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COVER STORY

28-09-2001

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Briefing

UNDER LEGAL SIEGE

cover-story

With the Supreme Court intervening decisively in Jayalalithaa's legal battles, her second tenure as Tamil Nadu Chief Minister appears to be nearing an end.

SUKUMAR MURALIDHARAN T.S. SUBRAMANIAN V. VENKATESAN

JAYALALITHAA was sworn in Chief Minister of Tamil Nadu on May 14, 2001, by M. Fathima Beevi, a former Judge of the Supreme Court who happened then to be the Governor of the State. There were questions of legal rectitude and constitutional propriety involved in the decision, which seemingly eluded the comprehension of the Governor. Ironically though, most editorial writers in the national press easily managed to negotiate these seemingly complex questions without the benefit of legal education, even less with the experience of a tenure on the nation's highest judicial forum.

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Fathima Beevi soon found herself evicted from the gubernatorial mansion in Chennai for her failure to exercise any form of ethical oversight over a government she had sworn in without a clear constitutional sanction. And now, sooner rather than later, Jayalalithaa's own tenure as Chief Minister seems likely, but for completely unforeseen developments, to end in stricture and admonition from the Supreme Court.

Politically, Jayalalithaa will now be compelled to do under duress what she should have done four months back as a gesture of faith in basic democratic norms. And any pretence of sagacity that she might affect, any effort to portray her impending resignation as a sacrifice of her own interests in the larger cause of safeguarding accountability and probity in public life, will be undermined by a record of reckless adventurism since her political resurrection in the Tamil Nadu Assembly elections.

Indeed, no Chief Minister in India has at any given time been under scrutiny by quite as many constitutional and statutory authorities. Even as the Supreme Court deliberates upon the legitimacy of her claim to remain as Chief Minister, the Madras High Court is hearing appeals against her conviction for corruption, the National Human Rights Commission is inquiring into her arbitrary use of police powers against political adversaries, and the Press Council of India is investigating her efforts to deny the media its rightful democratic space.

For those of a facetious disposition, willing to accede to the demands of convenience, the Indian Constitution is what is made of it by governments, subject only to the occasional restraints of judicial intervention. For those more seriously engaged in politics and the defence of democratic rights, the Constitution embodies weightier principles - it is nothing less in fact than the embodiment of the popular will. The hearings before a Constitution Bench of the Supreme Court on Jayalalithaa's eligibility to be sworn in have provided an opportunity to affirm a basic verity of politics: the popular franchise is exercised under the Constitution and cannot in any instance provide a mandate to disregard the central principles of constitutionalism. A convicted person who has failed to secure a suspension of conviction is ineligible to contest elections to any legislative body. And being ineligible to contest, he or she would not be entitled to hold a position of ministerial authority, including that of Chief Minister.

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The presumption of innocence is a basic principle of jurisprudence in India, applicable until the last judicial appeal is exhausted. Yet for reasons connected to the growing concern over corruption in public life, this principle has tentatively been modified in law - if not in fact - for those found guilty of malfeasance while holding public office. The benefit of the doubt is now applied to an individual found guilty of corruption, to the extent that he or she is spared the need to spend time in prison immediately. Nor is this person deprived of the normal rights of an ordinary citizen. But if he or she were to entertain ambitions of elected office, the burden of proof would stand reversed. Innocence would have to be established beyond all reasonable doubt, if necessary by approaching the highest forum of judicial determination, before he or she is allowed the right to contest for elected office.

This position in law is not firmly established yet, since it is the outcome of several different circumstances. First, the Supreme Court has in a case involving the Prevention of Corruption Act, issued the dictum that a suspension of conviction would not normally be given, prompting various High Courts to follow the example and thereby establish a fairly clear convention. Read in conjunction with Article 8 of the Representation of the People Act, this means that an individual held guilty of corruption and sentenced to a certain term of imprisonment would be disqualified from holding elected office. The Election Commission in 1997 underlined this new orthodoxy by directing Returning Officers to disqualify any candidate who remained convicted, irrespective of the status of his or her appeal. In its order, the Commission made it clear that it was basing its new position on a number of court judgments.

Jayalalithaa filed her nomination papers from four different constituencies for the Assembly elections in Tamil Nadu, and was disqualified from all of them. She chose not to contest the decisions of the Returning Officers in the four constituencies through an election petition in the Madras High Court, and assumed office as Chief Minister in the expectation that the basis of her disqualification would be removed in good time for her to secure a seat in the Tamil Nadu Assembly. The Election Commission's 1997 Order has not thus far come under legal challenge. What is more, the Supreme Court has held unequivocally that a suspension of conviction will not be granted in a case involving the PCA. Even if the sentence handed down by a trial court can be suspended during the process of appeal, the individual convicted will be deemed, for all legal purposes, to be under conviction until his or her final appeal is disposed of. After hearing Jayalalithaa's petition in April 2001, Justice Malai. Subramanian of the Madras High Court made certain observations apparently in her favour. However, he failed to give her the critical relief sought - suspension of her conviction.

Despite all these vicissitudes, Jayalalithaa assumed office as Chief Minister, only to be challenged through quo warranto petitions in the Madras High Court to vacate office. Similar challenges cropped up in other judicial forums, prompting the Supreme Court to gather all the petitions into its jurisdiction. And after a preliminary hearing of the case in July, a Supreme Court Bench decided to refer all the questions before it to a Constitution Bench.

In hearings before the Constitution Bench which started on September 4, the advocates appearing for Jayalalithaa seem to have taken the tack that she was entitled to assume office as Chief Minister under Article 164(4) of the Constitution. Anybody could assume ministerial office for a period of six months, said K.K. Venugopal, senior counsel appearing for the Chief Minister, without fulfilling the prior condition of being a member of an elected legislative body.

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Unfortunately, this did not quite address the substance of the petitions that had been filed before the Supreme Court, one of which argued in its opening paragraph that "(t)here has been no case where Article 164(4) has been utilised for swearing in a Chief Minister who has been disqualified under Election law because of a conviction under the Prevention of Corruption Act and who has failed to get a stay from the court."

In other words, the Constitution required a Minister or Chief Minister to be a member of an elected legislative body, and at the time she was sworn in Chief Minister, Jayalalithaa was disqualified from membership of a legislative body. The six-month grace period granted to a person otherwise qualified for election to seek membership of a legislative body did not apply here.

Fali S. Nariman, senior counsel for one of the petitioners, submitted before the Bench that the Governor ought to have gone by the fact that on the date of appointment of Jayalalithaa as Chief Minister, she was ineligible to become a member of the legislature. Article 164(4), he said, was only an ad hoc provision and an exception which allowed a ministerial appointee who had the necessary qualifications to acquire membership of the legislature within a period of six months.

Additional Solicitor-General Harish Salve, appearing in assistance of the court, argued that Article 164(4) was only intended for an unqualified person to acquire the necessary qualification. It was a conditional waiver given to a strong constitutional requirement for ministerial status. And in the case of Jayalalithaa the waiver had been wrongly invoked because she was not merely unqualified by virtue of not being a member of the legislature but disqualified from membership by virtue of her conviction.

Similar submissions were made by Attorney-General Soli Sorabjee who appeared in aid of the court, and senior advocates Ashok Desai and Anil Divan who appeared for other petitioners. Counsel for Jayalalithaa apparently took the position that Article 164(4) had a specific purpose, which was to enable an individual who was not a member of the legislature to acquire the necessary qualification for ministerial status within a period of six months. In this respect, the Article did not distinguish between those who were unqualified by virtue of having lost - or not contested - an election, and those who were disqualified by virtue of election law. In other words, the respondent Jayalalithaa could be freed from the legal constraints inhibiting her assumption of ministerial office within the period of six months granted under Article 164(4). That would bestow retrospective legitimacy to the Governor's action in swearing her in.

Senior counsel K.K. Venugopal, appearing for Jayalalithaa, repeatedly emphasised that Article 164(4) did not impose any qualifying requirements for ministerial posts. And where this domain of silence prevailed, the popular will should be allowed to hold sway, he contended. Venugopal's repeated emphases on the popular will led at one stage to a query from Justice S.P. Bharucha, the seniormost member of the Constitution Bench otherwise composed of Justices G.B. Pattanaik, Y.K. Sabharwal, Ruma Pal and Brajesh Kumar. The popular will was irrelevant to the concerns of the court, the Judge said. What was important was the constitutional position.

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This observation from the Bench underlines the truth that a franchise exercised under a constitutional order cannot in any circumstances provide a mandate to override the fundamentals of constitutionalism. Constitutional and legal prohibitions exist on Jayalalithaa acquiring membership of a legislative body. Her counsel has contended that there are no similar proscriptions on her becoming a Minister or a Chief Minister. Indeed, the basis of her disqualification could well cease to exist within the six-month period of waiver that has been granted for Ministers to hold office without membership in the legislature. Article 164(4) had no provisions on the qualifications necessary for one to be sworn in Minister or Chief Minister. In this respect it was substantively different from other clauses of the Constitution, which laid down strict qualifying requirements for the posts of President and Governor. Again, while it was true that a Governor's decision in appointing a Chief Minister could be subject to judicial review, this could only be on grounds of arbitrariness, mala fide or failure to exercise appropriate thought. None of these applied in this case since the Governor simply went by an electoral verdict and the decision of a party with a majority in the legislature in swearing in Jayalalithaa Chief Minister.

Speaking for the Bench, Justice Bharucha tacitly admitted that there was an area of ambiguity in the Constitution in this respect. But it was an ambiguity that the Supreme Court intended to address and resolve. Its observations on the people's mandate seem to indicate that if it is called upon to adjudicate a supposed conflict between an electoral outcome and the rule of law, it will tilt towards the latter. The court, in the opinion of most legal experts, would not like to don the garb of political populism in the present circumstances. And it would be difficult for it to refute the proposition that under constitutional principles only a person who is qualified for membership can become a Minister under Article 164(4).

Strong indications of the mind of the court came from a pointed inquiry directed towards Attorney-General Sorabjee: what would be the consequences if Jayalalithaa's appointment were to be declared void and orders issued for her to vacate office? Sorabjee's response was that certain irreversible actions would, in accordance with the 'doctrine of necessity', have to remain unopened. A Chief Minister's resignation was normally taken to mean that the entire Council of Ministers went with her or him. The new Chief Minister would, however, have the option of retaining the same council or appointing another one of his or her choice.

There is another range of possibilities which the Attorney-General did not touch upon. If the All India Anna Dravida Munnetra Kazhagam (AIADMK) Legislature Party were to follow up an adverse Supreme Court judgment and elect a new leader, the matter would be quickly resolved. But there is in the situation inherent potential for constitutional gridlock, should the AIADMK Legislature Party decide that Jayalalithaa is the person uniquely qualified to lead it. This will be a clear case of constitutional governance becoming impossible in the State, provoking the imposition of President's Rule. But this ultimate recourse of the Central government too is subject to the ratification of both Houses of Parliament. And the political arithmetic of Parliament does not exactly guarantee the smooth passage of any resolution imposing President's Rule in Tamil Nadu.

The senior lawyer and legal scholar Rajeev Dhavan warns that President's Rule should not be thought of as a remedy. Rather, the Supreme Court should think of other caretaker possibilities, if necessary by issuing specific directions on how a constitutional impasse could be avoided.

Counsel for Jayalalithaa addressed the prospect of political instability and unrest in the event of her eviction from office. He urged the Bench to consider the possibility of applying its findings on Article 164(4) with prospective effect. This would mean that Jayalalithaa could complete her six-month tenure and then quit in the event that she has failed to acquire the necessary qualification for holding ministerial post in the intervening period. The reasoning here is that in swearing in Jayalalithaa as Chief Minister the Governor did not have the benefit of the judicial wisdom of the Constitution Bench. And since the new constitutional orthodoxy is only now being affirmed, it would be unfair to hold the Governor's actions in May to the standards that did not then exist.

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Few legal experts are convinced by this line of argument. Rajeev Dhavan, for instance, points out that the Bench is dealing with a clutch of quo warranto petitions which have demanded Jayalalithaa's removal from office. Moreover, it is a fundamental fact of the judicial process that it takes infinitely less time to commit an error than for a judicial determination of error to be arrived at. But this does not mean that the consequences of the error can be allowed to persist for much longer after the judicial determination. In a case involving the public interest in good governance, it would be extremely inappropriate for the court to endorse the doctrine of prospective application, argue certain legal scholars.

Meanwhile, there has been meanwhile another sequence of dramatic events connected with the hearing of Jayalalithaa's appeal against her conviction in two cases of corruption. In the Jaya Publications and Sasi Enterprises cases, known jointly as the TANSI (or Tamil Nadu Small Industries Corporation) cases, she has been sentenced to terms of rigorous imprisonment of three and two years respectively. In the Pleasant Stay Hotel case, she has been sentenced to a year's imprisonment.

These are the original sources of Jayalalithaa's legal travails, since the two convictions in the TANSI case, being under the scope of Section 8(3) of the Representation of the People Act, resulted in her disqualification from contesting the Assembly elections held in May. Crucially, she has chosen not to contest the implicit reversal of the presumption of innocence under which she was disqualified. But all her convictions are now under appeal in the Madras High Court, where they have become the arena for bitter partisan wrangling by different elements of the Bar.

In November 2000, Justice Akbar Basha Khadri of the Madras High Court directed that her appeals against conviction should be heard "expeditiously" and disposed of within two months. Concurrently, he declined to suspend her conviction, though she benefited from a suspension of sentence for the duration of the appeals process. Legal experts affiliated with the AIADMK insist that this directive from the Bench was wantonly flouted by the prosecution while M. Karunanidhi's Dravida Munnetra Kazhagam (DMK) was in power.

Jayalalithaa's appeals were first posted before Justice S. Jagadeesan. Again there was a phase of partisan wrangling about his suitability for the case. A section of the Madras High Court Bar insisted that the appeals should be heard by a Division Bench since it involved a matter of the greatest public importance. The rival grouping denounced this demand as a thinly veiled assault on the integrity of the judiciary.

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By a ruling in July 2001, the Madras High Court held that the case for the prosecution would continue to be represented by K.V. Venkatapathi, who served as Advocate-General in the DMK government. This order was issued on the well-respected grounds that nobody could be a credible prosecutor in his (or her) own case. An Advocate-General or Public Prosecutor appointed by Jayalalithaa could not, in other words, be expected to pursue the cases against her with the necessary objectivity and dispassion.

IN mid-August, Jayalalithaa's cases were assigned to Justice R. Balasubramanian, who proceeded - in an evident effort to project a sense of purpose - to declare that he would start hearings on August 27, hear the case continuously over a period of time, and, as soon as the arguments were over pronounce judgment in open court. Unfortunately, in subsequent pleadings before the Supreme Court, this statement of intent was cast in a distinctly less favourable light: as signs of a certain frivolity or intent.

Hearings on the appeals began on the appointed day, but advocate Venkatapathi then managed to set in train a sequence of rapidly developing events that seemed decisively to scupper the Judge's intent to settle matters at the earliest. He first registered his protest in the court over the scales being tilted against him. Crucial documents had not been given to him, he said, such as the statements of the accused under Section 313 of the Criminal Procedure Code. Moreover, he had only just managed to gain access to the huge volume of case papers, running to over 2,000 pages, and needed at least a week to study them.

Justice Balasubramanian, however, indicated that he was inclined to allow the defence counsel to present their arguments, though he assured Venkatapathi that he would be given "sufficient time" to read the necessary papers. Venkatapathi then launched a flanking operation that took legal circles in Chennai completely unawares. Even while attending the court proceedings in the Madras High Court, he lodged a petition with the Supreme Court, pleading for a stay on the hearing of Jayalalithaa's appeals. Mentioning this petition before a Bench comprising Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan, Attorney-General Sorabjee described the court's denial of essential documents to Venkatapathi as "an extraordinary event". "Whether the proceedings can be termed a farce or a tragedy," Sorabjee continued, it would be "expedient in the interest of justice that these appeals are directed to be transferred from the Madras High Court to any other High Court, especially in view of the fact that the appellant is the Chief Minister of the State."

In granting a stay on proceedings, the Supreme Court took a dim view of the proceedings in Chennai. It cannot "disregard lightly" the statement of advocate Venkatapathi that he had been denied necessary case papers, said the Bench. It was improper on the part of the court to have summarily rejected his perfectly reasonable request and order at the same time that counsel for the appellant continue with his arguments. "If what is stated in the transfer petition is correct," the Judges concluded, "and in the circumstances, we have no reason, prima facie, to disbelieve it, it is appropriate that notice be issued on the transfer petition and that the continuance of the hearing of the criminal appeals be stayed."

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This was evidently a major setback for Jayalalithaa in her race to beat the six-month deadline to qualify for membership of the legislature, especially since it came before the Constitution Bench hearing the petitions against her appointment as Chief Minister had given expression to some of its deepest concerns then. When the Constitution Bench opened its hearings, Justice Bharucha thought it appropriate to mention to senior counsel Venugopal that he had received a flood of telegrams emanating from Chennai denouncing Venkatapathi as a 'liar'. To Justice Bharucha's observation that this was reprehensible behaviour, Venugopal added his own assessment that it could be "counter-productive".

When the stay on proceedings in Jayalalithaa's appeal was taken up next time, the Supreme Court evidently came to the finding that Justice Balasubramanian had followed an improper procedure. But it softened the rigour of this finding by underlining that its decision to transfer the case to another Judge of the Madras High Court was not in any way a reflection on Justice Balasubramanian's competence or integrity.

The Supreme Court also directed Venkatapathi to furnish before the registry of the High Court the list of documents that he wished to peruse for the purpose of arguing his case. Such a request was to be made before September 10 and complied with at the earliest. Following this, the hearings could begin before a Judge to be nominated by the incoming Chief Justice within a week of assuming charge. In no case, however, could the hearings begin before October 1, this being in the assessment of the Supreme Court, the earliest date by which all the precedent conditions for a fair judicial procedure could be met.

Just a day after the Supreme Court gave this ruling, Justice B. Subhashan Reddy from the Andhra Pradesh High Court was appointed Chief Justice of the Madras High Court. One of the grounds on which Jayalalithaa could have complained of undue delay has now been removed. Justice Subhashan Reddy will now have to assign her appeals against conviction to a Judge of the High Court within a week of assuming office.

With all these stipulations laid down by the Supreme Court, Jayalalithaa's political fortunes stand precariously balanced on a sequence of crucial dates. The option of quitting office after six months and being sworn in again has been eliminated by a recent Supreme Court ruling, in a case involving a Punjab Minister who had utilised precisely such a stratagem to avoid securing membership of the legislature while enjoying all the powers and prerogatives of ministership. For Jayalalithaa's failure to secure membership in the legislature before November 13 would involve her resignation or dismissal as Chief Minister.

IF the High Court were to commence hearings on her appeals on October 1 and dispose of them within a reasonable period, her status and eligibility for membership of the legislature could be clear by early November. This would enable her to make a rough estimate of the duration of the interregnum between her resignation from office and possible return to power. Of course, if the High Court were to uphold her conviction and reaffirm the sentence handed down by the trial court, this interregnum would be of indefinite duration. On the other hand, if she were to be acquitted, she would be free of all encumbrance and could contemplate a return to power within the reasonable time required for the Election Commission to conduct a byelection. If the High Court were to uphold her conviction and mitigate her sentence to a period less than two years, she would be free of the disqualification for membership of the legislature. But she may, depending upon the circumstances to be determined by the High Court, have to commence serving her sentence while pursuing her appeal before the Supreme Court. This would, to put things mildly, be a rather serious constraint on her ambitions to return to chief ministerial authority at the earliest.

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The deliberations of the Constitution Bench of the Supreme Court, of course, constitute the other main factor that has a bearing on the future of politics in Tamil Nadu. Hearings are expected to be concluded in this case some time in September, following which the Bench is expected to reserve judgment. Although it is always hazardous and generally inadvisable to speculate on the possible time-frame within which a Constitution Bench can resolve an issue of far-reaching import, a final judgment during the pendency of Jayalalithaa's appeal in the High Court cannot be ruled out. And if the observations made by Justice Bharucha and his associates on the Bench are any indication, then the Supreme Court currently seems of the mind that between popular franchise and the rule of law, the latter must necessarily take precedence. This means that Jayalalithaa's eviction from office through judicial fiat could come much earlier than the November 13 deadline.

Democratic politics, it is often said, cannot function as a proprietary business. Nor can political morality be subordinate to the personal insecurities of any politician. Jayalalithaa may well imagine that the AIADMK victory in the May 2001 Assembly elections was a mandate for her personally to govern. The party is of course a proprietary concern in which she has sole ownership rights. But in terms of democratic principles, the May 2001 verdict was a mandate for the party, which could elect anybody who has the necessary qualifications to lead it in the mission of governing the State. Jayalalithaa's personal insecurities, her own vulnerabilities and her sense of isolation prevented her from seeking this perfectly reasonable recourse in May. Today she may well find from a considerably weakened position that she really has no other option.

The TANSI cases

T.S. SUBRAMANIAN cover-story

FOR Chief Minister Jayalalithaa, two cases, the Jaya Publications case and the Sasi Enterprises case - known as the "TANSI cases" - have become a spectre haunting her for half a decade now. They form the core of her legal troubles.

The two cases relate to certain deals Jaya Publications and Sasi Enterprises, in both of which Jayalalithaa and her close friend Sasikala Natarajan are partners, had with the Tamil Nadu Small Industries Corporation (TANSI), a State government undertaking. The cases had their origin in 1993 when Janata Party president Subramanian Swamy sought permission from Governor M. Channa Reddy to prosecute Jayalalithaa on charges of corruption. Jayalalithaa was then Chief Minister heading the All India Anna Dravida Munnetra Kazhagam (AIADMK) government (1991-96).

After the Dravida Munnetra Kazhagam (DMK) headed by M. Karunanidhi returned to power in the State routing the AIADMK in the 1996 elections, the pace of investigation in these two cases was stepped up and it was entrusted to the Crime Branch-Criminal Investigation Department (CB-CID) of the State police.

The CB-CID filed the chargesheet in the Jaya Publications case on November 15, 1996. The six accused are Jayalalithaa; Sasikala; former Chairman and Managing Director of TANSI T.R. Srinivasan; former Rural Industries Minister Mohammed Asif; former Special Deputy Collector (Stamps) S. Nagarajan and Jayalalithaa's former Additional Secretary R. Karpoorasundarapandian. The charges are that Jaya Publications bought 3.07 acres of land and a building belonging to the TANSI Foundry at Guindy in Chennai below their guideline value and in the process gained more than Rs.3.5 crores. There was thus wrongful loss to the government. The State government also suffered losses because of the consequent reduction in stamp duty and registration fees payable, the chargesheet said. Jayalalithaa was Chief Minister when Jaya Publications bought the property in March 1992. The chargesheet alleged she "abused her official position at every stage" in the transaction although no public interest was involved. Since she was a public servant then, she attracted the provisions of the Prevention of Corruption Act (PCA).

The same six persons are accused in the Sasi Enterprises case. According to the chargesheet filed on October 22, 1997, the six entered into a criminal conspiracy between 1991 and 1993, and helped Sasi Enterprises in the purchase of the land, building and machinery belonging to TANSI Enamelled Wires at undervalued terms. Although the value of the land was around Rs.90.53 lakhs, the amount mentioned in the sale deed was Rs.53.04 lakhs. For the building, the sale deed was executed for Rs.16.15 lakhs against the guideline value of Rs.25.66 lakhs, the chargesheet said. The machinery too was undervalued. Thus, there was wrongful loss to the government. According to the chargesheet, Jayalalithaa and Sasikala obtained a monetary advantage of Rs.66.11 lakhs in the transaction.

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Special Judge P. Anbazhagan handed down the judgments in the two cases on October 9, 2000. He convicted and sentenced all the six accused to imprisonment in the Jaya Publications case. In the Sasi Enterprises case, five of six accused were convicted and sentenced. Asif was acquitted.

In the Jaya Publications case, the Special Judge convicted and sentenced Jayalalithaa to three years' rigorous imprisonment and a fine of Rs.10,000. He said that "the first accused dishonestly abused her office" as Chief Minister and bought the TANSI property. He added that "there was no force in the argument that TANSI was a private property". In the Sasi Enterprises case, Jayalalithaa was handed down two years' imprisonment and fined Rs.5,000. In each case, Sasikala received the same sentence as Jayalalithaa. The sentences were passed under Section 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by public servant or by 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.

The Judge held as not proved the charge under Sections 169 and 119 of the IPC. Section 169 of the IPC deals with "public servant unlawfully buying or bidding for property". Section 119 talks about "public servant concealing design to commit offence which it is his duty to prevent". The Judge ordered the confiscation of both properties.

In the Pleasant Stay Hotel case, Special Judge V. Radhakrishnan on February 2, 2000, convicted and sentenced Jayalalithaa to one year's rigorous imprisonment for her role in illegally granting exemption to the hotel in 1994 from building and hill area development control rules to enable the unauthorised construction of five additional floors to its building in the heart of Kodaikanal town.

There were five accused including Jayalalithaa. The four others were former Local Administration Minister and present Lok Sabha member T.M. Selvaganapathy; former Secretary, Municipal Administration and Water Supply H.M. Pandey; executive director of the hotel Rakesh Mittal and its chairman and managing director Palai N. Shanmugham. (Shanmugham is no more.)

Special Judge Radhakrishnan convicted all the five accused under Section 120-B of the IPC and sentenced them to one year's rigorous imprisonment. He held them guilty of conspiring to get the exemption granted. The accused were also found guilty under the PCA.

All the accused in the three cases went on appeal to the Madras High Court against their conviction and sentences. Arguments opened in the appeals on August 27 this year before Justice R. Balasubramanian. Senior Advocate K.K. Venugopal led the defence for Jayalalithaa. He said the TANSI properties bought by Jaya Publications and Sasi Enterprises fell under Alandur village (a suburb of Chennai) and not under Adyar, where the price of land was higher. So their value was much lower than claimed by the prosecution. He alleged that the market values mentioned by the prosecution for the two properties were "cooked up" and that "fixation of market price was guesswork". Several properties situated close to these two TANSI properties were sold at a price lower than these two properties.

Venugopal contended that the guideline value had no force of law. He claimed that Jayalalithaa was given to understand that she was charged with having purchased TANSI properties far below the guideline value and that only at the final stage of the trial, the prosecution changed its version to say that she purchased property below the market value. Proper procedures were not followed in amending the charges. So "prejudice" was caused to her, he said. Even accepting that the market value was Rs.7.32 lakhs a ground ( a unit of measurement comprising 2,400 square feet), it still worked out to Rs.3 lakhs a ground if the development charges were also taken into account. And Jayalalithaa did pay Rs. 3 lakhs a ground. So the property was not bought at a lesser price. Counsel added that the government had no entrustment of TANSI properties.

In the trial court, N. Natarajan, then Senior Special Public Prosecutor in the corruption cases against Jayalalithaa, argued that the Tiru. Vi. Ka. Industrial Estate (where the TANSI properties are located) was formed by carving out portions of land situated in Adyar and Alandur villages. The Tiru. Vi. Ka. Industrial Estate was brought under the jurisdiction of the Adyar Registrar. That is why both the TANSI properties bought by Jayalalithaa were registered in the Adyar sub-registry. They were brought under the jurisdiction of the tahsildar, Guindy-Mambalam revenue district. Natarajan said all this was clear from the evidence given by witnesses G. Venkatachalam and S. Dharmalingam who were examined by Jayalalithaa's counsel as defence witnesses.

Natarajan said the guideline ve value was fixed by the government. She purchased the properties when she was the head of the State government. If she did not stick to the value fixed by the government, who else was expected to do so, Natarajan asked. He said the prosecution had shown that both the guideline value and the market value were one and the same in that area at the time the TANSI properties were purchased. In 1990, Jayalalithaa had bought the Heatex Property in the Industrial Estate. She paid stamp duty for that property, accepting the guideline value of Rs. 6 lakhs a ground. In 1991, she bought the property of Idhayam Publications. In the sale deed its market value was mentioned as Rs.4.65 lakhs. Prosecution documents number 70 and 71 were marked to show that the market value of land in the industrial estate was Rs.7.32 lakhs a ground in the year the TANSI properties were bought.

Natarajan noted that the TANSI sub-committee had rejected the claim of R.R. Industries which quoted Rs.4.32 lakhs a ground to buy the TANSI Enamelled Wires property, saying it was below the guideline value (forgetting that the market value and the guideline were one and the same), and the tender was closed.

The Supreme Court has directed that arguments should begin afresh in the appeals not earlier than October 1. So Jayalalithaa's counsel has to repeat his arguments before the new Judge, who will be named, to hear the appeals. Even if the new Judge begins to hear the appeals from October 1, it will take about a week to 10 days to pronounce orders on the appeals.

On shaky ground

T.S. SUBRAMANIAN cover-story

With Jayalalithaa going through a time of legal and political troubles, Tamil Nadu faces uncertainty.

WITH orders expected in a few weeks in the Supreme Court and the Madras High Court in cases that will decide her future, Tamil Nadu Chief Minister Jayalalithaa is on a sticky wicket, legally and politically.

The All India Anna Dravida Munnetra Kazhagam, which she heads as general secretary, was in the throes of a crisis as the realisation dawned on partypersons that she had nearly run out of time to get elected to the Assembly in time to retain the chief ministership. There was gloom in its headquarters in Chennai as word spread that her legal advisers had reportedly hinted to her that she should resign. This was consequent on the Supreme Court staying on August 30 the proceedings in her appeals in the High Court and directing that another Judge should hear the appeals afresh but not earlier than October 1.

Soon Chennai buzzed with speculation on who Jayalalithaa would nominate to become Chief Minister if she were forced to step down. The names mentioned in this context were those of Electricity Minister D. Jayakumar, Education Minister M. Thambidurai and Finance Minister C. Ponnaiyan. Rumours also travelled from New Delhi that she would not nominate a sitting legislator because there was the possibility of the nominee refusing to step down later. So her choice, speculation had it, would be a non-legislator such as Visalakshi Nedunchezhiyan or Dr. V. Maitreyan, who will have to get elected to the Assembly within six months. The Intelligence wing of the State police got into the act, and spread the word that the choice was likely be Uppiliayapuram R. Saroja, Minister for Tourism.

Jayalalithaa herself remained inaccessible. Informed sources said that she was "upset" by the Supreme Court's stay on the proceedings in the High Court. She reportedly got annoyed with Ponnaiyan, who holds the Law portfolio as well, for having failed to file a caveat in the Supreme Court anticipating that K.V. Venkatapathi, Special Prosecutor in the appeals, would move the apex court.

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When the effect of the Supreme Court's stay order sank in, Jayalalithaa reacted angrily in the Assembly on September 1. She asked DMK members whether or not they had tried to influence the Supreme Court in the cases against her. She said she was not attributing motives to the Supreme Court but it had ruled against a Special Judge discharging her from the 'coal case' after the DMK government appealed against the verdict. Earlier, a Judge of the Madras High Court had upheld her discharge in the same case, she said. "How did they (the DMK) obtain the judgment? The DMK members should clarify whether or not they obtained the judgment using influence," she said.

However, realising that her rhetorical query could boomerang on her, she claimed on September 3 that newspapers had "wrongly" reported her remarks, attributing different meanings to it. She said that the DMK members had argued that her present appeals in the TANSI cases (relating to the purchase of the property of the government-owned Tamil Nadu Small Industries Corporation) should not be heard by the Madras High Court because she was the Chief Minister of the State. However, when the Special Judge discharged her in the coal case and the High Court upheld it, the DMK government appealed against it in the Supreme Court. The apex court ruled against her being discharged. "So I made a statement to the effect that DMK members should clarify whether someone would not think that the DMK, being part of the coalition government at the Centre, obtained that order," she said.

Jayalalithaa added: "I only spoke in the sense that whether those who claim that justice will not prevail in the High Court when I am Chief Minister would accept any claim that the order was obtained in the coal case using influence. I did not say anything else meaning to disrespect the court... I have never expressed any opinion about Judges when orders were passed affecting me. I have never found fault with any court. I respect every Judge. I fielded a retired Judge of the Supreme Court as a candidate of the AIADMK in the Lok Sabha elections (in 1999). I have not said anything in this House attributing motives to Supreme Court Judges."

Jayalalithaa was on shaky ground on the political front also. The Pattali Makkal Katchi (PMK), which was an important constituent of the AIADMK-led front in the Assembly elections in May, has pulled out of the alliance. G.K. Moopanar, president of Tamil Maanila Congress (TMC), another key ally of the AIADMK, died on August 30 (obituary on page 118). The TMC has elected G.K. Vasan, son of Moopanar, as party president. But Vasan's leadership qualities are untested. Some senior TMC leaders, who were against Vasan being anointed party president, want the party to merge with its parent, the Congress(I). These factors could affect the AIADMK's prospects in the panchayat elections, which are scheduled for October 16 and 18.

Although PMK founder Dr. S. Ramadoss, after quitting the AIADMK alliance, was speaking about forming a third front, it looks certain that the PMK will return to the National Democratic Alliance (NDA) led by the DMK in Tamil Nadu. M. Karunanidhi, DMK president and former Chief Minister, said on September 9 that there were "chances" of the PMK joining the NDA in the State. He said: "We cannot say anything pointedly about other parties." This was seen as a barb aimed at the Marumalarchi Dravida Munnetra Kazha-gam (MDMK), which too left the DMK-led front before the Assembly elections. MDMK general secretary Vaiko maintains that his party will not have ties with either the DMK or the AIADMK in the panchayat elections. But sources in the Bharatiya Janata Party say that its State general secretary L. Ganesan will try to bring both the PMK and the MDMK into the NDA. If that happens, the NDA will be stronger in Tamil Nadu. However, the Dalit Panthers of India, headed by its convener R. Thirumavalavan, and the Puthiya Tamizhagam, another Dalit-based party in the DMK front, oppose the return of the PMK.

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The AIADMK is bound to feel the loss of the support of key sections of the Vanniya community, the main support base of the PMK. The TMC leaders themselves admit that the party's entire vote share (about 10 per cent) may not be transferred to the AIADMK.

Besides, the Congress(I) in Tamil Nadu has hardly been warm in supporting its ally. E.V.K.S. Ilangovan, TNCC president, has been trenchant in his criticism of the AIADMK. Addressing a public meeting in Chennai on late Congress leader K. Kamaraj's birthday on July 15, Ilangovan went to the extent of declaring that the two Dravidian parties (the DMK and the AIADMK) "should be sent home". He also said that the Congress(I) would like to contest the panchayat elections on its own. These observations drew a sharp response from AIADMK leader K.A. Sengottaiyan, who appealed to Jayalalithaa "not to have any ties with the Congress as long as Ilangovan remains TNCC president".

P. Chidambaram, president of the TMC Democratic Forum and former Union Finance Minister, alleged that Jayalalithaa "did not provide good governance" in the 115 days in office, noting that she had spent her energies in fighting legal battles. She did not attend the National Development Council meeting in New Delhi and the Chief Ministers' conference convened by Prime Minister A.B. Vajpayee. Nor did she meet the Deputy Chairman of the Planning Commission to finalise the State's Plan outlay. The State was "perilously close to a debt trap," Chidambaram said. The State Budget did not announce any new investments in industries or any programme to tackle unemployment, he pointed out.

What will be comforting for Jayalalithaa is that the Communist Party of India (Marxist) and the Communist Party of India (CPI) will continue to be firm allies.

AIADMK sources fear that the grip of the Sasikala family on Jayalalithaa will increase if she resigns. Sasikala, a close friend, lives with Jayalalithaa at Poes Garden, Chennai. After the AIADMK lost power in the 1996 elections, the party split. Several top leaders left the party, alleging that Sasikala's family was virtually running the party. The lavish wedding celebration of V.N. Sudhagaran, Sasikala's nephew and Jayalalithaa's erstwhile foster son, in Chennai in September 1995 caused revulsion among the people in Tamil Nadu.

After Jayalalithaa became Chief Minister in May, there were indications that she was distancing herself from Sasikala. Unlike in her previous tenure when the Chief Minister came to the Secretariat infrequently and officials and Ministers had to meet her at home, she works in the Secretariat almost every day now. Party sources said that she was keen on providing an efficient government and so was keeping Sasikala's family at arm's length. But at a recent wedding function of a relative of Sasikala, Jayalalithaa pointedly referred to Sasikala's suffering for her sake.

Some larger questions

A.G. NOORANI cover-story

Transcending the facts of the unique and unprecedented sets of litigation arising out of Jayalalithaa becoming the Chief Minister of Tamil Nadu, two questions touch the core of India's democratic polity governed by the rule of law.

WHILE the issues of law and fact in the two parallel sets of litigation arising out of Jayalalithaa's swearing-in as Chief Minister by Governor M. Fathima Beevi on May 14 are important in themselves, transcending the facts of this unique and unprecedented case are two issues which touch the core of India's democratic polity governed by the rule of law.

Jayalalithaa was convicted on October 9, 2000 in the two cases involving the purchase of TANSI property, the Jaya Publications case and the Sasi Enterprises case, and sentenced to three years' and two years' rigorous imprisonment respectively in these. She was also sentenced to one year's imprisonment in the Pleasant Stay Hotel case. The first case alone sufficed to disqualify her from contesting an election to any legislature, under Section 8(3) of the Representation of the People Act, 1951. It disqualifies one who is "convicted of any offence and sentenced to imprisonment for not less than two years from the date of such conviction" and for six years after release. Article 191(e) of the Constitution adds a constitutional bar to the legal bar: "... if he is so disqualified by or under any law made by Parliament." The Act (Section 8(4)) pointedly made a different provision for a sitting legislator since he loses an existing office unlike a candidate who loses only a prospect of victory. In the case of a sitting legislator the bar begins three months after conviction unless an appeal has been filed.

Section 389(1) of the Criminal Procedure Code empowers the appeal court to suspend the conviction or sentence or both on admission of the appeal. The Supreme Court ruled in 1995 in the Narang case that the appellant must explicitly ask for suspension of the conviction and candidly state the reason for the plea. No such suspension of conviction was applied for or granted by Jayalalithaa, admittedly. Nor did she make any earnest effort to secure expedition of hearing of the appeal, soon after October 2000, though she knew the imminence of the elections to the State Assembly. Instead, she relied on the obiter of a single Judge, vague in itself, while filing her nomination papers. All four were rejected. She was sworn in Chief Minister all the same, invoking Article 164 of the Constitution. It, however, grants a six-month grace period to acquire the qualification of membership of the legislature; not to shed a disqualification existing at the time of swearing-in.

The two parallel proceedings before the Supreme Court arise out of: (a) petitions filed in the public interest challenging the legality of her appointment as Chief Minister, and (b) the court's intervention in proceedings before the Madras High Court in her appeals against the convictions. If Jayalalithaa's appeals had been decided in her favour before the petitions in the Supreme Court were heard, they might have rendered the petitions infructuous. For, an acquittal on appeal wipes out the conviction retrospectively from the date on which it was pronounced. Hearings on the PIL petitions in the Supreme Court began on September 4. Hearings on the appeals before Justice R. Balasubramanian of the High Court on August 27 took an unfortunate turn in two respects. The Judge declined a request by the Special Prosecutor, K.V. Venkatapathi, for at least a week's time to peruse the 2,245 typed sheets of case papers he had been given. Moreover, some vital documents were missing in the set of papers. Besides, the Judge laid down a fixed time-frame for the hearing - assigning three days to each side - and declared that he would pronounce judgment immediately thereafter in open court.

Venkatapathi moved the Supreme Court for transfer of the appeals to some other High Court. By its order of August 30 the court stayed the proceedings in the High Court. The Bench comprised Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan. Any hopes Jayalalithaa had of victory in the appeals before September 4 were dashed.

Jayalalithaa moved the Supreme Court to vacate the stay. On September 3, the court posted her application for hearing on September 7 and on that day the court made an order by consent of the parties. The appeals will now be heard in the Madras High Court itself but by another Judge. The hearings will not begin before October 1. The Special Prosecutor must be given the missing documents before September 18. The order, the court clarified, implied no aspersion on the Judge. But the Bench remarked that "if a judge makes such a statement (about pronouncement of judgment in open court) before knowing the complexities of the matter, we have no hesitation in allowing what has been prayed for by the petitioner."

Jayalalithaa must get herself elected an MLA by November 13 if she is to retain her office as Chief Minister. The Supreme Court's ruling in S.R. Chaudhuri vs State of Punjab and Others, on August 17, bars her re-appointment for another six months. Her counsel pleaded strenuously that the hearings of appeals should commence a little earlier since she was racing against time. The Bench then observed: "We understand all that. But that does not mean justice will not be done." With the Puja holidays for the court to run from October 19 to 29, she does face a gruelling race against time.

BY the time this appears in print, the five-member Constitution Bench of the Supreme Court will, in all probability, have completed hearings on PILs and reserved its judgment. Meanwhile, as the litigation has progressed, two issues of fundamental importance have come to the fore. One concerns the integrity of the prosecution. It is a disgrace that in India - unlike in the United States and Britain - the prosecutor works under the thumb of the state. It is surely odd that the head of the state's executive should be prosecuted by a lawyer in the service of the state. That is why in the hawala case in 1996 the Supreme Court made a series of orders on public interest litigation petitions, directing the Central Bureau of Investigation (CBI) to report to the court and forbidding the closure of any probe or prosecution except with its consent.

On July 24, 2001, the First Bench of the Madras High Court, comprising Chief Justice N.K. Jain and Justice P. Thangavel, made a historic order on a petition filed by the Alandur Municipal Chairman, R.S. Bharathi, who apprehended that the prosecutors appointed by the Chief Minister would not present the case effectively. They appointed the former Advocate-General under the Dravida Munnetra Kazhagam (DMK) government, Venkatapathi, as Special Public Prosecutor in place of the State Public Prosecutor, S. Gomathinayagam, on "the principle that justice should not only be done but also seen to be done".

This principle was brazenly violated in the Kissa Kursi Kaa case in which Sanjay Gandhi and V.C. Shukla figured as accused. On February 27, 1979, the District and Sessions Judge convicted both of a conspiracy to destroy the prints and negatives of the film and sentenced them to two years' rigorous imprisonment and fine. A three-member Bench of the Supreme Court started hearing of their appeals on November 26. Indira Gandhi returned to power in January 1980. The Special Public Prosecutor, Ram Jethmalani, who had conducted the case in the trial court, was removed from the position. In his place was appointed Joginder S. Wasu. The Press Trust of India reported that Wasu "folded up his arguments within 15 minutes in reply" to the arguments of the appellants' counsel. The court allowed the appeals. It was a pathetic judgment which the Supreme Court delivered.

In the hawala case and in Jayalalithaa's case, judicial intervention secured the appointment of prosecutors who would command public confidence (without implying any aspersion on the incumbents). But we need to reflect on the need for institutional reforms - an independent Director of Public Prosecutions.

Even more far-reaching in its import and consequences, however, are the Supreme Court's observation during the hearings of the case on September 6. At the repeated assertion of counsel for Jayalalithaa K.K. Venugopal, that the "will" of the people must be respected, the Bench observed: "We are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people's mandate... Please consider what you are saying - that regardless of conviction she has won the elections. Today, it is a question of two to three years. Tomorrow, it may be a sentence for murder. Are we left with no standards at all?" (The Hindu, September 7). The Judges also said "the Constitution is above people's will" (The Telegraph, September 7).

This is a problem as old as Greek democracy. On her conviction of electoral offences by Justice Jag Mohan Lal Sinha of the Allahabad High Court on June 12, 1975, Indira Gandhi took the matter to "the people's court" and organised rallies in her support. The Sangh Parivar discounts the rule of law. No court is competent to pronounce on the Ayodhya issue, it has long held. It has now reverted to its earlier demand for legislation - a law passed by the majority of the day to resolve a dispute politically.

The doctrine of "the people's will" has been invoked by corrupt demagogues throughout history. It has been invoked by corrupt politicians to cock a snook at the courts, most notably the U.S. Congressman Adam Clayton Powell who had in Harlem a constituency that would always vote for him regardless of his misdeeds. On the other hand, it is not for unelected judges to usurp the legislative power and thwart the popular will.

Dr. B.R. Ambedkar told the Constituent Assembly on October 14, 1949: "It is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties." In plain words, none of the three is supreme; only the Constitution is.

Articles 75(2) and 164(1) of the Constitution provide respectively that Union Ministers including the Prime Minister and State Ministers including the Chief Minister "shall hold office during the pleasure of" the President and the Governor respectively. Explaining this phrase in the Constituent Assembly on December 31, 1948, Dr. Ambedkar said: "It would be perfectly open under that particular clause... for the President to call for the removal of a particular Minister on the ground that he is guilty of corruption or bribery or maladministration, although that particular Minister probably is a person who enjoyed the confidence of the House" (Constituent Assembly Debates, Volume VII, Page 1,186).

Dr. Ambedkar added: "I think honourable members will realise that the tenure of a Minister must be subject not merely to one condition but to two conditions. And the two conditions are purity of administration and confidence of the House. The Article makes provision for both..."

Dr. Ambedkar proceeded immediately to explain the reasons for allowing the six-month grace period. Significantly, he mentioned: "A person who is otherwise competent to hold the post of a Minister has been defeated in a constituency." He did not envisage a convicted person being allowed a grace period, only a competent person.

THE U.S. Supreme Court's judgment in the Dred Scott case provoked the Civil War. Judges can err. India's Supreme Court has repeatedly erred, especially on the process of appointment of judges. But it has also rendered yeoman service in upholding the rule of law. Its observations on September 7 were made in this fine tradition. The popular will cannot subvert values or stifle the individual's conscience.

Justice Robert H. Jackson of the U.S. Supreme Court once said: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein... The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, and place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections" (West Virginia State Board of Education vs Barnette 319 U.S. 624, on page 641 (1943)). This is also the raison d'etre of the doctrine of an unamendable "basic structure" of the Constitution. No constitutional amendment can build a temple or establish Hindutva.

The logic applies to Parliament no less. Its "sovereignty" is limited by the Constitution. Its privileges cannot override the citizen's fundamental rights. One hopes the court will incorporate its observations of September 7 in its judgment.

WHAT of the future? It is highly probable if not certain that Jayalalithaa will have to stand down as Chief Minister; the odds in the case before the Supreme Court are heavily against her and it is unlikely in any case, that the Madras High Court will decide her appeals in time for her to notify the Election Commission (21 days) to hold a byelection. If she wins the appeals, the interregnum of a remote-controlled Ministry will be short. If she fails, it will be a while before her appeal thereafter to the Supreme Court is heard. She will go to jail meanwhile.

What if her nominee, as Chief Minister, advises the Governor to grant her pardon? That will raise a constitutional issue of grave importance.

On September 5, the Supreme Court posed three questions on the consequences in the event of her appointment being declared invalid and asked Attorney-General Soli Sorabjee to address them. They concern the fate of her Council of Ministers; the alternative arrangement after her departure; and the consequences of her removal.

It is submitted that the Council of Ministers is dissolved as soon as its head is removed. The Governor must then invite anyone else from the All India Anna Dravida Munnetra Kazhagam (AIADMK) who is elected as leader to form a government. It is open to the court to declare that actions taken since May 14 by the departing Chief Minister are not void merely because her appointment is nullified. If the AIADMK refuses to elect a new leader, a deadlock will arise with every prospect of imposition of President's Rule and fresh elections. It is to be hoped that good sense will prevail, for a grave crisis will arise if in such an event the Rajya Sabha refuses to ratify the Proclamation imposing President's Rule. One hopes things will not descend to that level.

Jayalalithaa is the sole architect of her misfortunes. Her present travails are due entirely to her politics of hubris, opportunism and vengeance.

Kudremukh

other

Kudremukh Iron Ore Company Limited (KIOCL) has wreaked havoc on the Western Ghats ("Kudremukh concerns", September 14). The shape of the hills has been altered irretrievably and surface and underground water has been contaminated. The mining activity has dealt a severe blow to the flora and fauna of the Malnad forests. Some of the evergreen forests are lost for ever.

The sooner KIOCL stops its mining activities, the better. What the country has earned by way of foreign exchange from the export of iron pellets is nothing compared to the long-term loss of natural wealth.

The State and the Central governments should not renew the licence for mining. The KIOCL infrastructure may be used to set up small-scale units that are eco-friendly.

D.B.N. Murthy Bangalore AGP and scandals

This has reference to "The AGP and some scandals" (September 14). There are countless cases of bigamy going unnoticed in India. Prafulla Kumar Mahanta being a public figure, his act of bigamy has received media attention. This a one more example of mud-slinging in politics.

Tapan Chakraborty Mumbai Animal protection

The article "A campaign to protect animals" (September 14) was informative. The plight of animals in India is indeed alarming. The manner in which they are treated and slaughtered deserves condemnation. Protection of animals must get top priority and there should be norms governing their slaughter.

Abhijeet D. More Nashik Drug trials

The case of drug trials at the Regional Cancer Centre, Thiruvananthapuram, is disturbing ("Drug trials and ethics", August 31). Some scientists, in connivance with medical institutions, are vying with one another and employing unethical methods to develop drugs for cancer and make huge profits. The erring scientists and their accomplices should be punished for exploiting innocent people.

G.E.M. Manoharan Coimbatore Secular education

The Safdar Hashmi Memorial Trust (Sahmat) needs to be congratulated on having taken the initiative to organise a major convention in New Delhi against the communalisation of education ("Secular challenge", August 31). The concern expressed by the participants is shared by all right-thinking people of India. It is sad that institutions responsible for shaping the content of education are sought to be influenced by the Sangh Parivar. "Value Education" is a euphemism for religious education. The participation of the Education Ministers of nine States and Union Territories added significance to the convention.

In the monsoon session of Parliament, some allies of the Bharatiya Janata Party joined the Opposition in warning the Union government that mixing religion and education would have dangerous repercussions. The decision to introduce astrology and Vedic science as subjects of study at the university level too came under attack.

The scientific community has expressed its concern and apprehensions in this regard. Its views must be given due importance in formulating education policy.

Onkar Chopra New Delhi * * *

The BJP-led government's propaganda equating Indian nationalism with Hinduism is akin to Hitler's propaganda equating German nationalism with Nazism. Like the Nazi government, the NDA government has been using all sorts of methods - such as the distortion of historical facts and the introduction of Hinduism-oriented courses - to legitimise Hindutva.

At this juncture, all secular and democratic political parties, organisations of women and students and the intelligentsia must come forward to resist any move that might ruin the federal polity and the secular character of our country. The Safdar Hashmi Memorial Trust (Sahmat) has taken a positive initiative to expose the motives behind the NDA government's education policy. The spirit of the Sahmat convention has to be sustained to save our country from the claws of Hindutva ideologues.

A.S.M. Khairuzzaman Lanka, Assam Reservation in Parliament

The reservations expressed by some Members of Parliament about the proposed move to lift the freeze on the number of Lok Sabha and Assembly seats reserved for the Scheduled Castes and the Scheduled Tribes sound justified ("A Bill with limitations", August 31).

The Constitution (91st Amendment) Bill seeks to freeze until 2026 the total number of seats in the Lok Sabha and the State Assemblies and the number of Lok Sabha seats from each State. This is to motivate State governments to pursue the goal of stabilising the population. If the same logic is applied to different communities, the number of seats reserved for the Scheduled Castes in the Lok Sabha should also be frozen. But it is going to be increased from 81 to 88. Although the move is unfair, no political party is making it an issue.

The provision for reservations was incorporated in the Constitution as a temporary measure. But the extent of reservation has been increased and its timeframe has been extended. As it is politically impossible to stop reservations at one go, they must be gradually withdrawn. Increasing the number of reserved seats in Parliament will take the country backward.

Avuthu Srihari Secunderabad The right to dissent

Arundhati Roy and Medha Patkar should be commended for asserting their right to dissent. The Supreme Court had in a majority judgment ruled in favour of increasing the height of the Sardar Sarovar dam. There were judges of the same Bench who did not agree with that judgment. If the Supreme Court Judges have the right to dissent, why is it denied to ordinary citizens?

The right to dissent is sacred in a democratic society. In fact, it is a prerequisite for such a society. It is the freedom of the opposition and not the ruling party that proves the democratic credentials of any civil society. Indeed it is the ruling party's foremost responsibility to see that the opposition functions freely and fearlessly. During the Emergency, the Congress failed in this litmus test, and it is still paying the price for it.

In the Narmada cases, even the majority Judges went by the letter and spirit of the law. If the law is inadequate to protect the legitimate needs and rights of citizens, it should be amended or changed. The judiciary cannot do this. Only the people can change the law through Parliament.

A section of the public strongly feels that the Supreme Court judgment is insensitive to the legitimate rights and needs of people affected by the Narmada project. As detailed in the article "Of contempt and legitimate dissent" (August 31), many people who criticised the courts in the past were sentenced to jail terms. In some of these cases, the criticisms were within the boundaries of legitimate dissent. The courts are part of a greater democratic set-up, where the will of the people is supreme. As rightly described by Arundhati Roy, any action that is contrary to this is an insult to the citizen.

P.J.J. Antony Jubail, Saudi Arabia The Nizam's jewels

This is with reference to the article "The Nizam's jewels" (August 3).

We would have expected an article in a magazine of standing like yours to reflect an adequate awareness of the facts and circumstances that eventually led to the acquisition of the exquisite art collection of the Nizam's Trust by the Government of India. On behalf of the HEH The Nizam's Jewellery Trust, I would like to draw your attention to the following points to enable you to publish the correct version in the interest of truth and fairness, and bring into proper focus the part played by the trustees of the HEH The Nizam's Jewellery Trust.

1. The references made in the article to a certain official of the National Museum, Dr. Sihare, seem to bestow on him a degree of importance not warranted by the facts of the case. In fact, this official placed hurdles in the way by lending support to a public interest petition filed in the Supreme Court by certain interested parties claiming that the jewellery was not the personal property of the Nizam. Frivolous as it was, the case was dismissed by the Supreme Court after a number of hearings, but it caused delay.

2. The sequence of events leading to the purchase of the art collection by the Government of India would bring into the correct perspective the positive role played, more than anyone else, by the Trustees of the HEH The Nizam's Jewellery Trust. As early as July 1972, the trustees wrote to Prime Minister Indira Gandhi offering the exquisite art collection consisting of 173 items of jewellery to the Government of India so that it could be retained within the country as a part of our national heritage. On the basis of the recommendations made by several expert committees, the Government of India decided to buy only a few selected items which were the cream of the collection. This, however, did not materialise owing to the intervention proceedings in the Supreme Court. Meanwhile, in March 1978, the Government of India informed the trustees that it was not interested in the purchase of the art collection. As a result, the trustees held an auction in 1979 under the supervision of the Finance Secretary, Government of India. Before the bid by a foreign buyer could be accepted, the auction was cancelled by an order from Prime Minister Charan Singh. The trustees once again displayed a constructive attitude by agreeing to accept arbitration under a compromise agreement with the Government of India. After protracted proceedings before the arbiter and the Supreme Court, the government finally acquired the art collection by paying a compensation of Rs.218 crores in terms of the arbitration award - a figure very much below its value in the international market then.

3. The caption for the photograph of the Nizam on page 99 is inaccurate. The children in the photograph are the sons of the Nizam - Prince Azam Jah Bahadur and Prince Moazzam Jah Bahadur - and not, as mentioned in the caption, Prince Mukarram Jah and Prince Muffakham Jah, who are the grandsons of the Nizam. The caption skips an entire generation in one sweep.

It would be clear from the above statements that the trustees played a key role in the implementation of the compromise agreement. The trustees were conscious of their first responsibilities to the beneficiaries to get a full and fair price for the items and to do so without delay. They sought to achieve this while also acting in the national interest at every stage of the case. Motivated by this desire, the trustees offered the collection to the government for purchase so that it could remain in the country as a part of the national heritage.

M.A. Hadi Trustee, HEH The Nizam's Jewellery Trust Hyderabad

Legal reforms

In a well-written article, R.K. Raghavan describes with precision the various dimensions to the killing of Phoolan Devi ("Fundamental issues", August 31).

Legal reforms are delayed by successive governments. Media reports put the total number of cases pending in Indian courts at 24 million. The average time taken to settle a case is 20 years. As such, hard evidence against the culprits in a case is difficult to come by and the delay makes the task even more difficult. Taking advantage of the loopholes or the lack of evidence, offenders often go scot-free. In the process, victims are denied justice and, worse, sometimes innocents find themselves in jail. In order to keep pace with the changing times and also give timely justice to the citizens, legal reforms are the need of the hour.

As far as VIP security is concerned, each VIP is bound by certain security protocols, which may be ignored at their own peril. Phoolan Devi ignored them. Indira Gandhi was reported to have been advised to replace her personal security guards after Operation Bluestar. She did not do so, and the consequence was swift and telling.

The most vital aspect of this debate is the protection of those who are supposedly being victimised - Phoolan Devi, for instance. It is time to come down heavily on those playing havoc with the social fabric of India.

Ravi Kumar Mangalam Delhi Jnanpith Award

The article on the life and works of Indira Goswami (Mamoni Raisom Goswami), the narrator of the joys and sufferings of the people of South Kamrup in Assam ("The texture of life", August 31) was timely. The Jnanpith Award for her is well-deserved. We are proud of her.

Hafiz Ahmed Dipanjali Goswami Amranga, Assam Economics

Referring to the forays being made by the new development economics, Jayati Ghosh suggests that a better way of expending intellectual energy might be to develop alternative ways of addressing the still fascinating and relevant issues of growth, development, structural change and inequality in all economies, especially those not characterised as "developed" ("A focussed revival", August 31). She says that such alternatives would give greater precedence to the role of history, to the interplay of political and social forces with economic institutions and processes and to the class interests and distributional conflicts which reflect and determine economic patterns.

These perceptions are unexceptionable by and large. It needs to be pointed out that since the mid-1980s, and particularly since the 1990s, independent think tanks and departments of economics in some universities in the West have actively taken up in-depth studies to promote non-orthodox economics of the genre mentioned by Jayati Ghosh. A representative list of such institutions is given in Real Life Economics - Understanding Wealth Creation (edited by Paul Ekins and Manfred Max Neef, and published by Routledge, London, and New York). Wolfgang Sachs, Amitai Etzioni, Herman Daly, Mark Lutz, Ian Miles, Anizur Rehman and Ponna Wiagnaraga are some of the political and development economists of the alternative typology.

It also bears mention that although Amartya Sen was awarded the Nobel Prize for his exceptionally exclusive contributions to welfare economics, providing/restoring ethical focus, his latest book Development as Freedom tends to be a foray into alternative economics (divorced in some measure from the mainstream classical and neo-classical economics as also Marxian Economics), which is essentially humanistic in content and character.

K. John Mammen Thiruvananthapuram DPEP

Dr. Anita Rampal's article "An educative experience" (August 17) on the District Primary Education Programme (DPEP) in Kerala is a far cry from the reality. She seems to be blissfully unaware of the fact that the DPEP is now on in all the districts of Kerala. To begin with it was introduced in the three districts of Malappuram, Wayanad and Kasaragod in 1994 by the then United Democratic Front government led by A.K. Antony. The Left Democratic Front Ministry, which was recently voted out of power, was widely expected to discontinue the World Bank-funded DPEP. But, to the consternation of many, it implemented the programme all over the State with added vigour and enthusiasm. Now the new Education Minister, Nalakathu Soopy, in consultation with well-known educationists and heeding popular voices of dissent, has decided to ease out the DPEP. And there is a point.

As N.A. Karim, a prominent dissenter, has pointed out, a great mistake of the DPEP is that it sought to do away in one day with a system that had been in force for decades. Not that the age-old system should have been left undisturbed. The change should have been brought about in stages, based on a curriculum and a syllabus most suited to the nation's needs. Most government-run and aided schools, in which the programme was introduced, are in a pathetic condition, with leaking roofs, inadequately furnished classrooms, and a class of teachers not willing to take the DPEP to fruition. Making matters worse is the fact that a great number of those who attend these schools are poor children. They certainly find it difficult to adjust to the new programme. True, some children who are naturally quick learners will show good results. But they will show the same results whatever may be the programme they are exposed to. My own children are studying under the DPEP, and I am for changes with respect to the contents of the textbooks, the methods of teaching, the method evaluation, and so on.

Strangely, one finds the children of those who clamour for the DPEP attending English-medium schools; they include the children of certain regional leaders of the progressive movement, the Kerala Sastra Sahitya Parishad, and many DPEP teachers.

The team, of which Anita Rampal was a part, was shown around a select few of the DPEP and non-DPEP schools by the very same agency implementing the programme, namely the Primary Education Society of Kerala (PEDSK). No wonder, here is the voice of the master.

K.M. Ajir Kutty Edava, Kerala * * *

The article "Abandoning a reform measure" (August 3) praises the DPEP and expresses concern about its future under the United Democratic Front. In the last two years several articles have appeared in magazines and newspapers about the DPEP, highlighting its innovative features.

I do not live in Kerala, nor do I have a first-hand experience of this programme. However, I have discussed it with relatives and friends whose children study in DPEP schools. The impression I got was that many parents were initially enthused by the reform measures, expecting that the promised changes would improve the standard of education, which was on the decline. Then, disillusionment set in. They were shocked to find that their wards were not learning even what they used to learn earlier. The textbooks were full of comic stuff, there was no evaluation, and reading and writing practice was inadequate - these were some of their complaints against the new system.

They were not amused by the queer experiments that were being carried out on their children.

I found on the Internet that similar projects were on in many countries, mostly in the Third World. What surprised me more was the frequency with which catch phrases such as 'learn how to learn', 'child-centred activity-based pedagogy' and 'joyful learning', which were supposed to have an indigenous origin, kept popping up in World Bank documents published much in advance of the implementation of the programme in Kerala.

A question naturally came to my mind: Why should the World Bank, a financial agency whose humanitarian credentials have often been questioned, be so concerned about primary education in India? It provides a loan of Rs.40 crores to a district under this programme. The Bank is not exactly known for its generosity and kindness. The point is that the World Bank does not stop with merely financing the DPEP. It dictates what is to be done. It aims to restructure and change the educational system in such a way as to suit the needs of those who will gain most from a new globalised economic system. This is clear from the policy documents of the World Bank. Reports from Latin American countries where such educational reforms were carried out reveal that these have adversely affected the public education system and led to the privatisation of education. After all, all-out privatisation, including that of social welfare institutions, is one of the thrusts of the globalisation-liberalisation policy.

I feel that this reform measure, aided massively by the Bank, may not be as innocuous as it appears to be. We must critically examine this programme without getting carried away by its catchy terminology. It is true that our education system needs to be reformed but that is not a task to be left to the World Bank.

George Joseph Kalpakkam, Tamil Nadu

The price of safety

FACED with mounting criticism over a spate of railway accidents, the Union government announced a hike in railway fares on August 29. Ironically, the government, which has been repeatedly charged with neglecting the safety aspect, reassured passengers that the fare hike was intended for their own safety. The hike - termed a surcharge that will be imposed for the next five years - is expected to increase the Indian Railways' revenues by Rs.1,000 crores in a full financial year and Rs.500-600 crores in the current fiscal.

Minister for Railways Nitish Kumar announced that the Union Finance Ministry would contribute Rs.12,000 crores by way of grants to the newly established Rs.17,000-crore Special Railway Safety Fund and the remaining Rs.5,000 crores would come from the revised fares, over a period of five years. Although the invocation of safety concerns gave a sugar coating to the fare hike, there is concern that the establishment of the fund hardly measures up to the response that the Railway Safety Review Committee, headed by H.R. Khanna, sought from the government in 1999 (Frontline, August 3, 2001). Moreover, the failure of the Finance Ministry to make any categorical commitment on a schedule of disbursements for the fund is galling to passengers, who have been asked to participate straightaway in building the Fund. The Finance Ministry has not indicated its commitments in detail over the next five years. Indeed, doubts have been expressed whether the Ministry will keep its promise.

The fare hike flies in the face of the Khanna Committee's recommendation that the "Central government provide a one-time grant to the Railways so that the arrears in the renewal of tracks, bridges, rolling stock and signalling gear are wiped out." The committee observed that the Railways "is not in a position to fully finance the level of investment required".

Mamata Banerjee, Nitish Kumar's predecessor in the Railway Ministry, had established a fund while presenting her last Railway Budget. During the current fiscal this fund was projected to amount to Rs.303 crores. Critics say that another fund with another name is unnecessary.

The crux of the Khanna Committee report is that rail safety in the country is an area that needs urgent investment - in new stocks of assets. Almost every category of the Indian Railways' assets is in need of not just repair but outright replacement. This applies not just to its aged rolling stock but to tracks, signalling gear and bridges. The committee emphasised that the Railways could not replace overnight such a huge backlog. For the sake of safety, the committee recommended that the government step in and take the responsibility for the replacement of overaged stocks. In doing this, the committee was also guided by the fact that the Railways cannot function on purely commercial lines.

The Indian Railways, contrary to its general portrayal as a bleeding business venture of the Indian state, actually makes a substantial operating profit. For instance, the last Railway Budget envisaged that the Railways would earn traffic receipts amounting to about Rs.40,000 crores during the current year. After accounting for expenditures, the Railways are projected to be left with a surplus of Rs.2,183 crores. The Railways, after accounting for dividend amounting to Rs.1,352 crores, are projected to have a surplus of about Rs.830 crores. Of this, Rs.511 crores is for appropriation to the Railway Development Fund, Rs.303 crores to the Railway Safety Fund established by Mamata Banerjee and the remaining Rs.17.43 crores to the Capital Fund. Apart from these, there is the Depreciation Reserve Fund. Since all these funds are basically meant to bring about a regeneration of capital assets, the expenditure from each has implications for safety. The classification of Plan heads in the Railway Budget allows for investments under heads that have a bearing on safety in the Indian Railways. Thus, track renewal, bridge works, rolling stock and other heads figure separately in the Budget.

Critics of the government suggest that the fare hike is nothing but an ill-concealed attempt at resource mobilisation in the face of a serious threat of the last Budget's calculations going haywire. They fear that the hike will enable the Railway Ministry to shuffle allocations for heads that have a safety implication into the new safety fund without actually incurring additional expenditure. Meanwhile, the Finance Ministry's commitment, spread over a rather long time scale of five years, raises doubts about whether the Fund will actually result in safer rail travel. The only thing that is certain is that passengers will pay more with immediate effect.

The regressive nature of the fare hike has attracted criticism. The uniform surcharge of one rupee on every "originating passenger"(simply put, any passenger who buys a journey ticket) travelling to a distance of up to 500 km implies that the burden will fall heavily on short distance travellers, particularly those commuting by suburban trains. In percentage terms, the rate of increase will be heavy for these commuters. For instance, a passenger who used to pay Rs.4 for a trip in the Mass Rapid Transit System (MRTS) in Chennai will now have to pay Rs.5 (including one rupee as surcharge), implying an increase of 25 per cent. By any standard, this is a steep increase. Second class season ticket holders travelling on such rail systems will have to pay Rs.10 as surcharge. In effect, the surcharge will affect low- and middle-income passengers more than others.

The impact of this sharp increase in fares could have other consequences, which have a bearing on safety. R. Elangovan, working president of the Dakshin Railway Employees Union (DREU), told Frontline that the fare hike would result in suburban rail passengers being "chased to the roads" because of the wider differential between train and bus fares.

Some lessons from 1900

ARUN BAPAT science-and-technology

THE earthquake of January 26, 2001 caused unprecedented damage in Gujarat. The neighbouring State of Rajasthan and the Sind province in Pakistan were also affected badly. The tragic seismic contingency has had another fallout. It instilled seismic awareness in the people and in the administrators. This is evident from actions taken by various State governments and other agencies for disaster management.

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The Assam government has plans to establish a disaster mitigation cell. The Punjab and Himachal Pradesh governments have issued orders that seek to ensure that any new civil construction is carried out in accordance with the recommendations of the Bureau of Indian Standards. States like Uttaranchal are drawing up plans for disaster mitigation. The Disaster Mitigation Institute in Bhopal, which could not do any remarkable work when an earthquake rocked Jabalpur in May 1997, is preparing itself to face any such eventuality in the future. Parliament has appointed a committee to study issues related to disaster management, under the chairmanship of Sharad Pawar, who as the Chief Minister of Maharashtra did excellent work in disaster mitigation after the Latur earthquake in 1993.

Most disaster management plans concentrate on the post-disaster situation, which principally involves the three basic operations of rescue, evacuation and rehabilitation. Logically, any disaster mitigation plan must comprise measures that have to be taken before, during and after a disaster. Unfortunately, the first two stages are either given marginal importance or totally forgotten. This was clear from the experiences at Latur and Bhuj. The governments of Gujarat and Maharashtra have spent about Rs.2,000 crores each on rehabilitation during the post-seismic period. But they do not seem to have thought of establishing institutes to do research on earthquakes or disaster mitigation in the affected areas or in other locations. Establishing such an institute would cost hardly Rs.5 crores, which could have been easily set aside from the funds they received in the form of aid.

Until 1967, most of the engineers and scientists in the country were under the impression that peninsular India was free from seismic activity. But the earthquakes at Koyna (1967) and Latur (1993) changed their perception. Tamil Nadu is thought to be mostly free from seismic activity. But an earthquake rocked Coimbatore as far back as 1900. A study of the earthquake will help in understanding its nature and drawing lessons that would be of help in the event of its recurrence.

An earthquake of a moderate magnitude (6 on the Richter Scale) occurred near Coimbatore at 3-11 a.m. (Indian Standard Time) on February 8, 1900. Its maximum intensity was VII on the Modified Mercalli Intensity Scale. It caused the largest extent of damage at two locations - Coimbatore and Coonoor - and its impact was felt in the areas that lie between Udipi in the north and Thiruvananthapuram in the south and Kozhikode, Bangalore, Chennai, Nagapattinam and Madurai in the east-west direction. The epicentre of the earthquake was located at 10 45' North Latitude and at 76 45' East Longitude.

At Coimbatore (Intensity VII), several buildings were seriously damaged. Roof tiles collapsed. The jail building suffered the most. A Roman Catholic chapel near the railway station gave in. A boy who was trapped in a collapsed mud house was rescued. At Coonoor (Intensity VII), the railway refreshment room and the Commissioner's bungalow developed cracks. The Nilgiri Railway (Intensity VII) suffered losses owing to the fall of boulders on the track. The shock was felt at Kuppam (Intensity VI) and Perundurai (Intensity VI). Records from Mysore (Intensity VI) say that resting cattle stood up. The roof tiles of most houses were damaged and walls developed cracks.

A statistical analysis indicates that such seismological events might recur in 100 years, plus or minus about 30 years. Although such statistical forecasts are probabilistic and somewhat grotesque, they give a reasonable idea about the seismogenic potential of the region. It could be said that seismic activity in this region has been on the rise for the past 15 years. There were two earthquakes, each with a magnitude of around 5.0 on the Richter Scale, in Idukki and Coimbatore districts on the Kerala-Tamil Nadu border in December 2000 and January 2001 respectively. It could be said that seismic activity began sometime in 1988 when the Idukki area was shaken by an earthquake of a magnitude of 4.8 on the Richter Scale. Incidentally, the Idukki dam happens to be located in this seismically vulnerable area. The dam area has a seismic network.

Modern seismological instruments record earthquakes of a very low magnitude - up to -2.0 or so. As a result of the tremendous increase in their detection potential, they record thousands of seismic events of small magnitudes, known as micro-earthquakes or ultra-micro-earthquakes (of negative magnitudes of up to -3.0). Seismologically speaking, it is not correct to describe them as earthquakes. These are minor geological movements that occur routinely. However, activists have cited these data in support of their fight against the dam at Idukki. Actually, the construction in the 1960s of the Idukki dam and the reservoir has nothing to do with the seismic activity in the region.

The governments of Tamil Nadu and Kerala should use this historical information to protect the populations of the States from any seismic event in the future. Earthquakes do not kill people. It is the collapse of man-made structures that kills.

A two-point programme would help in mitigating the effects of seismic disasters. The first step is to measure geological and seismological parameters such as micro-earthquakes, the magnetic field, the gravity field, the sub-surface temperature and electrical resistivity. The second is to educate people about earthquakes. The Kerala Sastra Sahitya Parishad, which has done good work in popularising science, could undertake the work of creating seismic awareness. Government employees need to be trained in earthquake disaster mitigation. At present there is no disaster mitigation cell in Kerala. The one in Tamil Nadu concentrates on floods and cyclones.

A major feature of the earthquake of 1900 is that there was no casualty. This could be owing to the fact that most of the houses were made of thatch or had tiled roofs. Though present-day houses are built of better construction materials, they may prove to be more vulnerable because there is extensive use of glass, electrical fittings and instruments. The storage of cooking gas, petrol or diesel, which is inflammable, adds to the risk. A minor tilt may cause an electrical short circuit or a fire. Under such circumstances, most of the damage may be caused by the secondary effects of an earthquake, and not by the quake itself. There are records to show that secondary effects caused heavy damage during the Tokyo earthquake of 1923. The city was reduced to ashes by a fire that broke out after the earthquake.

Studies indicate that any seismic event in the Coimbatore region could reach a maximum magnitude of 5.5 to 5.75 on the Richter Scale. The attempt here is to awaken the people and the administration so that the people are trained and prepared to face any such eventuality. This is a probabilistic assessment, done with a view to increasing the people's preparedness.

Earthquakes are part of the dynamic movement of the earth. All the advancements in science and technology cannot prevent an earthquake. People should learn to live with this reality. Compared to other disasters, an earthquake lasts for the least duration and the possible response time is very low. Even if one gets only 10 seconds, one should come out of his or her house when an earthquake occurs.

The most important part of any disaster management plan is mitigation. An earthquake measuring 7.9 on the Richter Scale at Bhuj caused several thousand deaths. But an earthquake of a similar magnitude in Seattle in the U.S. did not result in a single death. India, with its large number of scientists and engineers, can make remarkable achievements in mitigation.

Arun Bapat is a research seismologist based in Pune.

The human rights debate

columns

The Home Minister's plea for protecting the security forces against harassment for bona fide action against terrorists has been welcomed by the forces; but any clamour for dropping all such action against everyone who is being investigated or has been charge-sheeted is untenable.

THE Union Home Minister's loud thinking on the subject of granting amnesty to personnel of the security forces arraigned before courts for violating human rights has triggered a major controversy. I personally feel that L.K. Advani's position has been misunderstood as one pleading for a total withdrawal of all cases - even those involving gross atrocities against innocent civilians. My conjecture has been endorsed by his categorical declaration in the first week of September at the conference of Directors-General of Police (DGPs) held in New Delhi. Here he unequivocally expressed himself against any unilateral general clemency to all policemen who have been taken to court for excesses committed. In fact, he went to the extent of denying that he had ever used the word 'amnesty' while speaking on the subject recently at a public meeting in Jalandhar. The Attorney-General's reported statement immediately after the beginning of the controversy that there was no question of a general amnesty has also perhaps helped put the record straight.

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Against this backdrop, there is also the reported threat by Punjab Police personnel to surrender all gallantry medals awarded to them - as a mark of protest - if there was no government decision by October 21, Police Commemoration Day. If the report is true, that unfortunately ups the ante. It is likely to convey the impression of using pressure tactics, which no popular government will countenance. Even the hint of a revolt by its uniformed forces is the last thing that a constitutional democracy would ever encourage. Here, I am reminded of the firm handling of a Madras city police strike in the early 1950s by Rajaji - including a direction to the Inspector- General of Police to take into custody all the strike leaders - which led to the strike fizzling out at an early stage.

I know I could be hauled up for comparing a threatened strike very many years ago with the current move to give back medals that have been awarded to policemen in recognition of their bravery. Nevertheless, the point that I am trying to make is that the hurling of any threat at a constitutionally elected government could be construed as unbecoming of a disciplined force such as the Punjab Police, which otherwise has a glorious record of valour and courage. I am confident that wiser counsel will prevail and the Punjab policemen will present their viewpoint in a dignified and persuasive manner. They should realise that if they have to be heard seriously by the authorities, they will first have to meet logically the arguments of human rights activists who have been incensed by views in favour of amnesty. Or else, even the slightest prospect of a consensus on the matter will become elusive.

The Punjab policemen's stand is that genuine, firm action against Sikh militants has been distorted into seeming acts of highhandedness, and as such treated as a violation of human rights. They believe that it was only such a tough stance that involved direct encounters with terrorists and the use of firearms against them, whenever called for, that brought the situation under control and turned the tide in the State from one of anarchy and unremitting violence to sanity and peace. This also is the uncompromising position taken by my good friend, the former DGP of Punjab, K.P.S. Gill, to whom the projected amnesty should be most welcome. If I know him well, he is furious at armchair critics who have been hypercritical of the methods employed by his men to counter insurgency in the State and who rubbish any suggestion of clemency. I know that Gill has many detractors. It will be unfair, however, to deny him the credit due for his role in bringing order to a battered State when every other segment of government had shown a clean pair of heels from the ravaged villages and district towns at the height of militancy.

The problem arises only if Gill were to club all charge-sheeted personnel into one and demand a unilateral withdrawal of action against them. This is because it is widely believed that certain operations that resulted in loss of civilian lives were indefensible. These were instances that reeked of excessive violence or involved settling of personal scores. In some cases, victims of police action were clearly found to be innocent civilians and not militants or even their proximate abettors. (It is an entirely different matter that in a war-like situation, the distinction between a law- abiding citizen and a terrorist becomes blurred and the police have neither the means nor the patience to check the antecedents of everyone against whom they act.) In some cases, there were also complaints of a lack of integrity on the part of a few policemen. Here, the refusal to comply with a blatantly dishonest and extortionist demand for sums of money from individual civilians with little or no militant connection was attended with reprisals. Of course, such allegations will have to be proved beyond doubt before a court of law. The due process of law will have to be observed. And, there is a definite guarantee of this with the accused getting every opportunity to defend themselves. When this is the position, any clamour for dropping of all action against everyone being investigated or charge-sheeted in court becomes wholly untenable.

Bona fide action to strike at terrorists needs to be protected even if the strictest of legal procedures were not followed during such action. This would include arrests, searches and failure to document an event as required by the Criminal Procedure Code (CrPc). However, wanton physical torture or causing the disappearance of an individual may not merit a generous response.

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This takes us to the nitty-gritty of how one goes about the task of initiating the amnesty process. According to the Home Minister, certain legislative measures are being thought of. It is not yet clear what shape this will take. Apart from the constitutionality of any such piece of legislation, the prospects of evolving a consensus in Parliament in this matter will have to be kept in mind. Alternatively, the Central government has the option of persuading State governments and the Central Bureau of Investigation (CBI) to withdraw from prosecution wherever a charge-sheet has been laid after investigation. Section 321 of the CrPC permits the Public Prosecutor to withdraw anytime before the judgment is pronounced. The proviso, however, is that such withdrawal will be with the consent of the court.

This is a clear pointer to the position that the process is not automatic and that the court will also apply its mind. There are indications that the judiciary is increasingly selective in giving such consent. An apex court ruling (V.S.Achutanandan vs. R. Balakrishna Pillai, AIR 1995 SC 436) on the subject is significant. Here, the court observed that it was the opinion solely of the Public Prosecutor that was material, and the ground on which he was seeking permission for withdrawal alone had to be examined by the court. Further, it was obligatory for the court to satisfy itself that the Public Prosecutor was exercising his power under this section as a free agent, uninfluenced by irrelevant and extraneous considerations.

In this contentious process, apart from courts the government will have to carry with it the National Human Rights Commission (NHRC). If my memory serves me right, the NHRC itself had taken cognisance of several charges against the Punjab Police and other forces for further investigation by its own team, and by the CBI and other agencies. The commission has shown itself to be extremely sensitive to soft-pedalling of charges against security forces. Any move by the government to terminate court proceedings in instances where there have been definite allegations of human rights violation could therefore invite an adverse response from the NHRC. Also, what will be the latter's stand if petitions are filed before the commission by aggrieved parties in the event of the government ultimately deciding to go ahead? These are interesting but extremely relevant speculations, which cannot be ignored by the government in the course of its decision-making.

A final thought. In deciding to grant general amnesty to personnel of the security forces, any government will have to consider the impact such an action might have on international opinion. This is especially so in the case of Jammu and Kashmir, where the situation has been greatly politicised and internationalised. Punjab too was not different at a time when the situation was boiling. Amnesty International and Human Rights Watch are two organisations to contend with. They are bodies that have credibility in international forums. India's attitude to Amnesty International has changed over the years. The earlier total antipathy has given way to an attitude of taking note of its charges - sometimes specious and superficial - and responding in a responsible and meaningful manner. So, any leniency shown towards members of the security forces who have come to adverse notice will have to be both logical and defensible in the international arena.

Home Minister Advani's plea for protecting the security forces against harassment for their bona fide actions will no doubt be welcome to members of the police and paramilitary forces, who are performing a difficult task. Without such an assurance they cannot be expected to act fearlessly in countering insurgency. But this debate on how to offer immunity against capricious action by vested interests, who sometimes pass off as human rights activists, will not impress the judiciary or the common man unless we quickly evolve effective means to make our security forces understand the philosophy of human rights. Without such an understanding, they are prone to bursts of indefensible violence against innocent civilians, which is bound to attract the attention of human rights activists not only at home but in most of the Western world where the movement has acquired great import. Also, this definitely has serious implications for foreign investment in our country.

Dr.R.K. Raghavan, a former Director of the Central Bureau of Investigation, is currently a Visiting Fellow, Human Rights Programme, at the Harvard Law School, Cambridge, Massachusetts.

Crusading Congressman

G.K. Moopanar, 1931-2001.

G.K. MOOPANAR, 70, who passed away in Chennai on August 30, will be remembered for his commitment to secularism and cultural pluralism. It was Moopanar's firm opposition to communalism and religious bigotry that motivated the Tamil Maanila Congress (TMC), which he founded in 1996, to vote against the confidence motion moved by the Bharatiya Janata Party-led government at the Centre in 1999 and break ranks with the Dravida Munnetra Kazhagam (DMK) when it allied with the BJP. In joining hands with the All India Anna Dravida Munnetra Kazhagam (AIADMK) for the Tamil Nadu Assembly elections in May 2001, Moopanar seemed to signal that the BJP's "communalism" was a greater threat to the polity than the "corruption" of the AIADMK.

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Moopanar was one of the two Congressmen who had direct connections with the Congress lineage of K. Kamaraj. (The other survivor is N. Ramasamy Udayar of Salem, who is in his 80s.)

Moopanar cut his political teeth under Kamaraj, who handpicked him to build up the Congress in Thanjavur district in 1965 when the Left movement and the DMK were rising. Moopanar was hardly 25 then.

Moopanar was a Congressman first and last. Although he broke away from the party in 1996 protesting against Prime Minister and Congress president P.V. Narasimha Rao's decision to align with the AIADMK, he was a Congressman at heart. Congress president Sonia Gandhi, who visited Chennai on August 31 to pay her last respects to Moopanar, claimed that "he never quit the Congress, and his heart was always with the Congress, " and that he was the "standard-bearer of the Congress flag" all his life.

Moopanar commanded the confidence of Indira Gandhi and Rajiv Gandhi. Between 1980 and 1988, when Moopanar was general secretary of the All India Congress Committee (AICC), both Indira Gandhi and Rajiv Gandhi sent him on several trouble-shooting missions. These included the displacement of certain Congress Chief Ministers, which he accomplished with finesse. He kept a low profile when the Congress was under the stewardship of Narasimha Rao, with whom he did not get on well.

A crusader against untouchability, Moopanar made the Puthiya Tamizhagam and the Dalit Panthers, the two Dalit parties, the TMC's allies in the Third Front that he formed to contest the Lok Sabha elections in 1999. He thus gave them the credibility denied by other mainstream political parties. Dalit Panthers convener R. Tirumavalavan recalled how during the campaign for the byelection to the Nellikuppam Assembly seat in February 2000, Moopanar asked a crowd at a public meeting "What do you have in your hands?" The people, waving pictures of their leader, replied, "Tirumavalavan". To this, Moopanar gave the riposte, "You have him on a piece of paper. But I have enshrined him in my heart." The crowd cheered.

N. Sankaraiah, secretary, the Tamil Nadu State Committee of the Communist Party of India (Marxist), writing in the September 1 issue of Theekathir (the CPI-M newspaper) about Moopanar's simple words against untouchability, quoted a speech he made at a convention in Neyveli that touched the core of the problem. Moopanar told the gathering: "All of you (Dalits and people belonging to other communities) watch films together in cinema halls. You travel together in buses. You work in work places without showing any differences. But once you return to your villages, you remember your castes and get engrossed in hatred and enmity. You fight one another. You should think whether this is right."

Former Chief Minister and DMK president M. Karunanidhi acknowledged the fire-fighting role that Moopanar played during the bloody caste clashes in southern Tamil Nadu in 1997.

Karunanidhi noted that his 40-year friendship with Moopanar was not affected by party-based or ideological differences. The former Chief Minister called him a humane person. "His love and affection for my family members will continue to linger in my heart," he said.

Chief Minister Jayalalithaa recalled how Moopanar never got angry or used harsh words, a "rare quality" among politicians. She added that when she met him in hospital in mid-August, he said, "we will take a joint decision on the coming local body elections."

R. Nallakannu, secretary, State Council, Communist Party of India (CPI), observed that although Moopanar was a religious person, he fought religious fanaticism.

It was reportedly at Moopanar's insistence that the Karunanidhi government banned Al Umma and the All-India Jihad Committee involved in the serial bomb blasts in Coimbatore in February 1998 which claimed more than 50 lives.

Moopanar was a heavy smoker for several decades but gave up the habit some time ago. Instead, he took to chewing betelnut and cloves. It was clear from January 2001 that his health was failing. Hectic parleying with the DMK, the AIADMK and other parties for several weeks before the Assembly elections in May 2001 put further strain on his health.

Moopanar's decision to partner the AIADMK attracted a measure of criticism since it seemed to go against the raison d'etre of the founding of the TMC: to fight the AIADMK. So much so that senior TMC leader P. Chidambaram parted ways with Moopanar and founded the TMC Democratic Front.

Moopanar was born on August 19, 1931 at Kabisthalam village in the composite Thanjavur district, the rice granary of Tamil Nadu. He belonged to a family of landed aristocracy that owned vast tracts of fertile land. His father R. Govindasamy Moopanar was a Congressman. The family patronised music, arts and literature. Moopanar himself was president of the Tiruvaiyaru Sri Thyaga Brahma Mahotsava Sabha from 1980 until his death. This Sabha conducts the annual Thyagaraja music festival at Tiruvaiyaru, the saint-composer's birthplace.

Moopanar first met Kamaraj and Jayaprakash Narayan when they called on his father Govindasamy Moopanar at his home at Sundaraperumal Kovil, near Kumbakonam, in 1951. Kamaraj was then TNCC president. Moopanar became the president of the Thanjavur district Congress committee in 1965. When the Congress split in 1969 Moopanar continued with Kamaraj. After Kamaraj's death on October 2, 1975, the two Congress factions in Tamil Nadu merged in 1976. At the merger function, Indira Gandhi announced that Moopanar would be the president of the unified TNCC.

From then onwards, his rise in the Congress was swift. He was TNCC president from 1976 to 1980, and again in 1988-89. He was a puissant AICC general secretary from 1980 to 1988. He was a Rajya Sabha member when he died. Both Indira Gandhi and Rajiv Gandhi offered him ministership but he declined.

He even shunned the Prime Minister's post offered to him in April 1997 after the fall of the United Front government led by H.D. Deve Gowda. In a volume titled Makkal Thalaivar Moopanar, published by a TMC leader in August 2000, former Union Minister R. Dhanushkodi Adityan has recalled that CPI(M) general secretary Harkishan Singh Surjeet declared that "Mr. Moopanar is the best and first choice" for the prime ministership. West Bengal Chief Minister Jyoti Basu seconded the choice. Moopanar declined the offer.

Moopanar's humility and amiability were striking qualities. He knew partymen at all levels by name. He supported the education of hundreds of poor students by paying their fees. He donated money for various good causes but never sought publicity for these acts. In the affairs of the Congress party, he was hard to fathom. He would never reveal his mind to anybody, especially to the media. His approach in the party was one of forging a consensus by holding protracted discussions. Ultimately, he did not realise his ambition of bringing back "Kamaraj rule" in Tamil Nadu.

The TMC feels orphaned with the death of Moopanar. The party quickly tried to steady itself when at a meeting of its legislators, Rajya Sabha members and leaders on September 1, Moopanar's son G.K. Vasan was elected TMC president.

Dilution in Durban

After hectic deliberations that went beyond the schedule, the World Conference Against Racism produces a document that satisfies nobody.

THE World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, or the WCAR, went into extra time on September 7 and continued for an unscheduled ninth day of deliberations. Two difficult issues held up the adoption of the two major documents before the conference: the Draft Declaration and the Draft Programme of Action. There were irreconcilable differences over several formulations on the situation in Palestine and Israel and on the issue of slavery, slave trade and colonialism.

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Nothing could have summed up the mood of the conference then better than these observations - of the Chair of the Main Committee, reminding delegates that time was of the essence ("we have just 25 minutes left") in response to interventions from Pakistan and Syria on the compromise formulation on the situation in West Asia, and of the president of the conference and South Africa's Foreign Minister, Nkosazana Dlamini-Zuma, agreeing for further discussions ("provided we find the required interpreters, because, only by allowing a full discussion will be able to end the conference in a dignified way").

During the deliberations, the African group demanded that slavery, slave trade and colonialism should be characterised as crimes against humanity, for which countries that practised and profited from these should apologise and pay reparations. The original draft only spoke of a need to acknowledge the grave suffering caused by these practices.

Although the United States and Israel withdrew from the conference, objecting to what they saw as the hate language used against Israel and the comparisons made between Zionism and racism, other countries such as the members of the European Union (E.U.), which broadly shared such outrage, did not withdraw. Instead, they strove to achieve a compromise - in essence, for an acceptable language on these two issues.

At every briefing during the conference, mediapersons were only told of the efforts that were still on to find such acceptable language. For instance, even as it was acknowledged that deeply entrenched historical antagonisms between political Zionism and Palestinian nationalism are at the root of the conflict in West Asia, the problem was one of finding expressions of this truth that were acceptable to all. It was not surprising then that the compromise sought was essentially a semantic one and related not to the intractable hostilities in West Asia but to the issues of slavery, slave trade and colonialism as they impacted on the African continent. The attempt was to find appropriate words and expressions to replace some of the harsher formulations in the draft documents. The E.U. countries apparently agreed that slavery, slave trade and colonialism did constitute crimes against humanity, but they did so only after securing guarantees, supported by legal opinion, that such admission would not open the doors to litigious action against the erstwhile colonial states and states that actively engaged in slavery and slave trade. Similarly, instead of the reparations demanded by the African group, there are to be remedial measures; there is no debt cancellation, but debt relief; and so on.

On issues relating to Palestine and Israel, the proposed changes, which constituted seven paragraphs in the Draft Declaration and a mere three paragraphs in the Draft Programme of Action, did not explicitly condemn Israel, let alone equate Zionism with racism. The formulation recognising the right of refugees to return voluntarily to their homes and properties was a patently watered-down version of Paragraph 41 of the Draft Programme of Action; it modified the original expression "Palestinian refugees" to just "refugees". Paragraph 6 of this version was particularly hollow and hypocritical, in the context of the horrible goings on in Palestine and other occupied areas. It said: "We call for a just, comprehensive and lasting peace in the region in which all peoples shall co-exist to enjoy equality, justice and internationally recognised human rights, and security."

Not surprisingly, the West Asian group of countries as well as Pakistan firmly opposed the formulations, which did not explicitly condemn Israel, while any further changes that would accommodate these views were opposed by the E.U. countries. The conference was poised on a knife-edge.

In the event, the interpreters, whose contract had expired, were located and the conference ended with a compromise that satisfied nobody. While the Final Declaration acknowledged that slavery and slave trade (but not colonialism) were crimes against humanity, the expected "apology" from those who had profited from these practices finally became an expression of "profound regret", with the verbal changes in respect of reparations remaining.

On the issue of Palestine and Israel, the attempts by the West Asian group led by Syria to introduce a new formulation describing foreign (Israeli) occupation of (Palestinian) territory as tantamount to racism and effectively declaring Israel as a racist state were thwarted by an alliance of Western and Latin American countries by taking recourse to the vote.

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After more than eight days of deliberations, which in turn were preceded by meetings of preparatory committees and working groups, regional conferences and seminars that had been held over a period of more than two years at venues all over the world, the conference could produce only some sort of a verbal agreement. At one point the dispute extended even to orthography, that is, whether the word Holocaust should be spelt with a capital 'H' or a lower case 'h'.

This is hardly surprising, given the length and verbosity and the unrealistic scope of the draft documents that were born out of an attempt to include everything for everyone and satisfy all lobbies. In Durban, the drafts, which were approved on August 20 and 22 at the preparatory committee meetings in Geneva, were put through another process of reconciliation so that they reflected a consensus, if any, among the delegates. This task could be completed only well after the eleventh hour. The clocks at the venue were stopped at midnight to imply that the documents were at least notionally adopted on the last day of deliberations.

Some idea of the difficulties involved can be had from the fact that at the beginning of the conference the majority of the paragraphs in both the documents bore at the end the self-explanatory description "ongoing" within brackets. Many of these paragraphs were themselves within brackets, indicating the existence of deep divisions over the content of the documents. The text of these documents on the WCAR website was marked by errors, with the paragraphs not even consecutively numbered. Paragraph 73 of the Draft Declaration (in Section III) dealing with "Measures of Prevention, Education and Protection aimed at the Eradication of Racism", which urged states to prohibit and redress discrimination on the basis of work and descent, did not appear in the web version. It was described as a missing paragraph in a footnote to a version of the document that this correspondent secured from a WCAR official just to copy and return.

This paragraph contained one of the central issues that was sought to be raised in Durban. Eloquent and persuasive Dalit lobbies sought the retention of this paragraph in its existing form, with two new paragraphs, 73-A and 73-B. Paragraph 73-A calls upon the United Nations High Commissioner for Human Rights "to undertake an in-depth study on the question of discrimination on the basis of work and descent in cooperation with the Committee for the Elimination of Racial Discrimination", and Paragraph 73-B calls upon the governments concerned "to undertake public awareness raising and educational initiatives in order to promote positive changes in attitudes towards and within communities discriminated against on the basis of work and descent". Since no discussion was possible on Paragraph 73, the issue fell away, according to an Indian official. However, according to Paul Dinakar, one of the Dalit activists from India, the paragraph, like all other similar paragraphs described as ongoing, will be included in an annexure to the Declaration and the Programme of Action to be forwarded to the U.N. General Assembly. The two documents have about 30 paragraphs each bearing this description. A U.N. legal adviser told the delegates on September 8 that the conference could not adopt any of the bracketed paragraphs.

To say that the deliberations of the past two weeks, which also saw a two-day Youth Conference and a five-day NGO Forum that discussed more or less the same issues, were less than impressive is not to underplay the immediacy and importance of the issues of racism, racial discrimination, xenophobia and related intolerance.

It was at the seemingly less formal structures of the Youth Conference and the NGO Forum that Dalit activists were initially able to highlight the evils of caste and untouchability in South Asia and in other parts of the world. But eventually they made their voices heard even within the environs of the WCAR. The issues of work- and descent-related discrimination in India are no more the concern of only those Indians, Dalit and non-Dalit, outraged by these evils; there is a whole international network that will take them further into and along paths which one cannot even envisage. Durban 2001 thus became both an angry and a festive free-for-all in terms of exchange of ideas. There were causes rational and bizarre, and people whose ideas seemed even more outlandish than their attires and headgears, the inescapable buttons and T-shirts and beads and trinkets, the banners and the posters. There were even the hustlers and fly-by-night operators and shady pleasure spots in the vicinity of the splendiferous conference centre and the adjacent Durban Exhibition Centre.

As is so often the case with the media at such high-profile international gatherings, in particular the visual and electronic media, the form and style were definitely more catchy than the bureaucratic hair-splitting over brackets within brackets, obscuring the harsh fact that these wrangles were about matters of life and death to an overwhelming majority of the peoples of the world, all victims of the evils the conference had set out to fight.

Zionism in focus

THE World Conference Against Racism might have ended in acrimony and controversy, but it succeeded in focussing attention on the plight of Palestinians and the issue of racism worldwide. Although the majority view in Durban was sidelined by the unprincipled alliance of the West and Israel, most of the participants criticised Israel.

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The External Affairs Ministry had tried to downplay the importance of the summit by sending to Durban a relatively low-profile delegation, headed by Omar Abdullah, the Minister of State for External Affairs. This was the case with most Western countries. Thabo Mbeki, the President of South Africa, which hosted the conference, regretted the absence of many world leaders in Durban. But African heads of state were present.

The Indian government seemed to have been preoccupied with ensuring that the viewpoint expressed by non-official delegates on caste-based discrimination did not find acceptance at the conference.

New Delhi's stance on the issue of Zionism and racism has perturbed observers of foreign policy. The Bharatiya Janata Party-led government was out of tune with most of the countries of the Non-Aligned Movement (NAM) on the issue. Before the official delegation left for Durban, New Delhi made it clear that it was against the Arab League's demand to equate Zionism with racism. In the past few years, India has emerged as one of Israel's staunchest allies in the Asian region, much to the chagrin of the Arab world.

Much of the world has recognised the fact that Palestinians are standing up to a brutal military occupation and that their basic human rights have been trampled upon. Of late, the Israeli government has upped the ante by specifically targeting Palestinian leaders, in acts reminiscent of the apartheid regime in South Africa. The history of Israel is marked by massacres of Palestinians - for instance, the massacres of Dier Yassin (1948), Qibya (1953), Sabra and Chatila (1982), and Hebron (1994). Ariel Sharon played an important part in the massacres in Qibya and Sabra and Chatila. Today, as Prime Minister, he presides over the use of helicopter gunships, F-16 fighters and tanks against a defenceless people. For Palestinians, it is difficult to differentiate between Zionism, racism and colonialism.

A declaration adopted in Durban by the NGO Forum, involving about 150 human rights groups from all over the world , accused Israel of "systematic perpetration of racist crimes including war crimes, acts of genocide and ethnic cleansing". It described Israel as "a racist apartheid state characterised by separation and segregation".

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In his electrifying address to the summit, Cuban President Fidel Castro demanded an "end to the ongoing genocide against the Palestinian people that is taking place when the world stares in amazement". He said that no country had the right to boycott the conference or to avoid a discussion of "the way we decide to rate the dreadful genocide perpetrated, at this very moment, against our Palestinian brothers by extreme right-wing leaders who, in alliance with the hegemonic superpower, pretend to act on behalf of another people which throughout almost two thousand years was the victim of the most fierce persecution, discrimination and injustice that history has known."

United Nations Secretary-General Kofi Annan said that Israel could not let "the ultimate abomination" of the Holocaust be an excuse for not examining its own behaviour. He told the delegates that the world "cannot expect Palestinians to accept this as a reason why the wrongs done to them - displacement, occupation, blockade, extra-judicial killings - should be ignored, whatever labels one uses to describe them".

African-Americans who participated in the Durban conference criticised the United States' boycott of the conference alleging that the Bush administration has used the issue of Zionism as a pretext to avoid a discussion on the related issues of slavery, colonialism and payment of reparations. Rev. Jesse Jackson, Black American leader, went to the extent of saying that the American delegation had come to Durban with the express purpose of sabotaging the event. Some South African government officials concurred with this view, noting that the U.S. delegation left when discussion on the issues of slavery and reparation gained momentum.

Although the majority of the countries represented were in favour of equating Zionism with racism, there was room for compromise. In fact, the relevant paragraph of the Draft Resolution that was under consideration did not explicitly equate Zionism with racism but said that "foreign occupation founded on settlements is a new kind of apartheid, a crime against humanity".

The criticism of the walkout staged by the U.S. and Israeli delegations was symptomatic of the diplomatic isolation the two governments find themselves in today. U.S. commentators have described the Bush administration's decision as yet another example of its arbitrariness and disdain for international organisations and treaties.

A wrong undone

S. VISWANATHAN the-nation

The AIADMK government decides to restore a Government Order that was withdrawn by the DMK government for filling up vacancies reserved for Dalits.

TAMIL NADU can legitimately take pride in the fact that it pioneered a system of reservation in government services, which provided for representation for different communities on the basis of their share in the population. The first "communal G.O." (1921) issued by the then provincial government made this possible, but in implementing reservation the State's record has been far from satisfactory.

Dalit organisations complain that representation for Dalits has always been far below the statutory 19 per cent reserved for Scheduled Castes (Dalits) and Scheduled Tribes, particularly in Group 1 and Group 2 services (Frontline, November 26, 1999.) They blame the lack of political will and the vested interests in the bureaucracy for denying Dalits their due. Filling vacancies through temporary appointment, transfers and deputation were among the methods used, they claimed.

In 1998, the Dravida Munnetra Kazhagam government issued a Government Order (G.O. Ms. 44) to clear the backlog of unfilled vacancies reserved for Dalits through direct recruitment, but withdrew it two years later even before any action could be taken on it. On September 7 the All India Anna Dravida Munnetra Kazhagam (AIADMK) government announced its decision to "restore" the G.O. much to the relief of Dalit organisations. The G.O. 44, dated May 20, 1998, was based on certain directions of the Supreme Court in the 1992 Indra Sawhney and others vs. Union of India and others case (known as 'the Mandal Commission case').

According to the G.O., the court gave the following directions: "The adequacy of representation is not to be determined merely on the basis of the overall numerical strength of the backward classes in the services.... their representation at different levels of administration and in different grades has to be taken into consideration...

"To ensure adequate representation of backward classes... the rules of recruitment must ensure that there is direct recruitment at all levels and in all grades in the services."

The G.O. stated that the government had decided to provide for recruitment in each category/group, namely, Group 1, Group 2, Group 3 and Group 4, where representation of S.Cs/S.Ts was less than 19 per cent. The direct recruitment in each group would be at the lowest levels of the groups, it said.

IN September 1997 the DMK government had constituted a high-level committee to monitor the implementation of the 19 per cent reservation for S.Cs and S.Ts in government services and find ways to fill the vacancies within a stipulated period. Although the 12-member committee, headed by Minister for Adi Dravidar (Dalits) and Tribal Welfare Samayanallur S. Selvarasu, submitted its report in August 1998, the government did not publish it.

The committee, which had to make do with information provided by only 105 of the 141 departments, found that the representation for Dalits in administration was far less than the stipulated 19 per cent, particularly in the top posts. The departments relating to elementary education, collegiate education and local bodies, which account for over one lakh posts, did not provide any data. The committee suggested that the backlog could be cleared by direct recruitment and promotions. Subsequently, the DMK government appointed another committee to study the status of reservation among the backward classes.

Later, on May 11, 2000, the government came out with a White Paper on Reservation in Government Employment for Adi Dravidars (S.Cs), Scheduled Tribes (S.Ts), Backward Classes (B.Cs), Most Backward Classes (MBCs) and Denotified Communities. The paper revealed that there was no backlog in the case of B.Cs. As for the MBCs/Denotified Communities, the S.Cs and the S.Ts, the backlog posts in the groups numbered 5,263, 4,907 and 1,094 respectively. The paper showed that in the 4,588 top posts of 96 departments studied, while the B.Cs were over-represented (2,571 against 1,376), the Dalits (475 against 826), the S.Ts (17 against 45) and the MBCs/Denotified Communities (384 against 912) were grossly under-represented.

Dalit leaders challenged the estimates and called it a "black paper". In the Assembly on September 7, CPI(M) member S.K. Mahendran, while welcoming the decision to restore G.O. 44, demanded a new White Paper.

Incidentally, G.O. 44 did not find a mention in the White Paper and on July 20, 2000, it was made inoperative by means of a letter from the Secretary of the Department of Adi Dravidar and Tribal Welfare addressed to all departments. Dalit organisations and political parties such as the AIADMK, the Tamil Maanila Congress, the Communist Party of India (Marxist), Puthiya Tamilagam and Viduthalai Siruthaigal protested against the government action. AIADMK general secretary Jayalalithaa criticised the suspension of the G.O. which was intended to "rectify anomalies" in filling up reserved vacancies in government departments and public sector undertakings. "Suspending the operation of the provisions of a G.O. through an inter-departmental letter is contrary to law," she said, and added: "The fact that the G.O. in question was based on a Supreme Court directive makes its suspension contempt of the apex court."

Karunanidhi defended the government's action in rendering the order inoperative and said it was well within the law. Subsequently, the government issued an order with a view to helping Dalits get the "full benefits" of reservation. (G.O. 33 issued on May 8, 2000 - three days before the White Paper was placed in the Assembly - fixed April 1, 1989 as the cut-off date to calculate the unfilled vacancies reserved for S.Cs/S.Ts. Dalit organisations, however, continued to protest against the withdrawal of G.O. 44. In order to assuage Dalits' misgivings, on the eve of the Assembly elections Karunanidhi appointed a committee headed by Justice K. Swamidurai to go into the issue. The committee could not complete its work.

In its manifesto for the May Assembly elections the AIADMK promised that G.O. 44 would be restored if it was elected to power. The assurance was repeated in the Governor's address to the Assembly after the AIADMK regained power. Adi Dravida Welfare Minister V. Subramanian's announcement in the Assembly on September 7 was but a redemption of this pledge.

In the cause of Dalits

AT the end of the World Conference Against Racism in Durban, the Indian government and the Dalit rights groups were in agreement on one point: that the conference has triggered in India a debate on Dalit rights. The debate in the run-up to the conference centred on the question whether caste can be equated with race. This was followed by assertions by Dalit rights groups that caste discrimination was first and foremost an issue of socio-economic and human rights. They got a shot in the arm when the National Human Rights Commission (NHRC) decided to raise in Durban the issue of caste-based discrimination.

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In India, the pre-conference arguments crystallised into two major questions. First, what will be the short- and long-term effects of the NHRC's refusal to toe the government line that caste discrimination is an internal matter that need not be taken to international forums? Secondly, will the Durban process have the effect of ensuring social and economic rights for Dalits through constitutional provisions?

The NHRC's stand received plaudits from the United Nations Human Rights Commission (UNHRC) and non-governmental organisations (NGOs) in India. NHRC Chairman Justice J.S. Verma refused to join the national preparatory committee constituted by the Prime Minister ahead of the Durban conference and said that the Commission would formulate its own opinion. The NHRC conducted a national seminar in Bangalore on August 3 (Frontline, September 14) and a public hearing in New Delhi on August 11 (Frontline, August 31) to ascertain informed opinion on the issue of caste-based discrimination. On August 26, the Commission said that it was not against raising the issue in Durban and that it would support the Dalit groups in this regard. Addressing a press conference in New Delhi, Justice Verma said: "The NHRC has no problems with the discussion of caste-based discrimination at any international meet. We are not concerned about finding similarities between caste and race as the labels are of no importance to us." Refusing to comment on the government's stand, he said: "What I want to emphasise is that we want to fight caste-based discrimination and for that we are willing to take to any platform. If people discuss caste-based discrimination in an international meet and come up with better ideas, I would not have any problem."

In Durban, Justice K. Ramaswamy, a member of the NHRC, stressed the Commission's commitment to ending caste-based discrimination. According to him, the debate on whether race and caste were co-terminus or whether they signified similar forms of discrimination was not the essence of the matter. He said: "The Constitution of India in Article 15 expressly prohibits discrimination on either ground and that constitutional guarantee must be rigorously implemented. In this connection, the Commission believes deeply in the value of engaging governments, NGOs, national institutions and all concerned elements of civil society in the process of fighting discrimination, and urges that this process be conducted at all levels."

This stand earned praise from the UNHRC. Said Mary Robinson, the U.N. High Commissioner for Human Rights: "I congratulate the principled stand taken by the NHRC, which stood up to help Dalits and extended moral support." On the role of the NGOs, she said: "The NGOs have raised what they called discrimination against Dalits in India, and the issue has been brought before the international community."

What will be the long-term effect of the Commission's stand?

Said Editor of Communalism Combat, Teesta Setalvad, who participated in the conference: "The NHRC's stand is welcome as it signifies that as a statutory body it will take up Dalit-related issues seriously. The NHRC is approached by aggrieved Dalit individuals and groups. Its stand has shown that it would be willing to look into the patterns of discrimination against Dalits, where they are apparent."

Said another participant, Mohini Giri, vice-president of the Guild of Service: "The only ray of light for us at the conference was the NHRC's recognition that caste-based discrimination exists and needs to be looked into."

The NHRC's position at the conference reaffirmed the NGOs' argument that caste-based discrimination exists as a human rights problem in India. This argument, it is hoped, will help in exerting pressure on the government to devise ways to put an end to caste-based discrimination. In Durban the government took the line that the Constitution ensures that Dalits are not discriminated against, and hence caste is an internal matter, which the government is looking into.

The Constitution does provide some privileges to the Scheduled Castes and the Scheduled Tribes to help them overcome their social disabilities. The Untouchability Act of 1955 made the practice of untouchability a punishable offence. The Act was later improved upon and incorporated in the statute book as the Protection of Civil Rights Act, 1976. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which was enacted in 1989, seeks to ensure that the perpetrators of caste-based atrocities do not escape punishment when the victims are unable to produce evidence in a court of law. These are radical measures but they have lulled the government into complacency. The debates preceding the Durban conference have initiated a process which, it is hoped, will eventually shake the government out of its complacency.

Dr. Sukhadeo Thorat, Professor of Economics at the Centre for the Study of Regional Development, Jawaharlal Nehru University, who attended the conference, said: "Durban highlighted that the Dalit rights issue is also an issue of economic and cultural rights. It is not only about ensuring constitutional safeguards, it highlighted the economic deprivation of Dalits in India. It emphasised that they do not have land and that the unemployment rate among them is twice that of the rest of India. Socially, Dalits are still untouchables. This is apparent in the segregation of their residences. It reaffirmed that caste-based discrimination is a multi-faceted issue involving social and economic rights."

The NGOs say that they will carry on with their multidimensional approach to the issue of caste-based discrimination. Said Martin Macwan, convener of the National Campaign on Dalit Human Rights: "We will continue to emphasise on pro-Dalit programmes such as land reforms, primary education, the fight for equal opportunities and uniform legislation, and the removal of manual scavenging."

A serious problem that the conference-related debates in India served to highlight was the failure of political parties, barring those of the Left, to make their stand clear on taking up the issue of caste-based discrimination at international forums. This despite the fact that they sent their representatives to Durban. The coming together of NGOs in the cause of Dalits had a lesson to offer. It is doubtful whether political parties are willing to learn from it.

BORDER BARRIER

other

A first-hand look at the fence designed to counter infiltration through the border with Pakistan.

Text and photographs: PRAVEEN SWAMI Frontline 18191292jpg 18191293jpg

Patrolling in the Samba Sector, from where early last year the BSF recovered explosive devices from trans-border smugglers. The area has become a transit point for cross-border trade in heroin.

At Nursery Post, Samba Sector, which has become the target of sustained Pakistani fire after India decided to resume fencing work along this stretch in May this year.

GOOD fences, goes the maxim, make good neighbours. Inspector Jai Gopal Singh has spent almost every night for the past three months trading fire with Pakistani Rangers stationed at the Masroor and Buddha Bhai posts, a few hundred metres from the Line of Control (LoC). This Border Security Force (BSF) trooper is stationed at the Paharpur Post, India's first position along the international border in Jammu and Kashmir. The latest round of fighting began on September 3, when troops at Paharpur noticed Pakistani soldiers attempting to install a 14.5 millimetre anti-armour gun, which would have threatened their defensive positions. They put up a red flag, a warning of imminent fire. When the Pakistani soldiers chose not to withdraw, machine-gun fire followed, ending work on the new gun position.

Since the early part of summer this year, similar exchanges of fire have been under way all along the 185-km international border that stretches from Paharpur along the boundary with Punjab to the start of the LoC, north of Akhnoor. While in January this year, Pakistan Rangers and troops set off just 231 rounds of machine gun and heavy-calibre fire, the figure for August has been upwards of 300,000 (see table). However, the fighting claimed relatively few casualties. So far, one BSF soldier and two civilians have been killed, while 40 people have been injured. But the exchanges of fire, as well as attempted attacks on Indian forward positions, have been steadily escalating, mirroring a general intensification of conflict throughout Jammu and Kashmir.

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The escalation of hostilities by Pakistan began after India decided to build a counter-infiltration fence early this year. A similar effort had been made by India in 1994, but was stopped in the face of Pakistani fire. However, when the BSF's Director-General Gurbachan Jagat took office last year, his long years of experience as Jammu and Kashmir's police chief led him to revive the idea. This time, the BSF took on the job itself. Its troops were used to do much of the foundation work, thus ensuring complete secrecy. When more workers were needed, they were brought in from Orissa and Madhya Pradesh. Protective earth walls along with bullet-proof metal shields were put up as defences against fire. Work began under cover of darkness and fog in January this year, and remained undetected for the next four months. Almost 15 km of the fence was completed before the monsoon set in.

It is not hard to see why the new fence is so important to India, while being a real threat to Pakistan. For one, both National Highway 1 and the Pathankot-Jammu rail line are only a few kilometres from the border. With the fence in place, the kind of sabotage enterprises and terrorist attacks that have been taking place regularly since 1994 would become extremely difficult to carry out. Pakistan would also find it difficult to push espionage operatives across the border, while Indian intelligence would have no difficulty in identifying them. Also significantly, the fence would make an important symbolic point. India argues that the southern frontier in Jammu and Kashmir is a border, because it has remained unchanged ever since the accession of the state. Pakistan accepted this position until the rise of insurgency in the late 1980s. It now describes the border as a "working boundary".

GIVEN the stakes at hand, perhaps it is not surprising that the fighting has been intense. On May 19, just after fencing work had been completed on that stretch, a 10-man Pakistan Border Action Team made up of army commandos and irregulars planted demolition charges near Nursery Post. However, the explosion, which occurred a few kilometres from the post, caused little damage, and the fence was repaired in a very short time. At the end of August, more direct means were used. On the night of August 31, Nursery Post faced sustained fire from 9 p.m. through 3 a.m., with some 3,500 rounds hitting its defences. In the end, the BSF's 39 Battalion hit back using high explosive rounds to silence the guns firing at it from the Kamor forward post and Galar Tanda, just across the border. Since then, each round from across the border has provoked a sharp response, and at least five Pakistan Rangers have been killed.

18191294jpg Source: BSF,Jammu Frontier

Civilians have, inevitably, also faced the consequences of this firing. Last month, 20-year-old Surjeet Singh was injured by a 14.5 mm shell that ricocheted off his home in Jasso Chak, 500 metres from Pakistan's Rangoor Post. Although both the BSF and the Pakistan Rangers have traditionally observed a harvest-time truce, allowing farmers on both sides of the border to go about their work, Jasso Chak residents have not worked on their lands for the last two months. Children have abandoned the local primary school and walk 7 km each day for their education. "Since we cannot collect grass from the border," said village numberdar Banarasi Lal, "we have to purchase fodder. I've spent at least Rs. 1,500 this summer." Worst of all, say residents of Jasso Chak, they face social isolation. "Not one of our boys has been married for the last four years. Nobody wants to send their daughters here," says the numberdar.

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There is, however, a curious ambiguity in local responses to the conflict. Plush farm houses appearing at regular intervals across rural Samba are the wages of the region's vibrant, but illegal cross-border trade. Gold, silver and liquor, the traditional commodities handled by border smugglers, have been displaced by a single, more sinister substance - heroin. Paid through hawala transfers to traders in Karachi and Lahore, the heroin trade helps turn cross-border terrorism into a self-financing activity. Pakistani smugglers are allowed to operate their drug businesses if they pay for weapons and explosives, while their Indian counterparts are told to carry explosives across the border along with their heroin consignments. Earlier this year, the BSF recovered explosive devices from three border smugglers - Kuldeep Kumar, Balkar Singh and Surinder Singh. This was a sign that hard cash, and not faith, drives terrorism in this area.

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But the price of stopping infiltration is not small. The 180-km stretch of the fence along the Jammu frontier will cost an estimated Rs.86 crores, or approximately Rs.46 lakhs a km. Each of the nearly 450 km length of the fence in Punjab cost upwards of Rs.22 lakhs; and the stretch in Rajasthan, which was built across shifting sand dunes, will cost considerably more. "The point," says Jammu and Kashmir Police Superintendent of Police Manisha Kumar, responsible for security on the border, "is that we can't afford not to act." The point was driven home on August 23, when three soldiers were killed by terrorists at Sapuwal, just 6 km from the border. The terrorists, equipped with assault rifles and explosives, were holed up in a nursery just off the national highway - only a few metres from the area where the Sealdah Express was bombed early last year. "Any major build-up in Jammu," says Vijay Raman, the BSF Inspector-General in charge of the Jammu frontier, "will have terrible consequences. We just can't afford to have our main lines of communication come under continued assault. We have to stop Pakistan's diplomats coming through this channel."

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A few hundred kilometres to the south, officials agree with this view. "While the Punjab Police did a fine job fighting terrorism," says A.S. Aulakh, BSF Inspector-General, "the fact is that the fence played a key role in ensuring that more terrorists could not come in to replace those eliminated in combat." Of the 554 km of the Punjab frontier, 469 km are covered by three layers of barbed wire, supplemented by rolls of razor-sharp concertina wire and high-voltage cobra wire that can be fatal on contact. On either side of the fence run pillar after pillar of floodlights. The electricity bill for the Punjab frontier alone runs to Rs.5 crores a year. But that amount, officials point out, is nothing compared to what India has had to pay for fighting terrorism in the state for a decade.

The fence has not made cross-border infiltration impossible. The dense growth of elephant grass around the river Ravi, for example, makes construction impossible and movement easy. BSF officials are now encouraging farmers to reclaim marshes in areas like the Kassowal Bulge in the Dera Baba Nanak area. But crossing into India through conventional means has certainly become a hugely hazardous enterprise. Last summer, BSF troops at the Chandigarh forward post discovered a tunnel running from the Pakistan side of the border to almost under the fence. Believed to have been dug by a well-known smuggler, Isaac Masih, the sheer scale of the tunnel work indicated just how desperate Pakistan was to re-activate its routes into Punjab. As things stand, Indian intelligence is able to push its agents into Pakistan, while that country's sources of information on military movements inside strategically-important Punjab have all but dried up. "Every time we hold meetings with the Rangers," says BSF commandant Surinder Kumar, "they complain that the lighting intrudes on their privacy. I don't know what they want privacy for on the border, but the complaint indicates desperation."

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As in the Samba sector in Kashmir, much cross-border movement in Punjab depended on traditional smugglers. Two decades ago, such smuggling activity was treated with indulgence by border guards in both India and Pakistan. After prohibition was imposed in Pakistan by the Zia-ul-Haq regime, liquor revenue receipts in (Indian) Punjab doubled. Since it was unlikely that the State's residents had started drinking twice as much overnight, it was evident that tens of thousands of cases of liquor were making their way across the border. In return, smugglers brought gold, electronic equipment and dry fruits. "There was even a certain moral discipline to the whole thing," recalls one old-time BSF officer. "There would be no smuggling on Tuesdays, holy to local Hindus, or on Thursdays, the day of Muslim Pirs." Today, the trade continues through the customs post at Wagah, using passengers travelling on the Samjhauta Express; but the movement of arms and explosives has dried up.

But this is not the situation in Jammu. When the monsoon slush dries up through September, work on the fence will begin again. Workers are already fixing cables for floodlights around Nursery Post, and generators are being purchased to power the fence. Over 300 trucks were needed to bring in material for the fence work already completed - an indicator of the scale of work that lies ahead. By the end of this year, BSF officials hope to add at least another 10 km of fencing to the 15-km stretch already erected. "Whatever the odds, we will get the job done," says 39 Battalion Commander D.S. Randhawa. His counterpart across the border must share the sentiment - the other way around. In mid-August, Mohammad Ilyas Jhanjua, Commander of the 2nd Wing of the Chenab Rangers, was relieved of his command for his failure to stop the Indian fencing work. Local residents too are bracing for battle. "We have seen tank battles in 1965 and 1971," says Waryam Singh, an elder from Jasso Chak. "This is nothing," he adds.

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A few kilometres from Jasso Chak lies the shrine of Chamliyal. Each summer, thousands of Muslim pilgrims from Pakistan wait across the border to make offerings of earth, reputed to cure skin ailments, and holy water, to be shipped across the border by the BSF. Hindu pilgrims from Jammu, in turn, wait for the Rangers to send across the traditional offering of a holy shroud. When the Rangers sought to put an end to the practice in 1998, arguing that such Sufi traditions had no place in an Islamic state, village residents complained that their cows had run dry. Local pressure forced the annual border crossing to resume.

When, or if, India and Pakistan ever make peace, the fence will be an abiding monument to the most bitter conflict of the second part of the 20th century: one that the region's people - the experience of Chamliyal seems to suggest - seem certain, serves no purpose at all.

UNDER LEGAL SIEGE

cover-story

With the Supreme Court intervening decisively in Jayalalithaa's legal battles, her second tenure as Tamil Nadu Chief Minister appears to be nearing an end.

SUKUMAR MURALIDHARAN T.S. SUBRAMANIAN V. VENKATESAN

JAYALALITHAA was sworn in Chief Minister of Tamil Nadu on May 14, 2001, by M. Fathima Beevi, a former Judge of the Supreme Court who happened then to be the Governor of the State. There were questions of legal rectitude and constitutional propriety involved in the decision, which seemingly eluded the comprehension of the Governor. Ironically though, most editorial writers in the national press easily managed to negotiate these seemingly complex questions without the benefit of legal education, even less with the experience of a tenure on the nation's highest judicial forum.

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Fathima Beevi soon found herself evicted from the gubernatorial mansion in Chennai for her failure to exercise any form of ethical oversight over a government she had sworn in without a clear constitutional sanction. And now, sooner rather than later, Jayalalithaa's own tenure as Chief Minister seems likely, but for completely unforeseen developments, to end in stricture and admonition from the Supreme Court.

Politically, Jayalalithaa will now be compelled to do under duress what she should have done four months back as a gesture of faith in basic democratic norms. And any pretence of sagacity that she might affect, any effort to portray her impending resignation as a sacrifice of her own interests in the larger cause of safeguarding accountability and probity in public life, will be undermined by a record of reckless adventurism since her political resurrection in the Tamil Nadu Assembly elections.

Indeed, no Chief Minister in India has at any given time been under scrutiny by quite as many constitutional and statutory authorities. Even as the Supreme Court deliberates upon the legitimacy of her claim to remain as Chief Minister, the Madras High Court is hearing appeals against her conviction for corruption, the National Human Rights Commission is inquiring into her arbitrary use of police powers against political adversaries, and the Press Council of India is investigating her efforts to deny the media its rightful democratic space.

For those of a facetious disposition, willing to accede to the demands of convenience, the Indian Constitution is what is made of it by governments, subject only to the occasional restraints of judicial intervention. For those more seriously engaged in politics and the defence of democratic rights, the Constitution embodies weightier principles - it is nothing less in fact than the embodiment of the popular will. The hearings before a Constitution Bench of the Supreme Court on Jayalalithaa's eligibility to be sworn in have provided an opportunity to affirm a basic verity of politics: the popular franchise is exercised under the Constitution and cannot in any instance provide a mandate to disregard the central principles of constitutionalism. A convicted person who has failed to secure a suspension of conviction is ineligible to contest elections to any legislative body. And being ineligible to contest, he or she would not be entitled to hold a position of ministerial authority, including that of Chief Minister.

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The presumption of innocence is a basic principle of jurisprudence in India, applicable until the last judicial appeal is exhausted. Yet for reasons connected to the growing concern over corruption in public life, this principle has tentatively been modified in law - if not in fact - for those found guilty of malfeasance while holding public office. The benefit of the doubt is now applied to an individual found guilty of corruption, to the extent that he or she is spared the need to spend time in prison immediately. Nor is this person deprived of the normal rights of an ordinary citizen. But if he or she were to entertain ambitions of elected office, the burden of proof would stand reversed. Innocence would have to be established beyond all reasonable doubt, if necessary by approaching the highest forum of judicial determination, before he or she is allowed the right to contest for elected office.

This position in law is not firmly established yet, since it is the outcome of several different circumstances. First, the Supreme Court has in a case involving the Prevention of Corruption Act, issued the dictum that a suspension of conviction would not normally be given, prompting various High Courts to follow the example and thereby establish a fairly clear convention. Read in conjunction with Article 8 of the Representation of the People Act, this means that an individual held guilty of corruption and sentenced to a certain term of imprisonment would be disqualified from holding elected office. The Election Commission in 1997 underlined this new orthodoxy by directing Returning Officers to disqualify any candidate who remained convicted, irrespective of the status of his or her appeal. In its order, the Commission made it clear that it was basing its new position on a number of court judgments.

Jayalalithaa filed her nomination papers from four different constituencies for the Assembly elections in Tamil Nadu, and was disqualified from all of them. She chose not to contest the decisions of the Returning Officers in the four constituencies through an election petition in the Madras High Court, and assumed office as Chief Minister in the expectation that the basis of her disqualification would be removed in good time for her to secure a seat in the Tamil Nadu Assembly. The Election Commission's 1997 Order has not thus far come under legal challenge. What is more, the Supreme Court has held unequivocally that a suspension of conviction will not be granted in a case involving the PCA. Even if the sentence handed down by a trial court can be suspended during the process of appeal, the individual convicted will be deemed, for all legal purposes, to be under conviction until his or her final appeal is disposed of. After hearing Jayalalithaa's petition in April 2001, Justice Malai. Subramanian of the Madras High Court made certain observations apparently in her favour. However, he failed to give her the critical relief sought - suspension of her conviction.

Despite all these vicissitudes, Jayalalithaa assumed office as Chief Minister, only to be challenged through quo warranto petitions in the Madras High Court to vacate office. Similar challenges cropped up in other judicial forums, prompting the Supreme Court to gather all the petitions into its jurisdiction. And after a preliminary hearing of the case in July, a Supreme Court Bench decided to refer all the questions before it to a Constitution Bench.

In hearings before the Constitution Bench which started on September 4, the advocates appearing for Jayalalithaa seem to have taken the tack that she was entitled to assume office as Chief Minister under Article 164(4) of the Constitution. Anybody could assume ministerial office for a period of six months, said K.K. Venugopal, senior counsel appearing for the Chief Minister, without fulfilling the prior condition of being a member of an elected legislative body.

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Unfortunately, this did not quite address the substance of the petitions that had been filed before the Supreme Court, one of which argued in its opening paragraph that "(t)here has been no case where Article 164(4) has been utilised for swearing in a Chief Minister who has been disqualified under Election law because of a conviction under the Prevention of Corruption Act and who has failed to get a stay from the court."

In other words, the Constitution required a Minister or Chief Minister to be a member of an elected legislative body, and at the time she was sworn in Chief Minister, Jayalalithaa was disqualified from membership of a legislative body. The six-month grace period granted to a person otherwise qualified for election to seek membership of a legislative body did not apply here.

Fali S. Nariman, senior counsel for one of the petitioners, submitted before the Bench that the Governor ought to have gone by the fact that on the date of appointment of Jayalalithaa as Chief Minister, she was ineligible to become a member of the legislature. Article 164(4), he said, was only an ad hoc provision and an exception which allowed a ministerial appointee who had the necessary qualifications to acquire membership of the legislature within a period of six months.

Additional Solicitor-General Harish Salve, appearing in assistance of the court, argued that Article 164(4) was only intended for an unqualified person to acquire the necessary qualification. It was a conditional waiver given to a strong constitutional requirement for ministerial status. And in the case of Jayalalithaa the waiver had been wrongly invoked because she was not merely unqualified by virtue of not being a member of the legislature but disqualified from membership by virtue of her conviction.

Similar submissions were made by Attorney-General Soli Sorabjee who appeared in aid of the court, and senior advocates Ashok Desai and Anil Divan who appeared for other petitioners. Counsel for Jayalalithaa apparently took the position that Article 164(4) had a specific purpose, which was to enable an individual who was not a member of the legislature to acquire the necessary qualification for ministerial status within a period of six months. In this respect, the Article did not distinguish between those who were unqualified by virtue of having lost - or not contested - an election, and those who were disqualified by virtue of election law. In other words, the respondent Jayalalithaa could be freed from the legal constraints inhibiting her assumption of ministerial office within the period of six months granted under Article 164(4). That would bestow retrospective legitimacy to the Governor's action in swearing her in.

Senior counsel K.K. Venugopal, appearing for Jayalalithaa, repeatedly emphasised that Article 164(4) did not impose any qualifying requirements for ministerial posts. And where this domain of silence prevailed, the popular will should be allowed to hold sway, he contended. Venugopal's repeated emphases on the popular will led at one stage to a query from Justice S.P. Bharucha, the seniormost member of the Constitution Bench otherwise composed of Justices G.B. Pattanaik, Y.K. Sabharwal, Ruma Pal and Brajesh Kumar. The popular will was irrelevant to the concerns of the court, the Judge said. What was important was the constitutional position.

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This observation from the Bench underlines the truth that a franchise exercised under a constitutional order cannot in any circumstances provide a mandate to override the fundamentals of constitutionalism. Constitutional and legal prohibitions exist on Jayalalithaa acquiring membership of a legislative body. Her counsel has contended that there are no similar proscriptions on her becoming a Minister or a Chief Minister. Indeed, the basis of her disqualification could well cease to exist within the six-month period of waiver that has been granted for Ministers to hold office without membership in the legislature. Article 164(4) had no provisions on the qualifications necessary for one to be sworn in Minister or Chief Minister. In this respect it was substantively different from other clauses of the Constitution, which laid down strict qualifying requirements for the posts of President and Governor. Again, while it was true that a Governor's decision in appointing a Chief Minister could be subject to judicial review, this could only be on grounds of arbitrariness, mala fide or failure to exercise appropriate thought. None of these applied in this case since the Governor simply went by an electoral verdict and the decision of a party with a majority in the legislature in swearing in Jayalalithaa Chief Minister.

Speaking for the Bench, Justice Bharucha tacitly admitted that there was an area of ambiguity in the Constitution in this respect. But it was an ambiguity that the Supreme Court intended to address and resolve. Its observations on the people's mandate seem to indicate that if it is called upon to adjudicate a supposed conflict between an electoral outcome and the rule of law, it will tilt towards the latter. The court, in the opinion of most legal experts, would not like to don the garb of political populism in the present circumstances. And it would be difficult for it to refute the proposition that under constitutional principles only a person who is qualified for membership can become a Minister under Article 164(4).

Strong indications of the mind of the court came from a pointed inquiry directed towards Attorney-General Sorabjee: what would be the consequences if Jayalalithaa's appointment were to be declared void and orders issued for her to vacate office? Sorabjee's response was that certain irreversible actions would, in accordance with the 'doctrine of necessity', have to remain unopened. A Chief Minister's resignation was normally taken to mean that the entire Council of Ministers went with her or him. The new Chief Minister would, however, have the option of retaining the same council or appointing another one of his or her choice.

There is another range of possibilities which the Attorney-General did not touch upon. If the All India Anna Dravida Munnetra Kazhagam (AIADMK) Legislature Party were to follow up an adverse Supreme Court judgment and elect a new leader, the matter would be quickly resolved. But there is in the situation inherent potential for constitutional gridlock, should the AIADMK Legislature Party decide that Jayalalithaa is the person uniquely qualified to lead it. This will be a clear case of constitutional governance becoming impossible in the State, provoking the imposition of President's Rule. But this ultimate recourse of the Central government too is subject to the ratification of both Houses of Parliament. And the political arithmetic of Parliament does not exactly guarantee the smooth passage of any resolution imposing President's Rule in Tamil Nadu.

The senior lawyer and legal scholar Rajeev Dhavan warns that President's Rule should not be thought of as a remedy. Rather, the Supreme Court should think of other caretaker possibilities, if necessary by issuing specific directions on how a constitutional impasse could be avoided.

Counsel for Jayalalithaa addressed the prospect of political instability and unrest in the event of her eviction from office. He urged the Bench to consider the possibility of applying its findings on Article 164(4) with prospective effect. This would mean that Jayalalithaa could complete her six-month tenure and then quit in the event that she has failed to acquire the necessary qualification for holding ministerial post in the intervening period. The reasoning here is that in swearing in Jayalalithaa as Chief Minister the Governor did not have the benefit of the judicial wisdom of the Constitution Bench. And since the new constitutional orthodoxy is only now being affirmed, it would be unfair to hold the Governor's actions in May to the standards that did not then exist.

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Few legal experts are convinced by this line of argument. Rajeev Dhavan, for instance, points out that the Bench is dealing with a clutch of quo warranto petitions which have demanded Jayalalithaa's removal from office. Moreover, it is a fundamental fact of the judicial process that it takes infinitely less time to commit an error than for a judicial determination of error to be arrived at. But this does not mean that the consequences of the error can be allowed to persist for much longer after the judicial determination. In a case involving the public interest in good governance, it would be extremely inappropriate for the court to endorse the doctrine of prospective application, argue certain legal scholars.

Meanwhile, there has been meanwhile another sequence of dramatic events connected with the hearing of Jayalalithaa's appeal against her conviction in two cases of corruption. In the Jaya Publications and Sasi Enterprises cases, known jointly as the TANSI (or Tamil Nadu Small Industries Corporation) cases, she has been sentenced to terms of rigorous imprisonment of three and two years respectively. In the Pleasant Stay Hotel case, she has been sentenced to a year's imprisonment.

These are the original sources of Jayalalithaa's legal travails, since the two convictions in the TANSI case, being under the scope of Section 8(3) of the Representation of the People Act, resulted in her disqualification from contesting the Assembly elections held in May. Crucially, she has chosen not to contest the implicit reversal of the presumption of innocence under which she was disqualified. But all her convictions are now under appeal in the Madras High Court, where they have become the arena for bitter partisan wrangling by different elements of the Bar.

In November 2000, Justice Akbar Basha Khadri of the Madras High Court directed that her appeals against conviction should be heard "expeditiously" and disposed of within two months. Concurrently, he declined to suspend her conviction, though she benefited from a suspension of sentence for the duration of the appeals process. Legal experts affiliated with the AIADMK insist that this directive from the Bench was wantonly flouted by the prosecution while M. Karunanidhi's Dravida Munnetra Kazhagam (DMK) was in power.

Jayalalithaa's appeals were first posted before Justice S. Jagadeesan. Again there was a phase of partisan wrangling about his suitability for the case. A section of the Madras High Court Bar insisted that the appeals should be heard by a Division Bench since it involved a matter of the greatest public importance. The rival grouping denounced this demand as a thinly veiled assault on the integrity of the judiciary.

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By a ruling in July 2001, the Madras High Court held that the case for the prosecution would continue to be represented by K.V. Venkatapathi, who served as Advocate-General in the DMK government. This order was issued on the well-respected grounds that nobody could be a credible prosecutor in his (or her) own case. An Advocate-General or Public Prosecutor appointed by Jayalalithaa could not, in other words, be expected to pursue the cases against her with the necessary objectivity and dispassion.

IN mid-August, Jayalalithaa's cases were assigned to Justice R. Balasubramanian, who proceeded - in an evident effort to project a sense of purpose - to declare that he would start hearings on August 27, hear the case continuously over a period of time, and, as soon as the arguments were over pronounce judgment in open court. Unfortunately, in subsequent pleadings before the Supreme Court, this statement of intent was cast in a distinctly less favourable light: as signs of a certain frivolity or intent.

Hearings on the appeals began on the appointed day, but advocate Venkatapathi then managed to set in train a sequence of rapidly developing events that seemed decisively to scupper the Judge's intent to settle matters at the earliest. He first registered his protest in the court over the scales being tilted against him. Crucial documents had not been given to him, he said, such as the statements of the accused under Section 313 of the Criminal Procedure Code. Moreover, he had only just managed to gain access to the huge volume of case papers, running to over 2,000 pages, and needed at least a week to study them.

Justice Balasubramanian, however, indicated that he was inclined to allow the defence counsel to present their arguments, though he assured Venkatapathi that he would be given "sufficient time" to read the necessary papers. Venkatapathi then launched a flanking operation that took legal circles in Chennai completely unawares. Even while attending the court proceedings in the Madras High Court, he lodged a petition with the Supreme Court, pleading for a stay on the hearing of Jayalalithaa's appeals. Mentioning this petition before a Bench comprising Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan, Attorney-General Sorabjee described the court's denial of essential documents to Venkatapathi as "an extraordinary event". "Whether the proceedings can be termed a farce or a tragedy," Sorabjee continued, it would be "expedient in the interest of justice that these appeals are directed to be transferred from the Madras High Court to any other High Court, especially in view of the fact that the appellant is the Chief Minister of the State."

In granting a stay on proceedings, the Supreme Court took a dim view of the proceedings in Chennai. It cannot "disregard lightly" the statement of advocate Venkatapathi that he had been denied necessary case papers, said the Bench. It was improper on the part of the court to have summarily rejected his perfectly reasonable request and order at the same time that counsel for the appellant continue with his arguments. "If what is stated in the transfer petition is correct," the Judges concluded, "and in the circumstances, we have no reason, prima facie, to disbelieve it, it is appropriate that notice be issued on the transfer petition and that the continuance of the hearing of the criminal appeals be stayed."

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This was evidently a major setback for Jayalalithaa in her race to beat the six-month deadline to qualify for membership of the legislature, especially since it came before the Constitution Bench hearing the petitions against her appointment as Chief Minister had given expression to some of its deepest concerns then. When the Constitution Bench opened its hearings, Justice Bharucha thought it appropriate to mention to senior counsel Venugopal that he had received a flood of telegrams emanating from Chennai denouncing Venkatapathi as a 'liar'. To Justice Bharucha's observation that this was reprehensible behaviour, Venugopal added his own assessment that it could be "counter-productive".

When the stay on proceedings in Jayalalithaa's appeal was taken up next time, the Supreme Court evidently came to the finding that Justice Balasubramanian had followed an improper procedure. But it softened the rigour of this finding by underlining that its decision to transfer the case to another Judge of the Madras High Court was not in any way a reflection on Justice Balasubramanian's competence or integrity.

The Supreme Court also directed Venkatapathi to furnish before the registry of the High Court the list of documents that he wished to peruse for the purpose of arguing his case. Such a request was to be made before September 10 and complied with at the earliest. Following this, the hearings could begin before a Judge to be nominated by the incoming Chief Justice within a week of assuming charge. In no case, however, could the hearings begin before October 1, this being in the assessment of the Supreme Court, the earliest date by which all the precedent conditions for a fair judicial procedure could be met.

Just a day after the Supreme Court gave this ruling, Justice B. Subhashan Reddy from the Andhra Pradesh High Court was appointed Chief Justice of the Madras High Court. One of the grounds on which Jayalalithaa could have complained of undue delay has now been removed. Justice Subhashan Reddy will now have to assign her appeals against conviction to a Judge of the High Court within a week of assuming office.

With all these stipulations laid down by the Supreme Court, Jayalalithaa's political fortunes stand precariously balanced on a sequence of crucial dates. The option of quitting office after six months and being sworn in again has been eliminated by a recent Supreme Court ruling, in a case involving a Punjab Minister who had utilised precisely such a stratagem to avoid securing membership of the legislature while enjoying all the powers and prerogatives of ministership. For Jayalalithaa's failure to secure membership in the legislature before November 13 would involve her resignation or dismissal as Chief Minister.

IF the High Court were to commence hearings on her appeals on October 1 and dispose of them within a reasonable period, her status and eligibility for membership of the legislature could be clear by early November. This would enable her to make a rough estimate of the duration of the interregnum between her resignation from office and possible return to power. Of course, if the High Court were to uphold her conviction and reaffirm the sentence handed down by the trial court, this interregnum would be of indefinite duration. On the other hand, if she were to be acquitted, she would be free of all encumbrance and could contemplate a return to power within the reasonable time required for the Election Commission to conduct a byelection. If the High Court were to uphold her conviction and mitigate her sentence to a period less than two years, she would be free of the disqualification for membership of the legislature. But she may, depending upon the circumstances to be determined by the High Court, have to commence serving her sentence while pursuing her appeal before the Supreme Court. This would, to put things mildly, be a rather serious constraint on her ambitions to return to chief ministerial authority at the earliest.

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The deliberations of the Constitution Bench of the Supreme Court, of course, constitute the other main factor that has a bearing on the future of politics in Tamil Nadu. Hearings are expected to be concluded in this case some time in September, following which the Bench is expected to reserve judgment. Although it is always hazardous and generally inadvisable to speculate on the possible time-frame within which a Constitution Bench can resolve an issue of far-reaching import, a final judgment during the pendency of Jayalalithaa's appeal in the High Court cannot be ruled out. And if the observations made by Justice Bharucha and his associates on the Bench are any indication, then the Supreme Court currently seems of the mind that between popular franchise and the rule of law, the latter must necessarily take precedence. This means that Jayalalithaa's eviction from office through judicial fiat could come much earlier than the November 13 deadline.

Democratic politics, it is often said, cannot function as a proprietary business. Nor can political morality be subordinate to the personal insecurities of any politician. Jayalalithaa may well imagine that the AIADMK victory in the May 2001 Assembly elections was a mandate for her personally to govern. The party is of course a proprietary concern in which she has sole ownership rights. But in terms of democratic principles, the May 2001 verdict was a mandate for the party, which could elect anybody who has the necessary qualifications to lead it in the mission of governing the State. Jayalalithaa's personal insecurities, her own vulnerabilities and her sense of isolation prevented her from seeking this perfectly reasonable recourse in May. Today she may well find from a considerably weakened position that she really has no other option.

The TANSI cases

T.S. SUBRAMANIAN cover-story

FOR Chief Minister Jayalalithaa, two cases, the Jaya Publications case and the Sasi Enterprises case - known as the "TANSI cases" - have become a spectre haunting her for half a decade now. They form the core of her legal troubles.

The two cases relate to certain deals Jaya Publications and Sasi Enterprises, in both of which Jayalalithaa and her close friend Sasikala Natarajan are partners, had with the Tamil Nadu Small Industries Corporation (TANSI), a State government undertaking. The cases had their origin in 1993 when Janata Party president Subramanian Swamy sought permission from Governor M. Channa Reddy to prosecute Jayalalithaa on charges of corruption. Jayalalithaa was then Chief Minister heading the All India Anna Dravida Munnetra Kazhagam (AIADMK) government (1991-96).

After the Dravida Munnetra Kazhagam (DMK) headed by M. Karunanidhi returned to power in the State routing the AIADMK in the 1996 elections, the pace of investigation in these two cases was stepped up and it was entrusted to the Crime Branch-Criminal Investigation Department (CB-CID) of the State police.

The CB-CID filed the chargesheet in the Jaya Publications case on November 15, 1996. The six accused are Jayalalithaa; Sasikala; former Chairman and Managing Director of TANSI T.R. Srinivasan; former Rural Industries Minister Mohammed Asif; former Special Deputy Collector (Stamps) S. Nagarajan and Jayalalithaa's former Additional Secretary R. Karpoorasundarapandian. The charges are that Jaya Publications bought 3.07 acres of land and a building belonging to the TANSI Foundry at Guindy in Chennai below their guideline value and in the process gained more than Rs.3.5 crores. There was thus wrongful loss to the government. The State government also suffered losses because of the consequent reduction in stamp duty and registration fees payable, the chargesheet said. Jayalalithaa was Chief Minister when Jaya Publications bought the property in March 1992. The chargesheet alleged she "abused her official position at every stage" in the transaction although no public interest was involved. Since she was a public servant then, she attracted the provisions of the Prevention of Corruption Act (PCA).

The same six persons are accused in the Sasi Enterprises case. According to the chargesheet filed on October 22, 1997, the six entered into a criminal conspiracy between 1991 and 1993, and helped Sasi Enterprises in the purchase of the land, building and machinery belonging to TANSI Enamelled Wires at undervalued terms. Although the value of the land was around Rs.90.53 lakhs, the amount mentioned in the sale deed was Rs.53.04 lakhs. For the building, the sale deed was executed for Rs.16.15 lakhs against the guideline value of Rs.25.66 lakhs, the chargesheet said. The machinery too was undervalued. Thus, there was wrongful loss to the government. According to the chargesheet, Jayalalithaa and Sasikala obtained a monetary advantage of Rs.66.11 lakhs in the transaction.

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Special Judge P. Anbazhagan handed down the judgments in the two cases on October 9, 2000. He convicted and sentenced all the six accused to imprisonment in the Jaya Publications case. In the Sasi Enterprises case, five of six accused were convicted and sentenced. Asif was acquitted.

In the Jaya Publications case, the Special Judge convicted and sentenced Jayalalithaa to three years' rigorous imprisonment and a fine of Rs.10,000. He said that "the first accused dishonestly abused her office" as Chief Minister and bought the TANSI property. He added that "there was no force in the argument that TANSI was a private property". In the Sasi Enterprises case, Jayalalithaa was handed down two years' imprisonment and fined Rs.5,000. In each case, Sasikala received the same sentence as Jayalalithaa. The sentences were passed under Section 120-B (punishment for criminal conspiracy) and 409 (criminal breach of trust by public servant or by 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.

The Judge held as not proved the charge under Sections 169 and 119 of the IPC. Section 169 of the IPC deals with "public servant unlawfully buying or bidding for property". Section 119 talks about "public servant concealing design to commit offence which it is his duty to prevent". The Judge ordered the confiscation of both properties.

In the Pleasant Stay Hotel case, Special Judge V. Radhakrishnan on February 2, 2000, convicted and sentenced Jayalalithaa to one year's rigorous imprisonment for her role in illegally granting exemption to the hotel in 1994 from building and hill area development control rules to enable the unauthorised construction of five additional floors to its building in the heart of Kodaikanal town.

There were five accused including Jayalalithaa. The four others were former Local Administration Minister and present Lok Sabha member T.M. Selvaganapathy; former Secretary, Municipal Administration and Water Supply H.M. Pandey; executive director of the hotel Rakesh Mittal and its chairman and managing director Palai N. Shanmugham. (Shanmugham is no more.)

Special Judge Radhakrishnan convicted all the five accused under Section 120-B of the IPC and sentenced them to one year's rigorous imprisonment. He held them guilty of conspiring to get the exemption granted. The accused were also found guilty under the PCA.

All the accused in the three cases went on appeal to the Madras High Court against their conviction and sentences. Arguments opened in the appeals on August 27 this year before Justice R. Balasubramanian. Senior Advocate K.K. Venugopal led the defence for Jayalalithaa. He said the TANSI properties bought by Jaya Publications and Sasi Enterprises fell under Alandur village (a suburb of Chennai) and not under Adyar, where the price of land was higher. So their value was much lower than claimed by the prosecution. He alleged that the market values mentioned by the prosecution for the two properties were "cooked up" and that "fixation of market price was guesswork". Several properties situated close to these two TANSI properties were sold at a price lower than these two properties.

Venugopal contended that the guideline value had no force of law. He claimed that Jayalalithaa was given to understand that she was charged with having purchased TANSI properties far below the guideline value and that only at the final stage of the trial, the prosecution changed its version to say that she purchased property below the market value. Proper procedures were not followed in amending the charges. So "prejudice" was caused to her, he said. Even accepting that the market value was Rs.7.32 lakhs a ground ( a unit of measurement comprising 2,400 square feet), it still worked out to Rs.3 lakhs a ground if the development charges were also taken into account. And Jayalalithaa did pay Rs. 3 lakhs a ground. So the property was not bought at a lesser price. Counsel added that the government had no entrustment of TANSI properties.

In the trial court, N. Natarajan, then Senior Special Public Prosecutor in the corruption cases against Jayalalithaa, argued that the Tiru. Vi. Ka. Industrial Estate (where the TANSI properties are located) was formed by carving out portions of land situated in Adyar and Alandur villages. The Tiru. Vi. Ka. Industrial Estate was brought under the jurisdiction of the Adyar Registrar. That is why both the TANSI properties bought by Jayalalithaa were registered in the Adyar sub-registry. They were brought under the jurisdiction of the tahsildar, Guindy-Mambalam revenue district. Natarajan said all this was clear from the evidence given by witnesses G. Venkatachalam and S. Dharmalingam who were examined by Jayalalithaa's counsel as defence witnesses.

Natarajan said the guideline ve value was fixed by the government. She purchased the properties when she was the head of the State government. If she did not stick to the value fixed by the government, who else was expected to do so, Natarajan asked. He said the prosecution had shown that both the guideline value and the market value were one and the same in that area at the time the TANSI properties were purchased. In 1990, Jayalalithaa had bought the Heatex Property in the Industrial Estate. She paid stamp duty for that property, accepting the guideline value of Rs. 6 lakhs a ground. In 1991, she bought the property of Idhayam Publications. In the sale deed its market value was mentioned as Rs.4.65 lakhs. Prosecution documents number 70 and 71 were marked to show that the market value of land in the industrial estate was Rs.7.32 lakhs a ground in the year the TANSI properties were bought.

Natarajan noted that the TANSI sub-committee had rejected the claim of R.R. Industries which quoted Rs.4.32 lakhs a ground to buy the TANSI Enamelled Wires property, saying it was below the guideline value (forgetting that the market value and the guideline were one and the same), and the tender was closed.

The Supreme Court has directed that arguments should begin afresh in the appeals not earlier than October 1. So Jayalalithaa's counsel has to repeat his arguments before the new Judge, who will be named, to hear the appeals. Even if the new Judge begins to hear the appeals from October 1, it will take about a week to 10 days to pronounce orders on the appeals.

On shaky ground

T.S. SUBRAMANIAN cover-story

With Jayalalithaa going through a time of legal and political troubles, Tamil Nadu faces uncertainty.

WITH orders expected in a few weeks in the Supreme Court and the Madras High Court in cases that will decide her future, Tamil Nadu Chief Minister Jayalalithaa is on a sticky wicket, legally and politically.

The All India Anna Dravida Munnetra Kazhagam, which she heads as general secretary, was in the throes of a crisis as the realisation dawned on partypersons that she had nearly run out of time to get elected to the Assembly in time to retain the chief ministership. There was gloom in its headquarters in Chennai as word spread that her legal advisers had reportedly hinted to her that she should resign. This was consequent on the Supreme Court staying on August 30 the proceedings in her appeals in the High Court and directing that another Judge should hear the appeals afresh but not earlier than October 1.

Soon Chennai buzzed with speculation on who Jayalalithaa would nominate to become Chief Minister if she were forced to step down. The names mentioned in this context were those of Electricity Minister D. Jayakumar, Education Minister M. Thambidurai and Finance Minister C. Ponnaiyan. Rumours also travelled from New Delhi that she would not nominate a sitting legislator because there was the possibility of the nominee refusing to step down later. So her choice, speculation had it, would be a non-legislator such as Visalakshi Nedunchezhiyan or Dr. V. Maitreyan, who will have to get elected to the Assembly within six months. The Intelligence wing of the State police got into the act, and spread the word that the choice was likely be Uppiliayapuram R. Saroja, Minister for Tourism.

Jayalalithaa herself remained inaccessible. Informed sources said that she was "upset" by the Supreme Court's stay on the proceedings in the High Court. She reportedly got annoyed with Ponnaiyan, who holds the Law portfolio as well, for having failed to file a caveat in the Supreme Court anticipating that K.V. Venkatapathi, Special Prosecutor in the appeals, would move the apex court.

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When the effect of the Supreme Court's stay order sank in, Jayalalithaa reacted angrily in the Assembly on September 1. She asked DMK members whether or not they had tried to influence the Supreme Court in the cases against her. She said she was not attributing motives to the Supreme Court but it had ruled against a Special Judge discharging her from the 'coal case' after the DMK government appealed against the verdict. Earlier, a Judge of the Madras High Court had upheld her discharge in the same case, she said. "How did they (the DMK) obtain the judgment? The DMK members should clarify whether or not they obtained the judgment using influence," she said.

However, realising that her rhetorical query could boomerang on her, she claimed on September 3 that newspapers had "wrongly" reported her remarks, attributing different meanings to it. She said that the DMK members had argued that her present appeals in the TANSI cases (relating to the purchase of the property of the government-owned Tamil Nadu Small Industries Corporation) should not be heard by the Madras High Court because she was the Chief Minister of the State. However, when the Special Judge discharged her in the coal case and the High Court upheld it, the DMK government appealed against it in the Supreme Court. The apex court ruled against her being discharged. "So I made a statement to the effect that DMK members should clarify whether someone would not think that the DMK, being part of the coalition government at the Centre, obtained that order," she said.

Jayalalithaa added: "I only spoke in the sense that whether those who claim that justice will not prevail in the High Court when I am Chief Minister would accept any claim that the order was obtained in the coal case using influence. I did not say anything else meaning to disrespect the court... I have never expressed any opinion about Judges when orders were passed affecting me. I have never found fault with any court. I respect every Judge. I fielded a retired Judge of the Supreme Court as a candidate of the AIADMK in the Lok Sabha elections (in 1999). I have not said anything in this House attributing motives to Supreme Court Judges."

Jayalalithaa was on shaky ground on the political front also. The Pattali Makkal Katchi (PMK), which was an important constituent of the AIADMK-led front in the Assembly elections in May, has pulled out of the alliance. G.K. Moopanar, president of Tamil Maanila Congress (TMC), another key ally of the AIADMK, died on August 30 (obituary on page 118). The TMC has elected G.K. Vasan, son of Moopanar, as party president. But Vasan's leadership qualities are untested. Some senior TMC leaders, who were against Vasan being anointed party president, want the party to merge with its parent, the Congress(I). These factors could affect the AIADMK's prospects in the panchayat elections, which are scheduled for October 16 and 18.

Although PMK founder Dr. S. Ramadoss, after quitting the AIADMK alliance, was speaking about forming a third front, it looks certain that the PMK will return to the National Democratic Alliance (NDA) led by the DMK in Tamil Nadu. M. Karunanidhi, DMK president and former Chief Minister, said on September 9 that there were "chances" of the PMK joining the NDA in the State. He said: "We cannot say anything pointedly about other parties." This was seen as a barb aimed at the Marumalarchi Dravida Munnetra Kazha-gam (MDMK), which too left the DMK-led front before the Assembly elections. MDMK general secretary Vaiko maintains that his party will not have ties with either the DMK or the AIADMK in the panchayat elections. But sources in the Bharatiya Janata Party say that its State general secretary L. Ganesan will try to bring both the PMK and the MDMK into the NDA. If that happens, the NDA will be stronger in Tamil Nadu. However, the Dalit Panthers of India, headed by its convener R. Thirumavalavan, and the Puthiya Tamizhagam, another Dalit-based party in the DMK front, oppose the return of the PMK.

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The AIADMK is bound to feel the loss of the support of key sections of the Vanniya community, the main support base of the PMK. The TMC leaders themselves admit that the party's entire vote share (about 10 per cent) may not be transferred to the AIADMK.

Besides, the Congress(I) in Tamil Nadu has hardly been warm in supporting its ally. E.V.K.S. Ilangovan, TNCC president, has been trenchant in his criticism of the AIADMK. Addressing a public meeting in Chennai on late Congress leader K. Kamaraj's birthday on July 15, Ilangovan went to the extent of declaring that the two Dravidian parties (the DMK and the AIADMK) "should be sent home". He also said that the Congress(I) would like to contest the panchayat elections on its own. These observations drew a sharp response from AIADMK leader K.A. Sengottaiyan, who appealed to Jayalalithaa "not to have any ties with the Congress as long as Ilangovan remains TNCC president".

P. Chidambaram, president of the TMC Democratic Forum and former Union Finance Minister, alleged that Jayalalithaa "did not provide good governance" in the 115 days in office, noting that she had spent her energies in fighting legal battles. She did not attend the National Development Council meeting in New Delhi and the Chief Ministers' conference convened by Prime Minister A.B. Vajpayee. Nor did she meet the Deputy Chairman of the Planning Commission to finalise the State's Plan outlay. The State was "perilously close to a debt trap," Chidambaram said. The State Budget did not announce any new investments in industries or any programme to tackle unemployment, he pointed out.

What will be comforting for Jayalalithaa is that the Communist Party of India (Marxist) and the Communist Party of India (CPI) will continue to be firm allies.

AIADMK sources fear that the grip of the Sasikala family on Jayalalithaa will increase if she resigns. Sasikala, a close friend, lives with Jayalalithaa at Poes Garden, Chennai. After the AIADMK lost power in the 1996 elections, the party split. Several top leaders left the party, alleging that Sasikala's family was virtually running the party. The lavish wedding celebration of V.N. Sudhagaran, Sasikala's nephew and Jayalalithaa's erstwhile foster son, in Chennai in September 1995 caused revulsion among the people in Tamil Nadu.

After Jayalalithaa became Chief Minister in May, there were indications that she was distancing herself from Sasikala. Unlike in her previous tenure when the Chief Minister came to the Secretariat infrequently and officials and Ministers had to meet her at home, she works in the Secretariat almost every day now. Party sources said that she was keen on providing an efficient government and so was keeping Sasikala's family at arm's length. But at a recent wedding function of a relative of Sasikala, Jayalalithaa pointedly referred to Sasikala's suffering for her sake.

Some larger questions

A.G. NOORANI cover-story

Transcending the facts of the unique and unprecedented sets of litigation arising out of Jayalalithaa becoming the Chief Minister of Tamil Nadu, two questions touch the core of India's democratic polity governed by the rule of law.

WHILE the issues of law and fact in the two parallel sets of litigation arising out of Jayalalithaa's swearing-in as Chief Minister by Governor M. Fathima Beevi on May 14 are important in themselves, transcending the facts of this unique and unprecedented case are two issues which touch the core of India's democratic polity governed by the rule of law.

Jayalalithaa was convicted on October 9, 2000 in the two cases involving the purchase of TANSI property, the Jaya Publications case and the Sasi Enterprises case, and sentenced to three years' and two years' rigorous imprisonment respectively in these. She was also sentenced to one year's imprisonment in the Pleasant Stay Hotel case. The first case alone sufficed to disqualify her from contesting an election to any legislature, under Section 8(3) of the Representation of the People Act, 1951. It disqualifies one who is "convicted of any offence and sentenced to imprisonment for not less than two years from the date of such conviction" and for six years after release. Article 191(e) of the Constitution adds a constitutional bar to the legal bar: "... if he is so disqualified by or under any law made by Parliament." The Act (Section 8(4)) pointedly made a different provision for a sitting legislator since he loses an existing office unlike a candidate who loses only a prospect of victory. In the case of a sitting legislator the bar begins three months after conviction unless an appeal has been filed.

Section 389(1) of the Criminal Procedure Code empowers the appeal court to suspend the conviction or sentence or both on admission of the appeal. The Supreme Court ruled in 1995 in the Narang case that the appellant must explicitly ask for suspension of the conviction and candidly state the reason for the plea. No such suspension of conviction was applied for or granted by Jayalalithaa, admittedly. Nor did she make any earnest effort to secure expedition of hearing of the appeal, soon after October 2000, though she knew the imminence of the elections to the State Assembly. Instead, she relied on the obiter of a single Judge, vague in itself, while filing her nomination papers. All four were rejected. She was sworn in Chief Minister all the same, invoking Article 164 of the Constitution. It, however, grants a six-month grace period to acquire the qualification of membership of the legislature; not to shed a disqualification existing at the time of swearing-in.

The two parallel proceedings before the Supreme Court arise out of: (a) petitions filed in the public interest challenging the legality of her appointment as Chief Minister, and (b) the court's intervention in proceedings before the Madras High Court in her appeals against the convictions. If Jayalalithaa's appeals had been decided in her favour before the petitions in the Supreme Court were heard, they might have rendered the petitions infructuous. For, an acquittal on appeal wipes out the conviction retrospectively from the date on which it was pronounced. Hearings on the PIL petitions in the Supreme Court began on September 4. Hearings on the appeals before Justice R. Balasubramanian of the High Court on August 27 took an unfortunate turn in two respects. The Judge declined a request by the Special Prosecutor, K.V. Venkatapathi, for at least a week's time to peruse the 2,245 typed sheets of case papers he had been given. Moreover, some vital documents were missing in the set of papers. Besides, the Judge laid down a fixed time-frame for the hearing - assigning three days to each side - and declared that he would pronounce judgment immediately thereafter in open court.

Venkatapathi moved the Supreme Court for transfer of the appeals to some other High Court. By its order of August 30 the court stayed the proceedings in the High Court. The Bench comprised Justices S.P. Bharucha, Y.K. Sabharwal and Ashok Bhan. Any hopes Jayalalithaa had of victory in the appeals before September 4 were dashed.

Jayalalithaa moved the Supreme Court to vacate the stay. On September 3, the court posted her application for hearing on September 7 and on that day the court made an order by consent of the parties. The appeals will now be heard in the Madras High Court itself but by another Judge. The hearings will not begin before October 1. The Special Prosecutor must be given the missing documents before September 18. The order, the court clarified, implied no aspersion on the Judge. But the Bench remarked that "if a judge makes such a statement (about pronouncement of judgment in open court) before knowing the complexities of the matter, we have no hesitation in allowing what has been prayed for by the petitioner."

Jayalalithaa must get herself elected an MLA by November 13 if she is to retain her office as Chief Minister. The Supreme Court's ruling in S.R. Chaudhuri vs State of Punjab and Others, on August 17, bars her re-appointment for another six months. Her counsel pleaded strenuously that the hearings of appeals should commence a little earlier since she was racing against time. The Bench then observed: "We understand all that. But that does not mean justice will not be done." With the Puja holidays for the court to run from October 19 to 29, she does face a gruelling race against time.

BY the time this appears in print, the five-member Constitution Bench of the Supreme Court will, in all probability, have completed hearings on PILs and reserved its judgment. Meanwhile, as the litigation has progressed, two issues of fundamental importance have come to the fore. One concerns the integrity of the prosecution. It is a disgrace that in India - unlike in the United States and Britain - the prosecutor works under the thumb of the state. It is surely odd that the head of the state's executive should be prosecuted by a lawyer in the service of the state. That is why in the hawala case in 1996 the Supreme Court made a series of orders on public interest litigation petitions, directing the Central Bureau of Investigation (CBI) to report to the court and forbidding the closure of any probe or prosecution except with its consent.

On July 24, 2001, the First Bench of the Madras High Court, comprising Chief Justice N.K. Jain and Justice P. Thangavel, made a historic order on a petition filed by the Alandur Municipal Chairman, R.S. Bharathi, who apprehended that the prosecutors appointed by the Chief Minister would not present the case effectively. They appointed the former Advocate-General under the Dravida Munnetra Kazhagam (DMK) government, Venkatapathi, as Special Public Prosecutor in place of the State Public Prosecutor, S. Gomathinayagam, on "the principle that justice should not only be done but also seen to be done".

This principle was brazenly violated in the Kissa Kursi Kaa case in which Sanjay Gandhi and V.C. Shukla figured as accused. On February 27, 1979, the District and Sessions Judge convicted both of a conspiracy to destroy the prints and negatives of the film and sentenced them to two years' rigorous imprisonment and fine. A three-member Bench of the Supreme Court started hearing of their appeals on November 26. Indira Gandhi returned to power in January 1980. The Special Public Prosecutor, Ram Jethmalani, who had conducted the case in the trial court, was removed from the position. In his place was appointed Joginder S. Wasu. The Press Trust of India reported that Wasu "folded up his arguments within 15 minutes in reply" to the arguments of the appellants' counsel. The court allowed the appeals. It was a pathetic judgment which the Supreme Court delivered.

In the hawala case and in Jayalalithaa's case, judicial intervention secured the appointment of prosecutors who would command public confidence (without implying any aspersion on the incumbents). But we need to reflect on the need for institutional reforms - an independent Director of Public Prosecutions.

Even more far-reaching in its import and consequences, however, are the Supreme Court's observation during the hearings of the case on September 6. At the repeated assertion of counsel for Jayalalithaa K.K. Venugopal, that the "will" of the people must be respected, the Bench observed: "We are not concerned with the mandate of the people. The Constitution is supreme. That is what we are interpreting, not the people's mandate... Please consider what you are saying - that regardless of conviction she has won the elections. Today, it is a question of two to three years. Tomorrow, it may be a sentence for murder. Are we left with no standards at all?" (The Hindu, September 7). The Judges also said "the Constitution is above people's will" (The Telegraph, September 7).

This is a problem as old as Greek democracy. On her conviction of electoral offences by Justice Jag Mohan Lal Sinha of the Allahabad High Court on June 12, 1975, Indira Gandhi took the matter to "the people's court" and organised rallies in her support. The Sangh Parivar discounts the rule of law. No court is competent to pronounce on the Ayodhya issue, it has long held. It has now reverted to its earlier demand for legislation - a law passed by the majority of the day to resolve a dispute politically.

The doctrine of "the people's will" has been invoked by corrupt demagogues throughout history. It has been invoked by corrupt politicians to cock a snook at the courts, most notably the U.S. Congressman Adam Clayton Powell who had in Harlem a constituency that would always vote for him regardless of his misdeeds. On the other hand, it is not for unelected judges to usurp the legislative power and thwart the popular will.

Dr. B.R. Ambedkar told the Constituent Assembly on October 14, 1949: "It is generally understood that the provisions of the Constitution are binding upon the different organs of the state. Consequently, it is to be presumed that those who work the Constitution, those who compose the legislature and those who compose the executive and the judiciary know their functions, their limitations and their duties." In plain words, none of the three is supreme; only the Constitution is.

Articles 75(2) and 164(1) of the Constitution provide respectively that Union Ministers including the Prime Minister and State Ministers including the Chief Minister "shall hold office during the pleasure of" the President and the Governor respectively. Explaining this phrase in the Constituent Assembly on December 31, 1948, Dr. Ambedkar said: "It would be perfectly open under that particular clause... for the President to call for the removal of a particular Minister on the ground that he is guilty of corruption or bribery or maladministration, although that particular Minister probably is a person who enjoyed the confidence of the House" (Constituent Assembly Debates, Volume VII, Page 1,186).

Dr. Ambedkar added: "I think honourable members will realise that the tenure of a Minister must be subject not merely to one condition but to two conditions. And the two conditions are purity of administration and confidence of the House. The Article makes provision for both..."

Dr. Ambedkar proceeded immediately to explain the reasons for allowing the six-month grace period. Significantly, he mentioned: "A person who is otherwise competent to hold the post of a Minister has been defeated in a constituency." He did not envisage a convicted person being allowed a grace period, only a competent person.

THE U.S. Supreme Court's judgment in the Dred Scott case provoked the Civil War. Judges can err. India's Supreme Court has repeatedly erred, especially on the process of appointment of judges. But it has also rendered yeoman service in upholding the rule of law. Its observations on September 7 were made in this fine tradition. The popular will cannot subvert values or stifle the individual's conscience.

Justice Robert H. Jackson of the U.S. Supreme Court once said: "If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein... The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, and place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections" (West Virginia State Board of Education vs Barnette 319 U.S. 624, on page 641 (1943)). This is also the raison d'etre of the doctrine of an unamendable "basic structure" of the Constitution. No constitutional amendment can build a temple or establish Hindutva.

The logic applies to Parliament no less. Its "sovereignty" is limited by the Constitution. Its privileges cannot override the citizen's fundamental rights. One hopes the court will incorporate its observations of September 7 in its judgment.

WHAT of the future? It is highly probable if not certain that Jayalalithaa will have to stand down as Chief Minister; the odds in the case before the Supreme Court are heavily against her and it is unlikely in any case, that the Madras High Court will decide her appeals in time for her to notify the Election Commission (21 days) to hold a byelection. If she wins the appeals, the interregnum of a remote-controlled Ministry will be short. If she fails, it will be a while before her appeal thereafter to the Supreme Court is heard. She will go to jail meanwhile.

What if her nominee, as Chief Minister, advises the Governor to grant her pardon? That will raise a constitutional issue of grave importance.

On September 5, the Supreme Court posed three questions on the consequences in the event of her appointment being declared invalid and asked Attorney-General Soli Sorabjee to address them. They concern the fate of her Council of Ministers; the alternative arrangement after her departure; and the consequences of her removal.

It is submitted that the Council of Ministers is dissolved as soon as its head is removed. The Governor must then invite anyone else from the All India Anna Dravida Munnetra Kazhagam (AIADMK) who is elected as leader to form a government. It is open to the court to declare that actions taken since May 14 by the departing Chief Minister are not void merely because her appointment is nullified. If the AIADMK refuses to elect a new leader, a deadlock will arise with every prospect of imposition of President's Rule and fresh elections. It is to be hoped that good sense will prevail, for a grave crisis will arise if in such an event the Rajya Sabha refuses to ratify the Proclamation imposing President's Rule. One hopes things will not descend to that level.

Jayalalithaa is the sole architect of her misfortunes. Her present travails are due entirely to her politics of hubris, opportunism and vengeance.

A reshuffle and ruffled feathers

The smaller allies of the Bharatiya Janata Party bear the brunt of the reshuffle of the Union Council of Ministers, which is seen as an exercise in self-assertion by Prime Minister Atal Behari Vajpayee.

ON July 31, Atal Behari Vajpayee pleaded helplessness in running the ruling coalition and offered to quit the post of Prime Minister. But within a month he appeared to be a much transformed leader, asserting himself and sending clear signals to his allies in the National Democratic Alliance (NDA) that they did not matter much in his scheme of things.

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Vajpayee shifted Ram Vilas Paswan and Sharad Yadav out of the key portfolios of Communications and Civil Aviation to Coal and Mines and Labour respectively. The erstwhile socialists accepted the new portfolios, barely concealing their unhappiness. Paswan and Sharad Yadav are the leaders of the Lok Jan Shakti and the Janata Dal (United) respectively, the groups whose collective strength in the Lok Sabha can hardly pose a threat to Vajpayee's survival in office. Another Minister to be shifted was Maneka Gandhi - from the independent portfolio of Social Justice and Empowerment to the newly created portfolio of Culture and Animal Welfare. But she is a leader without a party. These instances perhaps explain the logic of Vajpayee's new-found "assertion".

It is significant that the Prime Minister did not dare to transfer Nitish Kumar, Railway Minister and leader of the Samata Party, the second biggest NDA constituent after the Bharatiya Janata Party. Shifting Commerce Minister Murasoli Maran of the Dravida Munnetra Kazhagam (DMK) to a low-profile Ministry was also not a feasible option as he could not afford to alienate many allies at the same time. Nor did he bother to fill the vacancy caused by the resignation of George Fernandes as Defence Minister following the Tehelka expose. External Affairs Minister Jaswant Singh continues to hold additional charge as Defence Minister, even though the propriety of a Minister holding two crucial portfolios has been widely questioned. The idea perhaps is to avoid giving the impression that the Prime Minister is no longer willing to wait for the return of Fernandes to his Ministry in the event of his being absolved of the charges in the Tehelka affair.

By shifting Paswan and Sharad Yadav to other Ministries, an impression was sought to be created that the reshuffle had something to do with economic reforms. The two leaders had reportedly resisted liberalisation measures in their Ministries. But both Paswan and Yadav have been entrusted with Ministries that have a key role in the economic reform process. As Labour Minister, Sharad Yadav may come under pressure to initiate anti-labour measures in line with the policy of liberalisation. His predecessor Satyanarayan Jatiya was eased out of the Ministry primarily because he resisted reforms on the labour front. If the speeding up of the reforms process was the objective of the exercise, it was not clear why Vajpayee excluded Paswan and Sharad Yadav from a meeting of the Ministers in charge of portfolios relating to the economy at his residence on September 5. The meeting decided to constitute a Group of Ministers to look after labour reforms. Apart from the elevation of Arun Shourie as Cabinet Minister in charge of Disinvestment, there is nothing in the reshuffle to show that the government really accords top priority to economic reforms.

It is not clear whether Vajpayee will eventually accommodate in his Cabinet representatives of the Trinamul Congress and the Pattali Makkal Katchi (PMK), which returned to the NDA recently after a brief period of estrangement during the last round of Assembly elections. There is a feeling among the smaller constituents of the NDA that if they do not make their presence felt in the coalition they run the risk of being downgraded and isolated. The fear does not appear to be misplaced. As long as the allies do not come together and work out a common strategy to safeguard their status, Vajpayee has no cause for worry.

Congress(I) spokesperson S. Jaipal Reddy's remark after the Cabinet reshuffle that every non-BJP constituent of the NDA is an item of cargo that can be jettisoned and every non-BJP Minister is a dispensable commodity might not be an exaggeration. He said that the NDA constituents were leading a parasitic existence, subsisting on ministerial alms doled out by the Prime Minister. Although the BJP claims that it treats all its allies with equal respect, there is no explanation why the prime ministerial prerogative of shifting Ministers to different portfolios was used selectively, against the smaller parties.

In fact, none in the Prime Minister's camp seems to take seriously the threat of withdrawal of support by an ally any longer. Jammu and Kashmir Chief Minister Farooq Abdullah is a case in point. He threatened to pull his National Conference (N.C.) out of the NDA following the remark reportedly made by Vajpayee in the course of his Independence Day speech that he would ensure free and fair elections in the State in the future. (Home Minister L.K. Advani had said that the only time free and fair elections were held in the State was in 1977.) An angry Farooq Abdullah asked whether the previous elections were rigged. While clarifying his remarks, the Prime Minister said that Farooq Abdullah was free to leave the coalition if he wanted to, even though the NDA would like him to stay. Soon after, George Fernandes spoke to Farooq Abdullah in his capacity as NDA convener. After the meeting, the Chief Minister did not say anything further about his threat.

Farooq Abdullah was unhappy that his critic Chaman Lal Gupta, a BJP leader from Jammu and Kashmir, had been elevated to the rank of a Minister of State with independent charge of Food Processing and Industries, and that his son and Minister of State for External Affairs Omar Abdullah was promoted to the Cabinet. The N.C. has only four MPs in the Lok Sabha. Another probable reason for Farooq Abdullah's pique was that Vajpayee chose to promote Minister of State Syed Shahnawaz Hussain to the Cabinet. The 32-year-old BJP MP from Bihar is the youngest Cabinet Minister since Independence and the only Muslim in the Cabinet. He got the Civil Aviation Ministry.

The Prime Minister was expected to replace Finance Minister Yashwant Sinha, making him the scapegoat for the economic slowdown. Such a decision would have signalled that Vajpayee was serious about taking corrective measures to stimulate the economy. However Advani and the top leaders of the Rashtriya Swayamsevak Sangh (RSS) were believed to have counselled Vajpayee against dropping Yashwant Sinha as that would embarrass the government, especially in the context of the Prime Minister's defence of his Finance Minister in the monsoon session of Parliament, which concluded recently.

The shifting of Urban Development Minister Jagmohan to Tourism was widely disapproved within the BJP and the Sangh Parivar. The Prime Minister was reportedly under pressure from senior party MPs from Delhi, Madan Lal Khurana, Sahib Singh Verma and V.K. Malhotra. There were also reports in the media that they might be espousing the cause of the builders' lobby, which was unhappy with Jagmohan's style of functioning, especially his campaign against unauthorised constructions and settlements. Upset by these reports and Vajpayee's decision to induct Vijay Goel, MP from the Chandni Chowk constituency in Delhi, as Minister of State for Planning in the Prime Minister's Office, overlooking their experience and claims to Cabinet berths, they threatened to quit their party posts. (Khurana and Verma are vice-presidents of the party and Malhotra is the spokesperson of the BJP Parliamentary Party). A rattled Vajpayee met them and offered to consider their grievances in return for their promise not to carry out their threat and to work for the party in the civic elections in Delhi. It is doubtful whether Vajpayee will be able to resist their pressure. He is likely to shift Goel to another Ministry or drop him. Goel is known for his political mobilisation skills, but there are doubts within the PMO about his ability to live up to his responsibilities, which include coordination with the States and the NDA constituents.

The RSS is bitter about the transfer of Jagmohan. Seshadri Chari, Editor of Organiser, the RSS weekly, said: "He might have been a little brash in his methods as a Minister. But he was very dedicated to the party and had the courage of his convictions. He would not succumb to the builders' mafia. If the BJP thinks it can get the votes of people living in resettlement colonies and unauthorised dwellings in the capital because of Jagmohan's exit from the Urban Development Ministry, it is far from the truth." A hurt Jagmohan initially wanted to quit the government and the party but was reportedly persuaded by senior leaders to take up the new assignment.

Another controversial appointment is that of Pratap Singh Rudy, a young BJP MP from Bihar. He was inducted as Minister of State for Commerce and Industry despite objections from the Opposition on the grounds of his alleged involvement in the Tehelka affair. The Venkataswami Commission, which is inquiring into the affair, has issued notice to Rudy.

Among the five Ministers who have been dropped, four belong to the BJP. Stung by media reports that he may be eased out in the reshuffle, senior BJP leader Sunderlal Patwa quit the Cabinet on health grounds. There were no serious complaints against the three BJP Ministers of State who were dropped. In fact, the general complaint about the Ministers of State was that they had very little work in Vajpayee's jumbo Ministry as their senior colleagues in the Cabinet did not share their work with them. If the Ministries concerned were found wanting in performance, it is not clear why the senior Ministers were spared.

All the new appointees - five new Ministers of State and one Cabinet Minister - are BJP members. Of them, three belong to Bihar and one to Uttar Pradesh.

In the race for power among the second-line leaders of the BJP, Pramod Mahajan has emerged the winner, bagging three portfolios - Information Technology, Communications and Parliamentary Affairs. Mahajan is said to have played a major role in the reshuffle. His sudden rise in the power structure is a matter of envy for Ministers such as Sushma Swaraj, Arun Jaitley and M. Venkaiah Naidu.

Perhaps tired of the pressures of coalition politics, Vajpayee has of late been speaking about the short tenures of Indian Prime Ministers. "Becoming a Prime Minister is not a big thing. Every two years the Prime Minister is changed and I am waiting for the change," he said recently.

With Vajpayee ruling out the possibility of his continuance as the leader of the coalition for another term, many in the NDA and the BJP are preparing for a post-Vajpayee phase. The general assumption is that he would be replaced by Advani, who is backed by the RSS.

The increasing intervention of the RSS in the governance of the country was evident from Jaswant Singh attending its training camps in Bangalore and the appointment of B.N. Agnihotri, an RSS activist, as adviser in the Indian Embassy in Washington with the rank of an Ambassador.

Challenging saffronisation

Several Chief Ministers rally behind the growing campaign against some of the recent retrogade decisions of the Union government in the domain of education policy.

UNION Human Resource Development Minister Murli Manohar Joshi's invitation to the nation to partake of his adventures in antiquity was decisively rebuffed at a gathering of Chief Ministers on September 2. It then received sustenance from an unlikely quarter, when Madhya Pradesh Chief Minister Digvijay Singh endorsed astrology as a worthwhile subject of study at the university level. This intervention has perhaps muddied the waters in the campaign that was building up against the Union government's recent decisions in the domain of education policy.

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The September 2 meeting in New Delhi was held at the initiative of West Bengal Chief Minister Buddhadeb Bhattacharjee. There was some early uncertainty regarding the likely participation of Chief Ministers from the Congress(I)-ruled States. But an intervention from the office of Congress(I) president, Sonia Gandhi ensured that the party shed its inhibitions about participating in an event hosted by a government led by the Communist Party of India (Marxist). This clarification came rather too late to secure the participation of more than one Congress(I) Chief Minister; though most States where the party is in authority were represented by their Education Ministers.

An exception was Kerala, where the Congress(I) rules as part of a coalition in which the education portfolio is handled by the Muslim League. When queried about his reticence on the matter, Kerala Chief Minister A.K. Antony, in the heat of political contestation with the CPI(M), dilated upon the "hurt" that could be caused to religious sensibilities through the pejorative use of the word "saffronisation". The term was inappropriate, he said, though he had little reserve about endorsing all moves to safeguard against the "communalisation" of education.

Andhra Pradesh Chief Minister N. Chandrababu Naidu was also hard put to explain away his absence. He first offered the alibi that he had not been invited. But when this was shown to be factually incorrect, he quickly affirmed that as an external prop of the ruling coalition at the Centre, his party did not think it advisable to participate in an event sponsored by the CPI(M). However, his commitment to a secular and inclusive vision of education remained undiluted.

Two allies of the Bharatiya Janata Party - one at the Centre and the other at the State level - had no such qualms about participation. Mohammad Shafi, Education Minister of Jammu and Kashmir, was unconstrained by the fact that his party, the National Conference, is an integral part of the ruling coalition at the Centre. Again, Meghalaya Chief Minister E.K. Mawlong, whose United Democratic Party is part of a coalition with the BJP and the Nationalist Congress Party, thought that participation in the cause was more important than any simulated display of loyalty to his political allies.

The other Chief Ministers who participated were Manik Sarkar of Tripura, Sheila Dixit of Delhi and Rabri Devi of Bihar; representing the CPI(M), Congress(I) and Rashtriya Janata Dal respectively. Education Ministers from Rajasthan, Madhya Pradesh, Tamil Nadu, Karnataka, Maharashtra, and Assam were also present, leading their respective delegations.

The resolution adopted at the meeting was unsparing in its criticism - State governments had not been consulted in recent policy decisions, and the Central Advisory Board on Education (CABE), which has been accorded a "pivotal position" in matters related to the sector, had been "totally ignored". A "National Curriculum Framework for School Education" had been drafted and to all intents and purposes, accepted by apex educational institutions at the Centre, without the courtesy of broad-ranging discussions among all interested sectors. And the proposal to introduce subjects such as Vedic astrology (Jyotir Vigyan) and Vedic ritual (Paurohitya) for study at the university level, flew in the face of the principles and values enshrined in the Constitution.

Since education was not the exclusive preserve of any one party, the meeting of Chief Ministers demanded that all further policy decisions should be put on hold. Discussions should be initiated towards a "consensus among the Union and the States cutting across narrow political and party considerations". The CABE should be reconstituted and all the proposed changes put through its scrutiny. This should be followed by a meeting of all the Education Ministers and then by a reference to Parliament of the new policy directives.

Murli Manohar Joshi was meanwhile keeping up the refrain that he had not done anything contrary to the policy guidelines laid down by Parliament in 1986 and revised in 1992. There was nothing outlandish in the idea of studying astrology at the university level, he insisted, since there was already a worldwide trend in this direction. And the needs of the moment, he contended, dictated a return to traditional values, rather than a blind acceptance of alien notions.

Digvijay Singh's intervention came as much-needed solace for the embattled Union Minister. Although known for his religious piety and faith in astrology, Digvijay Singh clearly seemed unaware that he had crossed a crucial line in transferring his personal convictions into the realm of public policy. To a letter of protest from the cultural organisation Sahmat (the Safdar Hashmi Memorial Trust) - which had organised a major three-day convention in New Delhi early in August to protest the intrusion of communal tendencies into education - Digvijay Singh took the plea that he was only interested in ensuring that the education system offered the widest range of choice. "Let a hundred flowers bloom," he said, in a rather incongruous paraphrasing of the words of the communist legend Mao Zedong. And in a still more bizarre flight of fancy, he insisted that Jyotir Vigyan was not to be confused with the vapid predictions of astrology. Rather, it was closely connected to the respectable academic science of astronomy.

The Congress(I) was rather flustered by the manner in which a campaign that seemed to be gathering momentum after the personal intervention of the party president in the recent parliamentary debate, had been so rudely deflated. Anand Sharma, party spokesperson, sought to brush away suggestions of internal discord by insisting that Antony's reservations were only terminological in nature, while Digvijay Singh's intervention was fully in tune with the spirit of democratic choice. He had little to say on the absurd inversion of priorities and suggestion of political escapism, inherent in the decision to begin university level instruction in astrology. The Congress(I) now finds itself arrayed on the side of the BJP in propagating the notion that worldly problems arise in the cosmos, for which it is futile to search for solutions in politics.

Meanwhile, a challenge was mounted in the Supreme Court, in the form of a Special Leave Petition against a judgment of the Andhra Pradesh High Court, which declined to quash the directive of the University Grants Commission (UGC), introducing astrology as a subject of graduate study. The Bench hearing the petition has issued notice to the UGC and the Union Ministry of Human Resource Development, seeking their response in the matter.

The three petitioners from Hyderabad - P.M. Bhargava, Chandana Chakravarti and K. Subhash Chandra Reddy - are scientists of standing. Their plea was not taken up by the Andhra Pradesh High Court on the grounds that the judiciary had no competence or jurisdiction to intervene. The courts, which were "ill-equipped as regards such matters", should adopt the "doctrine of self-restraint" and leave such matters to the assessment of experts, said the High Court. And even if such an expert opinion should become a matter for dispute, an appropriate forum should be found for resolving it outside the court-room.

The petitioners have submitted that this ruling evades the responsibility of the judiciary to strike down a policy decision by the government that is "unconstitutional, illegal, mala fide, illogical, irrational and passed without any basis or passed on untenable premises and is against the larger public interest." The absence of a constitutional basis arises from the duty enjoined on the state under the Constitution, to cultivate the spirit of scientific inquiry. Ample testimony to the illogicality of astrology has come from the Indian scientific community, which has almost unanimously condemned the UGC's proposal as a great leap backwards. And the irrationality of the UGC proposal is established by its own directive, which holds out the extravagant claim that "Vedic astrology can help to see the unforeseen" and thereby relieve "worries, tensions and frustration (sic) in life."

It is perhaps unusual for a judicial forum to determine these issues, but the arbitrary manner adopted by the UGC and the Human Resource Development Ministry seemingly leaves the scientific community with no other recourse. All objective accounts point to a clandestine and conspiratorial procedure by which the UGC introduced the astrology proposal into its agenda at a meeting in October 2000. Once the item was smuggled into the agenda, approval was obtained through the pugnacity of its sponsors and the meek acquiescence of those who may in other forums, have expressed reservations. Murli Manohar Joshi and his confederates in the Hindutva fraternity, who now occupy strategic positions in the educational domain, could not have been unaware that a vigorous challenge would soon be mounted against their unilateral actions. But they evidently believe that having sneaked in the seeds of their obscurantist programme, propagation will be assured, if rather slow.

Birth pangs of the euro

BISWAJIT CHOUDHURY world-affairs

Will the euro be able to survive the vicissitudes of a currency change and also challenge the hegemony of the U.S. dollar?

SEPTEMBER 1, 2001 was a historic day for Europe. Thousands of tonnes of banknotes and coins of the new European common currency, the euro, were delivered to the central banks of 12 European countries for circulation as legal tender.

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The euro, which will shortly replace the existing national currencies of 300 million Europeans, was unveiled in Frankfurt by Wim Duisenberg, President of the European Central Bank (ECB), who described the occasion as "a moment when the flow of history is present". He said: "It required much insight, understanding and determination to convince the different countries of Europe that their place in an increasingly interdependent world could only be assured by a single currency which promoted greater commerce both among themselves and with the the rest of the world."

A change of currency is something of a radical break with the past, and in history there have been only a few instances of such a complete changeover. One instance is the failed attempt by Muhammad bin Tughlak, the 14th century Sultan of Delhi, to introduce token currency. One reason for its failure, it is said, was that people were confused by the change and refused to accept it.

Given the logistics involved in launching the euro, there are fears of large-scale confusion when it begins to circulate on January 1, 2002. For one thing, existing national currencies will still be legal tender for two extra months, although the change would be returned only in euro. There could be delays in working out the precise exchange, leading to long queues in places such as ticket counters and shops. At the same time shops could round up prices to the higher figure to facilitate payments, in the process hurting consumers and contributing to inflation.

From mid-December, "starter-kits" of euro money will be sold to familiarise shopkeepers and other consumers before the launch. Coinciding with the presentation of the euro in late August, the ECB also launched a campaign to inform the public - through leaflets, television advertisements and special events - about the euro and the unique security features of the seven denominations of banknotes. The security devices range from complicated metallic threads to holograms and micro-printing.

Counterfeiting of the euro is another major worry ahead of its launch. Police experts feel that the criminal mafias - notably the Russian, Italian and Albanian ones - are preparing to flood the market with false euros, taking advantage of people's unfamiliarity with the new money. Since the euro's inception in 1999, bankers, businessmen, stockbrokers and money market traders have used it as a paper or virtual currency and in electronic commerce. Meanwhile, in order to minimise the risk of counterfeiting, the ECB refuses to release even currency notes of small denominations that could otherwise have helped prepare the public for the euro ahead of its New Year launch.

The manufacture of new automatic teller machines, vending machines and cash registers, and the conversion of old ones to make them compatible with euros and cents, is under way. The costs of this transition are estimated to be substantial. Firms and banks also require to change their accounting and software systems.

Once the euro becomes the only official currency, those holding the old national currencies can exchange them for euros in the banks. These savings, held in cash and generally stashed away in the traditional way in homes and safe boxes, would then have to 'emerge', thereby adding to inflationary pressures. Although there are no precise estimates of such cash holdings for the European Union (E.U.) as a whole, gigantic sums are estimated to be involved. France and Germany together would account for two-thirds of this kind of cash.

In France alone, the quantum of money thus stashed away in "woollen stockings" was estimated last year to be 150 billion francs, of which less than 35 billion francs circulated back to the Bank of France at the rate of around three billion francs a month. Besides, a large portion of European currency is held outside the E.U. The German currency is preferred by people in East Europe and the Balkans. Between 30 to 40 per cent of Deutschmarks circulate abroad.

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There is also a vast amount of money acquired from criminal activity waiting to be converted into euros, though banks are generally required by their national laws to watch out for possible money laundering. The scale of the problem may be gauged from the fact that money from criminal activity constitutes only 10 per cent of all unaccounted money generated through tax evasion and by the black economy. The parallel economy as a whole in Europe is estimated to be generating around $300 billion.

Of the total black money generated in the E.U., Spain's share is estimated to be around $40 billion. The real estate sector has been specially attractive as an outlet for black money in Spain. There has been a boom in construction activity in recent times, while the prices of houses in the major cities have generally increased by nearly 15 per cent during the current year. The Spanish government considers the introduction of the euro as an opportunity to control black money. According to officials there, large amounts of unaccounted money will get dissolved with the coming of the euro.

DESPITE the numerous and difficult short-term measures required to ease the transition, governments, chambers of commerce and banks throughout what is called the 'euro zone' are being spurred on by the long-term prospects of the euro. It was conceived as a way to integrate the European economies further by facilitating cross-border trade and investments. The conclusion of the monetary union, with the euro circulating from Ireland to Greece, is expected to lead to lower prices for goods and services by making price differences within the E.U. transparent. This would also help boost growth. Manufacturers are expected to benefit because the costs of changing money can be avoided and they will be protected from currency fluctuations. The ECB has, in fact, announced that the introduction of the euro has ended currency fluctuations, making transactions easier throughout Europe.

The 12 countries of the euro zone are Germany, France, Spain, Italy, Greece, Portugal, Finland, Austria, Holland, Luxembourg, Belgium and Ireland. Britain, Denmark and Sweden, which are also members of the European Monetary Union, would be watching the progress of the new currency after its introduction.

Since January 1999, when the euro has existed as an electronic currency, it has lost 30 per cent of its value against the U.S. dollar. It is hoped that its use as legal tender would help regain confidence in it and boost its standing in the currency markets. Europe had hoped that the euro would challenge the U.S. dollar and that businesses in other countries would hold their assets in euros. But a strong U.S. economy, at least prior to the recent slowdown, and the relative weakness of the European economies, with problems for the German economy in particular over the last few years, caused the euro to fall.

On the very day that the euro was unveiled to the public, the ECB cut interest rates by 0.25 per cent in an attempt to boost growth in the stagnant economies in Europe. The rate is now down to 4.25 per cent. The ECB has been slow with rate cuts, being more concerned with controlling inflation. Price rises have, however, slowed down in recent months in France, Germany and Spain, while the inflation rate overall for the euro zone is down to 2.8 per cent from the annual rate of 3 per cent in June 2001.

Over the same period the United States Federal Reserve cut interest rates seven times, bringing it down to 3.5 per cent. But the ECB is proving too conservative and preoccupied with controlling inflation to be able to deal effectively with the problems of stagnant growth and high unemployment rates in the euro zone. In fact, the European stock market indexes went down after the announcement of the interest rate cut.

The euro is becoming a real currency at a time when the economic slowdown threatens to turn into a worldwide recession. Consumer goods sales in the U.S. recorded a 0.1 per cent growth in July this year and the Dow Jones stock index lost 2 per cent in end-August, going below the 10,000 points level. Gross Domestic Product (GDP) in the U.S. recorded a 0.2 per cent growth for the second quarter of 2001. The Japanese stock index, Nikkei, also touched a new low at the end of August.

According to analysts, in the context of the current economic crisis the euro has not lived up to its promise of being an effective rival to the U.S. dollar. Neither has Europe been able to take advantage of the U.S. crisis to challenge the latter's political and military hegemony. The U.S. accounts for less than 20 per cent of world trade and around a quarter of world production. Yet the dollar is used in about half of all trade transactions and in three-fourths of the world's financial transactions. A successful euro could fundamentally change the balance of the world financial system affecting American financial markets and interest rates.

A visit and its aftermath

JOHN CHERIAN world-affairs

Japanese Prime Minister Junichiro Koizumi's visit to a war memorial touches a raw nerve and draws unprecedented protests from the country's immediate neighbours.

JAPANESE Prime Minister Junichiro Koizumi's August 13 visit to a war memorial in the country may help him earn considerable domestic dividends in the future, but his action has set off an international furore. Ever since his unexpected election as the leader of the ruling Liberal Democrats (LDP) in the middle of this year, Koizumi had been promising to visit the Yazukuni shrine, the symbolic nerve-centre of Japanese militarism during the 1930s and the 1940s when the country embarked on an imperialistic programme. The ashes of many convicted Japanese war criminals are interred in the shrine.

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Only one Prime Minister, Yasuhiro Nakasone, had visited the controversial shrine earlier. Nakasone paid obeisance to the Japanese war dead at Yasukuni in 1985, and the international outcry it caused was sufficient to dissuade other Prime Ministers from visiting the war memorial.

In the Shinto religion, after death a person is honoured as a divine being in a shrine. The ashes kept at the Yasukuni shrine belong to such people as General Hideki Tojo, all convicted war criminals who were responsible for atrocities during the Second World War. Millions of Chinese and Koreans who are alive today lost their near and dear ones during the long years of Japanese occupation of their countries. Almost every leading right-wing Japanese politician has visited the shrine as a symbolic gesture to express denial of wrongdoing during the War.

A sizable section of the Japanese public believes that most of those who died in the War were patriots who fought for the country. Education at the school level saw to it that the post-War generation remained unaware of the brutality unleashed by imperial Japan during the War. Most Japanese therefore seemed unconcerned about Koizumi's controversial visit just two days before the 56th anniversary of the end of the Second World War. Two days later, five Cabinet colleagues of Koizumi visited the shrine to commemorate the anniversary, further inflaming public opinion among the country's neighbours.

Although right-wing sections in Japan welcomed Koizumi's visit to the war memorial, they were critical of his timing. They had wanted him to be present at the memorial on the occasion of the anniversary. That would have been even more insulting to countries such as China and North and South Korea, which were the worst victims of Japanese depredations during the War.

During his visit Koizumi was careful in his choice of words. In a statement issued soon after the visit he acknowledged that Japan had caused "immeasurable disaster and pain, and Japan should never walk on the path to war". The Prime Minister expressed his "deepest regret and remorse towards all the victims of the War" in the context of the country's "regrettable history". But Koizumi also emphasised that he was determined to honour those who died fighting for Japan; he said that the country's present "peace and prosperity" was built upon their noble sacrifice".

This kind of sentiment expressed at the highest levels of Japan's leadership inflames public opinion in countries that bore the brunt of Japanese occupation. Predictably, the reaction to Koizumi's visit was immediate. Yukio Hatayama, the leader of the Opposition in Parliament, predicted that the visit would cause diplomatic setbacks for Japan. Earlier, Foreign Minister Makiko Tanaka had opposed any such visit. Chinese Foreign Minister Tang Jiaxuan had sent a message to Koizumi requesting him not to visit the shrine.

Both China and South Korea were already angry over Koizumi's tendency to pander to the extreme Right in Japan. In particular, the Chinese and the Koreans were appalled at the right-wing's attempts to introduce new history textbooks that not only glossed over the Japanese brutalities during the War but extolled Japanese militarism. Koizumi has been ambivalent on the issue, refusing either to criticise the contents of the proposed textbooks or use his authority to veto their introduction. The revisionist textbooks have, however, been rejected by high school boards all over Japan.

Koizumi's visit to the shrine seems to have reinforced Chinese and Korean perceptions about his ideological predilections. Both countries made it clear that they considered the visit an affront to their national sensitivities. A South Korean Foreign Ministry spokesman said that his country viewed the visit as being "related to Japanese militarism". In a statement, he said that Koizumi had ignored continued expressions of concern by the South Korean government as well as the "strong opposition within Japan".

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Seoul further clarified that it was not impressed by the Japanese Prime Minister's expressions of regret while simultaneously paying respects to war criminals responsible for "inflicting indescribable damage" in the region. In a highly publicised incident, 20 South Korean citizens publicly cut off the tips of their little fingers in Seoul to protest against Koizumi's visit to the shrine.

Expressions of protest came from all over the region. North Korea characterised the visit as "an intentional and deliberate move to spread the militarist idea in Japanese society". It has alleged that "militarism is raising its head again in Japan" and said that the visit was "an insult to the Asian people who suffered unbearable disasters" at the hands of the Japanese whose "top class war criminals are entombed" in the Yasukuni shrine. South Korean President Kim Dae Jung, who during his term in office has done more to repair Japan-South Korea relations than his predecessors, said that it would be difficult to deal with Japan "with any degree of trust in the future".

The Chinese Foreign Ministry said in a statement that China remained opposed to Japanese leaders "paying their respects to and worshipping at the Yasukuni shrine" under any circumstance. The statement questioned the ability of the Japanese to "sincerely regret that aggressive period of history" or comprehend the feelings of the people in Asian countries which suffered under Japanese occupation. It added that the Japanese leader's "flawed gesture has damaged the foundations of Sino-Japanese relations".

A spokesperson for Filipino women who were used as sex slaves by the Japanese during the War said that Koizumi's visit "honours Japanese soldiers who raped women".

THAT the diplomatic spat between Japan and its neighbours is likely to be a long-drawn-out one is clear from the stance adopted by China and South Korea. Both countries have refused to respond to Koizumi's request for high-level talks to mend ties. Koizumi's attempts to meet his South Korean counterpart during the United Nations World Summit for Children in September in New York may not succeed.

Seoul has laid down tough pre-conditions for talks, which include a reiteration of the 1998 Japanese apology for War-time atrocities and an open acknowledgement by Koizumi about the correctness of the decision by almost all Japanese school boards to reject the controversial textbooks.

Similarly, China has laid down conditions for a possible meeting between President Jiang Zemin and Koizumi during the Asia Pacific Economic Cooperation (APEC) Forum meeting in Shanghai in October. A Chinese Foreign Office spokesman said that Japan had to create "the necessary environment and conditions" for such a meeting to materialise.

The recent developments have left the United States worried. For it hopes to build a common front in the region against China comprising the U.S., Japan and South Korea, under the Pentagon's security umbrella. But with Seoul increasingly wary of Tokyo, the Washington blueprint is threatening to unravel. South Korea is reluctant to let Japan play a key security role in the region until Tokyo sorts out what many people in Korea call the "problem of memory" concerning Japan's behaviour before and during the Second World War.

Affluent, and unequal

C.T. KURIEN world-affairs

How in the land of plenty, private affluence and public squalor co-exist. And why this is not a peculiarly American phenomenon.

AS we do in India, the Americans make use of their decennial census not only to count heads but also to elicit a wide range of information relating to the characteristics of the population and its living conditions. Data gathered during the United States Census of 2000 have been processed and the findings are becoming available. In an article published in The New York Times of August 6, 2001, the author Eric Schmitt stated that according to comprehensive new census data, "American standards of living increased markedly throughout most of the country in the 1990s bringing gains in education, housing and mobility along with higher incomes ..." Specific details are also given.

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* In 2000, 82 per cent of people 25 and older graduated from high school and 25 per cent had at least a bachelor's degree. In 1990, the figures were 75 per cent and 20 per cent, respectively.

* More than 90 per cent of households owned a car, van or truck in 2000, the highest share ever, and 18 per cent owned three or more vehicles; 76 per cent of workers drove to work alone up three per cent from 1990. People are spending more time driving to work, often from rural settings, where better-paying jobs are scarce.

* The incomes of families grew and so did the size of their homes, as more than one in four homes has seven rooms or more, up slightly from 10 years ago. This confirms data showing that nearly one out of five new houses exceed 3,000 sq ft.

More people from the rest of the world are flocking to this paradise on earth. "About 44 per cent of America's 30.5 million foreign born residents, about 13.3 million people, arrived in the country in the 1990s. Of a total population of 281.4 million, immigrants make up 11 per cent, the largest share since the 1930s... Forty per cent of Californians spoke a language other than English at home."

The report recognises some imbalances too. Much of the nation's wealth is still concentrated in the northeast, but that region lost some of its edge in the decade as jobs and people migrated to fast-growing economically vibrant areas like southeast and west. There is also mention of "the pockets of impoverishment" where governments are struggling to provide services for the needy. But overall, the census data provide the image of a nation growing richer and becoming more affluent. "It is the American dream updated," the newspaper report quotes one urban analyst as saying.

For a more balanced picture, it may be useful to take a look at the decade of the 1990s as a whole. In many ways it was a remarkable decade for American society, for American economy in particular. Although the early years of the decade saw a recession - claimed by some to be the worst since the Great Depression of the 1930s - things began to change fairly soon. One of the major achievements of the Clinton administration was that the deficits of the Federal budgets, which had become a contentious issue for many years, were contained and some surpluses were generated. More important still, the second half of the decade witnessed unprecedented growth in the income and wealth of the American people with a growth rate of GDP of over 4 per cent per annum, the like of which America had not witnessed since the 1950s and part of the 1960s. And, of course, the 1990s marked the emergence of the information-communication technology (ICT)-driven new economy that had a perceptible impact on practically all aspects of American society. A more detailed analysis of the decade may, therefore, provide a better understanding of the nature of social transformation going on in affluent America.

The 1980s was also a decade of some innovations and achievements. It was, as many will recall, the period of Ronald Reagan as President and of Reaganomics that brought in major changes in economic philosophy with the Reagan administration favouring market orientation in place of state domination of the economy. A perceptive observer summed up the decade thus: "The 1980s were the triumph of upper America - an ostentatious celebration of wealth, the political ascendancy of the richest third of the population and the glorification of capitalism, free markets and finance" (Kevin Philip, The Politics of Rich and Poor: Wealth and the Electorate in the Reagan Aftermath; Random House, New York, 1990). Official figures for the period 1977-1988 showed that the real incomes of 80 per cent of the households declined, the top 10 per cent barely managed to hold the level, while the top 5 per cent gained 23.4 per cent and the top 1 per cent close to 50 per cent. BusinessWeek magazine stated: "That the great divide between rich and poor in America has widened is perhaps the most troubling legacy of the 1980s."

A more descriptive account of that period and a social profile of America in the early years of the 1990s were provided by Robert B. Reich in his influential book The Work of Nations (Alfred A.Knopf, New York, 1991). Reich was then on the faculty of Harvard University's John F.Kennedy School of Government, but was later drafted by Bill Clinton as his Secretary of Labour. According to Reich, "Between 1977 and 1990 the average income of the poorest fifth of Americans declined by 5 per cent, while the richest fifth became about 9 per cent wealthier... That left the poorest fifth of Americans by 1990 with 3.7 per cent of the nation's total income, down from 5.5 per cent twenty years before - the lowest portion they have received since 1954. And it left the richest fifth with a bit over half of the national income - the highest position ever recorded by the top 20 per cent. The top 5 per cent commanded 26 per cent of the nation's total income, another record."

These statements may appear to be far too abstract. In terms of real-life situation, Reich offered the following comparison. In 1960, the typical executive officer of the core American corporation earned about $190,000, approximately 40 times the wages of the company's average factory worker. By 1988, the chief executive officer (CEO) of one of America's 100 largest corporations received on average $2,025,000, which amounted to 93 times the wages paid to the average production worker of the same corporations. Even after tax the CEO's earnings were 70 times those of the average worker.

Not only that the gap was widening, but, pointed out Reich, "by the 1990s, many jobs failed to provide a living wage... The number of impoverished working Americans climbed by nearly 2 million, or 23 per cent, between 1978 and 1987... Among full-time, year-round workers, the number who were poor climbed even more sharply - by 43 per cent."

By the beginning of the 1990s another major change was becoming palpable in America, the emergence of a group of professionals whom Reich designated as symbolic-analytic services personnel and symbolic analysts for short, engaged in problem-identifying, problem-solving, strategy-brokering activities. Included in this category were those involved with global finance and ICT, both of which attained a prominent position in the American economy and society in the 1980s and into the 1990s. Typically these were top-level bankers, lawyers, accountants, software engineers, researchers, public relations executives, writers, journalists, television and film producers, and a host of rapidly increasing new jobs, together constituting about 20 per cent of the U.S. workers. This technology-savvy, globally-mobile, high-proficiency segment of the population symbolised New America at the beginning of the 1990s, and the creamy layer in terms of affluence.

What is really significant is that this segment of affluent Americans began to contract out of society at large. "America's symbolic analysts have been seceding from the rest of the nation," pointed out Reich. "The secession has taken many forms, but it is grounded in the same emerging economic reality. This group of Americans no longer depends, as it once did, on the economic performance of other Americans. Symbolic analysts are linked instead to global webs of enterprise, to which they add value directly."

Reich identified different forms of this secession. There was a perceptible physical secession. The symbolic analysts started pulling out of crowded cities to set up exclusive residential communities of their own, far from the madding crowd. These new affluent residential communities came to have distinct characteristics of their own. They set up their own schools, recreation centres and other forms of community institutions for the exclusive use of the residents. The attempt has been to evolve homogeneous enclaves within which their earnings need not be redistributed to people less fortunate than themselves. The basis of that homogeneity, of course, was the level of income. "There is only one thing Americans increasingly have in common with their neighbours," wrote Reich, "it is their income levels." Such homogeneous affluent communities naturally protected themselves against external intrusions. By 1990, private security guards comprised fully 2.6 per cent of America's workforce, double their percentage in 1970, and outnumbering public police officers in the entire country.

Privatisation of this kind was facilitated by public policy, to be sure. The Reagan administration brought about a sharp reduction in top income tax rates from 50 per cent to 33 per cent. While some increases were made in the rate of capital gains taxes, the net effect was to shift the tax burden from wealthier to poorer Americans and to a reduction of public spending. For instance, physical capital investment dropped from over 24 per cent of total federal outlays in 1960 to less than 11 per cent in 1991, and public funding to train and retrain workers dropped by more than 50 per cent in the 1980s.

In sum, in the land of plenty private affluence and public squalor go together - a fact powerfully brought out by John Kenneth Galbraith in his book The Affluent Society many decades ago.

IN the 1990s, America became decisively more affluent and so the claim based on the census data that "American standards of living increased markedly" during that decade need not be contested. But it should be probed whether that marked increase was of the kind that took place in the 1980s.

Although the 1990s started on a depressed note for the American economy, by 1992 the upturn had started. And the period from 1993 till the end of the decade, especially the second half of the decade, was one of remarkable achievements and prosperity. (The following discussion on the economic performance of the decade draws on an article by Robert Pollin, "Anatomy of Clintonomics", New Left Review, May-June 2000 and another by Robert Brenner, "The Boom and the Bubble", New Left Review, November-December 2000). Some analysts claim that this period saw the best performance of the American economy since the "Golden Era" of the 1950s and 1960s. The achievements were quite impressive. The GDP growth rate of 4.15 per cent for the years from 1995 to mid 2000 came very close to the average rate of 4.2 per cent of the 1950s and 1960s. Labour productivity, particularly in the manufacturing sector, which was sagging for a long time increased at a rate of 2.7 per cent, about the same as in the immediate post-War decades. Real wages moved up at the rate of 1.8 per cent, unemployment was low and inflation was kept under control. Thus, by standard indicators the second half of the 1990s was one of unprecedented achievements since the long-term downswing of the American economy from the early 1970s.

It was also a period of high levels of profits both in manufactures and in finance. In the former, the way to high profits was via a brutal process of rationalisation and downsizing that increased labour productivity. Financial institutions, banks particularly, achieved their highest rates of return on equity in the post-War era, and finance sector profits came to constitute a greater percentage of total corporate profits than at any time in post-War history.

Such good performance and the eagerness of the rest of the world to share in the American prosperity led to the spectacular performance of the stock market. Equity prices began to soar as never before. The East Asian currency crisis of 1997, the Russian crisis of 1998 and, above all the sudden collapse of the privately sponsored, but high-profile Long Term Capital Management (LTCM) hedge fund in September 1998 caused some hiccups, but from 1995 till late 2000, the stock market was in a bullish mood, thanks, in no small measure, to the performance of the new economy, and equity prices kept surging. Brenner notes that by the first quarter of 2000, the value of corporate equities, their market capitalisation, had soared to $19.6 trillion, up from $6.3 trillion in 1994, and market capitalisation as a percentage of GDP tripled from 50 per cent to 150 per cent during roughly the same period. Stock prices rose some 14 per cent a year above the growth of the real economy, a rate much higher than in previous periods.

American stock holders suddenly found themselves exceptionally wealthy. This wealth effect, or asset inflation, had its impact on consumer spending and borrowing. Both increased substantially and kept up the demand for goods and services, internally as well as from other parts of the world. Large-scale borrowing also led to the demand for houses going up. And, for a while the good performance of the economy and a robust stock market reinforced each other. So rosy and reassuring was the mood that Alan Greenspan (the man who then shaped America's monetary and interest rate policy as the head of the Federal Reserve System, and who still continues in that job under a new President) remarked in 1999: "We are witnessing, this decade in the U.S., history's most compelling demonstration of the productive capacity of free peoples operating in free markets." That the boom would bust in less than two years just could not be imagined at that time! But that is a different story.

Meanwhile, the affluence of the 1990s could not escape one of the characteristics that accompanied the affluence of the preceding decade - growing inequality. In fact, an affluence generated by a stock market boom naturally favoured the economically better placed. Brenner points out, "... between 1989 and 1998, the top 1 per cent increased its net worth by 11.3 per cent, the top 5 per cent by 10 per cent, the top 10 per cent by 4.1 per cent, and the bottom 90 per cent by minus 4.4 per cent."

In order to gain a feel for these aggregate statistics, let us clothe them in some real life situations. These are provided by another commentator of the contemporary American social scene, Thomas L. Friedman, the Pulitzer Prize-winning foreign affairs columnist of The New York Times. In his book The Lexus and the Olive Tree, first published in 1999 with an updated edition in 2000 (Anchor Books, New York), Friedman locates the American economy and society in the context of rapid globalisation and admits that "during the 1980s and 1990s, as globalisation replaced the cold war system, income gaps between the haves and the have-nots within industrialised countries widened noticeably". He then uses his skill as a journalist to tell a real life story about it woven around the National Basketball Association (NBA), its players, owners and spectators. The star player of the NBA, of course, is Michael Jordan whose total earnings in 1997 were estimated to be around $80 million (equal to the annual salary of some 2,700 teachers at $30,000 a year). Playing with Jordan on the 12-member team was Joe Kleine "someone whose shooting skills were only marginally less effective than his (Jordan's), someone whose jump shot was only slightly less accurate, someone whose free throw shooting was only slightly less consistent, someone whose defensive skills were only slightly less intense," but whose annual earnings were only the NBA minimum of $272,250. A difference of almost 300 times in earnings between two members of the same team with about the same professional skills. And why? Because Michael Jordan being Michael Jordan is able to supplement his professional earnings through commercial activities such as endorsements, sale of autographs and many other ways, and use this to get the NBA to pay him much more than the minimum that his less fortunate teammates receive, thus to become more of a celebrity, and so on. Friedman refers to this as the "winner takes all" phenomenon, which implies that those who are ahead in the line (any line) can move up much faster while the tail-enders have a hard time just to defend their level, thus leading to increases in inequalities over time, especially when the going is good.

Friedman brings out a couple of wider social consequences of the phenomenon. As the fortunes of the NBA go up, the sports association will be bought up by new owners, not necessarily sports lovers, but profit lovers. The NBA's owners used to be local businessmen from the community, says Friedman, who would invite players on private vacations with them. But increasingly sports associations are owned by huge, global corporations like Cablevision System Corporation and Time Warner, creating a gap between players and owners.

Nor is this all. The gap between the players and the gap between players and owners is getting reflected in a gap in the stands. To pay the huge salaries of players and to make reasonable profits beyond that, "ticket prices are being put out of reach of all but the rich, and the stadiums are being segmented by classes, with the poor slobs who can afford only $75 ticket sitting crammed into the bleachers eating peanuts, while the rich sit in skyboxes, with plenty of leg room, and dine on crab cakes brought by waitresses," writes Friedman. No longer are stadiums the kind of shared public space that brings together people from different walks of life, said a Harvard political theorist whom Friedman quotes.

This is not a peculiarly American phenomenon. It draws attention to what is happening all around, even in India. The "winner takes all" principle is an inherent feature of all capitalist economies where the power of resources is the basis for accumulation and affluence and where the market, driven by economic power, is the arbiter of all major decisions. A system like that tends to make the rich richer and widens the gap between the top and the bottom as growth takes place and the market spreads both territorially and in terms of activities. Hence all claims of improvements in standards of living of the people of a country as a whole must be evaluated in greater detail to get to know what the aggregates hide.

A final point. In capitalist societies the disparities resulting from affluence can be mitigated to some extent by redistributive measures and other forms of support to the indigent. Most states in capitalist societies do this, some more, some less. The welfare states of the Scandinavian countries have been the best examples of the positive possibilities in this sphere. America too started implementing welfare measures of various sorts starting with President Franklin D. Roosevelt's New Deal. But a conservative reaction set in whose great representative was President Reagan whose administration in the 1980s dismantled a wide range of welfare measures on the notion that the role of the state must be strictly limited in the economic sphere. The accent then was on reducing the tax rates. President Clinton in the 1990s promised more social welfare measures. But the commitment of the Clinton administration was primarily to wiping out the fiscal deficit. This was achieved partly by reducing federal outlay and partly by benefiting from the increased tax revenues resulting from soaring capital gains. With the more resolute commitment to the ideology of "free capitalism" both in the U.S. and throughout the world, the chances are that American society of the first decade of the new century will reap all the consequences of uncontrolled capitalism.

Dr. C.T. Kurien is Professor Emeritus, Madras Institute of Development Studies, Chennai.

Another caste crime

An act of caste reprisal puts to shame a northern Karnataka village.

HAD Keshappa and Meramma, a young couple from Vannenur village in Bellary district who fell in love across an inflexible caste divide, been caught together, they would in all likelihood have been lynched by the residents of this caste-cleaved village in northern Karnataka.

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Keshappa is a Dalit and Meramma is from the upper Valmiki caste. It was to escape harm that they fled their village. Their act of daring destabilised the rigid network of caste-based social conventions in the village, but not for long. On hearing that Meramma was in a nearby village, her enraged relatives forcibly brought her back. She was abused and beaten and later sent away to relatives in another village. Keshappa dared not return to his village and has so far not been traced.

There was further upper caste reprisal that was swift and savage. Yerramma, a poor Dalit agricultural labourer in her mid-30s, was singled out for punishment, for her alleged role in encouraging the clandestine affair. The village had been in a ferment ever since Meramma was found in mid-August. There were rumours of revenge, and the Dalits feared that their homes would be set on fire by the Valmikis - a mode of upper caste attack that is not uncommon.

On the evening of Sunday, August 26, a large gang of upper caste men, drunk and armed with knives, went to Yerramma's house, dragged her out and into the nearby field and stripped her, while abusing and beating her. They were accompanied by several women as well. The gang tied her arms behind her head, and then dragged her from her house down the main road for a distance of about 700 metres to the village panchayat office, where they tied her to a post. The entire village was witness to this spectacle, but none dared intervene.

Yerramma's husband Yennappa, and daughter Honamma, tried stopping the men, but were themselves beaten. It was only when the men left Yerramma that her husband and daughter could approach her. Yennappa covered her with the piece of the cloth he was wearing and brought her home. "They beat and kicked my mother, shouting at her to accept her mistake," Honamma said. "Mother said, 'Even if you kill me I will not accept that I did any wrong. I too have a daughter.' I tore a piece out of my sari to cover her, they threw it away. The whole village was watching, including panchayat members, but the men said they would kill anyone who tried to stop them," Honamma recalled.

The unwritten rules of caste govern life in most villages of Karnataka, especially in the northern districts. The brazenness, however, of this well-planned act of upper caste vendetta suggests the depth of upper caste domination in this area and the contempt that the upper castes have for the law. Valmikis are a Scheduled Tribe, but they are superior to Dalits in the caste hierarchy. Of the 543 households in the village, 320 belong to Valmikis and 90 to Dalits. The Valmikis are a land-holding caste, and several amongst them are wealthy owners of agricultural land irrigated by the Tungabhadra canal.

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SOON after Yerramma was brought back to her house, the police were informed of what happened. A police party arrived at 6-30 p.m. Yerramma and her husband were taken to the police station, where they filed a First Information Report (FIR). Thereafter Yerramma, who was bruised and in a state of emotional trauma, was taken to the Vijayanagar Institute of Medical Science in Bellary town. The FIR named eight persons - five men and three women (including the parents of Meramma). Cases were booked under Sections 143, 147, 342, 323, 354, 504, 506 and 114 read with 149 of the Indian Penal Code. These sections deal with wrongful confinement, assault, molestation, threat of death, abetment to violence, punishment for rioting, and so on. As the crime was committed by members of a Scheduled Tribe, cases could not be booked under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, a law that has more teeth and makes any atrocity motivated by caste a non-bailable offence. Instead, the eight accused were charged under Section 7, Clauses B, C and D of the Protection of Civil Rights Act, 1955, in addition to other provisions. All the offences for which the accused were booked were bailable.

The next morning, the eight accused were arrested and produced before the court of the Judicial First Class Magistrate, Bellary. Despite the exceptional nature of the crime, they were released on bail. Immediately the five men who were accused absconded. In a second round of preventive arrests the three women were re-arrested, and another 17 persons from the village were also taken into custody. By this time the news had been picked up by the media, and the event attracted national attention.

However, the publicity and the visits by a number of senior politicians and government officials to the village have not assuaged the fears of the Dalits. Nor have assurances by the police that they have created a special squad to find the five accused who jumped bail. Despite a 24-hour police picket in the village, an atmosphere of tension and uncertainty pervades.

The fact that the culprits were let out on bail despite the enormity of the crime, and are now at large, only reinforces the Dalits' convictions of upper caste invincibility. "You have let them out on bail. Give me poison, there is now no point in living," Yerramma is reported to have told Allam Veerabhadrappa, the Karnataka Pradesh Congress Committee president. Many Dalit families, particularly those who are related or seen as close to Yerramma, have not gone to work since the incident. "We are frightened. They are already saying that they will burn our houses," Kishtamma, Yerramma's aunt, told Frontline. "There is nothing we can do, we have no voice, we are like the dead...," she said.

In the homes of the upper caste people, the men have either been arrested or have fled the village. Sullen-faced women from Valmiki homes refused to be drawn into conversation. Only Dalits were willing to give eyewitness accounts of what happened to Yerramma.

Because of the sweep of arrests of persons belonging to the Valmiki caste, participants and onlookers alike, non-Dalits now feel safer denying their presence in the village on the day the incident took place. Hanumakka, Keshappa's mother, is burdened with her own fears for her son's safety, and her family's future in the village. Although her son has not returned, the family has not filed a complaint with the police. "I knew nothing of his affair, and I have not seen my son from the day he left the house," Hanumakka said.

The apprehensions of the Dalits and their lack of confidence in the law have some justification given the abysmal track record of the courts in handing out punishment for caste crimes. Karnataka has a very low conviction rate in the matter of cases booked under the Prevention of Atrocities Act (see table). According to S.N. Borkar, Additional Director-General of Police, Civil Rights Enforcement Cell, there are several reasons for this. Borkar said: "Although special courts for trying caste crimes have been established under the Act, they do not confine themselves exclusively to such crimes, and they are heavily burdened with other cases. Also, there is a lapse of over a year before a charge-sheet is drawn up and the case committed to such courts. The cases are frequently adjourned, and the parties are so unequal in economic and social standing that with the delays, witnesses turn hostile, and the case finally becomes too weak for a conviction."

At present, half the compensation due to a victim of a caste atrocity (the compensation rates for different types of caste crimes are listed in the Rules framed in 1995 to the Prevention of Atrocities Act, 1989) is to be paid at the time of the filing of the FIR. The remaining half is to be paid after the conviction. Since conviction has become such an unlikely occurrence, the Karnataka police have recommended to the government that the Act be amended to ensure that the remaining 50 per cent of compensation be paid after the charge-sheet is filed.

In Yerramma's case, several days after the crime neither had a charge-sheet been filed nor had the main perpetrators of the crime been arrested. While in hospital at Bellary, Yerramma's physical condition took a turn for the worse and she was shifted to the Jayadeva Institute of Cardiology, Bangalore.

The All India Democratic Women's Association (AIDWA) sent a team to Bellary to investigate the incident. AIDWA was organising a demonstration on this issue on September 7 and was to present a memorandum to Chief Minister S.M. Krishna demanding the immediate arrest of the accused. "We are also demanding that the government work out a rehabilitation package for Yerramma in consultation with her and the rest of her family," said K.S. Vimala, general secretary of the Karnataka unit of AIDWA. "We want the police to arrange for a team from AIDWA to meet Meramma, who is a minor, and whose security we fear for," she told Frontline. The Samatha Sainik Dal, a Dalit organisation, has also been providing support to Yerramma and her husband.

Punjab pointers

Pre-election politics in Punjab presents a complicated melange. But one fact is obvious: the SAD-BJP ruling alliance will need nothing short of a miracle to retain power.

LAST month, two major media publications carried opinion poll findings that Prakash Singh Badal is perceived to be the best-ever Chief Minister of Punjab. But if the odds offered by small-town bookmakers in the State are anything to go by, the Shiromani Akali Dal-Bharatiya Janata Party alliance will need a minor miracle to secure a re-election. And Punjab may need a miracle of a considerably larger scale in order to undo the effects of five years of SAD-BJP rule.

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The next Assembly elections in Punjab must be held before March, and the opponents of the ruling alliance smell victory. Their optimism is founded on the stark facts of the SAD-BJP's record in office. Between April 1999 and January 2001, Punjab could attract just 2 per cent of all public and private investment in India. Its borrowings have increased sharply, and interest on debt now accounts for over a third of all non-Plan revenue expenditure. The share of the primary sector in gross State domestic product fell to 40.5 per cent in 1998-99, down 10 percentage points from 1990-1991. Punjab's human development indices are just as dismal. Its sex ratio, the number of women per 1,000 men, is the worst in India; it fell from 882 in 1991 to 874 this year. Although 28 per cent of the State's population belongs to the Scheduled Castes, half of whom are below the poverty line, less than 8 per cent of the budget is targeted to benefit Dalits.

Among those looking to cash in on the public discontent are the Akali factions that are hostile to Badal. On August 5, the Sarv Hind Shiromani Akali Dal of Gurcharan Singh Tohra, the Akali Dal (Amritsar) of Simranjit Singh Mann and SAD dissident and former Assembly Speaker Ravi Inder Singh announced the formation of the Panthic Morcha (Sikh Community Front). The Morcha is headed by a religious figure, Sarbjot Singh Bedi, of the ultra-orthodox Gurmat Sidhant Pracharak Sant Samaj. Ranjit Singh and Jasbir Singh Rode, both former jathedars of the Akal Takht and sympathetic to the revanchist preacher Jarnail Singh Bhindranwale, are also key figures in the alliance. Apart from calling on Sikhs to boycott Badal for his alleged acts of apostasy, the Morcha has said that it will seek to reinstall Ranjit Singh as the jathedar of the Akal Takht.

While the Morcha's constituent parties are expected to contest the elections on their own, the contours of their long-term strategy are becoming evident. At an August 18 meeting in the Golden Temple, Bedi said that all SAD factions would be united by the next Baisakhi day, which falls on April 13. Since the Assembly elections will be over by then, the Morcha clearly hopes to emerge as the inheritor of a post-Badal SAD. The presence of Ravi Inder Singh, who is not known for any ideological affinity with religious chauvinists such as Tohra and Mann, is also a clear signal that the Panthic Morcha's doors are open for centrist SAD politicians. What is certain is that the Morcha will have some impact on the SAD's prospects in key seats, for the Morcha is expected to wean away a part of the SAD's traditional Sikh constituency.

SUCH a division of the traditional Akali votes would be of obvious benefit to a resurgent Congress(I). After years of bickering, the party's three main factions seem to have come to something that resembles peace. At a recent rally in Mansa, Punjab Pradesh Congress Committee(I) chief Amarinder Singh shared the stage with his two most trenchant inner-party critics - former Chief Minister Rajinder Kaur Bhattal and Jagmeet Singh Brar. In the course of his speech Brar made it clear that he accepted Amarinder Singh as the party's candidate for the post of Chief Minister. The rapprochement was secured after a prolonged peace-making mission on the orders of the Congress(I)'s central leadership. A coordination committee led by senior party leader Motilal Vohra promised that each of the party's main leaders would have a fair level of representation in the matter of ticket allocation.

Recent Congress(I) mobilisations seem to suggest that the new unity could have profound political results. Local newspapers reported that among three competing rallies held on Independence Day at Issru, near Ludhiana, the turnout was the largest at the Congress rally. Not everyone, however, is certain that the truce Amarinder Singh, Brar and Bhattal have called will survive the strains of ticket allocation. At a press conference after the Mansa rally, Brar appeared to retract from his commitment made to the PPCC chief. "We had recommended his name to the central leadership," he said, "but they said no decision would be taken just yet. So as things stand there are at least three Congress(I) candidates for the post of Chief Minister, including myself." Bhattal, too, is believed to be lobbying allies inside the party and among possible coalition partners for support.

Congress(I) strategists face more serious problems as well. For one, its key ally in Punjab, the Communist Party of India (CPI), is determined to contest at least 30 of the 117 Assembly seats. "The next elections," argues CPI State secretary Joginder Dayal, "are certain to see a hung Assembly. There is an urgent need to challenge the saffronisation of the administration by the SAD-BJP, but we will only ally with the Congress(I) on honourable terms."

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Without the CPI's support, the Congress(I) knows that Dayal's prediction will most certainly become fact. But the number of seats the CPI is demanding will also leave Amarinder Singh with few ticket choices with which to secure his own authority in the Congress(I). The Congress(I) will also have to arrive at some kind of accommodation with other secular parties, notably the Communist Party of India (Marxist), which has considerable influence in some pockets of Punjab.

Dalit voters are also certain to have a major impact on the Congress(I)'s fortunes. The Bahujan Samaj Party (BSP), whose rise in Punjab led to Dalit voters moving away from the Congress(I), has said that it will contest the elections independently but will support the Panthic Morcha's Ravi Inder Singh should he seek to become Chief Minister. Given the party's record in Punjab, many observers believe that BSP chief Kanshi Ram has struck some sort of opportunistic deal with the SAD. The BSP won 7.5 per cent of the vote in 1997, enabling the SAD-BJP's triumph. The principal impact of the BSP's decision not to join a Congress(I)-CPI alliance this time as well would be to draw potential voters away from the secular formation. The Congress(I), for its part, has started working to undermine the support base of the BSP, promising Dalit families free electricity and homes on unused village community lands.

What are Badal's options now? One tactic would be simply to buy his way out of trouble. Many people believe that the Chief Minister will seek an early election at the end of the paddy harvest season, which began in late August. With cash in their hands, SAD leaders argue, Sikh farmers, who form the core of the SAD constituency, will stay with the party. The problem is that such a political victory comes at a price. The all-time record minimum support price (MSP) of Rs.610 paid for the last wheat crop delighted farmers; Badal claimed he had blocked Central plans to reduce it to Rs.520. But Punjab is now saddled with some 165,000 tonnes of over-priced, rapidly-rotting wheat that other States are unwilling to purchase. The Food Corporation of India is yet to pay Punjab Rs.200 crores for wheat purchased, and the State, having exhausted its Reserve Bank of India food credit, may have trouble buying the paddy crop.

Even if the Chief Minister succeeds in purchasing the support of voters, he may find it difficult to handle the dissidents in his own party. The latest round of sniping from the religious Right was initiated by the Shiromani Gurdwara Prabandhak Committee (SGPC), which has been demanding that Sehajdhari Sikhs be denied the right to contest or vote in elections to the religious body. Sehajdhari Sikhs - those who accept the faith but not some ritual practices, such as not cutting their hair - are permitted by the 1925 Sikh Gurdwaras Act to vote in SGPC elections, a right the Sikh far Right has long contested. SGPC president Jagdev Singh Talwandi fired the most recent shots of this long-running battle, saying on August 29 that he would move the Supreme Court if the Union government did not amend the 1925 Act. Badal has maintained a stoic silence on the issue, knowing as he does that any such amendment would antagonise many Sehajdhari Sikhs who have in the past voted for the SAD. Talwandi's crusade on Sehajdhari Sikhs has the support of Mann and Tohra, which fact has obvious significance in the current context.

Religious hawks hovering overhead are not Badal's only concern. Most observers of Punjab politics agree that the coming elections are likely to see a significant erosion in the BJP's constituency among urban Hindus. For one, the party has failed to deliver on key pre-election promises to its supporters among traders and businessmen, notably that octroi would be waived. The BJP's Punjab unit president Brij Lal Rinwa devoted an entire press conference in Chandigarh on August 29 to listing all that the party had done to reduce sales tax levels and to expedite the settlement of tax disputes, but few people seem wholly convinced about his claims. More important, though, the Sikh idiom of the SAD has alienated many urban Hindus. Urban Hindus believe that the principal beneficiaries of the SAD-BJP alliance have been rural Sikhs. While some have responded by looking to fascist parties like the Shiv Sena, which intends to field 30 candidates in the coming elections, others have turned back to the Congress(I).

Can Badal pull off a miracle win? There are some signs that a magic trick is indeed in the making. At a speech made in Baba Bakala on August 4, the Chief Minister sought to divert attention from the SAD-BJP alliance's record in governance, by promising to implement the Anandpur Sahib resolution on federal autonomy, and criticising the Congress(I) for its role in Operation Bluestar and the Delhi anti-Sikh riots of 1984. The use of these well-worn weapons comes at a time when the other great theme of Akali politics, the Sutlej-Yamuna Link (SYL) Canal, has taken centre stage. On August 9, the Supreme Court asked Punjab and Haryana to arrive at an agreement on sharing river waters, failing which it would deliver a final judgment. The States having failed to do so, a judicial pronouncement is now expected. If the BJP-led National Democratic Alliance is able to stitch together a deal that addresses the SAD's historic grievances, both could march into the elections with something that at least resembles credibility.

Of science and history

Professor Romila Thapar's scholarly contributions over the last four decades to the field of Indian history have given her a special place and standing in the academic world. Large numbers of educated Indians were first introduced to the sweep and depth of Indian history through the History of India (Volume 1) with its lively and absorbing narrative, which Thapar wrote in the mid-1960s and is currently revising. Her popularity as a scholar-communicator comes from the accessibility of her historical writings, to the general reader; her writing of school history textbooks; as well as her outspokenness against recent attempts at rewriting Indian history along communal lines.

Professor Thapar recently spent three weeks as the first Visiting Sundararajan Chair at the Indian Institute of Science, Bangalore. The Chair is given to eminent scholars in the social sciences, arts or humanities to spend up to three months at the Institute in interaction with the science community. In an interview with Parvathi Menon, Professor Thapar spoke about the two disciplines of science and history, and how a fruitful exchange between the two could enrich them both. Excerpts: History connects with science in many ways: it uses, for example, the tools of science to investigate the past, it records the history of science and scientific thought, and so on. What in your view are the areas of intersection between these two disciplines, that of history, and that of science?

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I think the interaction is at various levels. There is at one level the attempt to understand the scientific method and the historical method and to assess the extent to which both help the methods of research in the social sciences. I discussed these in the many interactions I have had with students here. While explaining the complexities of historical analyses, I tried to emphasise issues like cross-checking the reliability of evidence and making rational, logical analyses. The students then came up with two or three ideas that as scientists they found important. I had not mentioned these, although they are also important to history but in a different kind of way. I was asked how a historian corrects errors. I had to explain it was really a rather long process as compared to the correction of error in many scientific theories. The second question they asked me was whether history could predict. I said that the intention of history was not to make predictions but rather to understand the past and thereby understand the present. There is of course a persistent notion among students of science that scientists have hypotheses, but historians have biases! There was an interesting discussion on what is meant by a hypothesis and what is meant by a bias.

The question then arises, what does history bring to the study of, let us say, either the history of science, or to scientific theories. There are two aspects to this. There is first a time dimension, that is, the emphasis of history would be to see scientific theories in terms of how they started, and how they evolved to a particular point in time. Secondly, this question raises the equally important one: what is the social and historical context of that particular piece of scientific knowledge? While presumably the scientist would see it simply as a fragment of knowledge, the historian would relate it to how it came about at that particular point of time in history, and how it was then used in other historical contexts. So the historical and social contexts are important questions for the historian, but it would seem, not necessarily so for the scientist. Yet there have been some studies of the structure and nature of shifting paradigms in science, which endorse the need to look at the social and historical context of scientific ideas.

To return to the point you make about method, what in your view are the differences and commonalities in method between science and history?

Well, when we talk about scientific history what we mean is that the method that we use is something akin to the scientific method. It is based on at least three characteristics that would be important. The first is to establish that the evidence is reliable. The second is making certain that the analysis being made is logical. And third, the analysis must lead to a generalisation that is based on rational argument. I think that these would be the important points of emphases in what is commonly referred to as scientific history.

Your talks at the various institutes of science research in Bangalore were of particular interest to scientists. What is it that history brings to these areas of inquiry that are also of fundamental concern to scientists, ecologists, environmentalists and others? Also, has your interaction with scientists expanded the boundaries of your own inquiries?

Yes, my interaction with scientists, brief though it was, has certainly firmed up my awareness of various dimensions that I had thought about more vaguely before. One of these is the discussion that we had on the sources of knowledge. I focussed a little on the study of the history of science in early India as a system of knowledge, or in fact as multiple systems of knowledge. We agreed that questions relating to knowledge must be posed in a much more direct or firm way than perhaps we have been used to doing. This is particularly so if one looks specifically at themes relating to mathematics, geometry, algebra, on the one hand, or medicine and metallurgy (which is tied in to both alchemy and Ayurveda) on the other. For example, if there is something on the use of plants and metals in Ayurveda, it might be useful to actually investigate which plants are being referred to, how they relate to other classifications, what are the qualities that are associated with these plants, and so on. In other words, we have to go into much more detail, and ask a wide set of questions so as to clarify the evidence.

Take another example - the sources of knowledge. What is the relation of empirical knowledge to that which is regarded as tradition? Now this of course raises the very interesting question that historians are currently debating - what constitutes tradition? Some would say tradition has been inevitably invented all the time and that there is no such thing as a body of information that goes back to a hoary past and is passed on unchanged from generation to generation, which is the way in which people normally think of tradition. The argument now is that tradition is selected or even invented by each generation for specific purposes. This point of view then raises many interesting questions. How does a body of knowledge, like say Ayurveda, or astronomy, get picked up over a century, or three or four centuries? Does it continue unchanged, or is it changed? If so, how is it changed? Why is there a continual recourse to calling upon tradition? Of course, it is called upon largely to give legitimacy to what is happening in the present. It is called upon even more strongly when there are major changes taking place, because one way of legitimising change is to say it is traditional. This sounds contradictory but is frequently the most effective way of introducing change! It is this kind of relationship that new knowledge has to old knowledge that I think has to be investigated in a historical context.

The transmission of knowledge is another important area of inquiry. Is it a closed group that is transmitting knowledge, or is it socially open? Is it really true, for example, that much of theoretical knowledge in early India was confined to the Brahman caste, or to scholars and Buddhist monasteries? Or was it in fact being continually expanded socially to include more and more people who then provided new ideas? We need to investigate the systems of knowledge in each of the disciplines within what we today call science, and see how changes were wrought.

The transmission of knowledge raises the important issue of who controls knowledge, and how knowledge is developed, expanded, increased, and utilised in new ways. The historian explores these issues also through interactions with scientists working in these disciplines. By looking at the texts of the early period, the scientist and the specialist on the text could understand the ways in which changes are taking place; the historian moves in to try and explain why these changes are taking place, and the context in which they are happening.

Are the linkages between history and science more apparent in the study of ancient Indian history? If so, has this to do with the nature of early historical sources?

I don't think that the linkage between history and science is necessarily closest to the study of ancient Indian history. There is much work being done on the subsequent period, from about the 10th-11th centuries. More recently, there has been considerable interest in the 18th and 19th centuries with reference to pre-colonial and colonial knowledge. But yes, if you argue, as scholars argued in the 19th century, that the ancient period is to be seen as a Golden Age, then you have to assume an excellence in everything without investigating the ups and downs, the tensions and conflicts, the harmonies and the co-existences, the discussions on specific theories of knowledge, and so on. Secondly, there are limited texts for such an early period, and the language is sometimes archaic and difficult to understand. Precision therefore can be a casualty. Texts increase in number later in time. This also means that claims can be made for the ancient period that are not always substantiated.

The association of archaeology with ancient history is now bringing about a change. Good archaeology brings in certain kinds of scientific investigation. For example, environmental change is becoming a major area of investigation. The decline of the Harappan cities is being explained as due in part to major environmental changes. Today there is much more emphasis on studying the impact of environmental changes such as deforestation, the flooding of rivers, rivers changing course, salination, the aridity of the landscape, the rise and fall of sea-level, and so on. Could these have led to a decline of the cities?

There is also the evidence on technological change provided by archaeological objects. You can actually see the objects, examine them, and see where and how the technologies have changed. Why were they made in a particular way? How does the method of making them change? What is their function? Science here aids historical analysis. Or take the study of climate. Did climate change in historical times, and if so what effect did it have - on agricultural production, or the rise and decline of cities? Hydrology is a very important area, because if rivers change course they cause certain kinds of destruction and these may have a historical impact.

The other area that is only beginning to be touched upon but is becoming generally of great interest is the epidemiology of diseases. There is frequent reference in general discourse to the possibility of malaria in India having reduced populations and thereby caused the decline of either a state, or a society, or an area. The skeletons of people found lying in the city of Mohenjodaro, point to their having suffered from severe anaemia. More recently, there has been interest in viruses and how societies in the past coped with viral diseases. For example, in those agricultural societies where human beings and animals live in the same hut, there is a greater tendency for viral diseases to develop. Could viral epidemics have wiped out or weakened to the point of making ineffective, a particular society? The study of the evolution of diseases is becoming a theme in history.

New technologies which had the potential of introducing new economies need to be investigated much more fully. What is the corelation, for example, of irrigation technologies to soil conditions, natural water resources, crop patterns, climate, and so on? There has also been a debate on the degree to which the technology of iron was the factor that led to urbanisation in the Gangetic plain in the mid-first millennium B.C. Technologies evolve, of course, and the historian's task is to show that there is a continual process of evolution, and that these points of evolution need to be examined. Such changes would presumably be of interest to scientists. The evolution of technologies also helps to explain variations in form. For example, within iron production there is a difference between objects made of wrought iron and those made of steel. The metallurgist and the historian can usefully do joint analyses of such objects and on why this change occurred.

But lest I sound too down-to-earth, let me add that there are other areas of an exciting exchange of ideas, as for instance in discussions on cosmologies and time.

In recent years there has been a sharp conflict in India between science and a Hindu revivalist notion of science, on a range of issues. Most of these relate in one way or the other to the degree of development of scientific thought in Indian history. The terrain of this conflict is early Indian history. What is the role of the historian in this debate within science? Do you think that scientists and historians have joined forces sufficiently in defence of both science and history?

I think that scientists and historians have greater scope for joining forces in defence of both science and history. The Hindu revivalist position is more often the imposition of modern fantasies on earlier times. Claims are made that much of modern science, especially in geometry, mathematics and astronomy, was known in earlier times, and Vedic texts are repeatedly cited. One wonders whether those who cite Vedic texts really know what they are citing. Or has it simply become a formula that all knowledge systems go back to the ancient period, to the Vedas? There is much talk about Vedic mathematics being superior to the mathematics being taught today. Critics of this view argue that there was not much mathematical development in the Vedas, even though the geometry of altar construction is often mentioned in the Sulvasutras. The real mathematical advances are detached from the Vedic texts and occur in the mathematical treatises of the period after the mid first millennium A.D. There is in fact a distancing from the very early texts, generally dated to the second millennium B.C., and a movement towards more advanced systems of knowledge not restricted to the Vedas such as the contributions of Aryabhatta, Bhaskara, Lalla, Bhaskaracharya and so on. The claims by revivalist ideology about aspects of early science are often historically confused. Early theories are confused with later theories, and the more enthusiastic the revivalist view, the greater the confusion. So in making these claims there isn't even a process of systematic thinking involved, going from simpler forms to more complex forms.

The point is that the research on ancient science does not support the revivalist claims. As a non-scientist, I for one would greatly appreciate an assessment of these claims by scientists. This would counter the confusion that has been created by these claims at the popular level. Unfortunately, there has not been enough of a collective effort by scientists to examine systematically all the revivalist theories about pre-modern science and counter them in a single volume that covers all the disciplines involved in these claims. If the claims are to have any validity, they have to be assessed by scientists.

When theories of science were first drawn out of the early texts, there were careful and meticulous studies of the knowledge they provided. And today there are some scholars who have updated this knowledge, some in Indian universities and some in universities abroad. But the popular understanding has been muddied by the garbled versions arising out of revivalist enthusiasm.

While the science vs revivalist science debate goes on, the government has moved quickly. We will soon have Vedic science, Vedic mathematics and astrology being taught as subjects in our universities. What have scientists and historians brought to our understanding of Vedic science, and can its teaching as a sort of 'Indian brand' of science be in any way justified?

There are many systems of knowledge which could be called Indian science, but to go on calling them Vedic science is historically inaccurate. Furthermore, to label science from early times as Indian science, Chinese science, Arab science, European science and so on, is frequent but some historians of science have questioned these assumptions. Even in the past, many areas of what we now call science evolved through the interaction of various civilisations. For example, in India, astronomy based on a study of the constellations drew heavily on Hellenistic theories in the early period, and in these theories centres such as Alexandria were very important. Translations were made of Greek texts into Sanskrit and there were dialogues between Indian and Hellenistic scholars. This kind of study and dialogue changed in the period after the 5th century A.D. when Indian astronomers and mathematicians were working on other presuppositions and were later in dialogue with Arab scholars. So the subject of Indian numbers, place value systems, the zero, methods of calculation, algebra, was all being discussed by Indian scholars with Arab scholars, with a mutual exchange right up to the 11th and 12th centuries, and in some fields later as well. Emerging out of this dialogue, these sciences then entered the European systems of knowledge. Similarly, alchemy in India was closely linked to alchemical knowledge in China. The achievement lies in how this body of knowledge was advanced through the thinking of a broad spectrum of cultures, and not whether it was 'invented' in India or China or Arabia. Even if some of the breakthroughs are associated with specific cultures and individuals, such as some mathematical ideas by Indian mathematicians, their greater significance lies in the broad spectrum of seeing how knowledge was used. One has to recognise that the history of civilisations is a history of their dialogues.

"Who are the Vedic peoples?" Why has this question become central to the Hindu revivalist notion of history? How would the historian answer this, and how has science been able to provide insights on this? For example, what information has genetic analysis been able to offer? Does science strengthen the independent findings of history?

The question has become central to the issue of early history because of the political ideology that is now stressing the centrality of identity and origins as part of the ideology of Hindu nationalism. There has never been this obsession with identity before. Since a fundamental theory in the Hindutva ideology would like to prove that caste Hindus are the lineal descendants of the original inhabitants of this country, and therefore are the inheritors of the land, there is a tendency to argue that everything goes back to a single source - the Vedas. Anything that one can be proud of today inevitably has to have a Vedic origin. Now this is a travesty of history. We know that cultures, sciences, bodies of knowledge, and identities all evolved and changed. There were and are multiple identities and these evolved and changed over time, as they are still doing. The single source theory is a static theory, very reminiscent incidentally of the early 19th century colonial historiography of India that assumed that the source of Indian civilisation lay in the Vedas. Wherever there is contradictory evidence, as with the discovery of the Harappan cities, an attempt is made to prove that they had the same authorship as the Vedas.

In their search for a scientific basis for their theories, the revivalists are now trying to draw on genetic analysis to help ascertain whether 'the Aryans' were indigenous or came from outside. From what I have gathered from my stay here, genetic analysis is still a rather recent discipline and the samples relating to the study of identifying groups have been limited samples. It seems to me that it would be premature at this point to make sweeping generalisations about identities of ancient peoples based on genetic analysis. It is necessary that we think about this carefully, because it can have disastrous consequences if we get the identities wrong. In the late 19th century everybody swore by 'race science' which was regarded as being at the forefront of science. For a whole century we lived with the disastrous consequences of that. Therefore, I think we have to be careful about this matter and not rush into making statements, however eager the media might be to forefront the kind of sensationalism that is likely to come out of these analyses. But it is an area on which geneticists and social scientists will have to work closely together.

Examining a troubled transition

Reinventing India: Liberalization, Hindu Nationalism and Popular Democracy by Stuart Corbridge and John Harriss; Oxford University Press, Delhi, 2001; pages xx + 303, Rs.595.

INDIA'S passage through its fifth decade of Independence was scarred by several manifestations of a deep-seated political pathology. It was a decade of violence and social turmoil, centred particularly on an effort to define a sense of nationhood in terms of primordial religious loyalties. At the same time, a shift in economic course was signalled by the social and political elite, who in an exuberance of self-rediscovery turned decisively against the philosophy that had guided policy since Independence.

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These multiple facets of India's troubled transition through its fifth decade called forth a fair bit of scholarly activity, among which this volume must count among the more important. Corbridge and Harriss have individually been engaged in the study of Indian society and politics over the years - the latter in particular has a track record of scholarly interest in India stretching back over two decades. This is perhaps their first collaborative effort and it is a work of expansive scope, which develops its core concepts through a complicated narrative stretching back centuries. The long-standing research commitments of the two authors are reflected in the admirably efficient job they do of digesting and presenting a diversity of views on India's political evolution from the available literature.

Since the time it began its independent journey as a self-governing entity, India has gone through several processes of transformation - a continual process of invention which constitutes a central theme of this book. As a conceptual approach this is intimately connected with another one - perhaps academically more fashionable - of studying nations and states as "imagined" entities. Politics transforms the nation of the imagination into an invented model.

The Indian state as constituted at Independence was the central focus of nationhood, deriving its legitimacy in turn from the promise of development. For Jawaharlal Nehru and others who pioneered the programme of modernity, the state was an agency of progress and enlightenment, which would shine the light of reason on areas steeped in superstition and ignorance, pulling the masses into a new realm of prosperity and promise. This was akin to the invocation of a superior power, reason exalted as "Reason", to legitimise the quest for progress - not very different in the substantive sense from the transcendental investiture by which medieval monarchies claimed their legitimacy.

In the narration of Corbridge and Harriss, the invention of India suffered from the inherent contradictions of the manner it was imagined. The idea of democracy came to India with Independence, but in the absence of a bourgeois revolution. Colonialism had modernised certain narrow enclaves, but left deeply entrenched a traditional "cellular" structure in Indian society. The caste system and village organisation had engendered, as the political scientist Barrington Moore puts it, "a huge mass of locally coordinated social cells". The bourgeoisie, for all its ambitious visions, had not managed to cement its solidarity on a national scale and remained hamstrung in its modernising project by the competing visions of the agrarian elite. In having to deal with a multiplicity of interests, the bourgeoisie was unable to institute a "developmental state" in the manner of the East Asian nations. It opted instead for a "passive revolution" through the process of planning, which in turn depended upon extending the bureaucratic apparatus of control in a manner that eroded the quasi-autonomy of the traditional "cells" of Indian society.

The situation bristled with the potential for conflict, which was only partially obscured by the invocation of four grand themes in the modernising project - democracy, federalism, socialism and secularism. All these ideals were severely compromised by actual circumstances at the time of Independence. The Constituent Assembly, which laid out the doctrinal framework for the invention of India, was a body constituted on the basis of a narrow and restricted franchise, which took on the mandate of working out the basic law for a nation made up overwhelmingly by the poor, the deprived and the under-privileged. The Constituent Assembly debates reflected all the ambivalent attitudes of an elite that was anxious to share the benefits of modernisation, without surrendering the social advantages they enjoyed.

The story of India's effort at modernisation through bureaucratic planning, then, is one of a succession of "elite revolts" against the implied egalitarian principles of development. It was a process that brought to the foreground all the contradictions in India's democratic experimentation. Democratic institutions, say Corbridge and Harriss, have been conspicuously absent in the Indian political landscape. In other words, there have been no political parties organised democratically or functioning institutions of democracy at the local level. This has meant that elections have become the substance of democracy and that electoral success has not been more than a formal mandate to govern.

Unable to surmount its inherent deficiencies, the Nehruvian planning project ran aground in the economic crisis of the mid-1960s. Indira Gandhi managed to break the resultant political impasse in 1971 with the revival of the socialist project that her father had only very tentatively embraced. But this was a "jealous populism", since for Indira Gandhi the cause of poverty eradication was not as important as safeguarding her own exclusive claim to its espousal. In a milieu of institutional infirmity, this assertion of personal authority accelerated the drift towards politics divorced from an institutional basis. The logical outcome was the suspension of even the pretence of democracy during the Emergency regime of the mid-1970s. This was not, say the authors, an effort to put in place a "developmental state" on the lines of the East Asian model, but rather, the panic response of an "ideologically and politically bankrupt ruling elite which was entangled in its own populist rhetoric".

The authors have evidently interpreted the Emergency as a part of the sequence of "elite revolts" that played havoc with the practice of democracy and the promise of development in India. They lean towards viewing the Janata Party interlude that followed the Emergency as a period when the four traditional verities of Indian politics - democracy, federalism, socialism and secularism - were reaffirmed against their threatened erosion. But then they see little contradiction in arguing that Indira Gandhi's return to power was achieved by recruiting the loyalty of the minorities and the lower castes - precisely those sections that bore the brunt of the elite revolts in terms of opportunities lost.

The 1980s constituted a period when the founding myths began seriously to be questioned, in both theory and practice. This was a decade when the Indian state sought in vain to square the circle of an unchanged distribution of productive assets, a fiscal apparatus that spared the wealthy any undue strain, and the unrelenting demands of the poor for reasonable economic opportunities. In seeking to address these contradictory requirements, by the end of the decade the Central government lurched into a fiscal crisis.

Corbridge and Harriss do not tie up the theme of the growing fiscal crisis with the erosion of the state's claim to being the sole focus of nationhood. It may be a productive line of inquiry to seek to correlate Indira Gandhi's first flirtations - and her son Rajiv Gandhi's more ardent embrace - of Hindu nationalism with the elite's quest for an alternative conception of nationhood to fill the vacuum caused by the retreat of the state.

By way of conclusion, the authors offer the prognosis that the "defining struggle" in Indian politics today is that between the "centralising instincts" of Hindu nationalism and the countervailing mobilisation of lower castes and subaltern groupings. The Indian state, they contend, may well be forced under the pressure of the new forms of political mobilisation to "do the bidding of India's lower orders". This would be the final act in the invention of the India that the Constituent Assembly had imagined. But in the bargain it is unlikely that either the political structure or the geography of India will remain unchanged. This is an extrapolation that lurks at the fringes of the authors' analysis, but perhaps is unavoidable given the terms of their discourse.

Democratising history

Prehistory by Irfan Habib, People's History of India 1, published by the Aligarh Historians Society and Tulika, New Delhi, 2001; pages 76, Rs.160.

I never wanted to practise safe history.

- Howard Zinn, author of A People's History of the United States.

THE genre of 'people's history' writing occupies an important place within national traditions of history writing the world over. Arising from within the progressive, Marxist intellectual framework, this approach challenged many of the assumptions and methods of conservative historiography. People's history series or individual books have enriched and democratised history. They have widened the historical lens to bring in hitherto excluded social segments into the picture; they have analysed historical change from the perspective of groups and classes in the forefront of movements for social change; and they have made history accessible and relevant to the non-specialist without any dilution of its content or quality. In the English speaking world, two well-known examples of people's histories are A People's History of England by A.L. Morton and A People's History of the United States by Howard Zinn.

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In India, Jawaharlal Nehru's Discovery of India represents perhaps the earliest attempt at surveying the sweep of Indian history from a nationalist, pro-people spirit of historical inquiry. But the Indian historical stage is vast. Not only does recorded history go back almost 5,000 years, there are also significant regional variations in how societies evolved, while historical source material from the subcontinent offers itself in a bewildering range of categories that differ from one another in both content and form.

Nevertheless, the need for a connected history of this subcontinent of immense diversity remains; and the People's History of India series initiated with the publication of Prehistory by Irfan Habib is in response to that need. While the series will broadly fall under the Ancient, Medieval, Modern periodisation scheme, each will comprise a set of fascicules that can stand by itself. "The idea behind the series was to provide a textbook level book for senior college students, teachers and the interested citizen that presented a larger view of social development," Irfan Habib, editor of the series, said. "The series will provide the latest developments in historical research," he said, adding that one of its purposes would be to provide evidence to refute Hindutva distortions in history.

Prehistory launches the series by beginning at the very beginning - with the origin of life 3,500 to 4,000 million years ago! The slim volume starts with the geological formation of the Indian subcontinent and takes the reader through the evolution of the human species from Homo habilus to the anatomically modern man who appeared about 115,000 years ago according to the archaeological records of South Africa. It was from here that modern man is believed to have migrated to West Asia, and then traversed across Asia (making an entry into India around 75,000 years ago) into Australia.

The migratory urge of human groups across continents, the fashioning of new technologies, and the development of speech are parts of a remarkable story that we can never reconstruct in all its drama. Prehistory discusses the archaeological markers of human and societal evolution over a period of about 65,000 years, from modern man's first entry into the subcontinent until around 8000 B.C., when more substantial evidence of Mesolithic (Middle Stone Age) cultures surface.

The third and most substantial section of the book discusses the next leap in human social organisation made possible by the refinement of tool-making technologies. The Neolithic (New Stone Age) revolution propelled by more efficient tools, led to agriculture and the domestication of cattle. There is a detailed discussion of the important site of Mehrgarh in Baluchistan, which provides evidence for every phase of the Neolithic Revolution between 7000 B.C. and 3800 B.C. Mehrgarh provides important evidence from around 4000 B.C. of the potter's wheel, which Irfan Habib says came from West Asia, where there is evidence of its usage from 5000 B.C.

NEOLITHIC cultures developed in other parts of the subcontinent. Two major cultures that developed after 3000 B.C. were in the Kashmir valley and in Karnataka.The book discusses these sites and the influence they had on the early history of the subcontinent.

The text of Prehistory is richly illustrated with maps. It includes some unlikely mapping themes such as 'India' 65 million years ago, with boundaries of the tectonic plates (page 3), as also more conventional and useable maps, such as the one showing the Neolithic sites on the subcontinent with their dates (pages 58-59). The text is also accompanied by detailed drawings of artefacts such as microliths and other stone tools, pottery, craftsmen's tools, cave drawings, and so on.

Owing partly to the nature of the technical terrain it covers, Prehistory does not lend itself to an easy read - a feature that future volumes in the series will hopefully not share. In the format adopted for Prehistory, and presumably for the monographs that will follow, footnotes have been replaced by bibliographical notes that appear at the end of each chapter. The reasons for a relatively limited reading list that the book provides (especially for Chapter 1) are not clear. It could be based on the perfectly legitimate assumption that in this age of instant information, a reader who wants more information on a particular topic can quickly get it on the Internet.

The People's History of India project has received a seed grant from the Madhya Pradesh government. In fact, the Madhya Pradesh Textbook Corporation will use the books as models on which more simplified textbooks could be written for State schools. The next book in the series, also by Irfan Habib, will be on the Indus civilisation. The fascicules will be published as and when they are ready and not necessarily in chronological sequence. The series is likely to have at least 20 volumes.

The modern Prime Minister

I do not know how many members of the House realise what exactly is the machinery by which collective responsibility (of the Council of Ministers to the Lok Sabha) is enforced... The only sanction through which collective responsibility can be enforced is through the Prime Minister... It is only when Members of the Cabinet both in the matter of their appointment as well as in the matter of their dismissal are placed under the Prime Minister that it would be possible to realise our ideal of collective responsibility.

AS an exposition of Articles 74 and 75 of the Constitution, Dr. B.R. Ambedkar's observations, in the Constituent Assembly on December 30, 1948, cannot be faulted. But, as we know from experience, the Prime Minister's standing in the Cabinet varies with the political situation, not only from party to party but within the same party. The Indira Gandhi who presided over the Cabinet from 1966 to 1969 was vastly different from the one who lorded over it from 1972 to 1977, having secured a firm position in the interregnum (1969-72).

Atal Behari Vajpayee gives every indication that he wields less authority over his Cabinet now than he did, say, a year ago. Every Prime Minister has to reckon with his party, with Parliament and with the national mood. But a Prime Minister from the Bharatiya Janata Party has to reckon additionally with the mentors of the party, the Rashtriya Swayamsevak Sangh (RSS). Its assertiveness in recent months has undermined Vajpayee's authority and prestige.

It was after his famous dinner to the RSS' top brass and their man in his Cabinet, L.K. Advani, on December 1, 2000 that he raised the Ayodhya issue, only to make a tactical retreat. The Tehelka exposures last March provided grist to the RSS' mill. Vajpayee made a desperate attempt at fence-mending at lunch on May 12 with the RSS leaders. It was a weak Vajpayee who went to Agra and a weaker Prime Minister who emerged from there, as his apologia to the BJP's National Executive on July 28 revealed. He now gives the impression of "being in office but not in power" to use Norman Lamont's famous words addressed to Prime Minister John Major. Vajpayee's angry offer to resign, on July 31, cited fissures in the National Democratic Alliance (NDA). The BJP and the RSS could not have been absent in his reckoning.

Vallabhbhai Patel said at the outset, on June 7, 1947, that India had opted for "the British type of Constitution". However, in Britain the Prime Minister's office has changed significantly over the years. Yet there is, unlike India, no PMO (Prime Minister's Office). Prof. Michael Lee wrote in 1995: "The debate has moved beyond the issue which was voiced in the 1970s of whether to recognise the evolution of the Cabinet office into a Prime Minister's department... Nothing has happened to transform a basic proposition of British government: a strong Prime Minister does not need a Prime Minister's department, while a weak Prime Minister who may need one lacks the power to create it." Opposition to it would be overwhelming.

This work by Prof. Richard Rose describes the current state of the office of the Prime Minister with stark realism. Tony Blair has amassed enormous power, yet remains vulnerable to attack and defeat. On July 17, scores of Labour members of Parliament joined political opponents and rebelled against him when he tried to sack two vocal critics, both Labourites, from their respective parliamentary select committees. The government's huge majority was of no avail. It speaks a lot for the author's perspicacity that, after describing the Blair revolution, he should write: "The character of MPs may alter, but there is no going back to a House of Commons full of backbenchers who regard it as a resting place after years in the trade union movement or as a duty to perform, like being the lord lieutenant of a shire county." The MP can no longer be taken for granted.

Blair is no less authoritarian than Margaret Thatcher was. "Tony Blair has also made significant and irreversible alterations in the new-style Prime Ministership. First, Number Ten now has a far larger political staff than ever before, and the political staff has more authority over civil servants. Such a gain in power is unlikely to be surrendered by Blair's successor. Second, the authority of the Westminster Parliament over all parts of the United Kingdom has been qualified by elected assemblies for Scotland and Wales, an elected Mayor for London, and a Northern Ireland government supported by the Republic of Ireland and the White House as well as Westminster. Third, the authority of Westminster is also subject to constraints of the European Convention on Human Rights. Finally, the old ideological battles about the boundaries between state and market have been ended by the adoption of Blatcherite policies."

The work rests on two fundamental propositions. The Prime Minister's power has increased greatly within the country, but it has diminished greatly outside because the United Kingdom is no longer a great power. Secondly, the "new style" Prime Minister differs radically from those of the old school. "For the new-style Prime Minister, the box that counts is the television set rather than the despatch box next to the Mace in the House of Commons. What is said on television matches or surpasses in importance what is said in Westminster. In Opposition, Tony Blair and his associates showed extraordinary concentration on the crucial question facing an Opposition leader: how do I win the next general election? After gaining the biggest parliamentary majority in well over half a century, the challenge is one of policy; what do I do in government? A leaked memo by Blair's polling consultant, Philip Gould, offers an answer: 'Unless you handle the media well, you cannot govern competently'."

New-style Prime Ministers pay less attention to Parliament and to party. "They see their authority as deriving from the electorate. Margaret Thatcher expected to use every platform available to her as a 'bully pulpit' from which to expound her convictions. With control of the New Labour organisation in his hands and a much enlarged staff in Number Ten, Tony Blair expects MPs and party workers to do what he expects, whether or not he meets the expectations of veteran Labour supporters."

A Prime Minister is concerned with both politics and policy. Blair's populism seeks to blur choices in policy-making. He aspires to be a national leader, governing by consensus. Asquith's famous remark that "the office of the Prime Minister is what its holder chooses and is able to make it" is only partially true. He must, above all, meet the expectations formed before he enters Downing Street. He "must always keep in mind the demands of both politics and policy". He must be bold enough to invest his political capital in making policy decisions in the national interest even at the risk of losing some popularity. A populist leader invites distrust in the long run.

Every Prime Minister has his own inner circle of advisers. Students of the PMO in India would do well to study the British innovation, the Policy Unit at 10 Downing Street, which was set up by Harold Wilson in 1974. "The Unit monitored departmental actions of concern to Downing Street and wrote memoranda and issues for the Prime Minister. Policy Unit staff were recruited from a variety of backgrounds, political apparatchiks, academics, journalists and pressure groups. Each staffer was given the task of shadowing one or more ministries, and attending some departmental or inter-departmental meetings on behalf of Downing Street. When civil servants and departmental ministers found that some Policy Unit staff carried influence in Downing Street, they consulted and squared them before sending memoranda to the Prime Minister on which the Unit's staff would comment." It comprises civil servants as well as party political staff. Blair has trebled the political staff which has prompted the Conservatives to accuse him of "politicising" the prime ministership.

In contrast, "the Cabinet Office is far larger than Number Ten; its officials are very able civil servants; and it routinely monitors all Whitehall departments and provides the secretariat for inter-departmental committees. A new Performance and Innovation Unit has been established to monitor programmes cutting across departmental committees. The Cabinet Office also has sufficient staff to monitor links between domestic Whitehall departments and the European Commission, an important task in a world of increasingly intermestic politics. Blair has described the takeover of the Cabinet Office as creating 'the corporate headquarters of the civil service in order to meet the corporate objectives of the government as a whole, rather than just the objectives of individual departments'."

To become a Prime Minister and retain the job, the leader must be a vote-getter. If he fails in this test, he is shown the door, as Margaret Thatcher discovered in 1990 when her popularity dwindled - a lesson Blair would do well to heed. Sooner or later a sequence of unexpected or mishandled events and a threatened or actual electoral defeat can create disillusionment in the electorate. "However tall a Prime Minister stands at the pinnacle of success, like King Charles I, on leaving Westminster he or she is usually a head shorter." Blair's obsession with media management will be of little help because the media are today more assertive than ever before. There has been a sea change in journalistic values.

"Today, the media see themselves as players in the Westminster game. Most journalists and editors now believe that they, rather than Downing Street, ought to be the ultimate arbiters of what the public should know."

A Prime Minister's authority depends on his relationship with the party. Attlee could brutally tick off Harold Laski, the Chairman of the Labour Party. "You have no right whatever to speak on behalf of the government and a period of silence on your part would be welcome." Few Prime Ministers would use such language.

Blair has "disciplined" the party, reduced his involvement in Parliament's proceedings and "downgraded Cabinet". The arrogant Peter Mandelson justified this: "The era of pure representative democracy is coming slowly to an end." Which explains the MPs' revolt on July 17 as well as Mandelson's own defeat in the election to the party's national executive.

This book provides a sound warning of the perils a Prime Minister faces vis-a-vis his colleagues, his MPs, civil servants, the media and the public at large. Blair would do well to heed his warnings; especially since only last September his "attempt to substitute politics for policy and manage public opinion" was challenged in the streets and in the party's annual conference. He responded with impassioned oratory, convincing few.

"Tony Blair's claim to be Prime Minister of all the people does not produce the end of politics; it is a continuation of politics by other means. Instead of accepting that elections, parliamentary debate and Cabinet discussions involve differences of opinion, Blair seeks to marginalise those whose views disagree with him, since they cannot be speaking for 'all' the people. His response threatens to turn managed populism into repressive populism. Politics without policy can take an MP to Number Ten but it leaves wide open what happens thereafter."

The book abounds in delightful quotes and the author's own bons mots. One deserves reproduction for the benefit of those who aspire to replace a Prime Minister - the one who wields the dagger seldom acquires the crown.

The Prime Minister in a Shrinking World

Chronicle of a strike

The Indian Railways Strike of 1974: A Study of Power and Organised Labour by Stephen Sherlock; Rupa & Co, New Delhi, 2001; pages 513, Rs.295.

TWENTY-five years later, the Indian Railways strike of 1974 continues to evoke images of the heroism of ordinary railway workers, their families and those who dared support them against the might of the Indian state. Although much has been written about the Emergency which followed a year later, the most widespread revolt by the working class in independent India has received comparatively little attention from labour historians.

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Stephen Sherlock's book is one which fills the gap and does justice to the workers' resistance against heavy odds. The book recalls the vivid images of terror unleashed by the Indira Gandhi regime on railwaymen across the country, a prelude to what was to follow on a much wider scale during the Emergency.

The 1974 rail workers' strike was a unique event for several reasons. It occurred at a time when labour militancy was at its highest in independent India: the number of workdays lost owing to all industrial disputes in India touched 40 million in 1974, more than double that recorded in any single year during the preceding decade. The strike and the manner in which it was put down marks a turning point in labour's leverage with the Indian state. The 1974 strike forced political parties across the spectrum to spell out their stand clearly. In fact, parties which were ambivalent or inconsistent in those heady days are still trying to come to terms with the position they took then. The strike also provided a stunning launch pad to mass appeal for those like George Fernandes who, as the president of the All India Railwaymen's Federation (AIRF), was the main leader of the strike. Although portrayed as a failure, the strike achieved later what it sought to achieve then. For these reasons the strike marks a milestone for labour historians.

The study evaluates the role of the three main agents in the arena - the Indian state, the Railways management and the workers' unions. Conventional labour studies perceived unions as intermediaries between workers, whom they were supposed to represent, and employers. In the case of the state-owned Indian Railways, the government played the role of the employer and that of the agency entrusted with the task of protecting the interests of the weaker party in the compact between labour and capital. Sherlock's study reveals that although the Railway Board is supposed to work under government supervision, in reality it enjoyed more autonomy in day-to-day matters than what the government has or is willing to concede. In part, such a situation arose because of the colonial legacy which laid the basis for the Indian Railways after Independence. This meant that although in the public perception the government was under pressure to appear pro-labour, the power of the bureaucracy, particularly of those in the bastion of the Railway Board, ensured that even genuine and long-pending labour reform measures remained on the backburner, albeit seething.

The Railways bureaucracy and the government preferred to deal with "tamed" leaders of the Railways' working class. In doing this, it thwarted all attempts by workers to establish "their own" unions. Sherlock points out that before the strike the AIRF leadership had "accepted and adjusted to that reality" which demanded that they keep the workers on a tight leash. The government stubbornly refused to allow union recognition on the basis of election of representatives by secret ballot. While the government, as employer, perceived the unions as devices with which it could "discipline" the workers, the unions, over a period of time, had grown into bureaucratic structures alienated from ordinary workers. The 1974 strike was symbolic of the workers' refusal to accept the "patron-client" character of the two major unions which claimed to work for their behalf.

In the Railways, government patronage of the two dominant unions led to two developments that provoked the upsurge of workers in 1974. One, the distance between the officially recognised unions and the rank and file widened because workers no longer saw the unions as representing their interests before the government. Secondly, the government's patronage of the officially recognised unions, at the exclusion of all other voices of the working class, led to a complete blockage of possibilities of the redress of the grievances of ordinary workers. The situation was thus fertile for an explosion of anger from below. Although on paper more than 70 per cent of the 1.4 million rail employees (permanent ones) were members of the two official unions on the eve of the strike, they led the leadership to the strike. In fact, the strike was the plank on which Fernandes was elected president of the AIRF a few months before the strike.

Sherlock's documentation - from union, government and Railways management sources - exposes the shocking working conditions that provoked the workers to revolt in 1974. The 1974 strike, contrary to popular belief, was not a sudden action. It was preceded by strikes by rail workers across the country in 1967, 1968, 1970 and 1973. These strikes indicated that the workforce was restive and on the brink of exploding into revolt.

The 1974 strike was led by rank and file workers, particularly the newly-emergent crafts unions among the rail workers. Labour historians generally regard crafts unions as being restrictive in their class consciousness, and prone to the pulls of sectarian rather than wider class loyalties. Although this has been borne out by the decline of the crafts unions after the 1974 strike, such crafts unions broke the stranglehold that the two main unions had built for themselves.

Sherlock provides an exciting flavour of the turbulent 1970s when rank and file workers, fed up with the bureaucratic ways of the two officially recognised unions - the pro-Congress National Federation of Indian Railwaymen (NFIR) and the Lohiite Socialist-inspired AIRF - forced the leadership to address their long-pending demands. The long working hours of rail crew - "loco running staff" in industry parlance - was one such demand. For instance, loco drivers had often to be on the high-pressure job for days without a break.

Historically, many of the British-run rail networks had termed the work of the loco staff as "continuous", implying that workers would have to remain at work as long as the train ran on its trip, often for several days at a stretch especially on the goods trains. Independence did not change this. The spread of diesel engines and the consequent intensification of work in the Indian Railways since the 1960s created much resentment among the workers. The Railways, although government-owned, remained an island in which the accepted worldwide standard of an eight-hour working day was violated with impunity. In fact, when the crafts unions raised the issue, they demanded a 12-hour working day for loco running staff. Besides this, there were other issues. Pay scales in the Indian Railways had remained stagnant, unlike those in the public sector companies and in departmental undertakings. The officially recognised unions stayed aloof in the wake of the rising tide of protests in 1973. The die was cast for the biggest confrontation between the Indian state and the working class.

The Railways was one of the earliest vehicles of industrial capitalism in India. The railway industry was also the first in which industrial workers launched collective action. In 1862, more than 1,200 workers struck work at Howrah station demanding an eight-hour working day. Waves of strikes by railway workers occurred in the privately-owned rail networks of British India and culminated in the great wave of unrest on the eve of Independence. Sherlock provides an inspiring account of the unionisation in the Indian Railways and the militant struggles of ordinary workers.

The first hints of workers' disillusionment with the recognised unions came in 1966 when firemen at Madurai, Tamil Nadu, organised themselves into the Southern Railways Firemen Council. Similar councils were soon formed in other parts of the State. The strikes of these councils, in 1967 and 1968, were so effective that goods and passenger traffic came to a halt. The strike was called off by the workers only after the Railway Minister agreed to settle their demands. The success of the "independent" union led to the formation of the Loco Running Staff Association (LRSA), which played an important role in the 1974 strike. In 1970, firemen joined loco staff in successful industrial action in the Southern Railway. In doing this they overcame the traditional animosities which were based on narrow prejudices. Workers were quick to realise that united action insured them against the threat of victimisation by the management and improved their chances of succeeding in their struggles. These unions succeeded largely because they were close to the aspirations of the rank and file workers, unlike the two recognised unions.

In February 1974, the National Coordinating Committee for Railwaymen's Struggle (NCRRS) was formed to bring all the railway unions, the central trade unions and political parties in the Opposition together to prepare for the strike to start on May 8, 1974. The workers' resolve was matched by the government's determination to put down the strike with a heavy hand. This was revealed in its obdurate stance on the demands raised by the workers. Even as negotiations were proceeding, the government queered the pitch by arresting Fernandes at the Lucknow railway station on May 2. Across the country thousands of railway workers were arrested. The draconian provisions of the Defence of India Rules and the Maintenance of Internal Security Act (MISA) were used against the workers. Later, the same provisions were used with telling effect against every shade of the Opposition during the Emergency. With the countrywide arrest of the top leadership of the unions, the success of the strike now depended greatly on zonal and local union leaders, and of course, the rank and file. Workers from other industries and services were quick to express solidarity with the striking rail workers. The action of the government provoked the workers to go on an immediate strike instead of waiting for May 8.

In Bombay, electricity and transport workers as well as taxi drivers joined the protests. In Gaya, Bihar, striking workers and their families squatted on the tracks. More than 10,000 workers of the Integral Coach Factory in Perambur, Tamil Nadu, marched to the Southern Railway headquarters in Chennai to express their solidarity with the striking workers. Similar protests erupted across the country. Not a single important rail centre in India was immune.

The brutal methods adopted by the government against the striking workers and their families have been fairly well-documented. The railway colonies were practically under siege. For instance, in Mughalsarai in Uttar Pradesh, which has one of the biggest railway yards in the world, women were assaulted and even children were not spared. The Border Security Force (BSF), the Central Reserve Police Force (CRPF) and the Provincial Armed Constabulary were deployed in the labour township. There were also instances of workers forced by terror to work. Instances of train drivers who were shackled in their cabins were reported at the height of the strike.

Much has changed on the labour landscape since 1974. Although Sherlock's sympathies evidently lie with the revolt by the crafts unions against the established unions, events since 1974 have proved that these unions have themselves been successfully tamed by the Railways management and the government. The strike leadership, particularly Fernandes, were perceived as having betrayed those who had sacrificed their all for the larger cause. Fernandes, as Union Railway Minister soon after the Emergency, has been criticised for having failed to restore the rights that thousands of workers lost during the strike.

The AIDS challenge

Sex, Lies and AIDS by Siddharth Dube; HarperCollins India, New Delhi, 2000 (second edition, available in Hindi, Malayalam and Telugu); Rs.195.

IT is now more than two years since the Kargil War ended. It is hardly necessary to remind anyone of the much-hailed "spirit" that was evident during that war. Many people applauded the way in which the country "united" behind our soldiers in the battle against Pakistan, how we all "came together" in a time of adversity. We decided that we would defeat the intruders "at all costs"- perhaps our leaders' three favourite English words at the time.

In the course of about 10 weeks, Kargil killed about 500 Indian soldiers. Without in any way meaning to overlook the tragic loss of those fine Indians, consider another calamity that we are in the middle of as I write this. In 2001, it will kill about 300,000 Indians. That is, one Indian lost to us every two minutes; a rate of death 115 times greater than the rate at which Kargil claimed the lives of Indian soldiers. By any definition, this calamity seems to qualify as a major adversity. And yet I do not know of a single leader who has exhorted Indians to "come together" to fight off this murderous, implacable enemy. I have not heard those three English words used by any national figure to urge a national effort as they did during Kargil.

Why? What will it take to, first, acknowledge what Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome is doing to us; and, secondly, come together to fight its assault on India? Will it take the comparison to Kargil that has been made above? Or other comparisons - that the impact of the AIDS epidemic in terms of human lives lost would be equivalent to that of 30 Orissa cyclones, or 15 Gujarat earthquakes; and that it kills Indians about 50 times faster than does the imbroglio in Kashmir? Will it take the heartrending stories of victims Siddharth Dube mourns in this book? Like the slender long-haired Maharashtrian 29-year-old, infected by a middle-aged and married "important client" who bullied her into having sex with him, shunned by neighbours, friends and even her own brother, dying in her bed while her shattered parents watch in mute despair?

Whatever it takes, we will have to dig in sometime. Otherwise this disease threatens to damage India irreparably, and in ways far worse than Pakistan can ever hope to do. The HIV/AIDS epidemic, writes Dube, is "India's greatest health problem today, as well as a potent threat to our economic and development prospects". This deeply disturbing book is Dube's heart-felt appeal to his country to look this deadly reality square in the face. The problem, of course, is that his is a country that seems determined to victimise the victims.

Dube catalogues a sheaf of evidence that fairly shouts this out. And solid research makes it hard to refute his evidence, though some people have tried to. What is more, he does it with language and passion that leave you wrung out. His easy style makes this book accessible to all.

In Imphal, Dube found the jail stuffed with several hundred HIV-positive men and women. There were "no plans," he writes, "to ever release this group... not because they had committed a crime that required life-long imprisonment but simply because the State government had decided that they posed a risk to society." Is there any comparable instance of hundreds of Indians being detained because they suffer from, for instance, typhoid? In 1994, the Maharashtra government proposed a law that would have allowed it "to brand infected sex workers with indelible ink". Is there any comparable effort to brand sufferers of, for instance, tuberculosis? In 1996, when a 29-year-old woman tested positive for HIV, the doctors at a private clinic in Mumbai threw her out "even though she was covered with open sores". This is apparently the routine behaviour of doctors and nurses across the country. The All India Institute of Medical Sciences (AIIMS) in New Delhi, "set up to establish the best standards of medical practice, had turned away scores of infected people. So the beds in its small but well-equipped AIDS wards stood empty." Is there any comparable "medical treatment" given to sufferers of, for instance, cholera? And why these peculiar, if not stupid and inhuman, practices? Because parallel to the AIDS epidemic is an epidemic of blind irrationality.

Ever since cases of AIDS surfaced in India, they have been greeted with reactions that could have been described as wildly funny had they not been so horribly serious. Many of the officials concerned, or unconcerned, believed that this was a disease of deviants, society's outcasts and the poor - worthless people far removed from the "mainstream". They also believed that HIV/AIDS was cosmic punishment for the promiscuity of these worthless people; that their deaths were in fact good because they would alleviate India's enormous problems of population and poverty.

IN any case, officials in charge of dealing with AIDS refuse to believe even the reliable figures given by Dube. Not that the annual AIDS casualty figure of 100,000 - a number closer to what they will admit - is substantially "better" than 300,000. After all, it is still 40 times more murderous than Kargil. And if all that was not bizarre enough, the authorities would tell Dube over and over, in various ways, that since we are a uniquely "moral" society, AIDS could never spread here as it had elsewhere and that therefore there was no need to take steps to halt the disease. Dr. A.N. Malviya of the AIIMS pronounced that Indians were "of a higher moral order" than those promiscuous Africans who were reeling under the onslaught of AIDS. Dr. A.S. Paintal, Director-General of the Indian Council of Medical Research, expressed the belief that "nowhere else in the world is chastity considered an important aspect of a woman's life apart from India". Going strictly by the rate at which Indians produce more Indians, it is clear that sex is happening here all the time and "chastity" is not a particularly apt word under the circumstances.

It is not that I see anything in the least immoral about these features of India. The real immorality lies in the callousness with which victims of HIV/AIDS have been treated by officials and society; in the apathy and neglect that have turned a disease that might have been controlled into a glowering monster that is reaching into every city, every cluster of homes, virtually every family in this country; in the fact that a 29-year-old victim's neighbours stopped even speaking to her and her parents.

The day I began this book, I also read a column by Pramod Navalkar, once Minister for Cultural Affairs in Maharashtra. Explaining the measures he took while he was Minister, he said he put "curbs on obscenity" and "a check on the Westernised hungama in theatres". These were necessary, he wrote, because "not only do we respect women, we also worship them". I wondered as to how to reconcile Navalkar's words with those of Dube. The author says: "[One factor] greatly responsible for the ferocity of India's (AIDS) epidemic is the shamefully oppressed state of Indian women. The conditions of women in India are still amongst the worst of any society in the world, certainly far worse than in most African countries." Yes, the state of Indian women has helped AIDS rage through the country. Sex, Lies and AIDS is a frightening book not just because it paints a grim picture of India's AIDS-blighted future but because it holds a mirror up to Indians. It shows them the result of the attitudes they hold dear, the pretences they like to clutch at, the mistakes they have made, the commitments they have ignored and the foolish policies they have followed. "The actions and investments required for HIV/AIDS prevention need to be made," writes Dube, "should already have been made, irrespective of whether this disease had ever surfaced in India." That is, India should be concentrating on those basics that any functioning society must address: health care, education, justice and the fight against prejudice. And all these for all Indians. These are commitments Indians made to themselves over half a century ago. It is precisely because they have paid no attention to these commitments that AIDS flourishes in India today.

Dube sees a window of opportunity that is still open to India to fight off the kind of spectre that AIDS has become across Africa. Still, the challenge is enormous. Going by the number of HIV-affected Indians today, the year 2005 will probably see one million Indians dying of AIDS even if first-rate measures are put in place rightaway, even if the wrongs that Indians suffer are corrected immediately, even if it is ensured that not a single Indian is infected with HIV starting today. Two thousand Kargils. Not even all the nuclear bombs in the world will protect us from that.

From the affidavit

In the Pattanaik-Ruma Pal judgment, the Supreme Court has taken issue with the following three paragraphs in Arundhati Roy's affidavit:

"On the grounds that judges of the Supreme Court were too busy, the Chief Justice of India refused to allow a sitting judge to head the judicial enquiry into the Tehelka scandal, even though it involves matters of national security and corruption in the highest places.

"Yet, when it comes to an absurd, despicable, entirely unsubstantiated petition in which all the three respondents happen to be people, who have publicly - though in markedly different ways - questioned the polices of the government and severely criticized a recent judgement of the Supreme Court, the Court Displays a disturbing willingness to issue notice.

"It indicates a disquieting inclination on the part of the Court to silence criticism and muzzle dissent, to harass and intimidate those who disagree 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."

The writer in these paragraphs, the apex Court claims, "appears to us, prima facie, to have committed contempt." The affidavit was a response to the Court's notice based on a contempt application that was held, in a strange judgment, to be procedurally flawed and invalid and substantively baseless.

Dubious justice

other

The Supreme Court dismisses a baseless and mischievous contempt petition against Arundhati Roy, Medha Patkar and Prashant Bhushan, but orders a fresh contempt notice against the writer.

V. VENKATESAN in New Delhi (with editorial inputs)

THE law of contempt, a Supreme Court Bench comprising Justices Ruma Pal and G.B. Pattanaik suggested in a judgment delivered on August 28, has been framed in order to "shore up" respect for the law and of the law enforcing agencies, which is the foundation of civil society. Sanctions for "actual breaches of the law and for actions destroying that respect", they reasoned, are the ingredients of the law of contempt.

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In the guise of criticising a judgment, what is impermissible, they warned, was challenging the motives of particular Judges. "To ascribe motives to a Judge is to sow the seeds of distrust in the minds of the public about the administration of justice as a whole and nothing is more pernicious in its consequences than to prejudice the mind of the public against Judges of the Court who are responsible for implementing the law," the Bench asserted in its judgment.

Holding this as the rationale for the contempt law, the Bench examined whether the dharna organised by the Narmada Bachao Andolan (NBA) on December 13, 2000 outside the Supreme Court to protest against its judgment in the case of the Sardar Sarovar Project constituted contempt as alleged by the advocate, J.R. Parashar, and four other petitioners.

The Bench held that conducting a dharna by itself might not amount to contempt, even though it did not approve of such an action in principle. But if in the process of holding such a demonstration, physical access to the courts is denied or the proceedings of the court are in any manner disrupted or hindered, a case of contempt could be made out since the action amounted to obstructing the administration of justice.

All these offences had been alleged, in shockingly flawed lawyers' petitions, against the three respondents - Prashant Bhushan, Medha Patkar and Arundhati Roy. Substantively as well as procedurally, the apex court found no merit whatever in the petition. In fact, the judgment narrates the strange story of the case making its way to the Bench despite its lack of elementary procedural validity and the slightest factual basis.

The Bench agreed with counsel for Patkar, Shanti Bhushan, that the petition was shabbily drafted and grossly defective procedurally. "In fact, almost every one of the Rules framed by this Court have been violated," the Bench found. Of the rules regulating contempt proceedings in the Supreme Court, one requires that the petition should contain the name, description and place of residence of the petitioner and the respondent. But each of the five persons named as petitioners gave the Supreme Court Bar Library or the Lawyers' Chamber as his address. The petition also failed to furnish the residential addresses of the respondents.

A more serious flaw, the Bench noted, lay in the matter of verification of the petition. Rule 4(b) requires that "the petition shall be supported by an affidavit." There are five named petitioners, yet all except Parashar failed to sign the petition or affirm it.

Under the rules the Court Registry can list a contempt matter for admission only if the Attorney General or Solicitor General has given consent. "In this case, the Attorney General had specifically declined to deal with the matter and it does not appear that any request was made to the Solicitor General to give this consent," the Bench noted. The petitioners had also not requested the Court to take suo motu cognisance of the alleged contempt. Even if they had done so, the Bench observed, "it is doubtful whether the Court would have acted on the statements of the petitioners," who had been "candid enough to have disclosed that the police had refused to take cognisance of their complaint."

CURIOUSLY, however, the Court absolved itself of any responsibility in the matter of the listing of the petition. The Judges held: "When a matter is listed before the Court, the Court assumes that the formalities in connection with the filing have been scrutinised by the Registry of this Court and that the proper procedure has been followed... There is no occasion for this Court to assume the task of the Registry before considering the merits of each matter. Had our attention been drawn to the procedural defects, we would have had no hesitation in rejecting the application in limine on this ground alone."

This in effect places the entire blame for the procedural lapses on the Supreme Court Registry. If so, what action has been taken against this shocking violation of procedure? The judgment has nothing to say on this crucial point. Inquiries made by this correspondent reveal that the Registry had indeed refused to list the petition before the Court in view of its multiple flaws, when first approached by the petitioners in December. Following this, the petitioners "mentioned" their grievance before Chief Justice A.S. Anand's court on January 15. As R.K. Virmani, one of the five petitioners, recalls, the Court directed them to approach Attorney General Soli Sorabjee. If consent was not obtained, they were advised to report back to the Court.

In response to an application filed before him on December 15, Sorabjee declined to deal with the matter since it involved Prashant Bhushan, but did not elaborate on the matter. The next recourse available was for the petitioners to approach Solicitor General Harish Salve. This was not done.

Despite this string of damning procedural lapses, the petition was listed and posted before the Court of Justices Pattanaik, B.N. Aggrawal and U.C. Banerjee on February 5 for preliminary hearing. The Court then directed Sorabjee to appear before it and explain his reluctance to be associated with the matter. The Attorney General put forward the plea it would be personally awkward for him to deal with a case in which a professional colleague was involved. However, he did orally concur with the petitioners that if the participants at the dharna had indeed raised the slogans that they were reported to have raised, then they would be liable for contempt proceedings. (In the event, the Supreme Court dismissed the substantive allegation that the three respondents had raised the slogans.) Since this response from the Attorney-General did not meet the formal requirement for issuing notice for contempt, the petitioners at this stage requested the Supreme Court to take suo motu action, as it was empowered under law to initiate.

On February 26, the Bench comprising Justices Pattanaik and Aggrawal ordered the issue of notice to Bhushan, Patkar and Roy to show cause why contempt proceedings should not be initiated against them on the substance of the petition filed before the Supreme Court. This did not amount to suo motu action and since the formal consent of the Attorney General had not been obtained, it was only reasonable to suppose that the Bench had waived this requirement. The procedural flaws were later to loom large in arguments before the Court. As the judgment rendered on August 28 concedes, the rules governing contempt proceedings are not mere technicalities. Rather, they are vital to ensuring that petitions filed for contempt should pass a minimal test of credibility.

The petition filed by Parashar, Virmani and their associates from the legal fraternity did not pass this basic qualifying test. It amounted, in other words, to an unnecessary imposition on the time and energy of the Supreme Court and also on the time and energy of the respondents. Certain legal experts believe that in the circumstances the appropriate course for the Court would have been to order an inquiry into the manner in which the petitioners got their petition listed by the Registry despite the glaring legal defects. This would have helped in reducing the claims on the Supreme Court's time through frivolous and unfounded petitions. It would also have helped in rendering elementary justice to the respondents.

THE writer, Arundhati Roy, now faces the prospect of another encounter with the Supreme Court's sense of offended majesty. She justifiably wonders, as an outsider to the Byzantine workings of the legal system, how she could have been expected to distinguish the Registrar's decision from that of the Court's. She told Frontline: "It is the responsibility of the Court as an institution to ensure that such frivolous petitions are not listed for hearing. I am glad that the Judges had the grace to accept my argument that the petition was frivolous. But I have been asked to appear before the court again - this amounts to saying: 'It is not my fault, but my secretary's, but you are nevertheless responsible'."

While hearing the case, the Bench had said that if the allegations were found to be untrue, the petitioners could be sent to jail for perjury. In its judgment the Bench has agreed that the petition was unfounded, and reserved its strongest strictures for its authors: "At the hearing, the petitioners addressed the Court in a manner which not only ill became their standing as Advocates of this Court but also belied their claims to be champions of this Court's dignity." But after all this, the Court mysteriously let the petitioners go without accounting for their actions.

Shockingly, the Bench has found reason to proceed further against Roy for the contents of her affidavit filed in response to the first notice. No action is being taken against Patkar because her comments on the Court's recourse to the power of contempt have been held to be "general in nature and may be construed as the expression of a perceived error in the decisions of superior Courts in their contempt jurisdiction." Further, she did not ascribe any "personal motive" to any particular Judge. The Court acknowledges that the notices issued to the respondents, under its directions, suffered from disqualifying flaws. For example, the notice issued to Patkar "did not specify the contumacious acts with which the respondent was charged in terms of Rule 6 read with Form I." In sum, the Court decided not to proceed against Patkar through applying the standards of fair criticism and also giving her "the benefit of the doubt." (What the doubt could have been in this case is left unclear.)

By these standards, the Bench should have found no ground to proceed against Roy. The petition filed by Parashar and his associates comically asserted that Judges of the Supreme Court were "pious constitutional authority and are not open for public and press to criticise, comment, shout defamatory and derogatory slogans against the verdict." This assertion has been decisively refuted in the judgment of the Pattanaik-Ruma Pal Bench: "Apart from the shouting of defamatory slogans, the rest of the sentence does not in fact correctly state the law... Courts like any other institution do not enjoy immunity from criticism as long as the criticism is fair, reasonable and temperate and does not accuse Judges of discharging their duties for improper motives or on extraneous considerations."

Holding that Arundhati Roy "appears to us, prima facie, to have committed contempt," the Bench has claimed: "She has imputed motives to specific Courts for entertaining litigation or passing orders against her. She has accused Courts of 'harassing' her (of which the present proceeding has been cited as an instance) as if the judiciary were carrying out a personal vendetta against her. She has brought in matters which were not only not pertinent to the issues to be decided but has drawn uninformed comparisons to make statements about this Court which do not appear to be protected by the law relating to fair criticism."

All this it has read into three paragraphs in her affidavit, which have been cited in the judgment.

The reasoning and justice behind the Court's ordering "notice in the prescribed form" to Roy asking her to show cause "why she should not be proceeded against for contempt for the statements in the three paragraphs of her affidavit" strike informed observers as passing strange. Why cannot her spirited response to the Court unjustly entertaining an invalid, frivolous and mischievous petition be interpreted as forthright and fair criticism of an intolerant exercise of contempt power by the Supreme Court? After all, the key point Roy makes in her affidavit and elsewhere concerns freedom of expression and not allowing anything that will diminish a writer's space.

Nowhere, in the three paragraphs cited, is there any suggestion that the judiciary, let alone particular Judges, are "carrying on a personal vendetta against her." Criticising the Supreme Court for "a disturbing willingness to issue notice" to the three respondents, for "a disquieting inclination... to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it," and for entertaining a baseless petition in a way that did the Court's "reputation and credibility considerable harm" is not tantamount to imputing "motives" to specific Judges "for entertaining litigation or passing orders against her." The Supreme Court's reading of the text seems inexplicable.

The larger point being made by informed observers is this. After conceding explicitly that the judiciary does not enjoy any immunity from fair and reasonable criticism, the Supreme Court seems to be exempting itself from the rule. Something needs to be done about this lack of balance in the constitutional scheme.

And it is not as though Roy is alone in her criticism of the intolerant ways of the higher judiciary in exercising contempt powers. For example, in a signed appeal to Members of Parliament to bring about significant amendments in the Contempt of Courts Act, several Delhi-based journalists called attention to "the growing tendency among the members of the judiciary to misuse the Contempt of Courts Act against those journalists who try to report their misconduct or corrupt practices." The journalists demanded removal of the "draconian" provisions of the Act so that the legislation could not be "misused as a shield to cover personal misconduct or corrupt practices of the members of the judiciary." The appeal highlighted the threat freedom of the press faced from this judicial "malpractice."

Implicitly, the Supreme Court now seems to have answered the criticism of its inconsistency and intolerance by disclaiming responsibility for the bad-in-law initiation of Court proceedings against Roy, Patkar and Bhushan. Its defence against this criticism seems to be that it is improper to "ascribe motives" to a particular Court for an action it was not responsible for. In response, Roy points out that she has never suggested that the Court was carrying on "a personal vendetta" against her, but has called attention to the grave danger the issue of this kind of notice poses to writers and journalists. She believes that "in the interface between freedom of expression and contempt powers, the Court should be extremely careful."

But the Supreme Court's defence against the criticism also requires, crucially, that the role of the Court Registry be separated and distinguished from that of the highest judicial body. This strains the credulity of every reasonably well-informed individual, who will endorse Roy's stand that the apex Court should take responsibility for any decision its Registry makes, especially in relation to a citizen's fundamental rights and freedoms.

Did Roy draw "uninformed comparisons" when she juxtaposed the Supreme Court's refusal to "allow a sitting judge to head the judicial enquiry into the Tehelka scandal" and its "disturbing willingness to issue notice" in the case of "an absurd, despicable, entirely unsubstantiated petition"? How would this not constitute fair comment under the circumstances? The Court is entitled to disagree with its critic, but not to proceed against her for contempt on this point. Roy explains that her intention in offering the comparison was to focus on the misuse of the process of the Court by the petitioners, to critique the prioritisation of judicial resources, and to underscore the point that there were more pressing matters that required the attention of the Court.

Roy believes that the Pattanaik-Ruma Pal judgment vindicates all that she said in her affidavit. "The Court issues notice to me on the basis of my affidavit. But it takes no action against the petitioners who had told the Court during the hearing that they had no confidence in it. On the contrary, I have clearly said I am not imputing motives to the Judges."

The internationally acclaimed writer makes ironic play with a Voltairean statement attributed to S.G. Tallentyre, which is widely recognised as a basic credo of political liberalism: "I disagree with what you say, but I will defend to the death your right to say it." The difference seems to be that the Supreme Court of India has agreed with what she has said, but denied her the right to say it.

The young masters

Pentyala Harikrishna and Koneru Humpy emerge as the brightest rising stars in the world of Indian chess.

THE two prominent names in Indian chess today other than Viswanathan Anand are Pentyala Harikrishna and Koneru Humpy. Both are world-beaters in the sense that they are fast sinking many of the records Anand set early in his career. They are among the top teenage sporting celebrities of the country. The fascinating thing about them is that both are rising fast and it is hard to predict what they would achieve next. They have sufficient talent to achieve just about everything in the world of chess. "Their achievements will encourage and inspire thousands of other Indians to take to the game," said P.T. Ummer Koya, secretary of the All India Chess Federation (AICF).

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Humpy's triumph in the world junior girls' championship in Athens on August 29 is a milestone in her career and the third most important achievement for Indian chess after Anand's world chess title of 2000 and the world junior title of 1987. The other newsmaker of August was Harikrishna who, at 15, became India's youngest grandmaster at Kolkata. He then went on to win the Commonwealth Championship in England and is perhaps the youngest person to do so.

One of the major reasons for their success is corporate support. Thanks to such support, the players get more time to think about the game rather than worry about their tour arrangements. Harikrishna is backed by Wipro, the information technology giant, and Humpy by the public sector Bank of Baroda. Harikrishna admitted during a felicitation function in Bangalore recently that if the other players get such support they would also play better.

What makes Harikrishna and Humpy stand out in the ranks of talented Indians is their ability to win crucial games and events. If winning the world under-10 championship at Menorca in Spain in 1996 attracted sponsors for Harikrishna, in Humpy's case it happened following her triumph in the world under-10 girls' Championship at Cannes, France in 1997. The two have built up their fortunes through hard work, determination and, to an extent, parental support. The governments also continue to help talented players. According to an AICF source, Humpy was a special entry in the world junior championship that she won on August 29 and the government had cleared a large 11-member team. Andhra Pradesh Chief Minister N. Chandrababu Naidu presented Rs.25 lakhs and a house to Harikrishna after he became a grandmaster.

BORN on May 10, 1986, Harikrishna, unlike many other chess players who are city-bred, comes from an agricultural family in Guntur, Andhra Pradesh. He learnt the moves from his grandfather.

Although he has won only one world title (Under-10), Harikrishna has been making rapid strides in his career which he started with the ambition of becoming a super grandmaster. It will be fulfilled when he crosses the 2,600-mark, moving on from his present score of 2,522 Elo points. In January 2000 he was listed as a FIDE Master with 2354 Elo points. In one and a half years he has added 168 points to become a grandmaster. He will be acknowledged as one in the January 2002 list.

In the last one year, Harikrishna has been steadier than before. His Indian trainer Varugeese Koshy said that when he left Chennai for Guntur his chess suffered and he was not able to concentrate fully on the game. In the last one year, Koshy said, they have not had much time together since Harikrishna had been playing a lot of tournaments or preparing in Bangalore with Evgeny Vladimirov of Kazakhstan who had trained Gary Kasparov.

When Harikrishna arrived in Istanbul for the Chess Olympiad last year he was tired. The captain gave him good rest and fielded him up the board order as a surprise. He lived up to the captain's expectations and made his maiden 10-game grandmaster norm by remaining undefeated. He unnerved big names like Jonathan Speelman of England by turning down their draw offers.

India's strong showing in the early rounds at Istanbul made major tournament organisers sit up and take note. The organisers of the Corus Chess Tournament invited Harikrishna to play first in the Reserve Group at Wijk aan Zee, a snow-filled Dutch village. Harikrishna declined the offer despite requests from players like Genna Sosonko, the Dutch legend.

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Within a week of the Olympiad, the Netherlands made an offer to take him into the Grandmaster Group 'B'. This meant that he would play a closed grandmaster tournament, which would be held alongside the main super category tournament. He was 14 then and took three days before signing in his participation. At Wijk aan Zee this January, he stretched top players such as Mikhail Gurevich and Boris Gulko before making draws. Harikrishna was delighted to play in the same hall as world champions Viswanathan Anand, Vladimir Kramnik and Kasparov and he attracted the attention of the big stars. Playing in Wijk aan Zee, he made a nine-game grandmaster norm and Kasparov referred to him in his speech at the closing ceremony.

Having already won two grandmaster norms covering 19 games, he needed a five-game norm to win the grandmaster title since his Olympiad norm can also be considered a round robin norm. Players making all title norms from the Swiss format tournament have to touch 30 games. Those making one round robin norm will be awarded the title if they already have a norm covering 24 games. The nine norms he made from the Asian Championship at Kolkata were technically sufficient for him to win the title. But nobody seemed to have realised that the Olympiad norm had the flexibility to be considered a round robin norm. It was only when Harikrishna went to England for the Commonwealth Championship that it was pointed out (by Stewart Reuben) that he had indeed completed the title in India. The delay was a matter of interest only for the record because FIDE would have anyway awarded him the title in its next congress in Greece in September 2001.

At Kolkata, Harikrishna qualified for the World Championship to be held in Moscow from November 24. He missed the world junior championship but will give it a shot later. Players like Gata Kamsky and Vladimir Kramnik too wanted to play the world juniors late in their careers but they had grown so strong in the game by then that playing in it became irrelevant. The same could happen to Harikrishna, given the record that he has become a grandmaster at a younger age than Anand had.

UNLIKE Harikrishna, Humpy comes from a chess-playing family. Her father Koneru Ashok was a national 'B' player from Vijayawada. She works for about six hours on chess every day. She prepares by downloading games from the Internet, using the desktop computer presented by The Sportstar in 1998. (The magazine awarded her the prestigious Young Achiever Award in 1999 for winning the world under-12 championship at Oropesa del Mar in November 1998.) In 1999 she failed to defend the title. She made up for this failure by winning the Asian under-12 championship at Ahmedabad.

Humpy won the Asian junior title in Mumbai in September 2000 to gain a nine-game world grandmaster norm. In the Oakham Junior and the events in Hungary she obtained her other norms. In the final round of the world junior in Athens, she needed a win for the title and got it when her German opponent, Elisabeth Paehtz, blew a winning position and missed a repetition. Humpy had not expected to win this event. She will be listed as a woman grandmaster in the next ratings list. After Vijayalakshmi, she is the second Indian to win the title.

Humpy's career is marked by a series of records. In the women's national 'B' in Chennai in December 1998, she qualified for 'A'. She is the youngest to win the British Ladies Championship: she broke a 61-year-old record at Somerset on August 11, 2000. A journalist from England rated her performance at Somerset as the best by an under-14 girl since the time of the Polgar sisters.

Humpy now has four world titles under her belt. She won the under-10 girls title at Cannes in 1997, the under-12 girls title at Oropesa del Mar in 1998, the under-14 girls title at Oropesa del Mar in 2000 and now the under-20 (junior) girls title.

Humpy seems all set to win a few more titles when she competes at Oropesa del Mar 2001 and in the world women's championship in Moscow in November.

Humpy's father is her trainer, besides the computer. Ashok quit his teaching job to devote his full attention to Humpy. He travels with her to all tournament venues. Although she has reached a stage where she is stronger in the game than her father, an unassuming Humpy believes that she still learns from him.

The signal for long-haul reforms

The approaches suggested in the report of an Expert Group on Indian Railways to tackle the deep-seated problems facing the organisation are unlikely to find uniform and ready acceptance from every quarter.

THE polished corridors of Rail Bhavan in New Delhi are stirring with a new restiveness. A high-level internal team of the Railway Board is engaged in a minute study of the report of an Expert Group on Indian Railways submitted early in August. The professional cadre of engineers that manages the Indian Railways has already given expression to its dissent over specific recommendations, particularly those that threaten to dilute its autonomy such as it is. Railway workers' unions are perturbed by suggestions that the broad range of welfare activities of the department should be drastically pruned. And where the Railways management and unions have found scope for agreeing with the recommendations, the government is expected to have serious reservations.

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Constituted during Nitish Kumar's first term as Railway Minister, the Expert Group, also known as the Rakesh Mohan committee after its chairman, suffered a period of eclipse when Mamata Banerjee assumed charge in 1999; an interim report submitted in February was effectively mothballed. Mamata Banerjee preferred to bring in Sam Pitroda, technology czar in the Rajiv Gandhi dispensation, to draft a fresh set of proposals on improving performance in the Railways through the application of information technology, without any drastic changes in organisational structure or manpower deployment levels.

Mamata Baner-jee's exit from the Railway Ministry shortly after she presented her budget for the year, signalled the resurrection of the Rakesh Mohan committee and the silent banishment of Pitroda. And after all the elaborate politics had been played out, the Rakesh Mohan committee has submitted its final report, reaffirming the recommendations that were clearly foretold in the interim report.

The symptoms of the deep-seated malaise in the Railways have been variously commented upon, and the Expert Group provides a useful summary of how the situation arose. Beginning with the boom in road transportation in the early-1980s, the Railways steadily began losing its share in aggregate national freight movement. Constrained by an unstated political directive that passenger fares should be held down at moderate levels, the Railways sought to redress the pressure on earnings by increasing freight rates. This hastened the migration of freight traffic towards the roadways. Today, the Railways is in a trap of decreasing returns - increasing freight rates further will only mean falling revenues, while the option of hiking passenger fares continues to be frowned upon.

In 1992, the Railways management devised the new approach of gauge conversion to tackle the problem of declining yield. By eliminating costs of trans-shipment between different gauges and rationalising the costs of maintaining rolling stock, this programme was expected to provide a major boost to productivity levels in the Railways. Things have not quite worked out that way. The Rakesh Mohan committee reserves a strong indictment for the unigauge programme, without quite elaborating on its deficiencies. But senior officers are willing to concede that the short-term disruptions caused by gauge conversion have accelerated the migration of freight traffic towards the road sector. And even though services have been resumed in most instances after a short break, the switch in preference towards the road has not been reversed.

The 1990s also brought, as an unwelcome concomitant of political instability, rapid fluctuations in planning priorities in the Railways. Outlays were sanctioned in particular years for ambitious network expansion programmes, but not sustained in succeeding years. The outcome has been an accumulation of half-completed investments which have failed to yield returns. The Railways management has, with some justification, been arguing that the politically induced investment decisions should be specifically provided for through the general exchequer. But this plea has won few converts in the Finance Ministry, which has been struggling to cope with a fiscal crunch of an infinitely larger magnitude.

All the operational problems were compounded with the implementation of the new pay scales laid down by the Fifth Pay Commission. From 41 per cent, the share of employee wages and pensions in total revenue earnings increased to 53 per cent in 1998-99. This ratio is likely to remain high as pension liabilities are expected to mount.

A consequence of these multiple pressures has been the curtailment of the Railways' dividend payment to the Union government for two years in a row. In 2001-02, the dividend has been cut to 7 per cent from the recommended level of 7.5 per cent. The total accumulations under the Railways' "deferred dividend liability" now amount to Rs.2,500 crores. Without some rather serious revenue raising measures - which have been conspicuously absent in the last two budgets - it is difficult to see this liability being discharged in the foreseeable future.

The parlous state of the Railways' reserve funds underlines the seriousness of the problem. The Depreciation Reserve Fund (DRF), for instance, ended the year 2000-01 at the precarious level of Rs.50.81 crores. This was even lower than the budgeted figure of Rs.76.72 crores. The rate of depletion has been rapid, since the Railways ended the year 1997-98 with Rs.1,434 crores in the DRF. In the two succeeding years, investments were financed out of the DRF without the normal precaution of replenishing it through revenue earnings. In 2000-01, just enough was appropriated to the DRF to meet planned withdrawals - and in the event, this figure was below the budgeted level. The situation is expected to be the same in 2001-02.

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The situation in the other main internal sources of investment funds for the Railways - the Capital Fund and the Railway Development Fund - is similar. The most striking is the case of the Capital Fund, which was established in 1992-93 and until as recently as 1997-98 showed a healthy balance of Rs.1,200 crores. The year 2000-01 will close with no more than Rs.21.13 crores in this reserve. And the net accretion in 2001-02, if all goes according to budgetary calculations, will be negligible. Considering the tenuous state of the Railways' revenue and investment calculations, the most likely eventuality would be a further depletion in the size of this reserve.

This is a distinctly unpleasant prospect for the management. Years of under-investment in vital operational areas have begun to take their toll. Plan investment in 2000-01 amounted to no more than Rs.10,002 crores against a budgeted figure of Rs.11,000 crores. The Plan investment budgeted for 2001-02 is Rs.11,090 crores, though there is no reason to suppose, given the philosophical aversion to rate increases, that this target will be met.

The worst of the resource crunch is being borne by vital operational areas. Investments in safety, signalling and telecommunications and track renewals have all been under pressure. The backlog of track renewals has grown from just over 3,000 km to over 12,000 km in the space of a decade, posing a clear safety hazard. And yet the pressure to target higher levels of public fulfilment has been unrelenting. Recent Railway budgets, in seeming defiance of the fundamentals of a system under enormous strain, have granted a multiplicity of new services and launched preparatory work on new tracks that will not for long years be commercially viable.

THE Expert Group has drawn up three alternative approaches towards tackling this multitude of problems. The first proceeds on the assumption that the current funding constraints will persist, keeping investment on additional capacity to a minimum. Provision would only be made for "unavoidable investments in safety, normal replacements and overdue replacements." For obvious reasons, the Expert Group refers to this scenario as the "low growth" option.

In the "medium growth" option, all the investments envisaged in the first scenario would be permitted. But the funding constraint would be relatively less acute, permitting the management to continue with its investment decisions in accordance with "internal" planning processes. Crucially, this scenario builds in a possible infusion of funds from the general exchequer, though it does not allow for the concomitant intrusion of political pressures.

The obvious preference of the Expert Group is for the "strategic high growth" scenario, which envisages a "break" with the Railways' long-term planning approach. The key ingredients of this approach would be an improvement in infrastructure with additions to rolling stock, the harnessing of technology in a manner that improves productivity and a structural change in the system of management of the organisation. The outcome would be the complete modernisation of the system and a quantum leap in speed and quality of service over 15 years.

The low growth scenario would require a funding requirement of Rs.129,000 crores over a 15-year plan horizon. The medium growth scenario would be met with Rs.161,000 crores over the same period, while the "strategic high growth" strategy would involve an outlay of Rs.200,000 crores. The investment needs would be met to the maximum extent possible through internal resources. Of the gap that remains, 40 per cent would be met through government financing and 60 per cent through market borrowings.

The low growth scenario, which proceeds on business-as-usual assumptions and does not embrace any extra effort either to increase the Railways' share of freight traffic or evolve a new balance between fares and rates, has been proven by a series of simulations to be unviable. The Railways would fail to generate sufficient revenues to sustain operations over 15 years, debt servicing and dividend payments would impose a massive burden on revenues and the system would fall into a spiral of declining yields and growing funding gaps.

In the medium growth scenario, the freight revenue is expected to increase at the current rate of around 3 per cent in the initial years, and then shift gear to a trend rate of 5 per cent growth. Other assumptions remain broadly akin to those of the low growth scenario. Again, the situation in the long term would be unviable, with the Railways becoming increasingly dependent upon various forms of infusions from the government. If 60 per cent of the pension liability, for instance, were to devolve on the government, then the Railways would just barely limp along.

In the strategic high growth scenario, the Railways would target a freight traffic increase in the range of 7 per cent annually, beginning with the fifth year. After the tenth year of the programme, the rate of increase would settle down to a stable and sustained 6 per cent. Of course this requires a competitive shift in freight rates and a major overhaul of the network in terms of technology and organisation - providing, for instance, for multi-modal operation and an active marketing effort by the Railways. Passenger fares would again be adjusted in order to eliminate the hidden subsidies. After the fresh balances between the various rates are worked out, tariffs and services would be regulated by an autonomous board, which would ensure that the monopoly status of the Railways does not engender an insensitivity towards consumer needs.

There would concurrently be a reorganisation of the Railways into four business units, dealing respectively with passenger movement, freight, suburban traffic and infrastructure. The Railways itself would be reorganised as a corporation, governed by an Executive Board recruited from a wide pool of talent. The non-essential services of the Railways, such as health care, security and education would be hived off. Production units, like the Diesel Loco Shed, the Chittaranjan Loco Works and the Integral Coach Factory, would be spun off as autonomous units.

An initial transitional period of seven years is built into the 15-year planning horizon for the strategic high growth scenario. The basic groundwork would be accomplished in this period, to be followed by the major organisational changes in the subsequent periods. The requirement for external financing from the government would be high in the initial seven years, but following the full 15-year programme, returns would be assured. Reorganisation as a corporation is expected, in the committee's projects, to open the door to large infusions of debt financing. As a large infrastructural enterprise, the Railways, the committee has said, is likely to be attractive to pension funds and insurance companies, which set much store by security and stability, rather than high returns.

WITH all these projections, the Expert Group has not quite been able to win the necessary number of converts within the organisation. One of its principal recommendations is that the worker and officer unions should be involved in the process right from the start, so that the discord and acrimony that accompanied railway reorganisation in various European countries could be avoided.

In mid-September, all the unions and associations of the Railways, together with the managements at the headquarters and zonal levels, are scheduled to take up an intensive series of discussions on the Expert Group report in Vadodara. Their preliminary reaction is to endorse the Expert Group's diagnosis of the malaise afflicting the organisation. Few yet have endorsed the main strategic options outlined. The internal committee of the Railway Board is expected to submit its own set of responses to the report by the end of October. The chances are that it would strongly endorse the suggestions that the Railways be allowed the flexibility to fix tariffs in a manner that would safeguard its commercial interests.

But this is precisely where the government is likely to baulk. In this contention involving the economic reforms lobby, the Railways unions and management, and the government, the stalemate is likely to persist for some years still.

Kudremukh

other

Kudremukh Iron Ore Company Limited (KIOCL) has wreaked havoc on the Western Ghats ("Kudremukh concerns", September 14). The shape of the hills has been altered irretrievably and surface and underground water has been contaminated. The mining activity has dealt a severe blow to the flora and fauna of the Malnad forests. Some of the evergreen forests are lost for ever.

The sooner KIOCL stops its mining activities, the better. What the country has earned by way of foreign exchange from the export of iron pellets is nothing compared to the long-term loss of natural wealth.

The State and the Central governments should not renew the licence for mining. The KIOCL infrastructure may be used to set up small-scale units that are eco-friendly.

D.B.N. Murthy Bangalore AGP and scandals

This has reference to "The AGP and some scandals" (September 14). There are countless cases of bigamy going unnoticed in India. Prafulla Kumar Mahanta being a public figure, his act of bigamy has received media attention. This a one more example of mud-slinging in politics.

Tapan Chakraborty Mumbai Animal protection

The article "A campaign to protect animals" (September 14) was informative. The plight of animals in India is indeed alarming. The manner in which they are treated and slaughtered deserves condemnation. Protection of animals must get top priority and there should be norms governing their slaughter.

Abhijeet D. More Nashik Drug trials

The case of drug trials at the Regional Cancer Centre, Thiruvananthapuram, is disturbing ("Drug trials and ethics", August 31). Some scientists, in connivance with medical institutions, are vying with one another and employing unethical methods to develop drugs for cancer and make huge profits. The erring scientists and their accomplices should be punished for exploiting innocent people.

G.E.M. Manoharan Coimbatore Secular education

The Safdar Hashmi Memorial Trust (Sahmat) needs to be congratulated on having taken the initiative to organise a major convention in New Delhi against the communalisation of education ("Secular challenge", August 31). The concern expressed by the participants is shared by all right-thinking people of India. It is sad that institutions responsible for shaping the content of education are sought to be influenced by the Sangh Parivar. "Value Education" is a euphemism for religious education. The participation of the Education Ministers of nine States and Union Territories added significance to the convention.

In the monsoon session of Parliament, some allies of the Bharatiya Janata Party joined the Opposition in warning the Union government that mixing religion and education would have dangerous repercussions. The decision to introduce astrology and Vedic science as subjects of study at the university level too came under attack.

The scientific community has expressed its concern and apprehensions in this regard. Its views must be given due importance in formulating education policy.

Onkar Chopra New Delhi * * *

The BJP-led government's propaganda equating Indian nationalism with Hinduism is akin to Hitler's propaganda equating German nationalism with Nazism. Like the Nazi government, the NDA government has been using all sorts of methods - such as the distortion of historical facts and the introduction of Hinduism-oriented courses - to legitimise Hindutva.

At this juncture, all secular and democratic political parties, organisations of women and students and the intelligentsia must come forward to resist any move that might ruin the federal polity and the secular character of our country. The Safdar Hashmi Memorial Trust (Sahmat) has taken a positive initiative to expose the motives behind the NDA government's education policy. The spirit of the Sahmat convention has to be sustained to save our country from the claws of Hindutva ideologues.

A.S.M. Khairuzzaman Lanka, Assam Reservation in Parliament

The reservations expressed by some Members of Parliament about the proposed move to lift the freeze on the number of Lok Sabha and Assembly seats reserved for the Scheduled Castes and the Scheduled Tribes sound justified ("A Bill with limitations", August 31).

The Constitution (91st Amendment) Bill seeks to freeze until 2026 the total number of seats in the Lok Sabha and the State Assemblies and the number of Lok Sabha seats from each State. This is to motivate State governments to pursue the goal of stabilising the population. If the same logic is applied to different communities, the number of seats reserved for the Scheduled Castes in the Lok Sabha should also be frozen. But it is going to be increased from 81 to 88. Although the move is unfair, no political party is making it an issue.

The provision for reservations was incorporated in the Constitution as a temporary measure. But the extent of reservation has been increased and its timeframe has been extended. As it is politically impossible to stop reservations at one go, they must be gradually withdrawn. Increasing the number of reserved seats in Parliament will take the country backward.

Avuthu Srihari Secunderabad The right to dissent

Arundhati Roy and Medha Patkar should be commended for asserting their right to dissent. The Supreme Court had in a majority judgment ruled in favour of increasing the height of the Sardar Sarovar dam. There were judges of the same Bench who did not agree with that judgment. If the Supreme Court Judges have the right to dissent, why is it denied to ordinary citizens?

The right to dissent is sacred in a democratic society. In fact, it is a prerequisite for such a society. It is the freedom of the opposition and not the ruling party that proves the democratic credentials of any civil society. Indeed it is the ruling party's foremost responsibility to see that the opposition functions freely and fearlessly. During the Emergency, the Congress failed in this litmus test, and it is still paying the price for it.

In the Narmada cases, even the majority Judges went by the letter and spirit of the law. If the law is inadequate to protect the legitimate needs and rights of citizens, it should be amended or changed. The judiciary cannot do this. Only the people can change the law through Parliament.

A section of the public strongly feels that the Supreme Court judgment is insensitive to the legitimate rights and needs of people affected by the Narmada project. As detailed in the article "Of contempt and legitimate dissent" (August 31), many people who criticised the courts in the past were sentenced to jail terms. In some of these cases, the criticisms were within the boundaries of legitimate dissent. The courts are part of a greater democratic set-up, where the will of the people is supreme. As rightly described by Arundhati Roy, any action that is contrary to this is an insult to the citizen.

P.J.J. Antony Jubail, Saudi Arabia The Nizam's jewels

This is with reference to the article "The Nizam's jewels" (August 3).

We would have expected an article in a magazine of standing like yours to reflect an adequate awareness of the facts and circumstances that eventually led to the acquisition of the exquisite art collection of the Nizam's Trust by the Government of India. On behalf of the HEH The Nizam's Jewellery Trust, I would like to draw your attention to the following points to enable you to publish the correct version in the interest of truth and fairness, and bring into proper focus the part played by the trustees of the HEH The Nizam's Jewellery Trust.

1. The references made in the article to a certain official of the National Museum, Dr. Sihare, seem to bestow on him a degree of importance not warranted by the facts of the case. In fact, this official placed hurdles in the way by lending support to a public interest petition filed in the Supreme Court by certain interested parties claiming that the jewellery was not the personal property of the Nizam. Frivolous as it was, the case was dismissed by the Supreme Court after a number of hearings, but it caused delay.

2. The sequence of events leading to the purchase of the art collection by the Government of India would bring into the correct perspective the positive role played, more than anyone else, by the Trustees of the HEH The Nizam's Jewellery Trust. As early as July 1972, the trustees wrote to Prime Minister Indira Gandhi offering the exquisite art collection consisting of 173 items of jewellery to the Government of India so that it could be retained within the country as a part of our national heritage. On the basis of the recommendations made by several expert committees, the Government of India decided to buy only a few selected items which were the cream of the collection. This, however, did not materialise owing to the intervention proceedings in the Supreme Court. Meanwhile, in March 1978, the Government of India informed the trustees that it was not interested in the purchase of the art collection. As a result, the trustees held an auction in 1979 under the supervision of the Finance Secretary, Government of India. Before the bid by a foreign buyer could be accepted, the auction was cancelled by an order from Prime Minister Charan Singh. The trustees once again displayed a constructive attitude by agreeing to accept arbitration under a compromise agreement with the Government of India. After protracted proceedings before the arbiter and the Supreme Court, the government finally acquired the art collection by paying a compensation of Rs.218 crores in terms of the arbitration award - a figure very much below its value in the international market then.

3. The caption for the photograph of the Nizam on page 99 is inaccurate. The children in the photograph are the sons of the Nizam - Prince Azam Jah Bahadur and Prince Moazzam Jah Bahadur - and not, as mentioned in the caption, Prince Mukarram Jah and Prince Muffakham Jah, who are the grandsons of the Nizam. The caption skips an entire generation in one sweep.

It would be clear from the above statements that the trustees played a key role in the implementation of the compromise agreement. The trustees were conscious of their first responsibilities to the beneficiaries to get a full and fair price for the items and to do so without delay. They sought to achieve this while also acting in the national interest at every stage of the case. Motivated by this desire, the trustees offered the collection to the government for purchase so that it could remain in the country as a part of the national heritage.

M.A. Hadi Trustee, HEH The Nizam's Jewellery Trust Hyderabad

Legal reforms

In a well-written article, R.K. Raghavan describes with precision the various dimensions to the killing of Phoolan Devi ("Fundamental issues", August 31).

Legal reforms are delayed by successive governments. Media reports put the total number of cases pending in Indian courts at 24 million. The average time taken to settle a case is 20 years. As such, hard evidence against the culprits in a case is difficult to come by and the delay makes the task even more difficult. Taking advantage of the loopholes or the lack of evidence, offenders often go scot-free. In the process, victims are denied justice and, worse, sometimes innocents find themselves in jail. In order to keep pace with the changing times and also give timely justice to the citizens, legal reforms are the need of the hour.

As far as VIP security is concerned, each VIP is bound by certain security protocols, which may be ignored at their own peril. Phoolan Devi ignored them. Indira Gandhi was reported to have been advised to replace her personal security guards after Operation Bluestar. She did not do so, and the consequence was swift and telling.

The most vital aspect of this debate is the protection of those who are supposedly being victimised - Phoolan Devi, for instance. It is time to come down heavily on those playing havoc with the social fabric of India.

Ravi Kumar Mangalam Delhi Jnanpith Award

The article on the life and works of Indira Goswami (Mamoni Raisom Goswami), the narrator of the joys and sufferings of the people of South Kamrup in Assam ("The texture of life", August 31) was timely. The Jnanpith Award for her is well-deserved. We are proud of her.

Hafiz Ahmed Dipanjali Goswami Amranga, Assam Economics

Referring to the forays being made by the new development economics, Jayati Ghosh suggests that a better way of expending intellectual energy might be to develop alternative ways of addressing the still fascinating and relevant issues of growth, development, structural change and inequality in all economies, especially those not characterised as "developed" ("A focussed revival", August 31). She says that such alternatives would give greater precedence to the role of history, to the interplay of political and social forces with economic institutions and processes and to the class interests and distributional conflicts which reflect and determine economic patterns.

These perceptions are unexceptionable by and large. It needs to be pointed out that since the mid-1980s, and particularly since the 1990s, independent think tanks and departments of economics in some universities in the West have actively taken up in-depth studies to promote non-orthodox economics of the genre mentioned by Jayati Ghosh. A representative list of such institutions is given in Real Life Economics - Understanding Wealth Creation (edited by Paul Ekins and Manfred Max Neef, and published by Routledge, London, and New York). Wolfgang Sachs, Amitai Etzioni, Herman Daly, Mark Lutz, Ian Miles, Anizur Rehman and Ponna Wiagnaraga are some of the political and development economists of the alternative typology.

It also bears mention that although Amartya Sen was awarded the Nobel Prize for his exceptionally exclusive contributions to welfare economics, providing/restoring ethical focus, his latest book Development as Freedom tends to be a foray into alternative economics (divorced in some measure from the mainstream classical and neo-classical economics as also Marxian Economics), which is essentially humanistic in content and character.

K. John Mammen Thiruvananthapuram DPEP

Dr. Anita Rampal's article "An educative experience" (August 17) on the District Primary Education Programme (DPEP) in Kerala is a far cry from the reality. She seems to be blissfully unaware of the fact that the DPEP is now on in all the districts of Kerala. To begin with it was introduced in the three districts of Malappuram, Wayanad and Kasaragod in 1994 by the then United Democratic Front government led by A.K. Antony. The Left Democratic Front Ministry, which was recently voted out of power, was widely expected to discontinue the World Bank-funded DPEP. But, to the consternation of many, it implemented the programme all over the State with added vigour and enthusiasm. Now the new Education Minister, Nalakathu Soopy, in consultation with well-known educationists and heeding popular voices of dissent, has decided to ease out the DPEP. And there is a point.

As N.A. Karim, a prominent dissenter, has pointed out, a great mistake of the DPEP is that it sought to do away in one day with a system that had been in force for decades. Not that the age-old system should have been left undisturbed. The change should have been brought about in stages, based on a curriculum and a syllabus most suited to the nation's needs. Most government-run and aided schools, in which the programme was introduced, are in a pathetic condition, with leaking roofs, inadequately furnished classrooms, and a class of teachers not willing to take the DPEP to fruition. Making matters worse is the fact that a great number of those who attend these schools are poor children. They certainly find it difficult to adjust to the new programme. True, some children who are naturally quick learners will show good results. But they will show the same results whatever may be the programme they are exposed to. My own children are studying under the DPEP, and I am for changes with respect to the contents of the textbooks, the methods of teaching, the method evaluation, and so on.

Strangely, one finds the children of those who clamour for the DPEP attending English-medium schools; they include the children of certain regional leaders of the progressive movement, the Kerala Sastra Sahitya Parishad, and many DPEP teachers.

The team, of which Anita Rampal was a part, was shown around a select few of the DPEP and non-DPEP schools by the very same agency implementing the programme, namely the Primary Education Society of Kerala (PEDSK). No wonder, here is the voice of the master.

K.M. Ajir Kutty Edava, Kerala * * *

The article "Abandoning a reform measure" (August 3) praises the DPEP and expresses concern about its future under the United Democratic Front. In the last two years several articles have appeared in magazines and newspapers about the DPEP, highlighting its innovative features.

I do not live in Kerala, nor do I have a first-hand experience of this programme. However, I have discussed it with relatives and friends whose children study in DPEP schools. The impression I got was that many parents were initially enthused by the reform measures, expecting that the promised changes would improve the standard of education, which was on the decline. Then, disillusionment set in. They were shocked to find that their wards were not learning even what they used to learn earlier. The textbooks were full of comic stuff, there was no evaluation, and reading and writing practice was inadequate - these were some of their complaints against the new system.

They were not amused by the queer experiments that were being carried out on their children.

I found on the Internet that similar projects were on in many countries, mostly in the Third World. What surprised me more was the frequency with which catch phrases such as 'learn how to learn', 'child-centred activity-based pedagogy' and 'joyful learning', which were supposed to have an indigenous origin, kept popping up in World Bank documents published much in advance of the implementation of the programme in Kerala.

A question naturally came to my mind: Why should the World Bank, a financial agency whose humanitarian credentials have often been questioned, be so concerned about primary education in India? It provides a loan of Rs.40 crores to a district under this programme. The Bank is not exactly known for its generosity and kindness. The point is that the World Bank does not stop with merely financing the DPEP. It dictates what is to be done. It aims to restructure and change the educational system in such a way as to suit the needs of those who will gain most from a new globalised economic system. This is clear from the policy documents of the World Bank. Reports from Latin American countries where such educational reforms were carried out reveal that these have adversely affected the public education system and led to the privatisation of education. After all, all-out privatisation, including that of social welfare institutions, is one of the thrusts of the globalisation-liberalisation policy.

I feel that this reform measure, aided massively by the Bank, may not be as innocuous as it appears to be. We must critically examine this programme without getting carried away by its catchy terminology. It is true that our education system needs to be reformed but that is not a task to be left to the World Bank.

George Joseph Kalpakkam, Tamil Nadu

The price of safety

FACED with mounting criticism over a spate of railway accidents, the Union government announced a hike in railway fares on August 29. Ironically, the government, which has been repeatedly charged with neglecting the safety aspect, reassured passengers that the fare hike was intended for their own safety. The hike - termed a surcharge that will be imposed for the next five years - is expected to increase the Indian Railways' revenues by Rs.1,000 crores in a full financial year and Rs.500-600 crores in the current fiscal.

Minister for Railways Nitish Kumar announced that the Union Finance Ministry would contribute Rs.12,000 crores by way of grants to the newly established Rs.17,000-crore Special Railway Safety Fund and the remaining Rs.5,000 crores would come from the revised fares, over a period of five years. Although the invocation of safety concerns gave a sugar coating to the fare hike, there is concern that the establishment of the fund hardly measures up to the response that the Railway Safety Review Committee, headed by H.R. Khanna, sought from the government in 1999 (Frontline, August 3, 2001). Moreover, the failure of the Finance Ministry to make any categorical commitment on a schedule of disbursements for the fund is galling to passengers, who have been asked to participate straightaway in building the Fund. The Finance Ministry has not indicated its commitments in detail over the next five years. Indeed, doubts have been expressed whether the Ministry will keep its promise.

The fare hike flies in the face of the Khanna Committee's recommendation that the "Central government provide a one-time grant to the Railways so that the arrears in the renewal of tracks, bridges, rolling stock and signalling gear are wiped out." The committee observed that the Railways "is not in a position to fully finance the level of investment required".

Mamata Banerjee, Nitish Kumar's predecessor in the Railway Ministry, had established a fund while presenting her last Railway Budget. During the current fiscal this fund was projected to amount to Rs.303 crores. Critics say that another fund with another name is unnecessary.

The crux of the Khanna Committee report is that rail safety in the country is an area that needs urgent investment - in new stocks of assets. Almost every category of the Indian Railways' assets is in need of not just repair but outright replacement. This applies not just to its aged rolling stock but to tracks, signalling gear and bridges. The committee emphasised that the Railways could not replace overnight such a huge backlog. For the sake of safety, the committee recommended that the government step in and take the responsibility for the replacement of overaged stocks. In doing this, the committee was also guided by the fact that the Railways cannot function on purely commercial lines.

The Indian Railways, contrary to its general portrayal as a bleeding business venture of the Indian state, actually makes a substantial operating profit. For instance, the last Railway Budget envisaged that the Railways would earn traffic receipts amounting to about Rs.40,000 crores during the current year. After accounting for expenditures, the Railways are projected to be left with a surplus of Rs.2,183 crores. The Railways, after accounting for dividend amounting to Rs.1,352 crores, are projected to have a surplus of about Rs.830 crores. Of this, Rs.511 crores is for appropriation to the Railway Development Fund, Rs.303 crores to the Railway Safety Fund established by Mamata Banerjee and the remaining Rs.17.43 crores to the Capital Fund. Apart from these, there is the Depreciation Reserve Fund. Since all these funds are basically meant to bring about a regeneration of capital assets, the expenditure from each has implications for safety. The classification of Plan heads in the Railway Budget allows for investments under heads that have a bearing on safety in the Indian Railways. Thus, track renewal, bridge works, rolling stock and other heads figure separately in the Budget.

Critics of the government suggest that the fare hike is nothing but an ill-concealed attempt at resource mobilisation in the face of a serious threat of the last Budget's calculations going haywire. They fear that the hike will enable the Railway Ministry to shuffle allocations for heads that have a safety implication into the new safety fund without actually incurring additional expenditure. Meanwhile, the Finance Ministry's commitment, spread over a rather long time scale of five years, raises doubts about whether the Fund will actually result in safer rail travel. The only thing that is certain is that passengers will pay more with immediate effect.

The regressive nature of the fare hike has attracted criticism. The uniform surcharge of one rupee on every "originating passenger"(simply put, any passenger who buys a journey ticket) travelling to a distance of up to 500 km implies that the burden will fall heavily on short distance travellers, particularly those commuting by suburban trains. In percentage terms, the rate of increase will be heavy for these commuters. For instance, a passenger who used to pay Rs.4 for a trip in the Mass Rapid Transit System (MRTS) in Chennai will now have to pay Rs.5 (including one rupee as surcharge), implying an increase of 25 per cent. By any standard, this is a steep increase. Second class season ticket holders travelling on such rail systems will have to pay Rs.10 as surcharge. In effect, the surcharge will affect low- and middle-income passengers more than others.

The impact of this sharp increase in fares could have other consequences, which have a bearing on safety. R. Elangovan, working president of the Dakshin Railway Employees Union (DREU), told Frontline that the fare hike would result in suburban rail passengers being "chased to the roads" because of the wider differential between train and bus fares.

Crusading Congressman

G.K. Moopanar, 1931-2001.

G.K. MOOPANAR, 70, who passed away in Chennai on August 30, will be remembered for his commitment to secularism and cultural pluralism. It was Moopanar's firm opposition to communalism and religious bigotry that motivated the Tamil Maanila Congress (TMC), which he founded in 1996, to vote against the confidence motion moved by the Bharatiya Janata Party-led government at the Centre in 1999 and break ranks with the Dravida Munnetra Kazhagam (DMK) when it allied with the BJP. In joining hands with the All India Anna Dravida Munnetra Kazhagam (AIADMK) for the Tamil Nadu Assembly elections in May 2001, Moopanar seemed to signal that the BJP's "communalism" was a greater threat to the polity than the "corruption" of the AIADMK.

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Moopanar was one of the two Congressmen who had direct connections with the Congress lineage of K. Kamaraj. (The other survivor is N. Ramasamy Udayar of Salem, who is in his 80s.)

Moopanar cut his political teeth under Kamaraj, who handpicked him to build up the Congress in Thanjavur district in 1965 when the Left movement and the DMK were rising. Moopanar was hardly 25 then.

Moopanar was a Congressman first and last. Although he broke away from the party in 1996 protesting against Prime Minister and Congress president P.V. Narasimha Rao's decision to align with the AIADMK, he was a Congressman at heart. Congress president Sonia Gandhi, who visited Chennai on August 31 to pay her last respects to Moopanar, claimed that "he never quit the Congress, and his heart was always with the Congress, " and that he was the "standard-bearer of the Congress flag" all his life.

Moopanar commanded the confidence of Indira Gandhi and Rajiv Gandhi. Between 1980 and 1988, when Moopanar was general secretary of the All India Congress Committee (AICC), both Indira Gandhi and Rajiv Gandhi sent him on several trouble-shooting missions. These included the displacement of certain Congress Chief Ministers, which he accomplished with finesse. He kept a low profile when the Congress was under the stewardship of Narasimha Rao, with whom he did not get on well.

A crusader against untouchability, Moopanar made the Puthiya Tamizhagam and the Dalit Panthers, the two Dalit parties, the TMC's allies in the Third Front that he formed to contest the Lok Sabha elections in 1999. He thus gave them the credibility denied by other mainstream political parties. Dalit Panthers convener R. Tirumavalavan recalled how during the campaign for the byelection to the Nellikuppam Assembly seat in February 2000, Moopanar asked a crowd at a public meeting "What do you have in your hands?" The people, waving pictures of their leader, replied, "Tirumavalavan". To this, Moopanar gave the riposte, "You have him on a piece of paper. But I have enshrined him in my heart." The crowd cheered.

N. Sankaraiah, secretary, the Tamil Nadu State Committee of the Communist Party of India (Marxist), writing in the September 1 issue of Theekathir (the CPI-M newspaper) about Moopanar's simple words against untouchability, quoted a speech he made at a convention in Neyveli that touched the core of the problem. Moopanar told the gathering: "All of you (Dalits and people belonging to other communities) watch films together in cinema halls. You travel together in buses. You work in work places without showing any differences. But once you return to your villages, you remember your castes and get engrossed in hatred and enmity. You fight one another. You should think whether this is right."

Former Chief Minister and DMK president M. Karunanidhi acknowledged the fire-fighting role that Moopanar played during the bloody caste clashes in southern Tamil Nadu in 1997.

Karunanidhi noted that his 40-year friendship with Moopanar was not affected by party-based or ideological differences. The former Chief Minister called him a humane person. "His love and affection for my family members will continue to linger in my heart," he said.

Chief Minister Jayalalithaa recalled how Moopanar never got angry or used harsh words, a "rare quality" among politicians. She added that when she met him in hospital in mid-August, he said, "we will take a joint decision on the coming local body elections."

R. Nallakannu, secretary, State Council, Communist Party of India (CPI), observed that although Moopanar was a religious person, he fought religious fanaticism.

It was reportedly at Moopanar's insistence that the Karunanidhi government banned Al Umma and the All-India Jihad Committee involved in the serial bomb blasts in Coimbatore in February 1998 which claimed more than 50 lives.

Moopanar was a heavy smoker for several decades but gave up the habit some time ago. Instead, he took to chewing betelnut and cloves. It was clear from January 2001 that his health was failing. Hectic parleying with the DMK, the AIADMK and other parties for several weeks before the Assembly elections in May 2001 put further strain on his health.

Moopanar's decision to partner the AIADMK attracted a measure of criticism since it seemed to go against the raison d'etre of the founding of the TMC: to fight the AIADMK. So much so that senior TMC leader P. Chidambaram parted ways with Moopanar and founded the TMC Democratic Front.

Moopanar was born on August 19, 1931 at Kabisthalam village in the composite Thanjavur district, the rice granary of Tamil Nadu. He belonged to a family of landed aristocracy that owned vast tracts of fertile land. His father R. Govindasamy Moopanar was a Congressman. The family patronised music, arts and literature. Moopanar himself was president of the Tiruvaiyaru Sri Thyaga Brahma Mahotsava Sabha from 1980 until his death. This Sabha conducts the annual Thyagaraja music festival at Tiruvaiyaru, the saint-composer's birthplace.

Moopanar first met Kamaraj and Jayaprakash Narayan when they called on his father Govindasamy Moopanar at his home at Sundaraperumal Kovil, near Kumbakonam, in 1951. Kamaraj was then TNCC president. Moopanar became the president of the Thanjavur district Congress committee in 1965. When the Congress split in 1969 Moopanar continued with Kamaraj. After Kamaraj's death on October 2, 1975, the two Congress factions in Tamil Nadu merged in 1976. At the merger function, Indira Gandhi announced that Moopanar would be the president of the unified TNCC.

From then onwards, his rise in the Congress was swift. He was TNCC president from 1976 to 1980, and again in 1988-89. He was a puissant AICC general secretary from 1980 to 1988. He was a Rajya Sabha member when he died. Both Indira Gandhi and Rajiv Gandhi offered him ministership but he declined.

He even shunned the Prime Minister's post offered to him in April 1997 after the fall of the United Front government led by H.D. Deve Gowda. In a volume titled Makkal Thalaivar Moopanar, published by a TMC leader in August 2000, former Union Minister R. Dhanushkodi Adityan has recalled that CPI(M) general secretary Harkishan Singh Surjeet declared that "Mr. Moopanar is the best and first choice" for the prime ministership. West Bengal Chief Minister Jyoti Basu seconded the choice. Moopanar declined the offer.

Moopanar's humility and amiability were striking qualities. He knew partymen at all levels by name. He supported the education of hundreds of poor students by paying their fees. He donated money for various good causes but never sought publicity for these acts. In the affairs of the Congress party, he was hard to fathom. He would never reveal his mind to anybody, especially to the media. His approach in the party was one of forging a consensus by holding protracted discussions. Ultimately, he did not realise his ambition of bringing back "Kamaraj rule" in Tamil Nadu.

The TMC feels orphaned with the death of Moopanar. The party quickly tried to steady itself when at a meeting of its legislators, Rajya Sabha members and leaders on September 1, Moopanar's son G.K. Vasan was elected TMC president.

Dilution in Durban

After hectic deliberations that went beyond the schedule, the World Conference Against Racism produces a document that satisfies nobody.

THE World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, or the WCAR, went into extra time on September 7 and continued for an unscheduled ninth day of deliberations. Two difficult issues held up the adoption of the two major documents before the conference: the Draft Declaration and the Draft Programme of Action. There were irreconcilable differences over several formulations on the situation in Palestine and Israel and on the issue of slavery, slave trade and colonialism.

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Nothing could have summed up the mood of the conference then better than these observations - of the Chair of the Main Committee, reminding delegates that time was of the essence ("we have just 25 minutes left") in response to interventions from Pakistan and Syria on the compromise formulation on the situation in West Asia, and of the president of the conference and South Africa's Foreign Minister, Nkosazana Dlamini-Zuma, agreeing for further discussions ("provided we find the required interpreters, because, only by allowing a full discussion will be able to end the conference in a dignified way").

During the deliberations, the African group demanded that slavery, slave trade and colonialism should be characterised as crimes against humanity, for which countries that practised and profited from these should apologise and pay reparations. The original draft only spoke of a need to acknowledge the grave suffering caused by these practices.

Although the United States and Israel withdrew from the conference, objecting to what they saw as the hate language used against Israel and the comparisons made between Zionism and racism, other countries such as the members of the European Union (E.U.), which broadly shared such outrage, did not withdraw. Instead, they strove to achieve a compromise - in essence, for an acceptable language on these two issues.

At every briefing during the conference, mediapersons were only told of the efforts that were still on to find such acceptable language. For instance, even as it was acknowledged that deeply entrenched historical antagonisms between political Zionism and Palestinian nationalism are at the root of the conflict in West Asia, the problem was one of finding expressions of this truth that were acceptable to all. It was not surprising then that the compromise sought was essentially a semantic one and related not to the intractable hostilities in West Asia but to the issues of slavery, slave trade and colonialism as they impacted on the African continent. The attempt was to find appropriate words and expressions to replace some of the harsher formulations in the draft documents. The E.U. countries apparently agreed that slavery, slave trade and colonialism did constitute crimes against humanity, but they did so only after securing guarantees, supported by legal opinion, that such admission would not open the doors to litigious action against the erstwhile colonial states and states that actively engaged in slavery and slave trade. Similarly, instead of the reparations demanded by the African group, there are to be remedial measures; there is no debt cancellation, but debt relief; and so on.

On issues relating to Palestine and Israel, the proposed changes, which constituted seven paragraphs in the Draft Declaration and a mere three paragraphs in the Draft Programme of Action, did not explicitly condemn Israel, let alone equate Zionism with racism. The formulation recognising the right of refugees to return voluntarily to their homes and properties was a patently watered-down version of Paragraph 41 of the Draft Programme of Action; it modified the original expression "Palestinian refugees" to just "refugees". Paragraph 6 of this version was particularly hollow and hypocritical, in the context of the horrible goings on in Palestine and other occupied areas. It said: "We call for a just, comprehensive and lasting peace in the region in which all peoples shall co-exist to enjoy equality, justice and internationally recognised human rights, and security."

Not surprisingly, the West Asian group of countries as well as Pakistan firmly opposed the formulations, which did not explicitly condemn Israel, while any further changes that would accommodate these views were opposed by the E.U. countries. The conference was poised on a knife-edge.

In the event, the interpreters, whose contract had expired, were located and the conference ended with a compromise that satisfied nobody. While the Final Declaration acknowledged that slavery and slave trade (but not colonialism) were crimes against humanity, the expected "apology" from those who had profited from these practices finally became an expression of "profound regret", with the verbal changes in respect of reparations remaining.

On the issue of Palestine and Israel, the attempts by the West Asian group led by Syria to introduce a new formulation describing foreign (Israeli) occupation of (Palestinian) territory as tantamount to racism and effectively declaring Israel as a racist state were thwarted by an alliance of Western and Latin American countries by taking recourse to the vote.

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After more than eight days of deliberations, which in turn were preceded by meetings of preparatory committees and working groups, regional conferences and seminars that had been held over a period of more than two years at venues all over the world, the conference could produce only some sort of a verbal agreement. At one point the dispute extended even to orthography, that is, whether the word Holocaust should be spelt with a capital 'H' or a lower case 'h'.

This is hardly surprising, given the length and verbosity and the unrealistic scope of the draft documents that were born out of an attempt to include everything for everyone and satisfy all lobbies. In Durban, the drafts, which were approved on August 20 and 22 at the preparatory committee meetings in Geneva, were put through another process of reconciliation so that they reflected a consensus, if any, among the delegates. This task could be completed only well after the eleventh hour. The clocks at the venue were stopped at midnight to imply that the documents were at least notionally adopted on the last day of deliberations.

Some idea of the difficulties involved can be had from the fact that at the beginning of the conference the majority of the paragraphs in both the documents bore at the end the self-explanatory description "ongoing" within brackets. Many of these paragraphs were themselves within brackets, indicating the existence of deep divisions over the content of the documents. The text of these documents on the WCAR website was marked by errors, with the paragraphs not even consecutively numbered. Paragraph 73 of the Draft Declaration (in Section III) dealing with "Measures of Prevention, Education and Protection aimed at the Eradication of Racism", which urged states to prohibit and redress discrimination on the basis of work and descent, did not appear in the web version. It was described as a missing paragraph in a footnote to a version of the document that this correspondent secured from a WCAR official just to copy and return.

This paragraph contained one of the central issues that was sought to be raised in Durban. Eloquent and persuasive Dalit lobbies sought the retention of this paragraph in its existing form, with two new paragraphs, 73-A and 73-B. Paragraph 73-A calls upon the United Nations High Commissioner for Human Rights "to undertake an in-depth study on the question of discrimination on the basis of work and descent in cooperation with the Committee for the Elimination of Racial Discrimination", and Paragraph 73-B calls upon the governments concerned "to undertake public awareness raising and educational initiatives in order to promote positive changes in attitudes towards and within communities discriminated against on the basis of work and descent". Since no discussion was possible on Paragraph 73, the issue fell away, according to an Indian official. However, according to Paul Dinakar, one of the Dalit activists from India, the paragraph, like all other similar paragraphs described as ongoing, will be included in an annexure to the Declaration and the Programme of Action to be forwarded to the U.N. General Assembly. The two documents have about 30 paragraphs each bearing this description. A U.N. legal adviser told the delegates on September 8 that the conference could not adopt any of the bracketed paragraphs.

To say that the deliberations of the past two weeks, which also saw a two-day Youth Conference and a five-day NGO Forum that discussed more or less the same issues, were less than impressive is not to underplay the immediacy and importance of the issues of racism, racial discrimination, xenophobia and related intolerance.

It was at the seemingly less formal structures of the Youth Conference and the NGO Forum that Dalit activists were initially able to highlight the evils of caste and untouchability in South Asia and in other parts of the world. But eventually they made their voices heard even within the environs of the WCAR. The issues of work- and descent-related discrimination in India are no more the concern of only those Indians, Dalit and non-Dalit, outraged by these evils; there is a whole international network that will take them further into and along paths which one cannot even envisage. Durban 2001 thus became both an angry and a festive free-for-all in terms of exchange of ideas. There were causes rational and bizarre, and people whose ideas seemed even more outlandish than their attires and headgears, the inescapable buttons and T-shirts and beads and trinkets, the banners and the posters. There were even the hustlers and fly-by-night operators and shady pleasure spots in the vicinity of the splendiferous conference centre and the adjacent Durban Exhibition Centre.

As is so often the case with the media at such high-profile international gatherings, in particular the visual and electronic media, the form and style were definitely more catchy than the bureaucratic hair-splitting over brackets within brackets, obscuring the harsh fact that these wrangles were about matters of life and death to an overwhelming majority of the peoples of the world, all victims of the evils the conference had set out to fight.

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Oct 9,2020