Tuesday, 13 December 2011

Right Way to Legal Reforms – by ADITYA SWARUP

23 Nov 2011 TNIE
Aditya Swarup is a lawyer and currently pursuing his MPhil in civil procedure from the University of Oxford.

In 2009, the Union government released the vision document 'National Mission for Jus­tice Delivery and Legal Reforms'. The document included a series of policy initiatives aimed at reducing the pendency of cases from an average of15 years down to 3 years within a 3-year period. The highlights of the proposed initiatives included increasing court working hours, provid­ing a greater number of courts, training judicial officers, legal education reforms and the usage of information and communication technology (ICY) support systems. A large part of the reforms are merely structural and institutional, and aimed at, providing a greater number of facilities to accom­modate the existing caseload, which does not necessarily help the existing legal framework.

The Cabinet recently approved a proposal for the formation of an advisory council. Under the scheme of the 13th Five Year Plan, around Rs 5,000 crore is alleged to have been allocated for the purposes of overhauling the judicial system. With more than three crore cases pending in courts, it is quite clear that a gargantuan effort would be required to ad­dress the case backlog. Will the mere allocation of such vast monetary means provide the necessary fillip for reforms implementation?

In 1959, a series of suggestions were made to address the increasing case load in the United States. The reforms that made their way out of these suggestions were to increase the number of courts, and judicial officers, and provide better case management systems, similar to those envi­sioned and proposed to be implemented in India. The result was contrary to what was expected. The records showed that the caseload actually increased subsequent to the implementation of the reforms. Similar measures were suggested in the UK with the same results. We now know the two main reasons for the failure of these measures - they failed to address the culture of litigation prevalent in the country and they had insufficient case management procedures to check the prac­tice of giving extensions to litigants.

The legal reforms proposed in India suffer from similar deficiencies. In a landmark paper by re­nowned Judge Richard Posner, it was very right­ly argued that increased structural reforms would have only an ad hoc effect. While being initially effective, in the long run, realising the growing efficacy of the legal system, it would merely result in more litigation. To buttress his argument, he drew upon a rather unusual analogy - while initially a new highway would serve the purpose of easing out traffic, road conditions would in fact induce people who had previously used other modes of transportation, to switch to driving. This would only result in leading to greater congestion. The solution is then not merely to structurally enhance the system, but to enhance it keeping in mind and providing for the social milieu in which the enhance is to be carried out, if it is to have any efficacy at all. Similarly, in proposing reforms to reduce the caseload then, one must also address the culture of litigation prevalent in the country.

Undeniably, the culture of litigation in a coun­try has a lot to do with the attitude of its litigants, and addressing this issue would involve an in­quiry into the reasons as to why people break the law and the implementation of laws and proce­dures to ensure compliance with the law.

The second reason why such measures failed, and may fail in India's case too, is the general attitude of the system - the judges as well as lawyers. The increasing use of unimportant and irrational reasons to secure adjournments has always been considered to be a major factor in causing delay. Not much has been done to ad­dress it. The landmark Woolf Reforms which were implemented in the UK in 1998, addressed this very problem of backlogs, and failed on the very count that it failed to account for/address the issues of frivolous adjournments.

India's 2009 vision document seeks to import case management procedures to handle this prob­lem. Case management involves the setting of dead­lines for the different stages of trial and refined procedures for the submission of documents. While formerly being introduced in the US and the UK, the measures proved ineffective because of the lax attitude of the judges in granting extensions despite such deadlines - a problem frequently observe in India. Today, the UK is debating whether to intro­duce a 'no-nonsense' approach in their procedural law, implying that judges cannot grant adjourn­ments and reprieve from missing deadlines unless there is 'a good reason' to miss such deadline.

Nurturing such an attitude in India would not require vast structural changes, as envisaged in the vision document; clear strictures against granting unnecessary adjournments would be sufficient. Judges often grant extensions and adjournments under the garb of doing justice' to the parties of the case; failing to realise that 'doing justice' also involves deciding the case in time. Mere lip-service is paid to the phrase 'jus­tice delayed is justice denied'.

Such an attitude must be developed alongside the use of technology as a tool for case manage­ment. The vision document advocates the use of ICT in courtrooms. These may involve filing documents online rather than in court, comput­erisation of judicial records, video-conferencing facilities and the like. A little foresight would include notification of court dates, reminders for submission of documents and service of docu­ments via e-mail. Such systems are immensely efficient in Singapore and Hong Kong.

An economic superpower, as India claims to be, requires, as of right, an efficient legal system to resolve disputes. The vision document provid­ing for the legal reforms are precisely what they say - a vision. Learning from what has been written about the implementation of this vision in the past two years; one can easily infer that the reforms focus too much on structural chang­es. Indeed, a pivotal part of implementing a na­tional policy would also involve borrowing from and learning from other legal systems, because it is imperative for us to understand that they at some point faced the same issues.

It is necessary for the advisory committee to not only draw from their systems, but also learn from their mistakes. Only then can we even claim to be on the right path to overhauling our legal system. It is only hoped that the advisory com­mittee being formed to implement the reforms takes note of these concerns.

City's growth has tested infrastructure

 ... says former chief urban planner of Chennai Metropolitan Development Authority G Dattatri, who has stressed on the need to implement green strategies to combat the problem

Chennai: Rise in popu­lation and a phenomenal growth of the city have stressed Chennai's infra­structure to the maximum and there is an immediate need for a state urbanisation policy incorporating poli­cies on habitat and housing, according to an expert.

Delivering a special ad­dress on "Namma Chen­nai-Ezhilmighu Chennai” organised by the Federation of Indian Chamber of Com­merce and Industry here on Tuesday, former chief urban planner of Chen­nai Metropolitan Develop­ment Authority G Dattatri said that the population of Chennai was expected to be 200 lakh in the next 15 years and there was an immediate need to raise the quality of living of 50 per cent of the low and medium income families.

"There is an acute short­age of affordable housing, adding to the already grim slum situation," he said, adding that, "Integrated townships are the need of the hour rather than transporting the slum dwellers into integrated communi­ties or ghettos."

Some of the key issues faced by Chennaiites
1. Rising population and acute shortage of affordable housing
2. Rising vehicle popula­tion resulting in con­gestion of roads and lanes full of parked vehicles
3. More areas becoming flood prone as paved areas have increased and drainage outlets silted
4. Generation of waste has gone up with rise in medical, hazardous and e-wastes
5. Potable water quality poor due to breakage in sewerage and storm water drains
6. Parks and open 6 spaces are disappearing
7. Tree cover is fast dwindling
8. Gross deficiencies in schools and health centers where basic facilities are missing

F1CCI meeting on Namma Chennai-Ezhilmighu Chennai on Tuesday

He also said that the need of the hour was green strategies for the city's in­frastructure. Highlighting the need for regional plans, Dattatri also stressed on the need for pilot area plans for two neighbourhoods in col­laboration with the CMDA and city corporation besides residents' associations.

Urging FICCI to take up these initiatives at the government level, he also stressed the need for im­provement in sanitation and basic facilities in corporation schools and health centers in collaboration with corpo­ration and civil society.

He said the adjoining dis­tricts of Kanchipuram and Thiruvallur were becoming highly urbanised and that the urban population of the three cities was 96.51 lakh as  per recent census. He said a major concern was the rise in vehicular population. Car ownership had risen from two lakh to four lakh while two-wheelers had risen from four lakh to 16 lakh, stretch­ing the city's infrastructure to the maximum.

Dattatri also said most of the arterial roads were con­gested with traffic and lanes were full of parked vehicles. Besides, more areas were becoming prone to floods as paved areas had increased and major drainage assets - ­Cooum, Adyar and the Buck­ingham canal- were silted.

He stressed the need for spatial planning at different levels saying it was a key instrument for establishing long-term economic, social and en­vironmentally sustainable development. "Such plans will enhance integration of sectors - housing, trans­port, energy, employment and limit impact of natural and man-made disasters," Dattatri said.

“Integrated townships are the need of the hour rather than transporting the slum dwellers into integrated communities or ghettos “

Experts prepare strategy for sustainable Chennai

Chennai: Experts from different walks of life on Tuesday discussed various strategies to make Chennai beautiful.

Diplomats, green activ­ists, businessmen, former bureaucrats and academi­cians devised various meth­ods to improve the infra­structure and sustainable living in the city.

While most of them high­lighted shrinking open space and dwindling wetland and water bodies, others high­lighted the need to build more desalination plants besides preserving heritage buildings and proper plan­ning.

Nanditha Krishna, the director of C P Ramaswami Aiyar Foundation, said the city lacked planning and through sustainable lifestyle one could attain sustainable development.

She highlighted the need for mini-sewage treatment plants aIl over the city and clean temple tanks so that they would help improve the ground water table. "The TDS of the ground water was 200 and now it has risen to above 700. The salt water intrusion into the ground water table is also too high," she added.

She also suggested the need for setting up factories that could convert waste to energy besides the need for CNG buses like that in New Delhi. "This will bring down pollution in the city," she said.

Nanditha also highlighted the need to ban food stalls to keep the beaches clean.

Founder of ExNoRa In­ternational Chennai M B Nirmal stressed on the need to transform waste into wealth. Citing many ex­amples of how ExNoRa had made a difference in restor­ing 40 water bodies, he said solutions are there in the problem.

Honorary Consul of France in Chennai Kausa­lya Devi said that lack of sustainable infrastructure was one of the biggest chal­lenges before the city. She also said that people had distanced themselves from the civic issues. "Most of us still don't know which cor­poration ward we belong to," she added.

R Ramamurtby, conve­nor of corporate social re­sponsibility panel, FICCI, said there was an imme­diate need to renovate 38 parks' in Chennai besides beautification of Elliots and Marina beach. Highlighting the need for more desalina­tion plants, he also stressed the need to promote Chen­nai as cultural capital of Asia.

Equity of Land Acquisition – by NAMITA WAHI

Namita Wahi is a lawyer and current doctoral candidate at Harvard Law School.

The conflict over land is perhaps the most intractable conflict in Indian society to­day and land acquisition one of the most debated issues. While land is a state sub­ject, 'acquisition and requisitioning of property' fall within the concurrent list, which means that both central and state legislatures can make laws with respect to acquisition of land. The Constitu­tion mandates that any compulsory acquisition of land must be according to a law and not by executive fiat. Such a law must outline the 'pur­poses' for which the acquisition power is exer­cised; the ‘process' that must be followed by the government in carrying out the acquisition; and the payment of 'compensation', which must be a fair equivalent of the value of land acquired.

Much has been written about the Land Acqui­sition, Rehabilitation and Resettlement Bill, 2011 (LARR) which is slated to overhaul the Land Acquisition Act, 1894 (LAA). The LAA, as amended by various state governments, currently governs land acquisition in India. It's working has re­vealed four major problems that have led to wide­spread public discontent. First, the LAA only recognises the rights and interests of land title holders. In doing so, it fails to take into account the interests of those who while not holding title to the land are nevertheless dependent on it for their livelihood. Second, it is a well established legal principle that compulsory acquisitions of land must be for a 'public purpose' as a check against arbitrary state action. However, the LAA contains only an inclusive and not exhaustive definition of 'public purpose' and courts have deferred to legislative determinations of what constitutes 'public purpose'. The third problem derives from the legal requirement that those deprived of their land and livelihood must be paid a fair equivalent of the value of the land as com­pensation. Unlike their approach on 'public purpose', the Supreme Court took the compensation requirement seriously, insisting in its early deci­sions that the compensation payable in case of compulsory acquisitions be the market equivalent of the value of the land. However, through a series of constitutional amendments, Parliament has substantially ousted judicial review of the quan­tum of compensation payable in individual cases. The fourth problem relates to the procedure in­volved in land acquisition under the LAA, which includes notification of land to be acquired, hearing of objections, final declaration and payment of compensation. This procedure has been criti­cised both by the government for delays in ac­quisition and by the people for their lack of participation in the government's decision to take over their land as well as delays involved in the determination and payment of compensation.

The proposed LARR Bill attempts to address all four issues. First, by defining 'persons interested' as those having an interest in the land as opposed to actual title and 'affected family' as those depen­dent on the land for their livelihood, it takes a step in the right direction. But the definition of ‘persons interested' excludes landless labourers and others like fisher folk and cattle grazers, which are in­cluded within the definition of 'affected families'. Since only 'persons interested' can raise objections to the acquisition of land, this definition needs to be made more inclusive to include all those who are affected by the proposed acquisition. More­over, the practice of land acquisition has revealed that government officials often deny the existence of these people or their dependence on the land in question insisting upon documentary proof of their association with the land which they do not usually possess. Therefore, the current Bill must be amended to ensure that all affected persons are not only rehabilitated and compensated but are also consulted in the process of acquisition.

In its commitment to payment of fair compen­sation, currently computed at approximately four times the value of the average of registered sale deeds, the Bill marks a positive reversal of gov­ernment policy. Predictably however, the Bill is facing resistance from state governments accus­tomed to acquiring land at less than its market value. And though the lack of state finances could legitimately have been an excuse for such resis­tance by the government in the early years of the republic when India was impoverished by colonial rule and dependent on foreign aid, it is not something that can be accepted without justifica­tion when the economy even though slowing is growing at 7 per cent and India has emerged as a financial donor to other countries.

While it does a slightly better job of listing 'public purposes' than the LAA, the LARR Bill's retention of a broad definition of public purpose as 'any work that is useful to the general public' enables the government to retain wide discretion in its decisions regarding land acquisition. It is true that an exhaustive definition of public pur­pose might be unduly restrictive for government activity. However, given the current development discourse, wherein any kind of industrial or in­frastructural development is justified by the government as being useful to the general public irrespective of its short term and long term con­sequences, such unfettered discretion on the part of the executive does not provide a sufficient check against arbitrary and near-sighted govern­ment action, which is one of the primary reasons for discontent with the current law.

In its inclusion of requirements for Social Im­pact Assessment (SIA) of large projects, the LARR Bill acknowledges the need for public participa­tion in assessing the governmental need for land acquisition. However as the Bill currently stands, the committee in charge of conducting the SIA shall be composed of bureaucrats and not inde­pendent experts, which renders the provision nugatory. While the Bill provides for appraisal of the SIA report by an independent expert group, which has the capacity to make recommenda­tions, such recommendations are not binding on the committee. Furthermore, land proposed to be acquired under the Bill's urgency clause will be exempt from Social Impact Assessment.
The LARR Bill is undoubtedly a step in the right direction of ushering in a culture of justifi­cation wherein the government is required to explain and engage with the people it dispos­sesses of their lands, livelihoods and way of life, of the legitimacy and necessity of such dispos­session. But it must be suitably revised in light of evidence of current state practices if the gov­ernment's promise to enact an equitable and transparent land acquisition law has any chance of becoming a reality.

Market Economy? Or, Market Society? - by S Gurumurthy

5 Dec 2011, TNIE
For thousands of years, retailing in India has been local community business - selling retailers and buying households being familiar with each other. Even now, Indian retailing is mostly neighbourhood, relation-based business

The ongoing debate on the FDI in retail is intolerably super­ficial at times. For a rational debate, the funda­mentals of conflicting alter­natives must be understood. Here are some basic truths about conventional Indian retail. For thousands of years, retailing in India has been local community business - selling retailers and buying households being fa­miliar with each other. Even now Indian retailing is most­ly neighbourhood, relation ­based business.

There are 15 million retail­ers in India, including hawk­ers and pavement vendors. This translates to the great­est retailer density anywhere in the world - more than one retailer for 8 Indians! In con­trast, China, more populous than India, has less than a twelfth of India's retail den­sity; just 1.3 million retailers - one for 100 Chinese.

In India, one retailer does not stock all needs of all cus­tomers. Several neighbour­hood retailers - hawkers, roadside vendors, bunks and kirana shops - taken togeth­er stock and meet all their needs.  The Indian retail busi­ness is estimated at $400 billion. Of which the share of corporate is now 5 percent; the rest 95 percent is handled by traditional retailers. The wholesale-retail trade in In­dia has evolved as part of its social milieu over millennia, organised and linked by local relations. According to an FCCI study, food - read agri­culture - accounts for 63 per­cent of retail trade. Here, some 74 million strong small farmer-wholesaler-small retailers combine - a social in­heritance of generations ­works, not hierarchically, but laterally through neighbour­hood relations.

Some 58.8 million small­ marginal farmers from 6.8 lakh villages sell their pro­duce a147,000 haats/shand­ies to some 15 million whole­salers-retailers. It is the larg­est decentralised business in the world. They all operate within a radius of 16 km of where they are. Yet, only 40 percent of the food produced is traded; the balance 60 per­cent is barter-shared by so­cial relations within villages. This [60 percent] sharing and [40 percent] trading keeps rural India alive. The Parliamentary Standing Committee Report on the FDI in retail [June 2009] says that traditional retail employs 40 million people; and finds the corporate retail claim to 20 lakh job "highly exaggerated". The Commit­tee is right. Walmart, with $422 billion global turnover, employs just 2.1 million people.

That is, with more than India's retail business in its balance sheet, it provides less than 5 percent of India's retail jobs! So the organised retail's proven job potential is less than 1/20 of the per­formance of traditional re­tail. Where from did Anand Sharma get his maths that the FDI in retail would generate 10 million jobs then?

This stentorian noise for the FDI in retail makes four claims. One, the organised retail would avoid the huge – Rs 50,000 crore waste of farm products due to lack of efficient supply chain; two, with middlemen eliminated the farmers would get better prices; three, Walmarts and Tescos would procure farm products and export them like they do from China, which traditional retail can­not. Four, it will yield more employment.

The claim about employ­ment is bogus. What Wal­marts and Tescos could not do elsewhere, they would not do here. The next claim, namely, like in China, Wal­marts and Tescos would ramp up India's exports ig­nores the basics of Indian and Chinese economies. China's domestic consump­tion is low, just 35 percent of its GDP; the balance 65 per­cent is its exportable surplus.


It has built this huge surplus over decades. India with a high domestic consumption of 58 percent has no such exportable surplus. Actually, it is sensible for Walmart to bring in goods from China, made cheaper by cheap Yuan, into India.

Already Chinese goods are outselling Indian goods in India. India's annual trade deficit with China, now $20 billion, is estimated to reach $278.5 billion by 2014! Far from making India prosper­ous, Walmarts and Tescos may impoverish it.

The claim that the FDI in retail will eliminate middle­men and enrich farmers is not borne out by facts. See the record of Tesco, the larg­est retailer in the UK, in con­trast. It "exploits small farm­ers in the UK and world­wide"; "hastens their re­placement" with monocul­ture plantations; "poses seri­ous risks for developing country farmers" who have traditionally supplied to lo­cal street markets.

Further, "rather than growing their produce and taking it straight to a market, they have to deal with a chain of middlemen, supermar­ket's standards of uniformity in shape and size, risking re­jection of lot of their pro­duce". Farmer-friendly FDI in retail is contradiction in terms.

The campaign that the FDI in retail would prevent waste by efficient supply chain management ignores two vital facts. One, the national highway forms only 2 per­cent of India's road network, but handles 40 percent of the road traffic! The other roads can handle only trucks small­er than 20; and link only local markets.

Walmarts and Tescos can't build roads. The government has to. If it does, Walmart or Tesco are not needed. Two, on storage, a recent MIT pa­per says that as "demonstrat­ed by the case study in rural India, the solution to food storage needs to be a bottom up approach. Communities need to be identified where the people have access to fresh food that is currently wasted and who are willing to put in the time to store it properly. Farm cooperatives are potential candidates."

So, bottom up society, not top down Walmarts or Tes­cos, is the answer;

Finally, the debate on the FDI in Indian retail misses out the most crucial point. Not only Indian retail, the whole of Indian economy functions more on relations, less on contracts. That is why 60 percent of the farm pro­duce is socially shared. The trade in the rest are based on neighbourhood relations. When contracts replace hu­man relations, it yields not "market economy" but "mar­ket society", where even families function on con­tracts.

Margaret Thatcher once said: "There is no such thing as society. There are indi­viduals and families. That is all." But, the experience of the US/West has proved that traditional families cannot survive without functioning traditional society. As the US Bureau of Economic Re­search had foreseen in 1970s, now family functions have been effectively taken over by corporates and the State! Unbridled market first dis­mantles the relation-based society, then disturbs fami­lies, to yield a purely con­tract-based 'market society' finally.

The relation-less retail model of Walmarts and Tes­cos fits the contract-based US/West. But, of late, even in the West, debate on "mar­ket economy" vs "market society" has begun - "market society" being derided as Anglo-Saxon. QED: The real issue is not the FDI in retail, but what does the Indian Government economists and elites want in India fi­nally? A relation-friendly "market economy"? Or, a relation-less "market soci­ety"?

The Undefined Identity of UPA And the State of Atrophy – by Shankkar Aiyar

11 Dec 2011 TNIE
Shankkar Aiyar is a senior journalist who specializes in the politics of economics

The irony is unmistakable. Aadhaar: the phrase with a Hindi/Sanskrit etymology could be deployed to mean basis, foundation, support or cornerstone. It is also the iden­tity, the name of the UPA's most ambitious programme that prom­ised to empower individuals and deliver institutional reforms. This week Aadhaar found itself nirad­haar ! The Parliamentary Standing Committee of the Finance Ministry wrecked the very basis of the idea; the ministries of home and finance questioned the very foundation of the Unique Identification Author­ity of India; the political leadership virtually withdrew its support and the programme peddled as the base far reforms in social sector spending has been reduced into another cornerstone in the altar of failures. The UPA has yet again produced a spectacular display of its ability to convert a promise into a compromise.

The failure of the Government lies in the definition of the idea of identity. There is no disputing the fact that India and Indians require a national identity card - for eco­nomic, social and political rea­sons. What does the UIDAI seek to achieve? The National Identifica­tion Authority of India Bill, 2010 (which was rejected by the Yash­want Sinha-led Standing Com­mittee) states that the NIAI was being set up with the "purpose of issuing identification numbers to individuals residing in India" and to authenticate identities of indi­viduals so as to allow them access to entitlements of subsidies. In short, like the NDA before it, the Congress-led UPA too sought to skirt the critical issue of identify­ing and issuing cards to citizens.
It has escaped the intelligence of all these worthies that any doc­ument with the stamp of Ashoka's lions is enough to convert a resi­dent into a citizen. And that this has been exploited by citizens of friendly and unfriendly neigh­bours cannot be a secret to those in government. Yet, the UPA II agreed to circumvent the stamp of citizenship by deploying the semantics of resident-ship. More critical are the issues of due dili­gence and process. The UIDAI was formed in the summer of 2009. The Government very well knew that the Census would be underway in less than six months. The Government would also have been aware that the National Population Register (NPR) had plans to do exactly what was being proposed for UIDAI - that is enu­merate and authenticate all those residing in India using biometrics. So why were two institutions of the Government engaged in du­plicating work? Significantly, the Cabinet - despite the objections raised by P Chidambaram and the home ministry - cleared the idea and the budget twice - first for 10 crore registrations and again for an additional 10 crore.

Now after the UIDAI has issued over 59 million numbers, the Gov­ernment is faced with a problem. The Registrar General of India (RGI) is registering residents for the NPR. The question is what happens to the registrations done by Nandan Nilekani's UIDAI? Can the RGI which is tasked with a statutory obligation accept biometric registrations done by third-party agencies? The UIDAI wants the RGI to accept the biometric regis­trations and allow it to enumerate beyond the limit of 20 crore. The home ministry has shot down both ideas and wants the non-RGI reg­istrars to stop enrollment.

In 2011, 30 months after its birth, the UIDAI is facing an ex­istential crisis. The NIAI bill has been shot down by the parliamen­tary committee. The committee has found there was "no feasibil­ity study" and has raised issues of "duplication, data security, cast benefit analysis, the reliability of technology, and lack of coordina­tion". It has dubbed the exercise as "directionless". It is faced with a surfeit of objections and opposition within the Government. The finance ministry has raised concerns about coordination and about expenditure. The Planning Commission has raised issues about the administrative struc­ture, checks and balances and audit procedures.

Mind you, this was not just any idea! In his Budget speeches in 2009, 2010 and 2011, Finance Minister Pranab Mukherjee in­voked the UID scheme to promise good governance. In his Budget speech of 2011-12, he said: "The stage is now set for realising the potential of Aadhaar for improving service delivery, account­ability and transparency in governance of various schemes." The Prime Minister too has chanted the UID mantra. As late as in June 2011, he told editors of newspapers: "We need systemic reforms. If the UIDAI can give unique ID numbers to all residents, we would have discovered a pathway to eliminate the scope for corruption and leakages." Even Congress General Secretary Rahul Gandhi has voted in favour of the UID, stating it was the solu­tion to "diversion of funds", even asking UID chief Nandan Nilekani to speak about it at the Youth Con­gress jamboree recently.

Indeed, the first meeting of the UIDAI was held at 7 Race Course Road residence of the Prime


Minister. In attendance were the Prime Minister, the finance min­ister, the law minister, the rural development minister, the HRD Minister and Montek Singh Ahlu­walia, along with the cabinet secretary and other secretaries. And there were no murmurs about process or propriety.

How did governance came to such a passe? The debate has un­fortunately got knotted into the personalities and there is an air of schadenfreude about the poster boy being shown his place. Forget the celebrities and personalities for a moment and think about the message going out. This Govern­ment cannot implement or back even the most celebrated of ideas.

In just one week, four major initiatives - the proposal for FDI in retail, the move to hike FDI in insurance, banking reforms and UID - have been shown the door.  Spin doctors would have us believe this is the result of the rift between the party and the Gov­ernment. Fact is, both are united in their lack of identity, what they stand for. That alone can explain the state of atrophy.

The Neo-Nehru’s Communal Game Using the Caste Card – by Ravi Shankar

11 Dec 2011 TNIE

Electoral politics is the dark swamp in which perverse ideas flourish in the humidity of ambition. Of all degenerating concepts that have crawled out, none is more corroding than reservation. Originally meant as a temporary post-Independence device to right social inequity, it has turned Indian politics into a graveyard of ideals.

Bihar's Nitish Kumar is one of India's most cynically successful politicians, who electorally legitimised caste among Indian Muslims; the Asian Development Research Institute (ADRI, Patna) report records 43 castes among Muslims in Bihar. Mayawati is campaigning to polarise lower castes along religious lines by wooing Dalit Muslims with sops. Rahul Gandhi, an unfortunate combination of both, believes social engineering is about traveling into a Nehruvian past where politics had a charming naivete and innocence.

Naivete has nothing to do with Mayawati's letter in September to Manmohan, seeking reservation for Muslims. Last month, Nehru's great-grandson raced to outpace her with six per cent reservation to Muslims in government jobs and higher education. The ministries of home, law, minority affairs and social justice were all pressed into action to find a perfect loophole. They did. A Ministry of Social Justice note, in consultation with the Law Ministry, recommends a simple gazette notification following Cabinet clear­ance, than seeking Parliamentary approval to carve out reservation for Muslims from the existing OBC quota. To divide a nation among communal lines is


bad enough. To make that division among caste lines official, is worse. The Indian politician who preaches economic reform is unwilling to convert existing quo­tas to reservation based on economic status.
A World Bank-University of British Columbia study states that in India, a one per cent increase in the growth rate is associated with a ten per cent drop in the average number of riots, "In situations where the political environment makes it advantageous 'to split the electorate along ethnic lines, or in situa­tion where there are pre-existing divisions between two ethnic groups, or both: lower rates of economic growth should lead to an increase in the occurrence of ethnic violence."

There is nothing more evil and cynical than caste. There is nothing as ugly as communalism. Nothing is more warped than the secularism our politicians and pseudo televangelists preach. To subdivide the nation and take communalism to the next level is the worst danger modern India faces. Rahul Gandhi is com­bining social disparity and communalism to legiti­mise caste. The consequences are scary. Last week, newspapers reported that Prof Devendra K Gupta, VC of the Chhatrapati Shahuji Maharaj Medical Uni­versity, Lucknow, requested the Medical Council of India (MCI) to award degrees to SC/ST students who failed repeatedly in medical exams. He pleaded for a separate marks/passing system for failed students, so that they can become doctors and practice.

The world is divided into two kinds of phyla: the saint and the sinner. These have three genera: the good, the bad and the ugly. The first has three spe­cies in it: ethical, moderate and revolutionary. The second genus also has three species: evil, traitorous and idiotic. The third genus has three species as well: the saboteur, the divider and the opportunist. From a revisionist-reductionist perspective, all these gen­era and species can be reduced to one - the well-meaning simpleton. It’s time someone taught Rahul Gandhi some political zoology.

China's Objection to Dalai Lama's Visit Outrageous - by SOLI J SORABJEE

11 Dec 2011 TNIE

SOLI J SORABJEE is a former Attorney General of India


Chinese Obsession about the Dalai Lama: The Dalai Lama has repeatedly stated that he is not advocating an independent Tibet but is seeking autonomy for Tibet and protection of the religious and cultural rights of the Tibetan people. Yet the Chinese government continues to malign him as an anti-national criminal. Beijing is upset that the Dalai Lama is a spiritual leader and is revered and admired throughout the world, not only by Tibetans but by numerous persons. Beijing's antipathy to the Dalai Lama is manifested in its warnings issued to heads of foreign governments not to associate with the Dalai Lama or attend any functions where he is speaking. If one reads the various statements made by the Dalai Lama, it is clear that they have a strong spiritual or religious content. There is no element of political propa­ganda nor expression of any anti-Chinese sentiments. In this context, the Chinese government's recent advice to our gov­ernment to cancel the Buddhist Congregation assembly in Delhi was outrageous. The attendees and participants in the congregation included Buddhist spiritual and religious lead­ers from various countries. There was nothing political about the assembly. The role of the Dalai Lama was to deliver on the concluding day his valedictory statement, a text of which was circulated and which had no political tone or content at all. It was noteworthy that Dr Karan Singh, an eminent scholar, and the governor of Assam, B P Singh spoke at the function. In a presumptuous move, the Chinese consulate in Kolkata wrote to the state government, asking it to ensure that the chief minister and the governor did not attend the scheduled programme of the Dalai Lama. It is heartening that West Bengal Gover­nor M K Narayanan did attend the programme addressed by the Dalai Lama. Chief Minister Mamata Banerjee could not be present at the func­tion because her mother was ill. She conveyed goodwill to the Dalai Lama not only of the people of Kolkata but also of the people of West Bengal. In our Constitution we have the guar­antee of fundamental rights of expression and of assembly which the Chinese fail to understand. It is high time we give a clear signal to Beijing of our disapproval of their meddling in our domestic matters. Indeed, as was rightly observed by Omar Abdullah, the Chief Minister of Jammu & Kashmir, we should show more spine when dealing with the Chinese, particularly in view of the fact that Beijing calls Kashmir a disputed region and questions parts of India's sovereignty.

Sunday, 27 November 2011

The one who God loves (from Geeta) - by Swahilya Shambhavi

These verses from the chapter on Bhakti, spoken by Shri Bhagavan, remind me of the story of Abu Ben Adam. An angel appears in his dream one night and shows a long list of people who love god. Abu Ben Adam asks the angel if his name is there and the angel shakes her head to say, "No". Next day, the angel appears again with a short list of names and tells Abu Ben Adam that this is a list of people whom god loves and his name was top on the list!

Sri Krishna tells us what kinds of humans are loved most by God. The list of qualities is short, but arriving to that is a tall order. Ad­veshta Sarva Bhutanam - the list begins - the one who has no enmi­ty with any creature, the one who does not claim to be the owner of anything and the one who is free from a false ego are dear to me.

Samatwa or equality in the face of all situations is one quality, that shines through - the person who remains the same in distress and happiness, who is forgiving, always contented and exercises control over desires is dear to the Lord.

He should neither disturb others peace nor be disturbed by others, who is free from anger, hatred and fear, and not one who is in search of pleasures is beloved.

A mind that is free of worry, anxiety, which is pure by virtue of its stability and not wanting to do this or that, but just remaining in a state of devo­tion to the supreme is very dear to the Lord, says Sri Krishna.

One who is alike with the enemy and the friend, neither rejoices nor hates, nor desires nor grieves, who is unattached neither to the auspicious nor the inauspicious, but lives with devotion to the supreme self alone, is very dear to Bhagavan.

The quality of Samata is re­peated many a time in this chap­ter with Shri Krishna talking of the person who is the same with enemy and friend, in ignominy or praise, heat and cold, the si­lent one who remains balanced through praise and censure, and satisfied with whatever comes of its own accord, whose mind is not domesticated in the world of matter and who follows the path of dharma is very close indeed to where the Lord is.

When these qualities are realised, the mind enters into a state of balance. It remains calm and unruffled like the wa­ters of a crystal clear lake. The mind becomes still totally and becomes a superb medium for the reflection of the supreme consciousness that is God. This state of devotion prepares the indi­vidual for being a pure receptacle of the expres­sion of divinity.

Review and Codify Parliament Privileges

TNIE editorial

Congress MP Pravin Aron's decision to withdraw his privilege notice against the associates of Anna Hazare and promise to persuade other MPs to do the same is a welcome move. There may be many who might feel that the tone and words in some of their speeches lacked taste and restraints. They could have moved under existing laws imposing reasonable restric­tions on the citizen's right to freedom of expression and speech. Invoking breach of privilege reflects the intolerance of criticism on the part of politicians, some­thing that is abhorrent to a democratic polity that thrives on free debate and discussion among the peo­ple who elect their representatives.

This attitude betrays a lack of understanding of the genesis of parliamentary privileges and their role in a democracy. Members of the Central and State legislatures enjoy absolute privilege to say anything within their respective chambers without being liable to civil and crim­inal action under any law. The citizen's right to free speech, however, is not absolute and subject to laws that do not violate any of their fundamental rights. The legislators cannot restrain them from exercising these rights in the garb of breach of privilege and adopting the role of the prosecutor as well as the judge and the jury.

After Independence, the Constitution empowered the Central and State legislatures to codify their privileges, but allowed them to enjoy the privileges of the British House of Commons till they did so. In Great Britain, the concept of privilege evolved during the struggling days of parliamentary democracy, when its members had to be protected from threats to their independent functioning from the monarchy. But once the system was established, the British Parliament ceased to be overprotective about privileges. In India, where every institution of governance has to act within the basic framework of the Constitution, there is no justification to invoke Parliament's extraordi­nary powers to punish critics. Many advanced democra­cies have already codified the privileges of parliament and India should move in this direction.

Crisis of Trust at SAARC - by ANURADHA M CHENOY

Anuradha M Chenoy is professor at the School of International Studies, Jawaharlal Nehru University.

TNIE- 11 Nov 2011

Another SAARC conference with the re­gion's highest executives and yet there are few expectations. True, Afghanistan is a new member, Pakistan has recent­ly given India Most Favoured Nation status, Ne­pal's political parties have agreed on a peace pro­cess and a constitution and India is surging ahead as a major economic power. But why are these positive developments not impacting South Asian regionalism at a time when regional formations are major players in the international system?

A major issue is the trust deficit between South Asian countries. This is based on competitive na­tionalism which originated during state formation in post-colonial South Asia and continues as a tool in domestic and regional politics, and nation building approaches of the South Asian elites.

Top-most in this competitive nationalism and distrust is the unresolved conflict and strategic competition between India and Pakistan. India is able to use its economic, cultural and political power to leverage its influence in the neighbour­hood, while Pakistan uses primarily its influence over illegal non-state actors and military muscle. Even though the SAARC charter prohibits any bilateral issue from discussion, this animosity stalls SAARC from moving ahead on key eco­nomic and political decisions.

Another issue is the insecurity of smaller states combined with the fear of dominance. India's his­tory of influencing crucial developments in Ban­gladesh (during its formation); Nepal at every juncture of political change; Maldives during se­vere political unrest; Sri Lanka during its ethnic civil war, makes these states very conscious about their sovereignty and dependence dialectic and they use every opportunity to assert themselves.

The states of South Asia do not have a common strategic perspective that promotes collective strategic decisions. For example, Pakistan has been closely linked with US military alliances and has acted in concert with them especially since the 1970s when India was looking for an independent role and leadership of the Third World. China's territorial dispute and competi­tion with India, their close linkages with Pakistan and their attempts to influence Nepal and Sri Lanka at different periods have led to mutual threat perceptions between these countries. Nepal and Bangladesh have tried to balance India with other neighbours. There is then no common search for security within the region which is a necessary input into any regional body.

The domestic politics of South Asian countries, especially their sub-national ethnic conflicts have spilled into each other, creating distrust of their own minority communities as well as fear that the other country will use their minorities to cause dissension and question sovereignty. The issue of the Tamils in Sri Lanka is a prime example.
Without political linkages economic coopera­tion has limitations. The SAARC took the impor­tant step of creating the South Asia Free Trade Agreement. India has a free trade agreement with Sri Lanka; a trade and transit agreement with Nepal and MFN for Pakistan, which has been reciprocated after years of stalling. Yet trade between SAFTA countries is just about 6 per cent of their total international trade.

Other problems like unresolved territorial de­marcations on land and sea; the issue of illegal migrations; the unofficial terror linkages; the harbouring of criminals/terrorists of one state by another; allowing camps of insurgent groups and using these as bargaining chips; the treat­ment to each other's citizens, like the fisher folk who mistakenly cross maritime boundaries and are treated as prisoners of war and such like, all add up to the trust deficit and stall the progress of the SAARC as an effective body.

At the same time, the international trend is to­wards strengthening regionalism. Regional bodies like the European Union, ABEAN, African Union, to name a few have progressed in many domains. The EU and ABEAN are visa free zones; they have common security understanding. For example, a hundred years of misunderstanding between France and Germany was resolved by the EU part­nership. Similarly antagonisms between Malaysia and Singapore, and Malaysia and Indonesia were easier to resolve through the ASEAN. All these regions have free trade agreements. Bilateral prob­lems can become collective ones and border issues disappear. The Shanghai Cooperation Organisa­tion is bringing collective security to Russia, Chi­na and the Central Asian states. They carne later than the SAARC but have moved far ahead.

Bilateral relations between many of the SAARC countries have improved and are critical for a better SAARC. For example recently, India and Bangladesh have addressed major border prob­lems and are working towards a framework agreement on water sharing with which the Teesta River that crosses between India, Bangla­desh, Bhutan and Nepal can be turned from a river of discord to common water security. It has the potential to provide sharing of power and water resources and connectivity.

There is much that the SAARC shares. It has the world's most destitute people and most states that are very low on human development and gender indices despite marginal improvements. It faces routine and massive disasters from famines, floods, earthquakes. The people of this region have shared a long common history and faced much common oppression. Its problems at times of mul­tiple crises of climate, food and energy insecurity spill over and need common solutions.

The recent Indian declaration of supporting the SAARC in an "asymmetrical and non-recip­rocal" manner is an excellent initiative if put into practice. This would mean that India could grant concessions to SAARC countries even if they did not reciprocate and thus break the 'chicken or egg' situation of diplomatic restrictions. Giving more visas and facilitating exchange is one initia­tive India can take.

At a time, when countries like the US and the EU are looking to India for mutual advantages to get out of a global recession, it would be un­fortunate, if the region did not share more of their common economic and political progress and was bound instead into rivalries that under­mine each other. It was to get over these that the SAARC was created. It is up to the collective vi­sion of its leaders to make it relevant.

How to beat misery - by Swami Sukhabodhanandi

 is the Founder Chairman Prasanna Trust.

Be aware of how one's mind works, know the reasons that cause misery and practice meditation. It will help you keep misery at bay...

Misery is called the poison of life. A fool and his money are soon parted but a fool and his misery co-exist. With­out taking steps, it won't be possible to beat your enemy. Similarly, without taking steps, you can't beat your real enemy, which is misery.

Why do youth in partic­ular and people in gen­eral live in misery?
There is a difference be­tween fact and fiction, and between fact and the in­terpretation of a fact. One has to see this clearly. Most of the time, other than the physical pain, the interpre­tation of pain kills and tor­tures people.

For example, more than the heart attack, it is the thought of.getting a heart attack that people suffer from. To be sensitive to how thought and its world of interpretations create misery is the first step in handling sorrow.

A person can be killed by the bite of a non-poisonous snake. But has the snake killed him or his thought? Learn to keep this clarity that thought and its world of interpretations create misery.

A youth should be partic­ularly aware of this because awareness or unawareness -becomes our inner disci­pline.

We are nothing but our discipline. If a person is trained to be undisciplined, then that becomes his way of living. Right from his young days, if a person is made to understand that mind can be lost to interpretations, then that aware­ness will prove to be a great power for him.

Are there any other reasons for misery to exist?
Yes, there are. We need to be watchful of our greed and expectations. A greedy mind will always say that the present is incomplete and the future is complete. One fails to realise that one has to live in the present and not in the future. But more often, one trusts the future and doubts the pres­ent. Hence, misery is our piece of destructive art.

Man suffers from sorrow with the hope of happiness in the form of pleasure. His misery is a shadow of an unintelligent mind. To be sorrowful is an unnatural state and to be happy is a natural state.

Hence, in deep sleep, we are effortlessly happy. Therefore, if one is not will­ing to renounce this unconscious behaviour, he or she will build a prison of sorrows. We live in dreams, not in reality. Expectations are not a problem. However, being a victim of expectations and not a master of it is the real problem. Life needs a bal­ance or else medicine will turn into poison.

What has meditation to do with misery?
Meditation brings a wakeful energy in our life. To be awake to the reality of how one's mind and uncon­scious behaviour operate is a part of meditative living.

Be aware of the fact that misery exists in your mind. Hence, if you transform your mind, the misery is transformed too.


Once a Sadhu re­nowned for his occult powers was asked by a passerby if he could kill an elephant standing nearby. The Sadhu nodded ar­rogantly, took a pinch of bhasma, chanted a man­tra and threw the ash at the elephant which keeled over dead. "Now can you bring the elephant back to life?" asked the man. The sadhu chanted another mantra and threw some more ash at the dead ele­phant which immediately came back to life.

The man, who was the Lord in disguise, said: "What you have exhibited is quite impressive. But what did it do for you? Do you feel uplifted by it? Has it enabled you to rea­lise God?"
As the sadhu stood dumbstruck by the ques­tion, the man vanished.

A little bit of freedom - by Suvyakta Narasimha dasa

As sensible human beings we have to understand that with independence comes the need to act responsibly
It is often said, "Not a blade of grass moves without the sanction of the supreme lord," and that is a fact. Nothing hap­pens without the sanction of god. There is English saying, 'Man proposes and god disposes'. This is abso­lutely correct because we can't fulfill any of our desires without the sanction of lord Krishna, the supreme per­sonality of god.

Sometimes, when we meet Christians and ex­plain this to them, they find it difficult to believe. They question that there are nu­merous sinful people whose desires are evil. There are child molesters, murderers, rapists and other such crim­inals. And so they ask, "Is god sanctioning the desires of all these sinful people? Is god enabling these people to perform these heinous acts?" The answer is yes, god is sanctioning these people's desires and he is enabling them to do these sinful acts of crime because without the sanction of god they couldn't perform such activities.

Well, one might find it difficult to understand this that "How is it that god, who is all good, is allowing these people to perform sin­ful activities?" The answer is that god doesn't want them to perform sinful activities; it's just that he has given us a little independence. He doesn't interfere in our little independence. If we have a desire to perform sinful activities, although god doesn't want us to, he also doesn't interfere in our independence. So, he lets us fulfill our sinful desires but he does it in such a way that ultimately we become frus­trated and surrender unto him to regain our natural position as his servant.

We can't get away with anything because as human beings we have some inde­pendence to act as we de­sire, therefore, we are also responsible for our own actions. This responsibility means if we perform sinful activities we have to suf­fer the consequences of it later. These reactions could take the form of disease, le­gal implications, suffering from natural disasters or loss of our money, beauty or prestigious position and much more.

The ultimate suffering is at the time of death when we are sent to one of the many hellish planets for a long period of time. The lord of death, Yamaraja, comes for sinful people and forcibly drags them to hell where they have to endure unimaginable pain to atone for their sins. After having suffered for a long time, they are allowed to take birth on this earth again to "have another go at it."

The desires we have for pleasure in this world will never satisfy us. We can try anything in this world, but we will never be satisfied. If one is thoughtful, after numerous births, he will think, "This material world is not so good because no matter what I do I am not happy." Then he will think; "There must be something else, there must be another place." He can then come to the spiritual platform.