organisation of American States), minus Cuba, want to adopt a hemispheric version of NAFTA (North American Free Trade Agreement). Two days into their negotiations, the leaders produced a declaration that indicated their quest to "create greater prosperity and expand economic opportunities while fostering social justice and the realization of human potential". Even the 30,000 people who stood on the other side of the fence could not disagree with such a banal proposition.

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But the second assembly of people did register their sharpest disagreement with their elected representatives who sat within the Quebec Convention Centre and the Citadel, which overlooks the St. Lawrence river. They came with their own set of acronyms - CLAC, CASA, GOMM, OQP, FTQ, CTC, CLC, IUE, SEIU, SCD, SFPQ, ALLIANCE, USW, CAW, ATTAC - names of trade unions, citizens' groups, political organisations, that were emblazoned on banners and T-shirts to announce that the public refuse to be sidelined as policy is being made.

Many of those who came to register their protest did so without organisation or affiliation. "What is difficult to convey in media reports," wrote Naomi Klein, author of the superb No Logo: Taking Aim at the Brand Bullies (Picador, 1999: reviewed in Frontline, March 30, 2001), "is that there weren't two protests that took place in Quebec City - one a "peaceful" labour march, the other "violent" anarchist riot. There were hundreds of protests. One was organised by a mother and daughter from Montreal. Another by a vanload of grad students from Edmonton. Another by three friends from Toronto who aren't members of anything but their health clubs. Yet another by a couple of waiters from a local cafe on their lunch break. They didn't join one big protest, they participated in a movement."

The two sides met momentarily at the 3.5-metre high perimeter fence, which the Canadian police said was impregnable, and which the protesters called the 'wall of shame.' The fence represented the contradictions of 'free' trade. While NAFTA and FTAA speak a language of freedom, they mean only the freedom of capital to transgress sovereign borders, but not the freedom of people to move across them. For example, U.S. capital routinely moves to Mexico to take advantage of a relatively powerless labour force and an unregulated environment. On the other hand, Mexican workers face a metal wall along the Rio Grande: more Mexicans have died in the past four years as a result of the U.S. Operation Gatekeeper than all those who were shot from 1949 to 1989 trying to scale the Berlin Wall.

Canadian immigration officials stopped protesters who tried to enter the country. The Canadians used the previous arrest records of individual protesters as grounds for denial of entry (of course George W. Bush's own arrest record for drunken driving was not held against him.)

Hours into the protest, a group of people scaled the fence and eventually tore a part of it down. Hundreds of people rushed through toward the police cordon. "I believe the provocation started with that damn wall," noted Maude Barlow of the Council of Canadians, one of the hosts for the protest. The police then opened up with teargas. Part of the drama of the five days that shook the world from Seattle was the teargas, when the police there lost control of the crowd and resorted to its indiscriminate use. The Wall Street Journal called that the "Tear Gas Round", and one might call Quebec, Tear Gas II. The battle was joined. Andre Paradis, executive director of the Quebec League of Rights and Liberties (Ligue des droits et libertes) noted that the police used teargas with only minimal provocation, they moved to weapons such as water cannons and plastic bullets despite the peaceful nature of the protests, and they chased fleeing marchers into residential areas. Anna Dashtgard, organiser with the Common Front Against the World Trade Organisation and an anti-globalisation protest veteran, said: "I've never experienced anything like this. It was so brutal." The police arrested hundreds of people, doused with teargas and stung by rubber bullets. Of those arrested was Montreal-based anti-corporate activist Jaggi Singh, whom the Quebec police charged with participation in riot and possession of a weapon. The weapon in question turns out to be a stuffed toy, one of many lobbed at the police line by Jaggi Singh and his friends from a theatrical catapult!

THE battle over the fence and afterwards made it clear that despite the mass force of the crowd, they could not overcome the well-trained and well-armed constabulary. The protest was a political, not a military one, so that one should only assess it for its political gains. And these are considerable. The clearest illustration of the power of the demonstration was the language of George W. Bush's speech and on the last page of the 43-page 'action plan' released by the officials. Bush told his fellow heads of state that ''some complain that despite our democratic gains, there is still too much poverty, inequality. Some even say that things are getting worse, not better. For too many, this may be true." The "Quebec canaille" forced this kind of language from a man who is otherwise loath to admit either the existence of deprivation or the fact that the government has a role in the creation of equity. More important as the Summit came to a close the leaders released their 'action plan' filled with tasks to shepherd the FTAA movement from Quebec to Buenos Aires, Argentina where it will meet in 2004. The last page of the plan notes that "we further support consideration by the Organisation of American States and national governments of ways in which civil society can contribute to the monitoring and implementing of summit mandates." This bureaucratic language simply means that the organisers of the Summit plan to make the talks more transparent by opening the discussion to those who right now are on the streets. This is a remarkable development, even if its vagueness raises fundamental questions. For example, will the representatives of civil society enter the discussion as observers who will not get an opportunity to confer with their amorphous constituencies?

Will civil society organisations get the same access to the texts of the Summit Implementation Review Group process that are now made available to business groups? "Am I jumping for joy?" Maude Barlow noted when the plan was released, "No. Will we take everything we can get? Sure." The Summit organisers want to make available to the public the FTAA draft text and "additional information on the process of negotiations," both pieces of information hitherto difficult to find. If these promises are kept, then the movement will have gained a real measure of strength in the creation of public policy. If the Summit organisers renege on them, then it will be one more betrayal and one more reason to come out in strength at the next round.

The protests on the streets enabled the dissent of several of the 34 nations attain some measure of media exposure. At each of these summits, at least one leader of an exploited nation steps forward to render a strong critique, but this is frequently mocked by media silence.

Not in Quebec. Brazilian President Fernando Henrique Cardoso, onetime Marxist sociologist but now a neoliberal, noted that the protesters are "motivated by fear of the free trade agreement or globalisation without a human face." Their protests and the woes of Brazil pushed Cardoso to pledge to fight for "trade openings that are reciprocal and to help close rather than widen the disparities in our region. We will insist that the benefits of free trade are shared equally." Mexican President Vicente Fox reminded the Summit that of the 220 million people in Latin America, a quarter of the FTAA's projected population, live far below the poverty line and take little pleasure in the $ 17 trillion in goods and services produced in the region. "There is a lot to celebrate," said this former head of Coca-Cola Mexico, "but there is also a lot to lament. We need a strong expansion of economic citizenship, to democratise markets. Only by doing that can we develop the energy of the millions who have been excluded from economic development." Fox, despite his affiliation to a pro-corporate rightwing party, is a member of the Buenos Aires Consensus or Latin American Alternative, a group formed by his Foreign Minister Jorge Castenada and Brazilian legal scholar Roberto Mangabeira Ungerto in order to offer an alternative to the Washington Consensus. Further to the Left of Cardoso and Fox stood Prime Minister Kenny Anthony of St. Lucia, who pointedly noted that "until all the peoples of the Americas are free from hunger and fear of unemployment, we cannot celebrate the benefits of trade liberalisation."

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Surrounded by these warnings about the nostrum of free trade, George W. Bush announced that "free and open trade creates new jobs and new income. It lifts the lives of all our people, applying the power of markets to the needs of the poor. Trade helps spread freedom." But the United Nations Development Programme (UNDP) estimates that 70 per cent of the gains of the Uruguay Round of GATT (General Agreement on Tariffs and Trade) have been absorbed by the advanced industrial states, that in the name of freedom these states have further impoverished the bulk of the world. The FTAA, like NAFTA, is based on World Trade Organisation (WTO) law and on the General Agreement on Trade and Services (GATS): as of now, nine working groups are negotiating rules about agriculture, investment, intellectual property rights, subsidies, government procurement, market access, dispute settlement, competition policy and utilities (water and electricity). There is no formal discussion on labour rights, human rights, the environment, consumer safety or democratic governance. These fundamental elements of human freedom are not to be part of the equation, so that when Bush says that "trade helps spread freedom," he means the freedom of commerce and not of communities. The FTAA, like NAFTA, will weaken the power of individual states (that are accountable, in theory, to an enfranchised populace): Metalclad, a California-based garbage company, forced Mexico, through the in camera NAFTA tribunal, to pay it $16.7 million in damages when its toxic dump was closed by local authorities in San Luis Potosi. In the FTAA-NAFTA-WTO logic, a private firm can sue nation-states to circumvent, indeed disable, local rules.

But all states that join the FTAA will not be equally debilitated. Although the FTAA document says that its states must "strive to limit military expenditures," the centrality of the 'Anti-Drug Strategy' enables the U.S. to continue its routine military dominance over the territory south of its borders: Plan Colombia will not be threatened by the FTAA. The 34 states that will join the FTAA, in other words, will commit a sort of statutory suicide, just as it seems clear that they will suffer the indignity of being under the will of the multinational firm and the firm hand of the U.S. military.

But before this can happen, the citizenry are ready to assemble, the stuffed toys are at hand, and the rags have been soaked in water...

Progress and problems

JOHN CHERIAN world-affairs

The Ninth Congress of the Communist Party of Vietnam takes stock of the country's progress in the last decade and identifies problem areas.

THE landmark Ninth Congress of the Communist Party of Vietnam ended in the fourth week of April with a younger generation of leaders taking over the party's leadership. Le Kha Phieu has been replaced as secretary-general by Nong Duc Manh. As the Speaker of the National Assembly, Manh had enhanced considerably the profile of the National Assembly in domestic politics. The Western media have been describing him as a reformer. Manh, 60, is an urbane and widely travelled person and United States officials have said that he is a man they can do business with. Le Kha Phieu became unpopular with the West after he spoke during the visit of U.S. President Bill Clinton last year about the need to put an end to American hegemonism and create a multipolar world.

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The basic task of the Ninth Congress was to decide the orientation for Vietnam's development in the 21st century. It also analysed the achievements and shortcomings of the "doi moi" (renovation) process of the last 15 years. The country has escaped the serious effects of the economic downturn that affected other parts of South-East Asia. Vietnam produced 35.6 million tonnes of foodgrains last year. This helped the country to ensure food security of its people and export four million tonnes of grain. Vietnam is the second largest rice exporter in the world.

Vietnam's literacy rate is 91 per cent. But the party acknowledged that many problems remained. They include unstable economic development and low efficiency. The party listed corruption and "lifestyle degradation" as vices affecting its cadre and the administration. It has pledged to "scrupulously punish corrupt and irresponsible elements". In the last few years, many senior officials have been purged from the party for corruption and other economic crimes.

There seems to have been a conscious decision to infuse fresh blood into the party. The average age of the members of the new Central Committee is 55 years. Important reforms initiated under the guidance of Le Kha Phieu, are being implemented. The party leadership appears to have opted for continuity rather than a radical departure from the policies of the 1990s.

Phieu was not very popular among the rank and file. Do Muoi, former general secretary of the party, said recently that Phieu had made "mistakes in his work" but insisted that he was stepping down because of age. Phieu was reportedly keen on serving a second term but was outvoted in the Central Committee. Indications are that Prime Minister Phan Van Khai and President Tran Duc Luong will retain their jobs. Luong said that the goals of the party were to review the "71-year path of the Vietnamese Revolution, to make an assessment of the five-year implementation of the socio-economic strategy and to review the party's leadership". Another task, he said, was to elect a new Central Committee that really represented "political capacity and revolutionary morality, wisdom and ability in order to successfully accomplish the Resolutions of the ninth National Party Congress".

The four-day session selected new members for the 150-member Central Committee and constituted a smaller, 15-member Politburo. It was attended by 1,168 delegates representing 2.5 million members, 80 guest delegates and 34 international delegations. Among the international delegates was Harkishen Singh Surjeet, general secretary of the Communist Party of India (Marxist).

Before the Congress started, Planning and Investment Minister Tran Xuan Gia highlighted the significant achievements of the country in the past 10 years. He said that the gross domestic product (GDP) had risen more than two times as compared to the 1980s. The 1990s registered an annual growth rate of 7.5 per cent. Food output increased by 1.3 tonnes a year on an average, raising the per capita food share to 444 kg in 2000 from 340 kg in 1995. According to him, the growth rate of industrial production during 1991-2000 was 13.6 per cent a year on average, with the state-run sector posting 11.4 per cent and the non-state sector 11 per cent.

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Interestingly, foreign investment accounted for 22.5 per cent of the total investment. Foreign trade also played an important role in the development of the economy. The value of exports during 1991-2000 was $67.3 billion, with an annual growth rate averaging 18.2 per cent. According to the Minister, trade deficit dropped sharply from 49.6 per cent in 1995 to just a few percentage points last year.

The state-run sector has retained a key role in the national economy, accounting for 39 per cent of GDP. The cooperative sector accounted for 8.5 per cent. Significantly, however, the non-state sector has a 52.2 per cent stake in the national economy. A report presented by the Central Committee at the Congress emphasised that the "leading role of the state economic sector is to be enhanced, governing key domains of the economy; state enterprises are to be renewed and developed, ensuring production and business efficiency". At the same time the party reiterated that it stood for the establishment of a socialist-oriented market economy and its smooth and efficient operation.

Tran Xuan Gia said that more than 10 million people had been provided with employment in the past 10 years and the poverty rate had dropped to 11 per cent in 2000 from 30 per cent in 1992 and 20 per cent in 1995. However, the Minister said that Vietnam still had to overcome other shortcomings and weaknesses. The economy was not very competitive and the purchasing power of the average Vietnamese was inadequate. There had been a slowdown in foreign investment, the Minister said, and emphasised that it was "necessary to remove obstacles in the investment and business environment".

There have been reports in the Western media that Nong Duc Manh would usher in another era of liberalisation, which they call the second "doi moi". But Congress documents indicate that Vietnam will pursue a cautious liberalisation policy. In the document "Strategy for Socio-Economic Development 2001-2010", the stated goal is the "synchronised formation of institutions of the socialist-oriented market economy". It further stated that if an efficient socialist-oriented market economy was to be created, the state administration had to be reformed, "abolishing administrative regulations which are heavily bureaucratic, subsidised, troublesome and harassing to enterprises and people and suppressing the development of productive forces".

One of the factors that helped Nong Duc Manh's sudden ascendancy is his ability to get things done. His predecessor was identified as a conservative who wanted to slow down the pace of reforms. Manh belongs to the "Tay" ethnic minority. There are rumours that Manh is in fact the biological son of the father of the nation - Ho Chi Minh. This rumour has added to his stature. Manh has, however, laughingly denied the story, saying that his parents died when he was very young and, for that matter, every Vietnamese is a son or daughter of the legendary Uncle Ho.

The art of circumvention

ADOPTIONS in India are governed by guidelines laid down by the Supreme Court, in its judgment in the Lakshmikanth Pandey vs Government of India case in 1984, and by the Central Adoption Resource Agency (CARA). As per these guidelines, a baby can be given in adoption by an agency only if it is voluntarily relinquished or abandoned. It is said that there is more room for manoeuvre in the case of relinquished children than in the case of abandoned ones.

Each adoption centre has about 20 agents scouting around in rural areas for babies. They encourage people to give away their female babies for prices ranging between Rs.500 and Rs.3,000. After the 'transaction' the baby is handed over to the adoption home. There are instances of babies being 'booked' even before they are born.

Procedure requires that the parents be first counselled against giving away their baby. They can take the child back within 60 days of relinquishment. After relinquishment, the baby and its biological parents have to be photographed and their addresses noted down. In the case of inter-country adoption, the prospective adoptive parents have to apply to the Voluntary Coordinating Agency and the scrutinising committee for clearance and to CARA for a 'no objection certificate'. Then the family court will have to pass an order making the child legally free for placement. In some instances, the requirement of a court order is dispensed with. In the case of in-country adoption, the file relating to adoption is "just left in the court" and not registered. These procedures take about nine months.

In many cases the relinquishing document is not signed by the child's biological parents. Even if they are the real parents, they are made to affix their fingerprints on a piece of blank paper. A look at the documents shows that middlemen themselves 'sign' away the children. It is also not difficult to find two witnesses who are required to sign the document. After the child is "relinquished", the agency starts preparing the documents to make the child legally free for adoption.

Although the adoption centres are supposed to give first priority to Indian couples (who pay around Rs.30,000), they prefer inter-country adoption because it is more lucrative. The majority of homes collect $3,000, which includes the fees for the child's visa and passport and Rs.150 for each day that the child stays at the home. In the case of inter-country adoption, the child is at times handed over to the adoptive parents without following the procedures. They take the child along with them, claiming that its parents reside abroad and that they are only escorts. A child taken away in this manner will have no legal or hereditary rights and could end up as a domestic help. And, more important, it will have no agency monitoring its progress in an alien environment.

Investigations reveal that adoption agencies in Andhra Pradesh by and large have at one time or the other violated CARA guidelines. Many of them stand accused of soliciting babies and paying for them, falsifying documents, substituting the names and photographs of babies who have died with new ones, dealing directly with representatives of foreign adoption agencies, ignoring the role of CARA, and so on.

With adoptions embroiled in a controversy in the State, children whose adoption has already been cleared have been forced to wait longer in the homes. Family Courts in Hyderabad are also expected to seek more time to clear pending files of adoption.

Violent elections in Bihar

The elections to the 8,452 panchayats in Bihar, held after 23 years, are marked by high voter turnout, despite violence.

THE six-phase, 19-day panchayat elections held in caste-ridden Bihar in April were swathed in blood. At least 100 people were killed and thousands injured in the turf war between the old masters from the upper castes and the newly empowered Dalits. There were 1,30,563 candidates for mukhia (panchayat head), 2,28,995 for seats in the panchayat committee and over four lakhs for membership in the district councils. The elections, in 8,452 panchayats in 29 districts, were held after 23 years.

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Panchayat institutions in the State suffered badly as successive State governments, wary of relinquishing power in favour of local governments, withheld funds from them and avoided conducting regular elections to them. In the 1980s, these anomalies were addressed to some extent through an amendment to the Constitution and by adopting a new and improved model of local governance. But the objectives were defeated by caste-based politics, which rather deepened social cleavages than build trust among social groups. One reason for the bloodbath that accompanied the elections was the exploitation of caste affiliations by political parties, which viewed the elections as a round of mini general elections.

The police were unable to prevent the spread of violence in spite of having taken preventive measures such as the arrest of 40,000 people with criminal records, the closure of a number of mini gun factories and the seizure of illegal arms.

This is largely attributed to the social inequality and tensions that prevail in the State. The emergence of several ultra-Left groups, such as the outlawed Communist Party of India (Marxist-Leninist), People's War and Maoist Communist Centre (MCC), has heightened tensions.

The government imposed shoot-at-sight orders, sealed the international border with Nepal and the boundary with Uttar Pradesh, Jharkhand and West Bengal, and borrowed 115,000 rifles from the neighbouring States to arm its police force and home guards in order to prevent election-related violence. Although the Centre turned down the Rabri Devi government's request for 35 companies of paramilitary forces, the State managed to deploy 50,000 policemen and 57,000 home guards for election duty. The government provided an insurance cover of Rs.10 lakhs each to its employees and policemen engaged in election work.

Poll violence and electoral irregularities in Bihar date back to the first simultaneous parliamentary and Assembly elections held in 1951-52. Since panchayat elections are not party-based, the State administration this time did not anticipate violence. It seems to have ignored the fact that 500 persons lost their lives in the 1978 panchayat elections. The 73rd amendment to the Constitution bestowed on panchayat heads increased executive and financial powers. In rural Bihar polarised on caste lines, candidates go to any extent to win the battle of ballots. Major political figures, even if they are not in the fray, try to take power by proxy by pushing members of their family into grassroots politics. Even Laloo Prasad Yadav, former Chief Minister and the ruling Rashtriya Janata Dal's (RJD) president, resorted to this practice. Shiv Prasad Chowdhury, father of Laloo Prasad's wife Rabri Devi, had contested for the post of mukhia in Salar Kalam Panchayat. The elections in Salar Kalam in Gopalgunj district were "fiercely fought". A section of the media reported that Chowdhury's younger son Subhas Yadav, a member of the State Legislative Council, was present in the panchayat with jeep-loads of supporters and security personnel, intimidating voters. In his native Phulwaria block, Laloo Prasad's younger brother and nephew contested the panchayat polls. The wife of Animal Husbandry Minister Aditya Singh contested from Nawada, while former Minister Vijay Krishna's wife contested from Mokama. The brother and nephew of the Member of Parliament from Saharsa, Dinesh Chandra Yadav, also contested the polls.

The voter turnout, at 65 per cent, was impressive given the atmosphere of violence. More notable was the response from women voters. The presence of women in large numbers reportedly turned out to be a major deterrent for booth-capturers. Even so, a 63-year-old woman died in Vaishali after she was hit by splinters from a bomb. Official sources said that 50 per cent of the total votes polled belonged to women. Most of them were exercising their franchise for the first time in panchayat polls.

This is perhaps a lateral effect of the general rise of political consciousness among the backward castes, who earlier feared to vote as the booths were controlled by armed goons employed by landlords belonging to the upper caste Bhumihar and Rajput communities.

WITH the panchayat polls over, the village residents echo a demand that is common to the countryside: Gaonka samasya gaon me neptaiye (let village's problems be settled in the village itself). The traditional village court system (gram kachari) has run into a controversy. Polls to the village courts have been withheld by the government, and a case in this connection is pending in the Supreme Court. "The village panchayat court was a strong rural tradition. It was with the birth of the new Panchayat Act that the States began to impose their own concepts. Some States withdrew all judicial powers belonging to these courts, others granted only nominal empowerment," explained Tejnarayan Singh, secretary, Bihar Raj Panchayat Parishad, an autonomous organisation conducting research on village self-rule. The village-level judicial bodies gradually became defunct. An impression was born that the sarpanch, the head of the village court, was not often impartial. "Personal feuds and class and caste relationships perhaps resulted in biases in the dispensation of justice," observes a study conducted by A.N. Sinha Institute of Social and Economic Research, Patna. From the 1980s onwards, village-level judicial set-ups began to assume different forms in different States according to the respective Panchayat Acts - village self-rule being a State subject. As per the new norm, the governments of West Bengal and Madhya Pradesh withdrew all powers vested with the traditional village head to try criminal cases. Village courts could only deal with civic disputes or act as arbitrators in property disputes.

The Bihar act did have a provision for gram kacharis. The Bihar Panchayat Raj Act in fact bestowed upon the village court the powers to award jail terms up to three months and impose fines up to Rs.1,000 (failure to pay the fine would mean a month's jail). The underlying hope was that the bulk of petty disputes would be settled at the village level itself rather than encumber the subdivisional levels of judiciary. The Act also gave the gram kacharis some more teeth, by providing for the creation of a gram raksha dal, a village volunteer force, which would virtually act as the police in the village-level administration. As per the orders of the Patna High Court, the appointment of the Sarpanch has to be based on a minimum educational qualification; this is to ensure the Sarpanch can handle tricky cases. The State government, as well as several social organisations have petitioned against the court order on the plea that the high rate of illiteracy in rural Bihar would render the choice of a literate man for the job difficult.

With the panchayats to be formed shortly, village-level panchayat members will not adorn their seats, as elections to the posts of Sarpanch have been withheld. So the people's demand for the settlement of all disputes at the village-level will not be met until the dispute is finally settled in the Supreme Court.

Fissures in the RJD

THE process of disintegration of the ruling Rashtriya Janata Dal in Bihar has begun. Three of the seven RJD members in the Lok Sabha, Nagmani, Anwar ul Haque and Sukh Deo Paswan, have formed a separate group, the Rashtriya Janata Dal (Democratic), and sought the recognition of the Speaker. Dissident leaders Ranjan Prasad Yadav and Kumkum Rai, both Rajya Sabha members, were instrumental in the formation of the RJD (Democratic) in both Houses of Parliament. Informed sources in the dissident camp said that Speaker G.M.C. Balayogi had assured the new formation that its request would be considered.

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The development unfolded immediately after Ranjan Prasad Yadav, who spearheaded the rebellion against RJD chief and former Chief Minister Laloo Prasad Yadav, was expelled from the party on April 28. Earlier Ranjan Prasad Yadav had been stripped of his post of working president of the party. By the dismissal Laloo Prasad sought to take the dissidents by surprise and take the battle into their camp by daring them to split the party. The dissidents had threatened to hold a meeting after the conclusion of the panchayat elections on April 30, in order to take stock of the situation in the light of the removal of Ranjan Yadav from the party post.

Laloo Prasad described as traitors Ranjan Yadav, once his closest "friend" and most trusted colleague, and the MPs who deserted the party. He told Frontline that they were playing into the hands of the Bharatiya Janata Party and other communal forces that wanted to destabilise the RJD government. (The dissidents have been campaigning since February to remove the Rabri Devi government.)

It is learnt that the anti-Laloo group has already got the backing of the Samata Party and Union Communications Minister Ram Vilas Paswan's Lok Janashakti. Samata Party leader and Railway Minister Nitish Kumar made no secret of his support to the dissidents' efforts. Paswan offered his party's support for an alternative government in Bihar.

Nagmani said that once a new government was formed under the leadership of Ranjan Yadav, it would not be difficult to win the support of those opposed to Laloo Prasad's autocratic style of functioning.

In order to topple the Rabri Devi government, the rebels will require the support of one-third (or 39) of the 115 RJD members of the Legislative Assembly. The BJP and the Samata Party see the feud in the RJD as a positive development. They are committed to helping the breakaway group in its efforts.

The dismissal of Ranjan Prasad has not brought relief to Laloo Prasad as the rebel leader has emerged as a constant source of trouble to the RJD dispensation. Laloo Prasad has faced potentially dangerous revolts on numerous occasions in the past 11 years of the RJD rule. Politician of "uncanny wisdom and substantial mass following", he has so far succeeded in thwarting all attempts to cripple him politically. But Ranjan Yadav's challenge poses a real threat to Laloo Prasad's supremacy in Bihar, as the former is not without supporters in the party's State unit. Former Finance Minister Shankar Prasad Tekriwal, who resigned recently after criticising the Rabri Devi government and Laloo Prasad's style of functioning, and a few others in the legislature party are waiting for the "opportune moment" to strike.

During his four-year tenure as RJD working president, Ranjan Yadav "planted" a number of his supporters in the organisational set-up at the State and local levels. So much so that the RJD chief came under pressure from his loyalists on several occasions to expel the likes of Tekriwal. Reluctant to take action against the MLAs at this stage, Laloo Prasad constituted a "disciplinary committee" to keep a watch on the conduct of all party leaders.

Laloo Prasad is yet to assess the reaction that his action against the senior Yadav leader will generate among members of the Yadav caste. Yadavs and Muslims constitute the main support base of the RJD. Apparently weighed heavily by these issues, Laloo Prasad has decided to address a series of public meetings in various parts of the State from May 10 to convince supporters about the damage caused to the forces of social justice by Ranjan Yadav.

The RJD supremo's biggest problem is the Central Bureau of Investigation's (CBI) sword that constantly dangles over his head. Caught in numerous fodder scam cases, Laloo Prasad is a worried person now. Moreover, he is falling short of trusted persons. Sharad Yadav, Nitish Kumar and Narendra Singh deserted him long ago. Ranjan Yadav is the last of his "trusted" friends to part ways with him.

MEANWHILE, the arrest of Laloo Prasad in connection with three conspiracy angle cases relating to the fodder scam has become imminent as Governor Vinod Chandra Pande has agreed to grant sanction to the CBI by May 10 to prosecute Laloo Prasad, former Chief Minister Jagannath Mishra and two former Animal Husbandry Ministers Vidya Sagar Nishad and Chandradev Prasad Verma. In the event of his arrest, Laloo Prasad will be taken to Jharkhand State since most of the fodder scam cases originated there. The CBI has already moved the Special Court in Patna for transferring 52 of the 64 cases to Jharkhand. At least seven Special Courts have been set up in Jharkhand to dispose of the fodder scam-related cases.

Jharkhand Chief Minister Babulal Marandi has made it clear that Laloo Prasad will not be provided with the kind of special facilities he had enjoyed during his stay in jail in Patna. "The Hazaribagh jail in Jharkhand is the place where Laloo Prasad will have to stay with ordinary criminals in accordance with the jail manual," Marandi said. The fear of such an eventuality is so great that the RJD convention adopted a resolution to condemn Marandi's statement.

If Laloo Prasad is incarcerated in the Hazaribagh jail, his hold over Patna will weaken considerably, providing great scope to the party's dissidents to take him on. The rebels are confident of success. Nagmani said: "The game has just started. Although we don't believe in taking revenge for the pounding we received, our supporters will be on our side more openly now." Laloo Prasad, however, put on a brave face: "I see a stronger RJD in future as I see my former colleagues standing shoulder to shoulder on a burning deck with Ranjan Yadav."

The Dabhol mess

The dispute between the Maharashtra State Electricity Board and the Dabhol Power Company reaches a decisive stage.

AFTER years of battle, the Dabhol Power Company (DPC) and the Maharashtra State Electricity Board (MSEB) have initiated processes that could finally terminate the Enron-sponsored $3-billion, 2,184-megawatt (MW) power project. Neither side has taken a decision regarding ending their relationship yet, but it is clear neither believes the relationship is sustainable. The current developments, it is suggested, constitute a crisis that could have serious implications for international investment in India. But the termination process also holds out the sole prospect of resolving the long-running controversy and saving the MSEB and the Maharashtra government from certain financial ruin.

On April 23, the DPC board met in London to decide, among other things, the future course of the Indian project. At the end of two days of deliberations, the board voted to opt out of the project. The MSEB, which holds 15 per cent of DPC's equity, was not permitted to vote as it was an "interested party". Indian financial institutions, which had backed the project, opposed the resolution, but were in the minority. It is now well known that the $40-billion Enron Corporation has shifted its business focus from owning assets to trading in products such as petroleum and gas. Therefore, an asset like DPC does not fit into its new strategy. At the conclusion of discussions, the board permitted Enron India managing director K. Cline Wade to issue a notice of termination to the MSEB.

In the 10 days that followed the board meeting, DPC has not actually served any such notice. Nor has it confirmed its willingness to renegotiate its power purchase agreement (PPA) with the MSEB. The only significant development appears to be that there were reports of large-scale retrenchment, but even that DPC does not validate.

The company spokesperson is unwilling to comment on any development. Nevertheless, a decision from DPC is expected soon. The MSEB, meanwhile, has responded to the developments by issuing a termination notice of its own, claiming that DPC had failed to deliver on its contractual obligations. Ever since DPC began generating power in May 1999, the once-profitable and efficient MSEB has been reduced to a loss-making organisation. As per the PPA, the MSEB pays Rs.95 crores as fixed monthly payments to DPC, irrespective of whether it uses the electricity or not. This is because the MSEB committed at the time of signing the agreement that it would pay for 90 per cent of the 740 MW of power produced by Phase I of the Dabhol Project.

WHILE it appears that both the MSEB and Enron are seeking to cut their losses and get out of the mess while they still can, the lending institutions are trying to persuade DPC not to pull out. Although they say that termination is not a constructive solution, the lenders have stopped further disbursements. Thirty per cent of the funds needed for Phase-II remains to be disbursed. Indian representatives and lenders, who met with the board, have asked DPC to consider renegotiating the PPA. Should the project be terminated, the Central government would have to pay up to Rs.1,800 crores as penalty, according to Central Power Secretary A.K. Basu. The amount is calculated on one year's electricity bill. Additionally, there is a termination fee of $300 million. However, the more worrying aspect of a termination is the huge debt component.

Most of the loans taken from international agencies are backed by domestic guarantees. If termination becomes inevitable, the foreign loans will remain completely secure. The agreement is that the Indian lenders will take on their bad debts, which means that apart from the funds they have sunk in, Indian lenders will shoulder a huge additional burden. Meanwhile, the Government of Maharashtra (GoM) and the Government of India (GoI) have clearly stated that termination is not what they want. The GoM has announced the formation of an experts panel to renegotiate the agreement and arrive at an amicable solution. The panel consisting of a representative each from the Union and State Finance Ministries, the Central Electricity Authority, and the MSEB and all members of the Madhav Godbole Committee, has been given a month to finish its task. The Godbole Committee, constituted to review the PPA, had suggested wide-ranging financial restructuring of the project.

Maharashtra's official position on terminating the PPA represents something of a volte-face, and it has caused more than a little discontent among alliance partners in the ruling Democratic Front that are opposed to the project. Interestingly, prior to the London meeting, Chief Minister Vilasrao Deshmukh had said time and again that no compromise would be made with Enron. But on the eve of the meeting, Deshmukh and MSEB Chairman Vinay Bansal met Union Ministers Yashwant Sinha and Suresh Prabhu in New Delhi as well as Congress(I) leader Sharad Pawar. It is probable that the GoM was advised at these meetings to soften its stand. On his return from New Delhi, Deshmukh announced that the GoM was prepared to renegotiate the deal. In fact, he said terminating the deal with Enron would not be a solution. The DPC, Deshmukh said, had "acted in haste", adding that the GoM would still try and make all attempts to reopen the PPA and bring the DPC to the negotiating table.

PAST experience suggests that not much is likely to come of the time spent at the negotiating table. The last review of the project, carried out by the Bharatiya Janata Party-Shiv Sena alliance government, led to a contract which protected Enron's interests. Shrouded in secrecy at the time of signing, the contract was formalised by the BJP-Sena alliance, despite its election promises to "throw Enron into the sea". According to independent experts, the renegotiated contract was even worse than the earlier agreement signed by the Congress(I) government led by Sharad Pawar. Opponents of the project had maintained that the GoI and the GoM would realise their folly only when the bills started coming in, which is precisely what happened.

Suffering huge losses because of these payments, the MSEB categorically told DPC in November last that it could no longer meet the exorbitant charges. The MSEB pays Rs.7 a unit to DPC as against Rs.2.80 a unit to Central and State generating stations. The MSEB defaulted on its December and January payments and has ever since been at loggerheads with DPC (Frontline, May 11, 2001). The quarrel escalated when DPC failed to supply power within a contractually stipulated time period of three hours on January 28. As the PPA provides for a penalty of two weeks' receivables, the cash-strapped MSEB decided to make good this clause. It slapped a Rs.401-crore fine for failure to ensure power availability. Since the MSEB could not make its monthly payment, it asked DPC to set off the fine against the amount the MSEB owed it. DPC refused to accept this and invoked its counter-guarantee clause with the Union government.

However, the Union Law Ministry upheld the MSEB's stand, stating that the utility company was within its rights to ask for an adjustment. When the Centre failed to meet the counter guarantee demand, DPC broke the stand-off by serving a notice of political force majeure on April 9. This clause stated that it would be impossible for the company to fulfil its contractual obligations owing to interference from the State. It was not coincidental that the notice came a day before the release of the Godbole Committee's report. An MSEB official told Frontline that DPC had pre-empted the committee's findings. Furthermore, a week later DPC served notices of conciliation and arbitration on the GoI and the GoM. Enron also let it be known that it was willing to sell its stake in DPC if a good price was offered. There has been speculation that the Reliance group is the most probable successor to Enron. At a recent press conference, Reliance managing director Anil Ambani said his company was "keeping an open mind" on taking over Dabhol.

Although the GoI believes that Enron should stay, it is far from clear if either it or the Maharashtra government could accept the consequences. The 1,444 MW Phase II of the project is scheduled for commissioning later this year. That means that the MSEB, according to the conditions in the PPA, shall have to fork out Rs.500 crores a month as stand-by charges to DPC, irrespective of how much it buys. Officials say the MSEB could end up paying upwards of Rs.6,000 crores each year, which the organisation just does not have. "It would be better for them to pay the Rs.1,800 crores now and terminate the agreement rather than struggle to pay thousands of crores later," says Pradyumna Kaul, an activist with the Enron Virodhi Andolan and a leading critic of the DPC deal. Kaul told Frontline that "the country definitely stands to lose less now than it will once Phase II goes online."

Besides, Kaul argues, the fact that Enron's decision to move out came on the first day of its board meeting makes it clear that the multinational has made up its mind. He says the DPC should be declared a failed business and the MSEB should be given the reins to run Phase I. "Let the financial institutions take the impact," Kaul suggests. "They can afford to take the impact. The MSEB cannot."

To terminate the agreement, Enron will need the approval of financial institutions, which have ploughed in approximately Rs.7,000 crores into the project. But, according to an MSEB official, Enron could work around a welter of legal loopholes. If it does so, it would result in a final arbitration process being initiated. In all likelihood, Enron will negotiate a closing "deal", the official says. Should Enron terminate the agreement, it will enter a six-month "cooling" period. The time could be used to pressurise policy-makers to meet pending payments. Enron will not leave without securing most of its returns, he says. On the other hand, should renegotiations begin with Enron, the Godbole Committee has suggested that priority be given to bringing down the cost of the project. The committee has blamed Enron for unfairly adding approximately $500 million, the cost of the on-site liquefied natural gas (LNG) facility, to the project cost. Renegotiating both the phases, removing the opacity in traffic structures and, most important, removing all dollar denominations are the other recommendations of the committee.

The showdown the MSEB anticipated ever since the squabbling over non-payment of dues began has now come about. With Enron still undecided on its final course of action, just how the conflict will end remains uncertain.

Waiting to go home

other

Peter Bleach, the British national, languishes in a Calcutta jail 10 months after five Latvians who had been jailed along with him in the 1995 Purulia arms drop case were granted a presidential pardon. But pressure is mounting for his release.

SUHRID SANKAR CHATTOPADHYAY in Kolkata

EVER since the release of five Latvians convicted in the Purulia arms-drop case, Peter Bleach, serving a life sentence in Kolkata's Presidency Jail after being convicted in the case, has been exploring all possibilities to secure his own release. The five Latvians were granted a presidential pardon on July 22, 2000. Bleach has been consulting his lawyers, preparing files to establish that his detention, while his co-accused had been released, was unfair and violative of Article 14 of the Constitution.

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Bleach, who has been in prison since December 1995, has now reasons to be optimistic about his release. According to informed sources, British Prime Minister Tony Blair is now likely to personally request Prime Minister Atal Behari Vajpayee to release Bleach.

Earlier, British Foreign Secretary Robin Cook had taken up the issue of Bleach's release with External Affairs Minister Jaswant Singh when he visited Britain in November 2000. According to reports, Jaswant Singh assured Cook that Bleach's case would be "re-examined". On December 5, nearly five months after five of the convicted persons were released, Cook wrote to Jaswant Singh asking for Bleach's release "on the ground that all those who were convicted with him for the same offence have been released". The letter requested that Bleach be treated in a "non-discriminatory" way. It clarified that the British government did not "condone" his activities, and that its actions were merely in support of Bleach's "consular welfare". As the Indian government did not respond to the letter sent in December, Cook wrote another letter on January 29 asking for an early response for his previous letter. However, no reply was sent to this letter either.

ON the night of December 18, 1995, several wooden boxes containing 11 9 mm pistols, 250 AK-47 assault rifles, 10 rocket launchers, 78 anti-tank grenades and 65 hand grenades were dropped from an Antonov-26 (An-26) aircraft on Bansgarh village in Purulia district. The plane had left Karachi in the afternoon of December 17, refuelled in Varanasi and headed for Kolkata around 10 p.m. It was on its way to Kolkata that the aircraft dropped the arms and ammunition. On December 18, the plane left Kolkata for Phuket, Thailand. Three days later it left Phuket with permission to refuel in Kolkata. However, it landed in Chennai and took off after refuelling. Soon it was found that this was the same aircraft that had dropped arms and ammunition in Purulia. The plane was forced to land in Mumbai and Bleach and the five Latvian crew members - Igor Timmerman, Alexandre Klichine, Igor Moskvitin, Oleg Gaidash and Evgeny Antimenko - were detained. However, Kim Davy, an arms dealer and a key suspect in the case, escaped. He later resurfaced in Denmark. On February 2, 2000, after a long-drawn-out trial, the Calcutta City Sessions and Civil Court, found Bleach and others guilty of indulging in a conspiracy to wage war against the state and other offences, and sentenced them to rigorous imprisonment for life.

Despite Bleach's claim that he was working with the full knowledge of the British intelligence services when he dropped a large cache of arms in Purulia, the British government followed a hands-off policy throughout his trial. On July 22, 2000, three months before Russian President Vladimir Putin's visit, the Latvians-turned-Russians were granted a presidential pardon by the government as a goodwill gesture. Following this, the British government also started pressing for Bleach's release. Home Secretary Jack Straw, during his visit to India in September 2000, took up Bleach's case with Home Minister L.K. Advani and West Bengal Chief Minister Jyoti Basu. At a press conference in Kolkata, Straw dismissed Bleach's charges that the Blair government had "abandoned" him. Straw said that Bleach was given the same kind of representation and consular services given to any British national in similar circumstances. He said that it was Britain's policy of non-interference in the legal procedures of a democratic country that prevented the government from putting pressure on India to secure Bleach's release. British Minister of State for Foreign and Commonwealth Affairs, Peter Hain, who visited India in November 2000, said that Britain found it difficult to understand why the Indian government still had Peter Bleach imprisoned even after it had released the Russians.

Bleach was reported to have said that he was being discriminated against because he was a British national. He was also reported to have stated that the issue was no longer one of guilt or innocence, but of "equality of justice under Article 14 of the Indian Constitution". On March 3, in a hand-written statement, Bleach wrote: "Under Article 14 of the Constitution of India, as read with Article 21, my continued detention in jail is discriminatory and became illegal the moment the Russian crew were released." In the same vein, British High Commissioner to India, Sir Rob Young has been quoted as saying that there was no reason why Bleach should not be released.

The five released Latvians have also appealed to President K.R. Narayanan for Bleach's release. The letter, written from the Latvian capital of Riga on March 18, said: "We understand that maintaining equality before law in our case means kindly granting Mr. Bleach the same remission and putting him in the same situation. We are sure you would consider this representation to maintain equality before law and promote justice by granting the same remission of sentence to Mr. Bleach."

On March 5, Bleach threatened to fast unto death if his release did not come about in the following two weeks. In an open letter to the Indian authorities with a copy to the British Foreign Office, Bleach wrote: "I am not well and I cannot wait indefinitely. I will start a hunger-strike till death if I am not released within the next 15 days." He said that if anything happens to him, the Indian government would be held responsible. He said that although he had full faith in the Indian legal system, he was being kept in prison, in contravention of Articles 14 and 21 of the Constitution. However, sources said that Bleach chose not to go ahead with his hunger- strike as he felt the British government was doing its best to get him released.

Earlier, in January, Bleach had given a sensational twist to the whole case. In a letter to Gregory Kovrizhenko, deputy chairman of the United Nations Association of Russia, Bleach wrote that the arms and ammunition air-dropped in Purulia was part of an anti-communist conspiracy to dislodge the Left Front government in West Bengal. However, he also mentioned in the letter that he was not certain whether his "hypothesis was correct". "I might be right or completely wrong," Bleach wrote.

Recently, the Central Bureau of Investigation (CBI), in a note to Home Minister L.K. Advani, is reported to have said that Bleach's participation in the conspiracy is far more important a factor than that of the Russians.

Of livelihoods and entitlements

It is not a drought, says the Maharashtra government, it is scarcity. For people who have already been in the poverty trap, it could still be the last straw.

MAHARASHTRA Chief Minister Vilasrao Deshmukh had affirmed public anxiety when he announced in December last that a number of districts in the State faced scarcity conditions. But his formal declaration in January that the entire administrative division of Amravati was scarcity-affected was tantamount to acknowledging the failure of the official machinery in initiating and carrying through relief measures.

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Dr. Ashok Dhawale, State joint secretary of the All India Kisan Sabha (AIKS), says, "This indicates just how bad the situation is. Even the government has realised that if it did not officially recognise the problem it would become a laughing stock."

Dada Raipure, State vice-president of the AIKS, who lives in Malkapur taluk in Amravati division, said, "We have been without assured water supply for years. All these distinctions between drinking water and irrigation water... we are grateful to find any water in the hottest months. For us it makes no difference if it is an officially declared drought year or not."

After Deshmukh's declaration in January, the number of scarcity-affected districts has climbed rapidly, and in April it stood at 26 (out of the total of 35 districts).

The essential difference between a scarcity condition and a drought situation is one of degree, a drought being a situation of acute water scarcity. The current situation in Maharashtra has been defined by the government as one of scarcity and not a drought. By all counts and all criteria the State is suffering the worst water scarcity since 1992. For meteorologists, a drought is a situation that obtains when the rainfall over a particular region is more than 25 per cent below normal.

For farmers it is a question of crop failure caused by a delayed monsoon. Seeds are sown just before June with farmers banking on the first rain that should fall in June. If there is no rain the seeds will not germinate. For a farmer a drought begins with the loss of the sown seeds and aggravates into economic hardships for the rest of the season.

However, these two criteria are not the ones the government uses to declare a scarcity or a drought. It relies on the paisewari system (originally referred to as annewari). Paisewari literally means 'value of the crop'. In every village, prior to the harvest of the kharif crop in October, the tehsildar, in cooperation with officials from the Department of Agriculture and local farmers, estimate the crop grown. A plot is chosen and the crop yield is measured. If the crop growth percentage is less than 50 per cent (of the average of 10 years) then that is considered a drought year. For people residing in drought-prone areas, almost every year is a scarcity year.

According to Dhawale, in some areas of Maharashtra scarcity (as defined by paisewari standards) has prevailed for the last 10 years without official recognition. In order to avoid the additional responsibilities of a scarcity situation the local administration manipulated the figures, he said. Raipure said that during the last paisewari the patwari tried to persuade local farmers to admit that the crop yield was above 60 per cent, while it was actually below 30 per cent. "We were strong enough to resist his pressure," said Raipure. The district was officially declared scarcity-affected.

The Communist Party of India (Marxist) and the AIKS have been challenging the paisewari system primarily on the grounds that it is amenable to manipulation. Professor Udayan Sharma, secretary of the CPI(M) Amravati district committee, says: "For the last three to four years the rains have been untimely and most farmers lost their entire crop, but the paisewari did not show this. The tehsildars ensured that it was above 50 per cent and so there were no relief measures even though the farmers required help."

Some of the relief measures adopted in the event of a formal declaration of scarcity conditions are: deployment of the Employment Guarantee Scheme (EGS), payment of cash compensation is given in cases of severe crop failure, waiver of land tax for small and medium farmers for that year, rescheduling of loan recovery for small and medium farmers, halting of enforced realisation of loans, provision of tanker-supplied drinking water, provision of seeds and fodder, and a 33.3 per cent concession on electricity bills to small and marginal farmers.

The EGS is crucial for the relief effort. It has been so extensively employed in the State that barring the highways, most of the roads are laid under this scheme. Employment under the EGS, meant only for adults, guarantees a daily minimum wage and food coupons. Men and women receive the same wage, which is based on the agricultural wage that the worker would have received in that particular area. Within the State, the minimum wages vary Rs.36 to Rs.49 a day.

The EGS, though laudable on paper, has several hitches in its application. Wages and food coupons, which are to be distributed every 15 days, are often not distributed on time. Adequate work is not provided, and often the work spot is located so far away from their villages that the workers have to spend money on travel. Workers are often exploited and made to work beyond the stipulated eight hours.

Consider the example of Thane district. Situated to the north of Mumbai, it is an area of chronic scarcity. Works under the EGS go on round the year. The 200 residents of Sakhrapada hamlet in Vikramgadh taluk depend entirely on EGS works. The daily earnings of Gopal Shankar Bhoi are representative of Thane's Adivasi population.

Bhoi and his wife work as a team, breaking stones for road construction. Using a hammer that he purchased for about Rs.250 Bhoi breaks big stones while his wife uses a smaller one worth Rs.30 to break the stones further. Their current work site is situated 11 km away from their residence. Each spends Rs.15 to reach the site. Unable to afford the return fare on a daily basis, they, like other couples, refer to carry their children and utensils with them and live at the site, without a shelter. On the site they are only provided drinking water. After 15 days of work Bhoi and his wife should receive Rs.2,260 and food coupons for 15 kg of rice and 15 kg of wheat as payment for working eight hours every day.

However, the reality is often cruel. The workers start work at 8 a.m., take an hour off for lunch, and then work through the afternoon often until 8 p.m. The extra hours are not documented but the workers do not complain since the proportion of jobs to workers is unfavourable. At some sites workers are paid according to the amount of work done and not the number of hours. For example, Bhoi and his wife can expect their dues only if they break one "braz" of stones a day. The neat rectangular pile of stones marked with lime commonly associated with road construction, equals one braz. Bhoi says he and his wife manage to break one braz in a little over eight hours. Since the beginning of this year, the couple have worked for 26 days, but neither they nor the other workers of Sakharpada have received their wages or food coupons for the last 15 days. They have also been told that at present there is no more work. In a region where agricultural work is non-existent because of water scarcity, the residents of Sakharpada will continue to borrow Rs.2,000 from the money-lender in April, which means they will owe him Rs.2,500 in October.

Similar cases exist all over the State. Sharma says, "The Chief Minister declared Amravati an affected region but what has come of it? Where are the relief measures? The tehsildars tell us that they have received no orders to begin relief works. Tanker water is supposedly being distributed but we see no signs of tankers in Amravati zilla. The EGS is implemented only in areas of organised labour and even then the government has to be pressured into starting projects."

Chandra Iyengar, Secretary, Rural Development, believes that "the key to rural development is credit" but is frustrated by the response that her Department gets from the banking sector. "Banks link credit disbursement with loan recovery. They do not understand the seasonal necessities of rural banking and credit. They work on a 12-month, equally distributed pattern of recovery. For any development to be possible they have to make their system more flexible."

A SCARCITY, though induced by a shortage of water, is a phenomenon that goes far beyond shortage of water. With scarcity come new patterns of life in health, labour and lifestyle. For people who have already been in the poverty trap characterised by declining employment, lack of access to the public distribution system, complete dependence on rainfall for agriculture, and overwhelming debts, a scarcity is often the last straw.

During the Assembly session in March, Opposition members said that hundreds of children had died of malnutrition in the northern Maharashtra district of Nandurbar. Nandurbar is one of the poorest districts and has a substantial tribal population. Replying to accusations of neglect, the government provided this explanation. Nandurbar shares the border with Gujarat, and across the border both agricultural and industrial jobs are easier to get and it is even possible for people from Nandurbar to enlist with Gujarat EGS projects (these fetch higher wages than those in Maharashtra). Many of the families whose children died of malnutrition had gone to Gujarat. Owing to the breakdown of services that resulted from the earthquake of January 26, they were unable to find work or even return home. Left without food or shelter for an inordinately long period, the already malnourished children were beyond medical help when they reached Nandurbar.

A plausible explanation, had incident occurred only this year. But the fact is that Nandurbar, along with other tribal areas like Melghat in Amravati district, report year after year staggering levels of infant and child mortality. Government agencies blame this on the remoteness of the region and the illiteracy of its tribal inhabitants who seek medical help as a last resort. They also point to the existence of a number of primary health centres and rural hospitals and the numerous PDS outlets that are well stocked. They gloss over the lack of staff and facilities at many of the PHCs and the fact that most Adivasis have to travel long distances, usually on foot, to reach them. Once at the PHC, care and food are offered only to the patient, not to the person accompanying him or her. Cash currency is a luxury for most Adivasis, dependent as they are on money-lenders who manipulate debt recovery records. While the PDS outlets are well stocked, the Adivasis lack the money to purchase rice at Rs.5.50 a kilo and wheat at Rs.3 a kilo. Sugar at Rs.14 a kilo is an unaffordable luxury. It has been established that human mortality as an outcome of scarcities is related to the shortage of income-generating work.

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The tribal districts prove Amartya Sen's theory that starvation and deprivation are not caused by a drop in food supply but by the failure in maintaining the entitlements of households. The entitlement may be in the form of foodgrains stored by farmers for consumption or for purchasing power. Sen has also said that the success of coping with drought and scarcities can be measured in terms of how far the entitlements of households are protected. Lending further credence to the theory is the example of Thane district. Neither remote nor in a rain shadow area, the interior areas of the district suffer from chronic scarcity. Thane too has substantial tribal population. Barred from making a forest-related livelihood, the Adivasis of the district now depend almost entirely on EGS works. The small plots of land they own are no longer viable since the timber mafia have logged the teak forests thereby altering the rainfall pattern. A paucity of river water and groundwater makes irrigation difficult. Dry wells, barren land and no alternative means of livelihood have forced Thane's Adivasis into dependence on EGS projects.

ONE of the frequently suggested means to mitigate and ultimately prevent scarcity situations is resource management. It is a fallacy that rationalising the water use pattern effectively means constraining or minimising the development process. Rationalising a pattern of use refers to managing the resource on a sustainable basis. The perfect example of this is the water-use pattern in Israel. However, effective rationalisation of resources is possible only if water and land are considered public property as in Israel. Otherwise the inequities of private ownership come into play, as is apparent in the sugarcane-producing districts of Maharashtra where vast estates are held by the political elite.

The major concern in any scarcity situation is the distribution of rainfall and the subsequent distribution of water. It is a common misconception that a decrease in rainfall leads to increased drought situations. The amount of rainfall in the season has been steady over the past 100 years. However, what has varied is the distribution pattern. According to hydro-geologists, the droughts of the past century were an outcome of the misuse of water resources. While analysing a drought, three factors have to be considered - the climate, topography and hydro-geology of a region.

According to civil engineer K.R. Datye and hydro-geologist Dr. P.P. Patel, both of whom have worked on government and private consultancy projects, the present water crisis in Maharashtra (and in rest of the country) is an outcome of years of flawed or non-existent interventions. The basis of a long-term plan is first to identify the drought-hit villages, understand their requirements (both current and projected), identify existing sources of water and the main users of this, survey the catchment area and ensure people's responsibility in the process of tree and grass regeneration. In many other States this plan would have included an assessment of groundwater but Maharashtra's geology, being largely basaltic, does not encourage this. Areas of basalt rock decelerate the process of water percolation, creating smaller and fewer underground pools. Even in areas of abundant groundwater, it is inadvisable for agricultural borewells to go deeper than 125 feet, while drinking water wells can go down to 200 feet. As these rudimentary instructions have been ignored, it is common for bores to reach down to 400 feet.

Out of the 303 taluks in Maharashtra, 87 are considered areas of recurrent or perpetual water scarcity. Over a hundred are dependent entirely on rain-fed irrigation. The State has just 15 per cent of irrigated land as opposed to the national average of 30 per cent.

A vociferous proponent of local water conservation schemes is Anna Hazare, whose model village Ralegan Siddhi survives every drought despite being in a rain shadow zone. Hazare's methods are not new. He follows the time-honoured technique that involves the planting of trees as a basis of soil and water conservation. During the Shiv Sena-Bharatiya Janata Party rule, Hazare had written to the Chief Minister proposing a plan in which an outlay of Rs.2,000 crores would be sufficient to tackle the State's chronic water problem.

Instead, the SS-BJP government proposed a budget of Rs.15,000 crores to bring piped water to the people. But, as a bureaucrat remarked "it has remained a pipedream". Inadequate funds allocated for the water projects resulted in over 2,600 schemes being abandoned last year. These were meant to provide water to about 6,700 villages and over 5,600 wadis. The State government has spent an average of Rs.100 crores every year over the last five years while providing tanker-supplied drinking water. Both the previous government and the present Congress(I)-led Democratic Front government had promised a "tanker-free Maharashtra", but neither has done anything to curb the indiscriminate digging of borewells, the source of water for most tankers. It is estimated that the government itself dug about 1,64,000 borewells between 1971 and 1995.

The existing Rural Water Supply Scheme also needs to be overhauled. Datye says that five years ago he had presented the State government with a draft of operational guidelines for reforms in the Rural Water Supply Scheme. It was prepared on the government's request but, as Datye wryly notes, "they never bothered to get back to me". His objective was simple and was outlined in one sentence: "The overall project objective is to ensure for the rural population, especially the poor and vulnerable groups, access to safe drinking water and sanitation services by developing sustainable systems and sources and institutionalising water quality monitoring and surveillance."

At the administrative level, the complete absence of a water policy allows various lobbies a free hand. Speaking about the need for a water policy, an informed source in Mantralaya admitted that it is "an impossible task since any water policy would need to hit out at the sugar lobby, the tanker lobby and the rig lobby (those who dig borewells). Do you think we have the political will to do this? "

Judging by past experience, the rhetorical question seems to be an accurate indicator of the State's future.

Lyndon Johnson and India

Recently declassified documents from the United States from the period 1964-1968 throw light on approaches and issues relating to India-Pakistan-U.S. relations.

IT is a treat worth waiting for, every four years or so. For these declassified documents shed light not only on the dark corners of the triangular Indo-U.S.-Pakistan relationship but occasionally on India's domestic affairs. This volume covers the period when Lyndon B. Johnson was President of the United States. It must be viewed in the context of events that preceded and followed the period. We have a superb guide to that in the scholar-diplomat Dennis Kux's book Estranged Democracies: India and the United States 1941-1991, which he is working to bring up to date. In a few weeks Oxford University Press, Karachi will publish the South Asia edition of his book The United States and Pakistan 1947-2000: Disenchanted Allies. Both are works of intensive research. In the former the Johnson era is described as "U.S. Pullback from South Asia," in the latter, "The Alliance Unravels."

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A statute ordains publication of documents pertaining to the U.S.' foreign relations "not more than 30 years after the events recorded." William Slany, the Historian of the State Department, informs us: "Specific information may be exempt from automatic declassification after 25 years", only on certain grounds, for example, intelligence reports. A high-level panel from the State Department, the Central Intelligence Agency (CIA) and the National Security Council hears appeals from the editor.

This period (1964-68) saw the Rann of Kutch crisis and the Indo-Pakistan War of 1965; the Tashkent Conference; the Soviet decision to supply arms to Pakistan, which decided to end the "facilities" it had given the U.S. at Peshawar; the rude cancellation in 1965 of invitations to Prime Minister Lal Bahadur Shastri and President Ayub Khan to visit the U.S.; the latter's trip after his venture in Kashmir had failed, Indira Gandhi's meetings with Lyndon Johnson; the devaluation of the rupee and the food crisis which made India humiliatingly dependent on American supplies. On September 19, 1965, India's Ambassador to the U.S., B. K. Nehru, bluntly asked Secretary of State Dean Rusk: "Why are you trying to starve us out?"

U.S. Ambassador to India Chester Bowles has recorded in his memoirs Promises to Keep, how Rusk, among others, foiled his efforts to establish a secure relationship in the military field. In a long cable on July 26, 1966 Rusk poured out to Bowles his visceral distrust of India. Not one count was omitted. It covered relations with North Vietnam, the USSR and, incredibly, the matters of Goa and Hyderabad also:

"India is moving toward a complete military domination of the subcontinent. Her own military production capability plus very substantial increments of Soviet equipment puts her in the position of saying that it is all right for India to build up its armed forces from the Soviet Union but not all right for Pakistan to acquire even spare parts from the United States...."

"India's conduct over the past twenty years with regard to Kashmir is difficult to accept. Her view that this is not a dispute but a closed question runs counter to repeated actions by the United Nations and bumps into the longstanding and instinctive American policy that the wishes of the people concerned should have a paramount influence on such political questions...

"I doubt that we should move toward reliance upon India as our sole partner in the subcontinent because I do not believe that India would accept or play that role...

"Did Mrs. Gandhi get a commitment from the Russians not to supply arms to Pakistan? Was that the price she received for the deep compromise of her non-alignment? If not, what would be Indian reaction to Soviet supply of arms to Pakistan? My guess is that they would accept it in relative good grace but still be deeply offended if we were to do the same... when all of the pretence is cast aside, the general Indian attitude is that "what India wants India gets." The same India which preaches to others has no problem about throwing an armoured division into Hyderabad, seizing Goa and calling Kashmir a closed question."

India had asked for supersonic fighter jets. The U.S. was afraid of losing Pakistan altogether to China. In late 1964 the Special Assistant to the President for National Security Affairs, George Bundy, was informed that Pakistan had "a secret commitment from China that established a significantly closer relationship" between the two than either would admit. The U.S. fell between the stools, thanks to its fateful mistake in 1953 to give arms to Pakistan.

Bundy's deputy, Robert W. Komer, who wrote delightful prose, counselled the President on February 26, 1964: "India, as the largest and potentially most powerful non-Communist Asian nation, is in fact the major prize in Asia. We have already invested $4.7 billion in the long-term economic buildup of a hopefully democratic power. But our politico-military policy has never matched our economic investment, partly because Pakistan shrewdly signed two alliances with us as a means of reinsurance against India. For this Pakistan has gotten some $700 million in U.S. military aid, all of which has in fact gone to protect it against India. Per capita, the Paks have got much more aid from us than the Indians. We can and should protect Pakistan against India, but we cannot permit our ties - or our taste for Ayub against Nehru - to stand in the way of a strong Indian policy. This would permit the tail to wag the dog, which is just what Paks are trying to do."

Bowles recalled that in 1952 he had persuaded Harry S. Truman to reject a proposal to give arms to Pakistan. John Foster Dulles revived it the next year. Bowles wrote to Johnson on November 19, 1968: "In 1963-64 following the Chinese war, after providing limited assistance to India, we rejected its request to help modernise its defence establishment at a rate of about $75 million annually because of fear of upsetting our relationship with Pakistan. In return for this assistance the Indians had been prepared: (1) to agree not to buy lethal weapons from the Communist nations, (2) to negotiate a military force level agreement with Pakistan, and (3) to work with us on a political basis to establish greater stability in Asia and Southeast Asia. Only in August 1964, when it became clear that we were not prepared to give India this assistance, did India turn to the Soviet Union as its major source of military equipment." Well before that Johnson had minuted (August 28, 1965): "We ought to get out of military aid to both Pakistan and India." Bundy's successor, Walt W. Rostow's memo of May 2, 1966 said: "Our view is: 1, India is, indeed, more important than Pakistan. But 2, It is the Indian interest as well as ours to keep a Western option open to Ayub."

NONE should be under any illusion now that U.S. policy has registered a significant shift. Alan Eastham, the U.S. Assistant Secretary of State, assured his hosts in Islamabad, on April 17, 2001, that it had no intention to "abandon" Pakistan in forging a closer relationship with India. "We would like the situation to change from India hyphen Pakistan to India comma Pakistan", he is believed to have remarked. (B. Muralidhar Reddy; The Hindu, April 18).

As one reads the documents, one is struck by the deadlock in Indo-Pakistan relations in the last 30 years, despite radical changes everywhere else in the world. A State Department memo of January 27, 1964 acknowledged the U.S.' "low" leverage in respect of both and the futility of asking the U.N. Security Council to discuss Kashmir. "In the bilateral talks in 1963 Pakistan signified willingness to consider approaches other than a plebiscite and India recognised that the status of Kashmir was in dispute and territorial adjustments might be necessary".

Unfortunately, in late 1964, Home Minister G. L. Nanda, who was no friend of Prime Minister Lal Bahadur Shastri, decided to extend to Kashmir, additionally, crucial provisions of India's Constitution - including Article 356 relating to President's Rule. A promising trend, after Sheikh Abdullah's release from detention in April 1964, was abruptly ended. The U.S. position was summed up by Under-Secretary of State W. Averell Harriman on December 14, 1964: "(1) We agree GOP's position on Indian actions to integrate Kashmir, and consider Pakistanis have right to be concerned ... (2) we continue to regard Kashmir as disputed territory and do not recognise right of India to change its status unilaterally". He was dismayed and could not understand why Shastri had acted thus despite his "constructive attitude in past towards India-Pakistan problems."

Both B. K. Nehru and his Pakistani friend G. Mueenuddin, privately advocated "secret talks outside the sub-continent". The expression Track Two diplomacy was coined recently, but the mission to Pakistan in September 1964 which Jayaprakash Narayan led, comprising B. Shiva Rao, S. Mulgaokar, Editor of The Hindustan Times, and J. J. Singh, was one such. JP was close to Shastri. Nanda upstaged both. Pakistan's Ambassador to the U.S., Ghulam Ahmed, told Assistant Secretary of State Phillips Talbot on December 24, 1964 that "Ayub had said that if plebiscite (is) impossible, he was prepared to listen to any other ideas."

Nanda's move buttressed the position of Ayub's rival, Zulfikar Ali Bhutto, the Foreign Minister. He sent to Ayub for the record a letter dated May 12, 1965 arguing that since India's military strength was growing and "is at present in no position to risk a ground war", it was time to strike. (White Paper on the Jammu and Kashmir Dispute; Government of Pakistan, January 1977, page 82). Ayub unwisely fell in with his plans, inflicting lasting damage on Pakistan and his own position. In April 1966 he told the Cabinet: "I want it understood that never again will we risk 100 million Pakistanis for 5 million Kashmiris - never again."

U.S. Ambassador Walter P. McConnaughy Jr. reported how Bhutto tried to enlist American support and dictate settlement terms even as the ground was slipping under his feet during the war. He told Bhutto on September 9, 1965: "India must be brought to accept any agreement of her own free will. To be viable, all three parties must be willing to accept, that is, Pakistan, India and Kashmir."

The CIA was convinced that there was "some secret understanding" between China and Pakistan before the war, but "China will avoid direct, large-scale, military involvement in the Indo-Pakistan war." On September 17, B. K. Nehru asked Rusk to "make formal statement warning China of American intervention if it attacked India." Rusk had issued a warning on September 15. In the talks in Warsaw that day, U.S. Ambassador John M. Cabot warned China's Ambassador to Poland Wang Kuo-Chuan against interfering in the war.

But Pakistan had powerful supporters. Johnson liked Ayub and tried to preserve the alliance. He told Ayub when they met on December 15, 1965: "If Pakistan wanted close relations with us, there could be no serious relationship with the Chinese Communists. We could not live with that. At the same time we understand certain relationships, just as a wife could understand a Saturday night fling by her husband - so long as she was the wife. Ayub got the point" - and proceeded to forge closer relations with China.

In the clime of 1966-67, new ideas were aired. Rostow suggested to the President on April 25, 1966: "The beginning of some work on multi-national India/ Pakistan projects which would commit them to interdependence. Pakistan gas to India and Indian coal shipments to Pakistan are one possibility, the Ganges-Brahmaputra-Teesta River complex is another." Rostow spoke to Asoka Mehta, Minister for Planning and Social Work, on it. "The World Bank is prepared to take the initiative." Also mooted were thinning of forces and curbs on military spending. The U.S. suggested talks.

In November 1966 Foreign Minister Swaran Singh sent "a feeler... concerning the possibility of secret talks". In March 1967 his successor M. C. Chagla proposed to his counterpart S. S. Pirzada talks on arms limitations. As ever, Pakistan imposed the precondition of Kashmir. There was, however, one big divide which Rusk noted on April 5, 1967: "We recognise that conflicting approaches GOI (willingness talk with GOP on all subjects but without recognising existence dispute on Kashmir) and GOP (willingness talk GOI all subjects but only if Kashmir dispute also discussed) will complicate our efforts achieve arms limitation." Thirty years later, precisely this divide wrecked the implementation of the Islamabad Joint Statement of June 23, 1967.

There are two particularly interesting bits on India's domestic politics. After her election as leader of the Congress Parliamentary Party, Indira Gandhi told Chester Bowles on January 20, 1966, that V. K. Krishna Menon had "done more to harm her during the past... than any other single individual. He had worked relentlessly for Nanda and had done so in a manner designed to discredit her personally... she had come to look on him as an adversary and not as a friend."

President S. Radhakrishnan assured Bowles on May 29, 1964, just two days after Nehru's death, that "the new India will be 'more pro-West than ever'." As Ambassador to the Soviet Union he had had to be restrained by Nehru from going overboard in his enthusiasm for closer relations with the USSR. (Jawaharlal Nehru; S. Gopal; OUP; 1979; Volume 2; page 64).

Bowles recorded in his memoirs: "On several occasions he expressed to me in a half joking manner the wish that somehow after Nehru's death or retirement the whole country could be operated under 'President's Rule' for a few months. This, he said, would enable him in his role as President to ease some of the cumulating political conflicts and make some of the difficult but necessary decisions before turning the Government over to a new Prime Minister and Cabinet" (Promises to Keep; 1972; page 496).

Obviously, Radhakrishnan had become quite friendly with the U.S. Ambassador. On September 11, 1965, at the height of the war, he made an "urgent request" to Bowles to come over and discussed with him the line he proposed to pursue with his guest, U.N. Secretary-General U Thant: "Solution might lie in adjustments along ceasefire line where India could compensate Pakistan for strategic areas they have in mind. Or, if this were not acceptable to Pakistan, he thought India would agree to accept guarantee of more adequate controls by U.N. President added that U Thant was staying with him, and that he looked forward to some good talks." He revealed "confidentially" the casualty figures. They were "much higher" than those Bowles had been given by the government.

As the discussion proceeded, "Radhakrishnan rang bell by his chair and when one of his military aides entered room, he said, 'Please ask the Air Marshal (meaning Arjan Singh) to call on me at 6 p.m.' I remarked that President seemed to be exercising his prerogatives as CIC. President replied that although he was not directly involved in military questions he was in position to play moderating role and he knew that Arjan Singh would listen to him."

The President spoke to the Ambassador behind the back of the Prime Minister. No note-taker from the Ministry of External Affairs was present either. He felt himself free to summon Service Chiefs. One's respect for Dr. Radhakrishnan should not obscure the point that all this raises an important constitutional issue concerning the President's role in the conduct of India's foreign policy.

Foreign Relations of the United States, 1964-1968, Volume XXV, South Asia, Editors Gabrielle S. Mallon and Louis J. Smith, General Editor David S. Patterson, United States Government Printing Office, Washington, pages 1,106, price not stated.

Directions of vaccine research

other

Interview with Nobel Laureate Rolf Zinkernagel.

Dr. Rolf M. Zinkernagel, along with Dr. Peter C. Doherty, was awarded the Nobel Prize for Medicine in 1996 for his discovery relating to the "specificity of the cell-mediated immune defence". They discovered, on the basis of their work done at the John Curtin School of Medical Research (Australian National University, Canberra), how the immune system recognises virus-infected cells. This laid the foundation for an understanding of the mechanisms used by the cell immune system to recognise foreign micro-organisms as also its own molecules.

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The discovery revolutionised clinical medicine as it helped strengthen the immune response against invading organisms and cancers, apart from diminishing the effects of auto-immune reactions in inflammatory conditions such as rheumatic situations, multiple sclerosis and diabetes. This opened up a whole new area of research in vaccine development.

A specialist in immunology, Zinkernagel (57) is Professor at the Institute of Experimental Immunology, Department of Pathology, University of Zurich, Switzerland. Since 1981, his work has won him at least one award every year from reputed international institutions.

Zinkernagel was in Chennai recently to deliver a lecture at an International Immunology Conference. In an interview to Asha Krishnakumar, he explained the progress of immunology research and its clinical implications. Excerpts:

What major areas of immunology research have benefited the common man?

There are three major areas. One is vaccines and vaccinology. All the important vaccines that work today were developed in the last 50 years.

Second, certain complications arise where there is incompatibility between the blood groups of a set of parents; it has to do with the "rhesus antibody" that closes the red blood cells of the baby. Immunology studies have shown that the mother's influence on the baby can be treated so that this complication does not arise.

The third area which has developed over the last 10 years or so is the production of highly specific antibodies using the monoclonal antibody technique. These can treat some forms of leukaemia, help fight infections, work against certain rheumatoid diseases and so on.

What is the current focus of immunology research?

It is difficult to pinpoint any one area. But many people are working on vaccines, not only against HIV, tuberculosis, leprosy and so on, but against a whole lot of diseases which are of major concern, particularly in the Western countries, such as cancer. Another focus is on ways to prevent auto-immune diseases such as diabetes.

Does immunology vary with sex, age, ethnicity, environment, genes and so on?

From studies on populations in the West we know that the incidence of auto-immune diseases in females is about five times that in males. This clearly shows that sex can make a huge difference with regard to immune-mediated diseases. That probably has something to do with the importance of the mother in transferring her antibodies to the foetus and/or the baby - through her blood or milk.

Age is an important factor. We know that there is no immune activity at birth. It takes 6 to 12 months for the immune system to develop. The immune system matures and functions best around puberty - 12 to 15 years. From then on it declines very slowly. Around 60-65 years, the immune system is at a very low ebb. At that time diseases such as tuberculosis may recur because the immune-surveillance has gone down.

There is some evidence, not strong as yet, that immunology varies with ethnic groups. Take for example the rapid increase of diabetes in India. It sort of looks like an ethnic difference. In the U.S., there are differences in the incidence of diabetes between Afro-Americans and whites. Yet it is not conclusive. More research is needed.

The difference in immunology between countries and the environment is related mostly to hygiene status and the use of vaccines. Environment makes a huge difference to immune systems. For instance, it is clear from Indian data that nutritional status plays an important role in the development of the immune system. This is also borne out by data from some Western civilisations. Tuberculosis and so on are rampant among the undernourished population. There are other indications that vitamins and certain metals such as zinc play a major role in the development of the immune system. Thus poverty is certainly a factor that hinders immune system development.

There are huge differences in the immune system with respect to genetic factors. This is because the immune system, particularly cell-mediated defence, has something to do with the transmission of HL-A (histocompatibility lymphocyte A system) antigens. HL-A antigens vary from person to person. These molecules, which are expressed on the cell surface, have a direct influence on immune reactivity. So there is a strong and direct evidence of genetic influence on immune systems. But there are other factors, such as interferon and so on, that sort of balance out genetic differences.

Will the human genome project give a boost to immunology research? What possible new directions can it take?

The human genome project as well as the projects on animal genome will certainly have a major impact on biology, including immunology. The genome projects give us something like the index of an encyclopaedia. That is, we now know what is in the genome. But we do not have the explanations as yet. Whenever we find anything new in any form of experimentation, we can now go to the encyclopaedia, find out from the index and then fill in the details on what it means. In very general terms, the genome projects will benefit the understanding of immunology a lot.

What is the future of research in immunology and the treatment of immune-mediated diseases?

Immunology as a system deals mostly with acute infectious diseases that tend to kill the host. This is true of animals and humans. We have learnt that most of these diseases are readily taken care of either by vaccines - polio, measles and so on - or by antibiotics. The immune system is not really developed for many other things, such as against tumours and slow-onset and chronic diseases such as hepatitis C. These are very slow onset diseases. So people survive for 10 to 30 years from the time they get these infections and the disease process does not interfere with procreation.

So the future of immunology is in understanding these slower types, such as tuberculosis, leprosy and HIV, against which we have no vaccines. There are many diseases that eventually become debilitating but which cannot be controlled except through antibiotics, particularly tuberculosis and leprosy. It would be much cheaper and efficient if we had a vaccine against them.

This is true of tumours as well. The immune system is very inefficient against tumours. So it is important to devise clever methods to use immunity against tumours.

What are you working on now?

I am working on these chronic types of infections. I try to understand what we need to do to improve immunity against them and tumours. Tumours are also like chronic infections, slowly progressing over 5 to 20 years. You only see them in the final stages. So it is a very similar problem.

I am also trying to understand why our immunity against our own proteins sometimes ends up in auto-immune diseases. It is a similar slow process that we do not understand.

Scientist as revolutionary

The life of J.D. Bernal is a testimony to the commitment that a scientist must use his knowledge and technique only for human welfare.

SOMETIME in 1940, two men disembarked at a railway station in the English countryside. They were internationally reputed scientists and had come in search of an abandoned shed to conduct an experiment. They had no training or experience in the experiment; nor did they have substantial funds. One of them was a physicist-turned-biologist, J.D. Bernal, and the other was a doctor-turned- anatomist-turned curator of a zoo, Solly Zuckerman.

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The experiment was an urgent one. The Second World War had started and aerial attacks by the German Luftwaffe had caused panic in London. Those were pre-radar days. The experiment was to determine the damage potential of bombs of different sizes and to see how the damage reduced with increasing distance from the point of impact. It was surprisingly simple. Apes and pigeons were kept in shelters and bombs were exploded at different distances - of course with the permission of the Police Department. Then the scientists would examine the damage to the shelter as also to the captives. It turned out that the damage was far less than the popular perception of what it would be.

The two men now used themselves as "guinea pigs", that is, they sat inside the shelters while the bombs were exploded and thus gathered first-hand data about the impact on human beings. Their finding played an invaluable role in lifting the morale of British citizens and helped them design protective shelters and plan civil defence systems. This was particularly true of the most vulnerable section, the working class.

Not only the result but the experiment itself had a message: that the scientist has a great role to play as a citizen and must apply his knowledge only for human welfare.

The life of Bernal, whose hundredth birth anniversary falls in the second week of May, was a testimony to this commitment. He was a man of rare versatility and his intellectual influence extended far beyond the confines of the scientific fraternity. In science, he was a pioneer in understanding the interrelation between structures and functions in physical, chemical and biological systems. On social questions he was a pathbreaker who tried to explore the relationship between the functions of science and the structure of the society in which it operates. It is not enough for philosophers to interpret the world, they must also see how to change it. With this world-view in mind, Bernal considered that a scientist's duty lay also in changing the social functions of science so that it would not become an instrument in the hands of a privileged class to exploit the poor.

JOHN DESMOND BERNAL was born on May 10, 1901 in an Irish Catholic family whose members were formerly Spanish shepherdic Jews. His mother was an American. He was a precocious child who tried many things, including writing an autobiography at the age of nine. He tried to build things, but was not a skilled instrument builder, being clumsy with his hands. He nearly electrocuted himself and a friend while setting up an X-ray tube. Later in life he would show great foresight, giving ideas about new instruments, which his collaborators would build, often with inexpensive objects such as broken clocks and cycle tubes.

At the age of 10 Bernal left Ireland for England to join a school. He had witnessed the Irish independence movement, which had his sympathies. He had also seen the tragedy that the First World War brought to social life in England.

Bernal found intellectual satisfaction for the first time when he came to study in Cambridge. Here he attended many meetings and met many kinds of people. There were not only students and intellectuals but also soldiers and industrial workers. It surprised him that while the sun did not set in the British empire it was only darkness and gloom that awaited the poor. It was in one such meeting, on November 7, 1919, that Bernal heard from a friend about the October Revolution in Russia and about the experiments in socialism in the newly born Soviet Union. This piece of information opened up a new world for him. Bernal now realised how narrow his Irish nationalism was. It indeed impressed him that "It was the people that would sweep away all things that I hated... It would bring the scientific world state." This led him to study the ideology on which the new Soviet society was based, that is, Marxism-Leninism. Having thus gained a framework and a world-view, Bernal tried to gain a wider vision of science by studying different courses that Cambridge offered. For his tripos he read such diverse subjects as mathematics, chemistry, biology, physics and mineralogy, and his encyclopaedic knowledge earned him the nickname Sage.

Bernal's acceptance of Marxism made him renounce Catholicism and declare himself to be an atheist and a communist. This disturbed his family. Bernal's father sent a priest to talk to Bernal and bring him back to the faith. But this had the opposite effect: the priest too left the church.

There was also another encounter, of a different type. Some students thought that this young communist must be taught a lesson. They attacked Bernal one night in his room. This combat group (which had alleged links with a future admiral, Lord Mountbatten) got a severe beating from Bernal. They fled. The group members made a tactical error: they came in smoking cigarettes. Bernal switched off the light. They could not see him but he could see where they were and gave a huge punch on the face of each one of them.

By 1923, Bernal and his wife were members of the Communist Party. They mobilised workers for the 1926 general strike. After a decade or so he gave up the membership of the party but remained a communist. Informal yet deep links with the party continued.

In accepting Marxism, however, Bernal was not alone. The Cambridge group now consisted of other brilliant scientists. Joseph Needham and J.B.S. Haldane were in this group. Like Oparin in the Union of Soviet Socialist Republics, Haldane had done pioneering work on the theory of chemical evolution of life, that is, life consisted of inanimate molecules. Bernal added another dimension to this and said that it was not merely the chemistry of molecules but also how these molecules were arranged that needed to be seen - that is, how the structure determined the function. The first landmark in this was achieved by Watson and Crick's determination of the structure of deoxyribonucleic acid (DNA) in 1953. This means that in 20 years, Bernal's pioneering ideas had become the accepted methods in biology. The human genome map further confirms Bernal's vision that "life is beginning to cease to be a mystery" and could now be pictured and would become "practically a cryptogram, a puzzle, a code that can be broken" that "while removing most of the mysteries of life, will not reduce in the minds of the scientific biologists of today any of the appreciation of its complexity and beauty."

Although as a student Bernal was recognised for his originality in physics and mathematics, he finally chose biology as the field of his work. It was he who established X-ray crystallography as an important tool in the study of biology and later developments in biology owe a great deal to this and other innumerable contributions from Bernal.

His contributions include the formulation of tables that helped early crystallographers find the structures of crystals (when there were no computers), and pioneering works on sex hormones, proteins, viruses and the structures of different solid phases of water (ice, snow and so on). Later he gave the first model of the liquid state. He is also considered a pioneer in the physics of composites. Many famous biologists, including Nobel laureates, have attributed their success to the insights that Bernal provided in the decisive phases of their work. Dorothy Hodgkin said that she should have shared her Nobel Prize with Bernal instead of winning it alone. The Nobel Prize-winning works of Max Perutz and John Kendrew on the structure of haemoglobin and myoglobin and that of Aaron Kluge on electron microscopy of viruses owe a great deal to the inputs from Bernal. Bernal did not win the Nobel Prize.

It was indeed not in biology alone but in life that Bernal and his collaborators were interested. What interrupted their total attention to the laboratory were indeed the events that occurred outside it. It was in response to these global issues that Bernal in his Cambridge days formed the Cambridge Scientists' Anti War Group. It focused on issues such as the economic depression of the 1930s, the Nazi horror in Hitler's Germany, the Spanish Civil War, the Japanese invasion of China and the freedom movements in the British colonies. In this gloomy environment, the Soviet Union was the beacon of hope and Bernal made his contact with the Soviet scientists when Nikolai Ivanovich Bukharin led a team to England in 1931.

The discussions made the scientists conscious of two urgent needs: to make average citizens aware of science, particularly how science can help them in their lives, and to educate them about the harmful possibilities if science was used for destructive purposes. It was soon felt that even the scientific community required more education on some of these social issues.

Bernal's analysis of these social questions is found in his work The Social Function of Science, which created a stir when it appeared in 1939. It was in this book that Bernal analysed the liberating effect of the socialist revolution in the Soviet Union. He considered the exploitative nature of the capitalist system a hindrance to the growth of science. This book also analysed briefly the state of science in colonial India and commented on the occasional brilliance and extreme unreliability of Indian science. Perhaps his most incisive observation was that the main social forces behind the development of science in India were not scientists themselves but the political agitators who were fighting for freedom and self-reliance.

A large part of the book is devoted to an analysis of science in Nazi Germany. Bernal noted that science that was taught in German universities had deep links with industry - particularly the chemical industry - and was thus aided by militarism, which helped the entry of fascist ideology in academia. According to him, another reason for Hitler subverting academic life was the complacence of the non-Jewish intelligentsia. Many of them considered that the expulsion of the Jewish members of the faculty gave them an opportunity, Bernal observed.

Under fascism, science became an instrument to redefine certain human values, such as purity of race and national pride; peace was seen as a preparation for war; the army was looked upon as the supreme school of national education, where one must learn to be silent and, if necessary, suffer injustice in silence. The message of hope was, however, given by the French intelligentsia. They solidly resisted French fascism and mobilised popular opinion in favour of the anti-fascist Popular Front. Great intellectuals such as Frederic Joliot and Irene Joliot Curie, Langevin, Pablo Picasso and Jean Paul Sartre became the rallying figures behind this front, of which the French communists constituted the backbone.

Bernal concluded that the Third Reich under Hitler would unleash a world war and rallied British scientists for war preparations. This involvement helped Bernal and his friends gain acceptance from the governmental defence establishments, even though he was a communist "as red as the fire of hell". Of course, the communists could not have been left out as they were the most committed anti-fascists. Bernal was one of the pioneers in applying operations research ideas in these War years and was directly involved in the D-Day landing of the Allied forces in Normandy. His special contribution was that he devised aerial photography methods to study the shapes of waves on the Normandy beaches under different wind conditions. From these shapes he determined the inclinations of these beaches, which helped in understanding whether they could withstand the landing of tanks and armoured vehicles.

At the end of the Second World War this anti-fascist alliance collapsed, with the initiation of the Cold War. Bernal, like his friend Joliot in France, was out of favour with the establishment. Moreover, the bombing of Hiroshima and Nagasaki placed a special responsibility on the scientists to see that the results of their scientific work were not used for destructive purposes.

Bernal involved himself in organising several forums to contain the damages of the Cold War: the Scientific Workers' Association, the Pugwash Conference, the World Peace Council and so on. Indian scientists like M.N. Saha, D.D. Kosambi and S.S. Sokhe were also leaders of this movement for peace. He was pivotal in mobilising the support of British scientists to the newly independent colonies in their scientific planning; he also mobilised support for the formation of the United Nations Educational, Scientific and Cultural Organisation (UNESCO).

Bernal's monumental work, Science in History, appeared in the 1950s, and one entire session of the Soviet Academy of Science was devoted to the study of this single work. The book is not a mere chronological history of science. It gives a method to analyse the role that science has played in history. Science, according to Bernal, "will not fail for lack of human capacity; where it fails will be for lack of social organisation to make use of that capacity". This failure has happened because the imperialist system perpetuates underdevelopment and thus has stopped the entire humanity from involving itself with scientific progress. This huge manpower, according to Bernal, could be released for the progress of mankind and science only with the demise of imperialism and the capitalist system.

The hope, according to Bernal, lies in the socialist system. He analysed in great detail the scientific progress made under socialism. The collapse of socialism in Eastern Europe, to some, may signify the demise of socialist ideology. Yet, any serious student of history would agree that no society in the past achieved such rapid scientific progress as these socialist societies did and never before had science been put at the service of such a huge mass of humanity. Bernal had concluded that the future of science in these societies as also in the People's Republic of China depended as much on their internal stability as on their ability to ward off the threat of war, including a nuclear war, and the cessation of bickering within the socialist camp. These conclusions appear to be prophetic in the light of the developments in Eastern Europe.

Bernal died on September 15, 1971, that is, 20 years before the collapse of the Soviet Union. He was a regular visitor to the Soviet Union since the 1950s and must have noticed the imperfections, both in the Stalin era and in the subsequent period. Since he never denounced either Stalin or the post-Stalin leadership of the Soviet Union it is not clear as to what his evaluations were. He maintained good relations with leaders like Zhou Enlai, Nikita Khrushchev, Mao Zedong, Kwame Nkrumah and Jawaharlal Nehru. He closely interacted with anti-imperialist intellectuals such as Picasso, Nazim Hikmet, Paul Robeson and Pablo Neruda. These actions suggest that he strove to develop an anti-imperialist front.

BERNAL'S close links with India deserve special mention. He visited India several times. His friend Blackett came to India many times as a scientific adviser. His student Dorothy Hodgkin had many students from India as her collaborators; several of them worked in Bangalore later. Bernal's friend J.B.S. Haldane settled in India in the 1950s and became an Indian citizen. Indian scientists owe their gratitude to Bernal for two reasons. Bernal was responsible in no small measure for drawing the attention of G.N. Ramachandran (or GNR, unquestionably the greatest Indian scientist in the post-War era) to some outstanding problems in protein structure. They met at a conference in Chennai and Bernal told GNR about some intriguing features in the structure of collagen. For GNR, the problem was where he would get samples of collagen from. Perhaps at the CLRI, your next door, suggested Bernal and it turned out to be so. (Bernal was referring to the Central Leather Research Institute, Chennai.) That was the beginning of GNR's path-breaking work on the structure of collagens. Bernal was thus a great catalyst.

Bernal introduced A.R. Vasudev Murthy of the Indian Institute of Science to D.D. Kosambi during the Indian Science Congress in Pune in 1950. (In his book Science in History, Bernal uses Kosambi's characterisation of science as the cognition of necessity.) Kosambi told Vasudev Murthy that he intended to make a study of Indian history on the lines of Engels' Origin of the Family, Private Property and the State. It was in this way that Kosambi's collaborations with the scientific community in Bangalore began; he stimulated them in lively debates on the social functions of science and the culture and civilisation of ancient India.

THE thrust in Bernal's later writings was the promise that science holds for mankind. The 20th century revolution in science, which was essentially triggered by a crisis in knowledge (in physics, which later became all-pervasive) gives the hope that mankind's eternal dream of a "life with plenty of food and no work to do" can be realised - not only for millionaires and princes but for all citizens of the world. But to achieve this people should unite to create a world without war. The battle of ideas, regarding the relative merits of capitalism and socialism, ought to go on but it is not to be resolved by armed conflicts.

The 20th century has also witnessed the transformation of science from a "romantic pursuit" to a paid profession where the actions of the "scientific worker" are subservient to the interests of the funding agency, such as monopoly industries and the state. The right to egalitarian utilisation of knowledge, that is, science and technique, is a democratic demand of all working people, including the scientific worker. The democratic revolutions of the 20th century give man a vision of an earthly paradise - a paradise from which no one will be driven away for the "crime" of tasting the fruit of knowledge. The science of the society, which in the 20th century proved to be the guideline for practical actions, helps man to make history consciously. With this the true history of mankind has really begun.

Dr. S. Chatterjee is a scientist at the Indian Institute of Astrophysics, Bangalore.

For equitable sharing of water

India's policy on sharing of river water resources needs to be redrawn on the basis of the United Nations Convention on the Law of Non-navigated Uses of International Water Courses, 1977 and the South African model.

MAHATMA GANDHI said that the earth has enough to meet the needs of everyone, but not for their greed. This is certainly true of water. It is estimated that the total fresh water available in India annually is sufficient for both irrigation and drinking purposes. But the problem lies in wastage and faulty distribution. The updated draft of the National Water Policy estimates the total precipitation in the country at around 400 million hectare metres. Of this, the surface water availability is about 187 million hectare metres. About 50 per cent of this cannot be put to use because of topographical and other constraints. Floods and drought affect vast areas in the country, transcending State boundaries. A third of the country is drought-prone. Floods affect on an average around nine million hectares a year. The area susceptible to floods is around 40 million hectares.

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Between 1950 and 1977, 288 major and 938 medium irrigation projects were completed. Many projects have spilled over to the Ninth Five Year Plan, with a spillover cost of Rs. 68,044 crores. At the end of the Eighth Plan period 32.96 million hectares of land had been brought under irrigation, against a target of 58 million hectares.

The National Water Policy was adopted by Parliament in 1986 and the guidelines to implement it are still under discussion. The policy, in its present form, lacks teeth. River water tribunals take on an average between 10 and 20 years to deliver their awards, and there is no guarantee that the awards will be implemented. In many cases the awards are actually reopened.

A negative fallout of the present model of water resource development has been the emergence of regional imbalances, and this, I believe, cannot be corrected unless there is an overall framework for water resource management. In relation to the Draft Water Policy, there are three major areas in which the States have serious reservations. The first is in the setting up of a River Basin Authority with statutory powers. Second, the proposed guidelines for the allocation of the waters of inter-State rivers among the basin States are discriminatory. Third, the States are unhappy that the Centre is trying to take control of the rivers and other water resources.

The National Water Policy and Guidelines are seen as having been drafted with a view to accommodating the narrow interests of a few privileged States. The guidelines will have no impact either on disputes pending decision, such as the Cavuery dispute, or any other dispute past or future.

In this context, South Africa's experience in resolving the issue of water resource management and distribution is instructive. South Africa's White Paper on Water Policy (April 1997) is an impressive document in which the water needs of every citizen are seen as a human right, while the tasks of distribution and management of water are raised to the level of a public trust. Indian policy-makers, political thinkers, social activists, non-governmental organisations (NGOs) and so on will do well to make a serious study of this document.

THE White Paper on Water Policy approved by the South African Cabinet on April 30,1997, represents an important stage in the review and reform of the water law in South Africa. The Water Policy was incorporated as a Bill of Rights in the Constitution of South Africa. The core theme of the Bill embodies the national value of reconciliation, reconstruction and development so that water is shared on an equitable basis, the needs of people without access to water in their daily lives are met, the productive use of water in the economy is encouraged, and the environment which provides water and sustains life and the economy is protected. The key principles underlying South Africa's water policy are:

1. The nation's water resources are an indivisible national asset;

2. The national government will act as the custodian of the nation's water resources and it will exercise its powers as a public trust;

3. All water in the water cycle, whether on land, underground or in surface channels, falling on, flowing through or infiltrating between such systems, will be treated as part of the common resource, and the extent required to meet the broad objectives of water resource management will be subject to common approaches;

4. Only that amount of water required to meet the basic human needs and maintain environmental sustainability will be guaranteed as a right;

5. The system of allocation must promote use that is optimal for the achievement of equitable and sustainable economic and social development;

6. The policy must promote equitable access to water for the disadvantaged groups for productive purposes such as agriculture; and

7. All major water user sectors must develop a water use policy. Conservation and protection policies and regulations will be introduced to ensure compliance with the policy in key areas.

It will be seen that here the principle of equity is central to the water law reform process and special attention has been given to addressing the needs of those who were historically denied access to water or the economic benefits of water.

INDIA shares many historical commonalities with South Africa. Both countries have a legacy of colonial rule. Water was mostly used by a dominant group, which had privileged access to land and economic power. In India the privilege of access to water was substantially ensured to those States that were ruled directly by the British as against the princely states, which were ruled by the vassals of the British. In post-Independence India the judiciary and the executive were inclined to approve the status quo, which was sustained by inequitable conventions.

India needs a thorough review of its water policy on the lines of the South African model and the United Nations Convention on the Law of Non-navigated Uses of International Water Courses, held in New York on May 21, 1977. Fifty-three years after Independence this major nation-building problem remains unresolved. The Government of India must be persuaded either to refer the entire issue of the National Water Policy and guidelines to the Law Commission or redraft it on the lines of the South African Water Policy and the U.N. Convention of 1977.

To resolve water disputes on reasonable and equitable lines, the following parameters must be made part of the water policy: The extent of river basin drainage area in each State; the contribution of water to river basin by each State; the climate in the river basin; the population dependent on the water in each State; the cultivable area that requires irrigation; availability of other water resources, including ground water; the extent to which wastaage can be avoided in water utilisation; the degree to which the need of a State may be satisfied without causing substantial injury to a co-basin State; and the extent of arid and semi-arid areas in each State.

The draft guidelines now circulated by the Government of India are vague and omnibus in nature. Clause 5.9 in the draft guidelines guarantees the protection of existing utilisation, particularly when the use has been in existence since the pre-Plan period, or has been approved by the National Planning Commission. It further said that the protection of uses by projects constructed during the Plan period but not approved by the Planning Commission could be considered on merit. This perpetuates the colonial mindset and at one stroke exposes the projects in the Cauvery basin ("unapproved" non-Plan projects of Karnataka) to re-scrutiny. This violates the principles of equity and even the U.N. Convention of May 1977.

The basin States' contribution to basin flows should have a relationship to the the extent of land that is already under irrigation. States whose groundwater position is uncertain because of reduced dispatch, deep water table and low storage should be given weightage in the allocation. States that have only one regulator without any carry-over storage into the next season and therefore let the water out into the sea may have to be discouraged. The quantum of water thus let into the sea must also be a factor that must be considered while allocating the share of the lower riparian area. The upper riparian States cannot be expected to suffer because of the wastage on the part of the lower riparian States. This is the typical case between Karnataka and Tamil Nadu. Even if well over 205 tmc feet of water flows into the Mettur dam, it cannot be counted when deciding the allocation for the upper riparian States. According to a United Nations Development Programme (UNDP) Report, Mettur serves only as a regulator. It is estimated that 20 per cent of the total water available for distribution at the Grand Anicut in the Cauvery delta in Tamil Nadu is not used for irrigation and flows into the sea.

Clause 4.10 of the draft policy states: "Protection of existing inter-State agreements, whether approved by co-basin States or not, shall be accommodated in the Scheme."

From all this it appears as if the Government of India intends to give tacit approvals for all inequitable agreements without subjecting them to any sort of scrutiny. Karnataka or similarly situated States cannot think of obtaining any relief. The draft guidelines appear to be performing the rituals of burying all development schemes well in advance. Those who drafted the guidelines apparently forgot the fact that the colonial law-makers tried to harness the law in the interest of the dominant classes, groups or States that had privileged access to national water. The principles of democracy demand that the national water use policy and water laws be revised on the basis of fairness, equity and growth. The draft guidelines may have to be redrafted in accordance with these principles. They should at least conform to the U.N. Convention of May 1977 and the South African water laws. Article 33 of the U.N. Convention and the Report of the Western Water Policy Review Advisory Commission of the United States (1998) show how the settlement of disputes can be achieved, with mediation or conciliation by a third party. In India adjudication under the Inter-State Water Disputes Act, 1956 can be proceeded if it is found that a dispute cannot be resolved through mediation. India, which has always championed the cause of peace, must be able to show the way in resolving the conflicts over water, which have affected the country's agricultural prosperity in the absence of a firm, objective and equitable water policy and guidelines. The draft National Water Policy and Guidelines blurs and distorts the national goal of providing water for all who need it. This will make the country's survival as a nation in the 21st century difficult.

M. Veerappa Moily is a former Chief Minister of Karnataka.

The AIDS divide

The panel set up by South African President Thabo Mbeki to advise his government on dealing with Acquired Immune Deficiency Syndrome stands divided on the cause and nature of the disease.

THE 13th international biennial conference on Acquired Immune Deficiency Syndrome, or AIDS, in Durban in July last kickstarted a parallel debate on the causality of the disease (Frontline, August 18, 2000). That the debate is far from over is clear from the interim report of the Presidential Advisory Panel on AIDS, which was released in March. There are different sets of recommendations, which are based on different perceptions of what the cause of the disease is. The panel, comprising 32 eminent scientists from across the world (15 South Africans were included in it later), was set up by President Thabo Mbeki in April 2000 as part of his South African government's decision to respond to the AIDS catastrophe in an urgent and comprehensive manner. Within a decade from 1985, AIDS, which was initially thought to be confined to the homosexual population, had spread across the African continent. According to the World Health Organisation (WHO), of the 5.6 million people infected with the human immunodeficiency virus (HIV) in 1999, 3.8 million lived in sub-Saharan Africa, and 85 per cent of all HIV-related deaths occurred in the same region.

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Addressing the conference in Durban, Mbeki had talked about finding an "African solution to an African problem". He questioned the finding that HIV was the cause of AIDS, but there were few takers for this theory, and Mbeki was attacked by several speakers in the plenary sessions. But the country's black majority threw its weight behind the President. Although access to treatment formed the leitmotif of the conference, the issue of whether it was HIV that caused AIDS was also deliberated upon.

The South African government had raised questions, among other things, about the accuracy of the tests conducted to diagnose HIV infection and the relationship between HIV infection and diseases such as tuberculosis, malaria and hepatitis that are endemic to Africa. The government learnt that there were divergent views on the existence, detection and action of HIV, the "primary" aetiological agent of AIDS. The terms of reference of the panel included looking at the causes of immune deficiency that led to death from AIDS and the most efficacious response to these causes, why HIV was being heterosexually transmitted in sub-Saharan Africa while in Western countries it was said to be (primarily) homosexually transmitted, the role of therapeutic interventions in developing countries, and so on.

The panelists were largely divided on the question of the cause of AIDS. While one section, representing the scientific orthodoxy, maintained that HIV caused AIDS, another rejected this theory, saying that problems such as poverty and malnutrition caused the disease. There was also a section that questioned the very existence of AIDS.

One of the panelists, Roberto Giraldo, was convinced that the extent of AIDS epidemic was actually worse than what the supporters of the HIV theory believed. Along with Etienne de Harven, another panelist, Giraldo had visited India prior to the Durban conference on an invitation from the Joint Action Council, which has been in the forefront of the campaign based on scepticism regarding HIV. According to him, the levels of immune deficiency in Africa have been increasing since 1974-1975, that is, about 10 years before AIDS was recognised as a disease. He said that the preoccupation of politicians and governments with the theory that HIV caused AIDS had masked the enormity of the threat of AIDS and prevented them from dealing with the real causes of the disease. The opponents of the theory that HIV caused AIDS maintain that the virus had never been purified and that electron micrographs of the virus needed to be published.

Several panelists supported the "chemical AIDS hypothesis", which implied that exposure to toxins (such as recreational drugs, irradiation and Azidothymidine, or AZT) and possible vitamin deficiency caused AIDS in the United States and Europe. Roberto Giraldo propounded the theory that immunosuppression is caused by stressors. Five groups of stressors - chemical, physical, biological, mental and nutritional - were listed as instrumental in destroying the immune system. The immunosuppression caused by these stressors could lead to AIDS even in people who were HIV-negative, he said.

Notably, the report says that even scientists who subscribe to the HIV theory accepted Giraldo's proposition.

The term co-factor or risk factors in AIDS was strongly opposed by a section of the panelists that has been identified as the Perth Group, which argued that this presupposed the existence of a primary factor, that is, HIV. Professor Luc Montagnier, a leading scientist who is convinced that HIV played a central role in causing AIDS, could not explain why the epidemic was restricted to gays and intravenous drug-users in the U.S. and Europe but had a heterosexual profile in the countries of the South.

Dr. Joe Sonnabend, a proponent of the theory that HIV causes AIDS, held that poverty and malnutrition played a more important role in the development of AIDS than was acknowledged by the scientific establishment. Therefore it did not come as a surprise that in the interim report this group did not recommend eradication of poverty or the reduction of inequities as a means to deal with AIDS.

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There was agreement among the panelists on the need to maintain a National Register of AIDS deaths as AIDS was still not a notifiable condition in South Africa. There were others who disputed the estimate of the size of the "AIDS epidemic" in the country. Dr. Peter Duesberg stated that even if the WHO's estimate of 75,000 AIDS deaths in Africa annually were true, the figure still represented only 0.5 per cent of the continent's total mortality rate. He wondered whether the magnitude of the epidemic had been determined by South Africans themselves or by external agents.

Doubts were expressed by some panelists over the sexual transmission of AIDS. One African panelist went to the extent of commenting that the data presented could be interpreted as suggesting that the HIV was highly selective in terms of race. He said that the high prevalence of HIV positivity among the blacks of South Africa would suggest that they were more promiscuous than the whites but there was no evidence to support such a conclusion.

The panel was also divided on the issue of mother-to-child transmission through breast-feeding. Dr. David Rasnick quoted a paper which showed that formula-fed HIV negative babies had contracted HIV. The possibility of contracting AIDS through occupational exposure and blood-borne transmission was questioned by some panelists who claimed that both in Africa and the West very few doctors and healthcare workers working with "so-called" AIDS patients daily were infected with HIV.

There was division of opinion on HIV testing and the epidemiology of transmission. Professor Duesberg argued that microbial and viral infections were self-limiting and seasonal and that the epidemiology of microbial epidemic was typically random with no discrimination between heterosexuals and homosexuals or men and women.

There was general agreement on surveillance as a necessary tool to understand the AIDS epidemic. But opinion was divided on the risk factors. While one school of thought argued that poor economic status was a risk factor in itself, another held that poverty only contributed to circumstances that would increase the risk of contracting AIDS. The broad division among the panelists led to two sets of general recommendations in the report. Those who oppose the HIV theory have suggested that the South African government suspend the dissemination of the "psychologically destructive" message that HIV infection is fatal and, instead, help reduce the hysteria surrounding HIV and AIDS. This group has also suggested the suspension of all HIV testing until its relevance is proved in the African context.

In contrast, the group supporting the mainstream approach recommended, among other things, the strengthening of the surveillance of risk factors and HIV prevalence.

One key issue on which there was near consensus was the need to make the existing mechanisms for HIV testing reliable. There was also consensus on the need to provide the infrastructure and expertise that are necessary to develop a database on the magnitude of the incidence of AIDS in South Africa. The report has recommended that a trans-disciplinary team be constituted to undertake an in-depth study of AIDS mortality trends in the country.

As the question of the aetiology of AIDS divided the panel, the commonality of views on health policy and public policy got ignored. The split, noted the concluding part of the report, was based on a fundamental disagreement on the interpretation of scientific and clinical data and evidence on the cause and progression of AIDS. Scientific research had not yet generated answers to many legitimate questions, it said. The last word on AIDS in South Africa is yet to be heard and the panel is expected to work on the areas of consensus.

Contempt in question

The Supreme Court expresses its dismay over the "tone and tenor" of the averments made by Arundhati Roy, Medha Patkar and Prashant Bhushan in their affidavits filed in reply to the contempt charges against them.

THE affidavits filed in the Supreme Court by the Booker Prize winner Arundhati Roy, the Narmada Bachao Andolan (NBA) leader Medha Patkar and the NBA's counsel Prashant Bhushan in response to allegations made by a group of lawyers in a contempt petition against them (Frontline, March 30, 2001) have sparked a lively debate on what constitutes contempt of court and on the powers of the judiciary to punish those found guilty of contempt.

On April 23, Arundhati Roy, Medha Patkar and Prashant Bhushan appeared before a Bench comprising Justice G.B. Pattanaik and Justice U.C. Banerjee in connection with the contempt petition. The petitioners accused them of participating in a demonstration outside the Supreme Court premises on December 13, 2000 in protest against the court's judgment in the Sardar Sarovar case.

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In separate affidavits, the respondents denied that they made any derogatory remarks against the court at the demonstration. They alleged that the petitioners, J.R. Parashar and others, had made ridiculous and concocted charges of their having resorted to threats and violence. They submitted that besides dismissing the petition, the court must initiate proceedings against the petitioners for perjury and contempt.

The Bench expressed its dismay over the "tenor" of the affidavits. "The charges made in the petition against the contemnors have been denied by them, and might not turn out to be contemptuous, but the tone and tenor of the averments made by them in the replies seemed to be objectionable," the Judges said. Adjourning the matter to August, the court asked Additional Solicitor-General Altaf Ahmed to suggest by then what course it should adopt in the proceedings.

In her affidavit, Arundhati Roy, who appeared in person without the assistance of a lawyer, expressed her distress that the court had thought it fit to entertain the petition and issue notice directing her and other respondents to appear personally before it on April 23 and continue to attend the court on all the days thereafter to which the case would be posted, until the final orders were passed. She wondered whether these enforced court appearances meant that in effect the punishment for the uncommitted crime had already begun. (The court subsequently dispensed with the need for personal appearance of the respondents until further orders.) "The lies, the looseness, the ludicrousness of the charges display more contempt for the apex court than any of the offences allegedly committed by Prashant Bhushan, Medha Patkar and myself," she said in the affidavit.

THE contempt charges are contained in a "First Information Report"(FIR) that the petitioners claimed they lodged in the police station at Tilak Marg, New Delhi, on December 14, 2000. In the "FIR" the petitioners alleged that the three persons had closed the gates of the Supreme Court and made remarks against the court. When the petitioners objected to this protest action, the FIR said, the alleged contemnors threatened them with violence. The Tilak Marg police station has not registered a case in this connection. Arundhati Roy said: "No policeman ever contacted me, there was no police investigation, no attempt to verify the charges, to find out whether the people named in the petition were present at the dharna, and whether indeed the incident described in the FIR (on which the entire contempt petition is based) occurred at all."

She denied that she ever tried to murder anybody, or incite anybody to murder anybody "in broad daylight outside the gates of the Supreme Court in full view of the Delhi Police," as alleged in the petition. She justified her participation in the protest saying that as a writer she was deeply interested in the people's perceptions of the functioning of one of the most important institutions in the country. She denied that she had raised the slogan, "Supreme Court bika hua hai" ("The Supreme Court has been sold out) as alleged in the petition. "I certainly did not 'command the crow that the Supreme Court of India is the thief and all these are this touts' (perhaps the petitioners meant 'crowd'?)," she said in her affidavit.

Arundhati Roy defended her right to participate in any peaceful protest meeting that she chose to, even outside the gates of the Supreme Court. She claimed that she had the right to use all her skills and abilities and all the facts and figures at her disposal to persuade people to her point of view. She warned: "If the court uses the contempt of court law, and allows citizens to abuse its process to intimidate and harass writers, it will have the chilling effect of interfering with a writer's imagination and the creative act itself. It will induce a sort of enforced, fearful self-censorship. It would be bad for law, worse for literature and sad for the world of art and beauty." She alleged that the petitioners' attempt to misuse the Contempt of Court Act and the good offices of the Supreme Court to stifle criticism and stamp out dissent struck at the very roots of the notion of democracy. She argued that a judicial dictatorship was as fearsome a prospect as a military dictatorship or any other form of totalitarian rule.

Above all, she claimed that the contempt notice indicated a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagreed with it. "By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm," her affidavit said.

Similarly, Prashant Bhushan, through his counsel and former Union Law Minister Ram Jethmalani, described the allegations as false and concocted. He denied that he led the group of NBA protesters or shouted slogans against the court, or assaulted, abused or threatened the petitioner or his friends. In his affidavit, Prashant Bhushan answered the question - as raised by the petitioners - whether a practising lawyer, particularly one who was involved in a particular case, could subject the court to criticism. He said he had always believed and worked on the basis of the belief that a lawyer, especially one espousing public interest causes, was fully entitled to be involved in the causes that he espoused. While doing so, he had identified himself with the causes that he espoused in court. He had often participated in public campaigns on such issues and also written about them. He had not done so to influence the court but to educate people on the issues involved. He argued that being a lawyer, and thus having access to all the relevant facts, placed a much greater responsibility on him to inform and educate people about these issues.

In her affidavit, Medha Patkar, through her counsel, senior advocate Shanthi Bhushan, denied all the allegations against her as contained in the contempt petition, but justified the NBA's agitation on December 13 in front of the Supreme Court. She deplored the fact that the NBA's review petition against the Supreme Court's judgment in the Sardar Sarovar case was not even taken up by the court for consideration, and was dismissed more than four months after it was filed, without even giving the petitioners an oral hearing despite a strong dissent by Justice Bharucha in the judgment.

The object of the December 13 dharna was not to pressure the court into giving a favourable judgment on the review petition but to bring to the notice of the court and the people the plight of the displaced by the dam project and who would lose their lands and homes this monsoon without rehabilitation, Medha Patkar submitted. She expressed her belief that in a democratic society, where the court plays an important role in the lives of people, it should be influenced by exposure to such reality and to the plight of the poor and the downtrodden. She said she believed that the court often gave judgments in ignorance of the ground realities because of lack of exposure to them. The NBA always wanted the Judges to visit the valley and see the condition of the oustees themselves, but that did not happen. "So the people of the valley decided to come to the court to meet the Judges and explain to them what was happening in the valley. If such attempts to influence the Judges in this way is considered contempt by this court, then I plead guilty," she said in the affidavit.

Medha Patkar made it clear that she would continue to help the project-affected people in the valley raise their voices in protest against the system, even if she had to do so against the judiciary and the courts, even if she had to be punished for contempt for doing that.

Although strong doubts were expressed about the merit of the court entertaining the contempt petition, the Bench did not hear those arguments by the respondents and was not sure how to proceed further in the matter. The court held that two options were open to it - either drop the proceedings against the respondents in view of their denial of the allegations or hold an inquiry into the allegations. If the allegations were found baseless, the petitioners might be sent to jail, the Bench warned. But the Bench also made it clear that the respondents might be punished if they are found to have committed a fresh contempt with their affidavits.

Whatever view the court takes, it is clear that Prashant Bhushan, Arundhati Roy and Medha Patkar have immensely helped the cause of free debate and expression, by forcefully articulating in their affidavits the need for accountability of the judiciary and the limits of the contempt power that courts can invoke.

What constitutes 'scandalising the court'

THE contempt of court jurisdiction is exercised not to protect the dignity of an individual judge but to protect the administration of justice from being maligned. There can be little dispute over this observation made by a Constitution Bench of the Supreme Court in Supreme Court Bar Association vs. Union of India & anr. (1998 (4) SCC 409). But problems arise when one seeks to understand "criminal contempt", as defined in Section 2 (c) (i) of the Contempt of Courts Act, 1971. This section defines "criminal contempt" as the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court.

According to some experts, when the judiciary as such or a Judge in particular is attacked in this manner and the attack contains various kinds of imputations, such contempt is treated as scandalising the court. The Oxford English Dictionary defines the word "scandalise" as "offend the moral sensibilities of; horrify or shock by a (real or imagined) violation of morality or propriety." In the absence of a legal definition of the term in the Act or elsewhere, the meaning of the term needs to be considered as it is commonly understood.

Put in this context, the Delhi High Court's issuing of notices to Madhu Trehan, Editor-in-Chief of the fortnightly magazine, wah india, and four others for committing contempt of court in connection with a report the magazine carried in its April 16-30, 2001 issue on the Delhi High Court Judge, raises certain issues. The Division Bench, comprising Justice Anil Dev Singh and Justice O.P. Dwivedi, issued the notices on April 26 on a criminal contempt petition by the Bar Council of Delhi. The petitioner, through counsel R.K. Anand, alleged that the magazine carried a write-up, with photographs of the Judges, reflecting on their integrity, quality of judgment, depth of basic knowledge, observance of punctuality, manners in court and receptiveness to arguments, which amounted to contempt of court.

What followed the issuing of notices was bizarre. The Bench asked the Deputy Commissioner (Crime), Delhi Police to seize and confiscate copies of the issue of the magazine from shops, news-stands or any other place where they were being sold. It also asked the respondents to withdraw from circulation copies of the issue. It further directed that no one shall publish an article similar to it or any article, news, letter or any material that tended to lower the authority, dignity and prestige of the members of the judiciary. The Bench also put a bar on reporting the proceedings of the case in the media, including contents of the article, in any manner. Issuing the notices, the Bench asked the respondents to show why they should not be punished for contempt of court.

The court's directions created an uproar in the media. While editorial comments in sections of the print media questioned its order gagging the media, six media personalities on May 1, through an application to the court, sought to be impleaded as parties to the contempt proceedings before Delhi High Court against wah india for its survey grading the court's Judges. They clarified that they did not wish to defend the article or contest the contempt petition but told the court that they were aggrieved by its direction barring the press from reporting the contempt proceedings. The media personalities were the vice-chairperson of The Hindustan Times, Shobhna Bhartiya; the executive managing editor of The Times of India, Dilip Padgaonkar; the editor-in-chief of The Indian Express, Shekhar Gupta; the editor of Outlook, Vinod Mehta; the resident editor of Punjab Kesri Ashwani Chopra and columnist and Rajya Sabha member Kuldip Nayar.

Asserting that the court order affected their fundamental rights, the six applicants said reporting of the proceedings would not interfere with or obstruct the course of justice or the administration of the law in any manner. They contended that in a case involving the honour of the court, it is vital that proceedings conducted in open court be reported in the interests of justice and in public interest.

The editors' intervention had the desired effect when the High Court modified its order on May 2 by allowing media coverage of the proceedings. Madhu Trehan tendered an "unconditional and unqualified apology and expressed deep regret for the article published." The court reserved its judgment in the case.

Notwithstanding the critical observations of the Judges during the hearing of the case on May 2 on the wah india story, it is clear that the only basis for initiating contempt proceedings against the editor of wah india was that the report had "scandalised the court" by making an imputation that some Judges of the Delhi High Court were perceived by some senior advocates (whose ratings were sought by the magazine), as being less than 100 per cent honest. The magazine has not revealed the names of the 50 senior advocates whose ratings it had sought. Although the magazine is not bound to do so, it needs to be asked whether their ratings on the Judges' integrity, understanding of law, and courtroom behaviour on a six-point scale amounted to "scandalisation of judiciary" or lowered the authority of the court.

It needs to be pointed out that a perceived lack of respect for the institution and the credibility of the judiciary, which some Judges who heard the case on May 2 had apparently underlined as the reason why they found the report offensive, cannot be construed as "scandalisation of judiciary" or "lowering the authority of the court". The magazine's survey had added that it was by no means an attempt to cast any aspersion on the competence of the judiciary, but was a small and humble attempt to hold a mirror to it. The ratings show that almost all the Judges, in the overall ratings, secured more than 30 out of 60; only a few of them scored less than 40. The survey rates 31 sitting Judges of the Delhi High Court, in 15 ranks.

It appears that the court has read too much into the ratings, which are purely subjective. An advocate remarked: "In the corridors of the courts everybody talks about these, it is the first time it has appeared in print". It also seems farfetched to infer that the magazine's survey will further erode people's faith in the judiciary. The Chief Justice of the Delhi High Court, Justice Arijit Pasayat, reportedly observed during the hearing on May 2: "We are not defending ourselves. Judges may be wrong, but you cannot question the credibility of the judiciary."

Does the magazine's survey question the credibility of the judiciary? Such an inference would only stretch the reader's credulity too far.

Fighting on

The struggle over Balco continues.

THE two-month-long strike by more than 7,000 workers of Bharat Aluminium Company Limited (Balco) in Korba in Chattisgarh continues. The strike, the longest industrial action so far against the Union government's public sector disinvestment policy, has set the government on the back foot in its privatisation drive. Meanwhile, the struggle continues inside and outside the Supreme Court. Ironically on May Day, the Supreme Court accepted an affidavit from Sterlite Industries, Balco's new owners, offering to pay two months' wages as an advance payment to the workers if they agreed to resume work. Balco, India's third biggest aluminium producer, accounts for about 15 per cent of the country's aluminium output.

The Supreme Court, hearing the three cases that have been transferred to it from the Delhi and Chattisgarh High Courts, "advised" the workers to examine Sterlite's offer. The court's observations were widely misreported in the media to imply that it had "ordered" the workers to resume work in return for two months' wages. However, the record of the proceedings of the court shows that the Bench, consisting of Justices B.N. Kirpal, U.C. Banerjee and Brijesh Kumar, had only asked the Sterlite management "to pay the workers the amount claimed by them as outstanding payment." It also said that this will be "paid as an advance subject to adjustment subsequently" and without prejudice to the rival claims of the workers and the management. The Bench hoped that the unions would consider the offer "in the right spirit".

REFERRING to the Chattisgarh government's petition challenging Balco's sale to Sterlite on the ground that it alienates tribal land, the court asked the State government to submit a list of companies that had leased or bought tribal land in the State. The court observed that if eventually in the Balco case it was held that tribal land could not be transferred to non-tribal persons, it would affect other companies that had taken similar possession of tribal land.

The seven major unions of workers at Korba were quick to spurn Sterlite's offer. Their reaction was in part conditioned by the new management's action of terminating the services of a leading activist in the ongoing agitation, A.M. Ansari, a fitter in the Korba plant, on April 27. They pointed to this as being indicative of the management's "vindictive attitude" towards the striking workers. Ansari was suspended for his role in a strike action in 1999. The unions said that at that time "Sterlite was nowhere in the picture" and accused the company of being "unscrupulous and high-handed". In a joint statement the seven central unions in Balco leading the agitation referred to the dismissal as evidence of the Sterlite management's "terror tactics" aimed at demoralising workers. They sought the Union government's intervention to stop such provocative acts.

The workers were critical of the court taking up Sterlite's affidavit at a point when their own petitions were pending before it. V.K. Sharma, secretary of the Balco Employees Union (BEU), told Frontline that the court's "advice did not address the issues regarding privatisation that the workers had raised." He referred to the wage revision that was due since 1999, the issues relating to the fact that the Balco facility is situated on land acquired from tribal people and the consequent violation of constitutional guarantees, and the workers' demand that at least in the interim, worker-directors should be appointed to the Balco board. Sharma told Frontline that the workers "were ready to fight on, rather than resume work for a few rupees of relief."

Reacting to the Supreme Court's "advice", Mahendra Karma, Industries Minister of Chattisgarh, said that the workers should explore the possibility of resuming work in the "national interest". However, he later told Frontline that the workers could not do so without receiving any guarantees. Karma said that what the Balco workers had initiated was just the beginning of a battle against the non-transparent privatisation process that was on. He said that the Balco issue pointed to the need to "evolve a general formula that would protect the interests of workers in such situations". Karma also reiterated his earlier suggestion, made during abortive tripartite negotiations, that a congenial interim arrangement be created by reverting the management to the situation before Balco was sold to Sterlite on March 2.

Brahma Singh, general secretary of the BEU, affiliated to the Indian National Trade Union Congress (INTUC), said that the workers were only seeking a just and equitable solution. He said that Sterlite had only offered to pay the workers as an advance what was due to them. He told Frontline "there was nothing magnanimous about Sterlite's offer". He hinted that the leadership of the unions was under pressure to reach an "honourable solution" after a long battle involving thousands of people who had sacrificed a lot in the battle against privatisation.

AT a special meeting on May 4 of the core committee of the seven main unions, the workers unanimously rejected Sterlite's offer. Referring to the unions' consistent stand that they will not negotiate with the new management, but only with the State and Union governments, Brahma Singh said that the workers were clearly against accepting any "crumbs offered by Sterlite". He said that the issue of privatisation, the main issue raised, remained completely off the agenda. "Unless this is addressed, there cannot be any resolution to the tangle", he said.

The Tehri turnaround

The issue of purity of Ganga jal puts a bigger question mark on the Tehri dam than what the seismic controversy has done to the progress of the dam in the last two decades.

YET another review of the Tehri dam project has begun following a government order of April 10. Perhaps no other national project has seen as many technical reviews as the 260.5 metre high Tehri rock-fill dam project on the Bhagirathi has. The current one, which has been set up under pressure from the Vishwa Hindu Parishad (VHP), almost borders on the farcical. When the issue of seismicity seemed to have been settled after a February 1998 report of a five-member Group of Experts (GOE) was considered by the government and the go-ahead for resuming construction was given in February 1999, the VHP raised the spectre of the dam sullying the Ganga.

The anti-dam lobby led by environmentalist Sunderlal Bahuguna found a convenient ally in the VHP. Having lost the premise of the seismicity argument after the GOE - members of which were nominated on the suggestion of Bahuguna himself - unanimously concluded that "the present design of the dam is expected to be structurally safe to withstand the maximum credible earthquake (MCE) during the economic performance life of the dam-reservoir system", Bahuguna has now begun to play the "Gangatva" card of Ashok Singhal, the VHP leader (Frontline, February 16). It is significant that in February Bahuguna, along with VHP leaders, had met Prime Minister A.B. Vajpayee seeking his intervention to get the project reviewed.

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The formation of the new review committee can be traced to Singhal's threat on March 26 to go on an indefinite fast. His tactics worked and the government assured him that a new committee would be constituted under Murli Manohar Joshi, Minister for Human Resource Development (Frontline, April 14). Bahuguna had also threatened to go on fast from April 12 if work on the dam continued.

The notification announcing a fresh review just two days before that date clearly indicated that the government was giving in to the VHP's threats. According to the Tehri Hydro Development Corporation (THDC), however, since the terms of reference of the review do not involve stoppage of construction, work has continued though it had slowed down in between when protesters blocked work. They were arrested and removed.

The earthquake of January 26 has also come in handy for Bahuguna and others to raise the spectre of seismicity again. In recent times Bahuguna has also begun to raise the issue of security. Since the dam site is in a border State, the security aspect needed to be looked into as well, he said. While the government seems not to have attached importance to the last of the points, it has yielded on the other two, namely the purity of Ganga jal and the earthquake.

The April 10 notification by the Ministry of Power (the apex Ministry for the THDC) says: "In view of the continuing concern relating to the seismic safety of the Tehri dam, a Group of Experts was constituted in June 1996 to further examine the issue of seismic safety of the Tehri dam. This Group in its report concluded that the design of the dam was safe to withstand the MCE. However, in the wake of the Bhuj earthquake of January 2001, the need for review of seismic safety of the Tehri dam is felt necessary. Further, concern has also been expressed about the possible impact of Tehri dam on the self purification quality of Ganga jal."

These two new issues constitute the terms of reference of the new 11-member review committee that includes the Director-General of the Council of Scientific and Industrial Research (CSIR); the Chairman of the Central Water Commission (CWC); the Director-General of the Geological Survey of India (GSI); the chairman of the Central Pollution Control Board (CPCB); the director of the National Environmental Engineering Research Institute (NEERI); C.D. Thatte, former Secretary of the Ministry of Water Resources; K.S. Valdiya, geologist at the Jawaharlal Nehru Centre for Advanced Scientific Research, Bangalore; T. Shivaji Rao, Professor of Environmental Studies, Geetam College of Engineering, Visakhapatnam; U.K. Chowdhury of Varanasi; and Guru Das Aggarwal of Vridda Sewa Sadan of Chitrakoot, Madhya Pradesh. The committee is expected to submit its report within four weeks.

Curiously, considering that it is a major project of the Ministry of Power, there is no one from the Ministry in the committee. It is also equally curious that a Minister should chair a technical review committee.

From a technical perspective this review is particularly farcical because the apparent purity of Ganga jal is not a new issue. It has been part of the Hindu psyche and belief for thousands of years. If the impact of the dam on purity was an important issue, it should have been considered at the stage of the dam proposal in 1969 itself.

The earthquake can have no relevance whatsoever for the seismicity of and the impending earthquakes in the Himalayan region. This is particularly so in the case of Tehri because the tectonic features of the two regions are totally different. If the Bhuj earthquake warrants a review of the Tehri project, any major earthquake anywhere else in the world should be reason enough for a review. Obviously that would be unreasonable. It would then seem that the purity of Ganga jal is the dominant issue for the present government, and the earthquake has been thrown in for good measure to give the re-appraisal the respectability of a technical review.

THE Bhuj earthquake is of no consequence to the Tehri dam design. The seismic belt along the Himalayas lies on the boundary of the peninsular Indian tectonic plate, which is incessantly thrusting northward under the Eurasian plate. As a result of this under-thrusting, geological features known as "thrust faults" have formed all along the plate boundary which cause the built-up stress to be released at various points along this belt in the form of earthquakes. That is, Himalayan earthquakes are linked to "inter-plate" tectonics. In contrast, the Kutch region is within the Indian plate and the stress release within the plate occurs along "intra-plate" tectonic fractures known as "strike-slip faults".

The mechanisms of energy release in the two are quite different and in intra-plate earthquakes large magnitude earthquakes (8+ on the Richter scale) are unlikely. In fact, the intensity of the recent earthquake (of magnitude 7.7) is itself regarded as extremely rare. Kutch is in earthquake Zone V (the most quake-prone with an intensity rating of IX and above on the Modified Mercalli Scale) whereas Tehri falls in Zone IV (corresponding to an intensity rating of VIII) as per the classification of the Bureau of Indian Standards (BIS). Indeed, while the Kutch region has had a major earthquake in 1819 to which the present one is believed to be similar, Tehri has no history of a large earthquake. Both the Uttarkashi earthquake (magnitude 6.6) of 1991 and the Chamoli earthquake of 1999 (magnitude 6.8) occurred north of Tehri.

The most important point, however, is the fact that the Tehri dam design has been tested for much more severe ground motion than what was experienced during the Kutch earthquake. Based on an exhaustive field survey carried out independently by the GSI and the Gujarat government under the guidance of experts on disaster mitigation, an upper bound of rating X has been suggested for the intensity of the Bhuj earthquake. Empirically, an intensity of X corresponds to a horizontal ground motion acceleration of about 0.6 g or 60 per cent of the acceleration due to gravity. The Tehri dam has been tested for 'the worst case scenario' as postulated by the GOE, which had far more severe ground motion and has been found to be safe.

Indeed, since 1989, when the Department of Earthquake Engineering first tested the dam for 7.2 magnitude earthquake with an effective peak ground acceleration (EPGA) of 0.25 g, the seismic stability of the dam design has been tested repeatedly against different seismic parameters, each time the worst case scenario being revised upwards. A recall of the various tests the dam design has been subjected to over the years culminating in the most severe ground motion test as desired by the GOE would place the safety design of the Tehri dam in the proper perspective.

Until the constitution of the GOE, the most stringent test was the one carried out in 1991 against the actual accelerogram of the Gazli earthquake of 1976 which had a peak ground acceleration (PGA) of 1.36 g in the vertical and 0.72 g in the horizontal, both acting simultaneously. This was done at the suggestion of geophysicist V.K. Gaur, a member of the high-level committee (HLC) of 1990 that went into the seismic safety of the dam. Gaur was the sole dissenter to the conclusions of the committee which held that the dam was safe. When the dam was found to be safe against the severe ground motion of the Gazli earthquake too, the government cleared the project on March 15, 1994.

But Bahuguna, aided by the remarks of Gaur and other opponents of the dam, continued to raise the bogey of seismic risk to the dam, and exactly a year after the government approval went on a two-and-a-half month fast at the dam site. Gaur had been critical of the Gazli test saying that the test had been carried out only for 12 seconds shaking whereas vibrations in a 8+ magnitude earthquake at Tehri could last much longer. The Gazli test was repeated in deference to Gaur's views in July 1995 by applying the Gazli accelerogram three times so that the effective duration of the shaking lasted for 42 seconds. The dam was found safe even against this test.

Supported by political leaders, Bahuguna continued to demand a technical review - to which the government yielded and constituted the GOE consisting of members recommended by Bahuguna himself. They included Gaur, K.N. Khattri of the Wadia Institute of Himalayan Geology, the Director of the Central Building Research Institute (CBRI), Roorkee, R.N. Iyengar, and Ramesh Chandra of the Department of Earth Sciences of the University of Roorkee. None of the four is an earthquake engineer and all of them are opposed to the Tehri dam. However, in order to offset the biased character of the GOE, the government later included, again on Bahuguna's suggestion, N.C. Nigam, an expert in earthquake engineering and former Vice-Chancellor of Roorkee University.

After considering the performance of the dam in various earlier studies with varying seismic parameters, the GOE concluded that a comprehensive appraisal of the seismic safety of the dam required the completion of two more key studies, "employing recent advances in conceptual and computational capabilities": (i) quantitative estimate of seismic hazard at the Tehri dam site; and, (ii) evaluation of the performance of the dam if it was exposed to the estimated seismic hazard at the site. Towards this, the seismic parameters for the MCE were evolved by Gaur, Khattri and Ramesh Chandra, three of the five members of the GOE, in a base paper.

These, according to A.R. Chandrashekaran, former Professor of Earthquake Engineering at Roorkee University, are the most severe ground motion parameters at any dam site in the world. For these parameters, the dam sections were analysed for two-dimensional linear and non-linear behaviour and the entire dam analysed for 3-D linear behaviour.

Based on the results, the GOE unanimously concluded that the present design of the dam is safe against an MCE as defined by Gaur, Khattri and Ramesh Chandra. However, there was difference of opinion among the members when it came to the final recommendations. As a result, two reports were submitted: one signed by only Nigam and the other signed by opponents of the dam: Gaur, Khattri, Iyengar and Ramesh Chandra (Frontline, June 6, 1998). The latter included two additional recommendations, with which Nigam disagreed, for conducting additional studies as a matter of abundant caution: (i) 3-D non-linear analysis of the dam to evaluate its performance against the MCE; (ii) a simulated dam break analysis to ensure that in the unlikely event of an uncontrolled release of water, the consequences are minimum.

The report(s) of the GOE, submitted to the government on February 18, 1998, was considered by the National Committee on Seismic Design Parameters (NCSDP), a standing technical body constituted by the government that clears seismic design parameters for all water resource projects. The NCSDP, in fact, observed that the 'worst case' earthquake postulated as MCE by Gaur and associates was against the accepted principles for design of dam structures as per International Code of Practice.

The NCSDP concluded that since the dam has been tested for very severe seismic hazard, carrying out 3-D analysis was not necessary. In any case, 3-D analysis is not a fully developed technique, particularly for rock-fill dams, and is not a global practice. According to Chandrashekaran, in the case of Tehri a 2-D analysis is bound to be more conservative because of the peculiar S-shaped canyon at the site because of which the abutting mountains on the sides offer extra stability to the dam by bearing a substantial part of the load. In any case, he says, theoretical studies on non-linear analysis have indicated that 2-D behaviour gives results comparable with 3-D analysis.

The NCSDP ruled out dam break analysis (DBA) as well for good reason. To carry out such a study one needs to know the failure mode. Since the dam was not breaking even for the most severe ground motion, it can only be hypothetical and it is up to the critics to come up with a credible failure mode and the nature of dam breaking. DBA is usually carried out in cases where a review indicates insufficiency of original design and a failure mode can be identified.

The report of the GOE and the NCSDP recommendations were considered by the Committee of Secretaries on January 11, 1999, and it was decided that the NCSDP recommendations be accepted and the additional studies recommended by four members of the GOE need not be undertaken. On February 1, 1999, an official notification accepting the unanimous recommendation of the GOE was issued, after which work on the dam has been going on in full swing. In the light of the above, the turnaround on the seismic issue is clearly unwarranted.

The issue of purity of Ganga jal can be addressed if the contention is made in scientific terms. But the arguments on this issue are likely to be made on the grounds of faith and religion rather than any scientific reasoning. If reason was to have any role in the matter, the VHP (and Bahuguna too) would first try to work towards ensuring that Tehri town does not disgorge garbage into the Bhagirathi. But reason is at a premium where emotions, and that too religious, rule. Indeed, it is not unlikely that, like in the Babri Masjid affair, the VHP will claim that purity of Ganga jal is an integral part of the Hindu belief and cannot be decided through scientific deliberations, committees and technical reviews. If that happens, there will be a bigger question mark on the Tehri dam than what the seismic controversy has done to the progress of the dam in the last two decades.

A setback and some lessons

T.S. SUBRAMANIAN science-and-technology

The failure of GSAT to reach the geo-synchronous orbit does not detract from the success of the Geo-synchronous Satellite Launch Vehicle mission.

A SHORTAGE of 10 kg of liquid propellants on board the GSAT, which was launched by the Geo-synchronous Satellite Launch Vehicle (GSLV) from Sriharikota, Andhra Pradesh, on April 18, made the spacecraft go into a "drift orbit" instead of the geosynchronous orbit. The satellite now circles the earth once every 23 hours instead of 24 hours and thus fails to match the earth's rotation. As a result, the Indian Space Research Organisation (ISRO) will not be able to carry out many of the novel communication experiments that it had planned to do with the GSAT's payloads. The experiments can now be done only for a limited period, when GSAT is visible over ISRO's Master Control Facility (MCF) at Hassan, Karnataka. It went off the MCF's visibility range on April 30 and is expected to come back by May 15, when ISRO can conduct experiments related to digital audio broadcasts.

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An ISRO engineer said: "The GSAT in the drift orbit is like a fantastic car without petrol." The satellite was in "good health" although it could not reach its space home at 48 East in the geosynchronous orbit.

The GSAT's failure to reach its geosynchronous orbit does not detract from the success of the GSLV mission because it was essentially a developmental flight aimed at testing the capability of the vehicle to put a communication satellite weighing around 1,500 kg into a geosynchronous transfer orbit (GTO). The vehicle, carrying the 1,540-kg GSAT, did this successfully. A top ISRO scientist said: The mission was to prove the capability of the GSLV and it has been done. This is a fantastic achievement for a developmental vehicle."

According to Dr. K. Kasturirangan, Chairman, ISRO, besides proving the vehicle's capability ISRO was able to perform all the critical manoeuvres with regard to the satellite. The massive solar panels and the long solar boom were deployed, the antennae spread out, and the satellite itself was put in a three-axis stabilised mode. Thus the spacecraft was in its final configuration.

G. Madhavan Nair, Director, Vikram Sarabhai Space Centre, Thiruvanantha-puram, said that the drifting of the satellite came as a disappointment after a perfect launch. He called it "a narrow miss". He praised R.V. Perumal, GSLV Mission Director, for the mission's success. "Perumal sweated blood for the GSLV's success and brought maturity to its complex technology," Madhavan Nair said.

There was much jubilation at Sriharikota when the three-stage GSLV lifted off from its launch pedestal at 3-43 p.m. and deployed the satellite into the GTO. The first stage of the GSLV comprised two strap-on liquid engines attached to the core solid stage; the second was a liquid engine stage; and the third was a cryogenic stage, which was used for the first time in an ISRO vehicle. Although the upper cryogenic stage was imported from Russia, the electronics, control and guidance systems for the entire vehicle, including the cryogenic stage, were done by ISRO engineers (Frontline, May 11, 2001).

It was a perfect flight with the three stages, including the liquid strap-on engines, igniting accurately and jettisoning with clock-work precision. The upper cryogenic stage should have injected the satellite into orbit at a velocity of 10,200 metres a second but the velocity fell short by 0.6 per cent, that is, 70 m a second. As a result, the satellite reached a highly elliptical orbit with a perigee of 181 km and an apogee of 32,051 km against the target of 180 km by 35,975 km, plus or minus 675 km. That is, the apogee was shorter by about 3,900 km.

Dr. Kasturirangan attributed this to "the dispersions in the orbital injection parameters expected in the very first test flight." The shortfall was made up by firing the propulsion motors on board the satellite and GSAT reached the intended GTO on April 19. "The shortfall of 0.6 per cent in the final velocity of injection (of the satellite) was correctable and was corrected using the satellite's propulsion," Dr. Kasturirangan said. Through a series of six orbital manoeuvres conducted between April 19 and 23, the satellite's orbit was raised close to near-geosynchronous height with an apogee of 35,665 km, a perigee of 33,806 km and an inclination of 0.997.

But an unexpected problem arose. When ISRO engineers at the MCF were giving commands to raise GSAT's orbit, they fired its liquid apogee motor (LAM). For this, they used fuel from two tanks: one German-made tank and the other Indian-made. An ISRO engineer said that the flow of fuel from one tank was higher than that from the other. As a result, one tank got emptied faster than the other and the satellite's centre of gravity shifted.

The MCF personnel worked to keep the satellite in the right attitude, that is, direction. The attitude control thruster held the satellite in the proper direction despite the shift in its centre of gravity. The engineer said: "The attitude control thruster kept firing and holding the satellite in the proper direction. That is how we lost the fuel."

ISRO engineers resorted to a bold strategy to raise the GSAT's orbit. Instead of using the LAM alone for this purpose, they used four (out of 22) Newton thrusters. The smaller Newton thrusters are normally used to correct the satellite's orbit and not to raise it. An ISRO engineer said: "For the first time in the world, the Newton thrusters were fired for 85 minutes continuously. It is a record." Another achievement was that the experience gained by the engineers in this operation would help them in future missions of INSAT (Indian National Satellite). "We have learnt how to use the smaller Newton thrusters in the back-up mode in case there is a problem with the LAM while raising the apogee," the engineer said.

Dr. Kasturirangan said: "Several new communication technologies have been evaluated using GSAT." They included the fast recovery star sensor, a sophisticated instrument on board the satellite that is used to measure its orientation and to recover the earth-lock quickly in case of its loss. (The loss of earth-lock in an INSAT mission had left the spacecraft doomed). A new technology for thermal control of satellites using heat pipes was proved. A new technique of power management through charger arrays for improving the overall efficiency of power systems was validated.

An ISRO scientist pointed out: "We basically wanted to prove the hardware on the satellite. This has been done." Since GSAT was drifting 13 towards west, it kept going out of the MCF's visibility range and coming back.

Madhavan Nair said: "We will not be able to do all the experiments with GSAT. We will do the maximum number of experiments when it reaches our slot. It will come over the MCF in the middle of May. Then we will test the various sub-systems of the satellite." He added: "Whenever GSAT is visible over the MCF, we can still use it for digital audio broadcasts. It is only an experimental satellite. We did not want to put a dummy payload on the GSLV. So we used GSAT. If it had reached the precise geosynchronous orbit, we could have done these communication experiments for three years."

International regulations demanded that ISRO switch on GSAT's payloads only in its slot, he said. They could be switched on for a short duration.

According to Madhavan Nair, it is not correct to attribute the 0.6 per cent shortfall in velocity to the under-performance of the Russian cryogenic stage. He said: "It is wrong to say that. The shortfall was only 0.6 per cent, that is, 70 metres less than a velocity of 10,200 m a second. It is a very short gap. The satellite can do this kind of correction. It (the shortfall) was made up... But one of the fuel tanks got depleted. The centre of gravity shifted. We could not fire the main thruster, which gives 310 metres a second of specific impulse. The secondary thruster gave only 280. So we consumed more fuel in the process. We ran short of our goal. We reached 35,000 km by 36,000 km. It is continuously circling the globe." (The satellite should reach a geosynchronous circular orbit, that is, 36,000 km by 36,000 km).

THE sixth Polar Satellite Launch Vehicle (PSLV), said Madhavan Nair, would be launched from Sriharikota towards the end of August. The launch campaign was progressing according to plan, the modification of the launch-pad used for the GSLV liftoff had started and the PSLV stage motors had arrived in Sriharikota, he said.

S. Ramakrishnan, Mission Director for the PSLV flight, said that the vehicle would put in orbit three satellites: Phoba from Belgium, BIRD from Germany, and the Technology Experiment Satellite (TES) of ISRO. Phoba had payloads that would try autonomous management of the satellite, Ramakrishnan said. BIRD was for remote-sensing. Both were micro-satellites weighing 100 kg each. The TES was a remote-sensing spacecraft to survey the earth's resources.

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