Saturday, December 22, 2007
A Contract of Dishonour: A Critique of POSCO MoU
From Combat Law
Bargaining Lives
POSCO brings Orissa government to its knees as an MOU signed between the two is not only going to rob thousands of villagers of their tenuous preserves in far off hamlets but also ties state's hands from doing anything except to support, assist, protect and pave the way for investors' interests in all eventuality.
Madhumita Dutta, Saurabh Bhattacharjee and Usha Ramanathan
None other than Prime Minister Manmohan Singh announced in June this year that the work at the POSCO project site in Jagatsinghpur district of Orissa will begin on April 1, 2008. However, he failed to acknowledge the fact that there is intense opposition from people who stand to get affected by the project. Naveen Patnaik-led Orissa government has assured the company about the transfer of 4004 acres of land by April for the integrated steel plant. On its part, the company is arm-twisting the state and central government to expedite the process or else shift the project somewhere else. Given the mood of the people of Nuagaon, Dinkia, Kujang and other affected villages, none of the above propositions will be easy unless the state decides to use armed force. In the past, the Orissa government has not hesitated to unleash police and paramilitary forces against the people of Kashipur, Lanjhigarh, Kalinganagar, who had opposed similar industrial or mining projects.
The state in its bid to attract private capital has abdicated its role as a regulator. In the face of stiff popular resistance, it has resorted to every means to subvert legal and constitutional safeguards. POSCO is no exception to this. A close scrutiny of the POSCO MoU reveals state's nefarious intentions.
Insidious Contract
On 22 June 2005, a memorandum of understanding (MoU) was drawn up between the Governor of Orissa (representing the state) and POSCO, a South Korean steel major, for the establishment of a 12 million tonne per annum integrated steel plant at Paradip in Jagatsinghpur district of Orissa. The total investment in the project is estimated to be US $12 billion after completion, one of the largest foreign direct investments in the country.MoU also includes other components-mining facilities, road, rail and port infrastructure for the project, integrated township, water supply, and captive power plant.
State as a realtor
The Orissa government has promised the company expeditious transfer of all non-forest land and acquisition of private land. As per the MoU, the Company will need more than 6,000 acres of land in the following manner:
20-25 acres in Bhubaneswar for their registered office and headquarters
4,000 acres for the steel plant and associated facilities
2,000 acres for township development
Additional pockets for transport and water projects etc.
The Orissa government has committed to acquire and transfer such large chunks of land free of encumbrances through the Orissa Industrial Infrastructure Development Corporation. The cost for the land will be determined under the Land Acquisition Act for private lands and for government land on the basis of the prevailing Industrial Policy Resolution on concessional rates. A question that deserves to be asked is when the land is to be acquired for a private company from private land owners, why must the state act as an agent and acquire land, more so under an archaic and colonial Land Acquisition Act (LAA). The LAA should not be used to dispossess people, but be a means of protecting people in their negotiations with industry. The state should not abdicate its role in protecting against the exploitation of the people from whom land is being taken over. The state should ensure that the people from whom land is being acquired have full information so that their agreement to sell is informed. They are not led into making decisions that would be to their detriment.
As has often been the cases, the state identifies the land for location of industry. Then it lets the corporations negotiate or coerce people into selling their land. This is done to show that the state is leaving things to market. As we can see, this is not about leaving it to the terms of the market. In the matter of selling of land, industry should not be allowed to prey on the weaknesses whether arising out of lack of information or whatsoever other reasons from the point of view of the people from whom land is intended to be taken away.One critical issue that the MOU has not factored in is the impact of such large scale diversion of land against the interests of petty land holders, labourers and landless farmhands. The last of them would be completely dispossessed of their livelihood and would not be entitled to any compensation. The Land Acquisition Act does not include landless agricultural labourers within its definition of 'interested person'. The Orissa Resettlement and Rehabilitation Policy 2006 also fails to provide any protection to landless peasants and labourers. While the policy speaks of the need to 'address the specific needs of the women, vulnerable groups and indigenous communities', its provisions are vague and do not spell out the entitlement of the landless labourers. In Jagatsinghpur district, where POSCO steel plant is proposed to come up, almost 300 families are yet to be allotted legal titles. In the absence of pattas or titles, the villagers have virtually no bargaining power and will get displaced without adequate or any compensation. Rehabilitation in such cases is not even considered by the government.
R & R packages
The MOU notes that Resettlement and Rehabilitation (R&R) for POSCO oustees will be in accordance with the Orissa Resettlement and Rehabilitation Policy 2006, which was drafted and approved by the cabinet in April 2006, in the aftermath of the Kalinganagar agitation.The provisions of this R & R Policy fall short of acceptable standards and are nothing more than an eyewash. It fails to ensure any employment guarantee to the displaced; it carries just a stipulation that the industries give job "preference" at least to one nominated member of each affected family. Further, it remains silent about the government's role in cases where people don't want to be displaced by the industrial projects. More critically, while mouthing an array of platitudes, it is non-committal on ensuring land for land rehabilitation for the displaced families. This makes the entire R & R policy mere eyewash as no amount of cash can compensate for the loss of source of permanent livelihood. Cash compensation by itself does not enable generational farmers with lack of alternate technical skills to find other sources of livelihood. This aspect was recognised even by the Supreme Court before it sadly remained short of implementing its own verdict in the Narmada Bachao Andolan case. R & R Policy ignores the fact that cash compensation amounts to neither rehabilitation nor resettlement. It is not and cannot ever be an adequate replacement for a source of livelihood coming down and secured through generations.
One of the most fundamental limitations of the R & R Policy is that it does not speak in terms of commitment from the state or entitlements for the affected persons. It just mouths homilies on what the state government should do but does not set out specific commitments. Further, it places no onus on the state government to consult the displaced families while designing and implementing the rehabilitation and resettlement plan.
Permission for mining
The MoU envisages allotment of coal mine and iron mine blocks for captive mining for the project, either directly or through a PSU. In this regard, the Orissa government has promised to recommend and 'to use its best efforts' to ensure that the central government grants its approval for prospecting licenses and captive mining leases. It is to be noted that the conditions governing the grant of such licenses are provided by the Mines and Minerals (Development and Regulation Act, 1957) and the Mines Act, 1952, together with the rules and regulations framed under them, which constitute the basic laws governing the mining sector in India. Further several regulatory powers have been vested in the state government. The state government has to exercise those regulatory powers independently and in accordance with statutory mandate and administrative law principles guiding exercise of discretion. The state government promises the company or POSCO its best efforts to ensure grant of all relevant licenses and lease, there is a patent conflict of interest between the responsibilities of the state government under the mining laws and its obligations under the instant MoU. The independence of the state government to act as a neutral regulator, according to the statutory principles and compelling public interest, is severely compromised by its assurances under the MoU.
State govt's role in litigationClause 6 (5) of the MoU states that the government shall recommend such areas as are free from litigation and encumbrances and that in case of any litigation 'at any stage', the government shall diligently defend its recommendation. Such a clause should ordinarily be unexceptionable. However, the scope of diligent defence should only extend to past encumbrances and litigation. But the instant clause provides that the state government will defend at 'any stage', its recommendations. This phrase, 'at any stage' takes this clause beyond the ordinary realm. This raises the question as to should the state government obligate itself to defend its recommendations in a litigation at a subsequent or distant time when the grounds for challenge to such recommendations may include any dereliction or misdeed of the company.
Contract overrides statutes
The MoU contains a series of promises from the state government in the nature of assuring its best efforts in facilitating all necessary consents and clearances for all the components of the proposed steel project and all ancillary ventures outlined in the MoU. For instance, it promises assisting the company in securing clearance under the Forest Conservation Act and Environment Protection Act, clearance for creation of water bodies and pipelines, using its best efforts to enable the company secure no objection certificate through the state Pollution Control Board, facilitating grant of Coastal Regulation Zone (CRZ) clearance.These tall promises by the state completely displaces the statutory mandate vested in the state government and bodies like the State Pollution Control Board by the whole gamut of environmental statutes and regulations. Indian environmental laws, as enunciated by the Forest Conservation Act, Water Act, Air Act and the numerous rules framed under the Environment Protection Act, including the Environment Impact Assessment (EIA) Notification and the CRZ Notification vest a tremendous amount of regulatory powers on the state government. The MoU, by committing the state government to enabling grant of consent to the company, prejudices and predetermines the regulatory functions of the government. Thus, the MoU interferes with future exercise of statutory powers and, therefore, displaces the statutory mandates vested in the government.
The undertakings made by the state government prejudice the issues of grant of necessary license, consent orders and permits to the company. These decisions will be made on the basis of the contractual mandate of the MoU.
This contravenes the widely accepted rule of administrative law which states that a public authority cannot, by contract, restrict the future exercise of its statutory powers. This was acknowledged by the Supreme Court in Indian Aluminum Company v. Kerala State Electricity Board where the Court also referred to several English precedents.
Unlawful object The undertakings made by the state government prejudice the issues of grant of necessary license, consent orders and permits to the company. These decisions will be made on the basis of the contractual mandate of the MoU. In fact, the grant of such permits has been rendered a fait accompli by this MoU. As such, the MoU stands in contravention to the established principles of administrative law. More problematically, there is a real danger of the state government finding itself bound to the promises made in the MoU, particularly if the company acts upon the promises made therein. As such, the state government may becompletely bound by the promises held out in the MoU and the contractual obligations will completely displace the statutory mandate vested in it. It must be noted in this context that one of the general principles of contract as postulated in Section 23 of the Indian Contract Act says that the consideration or object of an agreement is unlawful if it is forbidden by law; or is of such nature that, if permitted it would defeat the provisions of any law. Every agreement of which the object or consideration is unlawful is void. Admittedly, a MoU is not strictly speaking a contract and nor are the promises made by the state governments in the nature consideration in true sense of the term. At the same time, an MoU is indeed an agreement that would shape the contours of the final contracts on each specific issue discussed in the MoU and consequently, the fundamental principles of contractual laws must still very much be applicable to it. Therefore, it may be argued that the current MoU contains clauses that contravene the legal principles guiding the exercise of administrative discretion and, thus, the objects of this agreement are unlawful. Consequently, such an agreement can be said to be a void agreement in so far as they fetter and displace administrative discretion vested by statutes by creating a conflict of interest.
Judge in its own cause
These clauses also create a scenario where the state government, being an interested party due to its part in the MoU, judges its own cause while granting necessary permits under the different environmental laws. This is a complete inversion of the fundamental principle of natural justice which affirms that no one shall be a judge in his or her own cause. It is an unexceptionable rule of law that justice must not only be done but also must be seen to have done. The MoU and the promises of the State Government made therein completely shatter the objectivity of the state government and create a very strong apprehension of bias.
Clash of interest MoU also avers that the state government shall recommend to the central government setting up of SEZ as required by POSCO. Ideologically, setting up of SEZ and its appurtenant privileging of corporate interests over basic rights of the people, creation of anti-people and anti-labour enclaves that are bereft of any form of democratic control is unconscionable and must be resisted at all costs. But the specific clause in this MoU even falls foul of the limited norms of the SEZ Act. As already argued earlier, it is well established in law that the state government must apply its mind objectively and with reference to the objectives and provisions of the Act and make its recommendations. However, this MoU clearly fetters the state government's power to make independent recommendations and substitutes its discretion with contractual obligation towards POSCO and thus deprives the provision of state government's approval of itsentire substance and meaning.
Special treatmentThe MoU states that Orissa government will assist POSCO in establishing suitable contacts and interfaces with the Indian government for POSCO's requirement for 400 MT of iron for its steel plants in Korea. This being a market transaction, there is no reason why the state government must interfere in it by providing special assistance to POSCO when the company can purchase its requirements from the open market.
Militarisation of the region
Clause 17 of the MoU states that the state government shall be responsible for the security of the project and take all steps including setting up of new police stations. This insidious provision highlights the state-corporate nexus that has acquired a lethal shape in this neo-liberal era. The state is increasingly becoming just a sentinel guarding the penetration of the mineral rich regions of the country by the global capital and is abdicating its functions of honouring and protecting the fundamental, political and socio-economic rights of the indigenous people and other citizens. This is an acknowledgement of the role of the state in repressing popular movements and resistance against mega projects as being witnessed in Kashipur and in Kalinganagar.
Writers are members of Delhi Solidarity Group
Bargaining Lives
POSCO brings Orissa government to its knees as an MOU signed between the two is not only going to rob thousands of villagers of their tenuous preserves in far off hamlets but also ties state's hands from doing anything except to support, assist, protect and pave the way for investors' interests in all eventuality.
Madhumita Dutta, Saurabh Bhattacharjee and Usha Ramanathan
None other than Prime Minister Manmohan Singh announced in June this year that the work at the POSCO project site in Jagatsinghpur district of Orissa will begin on April 1, 2008. However, he failed to acknowledge the fact that there is intense opposition from people who stand to get affected by the project. Naveen Patnaik-led Orissa government has assured the company about the transfer of 4004 acres of land by April for the integrated steel plant. On its part, the company is arm-twisting the state and central government to expedite the process or else shift the project somewhere else. Given the mood of the people of Nuagaon, Dinkia, Kujang and other affected villages, none of the above propositions will be easy unless the state decides to use armed force. In the past, the Orissa government has not hesitated to unleash police and paramilitary forces against the people of Kashipur, Lanjhigarh, Kalinganagar, who had opposed similar industrial or mining projects.
The state in its bid to attract private capital has abdicated its role as a regulator. In the face of stiff popular resistance, it has resorted to every means to subvert legal and constitutional safeguards. POSCO is no exception to this. A close scrutiny of the POSCO MoU reveals state's nefarious intentions.
Insidious Contract
On 22 June 2005, a memorandum of understanding (MoU) was drawn up between the Governor of Orissa (representing the state) and POSCO, a South Korean steel major, for the establishment of a 12 million tonne per annum integrated steel plant at Paradip in Jagatsinghpur district of Orissa. The total investment in the project is estimated to be US $12 billion after completion, one of the largest foreign direct investments in the country.MoU also includes other components-mining facilities, road, rail and port infrastructure for the project, integrated township, water supply, and captive power plant.
State as a realtor
The Orissa government has promised the company expeditious transfer of all non-forest land and acquisition of private land. As per the MoU, the Company will need more than 6,000 acres of land in the following manner:
20-25 acres in Bhubaneswar for their registered office and headquarters
4,000 acres for the steel plant and associated facilities
2,000 acres for township development
Additional pockets for transport and water projects etc.
The Orissa government has committed to acquire and transfer such large chunks of land free of encumbrances through the Orissa Industrial Infrastructure Development Corporation. The cost for the land will be determined under the Land Acquisition Act for private lands and for government land on the basis of the prevailing Industrial Policy Resolution on concessional rates. A question that deserves to be asked is when the land is to be acquired for a private company from private land owners, why must the state act as an agent and acquire land, more so under an archaic and colonial Land Acquisition Act (LAA). The LAA should not be used to dispossess people, but be a means of protecting people in their negotiations with industry. The state should not abdicate its role in protecting against the exploitation of the people from whom land is being taken over. The state should ensure that the people from whom land is being acquired have full information so that their agreement to sell is informed. They are not led into making decisions that would be to their detriment.
As has often been the cases, the state identifies the land for location of industry. Then it lets the corporations negotiate or coerce people into selling their land. This is done to show that the state is leaving things to market. As we can see, this is not about leaving it to the terms of the market. In the matter of selling of land, industry should not be allowed to prey on the weaknesses whether arising out of lack of information or whatsoever other reasons from the point of view of the people from whom land is intended to be taken away.One critical issue that the MOU has not factored in is the impact of such large scale diversion of land against the interests of petty land holders, labourers and landless farmhands. The last of them would be completely dispossessed of their livelihood and would not be entitled to any compensation. The Land Acquisition Act does not include landless agricultural labourers within its definition of 'interested person'. The Orissa Resettlement and Rehabilitation Policy 2006 also fails to provide any protection to landless peasants and labourers. While the policy speaks of the need to 'address the specific needs of the women, vulnerable groups and indigenous communities', its provisions are vague and do not spell out the entitlement of the landless labourers. In Jagatsinghpur district, where POSCO steel plant is proposed to come up, almost 300 families are yet to be allotted legal titles. In the absence of pattas or titles, the villagers have virtually no bargaining power and will get displaced without adequate or any compensation. Rehabilitation in such cases is not even considered by the government.
R & R packages
The MOU notes that Resettlement and Rehabilitation (R&R) for POSCO oustees will be in accordance with the Orissa Resettlement and Rehabilitation Policy 2006, which was drafted and approved by the cabinet in April 2006, in the aftermath of the Kalinganagar agitation.The provisions of this R & R Policy fall short of acceptable standards and are nothing more than an eyewash. It fails to ensure any employment guarantee to the displaced; it carries just a stipulation that the industries give job "preference" at least to one nominated member of each affected family. Further, it remains silent about the government's role in cases where people don't want to be displaced by the industrial projects. More critically, while mouthing an array of platitudes, it is non-committal on ensuring land for land rehabilitation for the displaced families. This makes the entire R & R policy mere eyewash as no amount of cash can compensate for the loss of source of permanent livelihood. Cash compensation by itself does not enable generational farmers with lack of alternate technical skills to find other sources of livelihood. This aspect was recognised even by the Supreme Court before it sadly remained short of implementing its own verdict in the Narmada Bachao Andolan case. R & R Policy ignores the fact that cash compensation amounts to neither rehabilitation nor resettlement. It is not and cannot ever be an adequate replacement for a source of livelihood coming down and secured through generations.
One of the most fundamental limitations of the R & R Policy is that it does not speak in terms of commitment from the state or entitlements for the affected persons. It just mouths homilies on what the state government should do but does not set out specific commitments. Further, it places no onus on the state government to consult the displaced families while designing and implementing the rehabilitation and resettlement plan.
Permission for mining
The MoU envisages allotment of coal mine and iron mine blocks for captive mining for the project, either directly or through a PSU. In this regard, the Orissa government has promised to recommend and 'to use its best efforts' to ensure that the central government grants its approval for prospecting licenses and captive mining leases. It is to be noted that the conditions governing the grant of such licenses are provided by the Mines and Minerals (Development and Regulation Act, 1957) and the Mines Act, 1952, together with the rules and regulations framed under them, which constitute the basic laws governing the mining sector in India. Further several regulatory powers have been vested in the state government. The state government has to exercise those regulatory powers independently and in accordance with statutory mandate and administrative law principles guiding exercise of discretion. The state government promises the company or POSCO its best efforts to ensure grant of all relevant licenses and lease, there is a patent conflict of interest between the responsibilities of the state government under the mining laws and its obligations under the instant MoU. The independence of the state government to act as a neutral regulator, according to the statutory principles and compelling public interest, is severely compromised by its assurances under the MoU.
State govt's role in litigationClause 6 (5) of the MoU states that the government shall recommend such areas as are free from litigation and encumbrances and that in case of any litigation 'at any stage', the government shall diligently defend its recommendation. Such a clause should ordinarily be unexceptionable. However, the scope of diligent defence should only extend to past encumbrances and litigation. But the instant clause provides that the state government will defend at 'any stage', its recommendations. This phrase, 'at any stage' takes this clause beyond the ordinary realm. This raises the question as to should the state government obligate itself to defend its recommendations in a litigation at a subsequent or distant time when the grounds for challenge to such recommendations may include any dereliction or misdeed of the company.
Contract overrides statutes
The MoU contains a series of promises from the state government in the nature of assuring its best efforts in facilitating all necessary consents and clearances for all the components of the proposed steel project and all ancillary ventures outlined in the MoU. For instance, it promises assisting the company in securing clearance under the Forest Conservation Act and Environment Protection Act, clearance for creation of water bodies and pipelines, using its best efforts to enable the company secure no objection certificate through the state Pollution Control Board, facilitating grant of Coastal Regulation Zone (CRZ) clearance.These tall promises by the state completely displaces the statutory mandate vested in the state government and bodies like the State Pollution Control Board by the whole gamut of environmental statutes and regulations. Indian environmental laws, as enunciated by the Forest Conservation Act, Water Act, Air Act and the numerous rules framed under the Environment Protection Act, including the Environment Impact Assessment (EIA) Notification and the CRZ Notification vest a tremendous amount of regulatory powers on the state government. The MoU, by committing the state government to enabling grant of consent to the company, prejudices and predetermines the regulatory functions of the government. Thus, the MoU interferes with future exercise of statutory powers and, therefore, displaces the statutory mandates vested in the government.
The undertakings made by the state government prejudice the issues of grant of necessary license, consent orders and permits to the company. These decisions will be made on the basis of the contractual mandate of the MoU.
This contravenes the widely accepted rule of administrative law which states that a public authority cannot, by contract, restrict the future exercise of its statutory powers. This was acknowledged by the Supreme Court in Indian Aluminum Company v. Kerala State Electricity Board where the Court also referred to several English precedents.
Unlawful object The undertakings made by the state government prejudice the issues of grant of necessary license, consent orders and permits to the company. These decisions will be made on the basis of the contractual mandate of the MoU. In fact, the grant of such permits has been rendered a fait accompli by this MoU. As such, the MoU stands in contravention to the established principles of administrative law. More problematically, there is a real danger of the state government finding itself bound to the promises made in the MoU, particularly if the company acts upon the promises made therein. As such, the state government may becompletely bound by the promises held out in the MoU and the contractual obligations will completely displace the statutory mandate vested in it. It must be noted in this context that one of the general principles of contract as postulated in Section 23 of the Indian Contract Act says that the consideration or object of an agreement is unlawful if it is forbidden by law; or is of such nature that, if permitted it would defeat the provisions of any law. Every agreement of which the object or consideration is unlawful is void. Admittedly, a MoU is not strictly speaking a contract and nor are the promises made by the state governments in the nature consideration in true sense of the term. At the same time, an MoU is indeed an agreement that would shape the contours of the final contracts on each specific issue discussed in the MoU and consequently, the fundamental principles of contractual laws must still very much be applicable to it. Therefore, it may be argued that the current MoU contains clauses that contravene the legal principles guiding the exercise of administrative discretion and, thus, the objects of this agreement are unlawful. Consequently, such an agreement can be said to be a void agreement in so far as they fetter and displace administrative discretion vested by statutes by creating a conflict of interest.
Judge in its own cause
These clauses also create a scenario where the state government, being an interested party due to its part in the MoU, judges its own cause while granting necessary permits under the different environmental laws. This is a complete inversion of the fundamental principle of natural justice which affirms that no one shall be a judge in his or her own cause. It is an unexceptionable rule of law that justice must not only be done but also must be seen to have done. The MoU and the promises of the State Government made therein completely shatter the objectivity of the state government and create a very strong apprehension of bias.
Clash of interest MoU also avers that the state government shall recommend to the central government setting up of SEZ as required by POSCO. Ideologically, setting up of SEZ and its appurtenant privileging of corporate interests over basic rights of the people, creation of anti-people and anti-labour enclaves that are bereft of any form of democratic control is unconscionable and must be resisted at all costs. But the specific clause in this MoU even falls foul of the limited norms of the SEZ Act. As already argued earlier, it is well established in law that the state government must apply its mind objectively and with reference to the objectives and provisions of the Act and make its recommendations. However, this MoU clearly fetters the state government's power to make independent recommendations and substitutes its discretion with contractual obligation towards POSCO and thus deprives the provision of state government's approval of itsentire substance and meaning.
Special treatmentThe MoU states that Orissa government will assist POSCO in establishing suitable contacts and interfaces with the Indian government for POSCO's requirement for 400 MT of iron for its steel plants in Korea. This being a market transaction, there is no reason why the state government must interfere in it by providing special assistance to POSCO when the company can purchase its requirements from the open market.
Militarisation of the region
Clause 17 of the MoU states that the state government shall be responsible for the security of the project and take all steps including setting up of new police stations. This insidious provision highlights the state-corporate nexus that has acquired a lethal shape in this neo-liberal era. The state is increasingly becoming just a sentinel guarding the penetration of the mineral rich regions of the country by the global capital and is abdicating its functions of honouring and protecting the fundamental, political and socio-economic rights of the indigenous people and other citizens. This is an acknowledgement of the role of the state in repressing popular movements and resistance against mega projects as being witnessed in Kashipur and in Kalinganagar.
Writers are members of Delhi Solidarity Group
Thursday, August 9, 2007
Thousands Protest Against Bharti-Walmart Joint Venture, Call on Corporations to 'Quit Retail'
On the heels of the announcement of the Bharti-Walmart joint venture, hundreds of thousands of traders, hawkers, farmers and workers protested across India. Protesters also included a group of American students who demanded that Wal-Mart not be allowed into India. Mass-based organizations called on the Prime Minister and Sonia Gandhi to immediately stop the Bharti-Walmart Joint Venture and not allow Wal-Mart’s backdoor entry into India. There was also a strong united call on all corporations—both foreign and domestic—to "Quit Retail". The protests were timed to commemorate the start of the "Quit India" movement, which started on August 9, 1942, with mass-based sections of society drawing parallels to the East India Company and companies like Wal-Mart, Bharti and Reliance.
Agitations took place in the metro cities of Delhi, Mumbai, Bangalore and Kolkata along with other major cities including, Kalicut, Bhopal, Jaipur, Ranchi, Balia, Meerath, Sonipat, Nagpur, Nasik, Pune and Indore.
In Delhi, thousands of traders, hawkers, farmers and workers protested in Chandni Chowk, a historical market, and burned effigies of Wal-Mart, Bharti and Reliance. Dharmendra Kumar, Director of India FDI Watch and national coordinator of the Vyapaar Aur Rozgaar Bachao Andolan said, "Both Sonia Gandhi and Manmohan Singh have acknowledged the dangers of corporations entering into the retail sector. The Govt. has commissioned a report looking at the impact of the entire supply chain on livelihoods after Sonia Gandhi had written a letter of caution. Sonia Gandhi had also publicly refused to meet with Michael Duke, Wal-Mart Vice-Chairman during his visit in February after public demonstrations were held due to his arrival. However, both Sonia Gandhi and the PMO have remained silent on the Bharti-Wal-Mart deal and though they have publicly cautioned against corporations and commissioned a study, they have taken no subsequent actions. Mr. Kumar demanded that the Wal-Mart Bharti joint venture should be immediately revoked and all corporations should be stopped until thorough study has been conducted by an independent special task force comprising stakeholders."
Praveen Khandelwal, General Secretary, Confederation of All India Traders (CAIT) said "The livelihoods of retail traders are at stake. If big retail giants like Wal-Mart and Reliance come into the country, small traders would be finished." A mass campaign would be launched to strike back and make corporations realise that we will not let them ruin our livelihoods, he said.
Vandana Shiva, Director, Navdanya said "India is a land of retail democracy- hundreds of thousands of weekly haats and bazaars are located across the length and breadth of our country by people’s own self-organizational capacities. In a country with large numbers of people, and high levels of poverty, the existing model of retail democracy is the most appropriate in terms of economic viability and ecological sustainability.".
Mr. Bhati of Bhartiya Mazdoor Sangh, Delhi, Harbhajan Singh Siddhu, National Secretary, Hind Mazdoor Sabha, Sunil Kansal, Secretary, Rashtriya Vyapar Mandal, Hakim Singh Rawat, General Secretary, Delhi Hawkers Welfare Association, Banwari Lal Sharma, President, Aazadi Bachaon Aandolan, R K Sharma, Secreatry, UTUC-Lenin Sarani and Venkatesh of Lok Raj Sangathan also addressed the protesters in Delhi.
In Mumbai, thousands of retailers, hawkers, workers and cooperatives participated in a one day trade bandh and a mass public event organized by the Vyapaar Rozgaar Suraksha Kriti Samiti, a joint action committee of trade associations, hawkers groups, trade unions and others. Leaders of Federation of Associations of Maharastra (FAM), Retail and Dispensing Chemists Association (RDCA), India FDI Watch, Mumbai Mahanagar Vyapari Seva Parishad (MMVSP), Mumbai Vyapar Mahasang (MVM), Apna Bazaar, National Hawkers Federation, Center of Indian Trade Unions (CITU) and Hind Mazdoor Kisan Panchayat (HMKP) addressed the protesters.
Kishore Shah, President of the Mobile & Telecom Retailers and Distributors Association (MTRDA), stated that around 12,000 retail shop-keepers deal in SIM cards and recharge vouchers of Air-Tel in Mumbai, generating business worth crores of rupees every day. Mr. Shah said "We have already informed all our members, distributors and wholesalers against selling any Airtel products".
The Mumbai APMC—wholesale— market remained closed, along with thousands of retail shops across the city, including all chemists and druggists shops. Apna Bazaar, Maharastra’s largest cooperative store also downed its shutters and wholesale markets remained closed in Nasik and Pune.
At an evening event at Shanmukananda Hall in Mumbai mass-based groups laid out a future course of action and adopted a charter of demands. They called on the Center to immediately repeal the Wholesale Cash-n-Carry Permission, and all licenses granted under the permission; repeal the APMC Model Act, implement the National Policy on Street Vendors, take measures against predatory pricing and formulate a national policy on retail trade and small scale industries.
In Bangalore thousands protested at the town hall and burned effigies of corporate retailers like Wal-Mart and Reliance. The protest culminated in leaders presenting the Governor with a memorandum calling on the state to repeal the recent passage of the APMC Model Act. A Charter of Demands, same as was passed in Mumbai, was also placed before the District Collector. Smaller protests were organized throughout the state in different districts including Kodagu, Bijapur, Gulbarga and Davangere districts.
In Jaipur fifty American students joined with hawkers demanding that Wal-Mart leave India and demanding implementation of the National Policy on Street Vendors. The American students and hawkers demonstrated in the old city and held signs saying "Americans Oppose Wal-Mart Everywhere". Ms. Cheryl, an American citizen, learning Hindi at Jaipur said that Wal-Mart has a disastrous impact on small shopkeepers and neighbourhood communities in America and called Indians to learn from their experience and not to allow Wal-Mart to operate in India. Ms. Cheryl said that the world is moving from ‘Corporate to Cooperative’ and Indians should not corporatize their cooperatives.
In Kerala the Kerala Vyapari Vyavasayi Egono Samiti organized protest marches in over 1000 places across the state. In Kalicut over 10,000 traders protested in front of the corporation’s office and submitted a memorandum demanding that corporations keep out of retail and the immediate halt to Wal-Mart’s backdoor entry and the repeal of the Wholesale Cash-N-Carry permission.
In Kolkata the Federation of Trade Organizations (FTO) of West Bengal organized protests in all the 12 districts of the city along with protests across West Bengal, including in front of malls. Tens of thousands traders participated in the protest. In the evening, thousands of hawkers took out a protest march from the city museum.
In Ranchi, Uday Shankar Ojha who led the vegetable vendors before Reliance Fresh in May and has only recently been released from Jail, lead hawkers and vegetable vendors at Albert Ekka Chowk in Ranchi, demanding that Reliance Fresh and all other corporations leave the retail sector and "withdraw their sinister plans to displace millions of livelihoods".
In Bhopal there was a state-level protest meeting in the morning at Gandhi Bhavan and traders sat on a dharna at Roshanara Chowk in the afternoon and burn effigies of Wal-Mart, Bharti and Reliance. A call for Bhopal Bandh was given for 21 August to oust corporate from retail trade.
J & K High Court Issues Notice Over Fake Encounter
The Jammu and Kashmir has issued notice to the State Government in the case of killing of a Kulgam youth, Ghulam Rasool, allegedly in a fake encounter by suspended Superintendent of Police Hansraj Parihar five years ago.
The family of the slain youth filed a petition before the Court and alleged that a team of Special Operations Group personnel and government gunmen picked up Ghulam Rasool, on April 12, 2002 and detained him in a camp. After the SOG refused to release the youth, his family went to local police. Police refused to cooperate. The family later learnt that Rasool had died due to torture by five government gunmen identified as Shakeel, Rahman, Fayaz, Ashraf and Shabir Bhat in the presence of Parihar who was then SP Kulgam. The body was buried inside the camp.
The petition charges the police and civil administration of not taking any action against the accused despite passing of seven years. The petition also seeks initiation of criminal proceedings against Parihar and other accused.
Silent Sit-In in Srinagar by Families of Disappeared
The Mirwaiz Faction of Hurriyat also known as Hurriyat Conference (M) held a ‘silent’ sit-in on Wednesday in Srinagar to demand the whereabouts of the Kashmiris missing in custody of different forces agencies since 1990.
Greater Kashmir reports that led by the Hurriyat chairman Mirwaiz Umar Farooq, families of the missing persons, holding photos of their dear ones, gathered at Srinagar’s Municipal Park.
Mirwaiz said the families of the disappeared had a right to demand whereabouts of their kin, but the government has been maintaining a “criminal silence” over the issue. He referred to reports dished out by human rights groups from time to time which peg the number of disappeared in Kashmir at 8-10 thousand.
“It’s a shame for India that claims to be the world’s largest democracy. Indian Parliament has been mute on disappearances in the Kashmir Valley,” Mirwaiz said.
Wednesday, August 8, 2007
Reactions to Novartis Petition
R. Vaigai, counsel for Cancer Patients Aid Association (CPAA) of India, hailed the verdict and said:
Ellen t’Hoen, policy director of MSF Access to Medicines Campaign, rubbished the notion that refusal of patents for incremental innovation will lead to denial of access to new and better medicines for patients and said:
“It’s a very important judgment. If Section 3(d) is valid, the only remedy left is not to challenge the provision of law, but file an appeal under the Indian Patents Act. It reiterates the people’s authority to decide for themselves what is law. The law is a sovereign instrument, TRIPS is merely a contractual agreement of international parties on trade interests. This precedent is the first of its kind. It will have implications the world over for access to medicines.”
Ellen t’Hoen, policy director of MSF Access to Medicines Campaign, rubbished the notion that refusal of patents for incremental innovation will lead to denial of access to new and better medicines for patients and said:
“The reality today is that despite the fact that patent protection has increased, innovation has declined dramatically in terms of new products. If you assess them form a therapeutic point of view, they are less and less meaningful. You cannot say more patents lead to more therapeutic benefits for patients. If it does lead to more therapeutic benefits, patents lead to a situation where only a minority of the population can benefit because only a few people can afford them — what kind of innovation is that?”
Meanwhile, it appears that the Swiss Government is unlikely to lodge a complaint with the World Trade Organisation (WTO) dispute settlement mechanism against India’s intellectual property right (IPR) regime. The Swiss Federal Councillor in the Department of Economic Fffairs, Doris Leuthard, currently on a visit to India, said the issue was between a private company and the Indian judicial system, and the Swiss government did not have anything to do with it.
Madras High Court Dismisses Novartis Challenge to the Indian Patents Law
The Madras High Court has dismissed a petition filed by the Swiss pharmaceutical giant Novartis AG, challenging the constitutional validity of the Section 3 (d) of the Patents (amendment) Act 2005, under which its patent application for beta crystalline form of imatinib mesylate, was rejected.
Novartis had argued, inter alia, that the concerned provision, which precluded patents for mere new use of a known substance, contravened the international agreements on intellectual property at the WTO.
Dismissing it, a division bench comprising Justice R Balasubramanian and Justice Prabha Sridevan held that the Court cannot strike down an Act on he ground that it is not in accordance with trade related aspects of intellectual property rights (TRIPS) agreement or not.
The Bench stated that the international treaties and agreements were essentially in the nature of a contract, the Bench said, adding that the TRIPS Agreement provided for a comprehensive dispute settlement mechanism, which was binding on its member-States. The verdict noted:
“We see no reason at all as to why the petitioner, which itself is a part of that member-State, should not be directed to have the dispute resolved under the dispute settlement mechanism…We see no reason at all as to why we must disregard it…”
The Bench also dismissed the contention that the impugned Section conferred uncanalised and arbitrary discretionary powers on the Patents Controller. It averred:
“The argument that the amended Section must be held to be bad in law since, for want of guidelines, it gives scope to the statutory authority to exercise its power arbitrarily, has to be necessarily rejected.
We find that there are in-built materials in the amended Section and the Explanation itself, which would control/guide the discretion to be exercised by the statutory authority. In other words, the statutory authority would be definitely guided by the materials placed before it for arriving at a conclusion.”
Tuesday, August 7, 2007
More Question Marks on the Nuke Deal
Dr. A.N. Prasad, Former Director, Bhabha Atomic Research Centre and a Consultant with the International Atomic Energy Agency (IAEA) avers:
"The preamble in the 123 text is the only portion faithful to the Joint Statement issued by both the parties on July 18, 2005. What follows in the document is an exercise of clever and at times dubious, depending on which side you are looking at it from, use of the language and words to give an illusory impression that the concerns arising from diverging interests and constraints of both sides have been duly reflected."
An anonymous writer states in The Hindu that the two clear source of motivation for the 1-2-3 Agreement for the United States are:
"...the commercial gain from nuclear commerce, and the more important one of containing India’s nuclear weapons programme, both qualitatively and quantitatively. Bringing the breeder reactor programme under international safeguards, pushing India to sign the Fissile Material Cut-off Treaty (FMCT) and continuing embargoes on uranium enrichment and re-processing are all part of this strategy."
Left Questions Over Nuclear Deal Yet to be Answered
Amidst the hype and euphoria over the 'historic' nuclear deal between India and the United States of America, Seema Mustafa writes that the nine objections raised by the CPI(M) against the India-US civilian nuclear energy agreement have not been addressed in the 123 agreement.
1. The CPI(M) was concerned that the deal required India to pursue a foreign policy congruent to that of the US; and to secure India's full and active participation in US efforts to sanction and contain Iran.
2. The deal would not allow full cooperation on civilian nuclear technology, denying India a complete fuel cycle.
3. Steps to be taken by India would be conditional upon and contingent on action taken by the US.
4. The US will not take the necessary steps to change its laws or align the NSG rules to fulfil the terms of the India-US nuclear deal.
5. The additional protocol referred to in the original agreement would be intrusive and not India-specific.
6. India is placing its facilities in perpetuity while the US President can prevent the transfer to India of equipment, materials or technology from other participating governments in the NSG, or from any other source.
7. India's fissile material stockpile will be restricted.
8. The deal includes physical verification and suitable access to be provided by India to US inspectors, and not just IAEA safeguards.
9. The military programme will also be subject to monitoring by the IAEA and the US.
Asylum Seekers Have a Right to Seek Refugee Status
The Supreme Court of India has declared that though India does not have any international or bilateral treaty for according refugee status to foreigners seeking asylum in the country, the judiciary recognises the right of the asylum seekers to seek refugee status.
"There is some dichotomy in this regard. The executive does not recognise the refugee status, but the Indian judiciary recognises the same as we did in the case of Chakma refugees from Bangladesh," a Supreme Court bench comprising of Justice C.K. Thakker and Justice Markandeya Katju observed.
The Court also reiterated that the foreigners living in India are entitled to the protection of the right to life and liberty as guaranteed by Article 21 of the Constitution.
The Supreme Court made these observations while directing the Centre to file, within two weeks, its reply to an appeal filed by Iranian national Fred Babakhanian to challenge his deportation. The appellant was earlier arrested by the West Bengal police for overstaying his visa limit and spent three years in jail. Subsequently, the Kolkata high court asked the authorities to hand him over to the Iranian embassy for his deportation, following which he moved the top court.
Source: The Asian Age
Wednesday, August 1, 2007
Naga Peace Process: A Paradigm Shift
The latest extension of ceasefire between the Government of India and NSCN-(IM) marks a seminal change in the ten year old peace talks between the two parties. Departing from the earlier practice of having time-bound ceasefire extension, NSCN-(IM) has agreed to an 'indefinite' ceasefire linked to progress in talks.
The past ten years of ceasefire, while opening up new democratic space for peoples' groups and organisations, have failed to live up to the initial expectations and have not yet resulted in any tangible gain on the core issues under negotiations. Periodic extensions of ceasefire also enabled the Government of India to rest complacently as they ensured maintenance of law and order and continuation of the talks even in absence of any reciprocal political commitment. Thus, the peace process has been completely bereft of any tangible progress towards a just and honourable resolution of the Naga question even after an entire decade.
The new dispensation will force the Central Government's hand in so far as the peace process may be liable to be called off by in case of any tardiness in the talks. Thus, one hopes that the Central Government will now be more proactive in breaking the impasse on the core issues.
The Central Government must realise that any attempt at stalling the process by refusing the discuss the core issues or arming other groups will only dissipate the expectations and good will generated in last ten years and result in only more violence and bloodshed.
Tuesday, July 31, 2007
Migrant Labourers Face the Heat of Collective Punishment
Kashmir Times asserts that collective punishment for individual crimes cannot be acceptable in this editorial:
"Whether it is setting deadlines or issuing mere statements, the call for sending back migrant labourers working in Jammu and Kashmir is an outrightly pernicious one, spelling not just contempt for the outsiders but also several dangers for the people of this state. Those who first raised the demand seem to have now distanced from it. However, the perils are far from over. Last week a couple of labourers from outside Jammu and Kashmir, along with two other local accomplices, allegedly raped and then murdered a teenager student of class VIII at Langate. The crime is not only a heinous one, but is also an extremely sensitive one. Naturally, the rage of the locals exploded and spilled over the brim of all rationality and restraint. In the heat of the moment many of the migrants labourers there were beaten up and the rest went to bed scared of losing their lives or limbs in the hands of their enraged neighbours. Left alone the situation might have cooled down within a few days. But, that was not to be. Unfortunately, it was the Bar Association of Kashmir that was second to Syed Ali Shah Geelani in taking the lead in politicising and polluting this isolated, unfortunate and not a very abnormal an incident. A day before that Geelani while addressing a gathering in Handwara had called upon the migrant labourers to move out. Though, later he may have backtracked from his statement, the demand caught the fancy of many others. On Friday, July 27, the Bar Association passed a resolution asking all labourers from outside the state to quit Kashmir soon, so that they are no longer around to repeat such a crime. A day later, on the July 28, Hizb-ul-Mujaheedin too joined the fray by asking all outsiders to "Quit Kashmir" within a week. This timebound threat was enough. The ultimatum issued by HM had a salutary effect. Reportedly, around 7,000 migrant labourers have left Kashmir in the last three days and many more are expected to follow them in days to come. Such is the fear that any diktat issued by any well-known militant organisation still arouses that it can frighten the migrant labourers to run for their lives. The fleeing workers leaving, at least temporarily, both the valley and their future behind them do not blame their Kashmir neighbours, but their own fate and ask in dismay, why should the Bar Association and the HM decide to punish a large group of people, from many different states, for the crime committed by only a couple of black sheep among them? Was the demand borne simply out of whims or was there a design to whip up atavistic collective urge of a community? Though Hizb-ul-Mujahideen on Sunday denied having given any deadline and asking migrant labourers to move out, it is the Kashmir Bar's role that inspires shock. Why should the black-coated intellectuals of the valley fall victims to such puerile xenophobic emotion? They know very well why most of these outsiders are here in Kashmir.
Most of the outsiders are skilled workers and come here purely because there is a huge demand in the local markets for their skills. Many of them have been brought here by the contractors charged by the government or private builders to carry out certain development projects, only because locals are not skilled enough for those jobs. So, who will do these jobs if all of them are forced to leave? Not many local labourers are skilled to peform these jobs. So if the outsiders leave, it is development that will suffer. Perhaps, that may have been the reason why Mehbooba Mufti, some years back, chose to keep wraps over her earlier demand for sending back the outside labourers. Her hand on the lever of power, she had probably realised that this would not solve the unemployment problem of the state, instead it would block all development and affect the day to day economy and life of the common man. Perhaps, she was also conscious of the fallout of such a demand on the innocent Kashmiris working or studying in various parts of the country. Probably, it is the belated realisation of this economic truth and the possible backlash that persuaded both SA Geelani and HM to moderate their views on this issue. Both now they maintain that migrant labourers should not move out of the state, only the criminals among them should. Of course, criminal elements among them, including the 'informers', should be punished. But, criminals and informers are there among the locals also and who is going to screen them? Who would certify criminals and non criminals among both the locals and the outsiders? Whether Geelani or HM have retracted from their demand or have been misquoted by the media, their present demand to send home only the criminals among outsiders is equally ridiculous and does not only allow people to take law into their hands but also allows vested interests to make much of this opportunity. In these respects, it continues to be a dangerous demand and must be rolled back immediately. At the same time, the genesis of such pernicious demands, also needs to be understood. The abject failure of the state administration and its mammoth police force in dealing with the criminal elements despite repeated pleas of the people from various quarters of the state, is responsible to a great extent for the irrationality of such demands and the euphoria that first came with these. The state must realise its responsibility and begin the process of identifying and nailing criminals, whether they are locals or outsiders, to avoid such an unneceassary [sic.]confrontation.
Both Geelani and the HM have thankfully now realised that the average Kashmiri does welcome outsiders as labourers, tourists and pilgrim for reasons of their own economy and development. There might have been occasional attacks on them, most of them condemned by locals and militant groups, but, by and large, organisations, like the HM have extended their welcome to tourists and pilgrims. Besides, the separatists stand for a certain cause and they should know that many among the outsiders do sympathise partly with their cause, though not with their methods. So, why should those elements be unnecessarily antagonised and the economy of Kashmir left destabilised? A permanent exodus of these workers will mean a spurt in crime rates in their home states and in metros, like Delhi or Mumbai. So, the 'Quit Kashmir' notice is as bad as the occasional moves in many north Indian cities to evict their Kashmiri tenants or to boycott Kashmiri neighbours and businessmen. Exclusionism on atavistic lines has never served any noble cause."
Mirwaiz Decries Collective Punishment
The Mirwaiz faction of Hurriyat Conference while demanding severe punishment for the criminals involved in the Langate-Handwara rape and murder case, warned that awarding collective punishment for individual crimes would be a dangerous thing for the ongoing freedom movement. [Source: Kashmir Times]
Naga Peace Process Enters a Critical Stage
The next round of talks between the Government of India and the NSCN-(IM) that has started today, just on the eve of expiry of the ten year old ceasefire, holds the key to the future of the peace process.
The Morung Express states that ceasefire extension is likely to happen only in case of a definite political commitment from the Government of India.
The Indian Express reports:
"Ten years of ceasefire and endless rounds of peace talks with the Government of India may not have produced anything tangible that the National Socialist Council of Nagaland (NSCN) can speak about. But that does not worry NSCN Chairman Isaak Chisi Swu and General Secretary Thuingaleng Muivah, the two most important rebel leaders in the Northeast.
[...]
“It is the patience, perseverance and maturity of our leaders that peace talks with the Government of India have been on for ten long years,” said “Brigadier” Phunthing Shimrang, a senior NSCN(IM) leader, also a convenor of the ceasefire monitoring cell of the outfit.
[...]
...what the NSCN(IM) is most likely to press for in Tuesday’s meeting is a firm commitment from the Government that the issues earlier agreed upon would become visible on the ground. “The Government must implement its commitments made in the earlier rounds of talks,” Shimrang said, pointing at the issues raised during a people’s consultation that the NSCN(IM) held on Friday.
The people’s consultation had clearly said that the ceasefire should not be extended simply because it needed to be extended. “Let the Government make it clear that it is sincere in its efforts to resolve the Naga issue respectfully,” the NGOs and civil society groups had made it clear."
The Morung Express states that ceasefire extension is likely to happen only in case of a definite political commitment from the Government of India.
The Indian Express reports:
"Ten years of ceasefire and endless rounds of peace talks with the Government of India may not have produced anything tangible that the National Socialist Council of Nagaland (NSCN) can speak about. But that does not worry NSCN Chairman Isaak Chisi Swu and General Secretary Thuingaleng Muivah, the two most important rebel leaders in the Northeast.
[...]
“It is the patience, perseverance and maturity of our leaders that peace talks with the Government of India have been on for ten long years,” said “Brigadier” Phunthing Shimrang, a senior NSCN(IM) leader, also a convenor of the ceasefire monitoring cell of the outfit.
[...]
...what the NSCN(IM) is most likely to press for in Tuesday’s meeting is a firm commitment from the Government that the issues earlier agreed upon would become visible on the ground. “The Government must implement its commitments made in the earlier rounds of talks,” Shimrang said, pointing at the issues raised during a people’s consultation that the NSCN(IM) held on Friday.
The people’s consultation had clearly said that the ceasefire should not be extended simply because it needed to be extended. “Let the Government make it clear that it is sincere in its efforts to resolve the Naga issue respectfully,” the NGOs and civil society groups had made it clear."
Thursday, July 19, 2007
Rogue Company Dow Chemicals tries to avoid paying Rs 100cr
Olga Tellis reports in Asian Age:
Dow Chemical, which now wholly owns Union Carbide, is currently embroiled in court proceedings, to which the Indian government is also a party, over a final settlement in Bhopal, where over 22,000 people were killed following a horrific gas leak at the Carbide plant in December 1984. The ministry of chemicals and fertilisers had applied to the court to order the company to pay Rs 100 crores as a deposit before anything else.
In the letter to Mr Sen, Mr Liveris said: "The Government of India's ministry of chemicals and fertilisers applied to the court in May 2005 to order Dow to pay a deposit of Rs 100 crores (approximately $22 million) against environmental remediation costs. The court has to date deferred the ruling on the merits of the application. It follows logically from the GoI's statements regarding the non-liability of Dow that the MoCF should withdraw its application for a financial deposit against remediation costs. Certainly a withdrawal of the application would be a positive, tangible demonstration that the GoI means what it says about Dow's lack of responsibility in the matter." Mr Liveris begins his letter to Mr Sen by saying: "It was a pleasure to see you again at the US-India CEO Forum in New York on October 25. I specially appreciated your support in discussing a resolution of the Bhopal legacy issue as a tangible deliverable outcome of the CEO Forum. Given the statement made by the Government of India representatives in front of all meeting attendees that Dow is not responsible for Bhopal and will not be pursued by the Government of India, it will be important to follow through to ensure that concrete, sustained actions are taken that are consistent with these sentiments."
"Dow Chemical chairman Andrew Liveris has in a letter to Indian ambassador to the United States Ronen Sen tried to enlist his support to get the Union ministry of chemicals and fertilisers to drop its demand for the payment of Rs 100 crores as a deposit for environmental remediation costs in Bhopal.
Dow Chemical, which now wholly owns Union Carbide, is currently embroiled in court proceedings, to which the Indian government is also a party, over a final settlement in Bhopal, where over 22,000 people were killed following a horrific gas leak at the Carbide plant in December 1984. The ministry of chemicals and fertilisers had applied to the court to order the company to pay Rs 100 crores as a deposit before anything else.
This is one of the obstacles that Dow Chemical wants removed before it re-enters India to do business, a move which the Indian government has been quietly encouraging.
In the letter to Mr Sen, Mr Liveris said: "The Government of India's ministry of chemicals and fertilisers applied to the court in May 2005 to order Dow to pay a deposit of Rs 100 crores (approximately $22 million) against environmental remediation costs. The court has to date deferred the ruling on the merits of the application. It follows logically from the GoI's statements regarding the non-liability of Dow that the MoCF should withdraw its application for a financial deposit against remediation costs. Certainly a withdrawal of the application would be a positive, tangible demonstration that the GoI means what it says about Dow's lack of responsibility in the matter." Mr Liveris begins his letter to Mr Sen by saying: "It was a pleasure to see you again at the US-India CEO Forum in New York on October 25. I specially appreciated your support in discussing a resolution of the Bhopal legacy issue as a tangible deliverable outcome of the CEO Forum. Given the statement made by the Government of India representatives in front of all meeting attendees that Dow is not responsible for Bhopal and will not be pursued by the Government of India, it will be important to follow through to ensure that concrete, sustained actions are taken that are consistent with these sentiments."
Mr Stanford Lewis, attorney on behalf of some shareholders of Dow Chemical, sent a copy of Mr Liveris' letter to Mr Sen to the US Securities and Exchange Commission and drew the attention of the SEC to the tone and contents of the letter. Mr Lewis writes: "In what would appear to be a naked effort to circumvent the normal judicial process, Mr Liveris seeks the intervention of the ambassador to get the ministry to withdraw its application. Regrettably, this effort does not take place in a vacuum. We note the recent bribery disclosures by Dow Chemical and the $325,000 penalty paid by the company to the commission related to bribes to Indian officials to register its pesticides in India."
Mr Lewis adds: "This letter betrays how difficult it will be for the company to resolve the Bhopal legacy in the manner now being attempted by Mr Liveris. As Mr Liveris acknowledges, the GoI and Dow are co-defendants in a public interest litigation. The GoI, he notes, has taken positions adverse to Dow."
Mr Lewis asks the SEC to note that the "letter may be seen to be contradicting arguments presented by the company in its no-action request on the Bhopal resolution." In a letter to the SEC on February 16, 2007, he said, Dow's counsel had asserted that the company "was taking no new initiatives regarding Bhopal", and submitted that there was inadequate evidence that the CEO has personally sought a response from the Indian government." Mr Lewis encloses Mr Liveris' letter to Mr Sen, saying that the letter demonstrates that the CEO and the company "are indeed actively involved in a form of negotiation and advocacy to address issues relative to remediation and liability [WINDOWS-1252?]— albeit to attempt to alter the course of current legal proceedings." Mr Lewis said in his letter: "We are gravely concerned that the company has set upon a course of doggedly standing on a prior legal outcome and refusing to take further action that could truly put the Bhopal tragedy behind it, all to the company's detriment. Whatever the merits or demerits of the company's legal position, the legacy issue persists as an impediment to future investment by the company in the important and burgeoning Indian economy. We believe that a reassessment of the company's best interests would dictate a different course and that consideration of new initiatives to address the specific health and environmental concerns of Bhopal's survivors will be critical to Dow's re-entry into this market. That is why we have proposed a resolution to require Dow's management to report to stockholders by October 2007 on any new initiatives regarding Bhopal."
Mr Lewis asks the SEC to note that the "letter may be seen to be contradicting arguments presented by the company in its no-action request on the Bhopal resolution." In a letter to the SEC on February 16, 2007, he said, Dow's counsel had asserted that the company "was taking no new initiatives regarding Bhopal", and submitted that there was inadequate evidence that the CEO has personally sought a response from the Indian government." Mr Lewis encloses Mr Liveris' letter to Mr Sen, saying that the letter demonstrates that the CEO and the company "are indeed actively involved in a form of negotiation and advocacy to address issues relative to remediation and liability [WINDOWS-1252?]— albeit to attempt to alter the course of current legal proceedings." Mr Lewis said in his letter: "We are gravely concerned that the company has set upon a course of doggedly standing on a prior legal outcome and refusing to take further action that could truly put the Bhopal tragedy behind it, all to the company's detriment. Whatever the merits or demerits of the company's legal position, the legacy issue persists as an impediment to future investment by the company in the important and burgeoning Indian economy. We believe that a reassessment of the company's best interests would dictate a different course and that consideration of new initiatives to address the specific health and environmental concerns of Bhopal's survivors will be critical to Dow's re-entry into this market. That is why we have proposed a resolution to require Dow's management to report to stockholders by October 2007 on any new initiatives regarding Bhopal."
Wednesday, July 18, 2007
Living in No-Man's Land: Stories from Other Side of the Fence
Naseer A Ganai in 'Border within the border in Gurez' in Greater Kashmir throws light on the travails of the farmers and vilagers who have been separated from their neighbours due to the erection of multi-layered fence by the Indian Army.
Conflict in Kashmir and Mental Health
Exploring the psycho-social costs of the armed conflict in Kashmir, a group of doctors find that the rate of suicide in Kashmir is among the highest in the world.
Peerzada Arshad Hamid of Tehelka reports that doctors at Srinagar's SMHS government hospital for psychiatric diseases have come out with a study that has found the prevalence of suicide in Kashmir to be 15-20 per 1,00,000 persons, a ratio among the highest anywhere in the world.
That the suicide rate has risen dramatically over the past two decades of conflict is indicated by the fact that in 1980, the National Institute of Mental Health and Neurosciences (NIMHANs), Bangalore, had found that the lowest suicide rate among Indian states was in Jammu and Kashmir, at 0.5 per 1,00,000 people.
Indian Helicopter Transfer to Myanmar Undermining EU Arms Embargo, Says Rights Body Report
‘Indian helicopters for Myanmar: making a mockery of the EU arms embargo?’, a report by European and international NGOs, including Amnesty International and Saferworld, cites credible sources to state that the proposed transfer of Advanced Light Helicopter (ALH) to Myanmar by the Indian Government could undermine European Union (EU) Arms Embargo on Myanmar. The Report reveals that the Indian-manufactured helicopter contains vital spare components from EU Member States and highlights the urgent need for stricter EU arms controls.
“The EU embargo explicitly states that no military equipment should be supplied, either directly or indirectly, for use in Myanmar – what’s the point in having an arms embargo if it is not going to be implemented or enforced?”
The report calls on the EU to initiate immediate consultations with the Indian government and demands that if India plans to supply or has indeed already supplied ALHs to Myanmar, "EU member states should:
- withdraw all existing export licence authorisations and refuse any new applications for any transfers of components or technology that could be used for the ALH;
- discontinue all future production co-operation with India that might lead to transfers of embargoed equipment to Myanmar;
- attach to all future licences for transfers of controlled goods and technology to India a strict and enforceable condition prohibiting re-export to states under embargo."
Source: Amnesty International
Monday, July 16, 2007
Naga Parliamentarians and Legislators Call Upon PM to Extend Ceasefire
With the Naga peace process slated to complete 10 years on July 31, a delegation of Naga MP and MLAs of Manipur pleaded with the Prime Minister to adopt a time-bound strategy for an early political solution.
The delegation of MP and MLAs, who called on the Prime Minister, submitted a Memorandum and urged him to extend the ceasefire agreement for another period, here this week. The delegation included Mani Charenamei, Lok Sabha MP, Morung Makunga, Dr. Khashim Ruivah, Awangbou Newmai, K Raina, Danny Shaiza and Wungnaoshang Keishing, all MLAs.
“The Naga peace negotiation seems to be dragging on for too long without apparent results. It is our considered opinion that the Indo-Naga issue is purely a political problem, which has nothing to do with a constitutional crisis, and therefore, substantive issues should and must be solved politically,” the memorandum said.
“Any settlement reached between the Government of India and the NSCN short of Naga unification would mean creating more problems for the region and would not be acceptable to the Nagas. Gerrymandering of our lands by any parties with vested interest is not accepted by the Nagas as the stand of the Nagas for unification is imprescriptibly historical and political rights.” [Source: Assam Tribune]
The delegation of MP and MLAs, who called on the Prime Minister, submitted a Memorandum and urged him to extend the ceasefire agreement for another period, here this week. The delegation included Mani Charenamei, Lok Sabha MP, Morung Makunga, Dr. Khashim Ruivah, Awangbou Newmai, K Raina, Danny Shaiza and Wungnaoshang Keishing, all MLAs.
“The Naga peace negotiation seems to be dragging on for too long without apparent results. It is our considered opinion that the Indo-Naga issue is purely a political problem, which has nothing to do with a constitutional crisis, and therefore, substantive issues should and must be solved politically,” the memorandum said.
“Any settlement reached between the Government of India and the NSCN short of Naga unification would mean creating more problems for the region and would not be acceptable to the Nagas. Gerrymandering of our lands by any parties with vested interest is not accepted by the Nagas as the stand of the Nagas for unification is imprescriptibly historical and political rights.” [Source: Assam Tribune]
Saturday, July 14, 2007
Mirwaiz Rejects Relocation, Demands Complete Demilitarisation
Chairman of Hurriyat conference (M) Mirwaiz Umar Farooq on Friday rejected the proposed relocation of troops and asserted that the people of Kashmir want complete withdrawal of troops from Jammu and Kashmir. [Source: Greater Kashmir]
Manipur Government to Hold Talks with Kuki Armed Groups
Manipur government has decided, in principle, to hold peace talks with Kuki militant outfits in the state. The decision to initiate a peace process with the Kuki militants was taken at a cabinet meeting chaired by Chief Minister O Ibobi Singh some days ago after getting the go ahead from the union ministries of Defence and Home.
According to news reports, formal talks with militants could begin only after informal discussions among representatives of the state government, the Centre and militant outfits. The ceasefire between the state government and the militant outfits would be declared before beginning the peace talks and ground rules which were to be observed by both parties prepared, the sources said.
It must be noted that central forces such as Assam Rifles and the army deployed in Manipur had entered into a ceasefire with Kuki militant outfits in August 2005 without the approval of the Manipur government, to which the state government had sent its objections to the Union Home ministry. They said inspite of ceasefire between Kuki militants and central forces, frequent clashes between Kuki militants and state forces were continuing.
According to news reports, formal talks with militants could begin only after informal discussions among representatives of the state government, the Centre and militant outfits. The ceasefire between the state government and the militant outfits would be declared before beginning the peace talks and ground rules which were to be observed by both parties prepared, the sources said.
It must be noted that central forces such as Assam Rifles and the army deployed in Manipur had entered into a ceasefire with Kuki militant outfits in August 2005 without the approval of the Manipur government, to which the state government had sent its objections to the Union Home ministry. They said inspite of ceasefire between Kuki militants and central forces, frequent clashes between Kuki militants and state forces were continuing.
Friday, July 13, 2007
Guwahati High Court Orders Compensation for Custodial Death
The Guwahati High Court ordered the Union Ministry Of Home Affairs and the Army to pay a compensation of Rs. 3.5 Lakhs for custodial death of (late) A Purnima of Kha Naorem Leikai, Singjamei by personnel of 8th Assam Rifles in 2001. The compensation amount is one of the highest to be ordered by the Guwahati High Court.
Imphal Free Press reports:
"As per the case order, it was stated that Purnima was arrested on the intervening night of September 1 and 2, 2001 by personnel of 8th AR without issuing an arrest memo or giving any kind of explanation. On the morning of September 2, the petitioner Bandana was informed by somebody who was allegedly sent by Singjamei police station that her husband was killed in an encounter."
Imphal Free Press reports:
"As per the case order, it was stated that Purnima was arrested on the intervening night of September 1 and 2, 2001 by personnel of 8th AR without issuing an arrest memo or giving any kind of explanation. On the morning of September 2, the petitioner Bandana was informed by somebody who was allegedly sent by Singjamei police station that her husband was killed in an encounter."
Question Marks on the Indo-Naga Peace Process
Serious questions are being raised on the future of the Indo-Naga Peace Process and the ten year old ceasefire agreement which is going to expire on July 31.
The Naga International Support Center, NISC, has said in a press release from Amsterdam that the ten years of ceasefire followed by peace talks between the Government of India and the Nagas has not resulted in anything tangible. On the contrary, instead of working towards peace the Government of India intensified it`s divide and rule tactics weakening the Naga forces which on behalf of the Naga people stood for their rights. [Source: Kangla Online]
The press release further stated, "Considering the imminent collapse of the ceasefire and peace talks which will lead to exorbitant turmoil and bloodshed, the Naga International Support Center called on all nations and the international press to expose this festering sore which has rotten in obscurity for over 50 years now. On the basis of human rights alone this outrage, this open wound in the side of mankind has to be dressed and the war has to be stopped."
Putting further cloud over the future of the Peace Talks is the news that the Chairman of the NSCN (IM), Isak Chisi Swu has issued a National Azha informing all the National workers that henceforth all rank and files both in the army and civil administration shall report to their respective units and bases/camps on or before July 16, said a statement issued by the outfit today. [Source: Sangai Express]
Central Government's Interlocutor, Mr. K Padmanabhaiah, however, insisted that the peace process is on the right track.
The Naga International Support Center, NISC, has said in a press release from Amsterdam that the ten years of ceasefire followed by peace talks between the Government of India and the Nagas has not resulted in anything tangible. On the contrary, instead of working towards peace the Government of India intensified it`s divide and rule tactics weakening the Naga forces which on behalf of the Naga people stood for their rights. [Source: Kangla Online]
The press release further stated, "Considering the imminent collapse of the ceasefire and peace talks which will lead to exorbitant turmoil and bloodshed, the Naga International Support Center called on all nations and the international press to expose this festering sore which has rotten in obscurity for over 50 years now. On the basis of human rights alone this outrage, this open wound in the side of mankind has to be dressed and the war has to be stopped."
Putting further cloud over the future of the Peace Talks is the news that the Chairman of the NSCN (IM), Isak Chisi Swu has issued a National Azha informing all the National workers that henceforth all rank and files both in the army and civil administration shall report to their respective units and bases/camps on or before July 16, said a statement issued by the outfit today. [Source: Sangai Express]
Central Government's Interlocutor, Mr. K Padmanabhaiah, however, insisted that the peace process is on the right track.
Thursday, July 12, 2007
Supreme Court sets a Dangerous Precedent for Armed Forces (Special Powers) Act
The Supreme Court dealt a body blow to human rights with its verdict in the case of Masooda Parveen v Union of India. This case deals with a writ petition filed by the wife of deceased Advocate and businessman, Ghulam Mohi-ud-din Regoo, who had been taken into custody by soldiers of 17 Jat Regiment, based at Lethapora from his residence in Chandhara village, Sopore and then tortured to death on the night of 1 st February 1998. His body was blown apart by explosives and the Army claimed that he was a militant. The petitioner had demanded compensation for the said killing and a job on compassionate grounds.
The Supreme Court dismissed the writ petition while accepting the contention of the army that the deceased was a militant. The court accepted this submission even when not a scrap of evidence exists for such an allegation and to show that Regoo was a militant or that he had any association with any militant organization Even the vague 'intelligence inputs received by the battalion' and his interrogation were never brought on record. The Court has also chosen to overlook the fact that the original file of the S. 174 DrPC investigation conducted in the death was conveniently "lost" after the District Magistrate, Pulwama rejected the finding of "accidental death" in the closure report presented by the local police.
Most dangerously, the Court has further observed that the petitioner has not been able to show her version of events was true. This observation completely inverts the fundamental principle of presumption of innocence and burden of proof. In a writ petition in the nature of habeas corpus, the burden is on the State to show what happened to the arrested person, and the burden is all the more onerous when the person has admittedly died in custody.
For the Supreme Court to dismiss such a petition on the ground that the petitioner has not discharged her burden, especially in the political context of Jammu and Kashmir, is to say that the Army can kill anyone in the State by labeling him/her as a militant, and then the burden of proof is on his family to show that he was not. This rationale of the Court is an abdication of its function as a Constitutional Court safeguarding the fundamental rights of the people, and needs to be critiqued in all possible ways and foras.
This is the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act., 1990. On one hand, the Court has acknowledged that the guidelines and the law laid down in Naga People's Movement of Human Rights v. Union of India [(1998) 2 SCC 109] applies mutatis mutandis to this statute as well.
But amidst numerous platitudes, the Court has chosen to carve out something bordering on an exception, by stating: "[W]e are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action."
It must be pointed out at this stage that the NPMHR judgment had directed that any deviation from the Act as well as the Do's and Don'ts constitutes an offence under the Army Act, and is liable for prosecution.
However, the observations of the Court in the instant case go against the grain of the Judgment of a 5 Judge Constitution Bench rejecting an application filed by the Government of India in the NPMHR case. The Government had attempted to get such exemption against the safeguards through an application seeking clarification of the Court Order. However, the 5 Judge Constitution Bench had categorically rejected the application and affirmed that the safeguards are inviolable.
Critically, this judgment is also untenable as per incuriam (decided without reference to an earlier precedent), for a 2 Judge Bench cannot override the decision of a Constitutional Bench.
Being the first major case of interpretation of the Jammu and Kashmir Armed Forces Special Powers Act, the observations made in this case sets a very dangerous precedent for future and also roll back some of the few minimally progressive principles laid out in the NPMHR case.
Strangely, the judgment is completely bereft of any discussion on the Right to Life under Article 21, the Right against self incrimination under Article 20 or the rights of an arrestee under Article 22, and perhaps a clarification on whether these rights apply.
This judgment therefore sets a very dangerous portent for the democratic rights of the people of the North east and Kashmir. By this judgment, the Court has given its imprimatur of approval to fake encounters, custodial killings, torture and disappearances that have become a part of the living reality of these regions with the draconian Armed Forces (Special) Powers Act.
This judgment also exposes the doublespeak of the Indian State on the Armed Forces (Special Powers) Act. The Supreme Court had upheld the constitutionality of this dreaded Act on the ground that it shall be implemented strictly and mere possibility of abuse cannot be a ground for declaring it unconstitutional. However, when instances of abuse are brought to the notice of the Court, as done in this case, the Court have condoned such indefensible abuses citing the extraordinary circumstances in which security forces operate. As such, this judgment exposes the hollowness of the assurances of strict and cautious use of the Act, recurrently avowed by different institutions of the Indian State, including the Judiciary. It brings to fore the stark reality that the very use of this Act amounts to an attack on human rights of the people of North East and Kashmir.
As such, along with the need for due legal recourse, there is a strong imperative for a strong civil society discussion, debate and opposition to such an anti-people, undemocratic and authoritarian judgment from the Apex Court that gives a license to impunity on the part of the Armed Forces in Jammu and Kashmir, and approves the precedence of coercive powers of the state over the fundamental rights liberties of people.
The Supreme Court dismissed the writ petition while accepting the contention of the army that the deceased was a militant. The court accepted this submission even when not a scrap of evidence exists for such an allegation and to show that Regoo was a militant or that he had any association with any militant organization Even the vague 'intelligence inputs received by the battalion' and his interrogation were never brought on record. The Court has also chosen to overlook the fact that the original file of the S. 174 DrPC investigation conducted in the death was conveniently "lost" after the District Magistrate, Pulwama rejected the finding of "accidental death" in the closure report presented by the local police.
Most dangerously, the Court has further observed that the petitioner has not been able to show her version of events was true. This observation completely inverts the fundamental principle of presumption of innocence and burden of proof. In a writ petition in the nature of habeas corpus, the burden is on the State to show what happened to the arrested person, and the burden is all the more onerous when the person has admittedly died in custody.
For the Supreme Court to dismiss such a petition on the ground that the petitioner has not discharged her burden, especially in the political context of Jammu and Kashmir, is to say that the Army can kill anyone in the State by labeling him/her as a militant, and then the burden of proof is on his family to show that he was not. This rationale of the Court is an abdication of its function as a Constitutional Court safeguarding the fundamental rights of the people, and needs to be critiqued in all possible ways and foras.
This is the first judgment of the Supreme Court interpreting the provisions of the Jammu and Kashmir Armed Forces Special Powers Act., 1990. On one hand, the Court has acknowledged that the guidelines and the law laid down in Naga People's Movement of Human Rights v. Union of India [(1998) 2 SCC 109] applies mutatis mutandis to this statute as well.
But amidst numerous platitudes, the Court has chosen to carve out something bordering on an exception, by stating: "[W]e are not unmindful of the fact that prompt action by the army in such matters is the key to success and any delay can result in leakage of information which would frustrate the very purpose of the army action."
It must be pointed out at this stage that the NPMHR judgment had directed that any deviation from the Act as well as the Do's and Don'ts constitutes an offence under the Army Act, and is liable for prosecution.
However, the observations of the Court in the instant case go against the grain of the Judgment of a 5 Judge Constitution Bench rejecting an application filed by the Government of India in the NPMHR case. The Government had attempted to get such exemption against the safeguards through an application seeking clarification of the Court Order. However, the 5 Judge Constitution Bench had categorically rejected the application and affirmed that the safeguards are inviolable.
Critically, this judgment is also untenable as per incuriam (decided without reference to an earlier precedent), for a 2 Judge Bench cannot override the decision of a Constitutional Bench.
Being the first major case of interpretation of the Jammu and Kashmir Armed Forces Special Powers Act, the observations made in this case sets a very dangerous precedent for future and also roll back some of the few minimally progressive principles laid out in the NPMHR case.
Strangely, the judgment is completely bereft of any discussion on the Right to Life under Article 21, the Right against self incrimination under Article 20 or the rights of an arrestee under Article 22, and perhaps a clarification on whether these rights apply.
This judgment therefore sets a very dangerous portent for the democratic rights of the people of the North east and Kashmir. By this judgment, the Court has given its imprimatur of approval to fake encounters, custodial killings, torture and disappearances that have become a part of the living reality of these regions with the draconian Armed Forces (Special) Powers Act.
This judgment also exposes the doublespeak of the Indian State on the Armed Forces (Special Powers) Act. The Supreme Court had upheld the constitutionality of this dreaded Act on the ground that it shall be implemented strictly and mere possibility of abuse cannot be a ground for declaring it unconstitutional. However, when instances of abuse are brought to the notice of the Court, as done in this case, the Court have condoned such indefensible abuses citing the extraordinary circumstances in which security forces operate. As such, this judgment exposes the hollowness of the assurances of strict and cautious use of the Act, recurrently avowed by different institutions of the Indian State, including the Judiciary. It brings to fore the stark reality that the very use of this Act amounts to an attack on human rights of the people of North East and Kashmir.
As such, along with the need for due legal recourse, there is a strong imperative for a strong civil society discussion, debate and opposition to such an anti-people, undemocratic and authoritarian judgment from the Apex Court that gives a license to impunity on the part of the Armed Forces in Jammu and Kashmir, and approves the precedence of coercive powers of the state over the fundamental rights liberties of people.
Crackdowns Back in Srinagar
This Report by Arif Shafi Wani by Greater Kashmir states:
"In a throwback to early 1990s, police and paramilitary troopers held identification parades of youths on roadsides on Wednesday in various parts of the city, arresting at least 25 persons.
[...]
CRPF troopers and police held a series of cordon-and-search operations from Nehru Park to Hari Singh High Street throughout the day. Troops first blocked all the routes leading to commercial hub Hari Singh High Street and frisked pedestrians and motorists. Later, the troops cordoned the tourist hub Boulevard and subjected the pedestrians to intense identification parade. The police also conducted searches in adjoining Buchwara, Gagribal and some areas of Dal lake, detaining 15 persons, most of them youths. The tourists had a tough time as the police did not even allow even their vehicles to move. “We were about to leave for Gulmarg, but police didn’t allow us to move ahead. This is sheer harassment,” said Nitin Sahu, a tourist from Gujarat. “On one hand the government is wooing tourists by claiming normalcy has been restored in the Valley and on the other troops and police harass them in the name of so-called security. Boulevard and Dalgate have been comparatively incident free for a long time. These security checks only frighten tourists and hamper our business,” said Muhammad Azim Tuman, Chairman of Houseboats Owners Association
[...]
In the afternoon, the CRPF launched a surprise crackdown at Regal Chowk and detained 10 persons who did not have identity cards. “I am a student and have forgotten my identity-card at home. Please let me go, my mother is waiting for me at doctor’s clinic,” a youth pleaded with the cops. But he was bundled up along with nine others in a police vehicle. The CRPF troopers with bamboo sticks in one hand and gun dangling from shoulders were abusing pedestrians, asking them to make a queue quickly. Troops also frisked pedestrians and vehicles at Ganta Ghar, Court Road, Polo View and Jehangir Chowk, causing long traffic jams."
"In a throwback to early 1990s, police and paramilitary troopers held identification parades of youths on roadsides on Wednesday in various parts of the city, arresting at least 25 persons.
[...]
CRPF troopers and police held a series of cordon-and-search operations from Nehru Park to Hari Singh High Street throughout the day. Troops first blocked all the routes leading to commercial hub Hari Singh High Street and frisked pedestrians and motorists. Later, the troops cordoned the tourist hub Boulevard and subjected the pedestrians to intense identification parade. The police also conducted searches in adjoining Buchwara, Gagribal and some areas of Dal lake, detaining 15 persons, most of them youths. The tourists had a tough time as the police did not even allow even their vehicles to move. “We were about to leave for Gulmarg, but police didn’t allow us to move ahead. This is sheer harassment,” said Nitin Sahu, a tourist from Gujarat. “On one hand the government is wooing tourists by claiming normalcy has been restored in the Valley and on the other troops and police harass them in the name of so-called security. Boulevard and Dalgate have been comparatively incident free for a long time. These security checks only frighten tourists and hamper our business,” said Muhammad Azim Tuman, Chairman of Houseboats Owners Association
[...]
In the afternoon, the CRPF launched a surprise crackdown at Regal Chowk and detained 10 persons who did not have identity cards. “I am a student and have forgotten my identity-card at home. Please let me go, my mother is waiting for me at doctor’s clinic,” a youth pleaded with the cops. But he was bundled up along with nine others in a police vehicle. The CRPF troopers with bamboo sticks in one hand and gun dangling from shoulders were abusing pedestrians, asking them to make a queue quickly. Troops also frisked pedestrians and vehicles at Ganta Ghar, Court Road, Polo View and Jehangir Chowk, causing long traffic jams."
Racist Report by Delhi Police: Profiles Students from North East
In a shocking turn of events, the Delhi police has released a Booklet containing blatantly racist and prejudiced remarks against people from North East. Ostensibly meant as a guide for students from North East in Delhi, the booklet talks about ‘scantily dressed women’, immorality of northeastern women, smelly traditional dishes and it claims to be a means of civilizing the people from the northeastern region, reports The Morung Express, a Dimapur based daily.
Tuesday, May 15, 2007
Protests against Army Atrocities Fuels Inter-Community Clashes in Assam
A blockade of National Highway by protesters in Tinsuiki District of Assam against the killing of a youth by Indian Army personnel in an alleged fake encounter spiralled into inter-community clashes after angry adivasi tea garden labourers attacked the supporters of the Blockade with sharp weapons on Sunday, May 13 2007.
The Assam Tribune reports:
"The death toll in the Doomdooma area increased to eight as tension continued following clashes between two groups of people at Tiphuk and Rupai Siding since Sunday evening.
[...]
...the police today opened fire on an irate mob at the Hansara area around 8 am, following which one person died and two of them sustained serious injuries. The dead has been identified as Sukra Tati (42)."
The Sentinel further states:
"In another incident, one protester died while 40 others were injured when the truck they were travelling turned turtle near the Kakopathar BDO office at Sikolijan Khumsang gate this morning. The administration was taking the protesters blocking the road on a truck (AS-21-3610) from Rupai to Kakopathar. The deceased has been identified as Babul Das (30) of Kakopathar. The injured were rushed to the Tinsukia Civil Hospital and Assam Medical College and Hospital, Dibrugarh.
Meanwhile, curfew has been extended to Digboi from this morning with Army jawans staging a flag march at Kakopathar, Pengeri, Bordumcha and Doomdooma to prevent any untoward incident."
In a related news, The Morung Express reports:
"Arunachal Pradesh Chief Minister Dorjee Khandu has sent an SOS to his Asom counterpart Tarun Gogoi as crisis of essentials deepened in Dibang valley and Lower Dibang valley districts in the state due to blockade of National Highway number 37 in the neighbouring state."
The Assam Tribune reports:
"The death toll in the Doomdooma area increased to eight as tension continued following clashes between two groups of people at Tiphuk and Rupai Siding since Sunday evening.
[...]
...the police today opened fire on an irate mob at the Hansara area around 8 am, following which one person died and two of them sustained serious injuries. The dead has been identified as Sukra Tati (42)."
The Sentinel further states:
"In another incident, one protester died while 40 others were injured when the truck they were travelling turned turtle near the Kakopathar BDO office at Sikolijan Khumsang gate this morning. The administration was taking the protesters blocking the road on a truck (AS-21-3610) from Rupai to Kakopathar. The deceased has been identified as Babul Das (30) of Kakopathar. The injured were rushed to the Tinsukia Civil Hospital and Assam Medical College and Hospital, Dibrugarh.
Meanwhile, curfew has been extended to Digboi from this morning with Army jawans staging a flag march at Kakopathar, Pengeri, Bordumcha and Doomdooma to prevent any untoward incident."
In a related news, The Morung Express reports:
"Arunachal Pradesh Chief Minister Dorjee Khandu has sent an SOS to his Asom counterpart Tarun Gogoi as crisis of essentials deepened in Dibang valley and Lower Dibang valley districts in the state due to blockade of National Highway number 37 in the neighbouring state."
Saturday, May 12, 2007
Army Confesses to Fake Encounters in Assam
Calling the killing of a youth in Assam last week "unfortunate", Indian Army officials in Guwahati said on Thursday they have ordered a probe to punish guilty officials involved in the fake encounter.
"The killing of Budheswar Moran was unfortunate," Major General NC Marwah, general-officer-commanding (GOC) of the second Mountain Division, told reporters. "I assure you that the inquiry would be impartial and those found guilty will be punished," he added.
The killing of 24-year-old Moran in an alleged encounter over the weekend in eastern Assam's Tinsukia district has led to protests with hundreds of people blocking highways since Monday near Doomdooma, 515 km east of Guwahati. The army had claimed Moran was a "hardcore militant" of the outlawed United Liberation Front of Asom (ULFA). But locals and family members say that Moran was innocent and that he had no links with any rebel group.The army on Wednesday announced a court of inquiry.
The Assam government also ordered an independent probe to investigate the death following the widespread protests."The very fact that the GOC admitted to the fake killing vindicates our stand that such state-sponsored terrorism is rampant in Assam in the name of countering militancy," said Lachit Bordoloi, who heads the Manab Adhikar Sangram Samity (MASS), a leading rights group in Assam. [Source: Morung Express]
"The killing of Budheswar Moran was unfortunate," Major General NC Marwah, general-officer-commanding (GOC) of the second Mountain Division, told reporters. "I assure you that the inquiry would be impartial and those found guilty will be punished," he added.
The killing of 24-year-old Moran in an alleged encounter over the weekend in eastern Assam's Tinsukia district has led to protests with hundreds of people blocking highways since Monday near Doomdooma, 515 km east of Guwahati. The army had claimed Moran was a "hardcore militant" of the outlawed United Liberation Front of Asom (ULFA). But locals and family members say that Moran was innocent and that he had no links with any rebel group.The army on Wednesday announced a court of inquiry.
The Assam government also ordered an independent probe to investigate the death following the widespread protests."The very fact that the GOC admitted to the fake killing vindicates our stand that such state-sponsored terrorism is rampant in Assam in the name of countering militancy," said Lachit Bordoloi, who heads the Manab Adhikar Sangram Samity (MASS), a leading rights group in Assam. [Source: Morung Express]
Irom Sharmila Granted Bail
A Delhi court on Friday granted bail to human rights activist Irom Chanu Sharmila, who has been on a fast-unto-death for over six years demanding repeal of the Armed Forces (Special Powers) Act. She has been charged with attempt to commit suicide. For details see this report.
Friday, March 23, 2007
"Green" Courts and the Intent of MoEF
Kalpana Sharma expresses concern over the nature of the proposed "Green" Courts and the lack of sincerity and transparency with which the Ministry of Environment and Forests (MoEF) is dealing with the exercise:
"...The substance of the proposed law should be in the public domain and ought to be debated by people beyond those in government before it is presented in Parliament. But none of this will happen if the MoEF has its way.
[...]
The excuse being used to set up an environmental tribunal is that there are too many cases pending in courts. A Central tribunal in Delhi and regional ones, it is argued, will take the burden off the courts. The plan is based on the assumption that the groups presently taking matters to court will be satisfied with the civil remedies that the environmental tribunal will offer. What is not so well known is that apart from communities with grievances, proponents of projects can use the tribunals to clear their projects if they feel aggrieved that they have been denied permission on environmental grounds. The government would argue that such a set-up would obviate the need for specific committees as the tribunal could set up its own committees to look into specific projects.
On the surface, this appears reasonable. But people selected by the government will man the tribunals. When the majority of the cases that land up in court concern government policy and the perception of groups and communities that the government is violating its own laws, how can such tribunals be viewed as impartial?
[...]
It is also significant that the Ministry wants to change the definition of the word "expert." It restricts it to people with certain educational qualifications as well as people with experience in administration. In other words, people with science and economics degrees will qualify as also retired bureaucrats but people with decades of experience in understanding and monitoring the environment and the inter-linkages between different aspects of the environment will be kept out. This appears a deliberate attempt to exclude the activists who have served with distinction on numerous "expert" committees over the last two decades and who have also been the ones asking uncomfortable questions."
"...The substance of the proposed law should be in the public domain and ought to be debated by people beyond those in government before it is presented in Parliament. But none of this will happen if the MoEF has its way.
[...]
The excuse being used to set up an environmental tribunal is that there are too many cases pending in courts. A Central tribunal in Delhi and regional ones, it is argued, will take the burden off the courts. The plan is based on the assumption that the groups presently taking matters to court will be satisfied with the civil remedies that the environmental tribunal will offer. What is not so well known is that apart from communities with grievances, proponents of projects can use the tribunals to clear their projects if they feel aggrieved that they have been denied permission on environmental grounds. The government would argue that such a set-up would obviate the need for specific committees as the tribunal could set up its own committees to look into specific projects.
On the surface, this appears reasonable. But people selected by the government will man the tribunals. When the majority of the cases that land up in court concern government policy and the perception of groups and communities that the government is violating its own laws, how can such tribunals be viewed as impartial?
[...]
It is also significant that the Ministry wants to change the definition of the word "expert." It restricts it to people with certain educational qualifications as well as people with experience in administration. In other words, people with science and economics degrees will qualify as also retired bureaucrats but people with decades of experience in understanding and monitoring the environment and the inter-linkages between different aspects of the environment will be kept out. This appears a deliberate attempt to exclude the activists who have served with distinction on numerous "expert" committees over the last two decades and who have also been the ones asking uncomfortable questions."
Thursday, March 22, 2007
Acquired Land is Property of the Government, Says the Supreme court
As the question of acquisition of land by the State comes into spotlight with protests in Singur and Nandigram among many other zones, the Supreme Court of India has affirmed an expanded the scope of the theory of eminent domain under which vests in State the power of acquiring land.
The Court said that once a piece of land has been duly acquired by the Government under the Land Acquisition Act, it becomes the sole property of the State. Critically, it held that even if the purpose of the acquisition no longer exists, the State can dispose of the same to anyone for the market value.
The Apex Court was hearing a matter relating to acquisition of land by Tamil Nadu Housing Board for construction of multi-storied apartments in Padi Village of Tamil Nadu's Ambattur Taluk in 1978. Even after passage of 21 years, the building project did not come up and the affected persons moved the State Government and later the Madras High Court demanding that the acquired land be handed back to them.
Wednesday, March 21, 2007
Arunachal Pradesh Assembly Asks for AFSPA Repeal
The Arunachal Pradesh State Assembly, acting on a private motion moved by Wangling Lowangdong, an Independent Member, has resolved that the State Government should take steps to approach the Centre for the repeal of the Armed Forces (Special Powers) Act from the State.
The original motion had pleaded for an immediate repeal of the Act by the State Government from the districts of Tirap and Changlang where the Act has been in vogue since September 1991. However, the Chief Minister said the Act promulgated by the Centre could not be lifted by the State and suggested that the State could approach the Centre for its repeal.
The House adopted the motion incorporating the suggestion of Chief Minister Gegong Apang and resolved that the State Government should take steps to approach the Centre for the removal of the anti-terror law.
The original motion had pleaded for an immediate repeal of the Act by the State Government from the districts of Tirap and Changlang where the Act has been in vogue since September 1991. However, the Chief Minister said the Act promulgated by the Centre could not be lifted by the State and suggested that the State could approach the Centre for its repeal.
The House adopted the motion incorporating the suggestion of Chief Minister Gegong Apang and resolved that the State Government should take steps to approach the Centre for the removal of the anti-terror law.
Tuesday, March 20, 2007
Manipur Assembly Defeats Move to Repeal AFSPA
The Manipur State Assembly rejected, by voice vote on 19th March 2007, a private member`s resolution to urge the Union Government to repeal the draconian Armed Forces Special Powers Act, AFSPA 1958. The resolution was moved by MLAs Radhabinod Koijam of the NCP and RK Anand and I Ibohanbi of the MPP.
Monday, March 19, 2007
Nandigram Update
State Government Withdraws Police
CNN-IBN reports that the state government on Monday ordered the shifting of police camps from Nandigram. The shifting of police camps has already begun at Sonachura and Adhikarypara, the two trouble spots in Nandigram block-I, where the police had opened fire on March 14.
Arrested Persons Confess to CPI-M Links
Imran Ahmed Siddiqui reports in The Telegraph that the ten persons arrested by the Central Bureau of Investigation (CBI) have confessed that they were on a CPI-M mission and their telephone records reveal that they were in touch with top party functionaries:
"The Telegraph got access to a copy of their statements recorded by Khejuri police and submitted in the Contai fast-track court of the judicial magistrate, which today remanded them in police custody till March 22.
“We were brought a few days ago by the leaders of a political party to attack the villagers and occupy areas in Nandigram. The leaders provided us arms and ammunition and arranged for our stay in three rooms inside the brick kiln at Sher Khan Chowk,” said the statement of Manoranjan Maity alias Badal, 38, one of the 10 arrested yesterday.
While the statements do not name the “political party”, the inspector-general of police (western range), Arun Gupta, said: “They have told us they are CPM activists.”
Along with arms and ammunition, CPM flags and helmets of the kind worn by police were seized from the hideout, triggering suspicion that the men had donned uniforms and joined security forces on the day of the firing. Cellphones found on them showed they were in touch with senior CPM leaders, sources said."
Protesters Allege Rape by Security Forces
Two women have filed a formal complaint with police alleging that some of its personnel raped them during the Nandigram violence last week. The two women, who are under treatment at the Tamluk hospital presently, have recorded their statement before a police officer. The victims, both housewives aged 27 years and 25 years, alleged that some police personnel cornered them during the melee after the firing at Sonachura village on March 14 and raped them. (Source: DNA)
Army Agrees to Inquiry Into Rape: Stir Suspended
Army Authorities have agreed to a time bound "staff enquiry" into the alleged rape of an eighteen year old girl by an Assam Rifles Jawan at Kotlien, Manipur. Consequently, the proposed 24 hour Manipur Bandh has been called off.
The Imphal Free Press reports:
"An understanding was reached during a trilateral talk between the state government led by state chief secretary and DGP, inspector general of Assam Rifles (South) and representatives of the three tribal students` bodies, the All Tribal Students` Union Manipur, ATSUM, Kuki Students` organization, KSO and All Naga Students Association, Manipur, a statement issued by KSO said Sunday.Several officials of both police and army also participated in the talks which was held at the chief minister`s bungalow today.
During the talk an understanding was reached to institute staff enquiry alongside police investigation within a period of 15 days from today, the statement stated.
"Bearing on the line of the understanding, the proposed agitation stands temporarily suspended, in order to swiften the passage of law for evolving justice for one and all," the organizations stated"
The Imphal Free Press reports:
"An understanding was reached during a trilateral talk between the state government led by state chief secretary and DGP, inspector general of Assam Rifles (South) and representatives of the three tribal students` bodies, the All Tribal Students` Union Manipur, ATSUM, Kuki Students` organization, KSO and All Naga Students Association, Manipur, a statement issued by KSO said Sunday.Several officials of both police and army also participated in the talks which was held at the chief minister`s bungalow today.
During the talk an understanding was reached to institute staff enquiry alongside police investigation within a period of 15 days from today, the statement stated.
"Bearing on the line of the understanding, the proposed agitation stands temporarily suspended, in order to swiften the passage of law for evolving justice for one and all," the organizations stated"
UNLF and Burmese Army Accused of Abducting 400 Kuki Villagers
Eminent Kuki community organizations like the Kuki Inpi (apex body of the tribe), Kuki Movement for Human Rights and Kuki Chiefs Asscoation have accused the United Nation Liberation Front (UNLF) and the Burma's State Peace and Development Council (SPDC) cadres of forcibly abducting around 400 Kuki villagers from Laijang Kuki Village, Chandel District on March 12, 2007.
Kuki Inpi Manipur has also submitted a representation to the President and the Prime Minister of India as well as to the Chief Minister urging for intervention and rescue of the abducted villagers.
Kuki Women Union and Human Rights, Moreh, Kuki Students' Organisation, Moreh and HTC, Moreh have also lodged complaint with the chairman of District Peace and Development Council, Tamu, Myanmar in this regard.
UNLF has issued a statement officially denying these reports and have termed them, 'malicious propaganda' instigated at the behest of Indian intelligence.
Kuki groups have, however, stood by their accusations and have asserted that they have proof to substantiate their charges. The Kuki Student Organization (KSO) has clarified that it does not intend to tarnish the name of any militant group and its efforts are solely directed at urging the Government of India to ensure the safety of the abducted villagers.
Kuki Inpi Manipur has also submitted a representation to the President and the Prime Minister of India as well as to the Chief Minister urging for intervention and rescue of the abducted villagers.
Kuki Women Union and Human Rights, Moreh, Kuki Students' Organisation, Moreh and HTC, Moreh have also lodged complaint with the chairman of District Peace and Development Council, Tamu, Myanmar in this regard.
UNLF has issued a statement officially denying these reports and have termed them, 'malicious propaganda' instigated at the behest of Indian intelligence.
Kuki groups have, however, stood by their accusations and have asserted that they have proof to substantiate their charges. The Kuki Student Organization (KSO) has clarified that it does not intend to tarnish the name of any militant group and its efforts are solely directed at urging the Government of India to ensure the safety of the abducted villagers.
Friday, March 16, 2007
Brute Justice: Perils of Summary Execution by Non-State Actors
The summary execution of a drug addict who had murdered a child by the separatist People's Liberation Army (PLA) is a disturbing indication of internalisation of violence in Manipur, states Imphal Free Press in this editorial titled Brutal Justice:
"In an academic sense, it is also interesting to note how distinctly calibrated violence is on everybody’s moral scale. Hence, the violence involved in the murder of the child was obnoxious, but the execution of the murderer was justice. It is as if our society is in such a passionate state of confused emotions, induced by the violence all around for so many decades, that often the only safety valve its unfortunate denizens are privileged to, is to scream blood and vengeance every now and then.
[...]
We will reserve the third cheer till such a time as the justice delivery mechanism, be it those of the underground or overground governent, abandons all arbitrary elements and becomes an edified institution built by the collective wisdom of the people through refined and democratic means. Shouldn’t we recall that one of the strongest objections against the Armed Forces Special Powers Act, for instance, was on the ground that it departs from institution and strays into the arbitrary domain, and the dangers thereof?The episode also perhaps tells another familiar story – the breakdown of institutions in the establishment. For whatever the reason the kind of catharsis witnessed after justice was meted out to the child murderer has come to be far beyond the scope of the establishment. The erosion of the moral authority of the establishment over its subjects is near total, and there are today very few who still fully believe that the establishment, rather those in charge of it, are capable of doing any good, leave aside deliver justice."
Jawan Rapes a Teenager in Manipur and Fellow Soldiers Attack Scribes and Protesters
The Statesman reports that an 18-year-old girl was allegedly raped by an Assam Rifles jawan at Kotlien in Manipur’s Senapati district. The report stated that the jawan from the 38th Battalion, identified as Namthoi, also allegedly attempted to kill the victim after committing the crime on 13 March but was caught by residents of nearby Tikoram Beitu village. It was also reported that scribes were prevented by jawans to cover protest rallies of the incident.
Therefore, the All Manipur Working Journalists’ Union (AMWJU) has decided to cease work and boycott all Assam Rifles and Army coverage till appropriate action was taken against the accused jawan.
According to the union, at least two journalists were assaulted by the jawans when they went to the protest rallies convened by the villagers of Veitum Khullen near the Kotlien 38 AR post. Four reporters were later herded into the post which is located about 30 kms from Imphal and were detained till an AMWJU team with Col. Rajesh Misra PRO Defence came and released them. In the post, they were repeatedly asked to delete the photographs taken on the mob dispersal.
The report also says that after the Assam Rifles refused to hand over the accused to the protesting villagers, the villagers attacked the post forcing the jawans to retaliate. In the AR crackdown several women and villagers were injured some of them seriously.
Therefore, the All Manipur Working Journalists’ Union (AMWJU) has decided to cease work and boycott all Assam Rifles and Army coverage till appropriate action was taken against the accused jawan.
According to the union, at least two journalists were assaulted by the jawans when they went to the protest rallies convened by the villagers of Veitum Khullen near the Kotlien 38 AR post. Four reporters were later herded into the post which is located about 30 kms from Imphal and were detained till an AMWJU team with Col. Rajesh Misra PRO Defence came and released them. In the post, they were repeatedly asked to delete the photographs taken on the mob dispersal.
The report also says that after the Assam Rifles refused to hand over the accused to the protesting villagers, the villagers attacked the post forcing the jawans to retaliate. In the AR crackdown several women and villagers were injured some of them seriously.
Naxalites Go an a Rampage
In one of the deadliest attacks of recent times, fifty-four persons, including 15 personnel of the Chhattisgarh Armed Force and tribal youths of the "people's militia", Salwa Judum designated as Special Police Officers (SPOs) were killed in an offensive by 300 to 350 CPI (Maoist) cadres on a police base camp in the Bastar region in the early hours of Thursday.
According to reports, the Maoist cadres also captured a large stockpile of weapons from the camp during the attack. This is the latest in a series of attacks wherein the Maoist extremists have specifically and brutally targetted members of the "people's militia", Salwa Judum.
According to reports, the Maoist cadres also captured a large stockpile of weapons from the camp during the attack. This is the latest in a series of attacks wherein the Maoist extremists have specifically and brutally targetted members of the "people's militia", Salwa Judum.
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