FRONTLINE

MARCH 23, 2012 I NDI A S NATI ONAL MAGAZI NE RS. 25 WWW. FRONTLI NE. I N
Whose money
is it anyway?
The Supreme Court verdict in the Vodafone case raises
fears of other foreign companies exploiting it to avoid
paying tax on capital gains in a lax policy regime
SOCIAL MEDIA ARAB SPRING
New tools of protest 89
SPECIAL FEATURE NLC
Going places 117
ART RAMKINKAR BAIJ
Local & universal 64
VOLUME 29 NUMBER 5 MARCH 10- 23, 2012 I SSN 0970- 1710 WWW. FRONTLI NE. I N
F R O N T L I N E 3
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CONTROVERSY
Dow at the Olympic Games 29
GOVERNMENT
NCTC: Policy muddle 33
THE STATES
West Bengal:
Politics of violence 35
Maharashtra: Shiv Senas
lacklustre victory 38
CI VI L AVI ATI ON
Kingsher in the red 40
Air India on a wing
& a prayer 43
DEFENCE
Rafale: French conquest 48
WORLD AFFAI RS
Ethiopian evictions 51
Occupy movement
gaining ground 55
Interview:
Hardeep Singh Puri 57
ART
K.S. Radhakrishnan on
Ramkinkar Baij 64
MEDI A
Arab Spring and the
social media 89
FOCUS: DRDO
Underwater might 98
Navys eyes and ears 100
SCI ENCE
Antonio Ereditato,
University of Berne,
on neutrinos 108
SPECI AL FEATURE:
NEYVELI LI GNI TE
CORPORATI ON
In pursuit of power 119
Interview: A.R. Ansari,
Chairman-cum-Managing
Director 124
Reclaiming mine spoils 130
COLUMN
Bhaskar Ghose:
Murderous roads 94
R.K. Raghavan:
Fear of misuse 96
Praful Bidwai:
Renewables option 106
Jayati Ghosh:
Worrying trend 115
BOOKS 76
LETTERS 133
COVER STORY Vodafone verdict
The Supreme Court judgment in the Voda-
fone case, which has come under scrutiny,
brings to the fore the issue of tax avoidance. 4
RELATED STORI ES
Interview:
Girish Dave 11
Curious
conclusion 14
Treaty trick 17
Interview:
Prashant Bushan 20
Dont shoot the
interpreter 22
Interview:Mohan Gopal 26
ART
A Ramkinkar Baij retrospective,
showcasing 350 of his works, is on
at the National Gallery of Modern
Art, Delhi. K.S. Radhakrishnan
speaks on the show and the man. 64
MEDI A
The buzz generated online at
momentous junctures, such as
the uprisings in the Arab
world, is certainly more than
mere static. 89
SPECI AL FEATURE: NEYVELI
LI GNI TE CORPORATI ON
The public sector company is all set
to establish its presence in mining
and power generation across
several States. 117
M A R C H 2 3 , 2 0 1 2
The Supreme Court judgment in the Vodafone case, which has come under
scrutiny, brings to the fore the issue of tax avoidance. BY V. VENKATESAN I N NEW DELHI
Cover Story
P
T
I
The tax avoidan
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 5
We now live in a welfare state whose nancial needs,
if backed by the law, have to be respected and met. We
must recognise that there is behind taxation laws as
much moral sanction as behind any other welfare
legislation and it is a pretence to say that avoidance
of taxation is not unethical and that it stands on no
less moral plane than honest payment of taxation....
It is neither fair nor desirable to expect the legislature
to intervene and take care of every device and scheme
to avoid taxation. It is up to the court to take stock to
determine the nature of the new and sophisticated
legal devices to avoid tax and... to avoid the devices
for what they really are and to refuse to give judicial
benediction.
Supreme Court Judge O. Chinnappa Reddy in
McDowell and Company Limited vs Commercial
Tax Ofcer (1985).
TAX revenues are an indispensable source of
funding a governments development initiatives in
an era in which governments often lament the lack of
resources to secure for all citizens the right to an
adequate means of livelihood and to minimise the
inequalities in income.
Therefore, when individuals and companies re-
sort to the use of illegitimate devices to avoid tax and
nd the political and legal climate conducive to that,
it ought to arouse the nations social conscience if
only because plugging loopholes in tax collection
cannot be left entirely to the executive and the
legislature.
When the government understands its commit-
ment to collect legitimate taxes but is not successful
in convincing the judiciary to endorse it, it should
mean a serious institutional failure on the part of the
judiciary to safeguard the constitutional philosophy.
The Supreme Courts judgment in the Vodafone
case, delivered on January 20, is an instance of such
failure. Put simply, here was an unprecedented tax
demand by the income tax authorities on Vodafone
(to the tune of Rs.11,000 crore), on the basis of an
equally unprecedented transaction between Voda-
fone and Hutch, with a clear nexus to the sale of the
latters assets in India.
As happens in any case, two legal views are cer-
tainly possible over whether the Indian tax author-
ities have jurisdiction to tax Vodafone for the
transaction. The Bombay High Court had ruled in
2010 that the Income Tax Department had juris-
diction to tax Vodafone. The Supreme Courts judg-
ment on January 20 set that aside, giving huge relief
to Vodafone. The question being asked in legal cir-
cles is, if two equally valid but conicting legal in-
terpretations are possible, why not adopt the one
that could help the government earn the requisite tax
revenues rather than the one that has the potential to
weaken governance and leave the citizens to the
mercy of market forces.
It is possible to suggest, as some tax lawyers who
defend Vodafone have done, that the law does not
change if the tax demand is a large amount. But in
the same breath, some of them suggest that if the
Vodafone case had a tax implication of just Rs.10
crore, the case would have been over before the
Income Tax Appellate Tribunal itself and would not
have engaged the valuable time of the High Court
and the Supreme Court.
It is precisely for this reason that it needs to be
asked why Vodafone did not rst approach the Tri-
bunal for redress. As the stakes are high, both the
transaction and the manner in which the judiciary
understood and interpreted the issue are bound to
come under intense scrutiny. And because it has
huge implications (and possible setbacks for the I.T.
Department in future) for similar tax demands in-
volving foreign transactions with nexus to India,
experts anticipate revenue losses to the Central gov-
ernment running into more than Rs.1 lakh crore.
This is not to suggest that the Supreme Courts
judgment is scandalous; far from it. The govern-
ments advocates who argued the case before the
I NSTALLI NG THE VODAFONE logo at the companys ofce in
Mumbai in September 2007, after the deal with Hutchison
Essar was completed.
ce debate
It is essential to subject the
judgment to well-informed criticism
if only to prepare the ground for its
review. And whatever the outcome
of the review petition, it will have a
profound inuence on Indian tax
jurisprudence.
M A R C H 2 3 , 2 0 1 2
6 F R O N T L I N E
Supreme Court and independent law-
yers like Prashant Bhushan have
refrained from calling it so.
By convention, apex court rulings
carry huge respect even among those
disagreeing with them. Yet, it is essen-
tial to subject the Supreme Courts
judgment to serious and well-in-
formed criticismif only to prepare the
ground for its review.
Put in this context, Justice O.
Chinnappa Reddys observations in
the McDowell case, quoted above
delivered six years before the begin-
ning of the era of liberalisation and
economic reforms in 1991 are pres-
cient. Clearly, Justice Chinnappa Red-
dy envisaged a proactive role for the
judiciary to see through the fraudulent
tax avoidance devices employed by
taxpayers at the cost of social justice.
Now in his nineties, Justice Chin-
nappa Reddy must be ruing the man-
ner in which the Supreme Court
misinterpreted twice (the rst time in
2003 in the Azadi Bachao case and
now in the Vodafone case) in the past
10 years his holding on how the court
should be smart enough to expose the
legal devices that companies adopt to
avoid paying tax.
Justice Chinnappa Reddy was
judge of the Supreme Court from 1978
to 1987, and was among the most dis-
tinguished members of the judiciary.
His decision in the McDowell case was
one of the most admired judgments on
tax evasion.
MCDOWELL CASE
McDowell was a licensed manufactur-
er of liquor in Hyderabad. The compa-
ny had failed to disclose the excise duty
paid on liquor sold by it to wholesalers.
The taxing authority, through a notice,
called upon the company to show
cause why assessments made should
not be reopened. The company chal-
lenged the validity of this notice and
argued that the excise duty paid by the
buyer did not become a part of the
companys turnover.
The ve-judge Constitution Bench
dismissed McDowells appeal through
two judgments: one by four judges and
another concurring, detailed and sep-
arate judgment by Justice Chinnappa
Reddy. Justice Ranganath Misra, on
behalf of himself and three other judg-
es on the Bench, namely, Chief Justice
Y.V. Chandrachud and Justices D.A.
Desai, and E.S. Venkataramiah, held
as follows:
Tax planning may be legitimate
provided it is within the framework of
law. Colourable devices cannot be part
of tax planning and it is wrong to en-
courage or entertain the belief that it is
honourable to avoid the payment of tax
by resorting to dubious methods. It is
the obligation of every citizen to pay
the taxes honestly without resorting to
subterfuges.
Following this holding, the Bench
said in Paragraph 27:
On this aspect one of us, Chinnap-
pa Reddy, J., has proposed a separate
and detailed opinion with which we
agree.
The above sentence became the
bone of contention in arriving at the
ratio of the McDowell case. Did the
four judges agree entirely with Justice
Chinnappa Reddy, or only with regard
to his observations against the use of
colourable devices to avoid payment of
tax? The Supreme Court has held in
the Vodafone case that the ratio of
McDowell is that the four judges
agreed with Justice Chinnappa Reddy
only in the context of use of colourable
devices to avoid payment of tax. Jus-
tice Chinnappa Reddy, however, in his
separate opinion, has clearly under-
lined the need to depart from the
Westminster principle and tax
avoidance.
According to this British principle
(laid down in Inland Revenue Com-
missioners vs Duke of Westminster,
1936), every man is entitled if he can to
order his affairs so as to diminish the
burden of tax. Justice Chinnappa Red-
dy held that the principle of Westmin-
ster hadbeen given a decent burial and
in that very country where the phrase
tax avoidance originated, the judicial
attitude towards tax avoidance had
changed and the smile, cynical or even
affectionate though it might have been
at one time, hadnowfrozen into a deep
frown. No one could now get away
with a tax avoidance project with the
mere statement that there was nothing
illegal about it, he had said.
In the Vodafone case decided by
the Supreme Courts three-judge
Bench on January 20, the McDowell
ghost returned to haunt the judiciary.
The Bench comprised of Chief Justice
of India S.H. Kapadia and Justices
Swatanter Kumar and K.S. Radhak-
rishnan. In two separate judgments
(Chief Justice Kapadia and Justice
Swatanter Kumar delivering one and
Justice Radhakrishnan authoring the
second), the Bench set aside the Bom-
bay High Court judgment in the Voda-
fone case.
VODAFONE CASE
Briey, the case concerns a tax dispute
between the Vodafone Group and the
Income Tax Department (hereafter re-
ferred to as Revenue) over the acquisi-
tion by Vodafone International
Holdings BV (VIH), a company resi-
dent for tax purposes in the Nether-
lands, of the entire share capital of
CGP Investments (Holdings) Ltd.
(CGP), a company resident for tax pur-
poses in the Cayman Islands on Febru-
ary 11, 2007.
According to Revenue, the aim of
this transaction was to acquire 67 per
cent controlling interest in Hutchison
Essar Limited (HEL), a company resi-
dent in India. Revenue, therefore,
sought to tax capital gains, arising
from the sale of the share capital of
CGP on the basis that CGP, while not a
tax resident in India, holds the under-
lying Indian assets. The tax demand
was a whopping Rs.11.000 crore.
In the Vodafone
case, the
McDowell
ghost returned
to haunt the
judiciary.
M A R C H 2 3 , 2 0 1 2
8 F R O N T L I N E
VIH, on the contrary, argued that
it acquired companies which, in turn,
controlled a 67 per cent interest but
not controlling interest, in HEL. Fur-
ther, VIH contended that CGP held
indirectly through other companies 52
per cent shareholding interest in HEL
as well as Options to acquire a further
15 per cent shareholding interest in
HEL, subject to relaxation of foreign
direct investment (FDI) norms.
HI GH COURT VERDI CT
The Bombay High Court Bench com-
prising Justices Dr D.Y. Chandrachud
and J.P. Devadhar on September 8,
2010, upheld the Central govern-
ments contention that the Vodafone-
Hutch transaction had a signicant
nexus with India. Once the nexus is
established, income tax may extend to
that person in respect of his foreign
income, the Bench said. Such a nexus
can be based on residence or business
connection within the taxing state or
the situation within the state of an as-
set or source of income from which the
taxable income is derived, the Bench
explained.
Even though the revenue laws of a
country may not be enforceable in an-
other, that does not imply that the
courts of a country shall not enforce
the law against the residents of anoth-
er within their own territories, the
High Court Bench held.
While concluding so, the High
Court simply relied on the perception
of Hutchison Telecommunication In-
ternational Ltd. (HTIL), Cayman Is-
lands, which had its shareholdings in
HEL in terms of HTILs Annual Re-
port for 2007. The High Court found
that for HTIL the transaction repre-
sented a discontinuation of its oper-
ations in India (paragraph 123).
In paragraph 124, the High Court
went into the nature of the transaction
from the perspective of how VIH BV
looked at the events that led to the
sale-purchase agreement dated Febru-
ary 11, 2007. The Bench then went on
to analyse the relevant documents.
In paragraph 132, it concluded
that it would be simplistic to assume
that the entire transaction between
HTIL and VIH BV was fullled merely
upon the transfer of a single share of
CGP in the Cayman Islands. The com-
mercial and business understanding
between the parties postulated that
what was being transferred from
HTIL to VIH BV was the controlling
interest in HEL. HEL was at all
times intended to be the target compa-
ny and a transfer of the controlling
interest in HEL was the purpose which
was achieved by the transaction, the
Bench noted.
More important, the High Court
Bench also relied on the due diligence
report of Ernst & Young to emphasise
that the object and intent of the parties
was to achieve the transfer of control
over HEL. The transfer of the solitary
share of CGP, a Cayman Islands com-
pany, was put into place subsequently
at the behest of HTIL as a mode of
effectuating the goal.
In paragraph 134, the High Court
was very specic: The transactional
documents are not merely incidental
or consequential to the transfer of the
CGP share, but recognised independ-
ently the rights and entitlements of
HTIL in relation to the Indian busi-
ness which were being transferred to
VIH BV.
In paragraph 135, the High Court
further noted: The transaction be-
tween VIH BV and HTIL was a com-
posite transaction which covered a
complex web of structures and ar-
rangements, not referable to the trans-
fer of one share of an upstream
overseas company alone. The transfer
FEBRUARY 14, 2007: Vodafone chief executive ofcer Arun Sarin, right, and Hutchison Essar CEO Asim Ghosh at a
press conference in New Delhi after Britains Vodafone Group PLC had agreed to buy a 67 per cent controlling
interest in Hutchison Essar Ltd for $11.1 billion.
G
U
R
I
N
D
E
R

O
S
A
N
/
A
P
M A R C H 2 3 , 2 0 1 2
1 0 F R O N T L I N E
of that one share alone would not have
been sufcient to consummate the
transaction.
I N THE SUPREME COURT
Unfortunately, the Supreme Court
found no merit in the High Courts
ndings. In order to rebut these nd-
ings, the Supreme Court resorted to an
academic discussion on why this case
concerns a share sale rather than an
asset sale.
The Supreme Courts judgment fa-
vours a look at test in which Revenue
looks at the entire Hutchison structure
as it existed, holistically, and not adopt
a dissecting approach. In other words,
Revenue should not ask whether the
transaction is a tax deferment/saving
device, but apply the look at test to
ascertain its true legal nature.
The court then stretched this look
at test to be applied to every strategic
FDI coming to India, as an investment
destination, in a holistic manner.
While doing so, it said, Revenue/
courts should keep in mind six factors,
namely, the concept of participation in
investment; the duration of time dur-
ing which the Holding Structure ex-
ists; the period of business operations
in India; the generation of taxable rev-
enues in India; the timing of the exit;
and the continuity of business on such
exit. The onus is on Revenue to identify
the scheme and its dominant purpose,
it said.
The Supreme Court frowned upon
the High Courts look through test
because, it claimed, it was inconsistent
with tax policy certainty, which was
crucial for taxpayers (including for-
eign investors) to make rational eco-
nomic choices in the most efcient
manner.
While examining the question
whether the Supreme Court must have
chosen the dissecting/look through
test of the High Court rather than the
look at test, a return to the question
of the ratio of the McDowell judgment
is imperative. Delivered as part of the
ve-judge Constitution Bench, Justice
Chinnappa Reddys separate but con-
curring judgment in that case must
have been considered binding on Su-
preme Court Benches comprising few-
er than ve judges.
AZADI BACHAO CASE
In 2003, in the Azadi Bachao Andolan
case, a two-judge Bench of the Su-
preme Court upheld the governments
appeal against the Delhi High Court
judgment quashing Circular No.789 of
April 13, 2000. This circular stated
that the Mauritius Tax Residency Cer-
ticate issued by the Mauritius Tax
Ofce was a sufcient evidence for ac-
cepting the status of residence and
benecial ownership for applying the
Convention on the Avoidance of Dou-
ble Taxation between India and Maur-
itius executed on April 1, 1983.
The then National Democratic Al-
liance (NDA) government had issued
the circular because the tax authorities
in India had issued notices to some
shell companies incorporated in
Mauritius with the purpose to invest
funds in India. But these companies
were controlled and managed from
countries other than India and Maur-
itius. The circular was ostensibly
aimed at instilling condence among
foreign investors who used the Maur-
itius route.
In the Vodafone case, the Central
government submitted before the Su-
preme Court that the two-judge Bench
wrongly decided the Azadi case. The
government continues to insist that
Circular No.789 is legally valid. But it
is unhappy that the Bench in the Azadi
case applied the McDowell ratio in-
correctly while restoring the circular.
The McDowell ratio is that arti-
cial tax avoidance devices must be
brought within the tax net. Both the
Azadi and Vodafone Benches of the
Supreme Court, however, interpreted
the ratio to mean that only colourable
tax avoidance devices could be brought
within the tax net. If the tax authorities
try to prove precisely that a particular
device is colourable by adopting a
look through test, the effort fails as in
the Vodafone case.
Therefore, there is considerable
force in the Central governments plea
that the Supreme Court decided
wrongly the Azadi and Vodafone cases
by its awed interpretation of the
McDowell ratio. If a device is appar-
ently meant to avoid tax, then it should
be brought under the tax net no matter
whether it is colourable or not.
There is one more reason to worry
about the Supreme Courts judgment
in the Vodafone case. The court has
held that the offshore transaction is a
bona de structured FDI investment
into India which fell outside Indias
territorial tax jurisdiction and was
hence not taxable.
In its review petition led before
the Supreme Court, the Central gov-
ernment pointed out that the Voda-
fone transaction did not involve any
inow of monies into India because
the sale consideration was paid out-
side India and therefore was not a case
of FDI into India at all. The govern-
ment has pointed out that the court
failed to appreciate that the FDI policy
of the Government of India was un-
related to the instant case because it
did not involve any investment or in-
ow of money into India. The govern-
ment made it clear that its FDI policy
and the interpretation of taxation stat-
utes operate in two different realms.
Whatever the outcome of this re-
view petition in the Supreme Court,
the Vodafone judgment, with its myr-
iad aspects, will have a profound inu-
ence on Indian tax jurisprudence.
It makes sense to conclude with
what Justice Chinnappa Reddy said in
the McDowell judgment: There is the
sense of injustice and inequality which
tax avoidance arouses in the breasts of
those who are unwilling or unable to
prot by it. Last but not the least is
the ethics (to be precise, the lack of it)
of transferring the burden of tax liabil-
ity to the shoulders of the guileless
good citizens from those of artful
dodgers.
To the defenders of the Vodafone-
Hutch deal, these observations of Jus-
tice Chinnappa Reddy may appear to
be totally unnecessary to decide the
facts of the McDowell case. To many,
however, he had the foresight to antici-
pate that tax avoidance could take in-
genious forms, and that it was unfair to
accord it any legitimacy.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 1 1
Cover Story
GIRISH DAVE retired as Chief Com-
missioner of Income Tax from Mumbai in
early 2010 after serving in the Income Tax
Department for more than three decades.
He is widely seen as the architect of the I.T.
Departments notice demanding tax from
Vodafone, but is modest enough to give the
credit for pursuing the case to the team of
ofcers working with him. Excerpts from
an interview he gave Frontline:
What, according to you, are the legal
aws in the judgment?
The review petition led by the [In-
come Tax] Department enlists the aws,
legal as well as factual. No comments at
this stage need be made beyond what has
been stated in the said petition as the matter is sub
judice.
Another area which comes to mind is the refer-
ence to FIPB [Foreign Investment Promotion
Board] approval while drawing certain conclusions
in the judgment. In fact, some of the agreements may
have been drawn by the involved parties, that is,
Analjit Singh, Asim Ghosh, HTIL [Hutchison Tele-
communications International Limited] and Voda-
fone, after the FIPB accorded its approval, and,
therefore, the FIPB could not have decided other-
wise though it had real doubts about the relationship
of holdings of Analjit Singh and Asim Ghosh with
Hutchison. It would have been appropriate if the
records of FIPB proceedings would have been called
for to reappraise the circumstances leading to this
approval.
What are the consequences of the judgment for tax
revenue and development?
Common perception (except that of those whose
survival thrives on the structuring of such deals) is
that this judgment will have the effect
of legitimising tax havens. Tax havens
will now be used with impunity for
structuring similar deals by the M&A
[mergers and acquisitions] industry.
The judges seem to have reached the
decision by their curious interpretation
of the judgment in the McDowell case.
Is their interpretation of the McDowell
judgment, especially Justice O.
Chinnappa Reddys observations on the
need to depart from the
Westminster principle, correct?
The honble court has held that the
McDowell would apply only in the con-
text of articial and colourable devices,
not to the present transaction because
HTILs corporate structure could not be considered
a sham. It is respectfully submitted that Chinnappa
Reddy, J. had, in fact, observed very clearly that the
courts are now concerning themselves not merely
with the genuineness of a transaction but with the
intended effect of it for scal purposes.
It was thus held that no one can now get away
with a tax avoidance project with the mere statement
that there is nothing illegal about it. It is respectfully
submitted that not going ahead with the test formu-
lated in McDowell and proceeding to determine the
Tax havens will be
used with impunity
The tax avoidance arrangement in
the transaction between Hutchison
and Vodafone has been equated with
tax planning. In fact, globally, the
distinction between avoidance and
evasion has blurred.
Interview with Girish Dave, retired Chief Commission of Income Tax, Mumbai.
BY ANUPAMA KATAKAM
GI RI SH DAVE. The
six postulates
suggested may
become possible
areas of future
controversies.
M A R C H 2 3 , 2 0 1 2
1 2 F R O N T L I N E
transaction on the basis of HTILs cor-
porate structure appears [to be] an
error apparent on the face of the
record.
Did the Bench miss the subtle
distinction between the terms tax
planning and tax avoidance and tax
avoidance and tax evasion?
The tax avoidance arrangement
employed in the transaction between
Hutchison and Vodafone has been
equated with tax planning. In fact,
globally, the distinction between tax
avoidance and tax evasion has blurred.
The exclusion of indirect transfers
from Section 9 of the Income Tax Act
and as a consequence the refusal to
consider it as a look through (rather
than as a look at) provision was
seen as a setback to the I.T.
Department.
The issue is not whether transfer is
direct or indirect. The issue was,
what is the subject matter of the
transaction if construed in a realistic
and commercial sense. The principles
for interpretation of contracts are very
well discussed in the renowned work of
Sir Kim Lewison.
The judgment has, in fact, implied-
ly inserted words direct in Section 9
by saying that indirect transfer is not
covered by these provisions. Further,
there is no judicial precedent to rely on
pending legislation to interpret exist-
ing legislation as has been done while
referring to the Direct Tax Bill, 2010.
In Paragraph 73, the Bench seeks to
distinguish between preordained
transaction and a transaction which
evidences investment to participate.
In the latter, a dissecting approach is
not warranted. Is the Bench correct in
its emphasis on look at approach
rather than on the dissecting
approach?
The court held that the depart-
ment had dissected the transaction.
The courts ndings did not consider
any of the submissions advanced by
the department, whereunder the de-
partment had submitted that the
transaction had to be viewed as one
consolidated whole. The Supreme
Courts conclusion that the famous
Ramsay ruling of the U.K. House of
Lords prescribed the look at doctrine
appears to be not correct. In fact, the
Ramsay doctrine was heavily relied on
by the Revenue in this case in order to
free taxing statutes from the shackles
of literal interpretation and thus re-
quiring the court to look at the real
transaction and the mode which had
been adopted to avoid the tax net.
The Supreme Court has held that it is
a share sale and not an asset sale. In
paragraph 89, they say it is an
outright sale between two non-
residents of a capital asset (share)
outside India. So there is no liability to
deduct TAS. Is this view correct?
At so many places, the honble
court has said that the present case
concerns transfer of investment in en-
tirety (refer para 75). The transaction
in the present case was of divestment
(refer para 80). It concerns the sale of
an entire investment (refer para 88).
This entire investment was not in
purchase of one share of one U.S. dol-
lar of CGPs only capital. The invest-
ment was in the Indian mobile
telecommunication business. CGP
had no balance sheet as it had no ac-
counts, no prot and loss account, so a
question arises how this value of U.S.
$11.2 billion was arrived at when no
accounts of CGP were available even in
the due diligence report of E&Y. If this
investment was in the telecom busi-
ness in India, a natural corollary would
be that it was this investment in entire-
ty which was in fact sold. Investment
was not in one share of CGP, for which
in the year 1998 Hutchison may have
paid one U.S. dollar to Ms Nicole Me-
lia from whom it acquired that one
share.
Do you think Azadi was incorrectly
decided? From the Solicitor Generals
submissions, can we say the
government too agrees to it though it
was a respondent in that case?
What the learned Solicitor General
has submitted for the consideration of
the honble court was that the reading
of McDowell by the honble judges who
decided the Azadi Bachao case was not
correct, and consequently the basis of
the judgment in Azadi Bachao led to a
wrong inference, which needs to be
corrected. This was so as McDowell
was a decision of ve judges whereas
Azadi Bachao was decided by two
judges, and therefore this correction
can be done by the present Bench of
three judges. To explain this history of
Form vs Substance, the learned Solic-
itor General sought to explain an en-
tire chain of cases, which included the
latest in the series, the case of Tower
MCashback LLP decided by a Bench of
seven Lords and reported in [2011] 2
WLR 1131. This case surely missed the
attention of the honble judges as it
does not nd mention in the analysis of
the subject Form vs Substance.
Justice K.S. Radhakrishnan has held,
in paragraph 90 of his judgment, that
the principle of Duke of Westminster
is still valid. Your comments.
In my humble submission, all prin-
ciples are valid, including those of
Ramsay and McDowell, and the appli-
cation of these principles would de-
pend from case to case.
You also mentioned six positives in
the Supreme Court judgment. Could
you explain those?
These are not positives as under-
stood by you. These six postulates sug-
gested in the judgment are in para 68
and may become possible areas of fu-
ture controversies when given effect
to, to the exclusion of each other.
The review
petition led by
the [I.T.]
Department
enlists the
aws, legal as
well as factual.
M A R C H 2 3 , 2 0 1 2
1 4 F R O N T L I N E
THE ramications of the Supreme Court verdict
in the Vodafone case could be much wider than what
is obvious at rst sight, with implications not just for
taxation but for the much broader issue of corporate
regulation in general. In order to appreciate this, it is
necessary to set the premises used by the court to
arrive at the conclusion that the demand imposed by
the tax authorities on Vodafone was illegitimate
against some of the realities of the Indian corporate
sector. These premises are not necessarily crystal
clear in the judgment, but that only makes it more
amenable to interpretations of the kind that are
highlighted here.
The substantive facts of the Vodafone-Hutch
transaction that even though it was an offshore
transaction, its ultimate purpose as well as result was
the transfer of control over a company, now called
Vodafone Essar Limited (VEL), which was regis-
tered in India, which owned capital assets located in
India and whose business was in India are well
known and the parties concerned never made a se-
cret of it. The Supreme Court judgment, too, does not
dispute these substantive facts.
By denying the legal signicance of some crucial
facts, however, the court has concluded that the
provisions of the Income Tax Act, according to which
income arising from the transfer of capital assets
located in India would be deemed to be income
originating in India and be subject to capital gains
tax, were not applicable to the Vodafone-Hutch
transaction.
To arrive at this conclusion the judgment ap-
pears to have relied on not one but two different
premises, though both have a common underlying
basis. Either of these, if correct, would be sufcient
for the courts conclusion to be valid. It is their
correctness, however, that needs to be scrutinised
with reference to their larger implications and not
only in relation to the particular case at hand.
The rst premise was that the transaction be-
tween Vodafone and Hutch was a share transfer
(sale) rather than a transfer of capital assets and that
the ownership of the capital assets remained vested
in the Indian company. The judgment took recourse
to the legal distinction between a company and its
shareholders and the fact that the de facto controll-
ing right enjoyed by those holding a large block of
shares in a company is not in the nature of a legally
enforceable right. The judgment, however, carries
these to the point where it endedup ignoring the real
distinction between a shareholding that constituted
a controlling interest and that which was a pure
nancial investment.
It is entirely immaterial here that the share(s)
actually transferred were not of the company located
in India but of offshore companies that ultimately
controlled the shares that constituted the controlling
interest in the Indian company. Even if the shares
were of the company located in India, in the courts
view it would not constitute a transfer of capital
assets.
Once it is accepted that the shareholders of a
company have a distinct legal identity from the com-
pany, no matter what the proportion of shares that
they hold is, it follows that two companies would
have distinct identities even if one held a controlling
share in the other. The Supreme Court judgment
makes it a point to emphasise that even a subsidiary
has an identity distinct from its parent holding com-
pany. Stretched so far, this argument must mean
that the law be blind to the essential connection
linking the offshore transaction between Vodafone
and Hutch and the company located in India.
This connection existed because what was sold to
Vodafone was the company at the apex of a structure
of holding and subsidiary companies located abroad,
through which more than half the shareholding of
the company in India was ultimately controlled. The
Curious conclusion
Once it is accepted that the
shareholders of a company have a
distinct legal identity from the
company, it follows that two
companies would have distinct
identities even if one held a
controlling share in the other.
The Vodafone judgment upholds the principle of maintaining a sharp separation
between companies and their shareholders. BY SURAJI T MAZUMDAR
Cover Story
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 1 5
denial of any legal signicance of this
chain of holdings underlies the second
premise of the Supreme Courts ver-
dict, namely that nothing located in
India changed hands as a result of the
Hutch-Vodafone transaction. In the
courts view, since the asset (share) ac-
tually transferred had a foreign loca-
tion it was outside the jurisdiction of
Indian tax authorities.
To arrive at the judgment, the Su-
preme Court had to nd a way around
the 1985 judgment of the same court in
the McDowell case, which upheld the
principle of going behind the corpo-
rate veil to thwart illegitimate tax
avoidance. The way in which the Voda-
fone judgment achieves this appears in
effect to be a case of applying a partic-
ular logic only in order to deny its ap-
plicability in the same breath.
What the judgment argues is that
such going behind the corporate veil or
looking through would be legitimate
only in cases where it can be establish-
ed that there is a deliberate intention
of evading taxes. In the Supreme
Courts view no such conclusion was
warranted in this case if the steps that
led to the creation of the complex hold-
ing structure of VEL and the eventual
Vodafone-Hutch transaction were
seen in their proper context. The para-
doxical result of this reasoning is the
following once the legality of the
structure has been established, its ex-
istence cannot be recognised! The con-
clusion that counts, according to the
Supreme Court, is that the structuring
AT A VODAFONE store in Agartala in Tripura. The emphasis on creating a corporate-friendly climate has resulted in
a permissive environment, eroding the states capacity to discipline private capital.
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M A R C H 2 3 , 2 0 1 2
1 6 F R O N T L I N E
of the transfer of control from Hutch to
Vodafone was not done in a particular
way with the intention of avoiding tax-
es. Since, therefore, the corporate veil
cannot be pierced, the fact that there
was a transfer of control from Hutch to
Vodafone must be ignored. An addi-
tional implication would be that as
long as it can be established that a
mechanism was not originally created
with the intention of avoiding taxes, it
does not matter if it eventually has
such a result.
The Supreme Court judgment in
the Vodafone case has thus upheld the
principles of maintaining a very sharp
separation between companies and
between companies and their share-
holders and laid down very stringent
standards for determining when these
ne legal distinctions can be over-
looked in favour of a more realistic
approach. It is this that makes the
judgment, given the realities of the In-
dian corporate sector, amenable to be
used for undermining the much-need-
ed regulation of that sector. It is not
surprising, therefore, that it has been
welcomed so heartily in corporate
circles.
Lack of enforcement has long been
a feature of corporate regulation in In-
dia, and tax evasion is only one expres-
sion of this larger phenomenon. Apart
from undertaking actions that are
purely illegal, nding and using legal
loopholes to circumvent or manipulate
regulations and defeat their purpose
has been an entrenched feature of cor-
porate culture in India. Aiding in the
subversion of regulation has been a
second important feature of the Indian
corporate sector, which also has a long
history. This is the prevalence of multi-
company structures whereby a com-
mon control is exercised over a num-
ber of legally separate companies,
often taking advantage of the right of
these companies to own each others
shares. The deliberate creation of such
structures and undertaking business
activities through them rather than
single companies, sometimes precisely
to bypass regulations, has been the
pattern in India.
Multi-company structures and
corporate malpractices have gone to-
gether in many different ways other
than in the case of tax evasion. For
instance, in an earlier era, Indian busi-
ness groups used multiple companies
to try and corner licences in individual
industries. Indian and foreign rms
also used separate companies con-
trolled by them to get around the reser-
vation of some sectors for small-scale
industries.
The diversion of funds raised from
nancial institutions or capital mar-
kets through one company with a par-
ticular activity to other group
companies with different activities has
been quite regularly practised in the
Indian corporate sector. Insider trad-
ing or share-price rigging through
companies legally independent of the
companies whose shares were being
transacted is also known to have hap-
pened. Such examples can be multi-
plied. The ones cited are, however,
sufcient to establish that for proper
regulatory enforcement the legal rec-
ognition of the common identity bind-
ing legally independent companies,
derived from the fact that they are con-
trolled by the same actors, is crucial.
This has never been easy the explicit
provisions for such recognition that
once existed in the Monopolies and
Restrictive Trade Practices (MRTP)
Act, 1969, were themselves circum-
vented in ingenious ways by business
rms in India. The Supreme Court
judgment in the Vodafone case makes
it even more difcult.
Even before the Vodafone verdict,
the liberalisation measures since the
early 1990s have contributed to weak-
ening corporate regulation. Liberali-
sation has not meant the end of all
regulation. The emphasis on creating a
corporate-friendly climate has, how-
ever, resulted in a more permissive en-
vironment, further eroding the states
capacity to discipline private capital.
At the same time, restrictions on the
use of multi-company structures that
owed from the earlier anti-monopoly
laws have been withdrawn. These have
happened alongside the opening up of
the economy and increasing cross-bor-
der transactions.
One consequence is that multi-
company structures have increasingly
come to include within themselves off-
shore corporate entities, many regis-
tered in tax havens. Indian afliates of
foreign multinational rms, of course,
always had cross-border connections
with corporate entities registered else-
where, but these have now become
common even in the case of Indian
rms. In other words, the scope for
using multi-company structures
spread across many jurisdictions to get
around regulations in India has in-
creased.
If the Vodafone verdict is seen in
such a context, then the need to invali-
date its serious implications becomes
even more pressing.
Whether the undoing of the major
repercussions of the Vodafone verdict
will result through the Income Tax De-
partments successfully appealing for a
review of the judgment remains to be
seen. If it does not, and perhaps even if
it does, an appropriate legislative re-
sponse may be necessary. It is not,
however, sufcient for legislation to
merely explicitly provide for taxing
capital gains arising from transactions
of the Hutch-Vodafone kind. What is
required is the opening up of the web
of connections between myriad corpo-
rate entities spread across a variety of
jurisdictions to legal scrutiny and rec-
ognition of the purposes for which they
exist.
Surajit Mazumdar is an Associate
Professor of Economics at Ambedkar
University, New Delhi.
Lack of
enforcement
has long been
a feature of
corporate
regulation in
India.
M A R C H 2 3 , 2 0 1 2
MAURITIUS is the biggest of an idyllic clutch of
islands in the Indian Ocean off the south-eastern
coast of Africa, roughly 870 kilometres east of Mada-
gascar. Its sun-kissed beaches attract tourists in
droves. Mauritius is also a preferred destination for
another category of visitors who wear dark suits and
carry briefcases when they are not sunbathing. They
are rather adept at crunching numbers and reading
the ne print of legal tomes. They represent foreign
institutional investors (FIIs) and multinational cor-
porations, especially those doing business with
India.
Mauritius has for long had a special relationship
with India. Its government is controlled by persons
of Indian origin. The Indian Navy has an important
presence in the island nation. More importantly,
since August 1982 the governments of India and
Mauritius have had a double taxation avoidance
treaty (DTAT) that allows for treaty shopping or
round tripping of investments phrases that imply
that investors from third countries with relatively
high rates of taxation on business prots and income
earned from transactions in shares and other securi-
ties can get away without paying corporate income
tax or capital gains tax by routing their funds
through that country.
A large number of FIIs who trade on the Indian
stock markets operate from Mauritius. According to
the tax treaty between India and Mauritius, capital
gains arising from the sale of shares are taxable in the
country of residence of the shareholder and not in
the country of residence of the company whose
shares have been sold. Therefore, a company resi-
dent in Mauritius selling shares of an Indian compa-
ny will not pay tax in India. Since there is no capital
gains tax in Mauritius, the gain will escape tax
altogether.
Thanks to the absence of capital gains tax and the
low incidence of taxation on corporate prots, over
15,000 international companies have set up afliate
or associate rms in Mauritius. That is why we have a
patently ridiculous situation in which the small is-
land nation is the single largest source of foreign
investment in India although its economy is a
hundred times smaller. Mauritius ranks rst among
all countries in inows of foreign direct investment
(FDI) to India, with cumulative inows amounting
to roughly $11 billion (around Rs.55,000 crore at
current exchange rates). In recent years, Mauritius
Treaty trick
Of all tax havens around the world,
Mauritius is the most favoured
choice for those investing in
India as well as for a particular
section of Indians that uses
facilities in that country to
launder its illegal wealth.
The Vodafone case highlights yet again how foreign companies operating in India
use tax havens to avoid paying taxes. BY PARANJOY GUHA THAKURTA
Cover Story
F R O N T L I N E 1 7
M A R C H 2 3 , 2 0 1 2
1 8 F R O N T L I N E
has accounted for approximately half
of the annual inows of FDI to India
and around 40 per cent of FII money
that has come into the countrys stock
exchanges.
DEFI NI TI ON OF TAX HAVEN
Before continuing, it would be useful
to explain what a tax haven is. Perhaps
the oldest tax haven in the world is
Jersey, which is part of the Channel
Islands off the coast of Normandy in
France. Geoffrey Colin Powell, former
economic adviser to Jersey, candidly
dened a tax haven: What... identies
an area as a tax haven is the existence
of a composite tax structure establish-
ed deliberately to take advantage of,
and exploit, a worldwide demand for
opportunities to engage in tax
avoidance.
A December 2008 report of the
U.S. government Accountability Of-
ce was unable to dene categorically
a tax haven but considered the follow-
ing characteristics as indicative of a tax
haven:
(a) nil or nominal taxes;
(b) lack of effective exchange of tax
information with foreign tax
authorities;
(c) lack of transparency in the op-
eration of legislative, legal or adminis-
trative provisions;
(d) no requirement for a substan-
tive local presence; and
(e) self-promotion as an offshore
nancial centre.
While the Government of India
has DTATs with 80-odd countries, the
treaty with Mauritius is special be-
cause of particular clauses. Article 7 of
the treaty stipulates that the prots of
an enterprise of a contracting state are
to be taxed only in that state, unless the
enterprise carries on business in the
other contracting state through a per-
manent establishment situated there.
If a permanent establishment has been
created, the prot may be taxed in the
other state only to the extent that is
attributable to that establishment. Ar-
ticle 5 denes permanent establish-
ment as a xed place of business
through which the business is wholly
or partly carried out.
Article 6 species that income
from immovable property will be taxed
in the contracting state in which the
property is situated. Immovable prop-
erty is dened according to the laws
and usage of the contracting state. Ar-
ticle 13 (4) of the treaty states that
gains derived by a resident of a con-
tracting state from the alienation of
any property will be taxed only in that
state. Thus, if a Mauritius company
earns capital gains in India, then such
income is not eligible to be taxed in
India. Moreover, capital gains arising
from the sale of securities in India by a
Mauritian resident are taxable only in
Mauritius.
The problem arises from the fact
that Mauritius is not just a place where
over thousands of shelf or shell
companies have been set up by smart
lawyers and accountants to avoid tax-
es. The country has unfortunately be-
come a convenient conduit for
laundering illegal money. Not just
drug pushers and arms merchants, un-
scrupulous promoters of Indian com-
panies have been known to use rms
located in Mauritius to ramp up the
prices of their own shares through the
use of participatory notes issued by
international fund managers.
Participatory notes are nancial
instruments that help conceal the ori-
gin of funds invested in stocks and
shares in India. The regulator of the
countrys capital markets, the Securi-
ties and Exchange Board of India (SE-
BI), had submitted a report to the
Joint Parliamentary Committee that
PRI ME MI NI STER MANMOHAN Singh with his counterpart from Mauritius,
Navinchandra Ramgoolam, during the ceremonial welcome for the latter at
Rashtrapati Bhavan when he came on a four-day visit to India in February.
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investigated the 2001 stock market
scandal on how participatory notes are
misused. Thereafter, the Reserve Bank
of India opposed the use of such -
nancial instruments, but the Finance
Ministry has not heeded its objections.
Arun Kumar, Professor of Eco-
nomics at Jawaharlal Nehru Universi-
ty, who is associated with Tax Justice
Network, an organisation that tracks
activities in 77 tax havens around the
world, has estimated that the total
amount of money (with interest) that
has been taken out of India illegally
over the ve decades since 1950 would
be in the region of $1.5 trillion, a gure,
he says, is corroborated by a recent
study done by an association of Swiss
bankers. A portion of this money has
returned to India after being laun-
dered through Mauritius.
CBDT CI RCULAR ON FI I S
On April 13, 2000, the Central Board
of Direct Taxes (CBDT) in the Union
Ministry of Finance issued a circular
placing an embargo on income tax of-
cers conducting detailed investiga-
tions on the activities of
Mauritius-based FIIs if such investors
produced a certicate from the Maur-
itius government about their dom-
icile or residential status in that
country. This circular was challenged
in court through two public interest
litigation (PIL) petitions. A Bench of
the Delhi High Court ruled that mere
production of a certicate by a compa-
ny that it was registered in Mauritius is
not sufcient proof for claiming the
(tax) benet under (the) DTAT and
added that the country had been los-
ing millions of rupees by allowing the
opaque system to operate.
The circular that had reportedly
been issued at the behest of the then
Finance Minister, Yashwant Sinha,
elicited a lot of criticism at that time
even from the governments support-
ers. Bharat Jhunjhunwala, who is close
to the Rashtriya Swayamsewak Sangh
(RSS), the ideological parent of the
Bharatiya Janata Party (BJP), had this
to state about the role of the then Fi-
nance Minister in Indian Express (Au-
gust 1, 2001):
Any bureaucrat or Minister can
subvert governance to favour his near
and dear ones and yet claim that he is
clean the Income Tax Department
had issued notices to Mauritius-based
FIIs seeking to deny them benets of
the Double Taxation Avoidance Treaty
with that country because their head
ofces were located in USA or other
countries. The Finance Minister inter-
vened and instructed that a certicate
of registration issued by the govern-
ment of Mauritius was adequate and
nal proof of the FIIs domicile and
asked the Income Tax Department to
withdraw their notices. The Finance
Ministers bahu (or daughter-in-law,
Punita, who was working then for a
leading international nance rm)
was one beneciary of the Ministers
intervention. Yet, this was considered
clean because the Finance Minister
had disclosed his interest to the Prime
Minister. Whether the decision was
taken in the interests of the country or
the bahu can never be answered.
In his biography, Confessions of a
Swadeshi Reformer, My Years as Fi-
nance Minister (Penguin Viking, New
Delhi, 2007), Yashwant Sinha has re-
counted how greatly hurt he felt
when it was alleged that the April
2000 CBDT circular on tax conces-
sions for corporate bodies registered in
Mauritius had been issued because he
wanted to favour a rm that had em-
ployed his daughter-in-law.
The Union government appealed
against the Delhi High Court judg-
ment in the Supreme Court arguing
that the CBDT circular was needed to
attract foreign investment. In 2003,
the apex court ruled that this device
was an act of legitimate tax planning
by stating that many developed coun-
tries tolerate or encourage treaty shop-
ping even if it was unintended,
improper and unjustied for non-tax
reasons, unless it leads to a signicant
loss of revenue. The court added: The
court cannot judge the legality of trea-
ty shopping merely because one sec-
tion of thought considers it improper,
neither can it characterise the act of
incorporation under the Mauritius law
as a sham or a device actuated by im-
proper motives.
On April 2, 2009, the heads of state
of the Group of 20 issued a statement
in London, a portion of which read:
The era of banking secrecy is over.
The statement called for blacklisting of
those tax havens that did not adhere to
the international standard for ex-
change of information. The then Brit-
ish Prime Minister, Gordon Brown,
stated rather dramatically: This is the
beginning of the end of tax havens. A
day earlier, speaking at a dinner meet-
ing, Prime Minister Manmohan Singh
said: We should endorse sharing in-
formation and bringing tax havens and
non-cooperating jurisdictions under
closer scrutiny.
Should one take such pronounce-
ments of political leaders seriously?
There is a section within the govern-
ment that wants to renegotiate certain
controversial clauses in the India-
Mauritius DTAT to check tax evasion
despite the political and diplomatic
implications of offending a friendly
country. But there is a far more power-
ful section among promoters of corpo-
rate entities that wants the status quo
to be maintained.
If India truly wishes to assist eco-
nomically the people of Mauritius and
not just its politicians, lawyers and ac-
countants, it would probably make
better sense for it to provide grants
instead of allowing Mauritius to be
used as a haven for a breed of money-
launderers, nancial sharpshooters
and white-collar criminals.
Paranjoy Guha Thakurta is an inde-
pendent journalist and educator.
India has
DTATs with
around 80
countries, but
Mauritius is
special because
of some clauses.
M A R C H 2 3 , 2 0 1 2
2 0 F R O N T L I N E
THE Supreme Courts judgment in
the Vodafone case has given rise to
serious concerns about the judiciarys
attitude to revenue collection by the
government. One such concern is
whether there is lack of understand-
ing among the judges who delivered
the judgment that tax avoidance, like
tax evasion, can never be legitimate.
In the Azadi Bachao Andolan case in
2003, the Supreme Court upheld the
validity of a governments circular
making it easy for foreign companies
to claim fake residential status in
Mauritius in order to avoid tax under
Indias Double Taxation Avoidance
Convention (DTAC), 1983. Prashant
Bhushan, senior advocate in the Su-
preme Court who had argued in the
court on behalf of the Andolan
against that circular, explains in this
interviewwhat has gone wrong in the
Vodafone case.
To begin with the underlying premise
of this judgment, is tax holiday
necessary to attract foreign
investment?
In my view, it is not. Because, as it
is, taxes in India have been consid-
erably reduced over the years. And in
any case, it would be discriminatory
and against the public interest to give
a tax holiday to foreign companies
and not to Indian companies. The bo-
gey of foreign investment is often
made, for example in this Hutch-Vo-
dafone deal. There is no foreign in-
vestment involved as the Indian
telecom company has just been trans-
ferred from one company to another
without any additional foreign invest-
ment being involved.
What are the consequences of this
judgment for tax revenue and
development?
The consequences of this judg-
ment as well as the judgment in the
Mauritius [Azadi Bachao] case will
be and have been disastrous for tax
revenue. The Mauritius judgment has
allowed unscrupulous foreign and In-
dian companies to use the Mauritius
route to avoid paying tax on incomes
generated in India. This judgment
will be used by all foreign as well as
Indian companies to avoid paying
capital gains tax by having holding
companies in foreign countries and
thus transfer the assets and shares of
Indian companies to other people
and claim that this does not involve
transfer of any capital assets in India,
and therefore, involves no tax liability
in India.
Tax revenues are needed by the
government for all kinds of develop-
ment activity, such as rural employ-
ment guarantee, education, health
care, etc. We will be deprived of valua-
ble funds for these activities.
In the 1985 case, the Supreme Court
took a conscious decision to distance
itself from the Westminster
principle.
The Westminster principle was
that any tax avoidance scheme or de-
vice is okay so long as it is not illegal.
Gradually, even the British courts
changed their view on this and adopt-
ed the view that tax avoidance devices
must not be accepted by the courts.
The Supreme Court in the McDowell
case followed and elaborated on this
change of view of the British courts
and declared unambiguously that tax
avoidance schemes should not be per-
mitted by the courts and if a device is
adopted to avoid tax, the court should
see through it and frustrate it. It [the
Westminster principle] is particular-
ly inappropriate in India because it is
a poor country and we need tax reve-
nue for development expenditure
more than developed countries.
In the Vodafone case, why do you
think the Supreme Court was wrong
in believing the holding structures?
The court has held that using
holding companies to transfer the
control and ownership of assets of
their subsidiaries based in other
countries should be recognised as le-
gitimate ways of transferring assets
without attracting any tax. The court
thought that by allowing foreign com-
panies to do this, and thus avoid tax, it
would encourage foreign companies
to invest in India.
It may be true to some extent. If
you are going to attract foreign in-
vestment at the cost of tax revenue, it
would rstly lead to discrimination
against Indian companies; secondly,
it would lead to loss of tax revenue,
which is desperately needed in India.
In any case, if the legislature wants to
give a tax holiday to foreign compa-
nies for encouraging FDI, they have
to do so by amending the Income Tax
Act or the Finance Act.
It cannot be done either through
government circulars or through the
Disastrous for tax revenue
Interview with Prashant Bhushan, senior advocate. BY V. VENKATESAN
PRASHANT BHUSHAN:
Governments have been acting
under the inuence of commercial
interests.
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courts winking at such tax avoidance
devices. The government does not
have the political consensus to amend
these Acts. These are surreptitious
ways of achieving what they cannot
achieve directly.
The issue does not come in the
open in the same way as it would if it
is done directly. You can make a legal
distinction between Indian compa-
nies and foreign companies. But to
my mind, that would be a distinction
against the public interest. The court
may take a view that it is a policy
decision which can be taken by Par-
liament. Rationales can be given that
it would attract foreign investment.
In my view, it would be a bogus
rationale.
What is wrong with the DTAC with
Mauritius?
Unlike the other DTACs, all of
which tax capital gains where they
accrue, the DTAC with Mauritius tax-
es companies only in their place of
residence, including capital gains.
There are no taxes on such companies
in Mauritius. Therefore, foreign com-
panies routing their investments
through Mauritius are being allowed
to get away without paying any tax.
This despite the fact that these com-
panies under international laws can-
not be regarded as residents of
Mauritius.
Why is the government doing it?
Unfortunately, this and the previ-
ous NDA [National Democratic Alli-
ance] government have all been
acting under the inuence of large
commercial interests and, therefore,
sacricing the public interest for the
commercial interests and prots of
these foreign as well as Indian corpo-
rations. They made no attempt to
amend this treaty with Mauritius
which has also become a tax haven.
You draw a distinction between tax
planning and tax avoidance. Can you
explain? Was this not explained to
the Bench during the hearing?
I am sure that these things must
have been explained. There are three
phrases: tax planning, tax evasion,
and tax avoidance. For example, if the
legislature says that if a company in-
vests its prots in a particular tax-
saving government bond, then it will
not have to pay tax on those prots.
So, that is a clear conscious policy
decision of the legislature to permit
companies to avoid paying tax if they
invest their prots in a particular
place. That is tax planning.
But if the legislative intent to tax
capital gains, arising out of the trans-
fer of assets in India is clear, and it is
also clear that what has been trans-
ferred are really capital assets in In-
dia, then if a device of a holding
company is adopted to transfer the
assets in India, that is tax avoidance,
which the McDowell judgment says
must be frustrated by the courts.
Tax evasion means not declaring
the transaction in the books at all. So,
on tax evasion, there is no dispute
that it is illegal. In the McDowell case,
the Supreme Court said even tax
avoidance by using articial devices,
such as holding companies, must be
frustrated by the courts. Unfortu-
nately, both Azadi Bachao and the
Vodafone judgments go against the
mandate of the McDowell judgment
and allow and legitimise tax avoid-
ance devices.
What is your opinion about the
governments review petition?
I am sure it must have been com-
petently drafted. The Solicitor Gener-
al, Rohinton Nariman, who argued
the matter, had done so very compe-
tently. There was no lacuna so far as
the arguments of the government
were concerned. In the Azadi Bachao
case, the Central government was op-
posing us. The government was argu-
ing that it could give tax holidays
through circulars.
You are also critical of the class bias
of the judiciary, which results in
Vodafone-like judgments. You have
been critical of the kith and kin of
the judges being employed in some
of the corporations facing litigation,
and the prospect of the judges being
engaged by these litigating
corporations for arbitration after
retirement.
Something needs to be done
about judges engaging themselves in
paid arbitration post-retirement.
This, unfortunately, has become a
very lucrative industry for retired
judges, which is ourishing precisely
because the judicial system is largely
dysfunctional.
It has, therefore, created a sub-
conscious incentive for the judiciary
not to take concrete steps to ensure
that the judicial system becomes
functional.
Why do parties go in for arbitra-
tion [an alternative system to settle
disputes between parties outside the
courts] when it is much more expen-
sive [than ordinary litigation]? Be-
cause the cases do not get decided
[by the court] within reasonable
time. Since this has become a lucra-
tive industry for retired judges, no
serious attempt has been made to
make the judicial system work ef-
ciently, which would kill this lucra-
tive industry.
How can the situation be remedied?
The judicial system needs to be
made functional through judicial re-
forms such as the creation of a judi-
cial appointments and complaints
commission as a full-time body, in-
dependent of the government and
the judiciary, and also by increasing
the infrastructure of the courts, that
is, by having more courts and more
judges.
Why cant there be a ban on judges
being hired for arbitration after
retirement?
That can also be done, but a ban
by itself cannot solve the problem.
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2 2 F R O N T L I N E
THE Supreme Court verdict quashing the In-
come Tax Departments claim on Vodafone in the
Hutchison-Essar acquisition case is signicant not
just because of the Rs.11,200-crore loss of revenue
implied in the case. It also paves the way for other
foreign companies to exploit the interpretation of
the law implied by the judgment to avoid tax pay-
ment on capital gains that accrue from the transfer of
assets located in India. Given the sum involved in
this case and likely to be involved in future instances,
the loss is nothing but a national shame in a country
whose government claims that there are inadequate
resources to ensure food security, address depriva-
tion and provide employment. Not surprisingly, the
government is making it appear that it is the court,
and not its own inclinations and policies, that is tying
its hands.
In this it has been helped by the controversy
surrounding the judgment, centred on the percep-
tion that the Bench has stretched itself in multiple
directions when interpreting the law on what consti-
tutes tax evasion. There is only one reason why in-
vestors would choose to locate the ultimate
ownership of a company in a shell based in a country
that is a tax haven or is a low-tax host that has a
suitable tax treaty with the country in which oper-
ations are based. That is tax avoidance. This is what
Hutchison had done when it located the ultimate
ownership of its majority stake in Hutchison Essar
Ltd (HEL) in a shell called CGP located in the Cay-
man Islands. CGP in turn was owned by Hutchison
Telecommunications International (Cayman) Hold-
ings, another Cayman Islands company. The issue
was not whether this structure was adopted with the
express intention of selling CGP in order to garner
capital gains that would not be subject to taxation. It
is enough if the intent was that in case Hutchison
chose to sell at any point it should evade tax on
capital gains.
Not surprisingly, when Hutchison did sell CGP
to Vodafone Netherlands in 2007 for a sum of $11
billion, both companies acted as if the transaction
was not subject to Indian tax laweven though Voda-
fone was in essence acquiring an entity that earned
its revenues from operations in India. If Vodafone
believed that Indian tax law would apply, it would
have withheld capital gains tax to hand over to the
Indian authorities. Vodafone did not, because it was
convinced and argued (subsequently) that the com-
panys ownership was structured in a manner that
the transaction did not fall under the jurisdiction of
Indian tax law. The Indian tax authorities chal-
lenged that order on the grounds that the operations
and revenues that underlie CGPs valuation occurred
in India. In that sense this was not an unrelated
transfer of CGP shares. It involved the transfer of the
future revenue stream from the operations of HEL
(renamed Vodafone-Essar). This was also supported
by the fact that Vodafone had also acquired CGPs
rights and entitlements in HEL, involving elements
such as the use of the Hutch brand, loan obligations,
and the option to acquire an additional 15 per cent
stakeholding in HEL. This too would have affected
the valuation. The High Court upheld that view. The
Supreme Court struck it down.
There are two ways in which this Supreme Court
Dont shoot the
interpreter
But the fact is that the judiciary has
invoked the ambiguity inherent in
the law when arriving at judgments
such as those reected in both the
Mauritius and the Vodafone
instances. It is for the executive to
remove that ambiguity.
The Supreme Court judgment is a godsend for the government, which can now
pretend that the court is responsible for a lax tax policy. BY C. P. CHANDRASEKHAR
Cover Story
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 2 3
judgment has implicitly favoured enti-
ties that indulge in tax avoidance prac-
tices. First, it has held that if loopholes
in the law, even if unintended, permit
these entities to use such practices to
avoid tax payments, and they indulge
in legitimate tax planning, then they
are not in violation of any code. Sec-
ond, it has suggested that when assess-
ing whether an entity is evading (not
avoiding) the tax law, the authorities
have to examine whether the means of
evasion (which here, is the creation of
CGP) was originally intended for this
purpose. Since Hutchison made its in-
vestments and engaged in activities in
India (in collaboration with Essar) for
some time, and during that period
CGP existed, the latter is not seen as
primarily created to avoid capital
gains.
For a court, the rst of these posi-
tions seems warranted, inasmuch as it
is for the executive to ensure that its
laws do not have loopholes that result
in tax avoidance. In the case of income,
this requires ensuring that nothing in
the law or in treaties signed between
governments permits a company to
avoid paying tax on income to the gov-
ernment of the country in which those
receipts originate. In the case of capital
gains the issue is more complicated.
The government cannot prevent for-
eign investors from routing their in-
vestments through shell companies
located in tax havens or in countries
like Mauritius, with which India has
signed a double taxation treaty. Any
transfer of that shell company to an-
other foreign owner outside the coun-
try would transfer the shares it owns in
the entity holding and operating assets
and deriving revenues in India.
The point then is to ensure that the
transfer of share ownership of any en-
tity operating in India, earning in-
comes from assets located in India, is
subject to the tax laws applicable in
this country. This would prevent any
distinction between share sale and as-
sets sale to be made. That would be fair
because the value of the shares depend
on the value of the assets that underlie
them, and the value of those assets
located in India depend, in turn, on the
future prole of net revenues expected
from the operation of those assets.
What the Supreme Court has done
is declare that as the law stands, unless
it can be shown that the investment
and subsequent transfer was made
with the express purpose of avoiding
tax, this would also be a legitimate
transaction. There may be some justi-
cation in declaring this to be an error
on the part of the Supreme Court. But
that error is in keeping with the tend-
ency on the part of the government to
propagate the view that the develop-
ment effort (led by the executive)
needs a special dispensation favouring
foreign investors in this country.
The most obvious case of this tend-
ency was the way in which the issue of
the right of companies that had ob-
tained a tax residence certicate in
Mauritius to be exempt (ostensibly un-
der the double taxation treaty with
that country) from income tax in India
was established. Many of these compa-
nies are not even originally registered
MARTEN PI ETERS, MANAGI NG director, Vodafone Essar Ltd after Vodafone
launched its 3G service in Mumbai in October 2010.
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in Mauritius and headquartered in
that country. It was on that basis that
the Income Tax Department had
slapped taxes on those companies. But
claiming that this would discourage
foreign investment in the country, the
then Finance Minister Yashwant Sin-
ha reportedly ensured that the Central
Board of Direct Taxes issued a circular
saying that this was indeed acceptable.
Clearly, the reading of both what the
law should be and the law was differ-
ent by those in the Tax Department
and those responsible for scal policy
in the Finance Ministry.
At that time, civil society activists
challenged in the courts this interpre-
tation of the law by the government.
And that time, too, the High Court
delivered a judgment that quashed the
governments interpretation, which
was subsequently reversed by the Su-
preme Court (Azadi Bachao Andolan
case). To recall, the argument of the
government was that it was adopting
the position notied in the circular be-
cause that was necessary to attract for-
eign investment into the country. That
is, attracting foreign investment using
the tax concession route was an ac-
ceptable principle from the point of
view of the executive. In essence the
court was taking the position that it
was up to the executive to ensure that
the law on the matter was clear.
There have been other instances
where the executive has very obviously
favoured foreign investors on the cap-
ital gains front. For example, the Bud-
get for 2003-04 stated: In order to
give a further llip to the capital mar-
kets, it is now proposed to exempt all
listed equities that are acquired on or
after March 1, 2003, and sold after the
lapse of a year, or more, from the in-
cidence of capital gains tax. Long-term
capital gains tax will, therefore, not
hereafter apply to such transactions.
This proposal should facilitate invest-
ment in equities. Long-term capital
gains tax was being levied at the rate of
10 per cent up to that point of time.
The very next year, the Finance Minis-
ter of the United Progressive Alliance
(UPA) government endorsed this
move. In his 2004 Budget speech, P.
Chidambaramannounced his decision
to abolish the tax on long-term capital
gains from securities transactions alto-
gether. These changes were geared to
coaxing foreign institutional investors
to invest more in Indias stock mar-
kets. And they did, now that the Indian
stock market was a tax haven.
Given this background, the ambi-
guity with regard to the right to tax
capital gains accruing abroad on equi-
ty linked to assets located in India and
earning revenues from the Indian
market is understandable. The Fi-
nance Ministry, which does not mind
giving tax concessions favouring for-
eign nance to attract investment into
the country, would prefer that this am-
biguity goes unnoticed. It is clearly en-
gaged in an effort to offer competitive
tax concessions to attract foreign in-
vestors away from other locations. But
the pressure on the Tax Department to
implement increasingly weak laws to
garner additional revenues and im-
prove tax collectionforces it to read the
law as it sees it. The net result is a
divergence in viewpoints that leads to
instances like that observed in the Vo-
dafone case.
Seen in that light, the Supreme
Court judgment is a godsend for the
government. It can pretend that it is
the court that is responsible for an in-
creasingly lax tax policy in a country
that the government claims has little
public money for crucial capital and
social expenditures. It is no doubt true
that the judiciary includes members
who are part of the epistemic commu-
nity that believes that favouring for-
eign investors with tax concessions is
in the national interest. But the fact
is that the judiciary has invoked the
ambiguity inherent in the law when
arriving at judgments such as those
reected in both the Mauritius and the
Vodafone instances. It is for the exec-
utive to remove that ambiguity. But it
will not, because over the last two dec-
ades and more it has worked to slant
policy in favour of foreign investment
as part of the policy of economic re-
form and liberalisation. Claiming to be
helpless because of a court order is a
feeble excuse.
M A R C H 2 3 , 2 0 1 2
2 6 F R O N T L I N E
Cover Story
PROFESSOR Mohan Gopal, director of the Ra-
jiv Gandhi Institute for Contemporary Studies,
(RGICS), New Delhi, is concerned about the impli-
cations of the Vodafone judgment for governance.
He is well known for his scholarship in constitu-
tional, and his previous tenures, as the head of the
National Law School, Bangalore, and the National
Judicial Academy, Bhopal, have been inspiring to
both students and practitioners of law. Excerpts
from an interview he gave Frontline:
What, according to you, are the legal aws in the
Vodafone judgment?
Of judges and their p
Judges should be rmly committed
to the values and philosophy of our
Constitution (not to the government
or party of the day) because they
have assumed for themselves the role
of guardians of the Constitution.
Interview with Prof. Mohan Gopal, director, Rajiv Gandhi Institute for
Contemporary Studies, New Delhi. BY V. VENKATESAN
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The fact, well
recognised in the
jurisprudential
school called legal
realism, is that the
individual
approach of the
judge is more
decisive in judicial
decisions than the
law or the facts.
Mohan Gopal
The issue is not whether the judgment is legally
awed. A sound legal argument can be canvassed in
support of the two opposing contentions in this case
as is seen in the quite brilliant judgment of Justice
Dhananjay Chandrachud in the Bombay High Court
on the one hand, and in the erudite, succinct and
tightly reasoned judgment of the Chief Justice of
India on the other both excellent judgments al-
though they reach opposite conclusions.
What distinguishes the two judgments is in fact
the bona de differences in judicial approaches of the
two judges as individuals, not the state of the law or
the facts of the case. Justice Chandrachuds judg-
ment is acutely concerned about judicial deference
to the legislature in a democracy. He writes:
Judicial doctrine which is designedly intended
by the Constitution to be isolated from the rough and
tumble of democratic accountability to electoral col-
leges must, therefore, be structured so as not to
intrude upon the eld of legislative policies which
lies within the domain of Parliament.
Justice Kapadias judgment takes careful ac-
count of the business environment and foreign direct
investment needs.
hilosophies
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 2 7
Justice [K.S.] Radhakrishnan, in
his concurring judgment, writes,
FDI is indispensable for growing
economy like India [sic].
The fact of the matter, well recog-
nised in the jurisprudential school
called legal realism, is that the individ-
ual approach of the judge is even more
decisive in judicial decisions than the
law or the facts.
What would have happened if, hy-
pothetically, in this case, Justice Chan-
drachud had been in the Supreme
Court and Justice Kapadia and Justice
Radhakrishnan in the High Court?
The consequences for the country
would have been enormous. We may
have been able, for example, to receive
billions of dollars of additional tax rev-
enue and bridge a part of the afforda-
bility gap for universal coverage in the
food security policy.
If this is the case, has not the time
now come in India for us also to engage
with the issue of the personal approach
and philosophy of judges more openly
and directly as other democracies
do? How long will we stick to the legal
ction that the personal background
and the social, economic and political
philosophies of judges do not enter
their judicial decision-making?
Judges should be rmly commit-
ted to the values and philosophy of our
Constitution (not to the government
or party of the day) because they have
assumed for themselves the role of
guardians of the Constitution.
What is the relevance of the consti-
tutional philosophy to this judgment?
I would argue that the Bombay High
Court judgment is more in line with
the constitutional philosophy than the
Supreme Court judgment for two rea-
sons. First, the passage from Chandra-
chud shows a conscious judicial
deference to the legislature, based ex-
plicitly on the constitutional vision.
Second, the Bombay High Court judg-
ment is more in line with the constitu-
tional scheme of the role of the state as
a proactive guardian of the public in-
terest (rather than a state that yields
excessively to the market). It provides
greater latitude for the state to safe-
guard public interest in collecting tax-
es (badly needed for development) by
looking through rather than merely
looking at complex nancial ar-
rangements in a globalised world in
which not only investment and growth
but crime and embezzlement are also
on the rise.
The Supreme Court judgment, on
the other hand, reveals an approach
that is concerned about limiting tax
investigation and encouraging invest-
ment ows into the country.
Neither judgment, in my view, ad-
equately reects the constitutional
philosophy towards the obligation of
citizens and corporates in a poor coun-
try to pay taxes to the fullest extent
required by law, rather than plan to
avoid or evade them.
What are the consequences of the
judgment for tax revenue and
development?
The Supreme Court judgment
places important limitations on the
revenue authorities. The look at/look
through framework is in my view, nei-
ther valid nor justiable, and as the
Supreme Court itself suggests, this is a
matter of legislative policy. This
should be corrected. Equally, the ex-
cessively narrow interpretation of the
tax nexus with India will also have to
be corrected. Unless this is done, the
consequences for revenue and devel-
opment will be negative without any
prospect of commensurate growth in
investment except perhaps growth in
the number of well-disguised fraudu-
lent tax schemes that will hide coyly
behind look at limits!
It is pointed out that the principle of
recusal is not relevant in this case
because the Chief Justices son,
Hoshnar Kapadia, joined Ernst &
Young a rm which advised
Vodafone on its tax dispute after the
February 2007 deal, and that he
joined E&Y India and not E&Y U.K. It is
also pointed out that the Income Tax
Department used E&Y U.K.s report as
evidence against Vodafone.
I do not know the facts. From what
I have seen in the media, the conict of
interest argument seems far-fetched in
CHI EF JUSTI CE OF I NDI A
S.H. Kapadia and (below) Justice
Dhananjay Y. Chandrachud of the
Bombay High Court.
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terms of currently accepted judicial
standards for recusal. Chief Justice
Kapadia has a well-deserved and hard-
earned reputation for the highest in-
tegrity. We should avoid raising ques-
tions about the integrity of public
ofcials so lightly.
The judges seem to have reached the
decision by their curious
interpretation of the McDowell
judgment (Para 64). Is their
interpretation of the McDowell
judgment, especially Justice O.
Chinnappa Reddys observations on
the need to depart from the
Westminster principle, correct?
I am not persuaded by the Su-
preme Courts interpretation of
McDowell in this case. In my view,
Justice Chinnappa Reddy and the ma-
jority were equally clear in their deci-
sion to depart from the Westminster
principle, and the Vodafone judgment
erred in not following Justice Chin-
nappa Reddys holding in this regard.
Did the Bench miss the subtle
distinction between tax planning and
tax avoidance and tax avoidance and
tax evasion?
Not all tax planning is bona de. I
hope the judgment will not be read as
giving a green signal to all tax planning
even if the plan is to evade or avoid
taxes.
As a matter of political philosophy
derived from Gandhian values that un-
derlie our Constitution, I would argue
that tax reduction, avoidance and eva-
sion should all be considered illegiti-
mate. The purpose of the Constitution
and the state it constitutes is to bring
about a social revolution to bring swa-
raj to the masses. This has been well
recognised, including by the Supreme
Court of India (see for example the
judgment in the S.P. Gupta case). The
state has inadequate resources to im-
prove the lot of the poorest, as we are
repeatedly told. If this is the case, the
policy of the state and the duty of cor-
porates must be to collect, and to con-
tribute, as much tax as possible under
the law. Business transactions must be
designed to achieve business goals.
Tax avoidance, evasion or reduction
may be a relevant business goal in rich
countries, but not in India. This vision
should guide Indian courts. The blind
adoption by courts of British tax juris-
prudence in this regard without due
consideration of the differences in the
role and need for taxes in a poor coun-
try such as India, and our constitu-
tional values, is unfortunate.
NARROW I NTERPRETATI ON
The exclusion of indirect transfers
from Section 9 of the Income Tax Act
and, as a consequence, the refusal to
consider it as a look through
provision was another setback to the
I.T. Department. Was the Supreme
Court correct in interpreting Section 9
in the manner that it did?
The excessively narrow interpreta-
tion of Section 9 is not in my view
adequately justied in the judgment.
There was no intention on the part of
the legislature to exclude indirect
transfers. It is not clear how this provi-
sion was in effect read down. This
matter may need to be corrected
legislatively.
In Paragraph 73, the Bench seeks to
distinguish between preordained
transaction (created for tax avoidance
purposes) and a transaction which
evidences investment to participate.
In the latter, a dissecting approach is
not warranted. Is the Bench correct in
its emphasis on the look at
approach rather than on the
dissecting approach?
It is not clear how the tax author-
ities would be able to determine
whether a transaction is intended for
tax avoidance or evasion or for invest-
ment to participate unless the trans-
action is rst looked through
carefully and dissected. The Su-
preme Court judgment itself appears
to dissect the impugned transaction
in some detail, rather than merely
look at it, before concluding that it
was not intended for tax avoidance.
After the dissection, the judgment
seems to suggest that the transaction
should be analysed as a whole rather
than its individual elements looked at
in isolation.
Again, if individual elements clear-
ly show a plan for tax evasion, it is not
clear how they can be ignored by the
tax authorities. These distinctions ap-
pear interesting from a theoretical
point of view, but may be very difcult
to apply.
Do you think Azadi was incorrectly
decided?
In the relevant part of the Azadi
judgment the Supreme Court over-
turned a Delhi High Court judgment
that [to use the Vodafone terminol-
ogy] upheld a look through approach
and struck down a look at approach
that was mandated by an impugned
circular. In so doing, the Supreme
Court limited the role of the tax au-
thorities, who have duties and respon-
sibilities to investigate the true nature
of transactions. However, in that case,
the look at limit came from the exec-
utive itself in the form of the impugned
circular, rather than from the judici-
ary. As a result, the Supreme Court
cannot be faulted in the Azadi case for
upholding a policy choice erroneous
as it may have been made by the
executive.
The look at/look through dis-
tinction should be removed and the tax
authorities should be fully empowered
to investigate transactions as needed
(with adequate safeguards against ha-
rassment and corruption).
Justice Radhakrishnan has held in
paragraph 90 of his judgment that the
principle of Duke of Westminster is
still valid. Your comments.
The concurring judgment does not
quite say that the Westminster case is
still valid. It simply says, in effect, that
it is not fully dead. So we may conclude
that the Duke of Westminster case is
in a deep coma and hence not of any
functional relevance.
In any case, the time has come, 65
years after Independence, for us to de-
velop the condence to decide our tax
cases without relying on whether or
not old English decisions are dead,
alive or in a coma.
Cover Story
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 2 9
BY inducting Dow Chemical Company, United
States, as a partner in the Olympic Movement, the
International Olympics Committee (IOC) and the
London Organising Committee of the Olympic
Games and Paralympic Games (LOCOG) have
stirred up a controversy. In his reply dated February
2 to the letters dated December 18, 2011, and Janu-
ary 27, 2012, of V.K. Malhotra, Acting President of
the Indian Olympics Association (IOA), Jacques
Rogge, President of the IOC, said: The IOC and
LOCOG were aware of the Bhopal Gas Tragedy when
discussing the partnership with Dow. Dow had no
connection with the Bhopal tragedy. Dow did not
have any ownership stake in the Union Carbide until
16 years after the accident and 12 years after the
$470 million compensation agreement was ap-
proved by the Indian Supreme Court. The court has
upheld this settlement twice since then, in 1991 and
2007. We understand that this is being reviewed yet
a third time by the Indian Supreme Court and we are
aware of Dows position in this matter and of the
sensitivities of all parties (letter of the IOA Acting
President dated February 16: www.olympic.ind.in
/images/2012[1].02.16%20-%20reg%20Dow%20
Chemical.pdf).
The IOC and the LOCOGappear to have chosen
to believe the half-truths and misinformation that
Dowhas fed them in this regard. The facts of the case
are as follows:
(a) It is indeed true that initially Dow did not
Dow at the Games
Its claim that it has no connection to
the Bhopal tragedy appears to have
no merit. Also, how can a company
facing charges of conducting secret
chemical warfare experiments on
human subjects be associated with
the Games?
Having Dow Chemical Company as a sponsor of the London Olympic Games is
incompatible with the principles of the Olympic Charter. BY N. D. JAYAPRAKASH
Controversy
VI CTI MS OF THE 1984 Bhopal gas tragedy posing as dead people at a protest against Dows sponsorship of the
London Olympics, outside the Sports Ministry in New Delhi on February 27.
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have any connection with the Bhopal
tragedy, and it is nobodys contention
that Dow had any connection with
Union Carbide Corporation (UCC) at
the time of the tragedy, December 2/3,
1984.
(b) The Bhopal gas victims
(through the Bhopal Gas Peedith Ma-
hila Udyog Sanghathan (BGPMUS)
and the Bhopal Gas Peedith Sang-
harsh Sahayog Samiti (BGPSSS) and
others) challenged the unjust Bhopal
settlement of February 14/15, 1989, by
ling review and writ petitions before
the Supreme Court of India in March
1989. As a result, the criminal cases
against UCC and all the other accused
in the case, which were quashed under
the terms of the settlement, were re-
vived vide the judgment dated October
3, 1991. The judgment held that the
quashing of the criminal proceedings
was not justied. The criminal pro-
ceedings are, accordingly, directed to
be proceeded with (Clause (iii), para-
graph 214, (1991) 4 SCC 584).
(c) In the same judgment, the court
had further directed that if the set-
tlement fund is found to be insuf-
cient, the deciency is to be made good
by the Union of India as indicated in
paragraph 198 (Clause (viii), para-
graph214, (1991) 4 SCC 584). Thereby,
the onus of meeting the civil liabilities
of a crime committed by UCC was
shifted on to the Union of India. This
direction was later challenged by the
Union of India through a curative pet-
ition (civil), Nos. 345-347 of 2010,
which was led before the Supreme
Court on December 3, 2010. This pet-
ition was led because the number of
dead and seriously injured was higher
than what had been assumed at the
time of the settlement and because the
onus of paying additional compensa-
tion was on UCC/Dow and not on the
Union of India. The curative petition is
currently pending before the Supreme
Court.
(d) It may also be assumed, as Dow
contends, that Dow did not have any
ownership stake in Union Carbide un-
til 16 years after the accident and 12
years after the $470 million compen-
sation agreement was approved by the
Indian Supreme Court. However, the
truth is that much before Dow had
decided to buy UCC, Dow must have
been aware of the following:
(i) That criminal proceedings
against UCC were revived vide a judg-
ment of the Supreme Court dated Oc-
tober 3, 1991, in civil appeals, Nos.
3187-3188 of 1988;
(ii) That, after Warren Anderson
(accused No. 1), the then chairman of
UCC; UCC (accused No. 10); and
Union Carbide (Eastern), Hong Kong,
or UCE (accused No. 11), had failed to
appear in the criminal case (R.T.
No.2792 of 1987), the Chief Judicial
Magistrate (CJM), Bhopal, had on De-
cember 7, 1991, issued a proclamation
ordering the three accused to be pre-
sent before the court on February 1,
1992;
(iii) That this proclamation was
published in The Washington Post on
January 1, 1992;
(iv) That the CJM vide an order
dated February 1, 1992, had pro-
claimed accused Nos. 1, 10 and 11 as
absconders in the criminal case;
(v) That this proclamation and the
order that UCCs authorised represen-
tative be present in court on March 27,
1992, was published in The Washing-
ton Post on February 21, 1992;
(vi) That on March 27, 1992, the
CJM issued a non-bailable arrest war-
rant against accused No. 1 and ordered
the Union of India to seek extradition
of Anderson from the U.S. Acceding to
the request of Union Carbide India
Limited (UCIL), the CJM postponed
the attachment of UCCs properties in
India until the next hearing;
(vii) That on April 29, 1992, the
CJM attached the properties of UCC in
India for non-appearance in the crimi-
nal case in response to the applications
led by the Central Bureau of Investi-
gation, the BGPMUS, the BGPSSS
and the Bhopal Group for Information
and Action (BGIA);
(viii) That the criminal case against
accused Nos. 1, 10 and 11 is currently
pending as Miscellaneous Judicial
Case (MJC) No. 91 of 1992 before the
court of the CJM, Bhopal, since the
accused are continuing to abscond
from the court.
In other words, at the time when
Dow bought UCC (UCC became a
wholly owned subsidiary of Dow on
February 6, 2001), Dow should have
been aware that UCC was a pro-
claimed offender and a fugitive ab-
sconding from justice. By buying UCC,
Dow not only bought UCCs assets but
also its liabilities as a companys liabil-
ities cannot be wished away while buy-
ing the assets. Thus, by acquiring UCC
(a fugitive company), Dow became a
fugitive company in the eyes of the law.
Therefore, there is reason to be-
lieve that Dow concealed the facts of
the case from the IOC and the LO-
COG. The IOC and the LOCOG, on
GI ANT OLYMPI C RI NGS oat past the Old Royal Naval College at Greenwich
on the river Thames in London on February 28 as the organisers celebrate
150 days to go for the start of the Games.
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their part, do not seem to have cross-
checked the facts of the case from the
IOA or the Government of India let
alone from representatives of the gas
victims. The IOC and the LOCOG can-
not now claim that their decision to
enter into a partnership with Dow was
based on a fair and balanced assess-
ment of the facts. Their decision to
appoint Dow as one of the sponsors of
the Olympic Games is vitiated by the
fact that the decision is based on the
half-truths that Dow had placed before
them.
Instead of asking appropriate
questions and seeking proper answers
from Dow, the IOC President, in his
letter dated February 2, 2012, hastily
extolled the admirable qualities of
Dow by claiming: Dow is a global
leader in its eld of business and is
committed to good corporate citizen-
ship. Earlier, on July 16, 2010, when
the IOC announced the decision to ad-
mit Dow as an ofcial Worldwide
Olympic Partner, Andrew Liveris,
chief executive ofcer of Dow, took full
advantage of the situation to add on
some self-praise. He said: With our
long-standing commitment to global
sustainability, innovation, scientic
excellence and addressing world chal-
lenges, we believe Dow is perfectly
matched to the vision of the Olympic
Movement, which is about peace, pro-
gress and the world coming together to
celebrate our common humanity
(www.olympic.org/ioc?
articlenewsgroup=-1&articleid
=94356).
Dows distinct contribution to
global sustainability and peace and
the way it has been celebrating our
common humanity are evident from
the fact that it supplied defoliants in
the form of Agent Orange and napalm
bombs to the U.S. military, which dev-
astated the lives of many Vietnamese
people and destroyed the environment
there (Agent of death: www.frontli-
neonnet.com/2819/sto-
ries/20110923281905900.htm).
Moreover, the apparent eagerness
with which Dow acquired UCC (a
company that by installing substan-
dard safety systems and violating oper-
ating procedures caused the Bhopal
disaster) and tried to absolve UCC of
its culpability hardly had anything to
do with upholding the cause of hu-
manity (The Crime of Union Car-
bide: www.counterpunch.org
/2010/09/07/the-crime-of-
union-carbide/).
Under the circumstances, it is even
more necessary to refer to the Olympic
Charter and to examine whether the
laudatory principles enshrined in it are
compatible with the IOCs decision to
engage Dow as a sponsor. According to
the sixth Fundamental Principles of
Olympism, Any form of discrimina-
tion with regard to a country or a per-
son on grounds of race, religion,
politics, gender or otherwise is incom-
patible with belonging to the Olympic
Movement (page 11, Olympic Charter,
in force from July 8, 2011,
www.olympic.org/Documents/
olympic_charter_en.pdf).
RACI AL DI SCRI MI NATI ON
Dioxin is one of the most toxic sub-
stances known to humans. Dows ship-
ping of stocks of Agent Orange with a
dioxin content far above the safe lim-
it as compared to the stock of Agent
Orange that was produced for con-
sumption within the U.S. was an act of
racial discrimination against Vietnam.
It appears that in domestic prepara-
tions it [dioxin] is present in much
lower concentrations, 0.05 ppm (parts
per million), as opposed to peaks of 50
ppm in stock shipped to Vietnam.
Therefore, dioxin contamination of
Agent Orange was up to 1,000 times
higher than in domestic herbicides
(Hugh Warwick; The Ecologist; Sept-
Oct 1998; page 264:
www.theecologist.org/back_archive/
19701999/).
Dowacquired UCC, which is guilty
of practising racial discrimination
against the people of India. The root
cause of the Bhopal disaster was the
installation of substandard safety sys-
tems and the gross violation of oper-
ating procedures at UCCs Bhopal
plant. At its parent plant in West Vir-
ginia (U.S.), UCC had installed superi-
or safety systems and followed strict
operating procedures. Not only were
the safety systems at UCCs Bhopal
plant such as the refrigeration sys-
tem and the scrubber totally under-
designed in terms of the installed ca-
pacity of the methyl isocyanate (MIC)
unit but even those safety systems were
shut off by UCC as a cost-cutting mea-
sure well before the disaster in gross
violation of the strict instructions in
the operating manuals. Thereby, MIC,
which is a highly toxic and reactive
chemical that has to be stored and used
under stringent safety conditions, was
left exposed without the necessary
safeguards. This literally paved the
way for the disaster.
The safety systems at UCCs West
Virginia plant were not only designed
for total containment (in case of an
accident) in terms of the installed ca-
pacity of the MIC unit but were kept in
operation mode at all times. In addi-
tion, while UCCs West Virginia plant
had standby safety systems as well,
UCCs Bhopal plant had none. This is a
classic instance of double standards in
the installation and operation of safety
systems by UCC in a Third World
country. UCC, which thus adopted dis-
criminatory safety policies, was sub-
sequently bought by Dow with the full
knowledge that criminal cases were
pending against it. Therefore, the IOC
is at fault for acting contrary to the
Fundamental Principles of Olym-
pism by associating the Olympic
Movement with Dow.
In this regard, the IOCs Code of
Ethics (2012) clearly states: The
Olympic parties, their agents or their
representatives must not be involved
with rms or persons whose activity or
reputation is inconsistent with the
principles set out in the Olympic Char-
ter and the present Code (IOC Code of
Ethics, Section B, clause 6; page 129:
www.olympic.org/Documents/
Reports/EN/Code-Ethique-2012-
Version-nale.pdf).
In short, contrary to the explicit
provisions in the Olympic Charter and
in the IOCs Code of Ethics, the IOC
took the unprecedented step of associ-
ating Dow with the Olympic Move-
M A R C H 2 3 , 2 0 1 2
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Controversy
ment. The same Code of Ethics states:
The Olympic parties shall see to it that
the principles and rules of the Olympic
Charter and the present Code are ap-
plied (ibid, section G, clause 1, page
87). Therefore, it is the responsibility
of the IOC and the LOCOG to ensure
that the principles and rules of the
Olympic Charter and the present Code
are applied.
On its part, Dow has both political
and commercial objectives in wanting
to be associated with the Olympic
Movement. Dows political objective
was probably centred on the forlorn
hope that its prestige would be en-
hanced if it attained recognition from
the IOC as a company worthy of being
associated with the Olympic Move-
ment. Dows commercial objective was
that its association with the Olympic
Games will present Dow with tremen-
dous new business opportunities,
making this partnership a powerful
growth catalyst that comes at the right
time in our Companys strategic trans-
formation (www.olympic.org/ioc?ar-
ticlenewsgroup=-1&articleid=94356).
According to a Reuters report, Dow
justied the sponsorship by forecast-
ing an Olympic-related sales boost of
$1 billion by 2020
(www.reuters.com/article/2012/
02/21/dowchemical-olympics-
idUSL2E8DL07M20120221).
Thus, the 7 million worth of
wrap, which Dow is supposed to con-
tribute to the 2012 London Olympics,
is essentially just another form of in-
vestment for the prot that Dow hopes
to reap from the Olympic Movement.
QUESTI ONABLE TACTI CS
The IOC and the LOCOG have to take
note of the following incidents, which
prove that Dow adopts questionable
tactics to further its business interests.
(a) Dow was penalised for mislead-
ing the public in a case relating to the
pesticide Dursban. Eliot Spitzer, At-
torney General of the State of New
York at the time, said: By misleading
consumers about the potential dan-
gers associated with the use of their
products, Dows ads may have endan-
gered human health and the environ-
ment by encouraging people to use
their products without proper care.
As a result, pursuant to a consent judg-
ment signed on December 12, 2003, by
Judge Joan Madden in the Manhattan
Supreme Court, Dow was required to
pay a $2 million penalty (reportedly
the largest pesticide enforcement pen-
alty in U.S. history to date) and was
barred from making safety claims
about its pesticide products (New York
State Attorney Generals press state-
ment dated December 15, 2003:
dursban-in-your-water.com/images/
NY%20Attorneys%20PR%20dec
15a_03.pdf).
(b) Dow has been penalised for re-
sorting to outright bribery. A Time
magazine report (June 28, 2008) said:
Last year, Dow had to pay a $325,000
penalty to the Securities and Exchange
Commission of the U.S. for bribing In-
dian ofcials to expedite licences for
four pesticides produced by Dow one
of which, Dursban, is banned in the
U.S. (www.time.com/time/world/ar-
ticle /0,8599,1818555,00.html. The re-
port titled SEC Swats Dow with
Bribery Charge, www.cfo.com/arti-
cle.cfm/8696902?f=related, provides
more details of this case).
(c) Dow faced a charge of manag-
ing to ease out an uncompromising
and conscientious ofcial of the U.S.
Environmental Protection Agency
from her post as head of the EPAs
Midwest ofce in Chicago. The EPA
ofcial, Mary Gade, had been locked
in a heated dispute with Dow about
long-delayed plans to clean up dioxin-
saturated soil and sediment that ex-
tends 50 miles beyond its Midland,
Mich., plant into Saginaw Bay and
Lake Huron. The company dumped
the highly toxic and persistent chem-
ical into local rivers for most of the last
century (EPA ofcial ousted while
ghting Dow; Chicago Tribune; May
2, 2008: www.chicagotribune.com/
health/chi-epa-ofcial_02may02,0,
6326158,full.story).
There were reports that Dow was
involved in conducting secret chemical
warfare experiments on human sub-
jects just before the use of Agent Or-
ange in Vietnam: In 1965 the U.S.
Army and the Dow Chemical Compa-
ny injected dioxin into 70 prisoners
(most of them black) at the Holmes-
burg State Prison in Pennsylvania. The
prisoners developed severe lesions
which went untreated for seven
months (www.counter-
punch.org/1999/06/15/germ-war-
the-us-record/. Allen M. Hornblums
book titled Acres of Skin: Human Ex-
periments at Holmesburg Prison: A
True Story of Abuse and Exploitation
in the Name of Medical Science (New
York, 1998) provides a detailed ac-
count of this dark side of U.S. history.
It draws a disturbing analogy between
the Nazi experiments during the Sec-
ond World War and those sanctioned
by major private corporations, such as
Dow, and the U.S. government.).
Several pertinent questions have
been left unanswered. How could a
company facing charges of conducting
secret chemical warfare experiments
on human subjects and resorting to
falsehood, bribery and intimidation to
promote its business interests ever be
associated with the Olympic Move-
ment? How did the ofce-bearers of
the IOC and the LOCOG fail to proper-
ly verify the antecedents of Dow? How
come only one member of the LOCOG,
Meredith Alexander, had the convic-
tion to take a bold and principled stand
against associating Dow with the
Olympic Movement?
The WikiLeaks expos on Febru-
ary 27, 2012, (wikileaks.org/the-gi-
les.html#cmm) has ripped away the
facade of Dows claim that by acquir-
ing UCC, Dow was neither legally nor
morally responsible for the Bhopal di-
saster. The fact that Dow was com-
pelled to spy on Bhopal activists is by
itself proof of Dows guilt complex
about its own culpability in the matter.
This is the appropriate moment for
the IOC and the LOCOG to reassess all
the facts of the case and rescind the
decision to admit Dow as a partner of
the Olympic Movement and as one of
the sponsors of the Olympic Games.
N.D. Jayaprakash is joint-secretary,
Delhi Science Forum, and co-
convener of the Bhopal Gas Peedith
Sangharsh Sahayog Samiti, Delhi.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 3 3
WE seem to be turning out
into classical practitioners of Le-
nins famous aphorism one step
forward, two steps back. From
foreign direct investment [FDI]
in retail to the Lokpal Bill to the
National Counter-Terrorism
Centre [NCTC], our govern-
ment seems to have set new re-
cords in creating political and
administrative confusion.
This was how a senior leader
of the Nationalist Congress Par-
ty (NCP), a partner in the United
Progressive Alliance ( UPA) gov-
ernment at the Centre, respon-
ded when asked to comment on
the governments latest policy
muddle, the NCTC. The leader
went on to point out that the
NCTC imbroglio is yet another
reection of the general drift and lack of direction
that the UPA leadership has displayed in the past
two and a half years. He added that the downslide
accelerated in the past six months following the
controversies over the Lokpal Bill, the FDI, the Army
chiefs age and now the NCTC.
The views expressed by the NCP leader was, of
course, sotto voce, but other junior partners of the
UPA, such as the West Bengal-based Trinamool
Congress and the Jammu and Kashmir-based Na-
tional Conference (N.C.) have been more open about
their reservations on the NCTC. There is little doubt
that these views have received endorsements in pri-
vate at various echelons of the UPA, including in the
party leading the coalition, the Congress. Agreeing
with the NCP leader, a senior Congress Minister
from south India commented in private that sec-
tions of the government and the Congress, partic-
ularly the lawyer brigade, which is calling the shots
from time to time, seem to have lost all sense of
political anticipation and the skills of political
nuancing and negotiation that emanate from politi-
cal anticipation.
Any politician or admin-
istrator with common sense
would have known that almost
all opposition-ruled States
and some States run by UPA
partners would have reserva-
tions about a move like the
NCTC which seeks to appro-
priate so much power to the
Central government. Of
course, there is little doubt
that terrorism needs to be
fought more effectively, as the
concept behind the NCTC ar-
gues. But this cannot be done
effectively without the support
of the States. And hence there
was need for widespread dis-
cussions on the issue with dif-
ferent stakeholders, including
political parties and govern-
ments led by them, before -
nalising the details. But unfortunately, we did not
deem it t to do this. This is exactly what happened in
the case of FDI in retail. But our leadership, partic-
ularly Home Minister P. Chidambaram, failed to
draw any positive lesson even from this, the Minis-
ter pointed out to Frontline.
As in the case of FDI in retail, the government
has now initiated discussions on the NCTC, too, with
various State governments and other stakeholders.
This followed Prime Minister Manmohan Singhs
letter to Himachal Pradesh Chief Minister Prem
Kumar Dhumal asserting that in forming the
Policy muddle
Central to the opposition is the
apprehension that the NCTC,
especially the empowering of it
with Section 43 (A) of the Unlawful
Activities (Prevention) Act, will
infringe on the powers of the States.
The UPA puts the NCTC on hold following opposition from non-Congress
governments and regional allies of the Congress. BY VENKI TESH RAMAKRI SHNAN
HOME MI NI STER P. Chidambaram. He
says the NCTC is being accorded bare
minimum powers.
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NCTC, it is not the governments in-
tent in any way to affect the basic fea-
tures of the constitutional provisions
and allocation of powers between the
States and the Union. The negotia-
tions have ensured that the original
schedule conceived by the Home Min-
istry for setting up the NCTC would
not be followed. The original plan was
to start it from March 1. The Home
Ministrys expectations in the context
of the negotiations are that there
would be enough clarity on the issue at
least by mid-March. A national meet-
ing of all State Directors General of
Police (DGP) is scheduled for March
10. Expectations are that this meeting
will pave the way for reconciliation.
However, as things stand now, the
stalemate continues, with a clutch of
States still opposed to the move. Cen-
tral to the opposition is the apprehen-
sion that the NCTC, especially the
empowering of it with Section 43 (A)
of the Unlawful Activities (Prevention)
Act, will infringe on the powers of the
States. The Centres position, as delin-
eated by Chidambaram, is that the
NCTC is being accorded the bare min-
imum powers necessary for counter-
terrorism operations. He also added
that the powers conferred on the
NCTC under Section 43(A) must be
read with the duty under Section 43
(B) to produce the person or article
without unnecessary delay before the
nearest police station. Chidambaram
asserted that the police station was in
any case under the State government
and that the appropriate authority in
the police station would take further
action only in accordance with the pro-
visions of the Code of Criminal Proce-
dure (CrPC). All these explanations,
however, have not brought about a
substantive change in the attitude of
the State governments that have op-
posed the move.
STATE SUBJECTS
At a larger political level, the Chief
Ministers opposed to the move have
pointed out that the current concept of
the NCTC violatedthe very fundamen-
tals of the principles of federalism up-
held by the Indian Constitution.
Talking to Frontline, Bihar Chief Min-
ister Nitish Kumar pointed out that
the NCTC would impinge on the pow-
ers guaranteed to the States by the
Constitution. Police and law and or-
der are State subjects and the State
police should be allowed to handle law
and order and internal security issues.
By violating this, the current concept
of the NCTC has challenged the very
basis of the security and administra-
tive structure that we have had in the
country. At the level of day-to-day
functioning also, the NCTC is ill-con-
ceived. First and foremost, it locates
the NCTC within the Intelligence Bu-
reau [I.B.], which is not subject to any
legal statute. It was established in 1887
through an ofce order to spy on Rus-
sian activities, and later on the Indian
national movement, Nitish Kumar
pointed out.
Nitish Kumars point of view nds
wide acceptance among those who
have opposed the current concept of
the NCTC. Speaking to Frontline, a
former senior police ofcer pointed
out that no effort had been made to
legislate keeping the I.B. in mind,
make its existence legitimate and
bring it under parliamentary super-
vision, as is the practice in a large num-
ber of democratic countries.
However, the countrys leadership
in the past six decades have assured us
that the I.B. had no powers to arrest
and make seizures. The fear now is that
with the NCTC, it may actually acquire
that power. Now, whatever informa-
tion or evidence that the I.B. collects is
handed over to various other security
institutions that function under strict
rules and legitimacy, including the
State police and the Central Bureau of
Investigation. Armed with the powers
of arrest and seizures, the I.B. could
well become a persistent bugbear, es-
pecially given its track record of shor-
ing up political dirty tricks and
intrigues for the powers that be, the
ofcer said.
It is apprehensions like these that
have led to broad unity among Chief
Ministers against the Home Ministrys
move. States with governments be-
longing to parties that have divergent
ideological and political positions,
such as the Left-run Tripura, the cen-
trist-run Orissa, Bihar and Tamil Na-
du, and the BJP-ruled Madhya
Pradesh, Karnataka, Uttarakhand and
Gujarat have come together on the
issue. The Trinamool Congress gov-
ernment in West Bengal and the N.C.
government in Jammu and Kashmir
have also joined the chorus of protests.
In all probability, the election-bound
States of Uttar Pradesh and Punjab,
currently ruled by the Bahujan Samaj
Party (BSP) and the Akali Dal-Bhara-
tiya Janata Party combine respective-
ly, are also opposed to the move.
At a larger political level, some ob-
servers have perceived the beginnings
of a new Third Front in the coming
together of the Janata Dal (United),
the Trinamool Congress, the Biju Ja-
nata Dal (BJD) and the All India Anna
Dravida Munnetra Kazhagam
(AIADMK), in view of the 2014 Lok
Sabha elections. The perception is that
these regional players could form such
a grouping, which would enable them
to bargain with the mainstream par-
ties, the Congress and the BJP.
While this, of course, is a premise
that would develop only in the medi-
um term, the big immediate question
in the context of this unity among dif-
ferent States and the Union govern-
ments current initiatives to bring
about a reconciliation is about the ex-
act meeting ground between the two
positions. Would the negotiations lead
to a concrete and positive result?
Would it nally lead to a powerful anti-
terrorist body that is able to maintain
the spirit of Indian federalism? These
questions have no positive answers at
the moment.
Given the general drift and the
state of confusion at various levels of
the UPA government, it may be too
much to expect a major turnaround,
especially in the background of the
battles between the various Ministries
of the UPA government, including the
ones headed by Congress Ministers, as
also the belligerence of the Trinamool
Congress and the Dravida Munnetra
Kazhagam, the Congress ally from Ta-
mil Nadu.
Government
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 3 5
THE brutal murder of Pradip Tah, a former
legislator belonging to the Communist Party of India
(Marxist), or the CPI(M), and Kamal Gayen, another
senior leader of the party, in broad daylight, allegedly
by Trinamool Congress supporters, in West Bengals
Bardhaman district on February 22 once again
points to an alarming rise in political violence in the
State since May 2011, when the Trinamool assumed
power. Around 90 deaths have taken place in the last
nine months. While the CPI(M) has claimed that 58
of its supporters and workers (as of February 27)
have been killed by Trinamool activists, the ruling
party has countered that 32 of its workers have been
killed by CPI(M) activists in the last nine months.
The CPI(M) attributes the latest killings to a
growing insecurity in the Trinamool camp over the
formers attempt to reorganise itself and re-establish
contact with its support base. According to Surya
Kanta Mishra, Leader of the Opposition in the West
Bengal Assembly, the CPI(M)s massive rally in the
Kolkata Brigade Parade Ground on February 19 and
the Left trade unions call for a 24-hour bandh on
February 28 have been cause for concern in the
ruling party. The murder of Pradip Tah and Kamal
Gayen was completely premeditated and committed
out of a sense of desperation by the Trinamool Con-
gress workers. They are nding it hard to accept that
we still retain a huge support base as was evident in
the Brigade rally, and they are feeling threatened,
Mishra told Frontline.
Politics of violence
West Bengal: The murder of two CPI(M) leaders in Bardhaman district points to
an increase in political violence in the State. BY SUHRI D SANKAR CHATTOPADHYAY
The Chief Ministers reaction to the
killings drew criticism from all
sections. Eminent artistes, scholars
and social activists condemned the
incident in a joint statement.
the states
FORMER CHI EF MI NI STER Buddhadeb Bhatacharjee, Left Front chairman Biman Bose and other leaders pay their
last respects to Pradip Tah, former MLA from Bardhaman, in Kolkata on February 23.
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Around 8:30 a.m. on February 22
in Dewangdighi, Bardhaman, CPI(M)
and Trinamool workers clashed over
allegations of party ags being torn
down. Local CPI(M) leader Roop Ku-
mar Gupta was injured. Tah (57) and
Gayen (70) were not present when the
ght took place. Later, Tah went to
check on Gupta at the Bardhaman
Medical College. After that he and
Gayen set off for Mirzapur, adjoining
Dewangdighi, to take part in a proc-
ession in support of the bandh on Feb-
ruary 28 and condemning the attack
on CPI(M) workers. In the meantime,
an armed gang, allegedly belonging to
the Trinamool Congress, had gone to
Tahs residence. He was not there, but
the gang members reportedly told his
wife, Chitralekha, that they would kill
him.
Less than an hour later, around
9:45 a.m., as the procession led by Tah
and Gayen was dispersing, assailants
armed with axes and iron rods sur-
rounded Tah and slashed and bludge-
oned him to death. Gayen, who tried to
intervene, was also savagely attacked.
While Tah died on his way to the Bard-
haman hospital, Gayen succumbed to
his injuries while being brought to
Kolkata for treatment. Four persons
were arrested in connection with the
case.
It was clear the attackers had only
Pradip Tah on their agenda and were
waiting to get at him. Kamal Gayen
was killed because he tried to inter-
vene. Nobody else was attacked as
such, said a source who had witnessed
the incident. However, according to
CPI(M) Bardhaman district secretary
Amal Haldar, Gayens murder may not
have been as unplanned as it appeared.
Kamalda was a very prominent leader
in the district and also a witness to
Pradips murder, Haldar told
Frontline.
GOVERNMENT S REACTI ON
Chief Minister Mamata Banerjee, who
was in New Delhi when the incident
took place, dismissed allegations that
her party workers were involved in the
murders and put the blame on the CPI
(M) instead. This is a result of the
CPI(M)s internal feud. There were
many cases pending against Pradip
Tah. This is not murder, she told the
press in New Delhi. However, in Kol-
kata, her Ministers were telling a dif-
ferent story. State Industries Minister
and Trinamool general secretary Par-
tha Chatterjee claimed that the slain
CPI(M) leaders were victims of mob
fury when the CPI(M) tried to recap-
ture their lost territory. Other Minis-
ters, including Firhad Hakim (Urban
Development) and Moloy Ghatak
(Law), gave statements more or less on
the same lines.
The police added to the confusion
by not seeking custody of the four ac-
cused, who, instead were put in judi-
cial custody later on. This clearly
shows that the government is trying to
protect the culprits. The Chief Minis-
ter and her Cabinet colleagues state-
ments clearly point to the fact that they
are trying to inuence the process of
investigation, Mishra told Frontline.
POLI TI CAL VACUUM
Bardhaman, which used to be a CPI
(M) stronghold, returned Trinamool
candidates in 16 of the 25 seats in the
district in the 2011 Assembly elections.
However, Pradip Tah remained a force
to contend with in his constituency of
Uttar Bardhaman. In the 2006 As-
sembly elections, he won the seat by a
comfortable margin of over 60,000
votes. In 2011 he could not contest as
the constituency became a reserved
one, but he was a key factor in the party
MEMBERS OF A womens organisation in Kolkata take to the streets on
February 21, demanding an unconditional apology from Chief Minister
Mamata Banerjee for her remarks on an incident of rape that happened
close to her residence.
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We nd it
outrageous that
the States Chief
Minister should
come out to
protect the
murderers.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 3 7
retaining the Assembly seat despite
the enormous anti-incumbency senti-
ment all over the State. Killing Pradip
Tah was perhaps perceived to be a way
to create a leadership vacuum in the
CPI(M) in the region and thus further
weaken the party, a political source in
Bardhaman told Frontline.
According to Amal Haldar, events
leading to the CPI(M)s massive rally
in the Kolkata Brigade Parade Ground
on February 19 may have precipitated
the attack. The rally had made Trina-
mool workers in the region nervous.
Under Pradip Tahs leadership thou-
sands of people from the region had
gone to participate in the Brigade rally.
They feared a comeback [by the CPI
(M)] and reacted by killing Pradip and
Kamalda the two pillars of our party
in the district, said Haldar.
The Chief Ministers reaction to
the killings drew criticism from all sec-
tions of society. Eminent artistes,
scholars and social activists con-
demned the incident in a joint state-
ment: We nd it especially
outrageous that Ms Mamata Banerjee,
the States Chief Minister, should
come out to protect the murderers. It
seems well in line with the Chief Min-
isters habit of denying tragedies like
farmers suicides or condoning offenc-
es like the recent shocking rape in Kol-
kata. Among the signatories were
Irfan Habib, Prabhat Patnaik, Indira
Dev and others. Reacting to a recent
rape case in Kolkatas Park Street, Ma-
mata Banerjee had said it had been
staged to malign her government.
The police investigations, however, did
not support this hypothesis.
BANDH
The all-India industrial strike on Feb-
ruary 28took the character of a general
strike or bandh in West Bengal. It was
in preparation for this bandh that Tah
and Gayen had taken part in that fatal
procession in Bardhaman. Though the
bandh was largely peaceful except for
sporadic violence, for both the govern-
ment and the opposition it was a mat-
ter far deeper than what met the eye.
For the Trinamool, it had been vital
that the bandh should be a failure, as it
would serve to dampen the spirit of a
seemingly resurgent CPI(M). Such an
effort to foil a bandh is unprecedented
in the last 30 years in the State. This
may indicate an uneasiness on the part
of the government, said a political
source. However, though the State
government triumphantly announced
more than normal attendance in gov-
ernment ofces and free movement of
public transport, largely empty gov-
ernment-owned buses ran on largely
empty streets.
MAMATA BANERJEE I NTERACTS with government employees at Writers Buildings on February 28 during the
day-long strike called by major trade unions against the anti-labour policies of the Centre. It was important to the
Trinamool Congress to establish that the strike call went unheeded in the State.
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ELECTIONS to the Municipal Corporation of
Greater Mumbai (MCGM) are always hotly contest-
ed. In all, there were 2,232 contestants for the Febru-
ary 16 elections to the 227 electoral wards. Everyone,
it seemed, wanted a piece of the countrys richest
civic body. The Rs.21,000-crore-plus annual budget
of the cash-rich corporation is bigger than that of 17
States.
The Shiv Sena, which has been ruling the MCGM
for the past 15 years, was able to retain control over
the civic body for the fourth consecutive term. The
party also did well in the elections to nine other
municipal corporations in Maharashtra. Along with
its old alliance partner, the Bharatiya Janata Party
(BJP), and its recent partner, the Republican Party
of India (Athavale), the Sena won in ve corpora-
tions. In the MCGM, the Sena and the BJP together
won 107 seats (75 and 32 respectively) but fell short
of the magic gure of 114. But the saffron alliance
managed to retain power with the help of independ-
ents and smaller parties who together secured 28
seats.
Although the Sena was able to come back to
power in Mumbai, there are indications that the
party is no longer in a secure position. Results of the
last three elections in the city indicate that the Sena
has been slipping gradually. In 2002, the party held
97 seats, this fell to 82 in 2007, and this time it has
dropped further to 75. The biggest blow to the Sena
was the loss of all the seven wards in Dadar, which
was considered its stronghold as the middle class
residents of the area were traditionally Sena sup-
porters. Apart from the obvious loss, there is a lesson
in this for the Sena. It is an indication that its core
vote base is eroding. Even more worthy of the partys
notice is the fact that its bastion was breached from
the inside since Dadar was won by the Maharashtra
Navnirman Sena (MNS), the breakaway party start-
ed six years ago by Raj Thackeray, Sena supremo Bal
Thackerays disgruntled nephew.
Few doubted Raj when he vowed to teach his
parent party a lesson. With his ery temperament,
proven zeal and even his striking physical resem-
blance to Bal Thackeray, there was a general belief
that Raj would avenge what he saw as a slight when
Bal Thackeray anointed his son Uddhav instead of
Raj as the head of the Sena. The rift between the two
cousins is now legendary, with each claiming the
traditional Maharashtrian support base as his own.
Punters at the time bet that Raj would outdo the
mild-mannered Uddhav, who had never shown any
inclination towards politics. The MCGM victory,
along with victories in other corporations in the
Lacklustre victory
The biggest blow to the Sena was
the breach of its bastion, Dadar, by
the MNS. For the Congress-NCP
combine, which rules the State,
losing the elections in Mumbai
continuously has been a matter
of frustration.
While the Shiv Sena is in a position to rule the Mumbai Municipal Corporation
once again, the Raj Thackeray-led MNS makes steady progress. BY LYLA BAVADAM
The States/Maharashtra
UDDHAV THACKERAY, EXECUTI VE president of the Shiv Sena,
after it emerged as the largest party in the Municipal
Corporation elections.
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State (though not as outstanding as
before), will certainly go a long way in
endearing Uddhav to Sainiks and jus-
tifying Bal Thackerays succession
choice. For Raj, the uphill climb is not
over, but he has undoubtedly come a
long way since 2006.
When the MNS was launched in
2006, the Mumbai corporation elec-
tions were a mere 10months away. Raj
wisely said that his edgling party
would be unable to make a mark in
that election. Instead, he said, he was
working towards the 2012 elections. In
2007, the MNS won seven seats, but
this time, as promised by Raj, the party
got 28. It also did well in Thane, Pune
and Nashik, areas that the Sena con-
siders its stamping grounds. In Nash-
ik, which has seen a struggle between
the Sena and the MNS for the past ve
years, the MNS has emerged as the
single largest party, winning 40 seats
in the 122-member corporation. This
entitles the MNS to put forward its
candidate for the mayoral post, a rst
for the party. The Congress-National-
ist Congress Party (NCP) combine
managed to win 35 seats and the Sena
came third with 33.
The MNS, which has fared cred-
itably winning 112 seats in nine corpo-
rations, bears watching. Yet, there is a
sense of disappointment among MNS
workers. Asha Karandikar, an MNS
supporter and a worker from A-ward
in South Mumbai, says she thought
her party would fare better. For the
past ve years we have all worked very
hard to please voters. Our ambulance
services are very popular and whenev-
er people have problems with water or
sanitation, we guide them. I dont
know why our candidate from here did
not win.
The problem seems to lie with the
fact that the MNS revolves around Raj
and his charisma. In a sense Rajs im-
age and personality are so overwhelm-
ing that he actually overshadows his
party and its candidates. To that extent
the MNS is similar to the Sena, which
still derives its strengths from Bal
Thackeray. What the MNS did suc-
cessfully (but unwittingly) was to as-
sist the Sena-BJP victory by cutting
into the votes of the Congress and the
NCP.
For the Congress-NCP combine,
which rules the State, losing the mu-
nicipal elections in Mumbai consis-
tently has been a matter of frustration
and shame. It had been hoped that
Chief Minister Prithviraj Chavan
would improve the chances of the Con-
gress, but considering what he has in-
herited from his political predecessors,
it is perhaps an unfair expectation.
From 61 seats in 2002, the Congress
tally fell to 28 in 2007 and rose slightly
this time to 50. The NCPs fortunes did
not swing so wildly: it won 12, 14 and
14 seats in the respective elections.
NCP FLOUNDERS I N PUNE
The NCP took a beating in this elec-
tion. With a relatively strong presence
in Pune, the party was so condent of
emerging as the single largest party
that it did not ally with the Congress,
saying it preferred to distance itself
from the Pune-based disgraced Con-
gress Member of Parliament Suresh
Kalmadi, who is caught in the Com-
monwealth Games scam. The party
paid the price for this. Not only did its
Mayor lose his seat but one of its sitting
corporators lost to the MNS candidate.
The Congress surged ahead leaving the
NCP oundering, depriving it of the
majority it hoped to get. However, the
politics of convenience dictated the
rest of the story with a quick post-poll
alliance between the Congress and the
NCP, assuring the latter of a say in the
Pune Municipal Corporation.
In sum, from a State-wide perspec-
tive it would be correct to say that the
Sena fared much better than other
parties. The BJP, never a prominent
player in Maharashtras civic elections,
improved its lot marginally but essen-
tially continues to hang on to the Se-
nas coat-tails. Both the Congress and
the NCP had to contend with the fact
that the Samajwadi Party elded its
own candidates and took away a siz-
able chunk of Muslim votes. Another
setback was the decision of their long-
time ally, the Ramdas Athavale faction
of the RPI, to go with the Sena-BJP
combine.
Success in civic body elections
need not necessarily translate into suc-
cess in the Assembly elections, but the
Congress and the NCP must heed the
warning signs in the continuing victo-
ry of the Sena and the ascending star of
the MNS, especially since Assembly
elections are due in 2014.
RAJ THACKERAY, MNS chief, at a press conference in Mumbai after the
election results were announced on February 17.
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IT might be too early to write the epitaph of the
beleaguered Kingsher Airlines (KFA). But mount-
ing losses, huge cutback in ight operations, the
strike by its pilots, its inability to raise sufcient
funds or pay back various term and working capital
loans, and the ignominy of having its bank accounts
frozen are enough reasons to suspect the sure death
of the private domestic airline companys capability
to survive. Yes, the airline from the UB Group
which until recently was Indias second largest pri-
vate airline continues operations despite its myriad
woes. But for how long?
On the ground, things are getting worse. While
passengers unfortunate enough to have booked their
tickets on the airline sit in airport lounges with their
ngers crossed, hoping that their ights would not
be abruptly rescheduled or, worse, cancelled, KFA
employees have been left wondering where their
December salaries will come from. And the banks
have all but pulled the plug on funding. A consorti-
um of banks, including state-owned banks, did bail
KFA out last year when it converted a third of the
then outstanding debt, amounting to Rs.1,303 crore,
into shares. That deal left the banks owning 23.37
per cent of the airline. But they are now saddled with
a potential loss of over Rs.465 crore since the value of
a Kingsher share has plummeted from around
Rs.64 a year ago to Rs.24.48. The banks are bur-
dened with three-fourths of KFAs present debt.
The uncertainty about KFAs survival has meant
far fewer prospective passengers, more airplanes on
the ground than in the air (as per its latest schedule it
will operate only 28 of its 64 aircraft) and employees
seeking pastures elsewhere.
The airline, which started commercial oper-
ations in 2005, has never had a protable year since.
It has defaulted on payments to the government-run
oil companies, private and government airports, air-
craft leasing companies, and various vendors. Worst
of all, in recent times it has defaulted on service tax
payments and has not credited the tax collected from
its employees to the national exchequer. Non-com-
pliance of its tax requirements has been the primary
cause of its latest belly landing.
With accumulated losses of Rs.6,524 crore and
outstanding loans totalling Rs.7,057.08 crore, KFA
is deep in the red. A number of banks, including the
State Bank of India (SBI) which heads the consorti-
um of banks that have lent money to the airline and
UCO Bank, have already classified their loans to the
airline as non-performing assets. The precarious -
nancial situation has forced the SBI (which at
Rs.1,400 crore has the maximum exposure among
the banks) to state that it will not consider any fresh
loans to KFA until the airline raises new equity.
Besides this, any decision by the banks to lend KFA
fresh capital will be taken only after the SBI studies
the viability report prepared by its investing banking
arm, SBI Capital Markets.
So, has the time come for KFA to y into the
sunset? That is hardly how KFAs chairman, the
liquor baron and entrepreneur Vijay Mallya, sees it.
Prompted by the crisis, the Central
government has decided to allow
airlines to import aviation fuel
directly and also initiated steps to
allow FDI up to 49 per cent by
foreign airlines in Indian carriers.
The domestic private carrier Kingsher
Airlines is in serious trouble and there
are enough reasons to doubt its ability
to survive. BY RAVI SHARMA I N BANGALORE
Civil Aviation
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At the Farnborough (England) Air-
show in 2008, Mallya had famously
stated that his group had huge cash
ows and if it meant seeing Kingsher
through turbulent times it would.
Kingsher is not as vulnerable as the
other Indian airlines, he had then
said. Despite the present hard times,
the self-styled King of Good Times
insists that the airline whose King-
sher logo is also that of Indias by far
the largest selling beer, which is pro-
duced by his group will keep ying.
Mallya recently told reporters that he
was absolutely committed to keeping
the airline going unless some govern-
ment agency wishes to ground it. He
added that KFAs bank accounts had
been frozen by the income tax author-
ities suddenly and that had crippled
the airline, leading to massive disrup-
tions of ights for a week in mid-Feb-
ruary. Mallya has conveniently
forgotten that his companys failure to
remit personal taxes collected from its
employees had prompted the IT De-
partment to take action. KFA claimed
that the freezing of bank accounts had
severely affected the airlines ability to
make operational payments, leading
to the curtailment. The cancellation
of ights in February was the second
such in recent months; the previous
one was in last August when over 40
ights were cancelled on a single day.
Acting as per the directive of the
Directorate General of Civil Aviation
(DGCA), KFA led a fresh ight
schedule on February 22, wherein it
brought down its operations to 170
daily ights (cutting back on oper-
ations to some major and several Tier 2
cities) using 28 aircraft. Reports in-
dicate that KFA may be returning
some leased aircraft, but the remain-
ing grounded aircraft would bleed the
airlines coffers continuously. Lease
amounts for aircraft in the KFAs eet
could range from $300,000 to
$400,000 a month. The airline will
also have to shell out parking fees for
its grounded aircraft but can expect no
revenue from them. The 170 ights
(schedule effective until the end of
March) are also a far cry from the 418
daily ights that KFA had earmarked
for the 2011-12 winter schedule (Octo-
ber-March) and had indicated to the
DGCA last November. But, in effect,
though the airline was operating only
269 daily ights.
According to aviation expert and
pilot Capt A. Ranganathan, KFA had
in its heyday successfully sought and
blocked over 600 slots (it was later
downgraded to 418) even when it knew
it did not have the business or the air-
craft to use them. This not only robbed
other potential carriers of the spots but
also deprived airport operators of reve-
nue. For KFA, the worst fallout of the
recent large-scale ight cancellations
will be the loss of several prime-time
slots. (A time slot is a time period with-
in which the aircraft has to take off.)
In the wake of the cancellations,
the DGCA has also launched several
safety checks on the 28 KFA aircraft.
Mallya, who has been extremely
piqued by the negative headlines that
his airline has been generating, stated
A KI NGFI SHER AI RCRAFT on the runway at the Indira Gandhi International Airport in New Delhi. (Facing page) An
announcement at the Kingsher Airlines booking counter at Mumbai airport. The airline from the UB Group
continues operations despite its myriad nancial woes, but for how long?
RAVEENDRAN/AFP
M A R C H 2 3 , 2 0 1 2
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Civil Aviation
on the social networking platform
Twitter on February 22 that he was
glad the DGCA wanted to do special
daily audits on KFA. He tweeted: We
welcome the opportunity to prove that
our aircraft are entirely safe. Also, in a
memo sent to the airlines employees,
Mallya explained that salaries could
not be paid because the companys ac-
counts had been frozen, and offered a
Rs.5,000 cash advance to help them
meet immediate requirements. But
under pressure from the DGCA, the
airline has promised to pay December
and January salaries before the end of
March.
Aviation experts opined that if
KFA was to stay in operation, Mallya
needed to infuse a few thousand crores
either of his own or from a deep-
pocketed investor (domestic or foreign
airline or non-airline company) into
the agging carrier. Mallya has been
helped by the government, which,
prompted by the Kingsher crisis, has
decided to allow airlines to import
aviation fuel directly (in a bid to avoid
the high tax rates it attracts in India)
and also initiated steps to allow foreign
direct investment (FDI) up to 49 per
cent by foreign airlines in Indian carri-
ers. Whether KFA will be able to save
substantially or not by directly import-
ing fuel, it is unlikely at present to
attract investors or partners. KFA does
have a code-sharing agreement with
British Airways. But as of now, there
are no foreign takers who would like to
use the Indian domestic sector to feed
into their international operations.
The deterrents for foreign players in-
clude poor infrastructure, abysmally
low fares and the absence of enough
business class and rst-class seats
which are the money-spinners to be
sold.
To survive, Mallya needs to opti-
mise operations, reduce size and cut
losses. (He has, of course, got rid of his
low-cost brand, Kingsher Red, which
he had acquired from Air Deccan.) In
other words, he has to reinvent his
entire business model, which, accord-
ing to aviation experts, has for long
been awed, and is one of the primary
reasons for the situation that his air-
line nds itself in. But many insiders
are still unable to pinpoint why KFA
has logged losses of Rs.444 crore dur-
ing the third quarter of 2011-12, while
Jet Airways, which operates over a 100
aircraft and compete in the same envi-
ronment as KFA, posts a loss of
Rs.101.22 crore only.
Financial observers aver that KFA
is looking for loans between Rs.2,000
crore and Rs.3,000 crore from its
bankers in order to continue with its
daily operations. And though there
have been reports that Mallya had re-
ceived re-capitalisation offers worth
Rs.800 crore from two Indian inves-
tors who together would get a 24 per
cent stake in the airline for their ef-
forts, nothing has as yet materialised.
An earlier offer from an Indian en-
trepreneur was shot down by Mallya
since the former had insisted that the
airline be renamed.
But given Mallyas clout, there
might be saviours for his company.
Deputy Governor of the Reserve Bank
of India K.C. Chakraborty, during a
recent visit to Bangalore, said that
banks were not just commercial but
also risk-taking entities.
Ranganathan, who was a member
of the DGCAs core group on Approach
and Landing Accident Reduction,
asks: Is the government going to arm-
twist public sector banks to provide
loans to help out a private airline? Par-
amount Airways started with just Rs.
2.5 million as investment. Yet, public
sector banks gave close to Rs.100 mil-
lion and ended up with a loss of Rs.500
crore. Have they not learnt a lesson?
Questions need to be raised about ac-
countability and why public sector
banks are lending airlines without
(sufcient) collateral.
Mallya may, and quite justiably
so, cry himself hoarse about Indias
aviation policies and poor infrastruc-
ture, and high taxes on aviation fuel,
and on his airline being forced to oper-
ate uneconomical routes. But when he
oated the airline amidst much glitz
and fanfare in 2005, he was fully aware
of the ground realities. So why lament
now? What is in store for KFA now?
While there are no provisions in India
for companies to declare themselves
legally bankrupt, analysts said that the
airline could simply shut down over-
night if it fails to secure fresh equity.
Experts are sceptical of the govern-
ments argument that passengers
would be hit if KFA goes belly up.
With so much available capacity in
other Indian carriers, passengers
would still pay fares 30 per cent lower
than what they should be and be spoilt
for choice.
VI JAY MALLYA, CHAI RMAN, Kingsher Airlines.
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INDIAs national carrier Air India is near bank-
rupt and surviving on government handouts. The
government props up the airline with dollops of cash
every time its employees threaten industrial action.
The malaise is deep-rooted and has propelled the
airline into a nosedive from which, according to
former Minister for Civil Aviation Rajiv Pratap Ru-
dy, given the present structure it cannot survive.
Ofcial gures say Air India has outstanding
loans and dues of Rs.67,520 crore. Of this, Rs.21,200
crore is working capital loans and Rs.22,000 crore
long-term loans on eet acquisitions. Accumulated
losses amount to Rs.20,320 crore and the airline
owes around Rs.4,000 crore to vendors and suppli-
ers, including oil-marketing companies. It also has
an annual wage bill of Rs.3,000 crore. In January, all
its 11 bank accounts were frozen by the Central Board
of Excise and Customs for non-payment of duties
estimated at Rs.300 crore.
A Group of Ministers (GoM) led by Finance Min-
ister Pranab Mukherjee was mandated in June 2011
to examine and vet the airlines debt-recast and turn-
around or restructuring plan and decide on addi-
tional equity infusion into the carrier. It is reported
to have suggested that the government hive off a part
of its stake in the airline to a strategic partner. But
the GoM, which includes Commerce Minister
Anand Sharma and Civil Aviation Minister Ajit
The airlines millstone has been the
governments decision, in March
2007, to merge Indian Airlines with
Air India. The public undertakings
committee called it ill-conceived,
whimsical and a marriage of two
incompatible individuals.
Air India needs help to take off again, but is the governments restructuring
plan the answer? BY RAVI SHARMA I N BANGALORE
Civil Aviation
On a wing
& a prayer
PASSENGER
JETS OF Air India
at the Indira
Gandhi
International
Airport in New
Delhi on April 29,
2011.
KEVIN FRAYER/AP
M A R C H 2 3 , 2 0 1 2
4 4 F R O N T L I N E
Singh and is being advised by a com-
mittee of secretaries (CoS), is well
aware that a stake sale can happen
only after the loss-making carrier is
able to arrest its decline and achieve a
modicum of growth.
On February 7, the GoM recom-
mended that the beleaguered airline
be allowed to raise Rs.7,400 crore by
issuing government guaranteed bonds
or by any other means. (Air India re-
quires Rs.6,750 crore immediately to
clear its dues. Of this, Rs.1,200 crore
was paid last year. Only after these
dues are cleared will it be in a position
to look at equity infusion.)
Said Capt. A. Ranganathan, a
Chennai-based aviation expert and pi-
lot with over 20,000 hours of ying
experience: The question is who does
Air India belong to? On paper the
President of India. But in reality it has
become the efdom of the Ministry of
Civil Aviation, which sadly has no
long-term vision for the airline. We
have had three Ministers in the past
three years. The government should
either write off its debt or close the
airline. And what we need is not ruth-
less privatisation but delinking of the
airline from the Ministry and a profes-
sional from the industry to head it.
Popular routes have been given away
on a platter or timings tinkered with
unnecessarily. We are also looking to
buy more aircraft without proper stud-
ies on passenger growth rates. You talk
of major airline disasters in this coun-
try, and the national airline was in-
volved. In addition, there have been
several close incidents involving the
erstwhile Indian Airlines, Air India
and Alliance Air that could have turn-
ed into disasters.
PLETHORA OF PROBLEMS
The airline faces a plethora of issues.
For instance, the load factor (in the
economy class) may be going up, but
revenues are not because tickets are
underpriced and passengers in premi-
um classes are few and far between.
The airlines tooth to tail ratio (ight
crewto ground staff ratio) is abysmally
low. Aircraft to staff ratio is close to
1:450 in Air India as against 1:180 in
the industry. Besides, lucrative routes
have been given away to rival domestic
and international carriers. The type of
aircraft ying on successful routes has
been changed suddenly, much to the
chagrin of passengers, even as com-
mercially unviable routes are intro-
duced.
While operating costs, particularly
of aviation turbine fuel (ATF), have
escalated, bad planning and excess ac-
quisition, duplication, and inefciency
and poor route rationalisation have
ensured that the airline is stuck with
surplus capacity in a falling market.
On top of this, aircraft utilisation is
nine hours a day in Air India against
the industry benchmark of 16 hours.
In terms of domestic passenger
share, Air India stands third, behind
Jet Airways and Indigo. International-
ly, the ongoing Eurozone crisis has on-
ly accentuated the airlines problems.
Morale among its 28,500 employ-
ees is at an all-time low. Productivity-
linked incentives (PLI) and ying al-
lowances, which constitute 80 per cent
of a pilots remuneration, have been
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pending for over four months. Said
Rudy: In the 1950s and 60s, Air India
survived not by ying but by selling
bilateral air service agreements to oth-
er countries. But this advantage was
lost post the WTO accord when air-
lines had to compete internationally.
Today, Air India is cutting fares to
show the government that it is carry-
ing more passengers. But this move is
not only killing the airline since it is a
legacy full-service carrier trying to
match low-cost airlines fares, but is
also upsetting the equilibrium in the
industry. Air India works under the
assumption that it can continue to
bleed but will survive because the gov-
ernment will always bail it out.
As part of Air Indias debt-recast
plans, the GoMis likely to infuse (with
riders) Rs.23,000 crore into the na-
tional carrier over the next 10 years, of
which nearly Rs.6,700 crore is to be
invested in the current scal ending
March 31 to meet immediate nancial
obligations. Without this package,
there cannot be equity infusion into
the airline. The GoM is also likely to
okay the acquisition of 27 Boeing 787
Dreamliner aircraft.
MERGER BLUES
The airlines millstone has been the
governments decision, in March
2007, to merge Indian Airlines (re-
branded Indian in December 2005),
until then a largely protable venture,
with the perennially loss-making Air
India. As part of the merger process
whose idea was based on the recom-
mendations submitted by the consult-
ing rm Accenture a new company
called the National Aviation Company
of India Limited (now called Air India
Limited, AIL) was established. Both
Air India (along with its fully owned
subsidiary Air India Express) and In-
dian (along with Alliance Air, a fully
owned subsidiary, which was later re-
named Air India Regional) were to be
merged into this. The merger was
viewed as a sure-shot way to counter
the challenges of international compe-
tition by creating larger capacity and
expanding the reach.
The merged airline, it was argued,
would have a eet of over 130 aircraft,
substantial market share and, impor-
tantly, offer international passengers
connectivity to even a two-horse town.
But three years later, a parliamentary
panel declared that the decision had
only messed up the state carriers. The
losses in Air India catapulted from
Rs.2,226 crore (in 2007-08) to
Rs.7,200 crore (2009-10). The parlia-
mentary committee on public under-
takings called the amalgamation
ill-conceived, whimsical and a mar-
riage of two incompatible individuals
and asked whether the then Civil Avia-
tion Minister, Praful Patel, and his
Ministry ever had a blueprint for the
future of the airline.
The Comptroller and Auditor Gen-
erals (CAG) performance audit report
on AILs aircraft acquisition says it was
awed, and based on market share
growth estimates that were not vali-
dated. The report is the cornerstone
on which the public accounts commit-
tee has been questioning ofcials from
the airline and the Ministry of Civil
Aviation (MoCA).
The report, which was tabled in
Parliament in September 2011, pegs
the loss to the exchequer on account of
faulty acquisitions for both Air India
and Indian Airlines at Rs.10,000
crore. The audit commenced in Sep-
tember 2009 and ended in early 2011.
Says the report: Had the possibil-
ity of merger (with attendant route ra-
tionalisation, network integration,
common maintenance/ overhauling
facilities and other synergies) been
considered even at a late stage in
the process of eet acquisition, the un-
derlying economics could have been
signicantly altered; perhaps, even a
common acquisition process for Air
India/IC [Indian Airlines] could well
have been considered. In our view, the
potential benets for the merger
would have been far higher had this
been undertaken before nalisation of
the massive and separate eet acquisi-
tion exercises undertaken by Air India
and IC.
The CAG report has also been crit-
ical of the liberal way in which bilateral
air service agreements have been
handed to foreign carriers by the Air
India management and the Civil Avia-
tion Ministry then headed by Praful
Patel. Post the signing away of these
bilateral agreements, while airlines
based in the Gulf can pick up pas-
sengers from India and transit them
through their West Asian bases to Eu-
rope and the Americas, Air India has
been denied this opportunity.
Bilateral air service agreements
provide various types of freedom or
ying rights under freedom of the air,
to designated airlines of two countries.
Under this, the Sixth Freedom gives
the right to y from a foreign country
to another foreign country while stop-
ping in ones own country. Under this
right, airlines such as Emirates, Qatar,
Oman Etihad, Jazeera and Kuwait
carry over half the passengers to and
from destinations beyond the Gulf,
such as the U.S. and Europe. Also,
while many of the Gulf carriers have
just one main port of call, a number of
cities in India have been opened up to
them. This practice, according to the
CAG, is detrimental to both Air India
and other Indian carriers.
SEPARATE I DENTI TI ES
Despite the merger decision, Indian
Airlines and Air India continue to
maintain their separate identities.
Each has its ownmanpower, including
air crew, baggage handlers, drivers
and so on, separate properties and of-
ces and other facilities. There is no
cross-utilisation of resources, be it in
the sphere of information technology
or in facilities for maintenance, repair,
and overhaul facilities. While Air India
has a ve-day week, Indian Airlines
works for six days. In airports where
both airlines operate (such as Singa-
pore, Dubai and Sharjah), each has its
own staff and ofces.
Proponents of the merger, howev-
er, reel off the benets: cross-utilisa-
tion of aircraft; leveraged
procurement of services and supplies,
be it in insurance or fuel; and the op-
portunity to join Star Alliance, a global
airline network that offers customers
worldwide reach seamlessly.
Salaries of employees of the two
4 6 F R O N T L I N E
organisations have not yet been har-
monised, resulting in those working in
the same post drawing different sala-
ries; their career paths are also dissim-
ilar. This has caused disenchantment
among employees and led to strikes.
The primary areas of discontentment
are rationalisation of pay scales, career
progression, xing of seniority and al-
lowances and incentives.
In an attempt to resolve these is-
sues, the government appointed a
four-member committee headed by
Justice D.M. Dharmadhikari, a former
judge of the Supreme Court. The com-
mittee submitted its report on January
31. Any implementation of the report
can happen only after the manage-
ment negotiates with the airlines
unions 14 at last count. Members of
some of the unions told Frontline that
the committee was an act of political
mischief whose only agenda was to re-
duce pilots and engineers salaries.
The erstwhile Air India (AI), rep-
resented by the ubiquitous Maharaja,
has been the more glamorous airline,
ying as it does on long-haul routes
and to distant lands. Indian Airlines
(IA), on the other hand, was the work-
horse, ying domestic and regional
country routes. While AI has never
been able to take on competition, IA
has been relatively better in crisis man-
agement, having come through the
governments open skies policy.
The main issues of contention for
the pilots of IA, which now operates
ights under the Air India IC code, are
salaries, allowances and the opportu-
nity to y wide-bodied aircraft. AI pi-
lots, most of whom are members of the
Indian Pilots Guild (IPG), y wide-
bodied aircraft such as Boeings 747
and 777. But IC pilots, who are repre-
sented by the Indian Commercial Pi-
lots Association (ICPA), y
narrow-bodied Airbus aircraft such as
the A319 and A320. They get a xed
72-hour ying allowance, whereas for
AI pilots it is 80 hours and a higher
allowance. The ICPA wants parity
with AI pilots and also the opportunity
to y wide-bodied aircraft, especially
when there is a shortage of senior pi-
lots to y these aircraft.
On the difference in salaries and
allowances, the IPG argues that its pi-
lots stay out of the country for as many
as 26 days in a month, at times even 13
days at a stretch, and have to live out of
their allowances in expensive cities
such as London, New York and Toron-
to. Said a member of the IPG: We get
our benets in cash, they [IC pilots]
get in kind [allowances and benets].
The IC pilots y at best two to three
hours and get back to their homes al-
most every day.
Countering this argument, an IC-
PA ofce-bearer said: Why differen-
tiate when the two airlines have been
merged? If AI pilots y longer hours
and stay out for longer periods, we
undertake more landings, takeoffs and
sectors, and in many cases in poorly
maintained airports. AI pilots are paid
more not for ying, but for staying out
of their homes.
Speaking to Frontline, many IC pi-
lots agreed that it was not logical to
demand pay parity. World over, long-
haul pilots are paid more. The nature
of our jobs is different. What we need is
wage rationalisation, said one of
them.
On the vexed issue of allowing IC
pilots to y wide-bodied jets, especially
the Boeing 787 Dreamliner, the IPG
has gone to court. Its view is that IC
pilots become commanders much fas-
ter, that is in four to ve years, than AI
pilots (who take twice that time), and
so a common, fair and equitable se-
niority criteria, giving due consider-
ation to the date of joining, will have to
be evolved before IC pilots can y
wide-bodied aircraft. The training of
pilots on the Boeing 787 has been af-
fected by the IPG going to court. As a
result, when the Dreamliner arrives
the airline may not have qualied pi-
lots to y it.
IC pilots say there is no system in
place for them to transit from ying
narrow-bodied aircraft to ying wide-
bodied aircraft. The choice of pilots
can be ascertained, said one of them.
If Air India is a unied company, pi-
lots must be free, as vacancies arise
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 4 7
and if qualied, to convert from one
aircraft to another.
Pilots are piqued by the fact that
every time a new set of losses is an-
nounced and there is talk of cutbacks,
they suffer the most. Said a pilot: Our
salaries may look glamorous, but a pi-
lots job is heavily linked to licences, be
it medical or prociency, both of which
are assessed every six months. You fail
and you are out of a job. The same goes
for engineers and technicians. If the
management targets inefciency, and
optimally uses aircraft and plans
routes, the airline can save costs.
Giving an example, the pilot ques-
tions the need to operate an A320 air-
craft (capacity: 120 passengers) on the
Chennai-Visakhapatnam route with
hardly 25 passengers, which is the case
more often than not. Other airlines
would have cancelled the ight when
there were not enough bookings and
accommodated the few passengers
elsewhere. Or a smaller aircraft could
have been requisitioned. But at Air In-
dia no one is prepared to take a call,
said the pilot.
Pilots point out the wasteful ex-
penditure in paying ying allowances
to Delhi-based ight crew who are fer-
ried to centres in the south to operate
ights in the southern or South-east
Asian routes. They say it is more logical
to base aircrew in southern centres
rather than have all of them in Delhi.
Another instance of bad planning, they
say, is having a ve-member cabin
crew for the A319and A320. While ve
members are required to operate an
A321 ight, only four are needed for
the A319/320. Many aviation experts
are of the view that the airline is under-
selling itself. They would like to see an
increase in the number of premium,
revenue-extracting seats. They cite the
example of Air Indias Boeing 777-
200, which has only eight rst class
and 35 business class seats.
Besides, said Rajiv Pratap Rudy:
The Boeing 777s that we bought were
congured with one-third fewer seats
than any of the other airlines. This
meant a 20 per cent reduction in ca-
pacity. So when revenues went down
Air India dropped fares. And losses
went up.
Signicantly, say informed sourc-
es, Air Indias loss is Rs.3,000 crore
every year on its international oper-
ations, with its daily non-stop Delhi/
Mumbai-New York Boeing ights ac-
counting for Rs.750 crore. The GoM
on Air India has suggested the shut-
ting down of some of these routes.
What now? The government has
ruled out a demerger. Aviation experts
have suggested the setting up of two
strategic business units (SBUs) under
the AIL one for international services
and the other for the regional and do-
mestic sectors, with each having its
own chief executive ofcer. Tickets will
be issued on a common International
Air Transport Association (IATA)
code, but they will be distinguished by
a numerical that indicates whether the
ight is international or domestic.
Each SBU can follow its own rules and
keep its own accounts and compete
with one another.
According to Air India employees,
the methodology employed in the re-
cent past in handling issues has been to
terrorise and gag. They want a vision
statement and a clear plan to resurrect
the airline.
As part of Air Indias debt-recast
plan, which has been vetted by Deloitte
Consulting India, it has been proposed
that banks be allowed to carry the debt
on their books as performing assets
instead of setting aside money as in the
case of bad assets. It also seeks to con-
vert Air Indias Rs.11,000-crore short-
term working capital loans into long-
term debt, extending the carriers re-
payment period, and also convert
Rs.7,400 crore of its debt into prefer-
ence shares carrying an 8 per cent divi-
dend (something banks are not
condent that Air India can full).
MEMBERS OF THE Indian Airlines Kamgar Sangathan staging a
demonstration against the merger of Indian Airlines and Air India, at Jantar
Mantar in New Delhi on February 18, 2008.
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FRANCE seems to be on the verge of walking
away with one of the biggest defence deals in recent
times. In early February, the Indian government
announced that it had chosen the French rm Das-
sault Aviation as the sole bidder to supply 126 Rafale
jet ghters for the Indian Air Force (IAF). Among
the bidders, Dassault had quoted the lowest prices
and had also agreed to provide technology of the
Rafale to India. No details have emerged about the
exact price tag, but reports suggest that the Rafale
would cost around $5 million per unit.
The nal cost will be announced only after the
two sides complete the negotiations, taking into ac-
count the weapons and avionics that will be tted in
the planes. Many military experts say that the con-
tract will be worth more than $20 billion.
The Defence Minister, A.K. Antony, announced
on February 17 that the nal series of negotiations
with Dassault had begun. He said that the Contract
Negotiations Committee (CNC) had started its work
for the procurement of the multi-role combat air-
craft. The Minister reiterated that complete trans-
parency would be maintained during the
negotiations, which would continue through the
For the past one year, EADS and
Dassault were locked in a erce
competition to clinch the deal. For
Dassault, it was a make-or-break
situation. France, despite hectic
lobbying by its President, had failed
to sell a single Rafale abroad.
French conquest
India opts for the French rm Dassaults Rafale jet ghters for the Indian Air
Force. BY JOHN CHERI AN
A RAFALE JET ghter
takes off from the ight
deck of the Charles de
Gaulle aircraft carrier in
the Mediterranean Sea
in March 2011. India has
decided to buy 126
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year. He said that the government
would closely monitor all stages of the
negotiations and ensure that nobody
corrupts the Indian system. Das-
saults rivals, while faulting the Indian
governments choice of aircraft, have
all said that the bidding process was
transparent. Previous aviation deals
have been clouded incontroversy, with
allegations of kickbacks being bandied
about.
The IAF already ies around 50
French Mirages. The Indian govern-
ment had signed a $2.5 billion deal
with Dassault last year to upgrade the
IAFs Mirage eet. The only serious
competition was from the Euroghter
Typhoon, manufactured by a consorti-
um of German, British, Italian and
Spanish companies, led by the Europe-
an Aeronautic Defence and Space
Company (EADS). The British and
German governments have already
conveyed their unhappiness with the
Indian governments decision to opt
for the French plane. British Prime
Minister David Cameron, while ex-
pressing surprise at the decision of the
Indian government to opt for the Ra-
fale, said that the Euroghter was a
superior plane. British and German
ofcials were evidently under the im-
pression that the Euroghter was the
clear front runner. EADS ofcials have
sought an explanation on the criteria
and cost estimation applied by Indian
ofcials while deciding to choose the
French planes.
The Europeans had sweetened
their bid by offering India the status of
the fth partner in the prestigious
EADS consortium. In a recent letter to
Prime Minister Manmohan Singh,
German Chancellor Angela Merkel
wrote that India would become the
fth partner country along with Ger-
many, Britain, Spain and Italy. EADS
had also offered India the opportunity
to develop the aircraft jointly and
make the country one of its production
hubs for the sale of aircraft to third
countries. Dassault, too, has offered
similar terms. France has told the In-
dian government that if it wins the
contract, the rst 18 ghter jets will be
delivered within 36 months and the
remaining 108 will be assembled in
India.
Other competitors for the contract
were eliminated from the original
shortlist last year, as the IAF conclud-
ed that they did not meet the technical
requirements. The ghter planes in
question were the American F-16 and
F A-18, the Swedish Grippen and the
Russian Mig-35. The United States at-
taches strings to the sale of high-tech
weaponry. Countries like Iran and Ve-
nezuela, which have chosen to espouse
an independent foreign policy, have
been denied the much-needed spares
for their U.S.-manufactured planes.
After India tested nuclear weapons in
1998, Washington imposed sanctions
on it. These sanctions, including on the
sale of high-tech weapons, were lifted
only after the two countries signed a
military agreement in 2006.
Although the U.S. has lost out on
the latest defence deal, India has gone
in for defence purchases from the U.S.
in a big way. The recent contract to buy
22 Apache Attack helicopters, over-
looking a competitive Russian bid, is
an illustration. India had earlier ac-
quired a refurbished U.S. troop ship
with logistics-support helicopters,
C-130J Hercules heavy lift transport
planes, advanced long-range naval re-
connaissance aircraft, and weaponry
worth several billions of dollars. Many
other deals with the U.S. worth billions
are in the pipeline. Russia may still be
the single biggest arms supplier to In-
dia, but the Western powers, together
with their ally Israel, provide most of
the imported weaponry. This has led to
a feeling of discrimination in Moscow.
For the past one year, EADS and
Dassault were locked in a erce com-
THE RUSSI AN STEALTH ghter T-50. India is acquiring about 300 T-50s for
its Air Force by 2018.
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petition to clinch the deal. For Das-
sault, it was virtually a make-or-break
situation. France, despite hectic lobby-
ing by President Nicolas Sarkozy, had
failed to sell a single Rafale jet abroad.
Among the countries that rejected the
Rafale were the Netherlands, Singa-
pore, South Korea, Switzerland and
Morocco. The late Libyan leader
Muammar Qadda was given an ex-
clusive offer on Rafales after being
wined and dined at the Elysee Palace
by Sarkozy during his visit to Paris in
2007. But on his return, the Libyan
leader decided that his country could
do without the expensive French jets.
It is another story that Libya was used
as a testing ground for Rafales and
Typhoons following the North Atlan-
tic Treaty Organisation (NATO)-led
invasion of the country last year. Both
Dassault and EADS regularly put out
bulletins detailing the prowess their
planes displayed over Libya.
As recently as 2009, the Rafale and
the Euroghter were prominently dis-
played at an arms fair in Libya. After
the regime change in Libya, there are
reports that France is on the verge of
clinching a deal with the interim gov-
ernment there for the sale of 14 to18
Rafale jets. Last year, the French had
also failed to clinch a deal for the sale of
60 Rafale jets to the United Arab
Emirates after negotiations had reac-
hed an advanced stage. The UAE gov-
ernment changed its mind at the
eleventh hour and is now on the verge
of inking a deal for the purchase of the
Euroghter. The Euroghter, accord-
ing to most aviation experts, is the su-
perior air-to-air interceptor. Dassault
was in deep nancial trouble because
of the huge costs incurred in the pro-
duction of the Rafale. In December
last year, French Defence Minister Ge-
rard Longet warned that production of
the jets would have to be stopped if
foreign orders failed to materialise in
the near future.
After the Indian government an-
nounced its decision, an elated Sarko-
zy said that we were waiting for this
day for 30 years. It was good news for
the French President, who is facing a
difcult re-election later this year. The
President said that the Indian govern-
ments decision should also be seen as
a signal of condence in the French
economy. Sarkozy had earlier tried to
convince the Brazilian government to
go in for Rafale jets. In 2008, Sarkozy
and President Luis Inacio Lula da Sil-
va had announced that both countries
had reached an agreement for the sale
of 36 Rafales. But the Brazilian De-
fence Ministry was quick to issue a
statement clarifying that no nal deci-
sion had been taken. Now with a new
President, Dina Roussef, in ofce, the
Brazilian choice has narrowed down to
the U.S. F/A 18 Super Hornet ghters
and the Swedish Grippen.
India, in recent years, has emerged
as the biggest buyer in the internation-
al arms bazaar, outspending even the
petro-dollar-soaked monarchies of the
Gulf. The Stockholm International
Peace Research Institute (SIPRI) has
said that India accounted for 9 per
cent of all the worlds weapons imports
in 2010. In early February, the Indian
Navy took charge of a Russian-made
nuclear submarine, INS Chakra-11. It
will be on lease for 10 years at a cost of
$1 billion. The much-delayed aircraft
carrier, Admiral Gorshkov, is expected
to join the Indian Navy by the end of
this year. That deal was worth $2.33
billion. India has also signed a $30
billion deal with Russia for the pur-
chase of 250-300 Sukhumi T-50
Stealth ghters. They are expected to
be inducted into the IAF by 2018.
Many defence analysts interpret
the defence acquisition spree by India
as an attempt to match Chinas grow-
ing military strength. Washington is
encouraging New Delhi to accelerate
its costly defence procurement drive
by playing up the so-called threat from
China. James Clapper, the U.S. Direc-
tor of National Intelligence, told the
American Congress that the Indian
military is strengthening its forces in
preparation to ght a limited conict
along the disputed border, and is
working to balance Chinese power
projection in the Indian Ocean. How-
ever, the Indian Defence Minister has
claried that Indias modernisation of
its defence forces is not aimed at China
but only to protect the territorial integ-
rity of the country.
DEFENCE MI NI STER A. K. ANTONY and his French counterpart Herve Morin (extreme left) sign documents of
agreement in the eld of defence in the presence of Prime Minister Manmohan Singh and French President Nicolas
Sarkozy at Hyderabad House in New Delhi in January 2008.
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IN what could be one of the worst cases of its
kind, Ethiopia, situated in the Horn of Africa, is
witnessing the systematic displacement of at least
70,000 indigenous people from its south-western
region of Gambella. An extensively researched re-
port, named Waiting here for death, released by
Human Rights Watch (HRW), an international
non-governmental organisation, has documented
forcible evictions under the villagisation pro-
gramme of the Ethiopian Peoples Revolutionary
Democratic Front (EPRDF) government. The report
becomes important in the context of Ethiopias long
and brutal history of resettling millions of people in
collectivised villages, particularly under the Derg
regime, which was in power until 1991. Under the
EPRDF, the villagisation concept has been reinvent-
ed under the guise of socio-economic and cultural
transformation.
As has been seen inmost such cases, the villagisa-
tion programme is taking place only in areas where
massive land investment is planned or is occurring.
The report states that since 2008 Ethiopia has leased
out at least 3.6 million hectares of land(as of January
2011), an area the size of the Netherlands, to foreign
and domestic investors. An additional 2.1 million ha
is available through the federal governments land
bank for agricultural investment (as of January
2011). In Gambella, 42 per cent of the total land area
is either set aside for leasing or has already been
leased out to investors, and many of the areas from
where people have been forcibly removed under the
villagisation programme are located within these
parcels.
According to the Ethiopian government, it is
planning to resettle 1.5 million people by 2013 in four
regions: Gambella, Afar, Somali and Benishangul-
Gumuz. The process is most advanced in Gambella,
where relocation started in 2010 and approximately
70,000 people were slated to be moved by the end of
2011. According to the plan of the Gambella regional
government, some 45,000 households are to be
moved over the three-year life of the plan. Its goals,
as stated in the plan, are to provide relocated pop-
ulations access to basic socio-economic infrastruc-
tures and to bring socio-economic and cultural
transformation of the people. The plan is to provide
infrastructure to the new villages and assistance to
those being relocated to ensure an appropriate tran-
sition to secure livelihoods. The plan also states that
the movements are voluntary.
However, the HRW report, which is based on
interviews with villagers and on observations made
during regular visits to affected villages, claims that
these population transfers are being carried out with
no meaningful consultation or payment of compen-
sation. Despite government promises to provide ba-
Recolonising Africa
Ethiopia witnesses large-scale forcible displacement of villagers in what has
become the norm in the past decade in Africa. BY AJOY ASHI RWAD MAHAPRASHASTA
As many as 70,000 indigenous
people have been relocated from the
Gambella region in a glaring
example of agro-imperialism, which
has seen governments collude with
multinational companies and donor
agencies.
world affairs
M A R C H 2 3 , 2 0 1 2
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sic resources and infrastructure, the
new villages do not have adequate
food, agricultural support, and health
and education facilities. Relocations
have been marked by threats and as-
saults, and arbitrary arrest for those
who resist the move. The state security
forces enforcing the population trans-
fers have been implicated in at least 20
rapes in the past year. Fear and intimi-
dation are widespread among affected
populations, it states.
Contrary to the promises, the evic-
tion threatens villagers access and
right to basic services. Because of the
lack of basic services, the report says
that in the new villages children have
not been able to attend schools and
women are walking farther to access
water, risking harassment and beat-
ings from soldiers. Lack of basic health
care facilities has also been a cause of
huge concern for the people, who had
to leave their traditional livelihood re-
sources in their old villages.
My father was beaten for refusing
to go along [to the new village] with
some other elders, a former villager
told HRW. He said, I was born here
my children were born here I am too
old to move, so I will stay. The report
further states that he was beaten by
soldiers with sticks and the butt of a
gun. He had to be taken to hospital,
where he succumbed to his injuries.
One of the villagers from the Anuak
community told HRW: We want you
to be clear that the government
brought us here to die... right here.
We want the world to hear that the
government brought the Anuak peo-
ple here to die. They brought us no
food, they gave away our land to the
foreigners, so we cant even move back.
On all sides the land is given away, so
we will die here in one place.
The Ethiopian federal government
has consistently denied that the villa-
gisation process in Gambella is con-
nected to the leasing of large areas of
land for commercial agriculture, but
villagers have been told by local gov-
ernment ofcials that this is an under-
lying reason for their displacement.
According to the report, many former
local government ofcials have also
agreed that the villages are being clear-
ed to accommodate investors.
The rst round of forced reloca-
tions occurred in October and Novem-
ber last year just as villagers were
preparing to harvest their maize crops,
thus depriving them of their liveli-
hoods. The land in the new villages is
also often dry and of poor quality. De-
spite government pledges, the land
near the new villages still needs to be
cleared while food and agricultural as-
sistance seeds, fertilizers, tools and
training are not provided. As such,
some of the relocated populations have
faced hunger and even starvation. Res-
idents may walk back to their old vil-
lages where there is still access to water
and food, though on returning to their
old elds they have found crops de-
stroyed by baboons and rats, the re-
port says.
It adds that the impact of these
forcible transfers has been far greater
than the normal challenges associated
with adjusting to a new location.
Shifting cultivators farmers who
move from one location to another
over the years are being required to
plant crops in a single location. Pasto-
ralists are being forced to abandon
their cattle-based livelihoods in favour
of settled cultivation. In the absence of
meaningful infrastructural support,
the changes for both populations may
have life-threatening consequences.
Livelihoods and food security in Gam-
bella are precarious, and the policy is
disrupting a delicate balance of surviv-
al for many, the report claims.
Ostensibly, the villagisation has
the objective of grouping scattered
farming communities into small vil-
lages of several hundred households
each. The ofcial explanation is that
the process is meant to promote ratio-
nal land use; conserve resources;
strengthen security; and provide ac-
cess to clean water, health care and
educational infrastructure. Ever since
the Derg regime started this process in
1979, these new villages have often
been the source of forced labour for
government projects, such as road
construction, agricultural production,
or other infrastructure development.
As a result, Ethiopia sawmuch violent
resistance from organised groups such
as the Gambella Peoples Liberation
Movement and the Oromo Liberation
Front. The programme was stopped in
1989 after it had reportedly displaced
and evicted 13 million people. Now it
has been started again by the present
government.
The indigenous communities most
affected by the evictions are the Nuer,
the Anuak, the Highlander Ethiopian,
the Mjangere, the Opo and the Komo.
What is signicant is that these people
lead drastically different lifestyles, and
any plan to collectivise them can lead
to a radical impact on each of these
ethnic groups because their identities
are intimately tied to the lands and
rivers around which they have tradi-
tionally lived.
However, as has historically been
the case, the government considers
these areas to be unused or under-
utilised and therefore available for
transfer to industrial agriculture.
Metasebia Tadesse, Minister Counsel-
lor at the Ethiopian embassy in New
Delhi, sums up this perspective in the
report: Most Ethiopians live on high-
lands; what we are giving on lease is
low, barren land. Foreign farmers have
to dig metres into the ground to get
water. Local farmers dont have the
technology to do that. This is com-
pletely uninhabited land. There is no
evacuation or dislocation of people.
I NDI A S ROLE
What is also signicant in the Indian
context is that one of the biggest land
investors in the Gambella region is the
Indian oricultural and agro-business
conglomerate Karuturi Global Ltd,
based in Karnatakas capital, Banga-
lore. The company, as the HRW report
illustrates, has been responsible for a
major chunk of the forced evictions.
According to another report, docu-
mented by the Oakland Institute, a
United States-based think tank, one of
the largest villages in Gambella, called
Ilea, has now been leased to Karuturi
Global. The Indian conglomerate has
leased 10,000 ha in Bako in Oramia
province and 100,000 ha of land in
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 5 3
Gambella and has an option for
200,000 ha of additional land in Gam-
bella. It also operates a 435 ha ower
farmthere.
In regional media reports, Karutu-
ri Global was reportedly told in early
2010 by the regional government that
it could relocate the village of Ilea. The
company denied any knowledge of
such an offer and stated that it had
neither been involved in any way with
the Ethiopian governments policy on
villagisation [sic] or resettlement of
people nor is aware of any such pro-
gramme of the Ethiopian government
in any greater detail. However, resi-
dents of Ilea have now been told by the
government that they will be moved in
the 2011/2012 year of the villagisation
programme.
Karuturi Global claims that the
companys activities are being miscon-
strued. A senior company ofcial,
speaking on condition of anonymity,
told Frontline: KGL believes in hand-
ups and not handouts. Since 2004,
KGL has provided skills and training
to many Ethiopians and currently em-
ploys over 5,000 people there, out of
whom more than 99 per cent are local
residents. We believe human rights are
achieved through the dignity obtained
by a decent livelihood, and not through
the curse of outstretched hands in pov-
erty. Our indigenous employees are
curious to know what Human Rights
Watch is doing for the degraded hu-
man rights of homeless people in the
vicinity of its ofces in New York and
around the world.
He added: KGLs philosophy al-
lows the children of our employees to
attend school and achieve their
dreams, to be a future Obama or
Oprah in Africa. In our Gambella-Eth-
iopia project, we employ indigenous
people, teaching them valuable skills
as well as learning from them. They
continue to live in their villages on and
near our project sites. KGLs agricultu-
ral project aims in doing well by doing
good. We will lower the cost of food for
Ethiopians, who pay 25 per cent over
the world price for maize, by local pro-
duction instead of costly imports, and
much more for other cereals and oil.
Importing food into a fertile country
like Ethiopia is as absurd as importing
rice into India. KGLs mission is to
break the vicious cycle of hunger and
poverty in Africa through local invest-
ment, skill building, production and
job creation. International funding for
A SENI OR MANAGER of Karuturi Global Ltd, an Indian conglomerate that is investing heavily in Ethiopia, with his
workers at its farm in Bako, Oramia province. A 2009 picture. The company has leased 10,000 hectares in Bako and
100,000 ha in Gambella, and has an option for 200,000 ha of additional land in Gambella.
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development is moving towards our
approach. We are collaborating with
private sector corporations, govern-
ments, local communities and donor
agencies, to achieve our goals.
According to a 2010 report pub-
lished in The Hindu Business Line, the
Ethiopian government is renting out
fertile lands for $1 an acre (one acre is
0.4 hectare) in the form of long-term
lease (for 100 years) to foreign corpo-
rations. It quoted S. Ayyappan, the
then Director General of the Indian
Council of Agricultural Research
(ICAR), who called upon Indian in-
vestors to take advantage of the oppor-
tunity. We can grow pulses there and
bring it back to the country, Ayyappan
had said to the daily.Meenakshi Gan-
guly, South Asia director, HRW, told
Frontline: As Indian investors ex-
pand their operations into other re-
gions, they must be aware that
host-government failure to respect
rights can also adversely impact their
own company identity. To avoid enter-
ing into a POSCO-type controversy
abroad, Indian companies should en-
sure that there is no forced displace-
ment or rights violations in the name
of development. In Ethiopia, Indian
investors should ask the government
to follow domestic and international
law, consult communities on the villa-
gisation process, ensure that the relo-
cation of people is voluntary and that
the rights of people in the new villages
are properly protected.
The companys ofcials have de-
nied any forced evictions in the lands
Karuturi has leased. In a response to
questions sent by HRW, Karuturi
Global, which has similar investments
in Kenya, stated that the company has
not caused in any manner any dis-
placement of human habitation in or-
der to make way forward for the
project and is living in peaceful harmo-
ny with the people of Gambella. How-
ever, HRWs visit to the Karuturi
Global lease area in May 2011 found
that Anuak maize, sorghum and
groundnut crops had been cleared
without consent. Some residents
moved out as a result. The report states
that the federal government has been
actively marketing over 800,000 ha of
large land parcels in Gambella (32 per
cent of the total land area) for agricul-
tural land investment, and many of the
areas that have been moved for villagi-
sation are located within these parcels.
The regional government also has the
authority to grant additional land par-
cels under 5,000 hectares to investors.
As the Ethiopian government has
no plans to stop the villagisation proc-
ess, HRW is trying to mount pressure
on international donors to stop their
funding in view of the large-scale hu-
man rights violations. HRW has also
asked donors to ensure that the Ethio-
pian government abides by interna-
tional law and to check the use of
international funds so that they are not
used against the interests of the peo-
ple. The Ethiopian governments vil-
lagisation programme is not
improving access to services for Gam-
bellas indigenous people but is instead
undermining their livelihoods and
food security, said Jan Egeland,
HRWs Europe director. The govern-
ment should suspend the programme
until it can ensure that the necessary
infrastructure is in place and that peo-
ple have been properly consulted and
compensated for the loss of their land.
Forcible evictions have become the
norm in the past decade in Africa in
the face of a demanding agro-business
market. The Ethiopian example be-
comes one of the sharpest pointers to
the phenomenon of agro-imperialism,
which is ever-expanding in Africa and
in which governments are, time and
again, colluding with multinational
companies and international donor
agencies against the interests of the
citizens of their own countries.
HRW is
mounting
pressure on
donors to stop
funding.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 5 5
AT the auction of foreclosed homes at Queens
Supreme Court in New York, the ofcial carefully
explained the process for one person to make an offer
on another persons misery. As the bidding was
about to begin on what was once the home of Va-
lencia Williams, around 20 people stood up and
started to sing: Mr Auctioneer / And all the people
here / Were asking you to call off the sale right now /
Were going to survive but we dont know how. As
the clerk ordered them to sit down and be quiet or
face arrest, some left but others remained standing,
repeating the single laconic verse. They were still
singing over the clink of handcuffs and as they were
led out of the room. Each time an ofcer opened the
door to take a protester out, the singing from the
hallway would seep back in. Finally, when the room
had been cleared, the auctioneer put Valencia Wil-
liams home back on the block.
Earlier that morning, at an orientation session,
the organisers spelled out their goal to the protesters.
Gaining ground
The movement has captured the
public and political imagination. It
has shifted the national debate from
debt to inequality and the focus of
the problem from victims of the
crisis (the poor) to its perpetrators
(the nancial institutions).
Those who believe that the Occupy Wall Street movement came from nowhere
and has disappeared just as quickly are wrong on both counts. BY GARY YOUNGE
World Affairs/U.S.
PROTESTERS FROM THE Occupy movement and other community activists putting up signs at a
foreclosed home in South Gate, California. A December 2011 photograph.
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World Affairs/U.S.
The aim was to intervene at the mo-
ment where the American dream
(home ownership, individualism, so-
cial mobility) meets the American re-
ality (poverty, corporate greed, vulture
capitalism). The protesters hoped not
just to disrupt but to stop the process
of the auction.
LEGACY OF THE MOVEMENT
The legacy of Occupy Wall Street
(OWS) is still in the making. Those
who believe it came from nowhere and
has disappeared just as quickly are
wrong on both counts. Most occupiers
were already politically active in a
range of campaigns.
What the occupations did was
bring them together in one place and
refract their disparate messages
through the broader lens of inequality.
The occupations were less an isolated
outpouring of discontent than a deci-
sive, dynamic moment in an evolving
process.
Over the past decade in the United
States, there has been an itinerant
quality to the progressive Left. Activ-
ists have sought shelter in the anti-war
movement, Howard Deans primary
campaign, gay rights, immigrants
rights or the Barack Obama campaign.
Each more powerful and hopeful than
the last; each too narrowly focussed
and lacking the social or economic
base to sustain it. In the occupations,
these political vagrants found a home.
The trouble is that while this home
offered space for debate and organisa-
tion, it was no less precarious than the
house of Valencia Williams. Vulner-
able to harassment and eviction by the
state, it was only a matter of time be-
fore they were forced to move.
But while taking over public land
to advocate for the public good has had
an important practical and symbolic
function, it was never the sole or even
primary aim of the occupations. The
dismantling of many encampments
has not prevented the activists who
were drawn to it from continuing with
the work they were doing before.
Indeed, the occupations have left
them re-energised and reinvigorated,
with new recruits and a broader tem-
plate within which to work. Accusa-
tions that they were too vague, too
white and too elitist to engage with the
needs of ordinary working people have
been contradicted by the many con-
crete actions they spawned or to which
they are connected.
The occupation was always about
values, explained David Premo, who
was one of the founding organisers of
OWS and involved in the action to
block the auction in Queens. It was
about reconguring the relationship
between people and prot so that peo-
ple are privileged instead of prot.
Theres a natural afnity between
those values and struggles over hous-
ing and land.
The radical Brazilian educator
Paulo Freire once asked, What can we
do today so that tomorrow we can do
what we are unable to do today? The
occupations have been central to cre-
ating new possibilities.
Organising for Occupation (O4O),
which executed the protest in Queens,
was working on issues of housing jus-
tice months before OWS emerged.
The campaigns are separate but there
is some crossover, explained Karen
Gargamelli of O4O. All those I spoke
to in Queens had been involved in
OWS in some fashion.
In Nashville, Tennessee, Occupy
Our Homes, which came directly out
of the Occupy Nashville movement,
forced JPMorgan to back off the fore-
closure on Helen Bailey, a 78-year-old
veteran civil rights activist. Roughly
half those involved in the campaign
were housing activists before, ex-
plained one activist, and the others
came to it through the occupation.
In Portland, Oregon, We Are Ore-
gon has been working against fore-
closures for some time and is now
concentrating on persuading people to
stay in their homes and not be intimi-
dated by banks. It has been joined by
Unsettle Portland, which came out of
the occupation. In February, they
packed an auction and helped delay
the eviction of a single mother while
she challenged the banks.
Polls have shown almost twice as
many Americans agreed with OWS
than disagreed with it. Far from alien-
ating middle America, the movement
has captured the public and political
imagination. It has shifted the nation-
al debate from debt to inequality and
the focus of the problem from victims
of the crisis (the poor) to its perpetra-
tors (the nancial institutions).
A Pew poll released in December
revealed that 77 per cent of Americans
believe there is too much power in the
hands of a few rich people and corpo-
rations, while those who believed
most people who want to get ahead
can make it if they are willing to work
hard was at its lowest point since the
question was rst put in 1994.
It also has the Republicans rattled.
In his address to the Republican Gov-
ernors Association in December,
right-wing pollster Frank Luntz said:
The public... still prefers capitalism to
socialism, but they think capitalism is
immoral. And if were seen as defend-
ers of quote, Wall Street, end quote,
weve got a problem.
STRENGTHENI NG
PEOPLE S CONFI DENCE
The relationship between the physical
space that the occupation movement
has held and its political efcacy has
not been settled and perhaps never
will be. Its importance does not lie in
what it means but in what it does. It
started by changing how people think
about the world they live in; now it is
strengthening their condence to
change it.
Guardian News & Media 2012
The occupation
movements
importance
does not lie in
what it means
but in what it
does.
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THE United Nations Security Council sits in a
solemn emergency room in the heart of the U.N.
complex in New York City. The 15 members of the
Council, including the ve permanent members, sit
around a horseshoe table, under a mural done by the
Norwegian artist Per Krogh. The panels of the mural
showcase everyday life in northern Europe. At its
bottom centre there is a phoenix, emergent from the
ames, around which stand people who seem ster-
eotypically Eastern (the women here have their
faces covered, and the men wear turbans). A eld
artillery gun points at these people. It is their fate.
Under an imagination that trusts in the good faith of
the West and the perdy of the East, the Council
deliberates.
After the U.N. was formed in the 1940s, serious-
minded people in its orbit wondered if the orga-
nisation needed its own military force. When con-
icts break out, the U.N. would only have the power
of moral suasion, and perhaps the authority to call
for trade embargos. Nothing more was possible. Ar-
ticle 47 of the U.N. Charter called for the creation of a
Military Staff Committee to advise and assist the
Security Council on all questions relating to the Se-
curity Councils military requirements for the main-
tenance of international peace and security. As the
Cold War heated up, neither the Atlantic powers nor
the Soviet bloc would permit the U.N. to create its
own military force. The idea went into permanent
hibernation.
Both the Atlantic powers and the Soviets built up
their own military capacity, and the U.N. became the
preserve of the Third World, which took refuge there
to try and build an alternative to the dangers of a
nuclear showdown and the proxy wars on their
lands. The United States and Western Europe cre-
ated the North Atlantic Treaty Organisation (NA-
TO), a robust military alliance that has now outlived
the context in which it emerged. That context was
the contest with the Soviet Union, which ran out of
steam in the 1980s and ended nally in 1991. NATO
remained, and thrived. It has since expanded out of
its original base and absorbed most of Europe, in-
cluding Eastern Europe, and has created networks
with countries outside its region (through the NA-
TO-Russia Council and the Mediterranean Dia-
logue). The singular aim of protecting Europe is now
gone. Remarkably, in NATOs 1991 Strategic Con-
cept paper, a new mission appeared, Allies could
further be called upon to contribute to global stabil-
ity and peace by providing forces for United Nations
mission.
The Atlantic powers had ignored or tried deliber-
ately to undermine the U.N. through the Cold War,
Syria, Libya and
Security Council
Those who clamoured for military
action wanted it with enthusiasm.
Now they dont want to have a
discussion about what is going
on in Libya.
Interview with Hardeep Singh Puri, Permanent Representative of India to the
United Nations. BY VI JAY PRASHAD
HARDEEP SI NGH PURI : I am one of those who
believe that if you didnt have the United Nations,
you would have to invent the United Nations.
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and this tendency remained in the
musty corners of the Far Right in the
U.S. (represented by President George
W. Bushs Ambassador to the U.N.,
John Bolton). NATOs 1999 Strategic
Concept paper went a long way in es-
tablishing the centrality of NATO for
preserving peace, preventing war and
enhancing security and stability out-
side the lands of the member-states.
But NATO would no longer act with-
out seeking U.N. authorisation. The
communiqu that was prepared by
NATOs Defence Planning Committee
meeting on December 7, 1990, pointed
explicitly to U.N. Security Council
Resolution 678, which authorised the
use of all necessary means if Iraq does
not comply with its withdrawal from
Kuwait. NATO members would, the
committee noted, continue to re-
spond positively to United Nations re-
quest, namely to go to war against
Iraq. From 1991 onwards, NATO be-
gan to be the de facto military arm of
the U.N. No other member had the
capacity to bring all necessary means
to bear on countries that did not follow
through on U.N. resolutions.
Since NATO is not the U.N.s of-
cial military force, it is only the U.N.
resolutions that NATO nds most in
line with the national interests of its
member-states that feel the full brunt
of its military power: NATO did not
act to protect Palestinian civilians in
2006, nor Congolese civilians during
the long war from 1998 to 2007 that
cost the region eight million lives. NA-
TO members entered the Iraq war un-
der a U.N. resolution; NATO went to
war against Yugoslavia without U.N.
authorisation but sought it afterwards;
NATO threw itself into the War on
Terror slowly in the 1990s and then
forcefully after 9/11 (when it invoked
Article 5 of its treaty, to defend one of
its member-states that had been at-
tacked and to go out of area to do so).
There has been a substantial increase
in the expansion of NATOs geograph-
ic domain, from the narrow connes of
the North Atlantic to Afghanistan. It
likes U.N. authorisation, but its troops
do not put on the blue hats of the U.N.
command.
The Yugoslavian war allowed NA-
TO to extend its own sense of itself. No
longer was NATO simply a defensive
pact. It was now to be the defender of
human rights, and it permitted itself to
abrogate national sovereignty if this
meant that it would prevent atrocities
from taking place outside its domain.
The shadow of the 1994 Rwandan gen-
ocide hung heavy over this shift, as did
the 1995 killings in Srebrenica (Bos-
nia). It was because of these grotesque
events that the NATO member-states
pushed the U.N. to consider what must
be done to protect populations from
harm. The Canadian government cre-
ated the International Commission on
Intervention and State Sovereignty in
2000, and its report (The Responsib-
ility to Protect) was produced the next
year. The idea of responsibility to pro-
tect (R2P) won out among the com-
mittee over the ideas of right to
intervene and obligation to inter-
vene. The notion of intervention was
to be kept out of the concept, although
R2P is often seen as synonymous with
Humanitarian Interventionism. In
2006, the U.N. adopted R2P as a man-
date. NATO was to be its enforcer, and
the International Criminal Court
(which came into being in 2002) was
to be its juridical arm.
The entire ensemble of the U.N.
Security Council, R2P, the ICC and
NATO was tested in the 2011 Libyan
war. No prior war had seen all of these
elements on display in one conict. At
an informal meeting on R2P at the
U.N. on February 21, 2012, Indias
MEMBERS VOTE ON a resolution on Syria in the U.N. Security Council on February 4, at the United Nations
in New York.
DON EMMERT /AFP
M A R C H 2 3 , 2 0 1 2
Permanent Representative to the
United Nations, Hardeep Singh Puri,
said, The Libyan case has already giv-
en R2P a bad name. Why was this so?
As soon as the [U.N. Security Coun-
cil] resolution was adopted, the over-
enthusiastic members of the
international community stopped
talking of the [African Union]. Its ef-
forts to bring about a ceasere were
completely ignored. Only aspect of the
resolution [that was] of interest to
them was use of all necessary means
to bomb the hell out of Libya. In clear
violation of the resolution, arms were
supplied to civilians without any con-
sideration of its consequences. No-y
zone was selectively implemented, on-
ly for ights in and out of Tripoli. Tar-
geted measures were implemented
insofar as they suited the objective of
regime change. All kinds of mecha-
nisms were created to support one par-
ty to the conict and attempts were
made to bypass the sanctions commit-
tee by proposing resolutions to the
Council. It goes without saying that
the pro-interventionist powers did not
ever try to bring about a peaceful end
to the crisis in Libya. In other words,
the international community, name-
ly the NATO member-states, used the
U.N. Security Council resolution for
their own ends, disregarding the pro-
tocols in the resolution itself.
The principle of R2P is being se-
lectively used to promote national in-
terest rather than protect civilians,
noted Ambassador Puri. In August
2010, Puri reminded the General As-
sembly that even the cautious go-
ahead for developing R2P in 2005 em-
phasised the use of appropriate
diplomatic, humanitarian and other
peaceful means to help protect pop-
ulations. The responsibility to protect
should in no way be seen as providing a
pretext for humanitarian intervention
or unilateral action. Puris rear-guard
defence of the principles of R2P and
the U.N. Charter runs up against the
determination of the West to exercise
its authority through the fog of hu-
man rights.
When the February resolution on
Syria failed to pass the U.N. Security
Council, U.S. Ambassador Susan Rice
called the Russian and Chinese veto
disgusting. Germanys Ambassador
Peter Witting told reporters that it was
a disgrace. For the U.S. and its NATO
allies, the protocols of their new sys-
tem (UN-R2P-NATO-ICC) had to be
put into motion. Smarting from the
experience of Libya, the Russians and
the Chinese decided to use their power
to put a stop to it. India voted for the
resolution, even though Ambassador
Puri is one of the main gures who
have offered an intellectual criticism of
the way in which R2P has operated. In
this interview in New York on Febru-
ary 18, Puri explains why India ab-
stained from the vote on the Libyan
resolution (1973) and why India voted
for the Syrian resolution now.
India has been on the U.N. Security
Council for a year now. You have been
Indias representative for the
duration. What is the mood in the
Security Council during this year?
What has been Indias role?
The Security Council is primarily
entrusted with the task of dealing with
situations that constitute a threat to
international peace and security. That
has not changed over the years. What
has changed and what is clearly de-
monstrable is that countries that wield
political and economic power want to
use the Security Council much more
vigorously to deal with issues whose
relationship with the maintenance of
international peace and security is at
best remote. This new approach start-
ed a few years ago. It is conditioned by
the fact that in the major Western cap-
itals there is a reinforced desire to seek
legitimacy for their policy choices
through the Security Council. Contrast
this with the Bush administration,
when they had a permanent represen-
tative here, John Bolton, whom my
predecessor had the distinction of in-
teracting with. Bolton said that if you
knock 10 oors off the U.N. building
the world would not be any worse off.
In our small limited world of peo-
ple who join the foreign services of
their respective countries, our tribe is
broadly divided into two categories
the bilateralists and those who have
some kind of fascination for pluri-lat-
eral or multilateral work. I have no
hesitation in saying that, yes, bilateral
work is extremely important. But for a
country like India, which has both the
civilisational past and the recent histo-
ry as a young modern secular nation,
and with aspirations to play a role, I
dont think those objectives can be
achieved without a multilateral arena.
So I am one of those who believe that if
you didnt have the United Nations,
you would have to invent the United
Nations.
The mood in the Security Council
is determined by the overall global sit-
uation, the number of hot spots and so
on. But the mood is also determined by
those who have the capacity to inuen-
ce and the capacity to mould the Coun-
cil. There is a fundamental difference
in the Council between those years of
the Bush administration and [those
of] the Obama administration. When
we were rst elected to the Council in
October 2010, before we took our seat,
we were invited to Washington for a
discussion. President Barack Obama
dropped in and engaged in a discus-
sion of the major issues in which the
Council was engaged. That shows the
extent to which the U.S. under the
Obama administration wants to utilise
the Council and wants to pursue mat-
ters in the Security Council.
This has to be nuanced. The in-
terest in engagement by Washington
doesnt mean that they want to bring
all issues to the Security Council. In
fact, the cynic would tell you that
Western governments only bring those
issues to the Security Council which
they do not want to handle entirely by
themselves, through coalitions of the
willing, Afghanistan being a case in
point. They went in alone rst, and
subsequently U.N. missions came in.
The mood is also determined by
the fact that global hot spots have sud-
denly proliferated. I mean when we
were elected, Cte dIvoire was sim-
mering. Cte dIvoire was relatively a
simple situation. This was a question
on an election in which the U.N. had a
certication role. When the election
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results came out, the incumbent, Lau-
rent Gbagbo, refused to step down.
The U.N. had a role to play. The talk at
this time was, if Gbagbo does not step
down, then let us get an intervention-
ary force involved. The politics be-
tween ECOWAS [Economic
Community of West African States]
and the African Union interrupted this
talk. You suddenly discover that talk
about interventionary force is easier
said than done. I think that in some
capitals, the excitement of action gets
the better of hard decision-making.
This excitement leaks into the Arab
Spring, no doubt?
The fact of the matter is that most
of the governments affected by the
Arab Spring had the support of the
West. I think the relationship between
Egyptian President Hosni Mubarak
and the West is well documented. The
situation of Egypt in the context of the
Israeli security calculus is well known.
The fact that there was a sense of fer-
ment on the Arab Street was well
known. You could witness that in plac-
es like Tunisia where all it required
was an inspector and an act of oppres-
sion against a helpless fruit vendor. Its
palpable everywhere. But then there
was this expectation that the Arab
Spring is going to result in an outcome,
which would have a democratic end-
ing. Democracy being dened in West-
ern liberal terms, not in terms of
whatever majority comes up, as is the
case in the West Bank [when Hamas
won the elections in 2006]. Everyone
welcomes the fact that the people of a
country must express themselves; they
must articulate their aspirations. Up to
there, everyone is in agreement.
But the minute the result is such
that the composition of the Egyptian
legislature is 60 per cent Islamic
Brotherhood and 25 per cent Salasts,
then people start saying, you know,
this is not what we bargained for. And
the prospect of change as a part of the
Arab Spring ushering in radicalised Is-
lam is something which, I think, gives
cause for concern to those who were
operating on a Western liberal demo-
cratic template.
What about the role of the mood
created by the non-permanent
members?
The mood in the Security Council
during 2011 was, I think, determined
by the fact that the Council had ve
aspiring members: Brazil, Nigeria, In-
dia, South Africa and Germany. So, at
the very least, that makes for richness
of debate. Therefore, the traditional,
you know, somewhat apathetic ap-
proach to the Security Council was not
on display. The permanent members,
by virtue of their continued presence,
tend to call the shots. But the non-
permanent members do have views.
However, the Councils outcomes are
not always determined by those views.
Give me an example of when the ve
aspiring members were able to
change the tone
In fact, I am going to make a differ-
ent point. So the world is perceived as
being divided between the ve perma-
nent members and the other 10. So the
rst baby steps that we took in the
Council is that we formed a group
called the E10: the Elected 10 or the
Elegant 10! As with any organisation
which is looking at real life issues that
affect people, you invariably end up
as my experience in trade negotiations
in Geneva showed introducing what
are called Coalitions of the Interested.
Now it would not be correct for me to
say that all ve aspiring members in-
variably took positions and were on the
same page. In terms of broad policy,
yes. In terms of the nature of the state-
ment that they made, yes. But there
were aberrations. For instance, we re-
peatedly found one of the African
members, a declared aspirant for per-
manent membership of the Security
Council, adopting a very low-key ap-
proach and voting invariably with the
West.
Including in Resolution 1973 on Libya.
Including in Resolution 1973, if
you are referring to a particular Afri-
can state. You had another member
from Africa which supported the reso-
lution. Surprisingly, one of the Eu-
ropean members did, too. Germany
abstained. Well, one needs to under-
stand why this took place. It is only
when you get that clarity that you
know what happened between U.N.
Resolution 1970 (on Libya), 1973 (on
Libya again) and then the Syria resolu-
tion, which was vetoed, and in be-
tween, the unanimous articulation of
the Security Councils position on Sy-
ria in the Presidential Statement
(PRST) on August 3, 2011, when I was
chairing the Council. That will remain
for a long time to come as the only such
unanimous PRST. We got a lot of ku-
dos for it then, but I think in retrospect
not many people who focus on the
Councils work realised the value of the
August 3 statement, both its content
and the manner in which we got it
through. But we will come to that in a
minute. In order to understand what
happened in Resolution 1973, you
have to understand what happened
prior to that, in Resolution 1970,
which was the resolution of the Securi-
ty Council on Libya that was unani-
mously voted.
The only disagreement that I recall
on 1970 was the formulation con-
tained therein, referring Colonel
Muammar Qadda and some others to
the International Criminal Court.
There was a lively discussion within
the Council, and some of us said,
Look, the threat of a referral would be
more appropriate, because once youve
referred somebody to the ICC then the
clock is ticking, and you dont have the
leverage which is required. The Amer-
icans agreed with our view, but some of
the European members were in a ter-
rible rush. They said, No, no, we have
to [refer it to the ICC]. This is the
minimum. So I said, Alright, in
which case, what will happen when
you come back because the situation is
not going to change. I mean the man-
ner in which the situation in Libya was
spiralling out of control in February.
So the short point is that that we got a
unanimous resolution (1970), even
though there was unease in the Coun-
cil on that resolution.
By the time we came to 1973, there
were major disagreements. Why? That
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is entirely due to what was being pro-
posed. It was very clear that many
Western capitals were openly espous-
ing regime change to begin with. Sec-
ondly, the language of 1973 contains
explicit provisions for punitive and co-
ercive action. It contains an explicit
formulation, all means necessary,
which is a euphemism or code word for
military action. Now you dont need
knowledge of rocket science to realise
what these provisions mean. We were
going in for a Western-NATO military
operation.
In the negotiations for Resolution
1973, all people of goodwill tried to
insert some formulations in there,
such as the call for a ceasere, an arms
embargo, and so on and so forth. The
nal outcome of 1973: I knew that this
was going to be a stepping stone to
disaster. Why? Not because any of us
wanted to hold a brief for Colonel Qad-
da . Lets be clear. India, in any case,
did not have the kind of relationship
with Qadda that some Western lead-
ers had. You remember two visits by
[British Prime Minister Tony] Blair to
Qaddas tent in the desert, in 2008
and in June 2009. If you look at the
nature of the relationship many West-
ern capitals had with Qadda, it is well
documented that many sold arms to
him. And there are allegations that
Qaddas money was not only subvert-
ing academic principles (at the Lon-
don School of Economics), but also
nancing elections in Western Eu-
rope. India didnt have this kind of
relationship. In fact, the only known
interaction at head of government lev-
el that I can recall was when Indira
Gandhi visited Tripoli in 1984.
Yes, there were Indian workers in
Libya, about 18,000 of them. But they
were not working as part of large com-
mercial contracts that India had.
These were poor people who were
hired by Western economic entities.
They were in a difcult situation. After
the last Western citizens were pulled
out, the West declared war on Libya.
And China and India had to start, you
know, locating their citizens, making
arrangements for them being taken to
safety.
Its interesting that there were
news reports that suggested that the
reason India abstained from voting on
Resolution 1973 was that it was preoc-
cupied with the problem of its
nationals.
I know a little bit about that be-
cause I was the person here negotiat-
ing, and I was the person in charge of
the Mission in New York. No. We ab-
stained because we understood what
was happening. Nobody wanted to
hold a brief for Colonel Qadda. But
we realised that this is a society that is
characterised by tribal animosities and
that the use of force is going to exacer-
bate the situation. But the interesting
thing here is we were not alone in that
assessment. There were several others,
including people who voted for the res-
olution. The South Africans have told
me on a number of occasions that their
vote for the resolution was a mistake.
But they said that their decision was
not inuenced, but conditioned, by the
expectation that Resolution 1973
would help bring peace to Libya. Our
assessment was different. Our assess-
ment was that this was going to result
in an Iraq kind of situation, with a
Security Council rubber stamp. And I
think in retrospect we were absolutely
right. Interestingly, Russia and China
also abstained. But you talk to the Rus-
sians and the Chinese now; they say,
We made a mistake. We should have
cast the veto.
What is their assessment? If they had
vetoed Resolution 1973, how would
events have played out?
That is very difcult to say because
that involves a hypothetical scenario.
The military operations commenced
on March 14, 2011. In the run-up to the
commencement of the military oper-
ations, the question was, where would
the assets come from? And it was very
clear that it would have to be a NATO
operation, and within NATO also
there wasnt much of an appetite from
the U.S. But they were talked into the
situation, or they decided to get in-
volved, and then they pulled back. All
of us realised immediately that this
talk about countries in the region par-
ticipating was without a solid basis. I
dont know how many Arab countries
in the region could participate. But it
was essentially a NATO military
operation.
When military operations ostensi-
bly concluded, it was clear that the
post-conict Libya would require a lot
of attention. But during the military
operation justied by Resolution 1973,
the Council faced the spectacle of not
being able to enforce a ceasere, which
was in the resolution. When we all
asked for a ceasere, we were told that,
no, they were not in the mood until the
entire Qadda establishment, the en-
trenched establishment, was over-
thrown. So even though Resolution
1973 does not talk about regime
change, that was certainly the
standard.
What about the arms embargo, which
was also in 1973?
You know the only reason the
Council agreed to the arms embargo
FORMER PRESI DENTS GEORGE W. Bush of the U.S. and Hosni Mubarak of
Egypt at the White House in Washington in April 2001. There is a
fundamental difference in the Council between the years of the Bush
administration and the Obama administration, Hardeep Singh Puri says.
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was that there was a desperate plea
from the Arab League. And they said, if
the Council does not intervene there
will be rivers of blood, and they went
on to say that the Council owedit to the
poor people in Libya who were being
slaughtered. Saif al-Islam [Qaddas
son] had made a statement on the pre-
vious day that they would hunt down
all the Benghazi rebels like rats. I re-
member the statement that I made in
the Council. This was all in a closed
session. I said, rst of all, the phrase
rivers of blood is the intellectual
property of Enoch Powell, the Member
of the British Parliament from Wolver-
hampton. Powell said that in the con-
text of immigration of coloured
immigrants from the Commonwealth.
And you know, that turned out to be
baloney. So we dont know what will
happen.
In that atmosphere nobody want-
ed to be seen to be doing nothing, and
the intentions of those who were ask-
ing for the resolution were not suspect
till then. The arms embargo means
that you will not be arming the Beng-
hazi rebels while you are conducting
military operations against Qadda.
We kept asking this. I remember ask-
ing, Do you know who these guys [the
rebels] are? These chaps that you are
arming, etc? Now we know the facts of
who these people are, such as Belhadj
[Abdelhakim Belhadj, the emir of the
Libyan Islamic Fighting Group] who
had been handed over in a terrorism
rendition case. They kept saying that
this is a grand alliance between the
people of Libya and the West in order
to get rid of a tyrant. We kept telling
them to listen, just think this one
through. And now we are told by a
senior human rights ofcer that about
8,000 people in detention centres are
being held without trial in todays Li-
bya about the rampant abuse of hu-
man rights and extrajudicial killings:
thats exactly what we were saying.
Is there a mechanism in the Security
Council to go back and revisit the
Libyan war, Resolution 1973, and
exactly how you are laying it out? Is
there a way for the U.N. to do this in
order to understand the precedent set
for the Council?
Russia has asked for the Security
Council to undertake an evaluation of
protection of civilians, because Reso-
lution 1973 is about protecting civil-
ians. So what kind of damage was
there, collateral damage to civilians,
etc? There is great reluctance to un-
dertake that. That is the issue. So I
hope you are very clear as to why India
abstained on Resolution 1973. You
know, as students of history, one does
not know how its going to work, but
with the benet of hindsight, you
should have voted against it. That is
the predominant view on the Council.
Those who clamoured for military ac-
tion wanted it with enthusiasm. Now
they dont want to have a discussion
about what is going on in Libya. That is
why they dont want any open sessions.
What about Syria, then?
Look clearly, given a situation in
which the Alawites constitute 12 per
cent of the population, with the total
minority at about 26 per cent. Any
society where there is a minority of 26
per cent and a majority of 74 per cent,
there is going to have to be a social
compact. That compact worked be-
cause different communities were co-
opted. But one thing is very clear about
Syria. As we proceeded in the Council,
it became clear (and this also comes
out in the [al-Dabi] report to the
League of Arab States) that there is an
armed component to the opposition.
Those who want a strong condemna-
tion of Damascus will tell you that
helpless civilians turned to the opposi-
tion, and they armed themselves only
when they were being slaughtered. Be
that as it may. It is very difcult to
calibrate as to when one became the
other, when the peaceful became the
armed, when a qualitative change took
place. My sense is that you cannot get
peace in Syria unless both sides walk
back. Therefore, you need complete
cessation of violence. You need an in-
clusive Syrian-led dialogue without
preconditions, and you need the en-
gagement of all sections of civilian so-
ciety on issues related to constitutional
reform.
Do you think the Libyan experience
has made it impossible for both sides
in Syria to take a step back?
Well, there is some suggestion that
President Bashar al-Assad might be
willing to talk, but those who are -
nancing and arming the opposition
think that they will be able to succeed,
drawing on the Libyan experience. I
must say frankly: whether we vote for
or against or abstain on the Syrian res-
olution is not the issue. Because of the
Libyan experience other members of
the Security Council, such as China
and Russia, will not hesitate in exercis-
ing a veto if a resolution and this is
the big if contains actions under
Chapter 7 of the U.N. Charter, which
permits the use of force and punitive
and coercive measures. So your ques-
tion is absolutely pertinent. And, you
know, the Libyan experience means
different things to different people.
The unsettled state of Libya means
that there are mercenaries who are op-
erating in Libya, who are going back to
Niger and Mali, bringing chaos.
Nothing that Ive said should lead
to any inference being drawn that we
are unhappy with the transitional gov-
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Qadda (right) with British Prime
Minister Tony Blair outside Tripoli,
Libya, in March 2004. India did not
have the kind of relationship with
Qadda that some Western leaders
had, says Puri.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 6 3
ernment. We want to see the people of
Libya being able to vote, and we hope
for a positive outcome. What we are
doing here is understanding Resolu-
tion 1970 and Resolution 1973.
We were able to get unanimity in
the Council, under the Indian presi-
dency, on the presidential statement in
the Council on Syria on August 3, 2011.
We stopped short of incorporating
Chapter 7. We condemned the vio-
lence. We called on both parties to step
back and we asked for a dialogue ab-
juring violence. That was the message
we had given bilaterally through IBSA
[India-Brazil-South Africa]. That is a
message we have given collectively.
We were told we that is, the PRST
[U.N. Security Council Presidents
Statement] need unanimity. So our
contribution, apart from making sure
that we got the text that we wanted,
was to get unanimity. We have seen
statements by former U.S. diplomats
who said, Oh, this was not an Indian
thing, this was negotiated between
Brazil and France. I mean, I can tell
you, you can talk to the Secretariat, the
Indian presidency was the rst time in
the history of the Security Council
when the President did the negotiat-
ing. I mean full marks to all the dele-
gations because they came on board,
but we were doing the negotiating. We
were not only chairing. Then we knew
that this would fall apart because Le-
banon would not be able to join the
PRST. So we looked for a precedent to
allow them to disassociate from the
statement. We found one in 1974. So
we got a unanimous Presidential
Statement in August 2011.
Then two months later, on October
4, Britain and France brought a resolu-
tion before the Council which was es-
sentially the same as the PRST, except
it had a reference to Article 41. This
would mean we would consider fur-
ther measures, including from Article
41. Not that they will take these mea-
sures, but if this does not work, then
they would. Two permanent members
of the Security Council co-sponsored
the resolution. Two permanent mem-
bers [Russia and China] vetoed it, and
the fth, the U.S., under provocation
from the Syrian ambassador, walked
out.
So this is it. There is a complete
difference between August and Octo-
ber. We abstained in October. So why
did we vote in favour of the February
resolution on Syria? Because the Feb-
ruary resolution [which Russia and
China vetoed] was explicitly clear that
it was not under Chapter 7 [use of
force]. So Resolution 1973 and this
one are fundamentally different. So
thats the reason why we supported
one and didnt support the other.
So you think now the sense is that
people are going to be extremely
concerned about Chapter 7?
Yes.
AFTER A NATO air strike on pro-Qadda forces, on the road between Benghazi and Ajdabiyah in Libya in March
2011. From 1991 onwards, NATO began to be the de facto military arm of the U.N.
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Art
M A R C H 2 3 , 2 0 1 2
Interview with K.S. Radhakrishnan, who curated a retrospective comprising 350
works of Ramkinkar Baij, now running at Delhis NGMA. BY CHI TRA PADMANABHAN
Being universal by b
6 4 F R O N T L I N E
M A R C H 2 3 , 2 0 1 2
THE SCULPTOR K. S. Radhakrishnan, who was
Ramkinkar Baijs student at Santiniketan in the
1970s. Here he is seen with a life-size poster of
Harvester, a 1943 sculpture by the master, at
the NGMA.
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RAMKI NKAR BAI J I N
his last years.
Santiniketan the creative ground for his strikingly
new idiom in iconic works such as Lampstand,
considered the rst modern abstract sculpture in
India, Santhal Family, Harvester and Mill Call.
The retrospective documents the pure passion of
a rare artist who was enthralled by the creative proc-
ess and by life and nature and showed deep empathy
for the peasant and the working man and woman
an artist who was rooted and rebellious, spontaneous
and reective; who ew against the conventions of
Ghataks incomplete documentary
mentions Baij would often use a
painting to plug a leak in the roof. ...
He never gave much thought to a
paintings life after nishing it; the
act of conceiving and making an
image was what excited him.
THENational Gallery of Modern Art (NGMA) in
New Delhi is hosting a major retrospective compris-
ing 350 works of Ramkinker Baij (1906-1980)
watercolours, drawings, sketches, oils, models and
life-size photographs of monumental sculptures,
which leap across time with a rare vitality. The exhi-
bition, Ramkinkar Baij: A Retrospective, show-
cases the restless genius of an artist whose stature as
the father gure of contemporary Indian sculpture,
or sheer brilliance in a range of mediums, from art to
theatre direction, has never been properly
acknowledged.
Curated by the well-known sculptor K.S. Rad-
hakrishnan, who was Ramkinkars student at Santi-
niketan in the 1970s, the show (February 8-March
31) comprehensively documents the life and con-
cerns of the master who was born in a humble family
in Bankura, grew up soaking in local artistic tradi-
tions, and was brought before Rabindranath Tagore
in Santiniketan by the nationalist journalist Rama-
nanda Chatterjee to be put under the master Nanda-
lal Boses tutelage. For more than 50 years he made
being local
F R O N T L I N E 6 5
M A R C H 2 3 , 2 0 1 2
6 6 F R O N T L I N E
his time to forge a language as rooted
as it was universal. In a conversation,
56-year-old Radhakrishnan, who di-
vides his time between Delhi and San-
tiniketan, spoke about the
extraordinary journey of documenting
the trajectory of a master many of
whose works have gone missing over
the years. Excerpts:
What does it mean to have a
Ramkinkar Baij retrospective, his rst
ever comprehensive show, 32 years
after his death and six years after his
centenary?
In 2006, the artists birth centen-
ary year, the Ministry of Culture and
the NGMAs advisory committee took
a decision to have a Ramkinkar retro-
spective. They should have had the
show that year but were not prepared
for it. I was probably asked to curate
the show because of my intimate per-
sonal association with Kinkar da as his
last student at Kala Bhavan in Santini-
ketan, from 1974 to 1980 the last six
years of his life and my rst six years
there as a student.
For a long time I had wanted to
bring to the worlds notice a master
and teacher who has never been prop-
erly acknowledged as the father of
modern Indian sculpture. Rather, peo-
ple have had such misconceptions
about him. After the show opened, a
leading newspaper described him as a
Santhal artist! By sculpting a Santhal
family, one does not become a Santhal.
Artists and scholars, too, have had
their misconceptions about
Ramkinkar.
Even a premier institution like the
NGMA has recorded the artists year of
birth as 1910 and not 1906.
The eminent artist K.G Subramanyan,
Ramkinkars student in Santiniketan
who became a prominent teacher at
Kala Bhavan, has commented that a
Ramkinkar retrospective is an art
historians despair. Why?
Anybody sitting with Kinkar da for
an evening adda just had to say that he
liked a particular painting and the art-
ist would give it to him. He never lived
with any of his work in his house. A few
students managed to preserve some of
his works, rescuing them from a decre-
pit house.
In fact, Ritwik Ghataks incom-
plete documentary on Ramkinkar
mentions that he would often use a
painting to plug a leak in the roof,
"FAMI NE". BAI J S WORK, says his student, was invariably triggered by a happening that made him enter a pictorial
space from the real. (Right) Another sculpture, "Coolie Mother".
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 6 7
"SANTHAL FAMI LY". I T was done in 1938, when, says Radhakrishnan, the trend was to do viceroys busts and static
statues in the Western realistic tradition. Baij was then 32.
M A R C H 2 3 , 2 0 1 2
6 8 F R O N T L I N E
"GOLDEN CROP". ALSO an oil painting.
"SPRI NG". A GEOMETRI C oil on canvas.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 6 9
"GANDHI , DANDI MARCH". Despite its name, the sculpture depicts
Gandhi at Noakhali in 1947. The skull at his foot stands for the
violence he walked into. The larger version of the work executed in
concrete is at Santiniketan. This is the original model and is from
the NGMA collection.
"FRUI T GATHERERS". A sculpture.
THE MODEL OF Yakshi that Baij
made when he got the contract to
sculpt a Yaksha-Yakshi pair to be
placed before the Reserve Bank of
India in New Delhi.
M A R C H 2 3 , 2 0 1 2
7 0 F R O N T L I N E
saying it was of some use at least. He
never gave much thought to a paint-
ings life after nishing it; the act of
conceiving and making an image was
what excited him. Often short of mate-
rial, Kinkar da would paint over a
painting, creating several layers of
works. In any other country, excavat-
ing the hidden works would assume
signicance to plot an artists journey,
but not here.
A man who lived his life gifting
away his work, used bedsheets or gun-
ny cloth for lack of money to buy can-
vases, never prepared his surfaces well
or bought appropriate colours, does
pose a problem for an art historian.
Two years after Ramkinkars
death, the then NGMA director, L.P.
Sihare, approached Kala Bhavan; a
chunk of the masters collection came
into the NGMA collection and bene-
ted by its restoration efforts. At the
same time, the works that had gone
had gone. It was crucial to work out the
missing links.
Your curatorial effort seems to have
been more of an investigation.
He was so prolic, yet one is hard
put to trace his works. Kinkar da
would make something even at a small
Nandan Mela in Santiniketan, which
went for Rs.50. I bought a lithograph,
Night Drummer a Santhal drum-
mer walking past a lamp post at one
such mela in 1976. Even those pieces
are not available today.
A year before he passed away,
Ramkinkar gave me his etching plate,
drawings and books. On a point of
principle, I gave them to Kala Bhavan.
Those too are missing. Kala Bhavan
has about 70 pieces in its collection at
present.
So when you started on the project,
you had no idea of the extent of
Ramkinkars work?
That is why it was so important to
embark on a journey of documenting
his lifetime of work.
What was your starting point?
I started with the NGMA collec-
tion, which was recorded in a hand-
written list containing merely titles,
without any images. I started creating
a database scanning every work and
every page of Ramkinkars sketch
books, most of which have never been
exhibited. The idea was to photograph
for documentation and also for publi-
cation purposes.
Since many of the remembered
works at Santiniketan were missing, I
started asking the people Kinkar da
had associated with for leads. K.G.
Subramanyan put me in touch with
Nirmala Patwardhan in Pune, who di-
rected me to her lm-maker son
Anand Patwardhan, who gave more
names. It was virtually a house-to-
house search.
Since such a scenario can give rise
to fakes, the idea was to publish a de-
tailed volume on Ramkinkars work,
recording a missing work by mention-
ing it alongside its photograph. Even
now I cant claim to have documented
most of his works.
From where did you get the images of
missing works?
That, too, was a project. I got some
images from the collection of the well-
BAI J WORKI NG ON a bust of Rabindranath Tagore.
A YOUNGER BAI J at work in his house at Santiniketan, taken by surprise by
the camera.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 7 1
"MI LL CALL", 1956, installed in Santiniketan, depicts a working-class family setting off for work on hearing the mill
siren. It was done in concrete and laterite pebbles: Baij would throw the concrete inside the armature, a technique
he used for the last time in this sculpture.
M A R C H 2 3 , 2 0 1 2
7 2 F R O N T L I N E
STUDY OF A horse. Baijs watercolours reect his preoccupation with nature and the animal world.
A FLOWERI NG TREE.
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F R O N T L I N E 7 3
known Bengali writer Samaresh Basu,
who wrote a serialised story loosely
based on Ramkinkars life for Ananda-
bazar Patrika. To authenticate the art-
ists work from photographs would
have been tricky for some other cura-
tor, but as a student of Ramkinkar fa-
miliar with his strokes, I managed to
do so.
What about photographs of
Ramkinkar himself?
Ramkinkar was a colourful indi-
vidual involved with theatre and sing-
ing. People wanted to meet him,
photograph him. I contacted people
such as Baroda-based printmaker and
photographer Jyoti Bhatt, who had
come to Santiniketan in 1977, among
others. Ramkinkars neighbour gave
me a CD recording of an interview his
father had conducted with the artist. It
included a song by him.
After a few drinks, Ramkinkar
would often sing loudly. Everybody
would say, Today is not a good day to
go there, he is in great spirits and un-
stoppable! The song was played at the
shows opening. Simultaneously, I
started work on a documentary from
existing material such as Ghatak and
Harisadhan Dasguptas lms.
What was Ramkinkars conception of
himself?
What does a saint think about his
sainthood? He looked at the world as
an insider and was never alienated
from it. Ramkinkar only worked on
what he knew, not on what he wanted
to know.
In what manner?
Take the subject of famine, which
he handled extensively. News of the
death of Jagan at the tea shop that he
visited often opened up a new space in
his mind, connecting it to the famine.
Ramkinkars work was invariably trig-
gered by a happening that made him
enter a pictorial space from the real.
Interestingly, he made watercolours of
women working in elds, taking
straight from life. But the massive,
larger-than-life sculpture Harvester
installed at Santiniketan was made
headless and geometrical, the strength
of the arms holding paddy all too pal-
pable. Here, departing from what he
had seen, Ramkinkar moved into an
artistic sculptural space where his me-
mories expressed themselves differ-
ently. He moved in and out of these
two spaces incredibly from the real to
artistic sculptural space.
In what way was Ramkinkar radically
different from his contemporaries?
He was surrounded by a Western
mode of muscular, anatomical orien-
tation of human forms and realism, be
it D.P. Roy Chowdhurys Triumph of
Labour or Dandi March at the Wil-
lingdon Crescent [in New Delhi]. But
here was Kinkar da, drawing an ideal
structure from tradition but interpret-
ing it into a modern realism and estab-
lishing a language of his own.
At the show one can spot his evolu-
tion, from Santhal Family, whose vi-
sual references were closer to things
happening around [the artist], to the
Harvester (1943), a model of which
was sent to an international contest on
the theme of the unknown political
prisoner in 1952. While showing the
peasant as the unknown political pris-
oner, he was making a larger ideolog-
ical point in a global context.
Ramkinkars technique remained the
same, but his visualisation changed.
Take the Mill Call (1956), a pow-
"CAT FAMI LY", A lithograph of three cats.
M A R C H 2 3 , 2 0 1 2
7 4 F R O N T L I N E
erful representation of marching
ahead, where you can sense the speed
with which the women are walking,
the child running behind. Even dust is
given a form. The sheer sense of move-
ment is incredible. Movement was a
crucial focal point of Ramkinkars
oeuvre: movement that happened out-
side and within. He managed to con-
nect both somehow. My reading of
Kinkar da is that he never liked to keep
a work hanging; he nished a painting
in a couple of hours. I dont think he
ever reworked a watercolour the fol-
lowing day. Even the models for his
sculptures were nished in one go.
Speed was the most interesting char-
acteristic of Ramkinkars approach,
combining spontaneity and uency
with reection. It was visible in his
subjects: eld workers, fruit gatherers,
knife sharpener, among others, all of
which are on view.
As a student what was your
experience with him?
Already a big gure, his presence
was strongly felt even when he was not
around, because of the monumental
concrete sculptures on the campus:
Sujata, Buddha, Gandhi, Santhal
Family, Harvester, Mill Call,
among others. His works were big les-
sons for us. When he came in it was like
a lion entering the campus. As he en-
tered the studio we would le out si-
lently. After a few hours he would
come out and say, Done, done. My
job during the making of Sacrice
was to make a mould, take the clay out
and put cement in.
How were the big works made?
Since they were too big to be cast,
they were made directly. Ramkinkar
would throw laterite pebbles and ce-
ment mortar directly on an armature.
This ruggedness gave the sculptures an
earthy look. Because of the dimen-
sions, the structure was very important
for him. A good understanding of the
inherent anatomy of a sculpture was a
must.
Why did Ramkinkar choose cement?
For the huge works he wanted to
make, open-air sculpture was the only
way. Cement was the only material
that would survive outside. He wanted
the sculptures to be on the ground, not
on a base, so that they would merge
with the landscape. Look at Sujata,
elongated like the trees and emerging
from the ground similarly, carrying
food for Buddha seated on the
campus.
Though, today, we see cement and
concrete as getting away from nature.
Yes, but the context was different
then. Like his sculptures, Ramkinkar
too wanted to be outdoors. Bare torso,
hat on head and carving with a sense of
unimpaired freedom was typical Ram-
AN OI L OF Binodini. Widely known as the artists muse, she was his student
and belonged to the royal family of Manipur. He did a series on her. Binodini
went on to become a well-known writer and social activist in Manipur.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 7 5
kinkar. He liked to express his feelings
freely, too. Once he told a well-known
Kolkata-based theatre director hold-
ing a workshop at Santiniketan that he
was not handling a scene properly. The
director slapped him and in turn was
beaten up by students who said they
wanted Ramkinkar, not him.
In 1975, I watched Ritwik Ghatak
lm Kinkar da. One day, despite every-
thing being ready, not a single shot was
lmed. Both Ghatak and Kinkar da
were drunk and were seen lying on the
road in the evening. The trafc rever-
entially moved to another route! Ram-
kinkar was the man of the place.
In his space Ramkinkar was the
subject of intense adoration. How is
he seen today in art history?
For a long time people knew of him
as a sculptor, but they did not see his
radical idiom in a larger context. That
is getting established now. As a 32-
year-old Ramkinkar made an integral
structural composition of man, wom-
an, child and dog (Santhal Family,
1938) at a time when the trend veered
to viceroys busts and static statues in
the Western realistic tradition. I would
place him alongside Western masters
such as Rodin. Today, many people
know Kinkar da for his visible Yaksha
and Yakshi gures outside the Reserve
Bank of India on Delhis Parliament
Street. Yet Ramkinkar was not happy
with them since they ended up too rig-
id. By placing in the show a series of the
sketches and models Kinkar da pre-
pared before executing the nal sculp-
ture, I have tried to highlight the
creative journey, which was always
more important to him.
What does this creative process say
about Ramkinkar?
The sketches, watercolours and
models all show how rooted and simul-
taneously experimental Ramkinkar
was. He studied temple sculptures
and, unlike his Santiniketan contem-
poraries, also started looking at real
nudes. In Calcutta College, students
would copy from Roman heads. We
never did that.
An environment was created for us
to learn. One is always drawn to nature
and people become part of it. We
learnt from people posing for us in the
nude so we could understand realism.
To distort and create ones own lan-
guage one had to learn what to distort
from. Few of Kinkar das 1930s con-
temporaries drew from life as regards
nudes; he did some really interesting
erotic sketches.
There is one room full of sculpted and
painted portraits, including that of the
artists muse, Binodini.
Ramkinkar drew portraits of indi-
viduals with whom his association be-
came personal, such as his classmates
or students, unlike his contemporaries
who either made portraits of impor-
tant people or for commissions. He
never went for a physical likeness, be-
ing more interested in interpreting a
persons personality. At the same time
you could recognise the individual.
In the 1980s, when the then West
Bengal Culture Minister Jatin Chakra-
borty unveiled Ramkinkars portrait of
Tagore in Budapest, he remarked that
it did not look like Tagore and should
probably be replaced. When people
like Satyajit Ray swiftly responded, the
matter was laid to rest. Santiniketan
has had a tradition of doing portraits
from life and nature because of Ram-
kinkar. His view was: if it is already
there why make a copy? For him, the
person making the portrait and the
one whose portrait was being made
both had to come together in the struc-
ture. He made hundreds of portraits,
but most of them are missing.
How did Ramkinkar look at tradition?
He visited places such as Ajanta,
Ellora and Amravati. Understanding
the qualities of idealised gures helped
him develop his own style. The elon-
gated man in Santhal Family was al-
most drawn straight from Amravati.
The earlier Yakshi models were close
to the Didarganj Yakshi, [on the basis
of which ] he reected on distortions
and stable posture alike. Kinkar das
respect and understanding for pre-
classical and classical art helped him
evolve a language that was established
over a period of time.
A language that was totally different
from that of Santiniketan as well.
That is where Ramkinkar rebelled.
He made Bengal-school wash paint-
ings but realised that it was not his
style; he wanted to experience earthy
ruggedness. Crudeness was important
to his expression, for sometimes art
can get into really alienated space.
Santiniketans permissive atmosphere
helped him to shape his individuality
and the retrospective has attempted to
highlight that.
I wanted to highlight his presence
in the show and so decided to use sev-
eral rare photographs of his at the en-
trance. We all know what [Pablo]
Picasso looked like or even Satyajit
Ray, whose life was behind the camera.
After this show people will know what
Ramkinkar looked like. It is very im-
portant to me that the world knows
what he looked like, what he was
Indias rst modernist sculptor who
believed in being universal by being
local. Ramkinkar Baij was not part of
any school of art; he was his own
school.
"GI RL WI TH A dog", an oil. The girl
is Soma Joshi, one of Baijs students,
who was very fond of dogs.
M A R C H 2 3 , 2 0 1 2
7 6 F R O N T L I N E
F
ROM the time of the
launching of the Eleventh
Five Year Plan in 2007, in-
clusive growth has become
the ofcial creed of eco-
nomic policy in the country. It has
been emphatically reafrmed in the
Approach to the Twelfth Five Year
Plan and related publications. In
these documents, what is being com-
municated is that the way to achieve
inclusive growth is through stepped up
growth itself, strong political commit-
ment, appropriate programmes and
adequate nancial allocations.
The two books under considera-
tion point out that the programmes for
inclusive growth must be viewed
against the background of centuries of
social exclusion which was practised in
the country and still prevails in spite of
constitutional, legal and administra-
tive provisions against it.
The socially excluded in the coun-
try are, of course, the Scheduled Castes
(S.Cs, or Dalits) and the Scheduled
Tribes (S.Ts). Included in both the cat-
egories are also sections of the Mus-
lims, the ajlaf group recognised by the
Sachar Committee Report in States
such as Uttar Pradesh and Bihar, who
originally belonged to the lowest castes
among Hindus but later became con-
verts to Islam. The problem of social
exclusion is not peculiar to India. The
United States has a long history of so-
cial exclusion of the blacks, for long
known as Negroes, who rst as slaves
and then as released slaves were cru-
cial for the countrys economic per-
formance but were socially and
politically excluded. The peoples
movement pioneered by Martin Luth-
er King Jr in the 1960s led to civic
rights being fully thrown open to the
erstwhile excluded community. It was
followed by Afrmative Actions of
various kinds in educational institu-
tions and for employment. Following
these, there have been several studies
by academics, mainly economists and
sociologists, to assess the impact of Af-
rmative Actions.
The volume edited by Sukhadeo
Thorat and Katherine S. Newman is a
collection of empirical studies to see
how far special arrangements, primar-
ily reservation, to counter social exclu-
sion in India have succeeded in their
objective. These studies make use of
the procedures developed by Ameri-
can scholars. Built-in prejudices of
various kinds still play a prominent
role in hiring practices, especially in
the private sector, reports one of the
studies. Frequently the name, family
background, and so on are enough to
indicate the social background of the
applicant. One of the empirical studies
showed that job applicants with a Da-
lit or Muslim name were on average
signicantly less likely to have a posi-
tive application outcome than equally
qualied persons with a HC [high
caste] Hindu name. It was seen in
another study that during job inter-
views candidates were asked about
their family background and if it was
revealed that a candidate came from a
family doing manual jobs it was taken
to mean that it signied uncleanness.
The justication provided was that a
rm was hiring not just an individual,
but a representative of a large social
Skewed growth
IN REVIEW
Blocked by Caste: Economic
Discrimination in Modern
India edited by Sukhadeo
Thorat and Katherine S.
Newman; Oxford University
Press, New Delhi, 2010;
pages 337, Rs.750.
Economic Discrimination and
Social Exclusion: Impact of
Liberalization on
Marginalized Groups in India
by K.S. Chalam; Sage
Publications, New Delhi, 2011;
pages 224, Rs.550.
Two volumes that provide empirical evidence of the plight of the poorer,
excluded and neglected sections of Indian society. BY C. T. KURI EN
books
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 7 7
body, the family, the village, the tribe,
the caste and that these attributes
would affect productivity.
Regarding reservation itself, Dalits
were nearly unanimous that it was
helpful to enter institutions of higher
education and also in the job market.
Those who felt adversely affected were
bitter, but a good number of them also
recognised that such measures were
necessary to overcome centuries of op-
pression and discrimination. The aver-
age earnings of Dalits were found to be
lower than those of others, and em-
ployment discrimination is substan-
tial, especially in the private sector,
and that discrimination occurs to a
large extent in unequal access to jobs.
Restrictions exist in Dalits access to
land, and almost invariably they have
to pay a higher price when someone
(usually from Other Backward Class-
es) agrees to sell land to them. Dalits
are also at a disadvantage in credit and
input markets.
Discriminations and inequalities
are seen in the sphere of health, where
a social gradient to health outcomes is
quite visible, indicating that peoples
susceptibility to disease depends not
merely on individual behaviour but on
the social environment within which
they lead their lives. Adivasis and Da-
lits have much lower access to doctors.
A carefully designed and controlled
study based on data from the National
Sample Survey (NSS) showed that
compared with the average age at
death of high-caste Hindus, that of
Adivasis was 4.9 years lower and of
Dalits was 7.1 years lower. Discrimi-
nation is seen to be widely prevalent in
the sphere of health care also.
Similar discrimination can be seen
in the educational sphere. Even by
2000, barely 48 per cent of Dalit chil-
dren had completed primary school-
ing. In a eld study conducted among
college students in Aurangabad, 80
per cent of Dalit students recalled that
they were made to sit outside the class-
room in their primary schools. Even
where the Dalit children are taken into
the classroom it is not seldom that they
BHOGA RUKMI NI , A weaver at Pochampally in Andhra Pradesh. K.S. Chalam writes about silk weaving at
Pochampally to illustrate the plight of the weaker, socially excluded sections.
V
.

S
W
A
T
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M A R C H 2 3 , 2 0 1 2
7 8 F R O N T L I N E
are made to sit on different benches;
they are also systematically excluded
from co-curricular activities. It is not
uncommon for S.C. children to be la-
belled by teachers as weak and be
given inadequate attention.
Equally pronounced is the dis-
crimination in the midday meal
scheme. A survey conducted early in
2004 by the Indian Institute of Dalit
Studies in 531 villages in ve States
exposed many forms of discrimination
relating to the scheme. There were Da-
lit cooks only in 8 per cent of these
villages. There was not a single in-
stance of a Dalit being a midday meal
scheme organiser. In over 9 per cent of
the midday meal scheme centres, chil-
dren of the dominant castes and Dalits
were served separate meals; in many
places, Dalit children ate sitting in sep-
arate corners.
Finally, an analysis of the NSS data
pertaining to 1993-94 and 2004-05
showed that in both periods the share
of S.Ts, S.Cs and Muslims in aggregate
poverty was higher than their share in
the total population.
K.S. Chalams attempt has been to
examine how far the socially excluded
groups have fared since the reforms of
1991, whose stated objective was to
raise the growth rate of the economy. It
was essential, claimed an early ofcial
post-reform document, if we are to
break the age old bonds of poverty
which continues to afict so many mil-
lions of our people. Chalams verdict
is that the political economy of the
reforms is a clear case of utilisation by
the Indian bourgeoisie of policies to
transfer resources from the public into
private coffers without any regard for
the consequences. Hence, the new
economic reforms initiated in 1991
have further marginalised these
groups [the socially excluded] in
terms of restrictions of income, sub-
sides and opportunities that are with-
held from these groups in the name of
privatisation and liberalisation.
Chalam goes on to show how this
has happened. Agriculture has been
the main victim of the new economic
policy. Public investment in the sector
has come down; subsidies have been
substantially reduced; and the prices
of inputs have been raised. These
changes have had an adverse impact
on Dalits, the vast majority of whom
are agricultural labourers. Similarly,
there has been notable conversion of
agricultural land in different parts of
the country for non-agricultural pur-
poses, thus displacing farm labourers
and forcing them to migrate to urban
areas in search of work.
ENTRY OF BI G BUSI NESSES
Another consequence of the reforms
has been the entry of big businesses,
including some foreign ones, into the
traditional consumer goods sector.
Products like chilli power, papads,
ethnic goods, etc., produced and sup-
plied by household industries engag-
ing women labour, are now displaced
by big business houses and MNCs.
Further, the handloom sector is under
serious pressure from textile mills that
imitate their designs. Under such
conditions, the essentially assetless
Dalits have been put to great hardship.
The slow growth of employment in the
public and quasi-public sectors has re-
duced the chances of educated Dalits
to nd suitable jobs.
For artisans, most of whom belong
to the lower castes or are converts from
them, entitlements in the traditional
order are among the worst affected be-
cause of the reforms. Realising this,
schemes like the National Rural Em-
ployment Guarantee Scheme and the
Indira Awas Yojana have been
launched, but these ameliorative mea-
sures cannot cope with the pressures
that the new economic arrangements
expose these workers to. The situation
is reminiscent of the impact that for-
eign trade and goods had on the Indian
population during the British period.
With special reference to silk weav-
ing in Pochampally in Andhra Pra-
desh, Chalam illustrates the plight of
the weaker, socially excluded sections.
Of Pochampallys 10,000-strong pop-
ulation, 50 per cent depends on hand-
looms. A sample survey showed that 75
per cent of the weaver households with
an average membership of 2.6 had an
income of less than Rs.10,000 a year.
Larger families had slightly higher in-
comes. The weavers are dependent on
the market both for the purchase of
inputs and the sale of outputs. The
weavers have to borrow to purchase
inputs and usually do not get paid
promptly for the sale of their output.
These poor families, therefore, carry
the perennial burden of debt. Market
dependence has made their conditions
worse since the reforms. (A similar but
more detailed account of weavers in
Andhra Pradesh can be seen in Loom-
ing disaster, Frontline, February 24.)
Chalam also points out that Adiva-
sis are alsoaffected by the reforms. The
major mineral and metal resources of
the country are located mostly in Adi-
vasi areas. The government exploits
these resources to increase growth,
but the beneciaries are frequently
well-endowed private corporations
and their owners, while the Adivasis
get thrown out of their traditional hab-
itats and ways of making a living.
Both these volumes provide empir-
ical evidence of the plight of the poor-
er, excluded and neglected sections of
our society more than six decades after
the Constitution made special provi-
sions for them and successive govern-
ments made attempts to improve their
lot. The rst volume will be particular-
ly helpful for those who wish to con-
duct empirical studies of their own on
this theme. Chalams work shows that
the reforms of 1991 have not been able
to uplift the weaker sections, while
they have proved exceptionally bene-
cial to the high and mighty.
This, of course, is no accident.
Though several documents and stud-
ies celebrate the success of the re-
forms, the fact remains that the
economy has been virtually handed
over to those who own and control
resources, while the assetless have to
struggle even to make a living. The
reforms, says Chalam, have strength-
ened the deprivation of the already
marginalised. Indeed, the reforms are
leading to a situation where wealth
accumulates and men perish, as Ol-
iver Goldsmith aptly stated when cap-
italism started its triumphant march
in England.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 7 9
T
HE three books under re-
view share an unusual but
common pursuit. Each one
of them deals with a distinct
doctrine that denes the In-
dian Constitution today. The authors
trace the roots of each of the doctrines
due process, judicial review, and con-
stitutional morality to the Constitu-
ent Assembly debates and examine
their inuence in the shaping of the
Constitution. Often mentioned in con-
temporary public discourse, the three
doctrines have an interesting history
and their interpretations have yielded
instructive results.
The due process clause, which im-
pressed our Constitution-makers, is
essentially an American doctrine.
The original text of the American
Constitution did not have a due proc-
ess clause. But the 5th and 14th
Amendments provided that the gov-
ernment may not deprive any person
of life, liberty or property without due
process of law. In the 19th century, the
American Supreme Court traced the
doctrine to the Magna Carta. At the
time of Indias Independence, the de-
bate about the meaning and signif-
icance of the due process clause in
America was still raging.
Dr B.R. Ambedkar, the Chairman
of the Drafting Committee of the Con-
stituent Assembly, was a product of the
Columbia Law School and was famil-
iar with American constitutional law.
Dr B.N. Rau, an Indian Civil Service
ofcer and a leading member of the
Drafting Committee, had travelled to
the U.S., Canada, Ireland and England
to discuss Indias draft Constitution
with constitutional scholars.
Between October and December
1947, Rau met the former Chief Justice
of the U.S. Supreme Court, Charles
plained. Rau, who had reservations
about the due process doctrine, was
easily persuaded by Frankfurter. The
American doctrine was widely per-
ceived to favour the supremacy of
courts and not the supremacy of the
Constitution. It was felt that the doc-
trine meant just what the courts said it
meant and that no other denition was
possible.
The members of the Constituent
Assembly feared that the adoption of
the American doctrine would lead to a
ood of litigation after the inaugura-
tion of the new Constitution. They as-
sumed that the doctrine might come in
the way of benecent social legislation.
Therefore, the Constituent As-
sembly deleted the phrase due proc-
ess of law from the draft text and
Evans Hughes Sr, and the then associ-
ate judges of the U.S. Supreme Court,
Justices Felix Frankfurter, H.H. Bur-
ton and Frank Murphy. It was Justice
Frankfurter who advised Rau to drop
the due process clause from the draft
Constitution because it was undemo-
cratic and it imposed an unfair bur-
den on the judiciary.
Ashok Desai, a senior advocate of
the Supreme Court, said in an inter-
view to an online journal a few years
ago that Frankfurter advised against it
because in his view due process would
mean different judges taking their own
view of what was due and reasonable.
The legal issue could then become sub-
jective and political. We, thereafter,
adopted the more limited phrase pro-
cedure established by law, he ex-
Three doctrines
A fresh look at the relevance of three early doctrines that have dened the Indian
Constitution over the years. BY V. VENKATESAN
books/review
INFOBOX TAG WITH
IN REVIEW
Dr C.D. Jhas Judicial
Review of Legislative
Acts; Second edition,
2009; revising editors:
Justice Arijit Pasayat
and Justice
C.K. Thakker;
LexisNexis
Butterworths, Wadhwa;
pages 543, Rs.995.
Due Process of
Law by Abhinav
Chandrachud;
Eastern Book
Company, 2011;
pages 254,
Rs.800.
Tools of Justice:
Non-discrimination
and the Indian
Constitution
by Kalpana
Kannabiran;
Routledge, 2012;
pages 505,
Rs.995.
M A R C H 2 3 , 2 0 1 2
8 0 F R O N T L I N E
substituted it with procedure
established by law in Article 21. The
draft article read: No person shall be
deprived of his life, or liberty, without
the due process of law, nor shall any
person be denied the equal treatment
of the laws within the territories of the
Union. Article 21 reads: No person
shall be deprived of his life or personal
liberty except according to procedure
established by law.
The debate on the doctrine of due
process returned to judicial circles
during the hearing of the Kesavananda
Bharati case, which evolved the basic
structure theory. H.M. Seervai, coun-
sel for the respondents, argued before
the court that the basic structure doc-
trine required courts to nd a nebu-
lous spirit of the Constitution, a
position ominously close to the due
process clause of the American Con-
stitution, which the framers of Indias
Constitution had expressly deleted. He
suggested that the Constitution-mak-
ers had discarded the concept of due
process in order to have something
certain and so substituted it with pro-
cedure established by law.
The petitioners in that case had
argued that the Constitution had an
unamendable or entrenched basic
structure. Accepting this argument,
the majority judges in the Kesavanan-
da case rejected Seervais argument
equating the due process doctrine with
the basic structure theory. In Due
Process of Law, Abhinav Chandrachud
analyses the Kesavananda judgment
to understand this debate. He suggests
that the basic structure test was
strikingly similar to the federal due
process cases in the United States
where judges looked to the fundamen-
tal values of civilised society in apply-
ing federal constitutional standards
against the States. He then takes Jus-
tice H.R. Khannas dissent in the ha-
beas corpus case, decided during the
Emergency in 1975, wherein the ma-
jority judges excluded procedural due
process from their constitutional anal-
ysis. Justice Khanna substantively
read procedural due process as judicial
access into his constitutional analysis.
For the rst time in Indias consti-
tutional history, the Supreme Court
accepted, by majority, in the Maneka
Gandhi case in 1978, that the right to
life and personal liberty was subject to
a higher norm based on fairness and
reasonableness despite the explicit de-
letion of the due process clause from
the Constitution. The court found that
by denying Maneka Gandhi a hearing
before impounding her passport, the
Passport Authority of India had vio-
lated the principles of natural justice.
The court articulated the view that the
procedure established by law under
Article 21 must be fair, just and
reasonable.
HABEAS CORPUS CASE
Thus, while in the habeas corpus case
(1976) the courts majority (four of the
ve senior-most judges) refused to go
against the framers of the Constitu-
tion, in the Maneka Gandhi case the
court was willing to discard the con-
straints of original intent of the Consti-
tution-makers. Thus, Abhinav
Chandrachud says, procedural due
process became a part of Indian con-
stitutional law.
Put simply, the difference between
the doctrines of substantive and proce-
dural due process is a function of the
interplay between the questions of
why and how an authority decides
the way it does. Inquiries that seek
answers as to why an authority de-
cided the way it did, and examine the
justice or injustice of the decision, are
substantive. Inquiries that examine
how an authority procedurally ar-
rived at a decision constitute an exer-
cise of procedural due process. The
book helps one understand this
distinction.
In the authors view, in 1949, the
due process clause was specically
deleted from the nal draft of the Con-
stitution in an effort to preclude judi-
cial overreach. However, he says, the
framers gave Indias constitutional
courts powers of substantive review
under Articles 14 and 19, and of proce-
dural review under Article 22. The ab-
sence of the due process clause did not
prevent a due process-like doctrine
from emerging in Indian constitution-
al jurisprudence. For the same reason,
he suggests that it would be erroneous
to believe that the due process clause
was deleted entirely from the
Constitution.
Justice R.V. Raveendran, who re-
tired from the Supreme Court recently,
in his foreword to the book, says that
by equating procedure established by
law to due process of law, the Supreme
Court impliedly imported and incor-
porated fairness in trial, right to be
heard before being condemned, judg-
ment only after trial and deprivation of
life and liberty only after due process,
as part of Article 21. It also subse-
quently read the right to counsel, the
right to legal aid, and the right to pri-
vacy, among others, as parts of sub-
stantive due process. The rule of law
became truly meaningful, he says.
The Constitution started off with a
modest understanding of Articles 21
and 14. The A.K. Gopalan case, decid-
ed in 1950 on that basis, appears irrele-
vant today. The Supreme Court had
then held that each fundamental right
was to be read as dealing with its own
eld and the area of life and liberty was
dealt with only by Article 21.
In that case, Justice S.K. Das gave
an instance that in the middle ages in
England, the cook of the Bishop of
Rochester, who was accused of poison-
ing the Bishop, was by law of Parlia-
ment ordered to be boiled in oil. The
judge said that a parliament, in the
1950s, would not pass such a law. But if
it did, it would be constitutional, for
the punishment was death and the
procedure was being boiled in oil.
Over the years, the right under Ar-
ticle 21 has been enlarged beyond rec-
ognition. The court has adopted the
concept of due procedural fairness and
has gone further to read into the Arti-
cle substantive due process. India
has gone far beyond the American con-
cept of due process of law, although
the words used in the Indian Constitu-
tion are more limited. Indian judges
have interpreted Article 21 far more
broadly than what the U.S. courts have
done with regard to the due process
doctrine, inserted in their Constitution
through the amendments.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 8 1
Dr C.D. Jhas Judicial Review of
Legislative Acts was rst published in
1974. Chakradhar Jha, who was a
practising lawyer, is recognised for his
contribution to ancient Indian laws
and constitutional law. Scholars con-
sider this book an outstanding work on
the subject. Its revising editors, Justic-
es Arijit Pasayat and C.K. Thakker,
both former Supreme Court judges,
have taken care to update the book
with the latest developments in law
while retaining the authors basic ap-
proach to the issue, which favours
strengthening of the power of judicial
review of legislative acts.
In his foreword to the 1974 book,
the eminent legal luminary N.A. Palk-
hivala wrote that our Constitution-
makers had, with foresight, built the
judicial review doctrine in the Consti-
tution so that that its integrity might
be preserved against any hasty or ill-
considered changes, the fruit of pas-
sion or ignorance. He had cited Jus-
tice Frankfurter as having said: Man
being what he is cannot safely be trust-
ed with complete power in depriving
others of their rights. Palkhivala
pointed out that but for judicial re-
view, our fundamental rights and lib-
erties would have been in tatters.
The revising editors have shown
that the fruitful working of judicial re-
view in the past six decades has
brought the philosophical and moral
aspects of the Constitution into greater
prominence. Judicial review, they say,
has counter-balanced the political de-
cisions with reason and coolness and
guided the nation in building healthy
nationalism.
Thus, the Supreme Court has re-
peatedly held that if it comes to the
notice of the court that some Funda-
mental Rights of citizens have been
impaired by any legislative enactment,
relief in the form of declaration of its
unconstitutionality cannot be denied
merely on a technical plea. The court
being the constitutional protector of
the rights of the people, the relief, in
genuine cases of constitutional viola-
tions, ows as a matter of natural con-
sequence, it is said in the book. The
book suggests that ethical foundation
denes judicial review and limits the
notion of parliamentary supremacy.
The book is noteworthy for its sec-
tion on Innovations necessary in
working of judicial review, included
in the last chapter. It is observed here
that the legislature is a mere agent of
the sovereign people and the sovereign
people have not delegated legislative
function to their agents to enact ar-
T
H
E

H
I
N
D
U

A
R
C
H
I
V
E
S
JANUARY 24, 1950: Members of the Central Cabinet signing copies of the new Constitution of India at the nal
session of the Constituent Assembly. (From right) Jairamdas Daulatram, Food and Agriculture Minister; Rajkumari
Amrit Kaur, Health Minister; John Mathai, Finance Minister; and Sardar Vallabhbhai Patel, Deputy Prime Minister.
Behind Patel is Jagjivan Ram, Labour Minister.
M A R C H 2 3 , 2 0 1 2
8 2 F R O N T L I N E
bitrary and unjust laws. Such laws
have to be declared null and void on
the grounds that the legislature was
not competent to enact such laws un-
der the limited powers conferred on it
by the people. The court, therefore, has
to broaden its vision in constitutional
interpretation and rely on the implied
intentions of the Constitution.
A signicant innovation recom-
mended here is that judges should be
enabled to raise the question of uncon-
stitutionality of a legislative enact-
ment suo motu. If they believe that the
particular Act is prima facie unconsti-
tutional, they may refer it to the Con-
stitution Bench, and such a Bench may
give necessary decision about its con-
stitutionality after hearing the parties
appearing in the case and the repre-
sentatives of the Union or the State.
Another suggestion is to permit le-
gal challenges to Bills introduced in
Parliament and the State legislatures if
the court nds prima facie substance
in the challenge. If the Bill itself is
declared unconstitutional, it would
save the nation from much harm, the
book says.
The following observation in the
book aptly reects contemporary
thinking among civil society activists:
In being activist, the courts philoso-
phy should be that the legislature
should function strictly and truly as
agent of the sovereign people and all
economic and social changes through
legislation can be brought only when
such legislations are in keeping with
the feelings and sentiments of the peo-
ple and are really for their benet and
not based merely on political senti-
ment and whims of the party in
power.
The third doctrine, constitutional
morality, explored in Kalpana Kanna-
birans book, was long forgotten until
it was resurrected by the Delhi High
Court in the Naz Foundation case. In
2009, the court invoked the doctrine
to decriminalise homosexual beha-
viour of consenting adults. The High
Court held that Section 377 of the Indi-
an Penal Code, which criminalises ho-
mosexual behaviour, though reective
of public morality, was against consti-
tutional morality. (The court, however,
did not use the terms public and con-
stitutional morality in mutually exclu-
sive terms in all instances.)
NAZ FOUNDATI ON VERDI CT
The doctrine of constitutional moral-
ity implies that constitutional guaran-
tees will lose their signicance if these
are given conventional, that is, major-
itarian, interpretations. As Justice A.P.
Shah, one of the judges who rendered
the Naz Foundation judgment, ex-
plained: a right against the majority
only when the majority agrees with it is
not much of a right. Therefore, the
court reviewed Section 377, which was
a piece of moral legislation enacted on
the basis of the majoritarian moral be-
liefs on the touchstone of the constitu-
tional guarantees, that is,
constitutional morality. To quote from
the judgment: The Constitution of In-
dia recognises, protects and celebrates
diversity. To stigmatise or to crimi-
nalise homosexuals only on account of
their sexual orientation would be
against the constitutional morality.
But the High Courts articulation
of constitutional morality, as under-
stood by our founding fathers, was still
inadequate. In a perceptive essay, pub-
lished in Seminar recently, scholar
Pratap Bhanu Mehta suggests that
there were specic elements of consti-
tutional morality which B.R. Ambed-
kar, as the Chairman of the Drafting
Committee, was concerned about dur-
ing the proceedings of the Constituent
Assembly.
These are liberty tempered by self-
restraint, respect for plurality, defer-
ence to processes, scepticism about au-
thoritative claims to popular
sovereignty, and the concern for an
open culture of criticism.
Kalpana Kannabirans book adds
to the scarce literature on constitu-
tional morality by exploring in depth
two of its dimensions, namely, the
principles of non-discrimination and
liberty. She is convinced that the refer-
ence to minorities during the making
of the Constitution was not restricted
to religious minorities but referred to
all classes that had been pushed to a
position of marginality and were dis-
criminated against. This habit of dis-
crimination is the central problem
that concerned Ambedkar, she says.
Therefore, it necessitated the constitu-
tional prescription of an appropriate
administrative structure and appara-
tus that, together with the fundamen-
tal rights and directive principles,
would ensure the entrenchment of
constitutional morality a moral
framework into which the body politic
must be schooled.
She tests her hypothesis with refer-
ence to the political and legal challeng-
es faced by six groups persons with
disabilities, Dalits (Scheduled Castes),
Adivasis (Scheduled Tribes), religious
minorities, women, and sexual
minorities.
To her, Ambedkars sketch of con-
stitutional morality helps erode the
encrusted norm of discrimination in
the body politic. She suggests that con-
stitutional morality is an intrinsic part
of a larger project of morality in poli-
tics that nourishes a free-ranging in-
tellectual life and democratic political
philosophy rooted in democratic polit-
ical struggle.
Consistent with this understand-
ing, she denies to the judiciary any
exclusive responsibility to interpret
the Constitution, because the courts
have generally been unable to go be-
yond precedents and case laws, and
enter the domain of policy initiatives.
Peoples movements, in their exercise
of a dispersed sovereignty, may craft
interpretation, she suggests. Sover-
eignty, she says, vests peoples move-
ments with the power to use the
framework of constitutional morality
to ght discrimination. She uses the
term insurgent constitutionalism to
refer to peoples resistance on the basis
of the subaltern experience to the in-
terpretation of the Constitution by
courts, merely guided by ratio, prece-
dents and obiter. Only insurgent con-
stitutionalism, she suggests, can
inspire non-discrimination and liberty
to blossom as incontrovertible consti-
tutional guarantees and enable consti-
tutional morality to pave the way for
social transformation.
books/review
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 8 3
L
IONEL CARTER holds
scholars in debt for the ex-
cellently annotated compi-
lations he has produced,
namely, ve volumes of the
Punjab Governors reports, three of the
United Provinces (U.P.) Governors re-
ports and Mountbattens last report on
his viceroyalty; all published by Mano-
har. For more than a decade he served
on the team that produced the Docu-
ments on The Transfer of Power to In-
dia 1942-1947.
The two volumes of Partition Ob-
served contain reports from British
diplomats in India and Pakistan. Com-
pilers of documents in South Asia can
learn a lot from him on how they
should be compiled and annotated. He
has described how material was ob-
tained from the archives and the gaps
in their collections. They range over a
wide eld the massacres, Partition
squabbles, Kashmir, Junagadh, Hyd-
erabad and some very interesting ma-
terials on the Communist Party of
India.
To Lord Addison, Secretary of
State for the Dominions, Sir Terence
Allen Shone, High Commissioner in
India, wrote on September 5: Despite
the criticisms of foreign correspond-
ents by Pandit Nehru on August 28,
which were regarded as directed par-
Nehru faced a solid
phalanx of communal-
ists in the Cabinet. Only
Maulana Azad and
John Mathai supported
him, G.D. Birla told
John Shattock of the
High Commission.
Gandhi fought for the
protection of Muslim
lives in India. On Pakis-
tan, he was belligerent.
He said at his prayer
meeting on September
26: He had been an
opponent of all warfare
but if there was no oth-
er way of securing jus-
tice from Pakistan, if
Pakistan persistently
refused to see its proved
error and continued to
minimise it, Indian
Union Government
would have to go to war
against it. The next day
he explained that if one
party persisted in
wrongdoing and did not settle the on-
ly way left open was that of war.
GANDHI WAS VERY STI FF
ABOUT KASHMI R
Kingsley Martin and Dorothy Wood-
man met him shortly before his tragic
assassination and recorded their dis-
cussion for the Nehru Memorial Mu-
seum & Librarys Oral History Project.
Kingsley Martin said: I got to Delhi in
time to have an interview with Gandhi
on Tuesday. Gandhi, I think, was killed
ticularly at one of the
BBCs observers, there
now seems little doubt
that his report and that,
for instance, of the spe-
cial correspondent of
The Times, from Jullun-
dur on August 24 (pub-
lished in The Times on
the following day), were
correct in attributing a
large part of the rst
major atrocities to orga-
nised bands of Sikhs,
acting in retaliation for
what the Muslims had
done to the Sikhs in Ra-
walpindi last March.
While there was un-
doubtedly serious trou-
ble at an early stage in
Lahore, it seems clear
that Sikh atrocities fur-
ther inamed the situa-
tion in the West
Punjab.
A top secret paper
dened the circum-
stances in which British troops were to
be used for the protection of British
lives in India. If the time should come
when we have to seek the protection of
British troops, we shall be in a strong
position if the Indians have tried and
failed, Sir Shone wrote to the Joint
Parliamentary Under Secretary Archi-
bald Carter on September 9. We had
come that close to humiliation. Curi-
ously, London was still occupied with
forging long-term defence arrange-
ments with India.
The aftermath
of Partition
BOOK FACTS
Partition Observed:
British Ofcial
Reports from South
Asia; Volume One,
14 August-15
October 1947,
Volume Two 16
October-31
December 1947;
edited by Lionel
Carter; Manohar;
pages 985, Rs.2,950
(Set).
Reports from British diplomats in India and Pakistan on Partition squabbles,
Kashmir, Junagadh, Hyderabad and, interestingly, the CPI. BY A. G. NOORANI
books/article
Series
The second part of a
two-part article.
8 4 F R O N T L I N E
on Friday if I remember rightly. I had
an interview by Amrit Kaur. She sent
his speech and took some notes, which
I think I have still got, of our conversa-
tion. Gandhi was very stiff about Kash-
mir to my complete astonishment, and
absolutely adamant about ghting it
out, as if Kashmir belonged to India.
B.R.Nanda: Gandhi said that?
K. Martin: Yes. And he would not
have anything to do with any kind of
compromise about it. I said: If you are
going to ght for Gilgit, you will ght
the wrong way all of you. And you
wont get there. You are going to have
Pakistan as a permanent enemy. He
turned round to me, and he said: You
are only a journalist and you have no
right to say this kind of thing when you
have not even seen the documents or
the history or anything about it. So I
was rather abashed and then he said:
Well, perhaps I am rather brusque
with you because you are not the only
person; some very well-informed peo-
ple indeed have been saying the very
same thing to me in the last week.
That night I was Nehrus guest, but he
put me off into the Government
House. I had been staying with Nehru
for a day or two and then he packed me
in the Government House. So I was
with Mountbatten. I said to Mount-
batten: Have you seen Gandhi lately?
Yes, he said. I saw him last week and
we parted brass rags. That was his
phrase. I said: Why was that? Well, I
told him, you ought to divide Kashmir
and come to an end of this situation.
Then I found that Nehru was quite
really unwilling to talk much about
this. In all the years that have gone, I
have tried to talk about Kashmir, not
from the Pakistan point of view, but in
order to try and see what compromise
can be made. Nehru was very unwill-
ing to talk about all this. The only man
who talked of peace was Rajaji. He
proposed a settlement based on the
partition of Kashmir.
As for Vallabhbhai Patel, Shone re-
ported to Philip Noel-Baker, as Secre-
tary of State for the Dominions, on
November 1: Patel has never made
any secret of his anti-Muslim or pro-
Sikh sentiments; he is also realistic
and of course vigorously anti-commu-
nist; he would no doubt like to run the
country and might be expected to do it
ruthlessly, primarily in Hindu inter-
ests and in those of himself and his
friends. Nehru may be too much of an
idealist and too emotional but he is
certainly more of a statesman in the
wider sense, and he has a pliability
which Patel does not possess. Nor
JUNE 2, 1947: At this meeting with Indian leaders called by Lord Mountbatten, the last Viceroy of India presented
the partition plan. It was accepted the next day and announced over All India Radio. To Mountbattens right are
Jawaharlal Nehru, Acharya Kripalani and Sardar Baldev Singh. To his left are Mohammed Ali Jinnah, Liaquat Ali and
Sardar Abdur Rab Nishtar.
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should I expect him to stand on his
pride to the same extent as Patel. Neh-
ru no doubt still exercises far more
popular appeal than Patel, but Patel is
said to have strong backing in the Con-
gress Working Committee. One close
friend was G.D. Birla, a companion on
his walks every morning. On Patel,
Lord Ismay remarked that he had
never known a man, unless it was Jin-
nah, who appeared to have less hu-
manity in him.
COMMUNAL ATTI TUDE
Birla was level-headed. He told Shat-
tock and Alexander Symon, the Depu-
ty High Commissioner, that people
were seized of a communal attitude of
the most intransigent kind. Everyone
in all classes of society was imbued
with it. Not even the political leaders
who exercised such strong inuence
over the masses in former days could
stem its feelings. They were being car-
ried along on the ood which they were
at present unable to control. Even the
attitude of the Congress party and [of]
the masses of its followers to this ques-
tion had undergone a great change and
was now much more nearly a Maha-
sabhite one. Before he left he handed
to Mr. Symon a condential pamphlet
which he was submitting to the Cabi-
net containing proposals for a ve-year
economic plan for the Dominion. He
said he would be extremely grateful for
the personal views of members of the
High Commissioners staff on this
pamphlet both from the economic and
political angle. In passing he remarked
that India, in the future, would be nei-
ther a fully capitalist nor a fully social-
ist state. There would be room for
private enterprise and state industries
as well as state supervision over the
whole economic eld. The paper was
given to the British even before it was
seen by the Indian Cabinet.
Rajaji was one of the very few who
kept his head. He told Shone on No-
vember 15 that he was concerned at the
situation he had found here, partic-
ularly with regard to the relations be-
tween India and Pakistan. He said
that while it was not for him to criticise
Indian Ministers, he could not help
feeling that in the disputes with Pakis-
tan, they were all too often motivated
by the desire to score off the opposite
side. Whither was this likely to lead?
He did not mention any particular
Ministers, but he left me in no doubt
that in his view the general line which
was being taken with regard to the
various disputes with Pakistan was
petty, short-sighted and dangerous.
He criticised Britain for becoming too
much tied to the American tail.
Charan Singh, then Parliamentary
Secretary in U.P., thought that the in-
exorable logic of partition of Mother
India on a religious basis can admit
only of two peaceful solutions of the
problem, namely an exchange of pop-
ulation or an unqualied denunciation
of the two-nation theory by Muslim
Leaguers and the launching of an ac-
tive enthusiastic campaign by them for
unication of the two Dominions.
There is no other middle path. Not all
the efforts of our Nehrus and Pants can
bring peace to this unfortunate land
otherwise. The then president of the
United Provinces Congress Commit-
tee stated that the Congress could not
be fooled by the professions of loyalty
to India so freely and frequently made
by Muslim Leaguers nowadays. Their
sole aim seemed to be to enter the
Congress by the backdoor methods
and get a share in the administration.
I want to tell the Leaguers your inl-
tration tactics and sabotaging would
not succeed. We know you always be-
trayed the country, you stabbed us in
the back and so we will give you your
proper place. That was Purshottam
Das Tandon.
A cult grew around Ram Manohar
Lohia, a member who bequeathed his
destructive opportunism to Madhu Li-
maye, George Fernandes, Raj Narain
and sundry other wreckers. This is
what he said on October 18, 1947: Pa-
kistan will have to go in one of three
ways. Either [the] population of Pa-
kistan will overthrow [the] League
government and establish [a] secular
state and reunite with India; secondly,
[the] new leaders of Pakistan may re-
alise [the] folly of [the] two-nation
theory and change their ways and en-
M A R C H 2 3 , 2 0 1 2
NEHRU WI TH PATEL (centre) and C. Rajagopalachari. Sir Terence Allen
Shone, Secretary of State for the Dominions, reported that "Patel has never
made any secret of his anti-Muslim or pro-Sikh sentiments"; that Nehru
possessed a "pliability which Patel does not possess"; and that the "only
man who talked peace was Rajaji" he proposed a settlement based on the
partition of Kashmir.
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8 6 F R O N T L I N E
ter into agreements with us and start
from being a confederation and once
again become a single India; thirdly,
war. Pakistan will disappear within
the next ve years.
UNI TED FRONT SUGGESTED
The volumes contain interesting mate-
rial on the CPI. P.C. Joshi, its best
general secretary ever, advocated a
united front on October 4: It has to
include within its fold our national
leaders like Gandhi and Nehru right
up to socialists and communists. Only
if all parties came together would they
be able to rally the people, stop the
riots and crush the enemies within
their gates. Reactionary vested inter-
ests who feared national reconstruct-
ion were the very elements who incited
communal tension in order to sabo-
tage all attempts at reconstruction by
the national government.
Shattock reported to London on
October 11: Mian Iftikharuddin, the
well-known Congress Communist
Muslim of Lahore, who has recently
become Minister for Refugees in the
West Punjab told a friend in Delhi re-
cently that he had accepted this post in
Party interests and with the Party
leaders blessings (meaning the Com-
munist Party). The Communists pro-
gramme in India was at present
obscure. The Bombay leaders had just
declared their support for the Indian
governments policy and Nehrus lead-
ership but with their usual ulterior
motives in doing so. They do not ap-
pear to have made up their minds
about Pakistan yet, but the Communi-
st organisation in Pakistan is very
weak and always has been amongst
Indian Muslims. The Sikh Kirti group
in northern India is completely disor-
ganised. The remnants are attempting
to reform with Amritsar as their head-
quarters. The rift continues between
this group and the Bombay CPI Polit-
bureau, but in the new situation local
enthusiasts expect a new policy and
possibly a new line-up. That did hap-
pen at the second party Congress in
Calcutta (now Kolkata) in February
1948. P.C. Joshi was ousted by the har-
dliner B.T. Ranadive.
Before that the united front line
prevailed, as Shone reported as late as
on December 29: The Central Com-
mittee of the Communist Party of In-
dia which has just concluded its
session in Bombay has called for the
establishment in the country of a new
democratic front composed of all Left
parties, progressive elements in the
Congress and Muslim League, work-
ers, peasants, students and middle-
class employees. The programme of
the new Front includes a struggle for
complete independence, alliance with
the democratic states ghting against
Anglo-American Imperialism, self-de-
termination of nationalities within a
truly democratic Constitution for In-
dia, abolition of feudal autocracy and
landlordism without compensation,
nationalisation of important industri-
es, distribution of land to the tillers,
purge of the bureaucracy and demo-
cratisation of the armed forces.
DI VI DED LEAGUE
Peoples War, the CPIs organ(before it
became New Age), was the only paper
to report on the Muslim League Coun-
cils proceedings in camera in Karachi
on December 13-14, 1947. The High
Commissioner to Pakistan Sir Law-
rence Grafftey-Smiths report to Lon-
don on December 19 is therefore
invaluable. It is understood that the
debates were heated, sometimes vio-
lent, and that Mr Jinnah himself was
involved in acrimonious exchanges. It
appears that three main trends of
opinion were displayed at the outset;
Muslims from the Frontier Province
were in favour of a purely Islamic state
in Pakistan and urged the expulsion of
all-non-Muslims; a contingent from
the Punjab favoured the maintenance
of the Muslim League in its present
form, covering both the dominions,
and opposed division; and the East
Bengal delegation, led by Suhrawardy,
pressed for the replacement of the
League by a separate National League
in Pakistan, open to non-Muslims, and
by an organisation in India which,
though its membership would appar-
ently continue to be Muslim, would be
primarily political rather than com-
munal in its activities and would be
prepared to cooperate with the Con-
gress and the Government of India.
The main resolution is reported even-
tually to have been carried with only
ve dissentient votes; but there is little
doubt that the Quaid-i-Azams per-
sonal inuence was used to the full to
secure this result, and a large number
of amendments are reported to have
been tabled but nally withdrawn un-
der pressure from him. All the promi-
nent Leaguers from India were
opposed to the imposition of the
League on India. An obscure Mo-
hammed Ismail from Madras, who
was not even a member of the working
committee, readily agreed to become
its convener and win fame. He thus
acquired a zamindari which did much
damage to Muslims.
Nehru successfully impressed not
only his ignorant colleagues in the
Congress but others with his exper-
tise in foreign affairs. Only Sir Girja
Shankar Bajpai, Secretary-General in
the Ministry of External Affairs
(MEA), was not fooled, though he re-
spected his boss. He was keen on the
education of Indian Ministers in diplo-
matic practice and the eld of interna-
tional affairs generally, a task to which,
as he has more than once told me, he
has been applying himself diligently
since he became Secretary-General of
his Ministry.
The High Commissioner reported
to London: Sir Girja said he had not
been keen on taking that post, but he
had found in Pandit Nehru a very sym-
pathetic and understanding chief who
had grown greatly in stature and in
knowledge of foreign affairs during
these last months. The Pandit was now
a very different man from the author
of the well-known Autobiography and
The Discovery of India. If he was not
too easy to deal with over personalities,
he was always ready to listen to argu-
ment and advice on policy. The trouble
was that he had so much to do nowa-
days that Sir Girja could only see him
all too rarely. But he had delegated
much responsible work to Sir Girja.
Sir Girja alluded to all the talk
there has been here of India assuming
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 8 7
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the leadership of Asia; he felt India
had much to do rst in the way of
settling her internal affairs and estab-
lishing a stable government and ad-
ministration; he was not himself
inclined to run after wills o the wisp.
One wonders if the Ministers are bet-
ter educated now. Judging by the out-
pouring in the media of most Indian
diplomats after retirement, one won-
ders if they are any better. Sir Girja
remains unsurpassed.
We have had from both sides a lot
of tendentious comment on the state of
popular opinion in Kashmir before it
acceded to India. These volumes pro-
vide a corrective. One hopes Carter will
compile another volume of reports by
British Residents in Srinagar (1945-
1947) and more extensive reports on
Kashmir by diplomats in Delhi and
Karachi (1947-1949). It will be a great
service to the historical truth.
Major W.P. Cranston of the High
Commission in India visited Srinagar
from October 10 to 14. His report on
October 18 was written before the trib-
al raid and bears quotation in extenso.
MAJOR CRANSTON S REPORT
ON KASHMI R
So far His Highness had given no in-
dication whatsoever of his intentions
but the general impression was that he
would make an announcement either
when he went to Jammu early in No-
vember or if and when he should go to
Bombay a little later, and it was
thought probable that he would then
declare the accession of Kashmir State
to the Dominion of India. This would
cause an immediate reaction through-
out the State by the Muslim population
which numbers about 80 to 90 per cent
and which is strongly opposed to any
union with the Indian Government. If
this happened it is also most probable
that the tribes on the north and north
western borders of Kashmir would in-
vade the State. I was informed that at
that time 20,000 Hazara tribesmen,
15,000 from Chitral and 10,000 from
Hunza States were ready to invade
Kashmir as soon as they considered
the Maharajah was declaring for ac-
cession to India. The Mehtar of Chital
and the Nawab of Dir have formally
warned the Maharajah that if he ac-
cedes to the Indian Union they will
invade his State. Sheikh Abdullah, the
Muslim nationalist leader, is said to
have favoured Kashmir remaining as
an independent State. He is, however,
believed to have made an agreement
with the Maharajah that if the Mah-
arajah should accede to the Indian
Union he would support him. In such
an event, however, it is extremely
doubtful whether Sheikh Abdullahs
Muslim followers would continue to
support him. It is possible that if the
Maharajah should announce his in-
tention of acceding to the Indian
Union whilst he is in Jammu, the State
of Jammu, which contains many Do-
gras, would support him and join the
Indian Union, but the remainder of
Kashmir State would break away and
join Pakistan.
Hugh Stephenson, Deputy High
Commissioner in Lahore an old In-
dia hand like most others reported to
GANDHI I N SRI NAGAR with Begum Abdullah (left) and Khallida Abdullah. On
Kashmir, Kingsley Martin found Gandhi to be "absolutely adamant about
ghting it out, as if Kashmir belonged to India".
M A R C H 2 3 , 2 0 1 2
8 8 F R O N T L I N E
his chief on September 13: The Mah-
arajah and Hindu ruling class would
join India if they dared but in the pre-
sent circumstances that will mean rev-
olution. The State Army cannot
possibly hold the whole border and
could not meet the Muslim inltration
which would be inevitable if revolution
occurred. In the meanwhile, every ef-
fort is being made to push on the new
road into India which might be ready
for military trafc in three months
time. The alternatives are for Kashmir
to join India, which the ruler wants but
which can only be accomplished by a
coup detat, Indian troops being
rushed to Kashmir and trusting to dis-
organisation in Pakistan. Or, if that
doesnt happen, Kashmir will fall
eventually like a ripe plum to Pakistan.
The impression is that the Mah-
arajah and his advisers, who are com-
pletely undecided, will not have the
courage to face a coup detat even if
India agreed, which I think unlikely.
In the meanwhile, a decision will be
put off as long as possible.
Pakistans tribal raid launched on
October 22 compelled a decision. It
was an act of criminal folly.
Grafftey-Smiths sources told him
that a little clique, led by the Mah-
arani, which powerfully inuences the
Maharajah of Kashmir, is working
hard to secure conditions favourable to
a declaration by His Highness of acces-
sion to the Government of India, but
that any such declaration, which must
provoke turbulent opposition within
Kashmir and on its borders, is likely to
await some dramatic and favourable
circumstances. Pakistan generously
provided that.
The documents clearly establish
that from September onwards there
was serious talk by Pakistan of a refer-
ence to the United Nations. If Nehru
had not made the move Pakistan
would have making India a defend-
ant rather than a plaintiff.
In September 1947, India seriously
considered an attack on Pakistan over
Junagadh. The idea was revived in De-
cember; this time, over Kashmir. On
December 5 V.P. Menon was for the
partition of Kashmir on a communal
basis. The Governor of the North West
Frontier Province (now Khyber Pak-
htoonkhwa), who was opposed to the
tribal raid, noted its harmful impact on
Pakistan itself, very much as its covert
operation launched in 1988-89 has
had. He attributed the general dete-
rioration of the administration here to
the Kashmir affair more than to any
other single cause. Not only had of-
cials been diverted from their proper
duties, but the deceitful and secret
methods which had been adopted, fre-
quently under the orders of the Chief
Minister, had hopelessly undermined
all discipline and mutual condence in
the services between ofcers and men
and between senior and subordinate
ofcers.
Shones report of December 28 was
grim. I learn privately that V.P. Me-
non, who has today own to Jammu
with Vallabhbhai Patel, informed the
Governor-General that the Inner Cab-
inet on December 26th had decided
that if Uri falls Indian forces must en-
ter Pakistan to obliterate them [the]
bases and nerve centres of the raiders.
I also understand that for some days
past Nehru and the Inner Cabinet have
not been discussing their military
plans frankly with Mountbatten or
Lockhart but have been taking advice
from Indian military experts.
Until Partition, Kashmir retained
its historic links with Central Asia. The
mail was passed normally to Kashmir.
Russian Muslims had been coming
down through Gilgit to go on the pil-
grimage to Mecca. One diplomats re-
port reected the obsession with the
USSR. He wrote of large numbers of
maulvis coming into Kashmir doing
Russian propaganda. Whether they
have or not, they would provide a very
convenient vehicle for such propagan-
da, since presumably Russian Muslim
pilgrims are not allowed to travel with-
out ofcial approval and assistance. If
there were a complete breakdown in
relations between India and Pakistan,
and Russia were to seek to take ad-
vantage of the opportunity to invade
Pakistan, the Gilgit route from Turkes-
tan might provide a possible line of
advance for light guerilla troops, espe-
cially if the way had been prepared by
propaganda and the sympathy of the
local population had been won. Major
Brown mentioned that caravans re-
turning towards Kashgar are taking
only loads of iron, steel and lead, for
which they were paying very high pric-
es, and it was rumoured that these ma-
terials might be for Russian tribal
arms factories. Caravans normally
took tea, salt and other rations.
After 1947 the links with Central
Asia weakened. Right now they are
extinct.
CPI LEADERS, GENERAL secretary P.C. Joshi (left), G. Adhikari and
B.T. Ranadive, at a party Polit Bureau meeting in Bombay in 1945. On
October 4, 1947, Joshi advocated a united front including "national leaders
like Gandhi and Nehru right up to socialists and communists" to rally the
people "to stop the riots and crush the enemy within their gates".
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F R O N T L I N E 8 9
THE Gil Scott-Heron song of the 1970s has, over
the succeeding decades, become a mixed metaphor
of sorts, invoking at once the mutuality and the
disjuncture between the media and historic mo-
ments of political upsurge. We have seen military
coups and putsches in Africa, Asia and Latin Amer-
ica acquire a media coefcient, with the broadcast-
ing station becoming as much a seat of power to be
targeted as, and even before, the parliament or the
presidential building. We have seen airwaves un-
leashed in the mid-1980s by the new Direct Broad-
cast Satellite (DBS) technology wireless television
signals that do not respect national boundaries
sweep away the hitherto insulated communist re-
gimes of East Europe.
Moving into the globalising and unipolar era,
we have seen a brazen counter-revolution (even if it
collapsed in two days) by the United States-backed
Venezuelan oligarchs and fuelled by their private-
owned TV channels against Hugo Chavezs demo-
cratically elected government in 2002. We have
seen, too, a spate of colour-coded revolutions rang-
ing from the Tulip Revolution of 2005, which typ-
ies those of various hues in the Commonwealth of
Independent States (CIS) culled out of the former
Soviet Union, to the anti-Mahmoud Ahmadinejad
Green Revolution in Iran of 2009, and the pro-
Thaksin Shinawatra Red Shirt movement in Thai-
land in 2010 which are seen as engendered by the
new-found connectivity and virtual community ca-
pabilities of the user-driven digital cyber media, cu-
mulatively dubbed the social media of our times.
Arab Spring and
the social media
The digital social media not only
mirror but feed into the dynamics on
the ground in terms of mass
mobilisation, chronicling of direct
action, signalling ash strikes and
piercing the smokescreens that the
authorities raise at such times.
The buzz generated online at momentous junctures, such as the uprisings in the
Arab world, is certainly more than mere static. BY SASHI KUMAR
Media
The revolution will not be televised,
Will not be televised, will not be televised,
The revolution will be no rerun brothers,
The revolution will be live.
DEMONSTRATORS DEFACE A poster of President
Hosni Mubarak in Alexandria, Egypt, on January
25, 2011, which was dubbed a Day of Rage.
Cadre of the Muslim Brotherhood stayed away
from the protest, which was mobilised in good
part by Twitpic, Facebook and YouTube.
A
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9 0 F R O N T L I N E
The Arab Spring, the latest in the
series, takes the social media determi-
nism hypothesis to a new high and into
contending camps arguing respective-
ly that the revolution will and will not
be tweeted. The buzz generated online
at such momentous junctures is cer-
tainly more than mere static and trans-
forms, by novel means such as
hashtagging, into a concerted agenda
with a burgeoning agitated engage-
ment around it. Twitter, Facebook,
YouTube, wikis, blogs, vlogs and pod-
casts not only mirror but feed into the
dynamics on the ground in terms of
mass mobilisation, unblinking blow-
by-blow chronicling of direct action,
signalling ash strikes and demonstra-
tions and tactically staggering them to
outwit the police, coordinating suc-
cour to those involved in street battles
and piercing the smokescreens that
the authorities raise around such sit-
uations. In Tunisia, Egypt, Yemen, Sy-
ria, Jordan, Libya, Bahrain and other
Arab countries, the digital social
media became so imbricated in the
peoples movements kindled by the re
that consumed the Tunisian street
vendor Mohammed Bouazizi in his
iconic act of self-immolation in De-
cember 2010 that the sense was not so
much of an online chatterati with a
ringside view of the action driving the
trafc as of cyber agit propagandists
driving the action themselves. In the
jargon of the medium, the twitterati it
seemed had become, or been over-
whelmed by, the tweeple.
The twitterati-tweeple differentia-
tion, in a manner of speaking, digitally
parallels the liberalisation-democrati-
sation dichotomy in the Arab world
where liberalisation was a top-down
initiative launched in the late 1980s by
regimes in tandem with traditional oli-
garchs co-opting an emerging eco-
nomic elite and thereby keeping
grass-roots popular democratic
churning at bay. This calibrated liber-
alisation saw fairly free parliamentary
elections being held in Jordan (1989)
and Yemen (1990); the Syrian parlia-
ment accommodate seats for 60 new
independent candidates (1990); ro-
bust and competitive local elections
being conducted in Algeria (1990);
and even rigid Saudi Arabia experi-
ment with a 60-member consultative
body, the majlis ash-shura, and a code
of basic civil rights, the al-hukum
al-asasi.
By the mid-1990s, however, the re-
gimes on this path had reached their
respective thus-far-no-further thresh-
olds and taken a U-turn into a counter
phase of active de-liberalisation
marked by draconian laws against the
press, suspension of elections, and
clampdowns onthe opposition, partic-
ularly the Islamists. The process was
uneven across the region, but broadly,
if paradoxically, the regimes that were
legatees of Arab nationalist, Baathist
or Nasserite takeovers seemed quicker
than the rest to cut short the liber-
alisation exercise because it was seen
as opening up the space for Islamist
groups to ex their muscles. The Gulf
kingdoms, on the other hand, contin-
ued with a gradualist liberalisation of a
benecent patriarchal variety in July
2002, Qatar drafted a new Constitu-
tion with provision for secret ballot by
the population, including women;
Bahrain released political prisoners
and held out assurances of elections.
AVOI DI NG REGI ME CHANGE
In sum, as Holger Albrecht and Oliver
Schlumberger point out in their essay
Waiting for Godot: Regime Change
Without Democratisation in the Mid-
dle East (International Political Sci-
ence Review; October 2004), this
qualied liberalisation helped a per-
mutation and co-optation in the struc-
ture of the governing elite, thereby
avoiding regime change by change in
regime. It did not, and was never
meant to, lead to democratisation. On
the contrary, as the cited authors ob-
serve, the common denominator of all
these changes in the functional logic of
these regimes is that they served to
foreclose the emergence of autono-
mous rival forces.
The regimes managed to keep
things from spilling over into the street
by soft-pedalling the structural adjust-
ment programmes in the 1980s, and by
rampant NGO-isation of society since
then, so that class-based protests by
trade unions or the peasantry were
marginalised and Islamisation seemed
the only oppositional act in town.
Thus, the Arab street, as it came to be
called, was stereotyped in Western
consciousness as a rallying point or
barometer of pan-Arab sentiment
rather than a site of local specic strug-
gles. Asef Bayat in his article The
Street and the Politics of Dissent in the
Arab World (Middle East Report;
Spring 2003) discusses how this
sweeping Orientalist Arab street xa-
tion misled Western policymakers and
media into strange assumptions and
stranger deductions. In the aftermath
of 9/11 and the looming threat of the
U.S. war on terror, the expectation was
that the Arab street would rise in sup-
port of Osama bin Laden. When the
street did not stir, the conclusion was
that the street did not matter any more
rather than that the street may not be
in empathy with bin Laden. The Econ-
omist declared the death of the Arab
street, and Condoleezza Rice, the then
National Security Adviser, went on to
postulate that since Arabs, sans street
power, could not liberate themselves
the U.S. must deliver them from their
despots. In the narratives of the West-
ern media, Bayat cryptically con-
cludes, the Arab street is damned if it
does and damned if it doesnt.
Bayat goes on to recount how the
Arab street responded very differently
and deantly to the Israeli invasion of
the West Bank in the end of March
2002 and to the U.S.-led invasions of
Iraq and Afghanistan. Millions of Arab
citizens poured out on to the streets of
West Asian capitals in a massive show
of solidarity and strength, often defy-
ing local laws and authorities. There
was a coordinated boycott of American
and Israeli goods, including McDo-
nalds, KFC, Starbucks, Nike and Co-
ca-Cola. Coca-Cola, which lost
between 20 and 40 per cent of its mar-
ket share in many Arab countries, was
replaced by the Iranian ZamZam Cola,
which sold 10 million cans in the Gulf
kingdoms in just four months. A coun-
ter cola market thrived briey with
Zam Zam being exported to European
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 9 1
states, including Belgium and Den-
mark. Another brand, Mecca Cola,
surfaced in Paris, and two million bot-
tles were sold in two months to Eu-
ropean Arabs. All this pointed to the
political and economic potency of the
Arab street.
CYBERACTI VI SM
Cyberactivism was in its early days yet
although it had proved crucial and de-
cisive in organising the Seattle protests
against the World Trade Organisation
(WTO) towards the end of 1999. The
incipient Internet did not yet have the
digital social media complement; Wi-
kipedia had just been launched (2001)
and Facebook and YouTube were yet
to hit cyberdom. Indeed, a recent arti-
cle in The Economist (How Luther
went Viral; December 17, 2011) re-
minds us that social media as a genre
or phenomenon are not unique to the
digital era and were marked by the
same irrepressible energy and frisson
500 years before Facebook. When
Martin Luther nailed his 95 Theses
against papal indulgences to a church
door in Wittenberg in October 1517
heralding the Reformation they were
swiftly disseminated by a set of retail
media, including printed pamphlets,
woodcuts, ballads, to became common
currency across Germany and Europe
in a matter of weeks.
There was already, at the dawn of
this century, an established practice of
agitation and indignation on the Arab
street being spawned by a variety of
what Bayat calls small media. Audio
and video cassettes of popular, if con-
troversial, Islamist folk heroes such
as the Egyptian theologian Yusuf al-
Qaradawi (in exile in Qatar since the
1960s and well until the recent up-
surge when he returned to Cairo);
Sheikh Abd al-Hamid Kishk (whose
hilarious Friday sermons were a huge
draw until they were proscribed by
President Hosni Mubarak in the
1980s); the Lebanese Ayatollah Fa-
dlallah, considered the spiritual men-
tor of the Hizbollah; and the Egyptian
television evangelist Amr Mohammed
Khalid were widely circulated. They
jostled and vied for attention with a
repertoire of hot-selling recordings
and albums by a constellation of Arab
icons ranging from the adulated ev-
ergreen divas Umm Kulthum of Egypt
and Fayroz of Lebanon to the Moroc-
con satirist Ahmed Sanoussi and the
more contemporary stars of Egyptian
pop and fusion, Amr Diab and Mo-
hammed Munir. The undercurrent of
aspirational Arab-hood and political
identity in this eclectic spread of rheto-
rical, satirical and musical work
heaved again to the surface with the
Israeli action in the West Bank in
2002 when these cultural products
were in popular demand afresh.
When it came to internal domestic
criticism in the authoritarian regimes
of the region, the creative media
seemed to pack more punch than the
formal news media, which when not
run by the state was under its system-
atic scrutiny. The Egyptian lm The
Yacoubian Building, made in 2006
based on Alaa Al Aswanys novel of
2002, was a powerful allegory on a
society corroding from within. Set in
and around an old Armenian building
in the centre of Cairo, the lm deals
boldly with the quotidian and larger
moral challenges faced by its disparate
residents, who include, in the descrip-
tion of the director Marwan Hamed, a
corrupt politician, an autocratic wom-
aniser, a destitute young woman who
lives on the roof of the building and is
sexually abused at work, a talented stu-
dent who mutates into an Islamic ter-
rorist after he is denied the
opportunity to study at the police a-
cademy because his father works as a
janitor and has a low social status, a
journalist who suffers because of his
homosexuality, and a shoeshine boy
who rises to become a Member of Par-
liament and misuses religion to pursue
his own interests.
That recipe was bad enough, sam-
pling as it did real-life characters and
situations in Egyptian society. The
conservative sections and the ruling
class of Egypt came down heavily on
the lm, with 112 Members of Parlia-
ment demanding cuts. But the box of-
ce gave it a rousing welcome, and a
follow-up television serial of the same
story the next year made The Yacou-
bian Building almost a household
name and an oblique precursor of Tah-
rir Square. For, to quote its director
again, The lm is a document of the
time we live in because it shows very
openly what many are thinking in se-
cret.... Corruption has eaten its way
into all areas of Egyptian life. A dia-
logue between the skirt-chasing, age-
ing grandee Zaki and the exploited
young Busayna towards the end of the
lm sums up its allusive potency.
If you cant nd good in your own
MECCA COLA PRODUCED at a plant outside Gaza City, on September 19,
2010. After the Israeli invasion of the West Bank in March 2002 and the
U.S.-led invasions of Iraq and Afghanistan, there was a coordinated boycott
of American and Israeli goods, including McDonalds and Coca-Cola. A
counter cola market thrived briey.
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country, Zaki tells Busayna, you
wont nd it anywhere else.
Then you will know why we hate
Egypt, is Busaynas tormented reply.
Not all creative gambits paid off
like The Yacoubian Building did. The
rst graphic novel in Egypt, Metro,
produced by Magdy El Shafee in 2008,
about a computer engineers futile
ght against a system dankly and
hopelessly corrupt, was banned by the
authorities. Magdy was taken to task
for testing public morals, subjected to
a long trial, convicted and ned. This
censorious atmosphere notwithstand-
ing, a corpus of new and pioneering
writing emerged, its authors strongly
informed, even shaped, by the Internet
and hazarding a different language:
among them Ahmed Alaidy, whose
novel Being Abbas El-Abb (2006) de-
ployed a new hybrid vocabulary; Mo-
hammed Aladdin, who wrote up all of
his 60-page novel The Gospel Accord-
ing to Adam(2006) in one paragraph;
Mansoura Ez Eldin with
her oneiric brinkman-
ship in Maryams Maze
(2007) and Beyond Para-
dise (2009); and the
graphic artist Ahmed Ne-
gy, whose face and T-
shirt designs became fa-
miliar in the Tahrir
Square tumult.
The digital social
media that burst on the
scene with the YouTube-
tagged Sidi Bouzid
campaign after Mo-
hammed Bouazizis self-
immolation (in that
coastal town of Tunisia)
and merged into the
chant Ben Ali, out on
Facebook and diverse
other online fora, and
then spread virally to feel
and feed the pulse of re-
volt as it expanded into
the streets and public
squares of Egypt, Libya,
Syria, Jordan, Morocco,
Yemen, and Bahrain and
other Arab states, are
generally approached as
exogenous to the social and cultural
logic of each situation. The same falla-
cies applied in taking stock of the
Green Revolution in Iran were in evi-
dence here. There is a body of analysis
now questioning the assumption that
social media played a decisive role in
the pro-Mir Hossein Moussavi and an-
ti-Ahmadinejad rallies after the Ira-
nian elections of 2009 on the grounds
that the preponderant volume of
tweets and online messaging were in
English and not Farsi, aimed at West-
ern rather than local netizens, and un-
likely to have intervened in, or
crucially impacted, the course of
events on the ground. The online ex-
citement around the event then was
ostensibly greater among the observ-
ers than the participants.
The Arab Spring, on the other
hand, does seem to have integrated the
social media in far greater measure.
But it still appears to hover above the
ground reality like a universalising
tech-veneer unable to ac-
quire a raison detre in
terms of each specic
context. This is perhaps
partly a function of the
nature, scale and pitch of
Internet technology,
which lends itself to a
non-hierarchised and
loosely networked cyber
atland. But without the
underpinnings that re-
late them to local prac-
tice, custom and lore, do
they tend to freewheel in-
to a global rather than lo-
cal realm and
consciousness?
Brian T. Edwards, in
his article Tahrir: Ends
of Circulation (Public
Culture; Fall 2011; Vol-
ume 23; No. 3), reects
on this tension informing
the digital social media.
What are the ends of cir-
culation? he wonders.
Does the digitally en-
abled circulation of revo-
lutionary images, ideas,
even advice and in liter-
ary production of forms, genres, motifs
end in places like Cairo, where it is
incorporated into a local idiom and
national context? Or, is it precisely the
abstraction and compression of repre-
sentations of local meanings a neces-
sary precondition for forms to make
their way across publics, from one
mode in the circularity matrix to an-
other that allows them to ow glob-
ally, where they might achieve various
ends?
CONNECTI VI TY & CENSORSHI P
The application of the social media
across the Arab states was also uneven
for reasons of connectivity, censorship
and local politics. Digital media as a
player in the protests were more vi-
brant and visible in Tunisia and Egypt.
They were relatively subdued in Libya,
where the state controlled the Inter-
net, and in Yemen with its low Internet
penetration. Syria with only 15 per
cent of its population online seemed to
produce more noise because the pro-
and anti-Assad forces were logged on
at loggerheads with one another. The
opposition has also accused Twitter
and Facebook of lending a helping
hand to the Assad regime by blocking
tweets and posts in the country. There
were similar hurdles to free circulation
of social media in the region, with oth-
er regimes, too, resorting to time-, lo-
cation- and content-specic blocks.
In Egypt, the social media initially
bypassed the Muslim Brotherhood,
which subsequently emerged as the
group with the best electoral prospec-
ts. Cadres of the Brotherhood stayed
away from the Day of Rage protest of
January 25, 2011, which was mobilised
in good part by Twitpic, Facebook and
YouTube and for which more than
90,000 people signed up on Facebook
alone. By January 28, the government
was cracking down on this mobilisa-
tion through the Internet and mobile
phones by pressuring operators to sus-
pend services in selected locations.
Opposition groups, particularly the
Baradei Action for Change, countered
this attempted blackout by hitting the
streets and exhorting people to join
them to the slogan Down with Mub-
THE YACOUBI AN
BUI LDI NG, book
cover and a movie
poster.
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 9 3
arak. The authorities responded by
imposing curfews and driving the pro-
testers back indoors and, ironically, to
their computer keyboards with a ven-
geance. The regime could not, appar-
ently, keep them away from both the
streets and their computers at the
same time. Thus it went until February
10 when Vice-President Omar Sulei-
man announced Mubaraks resigna-
tion. In the weeks leading up to his
ceding power, there was an estimated
tenfold increase in the tweets on the
situation. Videos on the protest con-
sumed gigabytes of YouTube space,
the top two dozen fetching nearly ve
and a half million views.
There were through all this the
ash narratives of net heroism. The
Tunisian activist blogger Salim Ama-
mon was pitchforked from Ben Alis
jail to Minister of Youth & Govern-
ment, a position he gave up soon. The
Egypt-based Facebook group We are
all Khalid Said, commemorating the
young man who had been killed by the
police in 2010, had over 80,000 fol-
lowers on January 27, 2011, the day
before the massive Friday turnout
which was a sudden spike from the
20,000 who had registered the previ-
ous day. The New York Times ran
front-page stories in February 2011
about an Egyptian who named his
newborn daughter Facebook and an-
other eulogising Googles Egyptian
chief, Wael Ghonim, for waging the
revolution via Facebook groups.
But sobering thoughts temper the
enthusiasm. The key social platforms
mediating the Arab Spring Face-
book, Twitter and YouTube belong to
U.S.-based private corporations. In-
deed, e-diplomacy is the latest plank in
U.S. foreign policy, of which informa-
tion hegemony and control have been
an integral part since the end of the
Second World War. Some of these
media organisations were also compli-
cit with the regimes in removing vid-
eos from, or cutting access to, their
sites at critical junctures. In some of
the Gulf states, Skype was completely
blanked out. There are reports of
Egyptian youth planning to sue In-
ternet companies that colluded with
Mubarak. The issue of censorship be-
comes intriguing with news of Twitter
agreeing to be accommodative to re-
quests from governments and orga-
nisations to remove tweets that run
foul of the law of their lands. As this
came just a month after Saudi prince
Walid bin Talal took a $300-million
stake in Twitter and in the light of
Facebooks market foray with a $5-
billion initial public offering, it may
not be just cussed conspiracy theory to
see a pattern in these developments.
The social media were combative
against, and buttressed by and dove-
tailed into, the dominant mainstream
pan-regional media, Al Jazeera. The
channels programme The Stream
aggregated citizen journalism and a lot
of the activist social media. Soon after
Mubarak ceded power, Wadah Khan-
far, the managing director of the chan-
nel, acknowledged the mediatory role
of the citizens of Tunisia and Egypt:
The youth of the Middle East [West
Asia], choosing universal values from
within while embracing tolerance and
diversity they are our reporters. Al
Jazeera also rebroadcast its social
media generated content to the U.S.
through Free Speech TV, a non-prot
satellite network accessed by an esti-
mated 35 million homes there.
The nature and scope of the agency
of the social media in the Arab Spring
are, given the continuing ux in the
region, a developing story. But the
reading in Western capitals that this
leavening of aspirations across the re-
gion, leveraged by cutting-edge digital
media, is ipso facto a popular demand
for the Western liberal democratic
model is proving premature and mis-
placed, with Islamist parties best
placed to win the elections marking
regime change in each country. The
medium is clearly not the message in
this case. Are the assorted social media
manufacturing a public sphere, or peo-
ple-hood, that cuts across the tradi-
tional categories of the ummah (or
Islamic nationhood) or the millet (for
the minorities) or that challenges the
assabiyah (tribal or clan afliation)
factor even while upholding the sharia
as the ultimate arbiter?
The distinction between liberal-
ism, with its emphasis on individual
liberty, human rights and the rule of
law, and democracy, understood as
combining the principles of equality,
majoritarian rule and sovereignty of
the people, may make a difference to
that question. The rhetoric of the so-
cial media has, typically, been strident-
ly Western liberal and impatient, with
the deliberative representative process
organic to the political ethos of the
Arab states. The street scufes break-
ing out in Egypt and Tunisia between
the Islamists, who probably see them-
selves as the democratic heirs of the
Arab Spring, and the freer-wheeling
protesters many of them poster boys
and girls of the social media who are
wary of a counter-evolution by the
remnants of the old regime in league
with the Islamists, keep the margins of
the movement, even where it has been
successful so far, restless. The social
media, as is their wont, ock to the
dizzy fringes of the movement and root
for dramatic and drastic changes. In
the process, they may well be getting
ahead of themselves and not helping
the transition they have helped usher
in crystallise.
Sashi Kumar is Chairman of the
Media Development Foundation &
Asian College of Journalism and for-
mer West Asia correspondent of The
Hindu and Frontline.
SAUDI PRI NCE WALI D bin Talal,
who took a $300 million stake in
Twitter. The issue of censorship
becomes intriguing with news of
Twitter agreeing to accommodate
requests from governments and
organisations to remove tweets that
run foul of the law of their lands.
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E
VERY time one steps out on
to a road in any Indian city,
one does so with great trep-
idation; there is a high
chance of being killed,
maimed or hurt by a car, truck, bus,
autorickshaw or motorbike. G. Gur-
uraj of the National Institute of Mental
Health and Neuro Sciences (NIM-
HANS), Bangalor,has, in a paper, esti-
mated that around 150,000 persons
die on the roads of Indias cities every
year and over 10 million are hospital-
ised. The Delhi Police estimate that
almost 1,000 pedestrians die every
year in Delhi though the number came
down slightly last year compared with
2010.
This is a dark commentary on the
way Indian urban areas are managed.
According to projections made by de-
mographers, the country will be more
urban than rural by the middle of the
century. Unless things change for the
better, Delhi alone, to take an example,
will have lost over 30,000 pedestrians
by then, and about three times that
number will have been hurt in one way
or another on the roads of the city.
Consider, then, what the number will
be for all of urban India.
PLANNI NG PROBLEM
It is not merely a question of numbers
though density of population does
have something to do with the prob-
lem. It is, essentially, a problem of
planning and with the way roads are
built. As many studies and reports
have pointed out, in all Indian cities
roads are planned for cars to move on,
and the worry is that they will not be
able to move smoothly and at an ap-
preciable speed. Hence, there are more
and more yovers and road-widening
projects.
Chennai has little or no space for
pedestrians to walk on right from Poo-
namallee High Road to Anna Salai
through Haddows Road and Nungam-
bakkam High Road, to take just one
example of a particularly busy part of
the vast city. Delhi actually seems to
plan its pavements so that pedestrians
cannot use them. The recently com-
pleted new broad highway from near
the Commonwealth Games Village to
the Noida border has a three-foot-
wide pavement that is broken up in
portions and is, for the most part, used
to store building material and other
stuff.
Where, then, do people walk? On
the roads, obviously. And that is where
they are killed or hurt. And the tragedy
is that no one seems to think it is their
responsibility. The Public Works De-
partment blames the corporation,
which in turn blames the State govern-
ment, which in turn blames the Cen-
tral government for not providing
adequate funds. To be realistic, howev-
er, one has to admit that the problem is
an international one in the sense that
cities in all developing countries have
this problem to a greater or lesser de-
gree.
Even some developed countries
had such problems.
Two trafc experts from New York
who recently visited New Delhi point-
ed out that many parts of New York
had this problem until about 40 years
ago, but with careful and imaginative
planning and development, almost all
parts of the city now have wide, safe
pavements.
The key lies in seeing a road not
just as a space for cars but as a space
that is equally available to pedestrians.
In other words, pavements must be
seen as an inseparable part of any road
In some areas there are bypass
roads and wide expressway-like roads
meant for the enormous and rapidly
growing truck trafc. There are not too
many of these yet, but some have been
built and, from what one learns from
the media, more are being planned.
Within cities, roads are meant pri-
marily for cars and buses, of which
there are never enough. The one thing
city roads all over the country have in
common is the absence, in most parts,
of broad, safe pavements for people to
walk on. Yes, Lutyens Delhi has broad
pavements thought of almost 100
years ago, one needs to be reminded
and there are some in select areas of
other cities such as the wide pave-
ments adjoining Marine Drive in
Mumbai. But these are just tiny areas
of the giant metropolitan sprawl in
which they are located. In most areas,
pavements either do not exist or are
narrowif they do and are taken over by
hawkers or again by cars, as parking
space.
Murderous roads
If India is to have civilised cities, roads have to be seen as a space not just for
cars but for pedestrians too.
Column
Point of View
BHASKAR GHOSE
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 9 5
that is being built, rebuilt or improved,
wide pavements, it must be empha-
sised, not just a two-foot strip that is
taken over by hawkers.
Road management is another crit-
ical issue that needs to be addressed.
No city in India has a dedicated system
of road management, which means not
just building pavements but making
sure that encroachers are removed and
given deterrent punishment. Yes, en-
croachments mean that other prob-
lems exist: the need for space for
hawkers, the need for more parking
areas. Those have to be addressed sep-
arately; what everyone must under-
stand is that pavements are meant for
people to walk on, not as a pastime but
for survival.
Road management must also
mean nding out effective ways for pe-
destrians to cross roads; overbridges
by and large do not work, so some
other means must be thought of. Solu-
tions do not just appear from nowhere.
The problem must be studied before
solutions can be arrived at.
Crucially linked to all this is the
fact that metropolitan areas need to
provide public transportation that ev-
erybody can use.
Delhi has a brand new Metro sys-
tem that is the citys pride, but I, for
one, am too frightened to use it be-
cause of the terrifying crowds. Other
cities do not have even that. Bus sys-
tems in most cities are again meant for
the tough, the brave of heart and the
physically t. Again, of all cities, Delhi
and, perhaps, Mumbai have bus sys-
tems that can be used but they need to
be expanded much more and need to
be made more efcient and passenger
friendly.
This is not a side issue and should
not be treated as such. There are peo-
ple dying on the roads of Indian cities
by the thousands every year, and thou-
sands more are being terribly hurt only
because they were walking from one
place to another. This ritual killing and
maiming need to be prevented if the
country is to have, at least in this re-
spect, civilised cities.
A SCENE ON St Marys Road in Alwarpet, Chennai, on February 15.
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WHEELERS and pedestrians are
common on this road in Bangalore.
A le photograph.
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NCTC should be a centre for joint oper-
ational planning and joint intelli-
gence, staffed by personnel from the
various agencies.
9/11 Commission of the U.S. on
National Counter-terrorism Centre.
Lead our nations effort to combat ter-
rorism at home and abroad by analyz-
ing the threat, sharing that
information with our partners, and
integrating all instruments of nation-
al power to ensure unity of effort.
Mission Statement of the NCTC.
T
HERE is something wrong
about the way in which fed-
eralism has evolved since
1950 when India gave itself a
good Constitution. The en-
lightened citizen knew that a group of
highly motivated, knowledgeable and
patriotic Indians drafted the sacred
document, which was practical and
had borrowed the best features of con-
stitutions the world over while opting
for a federal structure. Despite amend-
ments to it in the past six decades, the
Indian Constitution has withstood the
ravages of crass politics. India may not
be a federation in the classical sense,
where powers are nearly equally dis-
tributed between the federal and State
governments. It is a quasi-federation
in which the Central government has
undoubtedly greater authority than
the constituent States in several areas
of governance. The question that is
now uppermost in debates is whether
this apparently unjust distribution of
powers is any longer tenable. Is it time
to make the States equal partners, ig-
noring the fact that occasionally some
of the States may have acted arbitrarily
to serve their narrow partisan and re-
gional ends?
These are some of the thoughts
combating the scourge. The creation of
an NCTC per se is not unacceptable to
the States. What seems to have irked
them is the proposal to entrust it with
the authority to make arrests. Without
this power, merely placing the NCTC
within the Intelligence Bureau (I.B.)
for the purpose of coordination may
not have provoked the States so much.
After all, the I.B. is already liaising
actively and purposefully with the
States in ghting terrorism, and a gen-
erally stable relationship between the
two is in place. What has produced
sharp dissent is the authority proposed
to be given to the new body, which
would be part of the I.B., to arrest a
terror suspect found in a State and
hand him over to the State police.
The States see a bogey here. They
believe that the Centre could abuse
this provision and direct the I.B. to
make questionable arrests on the basis
of political considerations. This appre-
hension reects an enormous trust
decit (a euphemism for suspicion,
and a favourite expression of some
Western-educated Ministers) in the
relationship. But then, States cannot
be faulted either. This is because Cen-
tral governments have, in the past, giv-
en room for doubts, especially in the
area of public order.
A series of arrests in a State that is
ruled by a party that is in the opposi-
tion at the Centre could well be exploit-
ed by a tendentious Centre to bring the
charge of failure of law and order. In
such a situation, the Centre, in a tirade
against that government, could hint at
the imposition of Presidents rule in
the State, although nothing beyond
that might eventually take place. This
fear of politically motivated destabil-
isation is what seems to haunt the
complaining State governments led by
oating around in the context of the
controversy over the Union Home
Ministrys proposal to set up a national
counter-terrorism centre (NCTC) on
the lines of the organisation that came
into existence in the United States in
2004 in response to 9/11. The Indian
NCTC was to commence its work from
March 1. But following protests from
at least seven Chief Ministers, the
Home Ministry announced that the
notication issued in this connection
would not be operationalised.
WHY THE STATES ARE WARY
The controversy over the Centres al-
leged move to usurp the authority of
the States may not die down soon. The
episode has given rise to a feeling that
the Centre did not do its homework
and took the States for granted.
The impression one gains from
media reports is that the States do not
dispute the need to upgrade them-
selves in the ght against terrorismor
the role that New Delhi must play in
Fear of misuse
The NCTC as conceived by the Centre seems a non-starter on two counts: placing
it within the I.B. and giving it the power to arrest bypassing the State police.
Column
Law and Order
R.K. RAGHAVAN
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 9 7
West Bengal. While taking the posi-
tion that empowering the NCTC to
make arrests is well within the ambit of
the Unlawful Activities (Prevention)
Act, the Union Home Minister has
agreed to engage the States in discus-
sions before proceeding further in the
matter. This show of grace is most wel-
come. However, it may at best buy
temporary truce.
The Home Ministrys move has
evoked adverse reactions from a wide
spectrum of experts and scholars also.
The I.B. itself could be embarrassed
because there is a possibility that the
I.B. personnel placed in the NCTC
could be tempted to abuse their au-
thority, especially when they are not
otherwise accustomed to handling le-
gal authority. I can recall how, way
back in the 1970s, transferring the im-
migration staff at airports from the
police to the I.B. led to some undesir-
able incidents. The power to arrest a
terror suspect carries with it the risk of
misuse of authority by the empowered
organisation. All these years, the I.B.
had been an insular body with a specif-
ic mandate to collect intelligence. This
is notwithstanding the fact that it had
an uncomfortably close relationship
with the party leading the Central
government.
Not many people know that the
I.B., as conceived even before Inde-
pendence, is not a legal entity. It is an
attached ofce of the Home Ministry.
Created on the basis of an executive
order, it depends on the local police for
carrying a piece of information on a
crime or terrorist operation to its log-
ical conclusion. For instance, all ar-
rests under the Ofcial Secrets Act,
leading directly from information pro-
vided by the I.B., are now made only by
the police, with the former remaining
wholly in the background.
When this arrangement has been
working reasonably well, and the I.B.
and the police have clear-cut roles,
where is the need to tinker with it by
creating a counter-terrorism outt
within the I.B. and conferring legal
powers on it? If the logic is that the
local police have been slack or dishon-
est in effecting arrests using inputs giv-
en by the I.B., there should be other
methods by which the police can be
disciplined and made to act swiftly to
pursue the leads provided by the I.B.
This is particularly with regard to com-
bating terrorism. Authorising the I.B.
to make arrests on its own will un-
doubtedly vitiate the atmosphere
within that elite organisation.
MODELLED AFTER U. S.
ORGANI SATI ON
The NCTC, as conceived and notied
formally by the Ministry of Home Af-
fairs, is modelled after the organisa-
tion created in 2004 by the U.S.
following the recommendation of the
9/11 Commission. The NCTC in that
country is a coordinating body and has
a purely analytical role. The authority
to conduct searches and effect arrests
in terrorism-related cases still rests
with participant law enforcement
agencies such as the Federal Bureau of
Investigation. The arrangement was
arrived at on the belief that an empo-
wered NCTC with a charter beyond an
advisory function is equivalent to cre-
ating a secret police force with no ac-
countability. This might be an
exaggerated response to a well-inten-
tioned move by Indias Central govern-
ment. But the point is that the I.B. is
not subject to oversight by Parliament
and therefore lacks accountability.
This is an argument hard to dismiss in
a democracy. It is precisely this logic
which many in the current polity ad-
vance while denying the Central Bu-
reau of Investigation (CBI) its
much-needed autonomy.
What then is the alternative avail-
able once there is unanimity that a
national centre for counter-terrorism
at the Union government level is nec-
essary? There is a strong case for
bringing in a separate piece of legisla-
tion to create the NCTC as an inde-
pendent body and give it a purely
coordinating rule. This is the status of
the NCTC in the U.S., which functions
under the Director, National Intelli-
gence, a position created after 9/11,
and is directly accountable to the Pres-
ident.
The Vajpayee government had in
fact created an outt, which went by
the name Multi-Agency Centre
(MAC), to coordinate intelligence-
sharing. This was done through an ex-
ecutive order. Placed within the I.B. as
a clandestine appendage, it had no le-
gal authority, unlike what is now being
sought to be given to the NCTC. This is
why a new authority that could alter
the equilibrium between a responsible
Central government and an account-
able structure of States is being op-
posed. What is required is a process of
consultation between the two sides so
that a viable compromise can be
worked out. The Home Ministry has
already hinted that this is what it
hopes to achieve. This is not difcult to
achieve, considering that we are a ma-
ture democracy.
A TERROR SUSPECT being arrested
in Hyderabad. A le photograph.
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THE 52 laboratories of the Defence Research
and Development Organisation (DRDO) spread
across India have a high-potential but low-prole
trimurti, specialising in naval systems, among them
the Naval Science and Technological Laboratory
(NSTL) in Visakhapatnam, the Naval Physical and
Oceanographic Laboratory (NPOL) in Kochi, and
the Naval Materials Research Laboratory (NMRL)
at Ambernath, 60 km from Mumbai. I describe
them as Brahma, Vishnu and Siva [the triad of Hin-
du gods], said S.V. Rangarajan, Director, NSTL.
The NSTL, situated in the foothills of the Eastern
Ghats, is the only laboratory in the country to devel-
op underwater weapons such as torpedoes and
mines, their associated re control systems, and de-
coys to seduce enemy torpedoes. It also develops
stealth technology, produces autonomous underwa-
ter vehicles (AUVs) and conducts research in hydro-
dynamics. The NPOL develops sonars, surveillance
and underwater communication sys-
tems and counter-measures. The
NMRL has come up with non-skid,
anti-corrosion and re-retardant
paints, smart coating and fuel cells. It
pursues research in protective tech-
nologies, marine materials, energy sci-
ence, polymers and ceramics. While
the NPOL is Brahma, the perceiver,
and the NMRL the protector, we are
Siva, the destroyer, declared Rang-
arajan, lling the room with his gentle
humour. He predicted that future
wars would be fought at sea and under
water. But while most of the under-
water technology was not available in the market-
place, he said India had made signicant progress,
with an indigenous grip in the eld. Our base is
strong, he said.
Scientists of the NSTL work in a harsh atmo-
sphere as they work under water, which is about 850
times heavier than air. The technology of developing
torpedoes is much more complex than building mis-
siles because torpedoes have to speed under water
where the resistance is far higher than in air. Besides,
Rangarajan said, torpedoes are an amalgam of dif-
cult disciplines: they include electro-chemistry,
structural engineering, mechatronics, signal proc-
essing, real-time software, embedded systems,
transduction and sensing, acoustics, gyroscopes, in-
ertial navigation and guidance systems, and war-
heads.
The NSTL has developed both light-water torpe-
does (LWTs), named TAL, and heavy-weight torpe-
does (HWTs), named Takshak and Varunastra.
Takshak has two versions, a submarine-launched
variant with wire guidance and a ship-launched one
with autonomous guidance. Varunastra is an ad-
vanced version of the ship-launched HWT. Under
development is a torpedo called Shakti with thermal
propulsion, whichcan generate 500 kilowatt of pow-
er and rev up the engine within a second. Thermal
propulsion is a challenging technology, said Rang-
arajan. It is a totally indigenous effort. We have
already consolidated several technologies in its de-
velopment. Only the United States, the United King-
dom and Russia had torpedoes with thermal
propulsion when we took up the challenge.
The LWT is 2-3 metres long, weighs 200 kg to
The NSTL has developed torpedoes,
stealth technology and autonomous
underwater vehicles to carry out
surveillance and reconnaissance
missions.
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S. V. RANGARAJAN,
DI RECTOR, NSTL.
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Underwater might
The DRDOs triad of laboratories supply
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300 kg and packs 50 kg of explosives.
It can be launched from ships and hel-
icopters. When a helicopter releases
the LWT, the latter drops down with
the help of a parachute, which gets
detached when the torpedo hits the
water. TAL has a speed of 33 knots an
hour and can operate at a maximum
depth of 540 m. It is under production
by Bharat Dynamics Limited, Hydera-
bad, for the Navy.
The Advanced LWT (ALWT) is
currently under design and will be in
production in 2015-16. In Takshak,
which is an anti-submarine system,
the wire is the medium of communi-
cation between the torpedo and the
ring ship. If the wire breaks, Takshak
would become an autonomous torpe-
do like its ship-launched variant. It can
travel up to a distance of 40 km for
taking out submarines and can operate
up to a depth of 400 m.
Varunastra, which is ready for
trials by the Navy, weighs more than
one tonne and contains 250 kg of ex-
plosives. It travels at a speed of 40
knots an hour, going in circles and
bobbing up and down to attack targets.
K. Sudhakar, Principal Associate Di-
rector, NSTL, called the torpedos
homing device, located in its front por-
tion, its eyes and ears as it detects and
tracks the target. Its guidance system
enables it to take the optimum path
towards the target, and its onboard
computer guides its rudders naviga-
tion towards the target. The warhead
has a proximity fuse, with the blast
occurring about 8 m from the target.
The torpedo should have its own in-
telligence to reject the decoy and go
towards the target, Sudhakar said.
Besides, torpedoes should be water-
tight. Development of a torpedo takes
10 to 15 years. It has to go through
several sea trials. We started out in this
eld 25 years ago. No torpedo tech-
nology is available in the open mar-
ket, he added.
Decoys are mini-torpedoes that
seduce and mislead torpedoes com-
ing from enemy craft so that naval ves-
sels can get away, explained N.
Raghavarao, senior scientist. The
NSTL has developed a submarine-
launched decoy. The Navy has induct-
ed this decoy into service. The NSTL
and the NPOL are working on another
decoy called Mareech. The NSTL is
developing Mohini, a rocket-launched
anti-sonar decoy.
Mines in underwater warfare are
lethal and cost-effective weapons. Ca-
pable of detecting targets, they can be
launched from ships, submarines and
air. They can stay under water in
sleep mode for several months and,
on sensing magnetic, acoustic and
pressure signatures, wake up to deto-
nate. The NSTL has delivered proc-
essor-based ground (that is, seabed)
mine to the Navy, says S.M. Bhave, a
senior scientist. It has developed
moored mines, which will hang at cer-
tain depths in the sea.
A big programme under way at the
NSTL is the building of an AUV. Manu
Korulla, scientist, called the AUVs a
new class of intelligent underwater ve-
hicles, which will operate without hu-
man supervision to carry out survey,
surveillance and reconnaissance mis-
sions. The AUV can be congured to
drop and hunt for mines, lift under-
water bodies, do counter-communica-
tion measures and change course on
sensing obstacles. It will have cameras,
sonars and image processors. We
know the technology to develop vari-
ous sizes of AUVs for various applica-
tions, Korulla said.
C.D. Malleswar, a senior scientist,
said the laboratory had developed
Panchendriya, a submarine-based
re-control system (FCS), which has
been inducted into the Navys Vela
class of submarines. The FCS receives
information from the boats sonar on
the targets bearing and presets the
torpedoes for destroying the enemy
craft. The NSTL has supplied three
helicopter-based FCSs for torpedoes to
Hindustan Aeronautics Limited. We
have received production orders for
seven FCSs for the integrated anti-
submarine war complex, Malleswar
said. The NSTL has gargantuan facil-
ities. There is a big hall with several
state-of-the-art CNC [Computer Nu-
merical Control] machines. R.V.S.
Subrahmanyam, scientist, said the
components used in torpedoes, mines
and decoys were machined in CNC
machines. This is elite class work, he
said, showing a component where the
clearance between a rotor and its cowl
was just 0.5 mm.
The NSTLs High Speed Towing
Tank is a huge building enclosing a
water channel that is 500 mlong, 8 m
wide and 8 m deep. It holds 32,000
tonnes of water. NSTL scientists tow
models of ships and submarines at
high speed in the channel to study the
resistance offered to them by water,
the resultant drag, and the power re-
quired to overcome the resistance. We
study the resistance offered by water so
that we can design the hull of these
bodies more efciently, said P.K. Pa-
nigrahi, a senior scientist.
Another big facility is a cavitation
tunnel. Here water is pumped on to a
propeller to create ow conditions for
the blades to study the phenomenon of
bubbles formation. Amazing is the
sea-keeping and manoeuvring basin,
an articial lake with a roof, which is
under construction. Four giant bore-
wells will pump 240 lakh litres of wa-
ter over three months to form the lake,
which will be 135 m long, 37 m broad
and 5 m deep. Here, waves will be
generated to study their impact on the
seaworthiness and agility of vessels.
A TORPEDO
DEVELOPED by
the NSTL, being
tested in mid-sea.
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THE Naval Physical and Ocean-
ographic Laboratory (NPOL), Kochi,
aims at perfection. Take for instance
the system integration rig on its
wooded campus. It is a small room,
rigged up to look like a cabin in the
Indian Navys warship, with several
pieces of sonar equipment, operators
cubicles, computer consoles, and so
on. Not only is the cabins ambience
similar to that of a ships cabin but
even the lighting is low as in a vessel.
The sonars narrow cubicles with con-
soles resemble those in a warship.
This year, 2012, is the golden jubi-
lee of the NPOL. Originally named
the Indian Naval Physical Laborato-
ry, it was set up in 1952 and became
part of the DRDO in 1958. It was
re-christened NPOL in 1967.
S. Anantha Narayanan, Director,
NPOL, said, Our vision is to be a
centre of excellence in underwater
sensors and surveillance systems.
This is a niche area. Nobody else in
this country is working on underwa-
ter sensors and surveillance systems.
The NPOLs mission is to design, de-
velop and integrate sonar systems for
installation in the Navys ships and
submarines. The NPOL fosters the
technologies, which will enable the
development of sonars
and associated material,
and increase the under-
standing of ocean envi-
ronment. It has
partnered with the Na-
val Science and Techno-
logical Laboratory
(NSTL) in developing
an anti-torpedo defence
system called Mareech,
which includes a sensor
array and a decoy.
The NPOL special-
ises in anti-submarine
warfare oceanography,
which essentially is
about how sound waves
propagate under water in various
temperature, pressure and salinity
conditions. That study is done exclu-
sively by the NPOL, and it has an
important bearing on the capability
of the sonar systems that the country
builds, Anantha Narayanan said.
Sonars are early warning systems
that help in the location of enemy
vessels, submarines, torpedoes and
sea mines. Anantha Narayanan de-
scribed sonars as essentially under-
water radars. Developing sonars is
more complex compared with radars
because it requires understanding the
oceans depth, salinity and temper-
ature. While a radar uses electromag-
netic waves to warn of incoming
enemy aircraft or missiles, sonars use
acoustic waves to warn of threats
from hostile ships/submarines and
torpedoes. (Electromagnetic waves
get attenuated quickly in water).
Transducers convert the electrical en-
ergy into acoustic energy, which
propagates in water. This is processed
and the ndings are displayed on the
operators console for interpretation.
By listening to the noise coming from
under water, an experienced operator
can gure out whether it belongs to a
ship, a submarine or a torpedo.
Sonars are of two
types: passive and ac-
tive. A passive sonar
picks up the radiated
noise from a hostile
submarine, a torpedo
or schools of sh, inter-
prets the direction in
which it is coming and
identies the target.
From the noise that an
engine or a propeller in
a ship, submarine or
torpedo makes, sonars
can make out their at-
tributes. They pick up
that signature, track it
and thus nd out the
direction in which the object is mov-
ing, calculate its speed and also help
in classifying it as a friend or foe. An
active sonar pumps energy into the
water, waits for the echo, and thus
helps in nding out the distance at
which the object is travelling. Active
sonars are tted on ships so that they
can hunt for submarines. Submarines
use passive sonars so that they can
pick up the noise from ships without
their (submarines) getting exposed.
Sonars can be deployed from air, with
helicopters lowering the transducers
into water.
In the 1980s, the NPOL came up
with a hull-mounted sonar called Ad-
vanced Panoramic Sonar Hull (AP-
SOH). It was the rst indigenously
designed and developed ship-borne
sonar system for active ranging, pas-
sive listening, auto-tracking of targets
and their classication. Then it devel-
oped HUMSA (Hull Mounted Sonar
Advanced), which helped naval ves-
sels track their targets in shallow and
deep waters and proved its efciency
for about 10 years even in the highly
variable tropical waters.
The NPOL has now developed
HUMSA-NG (new generation) andS.
Kedarnath Shenoy, scientist, is its ar-
chitect. The project was completed in
just four years from the drawing
board to tests, tment on a vessel and
evaluation, said Anantha Narayanan.
He added: It is a third-generation
sonar for surface ships that the NPOL
is making. There lies the message.
The message is that it disproves the
notion that the DRDO delayed the
projects, he said. APSOH took seven
years to develop, HUMSA ve and
HUMSA-NG less than four years. So
the learning curve has enabled us to
deliver the products in time, and right
now we are ahead of the [availability
of the] ships, the Director added.
Shenoy said that out of 10 HUM-
SA-NG sonars delivered to the Navy
Navys eyes and ears
S. ANANTHA
NARAYANAN, Director,
Naval Physical and
Oceanographic
Laboratory.
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since 2009, three were installed on its
ships and the integration of one was
under way. Besides these 10 sonars,
the Navy has placed orders for six
HUMSA-NG sonars. They would be
installed on destroyers, frigates and
corvettes. Another sonar developed
by the NPOL for installation on the
Navys EKM class of submarines is
called USHUS. Besides detecting and
tracking enemy submarines, vessels
and torpedoes, it can be used for un-
derwater communication and for
avoiding obstacles.
R. Kanakarajan, Associate Direc-
tor, NPOL, said the current trend in
the passive sonars deployed on sub-
marines was to work towards low fre-
quencies. As we go down in
frequency, the size of the sonar sensor
array goes up. There are contradic-
tory requirements: sonars should be
compact, they should have low fre-
quency andhigh power and should be
light. These are the challenges we face
when we work under water in dynam-
ic conditions, said Kanakarajan.
Mihir is the sonar deployed from
helicopters. Its transducer is dunked
under water. DRDO literature says
that this sonar has been designed for
the Armys Advanced Light Helicop-
ter (ALH) where weight, space and
power are at a premium. The system
consists of a sonar dome, acoustic and
environmental sensors, a winching
system, a signal conditioner and
processor, a very high frequency re-
ceiver and antenna. The transducer
converts the electrical energy into
acoustic energy and the echo is avail-
able on display in the computer for
the operator to interpret. The area
covered is more because a helicopter
can lower the transducer in one loca-
tion, sanitise it and y elsewhere for
deploying the transducer again.
The NPOL has developed a
Towed Array Data Sonar System (to
detect submarines and torpedoes) in
which the array alone is 200 metres
long and the cable attached to it is a
kilometre long. The cable and the ar-
ray will be mutually buoyant. For the
past seven years, the NPOL has been
working on Micro-Electro-Mechani-
cal Systems (MEMS). It has devel-
oped a miniaturised underwater
acoustic sensor called hydrophone,
which is the equivalent of a micro-
phone in hand. Its architect is V. Nat-
arajan, Project Director, MEMS
Regional Centre, NPOL. This hydro-
phone is based on metal-oxide-semi-
conductor eld-effect transistor
(MOSFET) and a piezo-electric sen-
sor. The sensor measures less than
one inch by one inch and weighs less
than 32 grams. These miniature sen-
sors nd applications in thin-lined
towed arrays for submarines, ships
and unmanned surface vehicles. Nat-
arajan said the centre had developed
a conductivity, temperature and
depth sensor to measure the temper-
ature, salinity and depth of the ocean
because the speed of sound in the
ocean depends on these parameters
and they inuence the sonars per-
formance. This sensor is totally in-
digenous, Natarajan said.
Sameer Abdul Azeez, scientist,
NPOL, has built a novel device called
Tarangini, which helps rescuers to
know the depth of a waterbody and
the hardness of its bed. What motiva-
ted Azeez to build the contraption
was the fact that a number of people
drowned in waterbodies formed by
abandoned quarries in Kerala.
We are a highly focussed labora-
tory. We dont do anything outside
underwater surveillance, Anantha
Narayanan said. In the Twelfth Plan
period (2012-17), the NPOL plans to
concentrate on an anti-submarine
warfare suite for ships, fourth-gener-
ation HUMSA and second-genera-
tion Mareech. We are in continuous
upgrade mode because the life of a
sonar systemis not more than 10to 15
years, he said.
T.S. Subramanian
S. KEDARNATH SHENOY, THE architect of HUMSA-NG, the sonar for
surface ships, explaining the device at the NPOL in Kochi.
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P
RIME Minister Manmo-
han Singh has stooped low
by alleging that the large-
scale protests against the
Kudankulam nuclear pow-
er station in Tamil Nadu, sustained
impressively for six months, are in-
spired and nanced by American and
Scandinavian non-governmental or-
ganisations. Invoking the foreign
hand to vilify those who question of-
cial projects means denying that Indi-
an citizens have the ability to think for
themselves. This is particularly offen-
sive coming from a leader who wants
to hitch Indias energy future to im-
ported nuclear reactors and whose
own economic policy has long borne
an indelible foreign imprint.
In reality, the only foreigners in
Kudankulam have been the Russian
engineers invited by the Nuclear Pow-
er Corporation. The peoples organisa-
tions leading the agitation are serving
defamation notices upon the Ministers
who levelled malicious accusations
against them instead of engaging them
and convincing them of the projects
safety.
Equally pernicious is the Prime
Ministers allegation that the thinking
segment of our population certainly is
supportive of nuclear energy. Recent
statements by some Indian intellec-
tuals, such as the historians Romila
Thapar and Mushirul Hasan, the
economists Amit Bhaduri, Jean Dreze
and Deepak Nayyar, the political sci-
entist Rajeev Bhargav, the ambassador
Nirupam Sen, the artists Krishan
Khanna and Vivan Sundaram, and P.
Balaram, Director, Indian Institute of
Science, belie this claim. In fact, after
Fukushima, there is a close congru-
ence between popular perceptions and
Robert Jungk famously warned. In-
dias nuclear zealots seem to have no
compunction in outlawing dissent in
pursuit of their obsession. This is a
frightening prospect, which should
make Indian policymakers pause and
think. If indeed they want to improve
access to electricity, denied to two-
fths of the population, and equitably
promote a low-carbon, safe and cli-
mate-friendly energy economy, then a
historic opportunity now presents it-
self in the renewable energy revolution
that is sweeping the globe. Renewable
energy today accounts for one-fth of
the worlds power capacity and deliv-
ers 18 per cent of global electricity and
primary energy supply, besides 24 per
cent of heat supply.
Grid-connected solar photovol-
taics (or PV, which is the direct con-
version of sunlight into electricity)
have been growing annually by 53 per
cent and wind power by 32 per cent.
Deployment of other renewables such
as solar thermal, biomass, tidal and
geothermal energy is also growing rap-
idly. The renewables revolution seems
unstoppable and developing countries
are playing an important role in driv-
ing it.
New investment in renewables has
deed the general global investment
downturn since 2008. Investment
rose to $150 billion in 2009 and fur-
ther jumped to $243 billion in 2010,
up 134 per cent since 2007 and almost
ve times higher than in 2004.
By contrast, the number of nuclear
reactors worldwide peaked at 444 in
2002 and is now down to under 400
(counting those shut down in Germa-
ny and Japan). Their contribution to
global electricity supply, once 17 per
cent, has fallen to under 13 per cent.
the intelligentsias concerns about nu-
clear hazards.
The slander campaign against the
Kudankulam activists is clearly a prel-
ude to a crackdown to thrust the nucle-
ar plant down their throats. But
Manmohan Singh should know that
this will not quell the growing, deter-
mined popular opposition to nuclear
power in Maharashtra, Gujarat, And-
hra Pradesh, Haryana, Madhya Pra-
desh, Odisha and indeed Kudankulam
itself.
Using brute force to impose nucle-
ar power plants on an unwilling pop-
ulation has dire implications not just
for Indias energy sector but for de-
mocracy, our greatest post-Independ-
ence achievement. It will usher in a
police state, an authoritarian nuclear
state that rides roughshod over peo-
ples rights and promotes a danger-
ously callous technocracy, as writer
Renewables option
Instead of imposing nuclear power upon unwilling people, India should join the
renewables revolution for handsome gains.
Column
Beyond the
Obvious
PRAFUL BIDWAI
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 1 0 7
They account for only 2 per cent of the
worlds nal energy consumption (less
than 1 per cent in India) compared
with 18 per cent for renewable energy
worldwide. More than 150 nuclear re-
actors are set to retire in the next two
decades, and only about 60 are
planned to replace them.
The so-called nuclear renaissance
that George W. Bush wanted to in-
stigate has not materialised. No new
reactor order has matured in the Unit-
ed States since 1973. Western Europe
has not had a single new reactor com-
missioned since Chernobyl (1986).
Arevas European Pressurised Re-
actors, or EPRs (also meant to be in-
stalled at Jaitapur in Maharashtra),
under construction in Finland and
France, have run into grave trouble
with regulators. They are over four
years behind schedule, 95 per cent over
budget, and mired in legal disputes.
Renewable energy is growing by
leaps and bounds because it is exible,
modular, and increasingly competi-
tive, thanks to rapidly falling costs. It
takes only months, often weeks, to in-
stall a PV facility or wind turbine, in
contrast to 10 to 13 years for nuclear
reactors. The timeline is crucial from
the climate viewpoint. World emis-
sions must peak by 2020 if global
warming is not to exceed 2 C.
Not to be discounted is the abun-
dance of renewable energy resources,
enough to meet the worlds energy
needs 3,000 times over. Renewable
energy is amenable to decentralised
and stand-alone applications as well as
to grid-based systems. The rst char-
acteristic is particularly relevant to In-
dia, where tens of thousands of villages
remain deprived of electricity and
where home-lighting systems could
transform the quality of life. Renew-
able energy ts in snugly with energy
efciency improvement, and the two
uniquely complement each other.
In India, new renewable energy
(wind, PV, solar thermal, small hydro,
and so on) deployment, barely a dec-
ade old, is growing annually at 3,500
megawatt and already exceeds the ca-
pacity of nuclear reactors fourfold and
generates twice as much energy as they
do. Wind generation is in true costs
already cheaper than coal-based pow-
er. The cost of PV is decreasing dra-
matically. At the latest 130 MW
auction under the National Solar Mis-
sion, the lowest generation-cost gure
quoted was Rs.7.49 a kilowatt-hour,
less than half of the EPRs power.
Global costs are even lower at 12-15
U.S. cents/kWh, and falling. They are
expected to halve within the next few
years and become grid-competitive
with fossil fuels. The opportunity this
offers to sun-blessed India cannot be
exaggerated.
Renewable energy sources have
lower life cycle carbon dioxide emis-
sions than not just gas and coal but
also nuclear power. Although nuclear
ssion does not directly produce
greenhouse gases, the entire nuclear
fuel cycle, from uranium mining to fuel
fabrication and transportation, to re-
actor construction, and fuel reprocess-
ing and waste storage, has a sizeable
carbon footprint.
The CO2 emissions of renewable
energy sources range from as low as 3
to 7 grams a kWh (wind) to 8.5 gm to 11
gm (concentrated solar power), and 19
to 59 gm (PV, although these are ex-
pected to fall). The gure for nuclear
power ranges from 68 gm to 180 gm.
UNI QUE OPPORTUNI TY
India has a unique opportunity to join
and lead the renewables revolution.
India stands at a cusp. It has not yet
been locked into centralised grid-
based generation and can develop a
new energy system that uses decen-
tralised applications and smart two-
way grids, which allow consumers to
sell power from PV or windmills to the
grid when there is a surplus.
Unlike in the West, where renew-
able energy must adapt to already de-
veloped centralised grids, India can
build a far more exible electric system
that is appropriate to its distributed
consumption pattern spread across six
lakh villages, thousands of small towns
and power-starved slums in cities.
Indian energy planners have per-
sistently exaggerated power demand
and underestimated the potential of
renewable energy. For instance, the of-
cial estimate of onshore wind poten-
tial was until recently as low as 49,000
MW (49 gigawatts); it has just been
revised to 102 GW. This is huge, more
than one-half of Indias total installed
power capacity (180 GW). But it ig-
nores both the low land-footprint of
wind turbines and recent technologi-
cal improvements that allow wind to
be harvested at heights such as 80, 100
or 120 metres instead of the assumed
50 m.
More updated estimates, including
one by U.S.-based Indian researchers
and published by Lawrence Berkeley
National Laboratory, range from a
staggering 750 GW to over 2,000 GW.
Even if the lowest-cost resources were
to be tapped at the most favourable
wind sites, they would still yield 200
GW, probably taking Indias total in-
stalled power capacity beyond ade-
quate levels. These are not the only
renewable energy sources to be
tapped. There is renewable biomass,
which alone can meet all our energy
needs through biodigesters and com-
bined generation with solar thermal
power. Not to be ignored is the poten-
tial held out by improved high-ef-
ciency stoves that use different kinds of
waste and reduce indoor pollution, a
major killer of women and children.
India can join the renewables revo-
lution and benet if it aggressively pro-
motes such energy through a
renewable purchase obligation on dis-
tribution companies, institutes feed-in
tariffs (to offset initial fossil-renewable
energy cost differentials), and encour-
ages local manufacture while adapting
programmes to the needs of the
underprivileged.
Equity is pivotal here. The techno-
logical superiority, economic viability
and ecological sustainability of renew-
able energy are largely settled matters.
That battle has already been won. The
crucial issue is who will control renew-
able energy. It cannot be left to corpo-
rations alone. The poor must have the
rst claim to affordable renewable en-
ergy, and local communities must have
a say in its development and use. That
is the way forward.
M A R C H 2 3 , 2 0 1 2
1 0 8 F R O N T L I N E
INSeptember 2011, a large collaboration experi-
ment between the European Organisation for Nucle-
ar Research (CERN) in Geneva, Switzerland, and
Laboratori Nazionali del Gran Sasso (LNGS), Italy,
called OPERA (Oscillation Project with Emulsion-
Racking Apparatus) shocked the world of physics by
claiming that it had observed superluminal (trav-
elling faster than light) neutrinos.
This observation shakes the very foundation of
modern physics, one of whose pillars is the Special
Theory of Relativity (STR) formulated in 1905 by
Albert Einstein. According to this theory, nothing
can move faster than light, whose velocity (c) is
299,792,458 m/s. Only zero mass particles such as
light particles or photons can travel with velocity c.
But OPERA found that neutrinos had travelled a
distance of 732 kilometres at a speed of 299,799,863
m/s, which is about 1.0000247 times c.
Neutrinos are tiny fundamental particles which,
like photons, are chargeless but do have very small
mass. They are about a million times lighter than
electrons and exist in three types, electron-neutrino,
muon-neutrino and tau-neutrino. Each is associated
respectively with the familiar electronandits heavier
cousins muon and tau. Neutrinos are weakly inter-
acting particles and, therefore, can travel practically
unhindered through matter over very long distances.
The OPERA experiment is basically a time-of-
ight experiment, which uses a neutrino beam called
the CERN Neutrinos to Gran Sasso (CNGS) beam,
which is shot through the earth to be received across
a baseline of 732 km at Gran Sasso (Fig. 1) and the
neutrino velocity is given by the ratio of precisely
measured distance and time of ight. At the CERN
end, a pulsed 400 GeV proton beam from an acceler-
ator is made to strike a graphite target to produce
particles called pions and kaons. These particles are
then focussed along the CNGS tunnel with magnetic
elds. Both pions and kaons are unstable and decay
via weak nuclear interactions to yield muons and
associated muon-neutrinos. Another graphite target
stops the protons, pions and kaons, while the muon-
neutrinos, with an average energy of 17 GeV, contin-
ue their ight unaffected.
OPERA used advanced GPS receivers to measure
the exact timings and coordinates of the points at
which neutrinos were created and received. Appro-
priate geodetic techniques were used to transform
the GPS coordinates (on the WGS84 geodetic da-
tum) to the global coordinate system ETRF2000 to
x the coordinates of the source and detector accu-
rately. GPS timing signal receivers were linked to
atomic master clocks which were synchronised at
both ends to determine the timings precisely.
Taking into account all time delays, which re-
quired exact measurement of lengths of connecting
Faster than light?
The leitmotif of our measurement
is accuracy. If you want to work
with nanoseconds and centimetres
over such times and such distances
you need to not neglect anything.
Maybe this is a lesson we learnt.
Interview with Prof. Antonio Ereditato, University of Berne, Switzerland, and
member of the OPERA experiment team. BY R. RAMACHANDRAN
Science
PROFESSOR ANTONI O EREDI TATO: The goal is
to understand our results, whether it is correct or
wrong, and only other measurements can do
that.
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cables, etc., OPERA found that neutri-
nos had arrived 60 nanoseconds
sooner than they should have even if
they had travelled at c. Strictly speak-
ing, neutrinos, which have tiny mass,
should be travelling at velocity very
close to c.
DOUBTS OVER MEASUREMENT
TECHNI QUES
OPERA had measured the speeds of
15,233 neutrinos extremely carefully
with several checks and counter-
checks, with a 0.2-in-a-million chance
of being wrong (known as 6-sigma ac-
curacy in statistics). The accuracy of
the experiment can be judged from the
following. The distance had been mea-
sured with an uncertainty of only 20
cm over a distance of 730 km and the
timing had been measured with an ac-
curacy of less than 10 nanoseconds
over a time of ight of 2.4 milliseconds
(ms).
Clearly, this violated one of the
fundamental principles of physics
which has been tested zillion times in
diverse physics experiments involving
high energy particles. Indeed, the
many experiments at CERN and the
operation of the accelerator which pro-
duced the proton beam are themselves
different tests of STR. So, naturally,
the OPERA results were received with
all-round scepticism, and doubts were
expressed about the instrumentation
and techniques used for the exact mea-
surement of the distance and the tim-
ings of actual creation and detection of
neutrinos as well as about other un-
suspected systematic errors. One of
the largest sources of uncertainty was
the exact timing of neutrino creation
because of the large width of the pro-
ton pulse. To address this issue, OP-
ERA reduced the pulse width and
measured the velocity of each neutrino
from 20 well-separated, extremely
short-duration proton pulses. The
pulses were 3 ns long, separated by up
to 524 ns compared with the earlier
10.5 microsecond pulses separated by
50 ms. Results from this bunched
beam run in November 2011 recon-
rmed the earlier nding.
Professor Antonio Ereditato, a
member of the OPERA team and head
of the Laboratory for High Energy
Physics (LHEP) at the University of
Berne, was in India in early February.
He spoke to Frontline in Chennai
when he was visiting the Institute of
Mathematical Sciences (IMSc). Pro-
fessor Ereditato, who is also the spo-
kesperson for OPERA, discussed in
detail the teams condence with the
result, how the various sources of error
had been addressed carefully, and the
teams continuing efforts to nd any
unsuspected source of systematic
error.
CERN issued the following (anti-
climactic!) press release on February
23.
The OPERA collaboration has in-
formed its funding agencies and host
laboratories that it has identied two
possible effects that could have an in-
uence on its neutrino timing mea-
surement. These both require further
tests with a short pulsed beam. If con-
rmed, one would increase the size of
the measured effect, the other would
diminish it. The rst possible effect
concerns an oscillator used to provide
the time stamps for GPS synchronisa-
tions. It could have led to an over-
estimate of the neutrinos time of
ight. The second concerns the optical
bre connector that brings the exter-
A VI EW OF the
Oscillation Project
with Emulsion-
Racking Apparatus
detector at the
Gran Sasso
National
Laboratory located
under the Gran
Sasso mountain in
Italy. Superluminal
neutrinos had been
measured along a
732-km trajectory
between CERN in
Switzerland and
Gran Sasso in 2011. A
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M A R C H 2 3 , 2 0 1 2
1 1 0 F R O N T L I N E
nal GPS signal to the OPERA master
clock, which may not have been func-
tioning correctly when the measure-
ments were taken. If this is the case, it
could have led to an underestimate of
the time of ight of the neutrinos. The
potential extent of these two effects is
being studied by the OPERA collab-
oration. New measurements with
short pulsed beams are scheduled for
May.
It is important to note that the
above two possible errors in measure-
ment have opposite effects on the nal
result. It may well, therefore, happen
that even after these defects are recti-
ed the net effect still gives a velocity
greater than c. So the nal word on the
result will only be known in May.
Excerpts:
How condent are you that these
observations are indeed correct?
The condence of an experimen-
talist in all the data depends very much
on the kind of result. It is clear that
measuring a cross-section or a decay
rate, measuring a resonance or what-
ever in our eld of particle physics, if
you are condent that you have done
your simulations, your data analysis
correctly and a good detector knowl-
edge is in your hands, then you can say
that you are very condent. It is clear
that now the same argument, which in
principle should apply to this mea-
surement as well, is certainly per-
turbed by the nature of the result a
result which seems to be striking [and
is] certainly in contradiction to most of
the things we usually know.
So in this case we have to apply a
certain damping factor to your con-
dence and you become hypercritical. I
would say that we are at this stage. We
are certainly condent that we did our
job correctly; otherwise we would have
said that we did this or that mistake.
But, on the other hand, as I said, we are
hypercritical, hyperconscious that we
should not stop. So we do not want to
give a grade or mark to our conclusion.
We just say that this is our best under-
standing and we continue to work
hard to nd possible aw or mistake or
whatever.
It has been stated that this
experiment has been done with
extremely high precision and
accuracy of both distance and time.
Can you give us an idea of the
precision with which these quantities
have been measured?
As you correctly stated, this is an
accuracy measurement. We have a dis-
tance of 730 km and a time of ight
that normally would take 2.4 ms. In
order to do this we need to measure the
two quantities to within much much
smaller [uncertainty] than the effect
we expect to see. I can tell you that we
are able to measure the distance be-
tween CERN and Gran Sasso, the two
reference points, with an accuracy of
20 cm over 730 km and the difference
in [the two] times is at a level of 10
nanosecond [accuracy] over a ight of
2.4 ms. So it is a very small uncertainty.
It was reported that some people
from the OPERA team did not sign the
rst paper (of September 2011) and
some of the same people signed your
second paper with bunched beam (of
November 2011) but some others who
had signed earlier withdrew? Would
you throw some light on this as I am
sure you must have had internal
discussions?
This question, I think, is legitimate
from the point of view of the general
public. I want to say this very clearly.
Normally when you have a large col-
laboration and you have a new paper
there is no big discussion in the sense
that all people eligible to sign the paper
automatically sign it and thats it, al-
though, as you know very well, making
one specic analysis is always the work
of about 20 per cent. And the remain-
ing 80 per cent gets a different degree
of condence because it includes peo-
ple who do side analysis, marginal
work and even some people who do
nothing or very little. This is the social
system [of large collaborations] and it
is like a normal spectrum.
When we came out with this result,
the rules were the same. There was a
restricted number of people working
on this, not as small as one and not as
big as hundred. So, given the potential
impact of the result, as one responsible
for the collaboration, I asked a differ-
ent kind of consensus. Not by default
but I asked each individual physicist in
the collaboration if they agreed to sign.
Only if they tell me I want to sign, I
would use their name [in the author-
ship]. This was my approach.
It is clear that if you use a drastic
approach like this, you can get drastic
answers. If you do some action, there is
a reaction. Therefore, some people
who would have [otherwise] signed,
under this specic request, said differ-
ent things. Some said, I didnt grasp
it or I did very little or I dont feel
engaged and some others said, Ah!
This is very nice, but unfortunately, I
am not aware of all the details. Some
even said, This is too shocking. This
cannot be true. I dont like. Very
frankly, this is not a physicists ap-
proach but I respect it. So, at the end,
about 10 out of a total of 170 didnt sign
the rst preprint. So I consider this
completely physiological but I worked
on that personally as spokesperson. I
think this was successful because at
the end I managed to pull in some of
the most critical people because they
got more informed. They put their
heads in this business and got a feel for
it.
And, certainly, the bunched beam
was an asset to convince even the most
critical people. To my mind just one
person who signed the rst for some
reason didnt sign the second. Maybe
because [the person] didnt feel con-
dent. I would be worried as a person
responsible for the collaboration if on-
ly 10 per cent of the people had signed.
I would have failed personally. So I am
quite satised.
SYSTEMATI C UNCERTAI NTI ES
After your paper was published, there
was criticism that there could have
been sources of error, both
systematic and statistical, which the
experiment did not estimate correctly.
Can you explain what the possible
systematic errors were, how they
were estimated and what its size is.
Similarly, what are the kind of
M A R C H 2 3 , 2 0 1 2
F R O N T L I N E 1 1 1
possible statistical errors, how were
they estimated and what is its size?
If you restrict to the rst measure-
ment, it was a statistical measurement
based on the statistics of 15,000
events. Therefore, since we made stan-
dard maximum likelihood estimation,
we can infer the statistical error from
the statistics of 15,000 events. In fact,
it was a rather small statistical error.
More important, as you say, is the eval-
uation of systematic uncertainties.
There are two types of systematic
uncertainties: those that you know
and you can estimate and those that,
unfortunately, you do not know and
you cannot estimate at all. So if a prob-
lem could be identied to explain our
result and it will be very good in this
case this is likely to be attributed to
unknown systematic errors or to ef-
fects that we did not consider at all. As
far as known systematic errors and
their evaluation are concerned, I think
we did quite a careful job.
We had a list of about 15 or so
possible sources of systematic uncer-
tainties which were all evaluated and
they were such that if you combine all
of them together you get an overall
systematic uncertainty that is still only
at a level of 10 ns, which is quite small.
And I should say that reducing the
systematic uncertainty is the most
challenging and difcult job in a high-
accuracy experiment.
One of the criticisms has been that the
timing measurements of the
experiment were such that there
could be uncertainties in the exact
timing of the instant at which a
neutrino is produced and the instant
of actual detection. How were these
errors reduced? These involve
receiving GPS signals and
transmitting them to the instruments,
etc.
This procedure that we used is
somewhat new for the community of
particle physicists but is certainly new
as far as other applications are con-
cerned. This use of GPS systems is a
sophisticated technique for us but not
for specialists. Everybody knows that
GPS receivers allow every car to know
its exact position in case of a trafc jam
and usually you get a very accurate
position. Keep in mind the effect we
are measuring involve the neutrinos
and the GPS measurement gets trans-
formed into an uncertainty of about 20
cm, which is already quite a lot with
the standard GPS receivers. Normally
the position measurements are much
better than that. As I said, using GPS
in an advanced mode is a new method
for us. So we did not use the standard
car GPS receivers but sophisticated
electronic devices, and we also paid
great attention to the synchronisation
of the clocks we used caesium clocks,
atomic clocks everywhere. Combining
all these techniques, at the end we
were able to reach this very high accu-
racy. But I want to stress that the geo-
desy community and metrology
community are really professional.
The methods we use are rather for
them standard and well-understood
methods. So I think the criticism is
always accepted and always positive,
but I should say that since this is not
our eld we very much trust the con-
dence of these experts and we basically
used methods that for them constitute
daily work.
So would you say that you have been
able to answer all the criticism so far?
I think the criticism can also be
divided into two kinds. On the one
hand is the criticism on the technology
aspects. There are some good critics
who make those criticisms and there
are also the general public or people
who are less experienced. So, in this
case, we have a broad spectrum of crit-
icism; some are very nasty, which we
are able to answer, and also some real-
ly trivial, which we can safely account
for. The other kind of criticisms is rath-
THE OPERA EXPERI MENT is basically a time-of-ight experiment, which uses a neutrino beam called the CERN
Neutrinos to Gran Sasso, or CNGS, beam, which is shot through the earth to be received across a baseline of 732 km
at Gran Sasso and the neutrino velocity is given by the ratio of precisely measured distance and time of ight.
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er theoretical. There are few people
who would argue correctly that for
some theoretical argument, this effect
of superluminality should not happen.
This is ne. I respect these arguments
very much. Actually this is one of the
sources of our continuous concern. We
always say that we have to nd a trivial
explanation or mistake or something.
But there is something which has more
to do with ethics, the ontology of our
work. And that is, no theory can ever
disprove an experimental fact. The
best theory is worse than the worst
data. New data can disprove an old
theory but not the other way around.
This is what our scientic method is
based upon. But I would say, unfortu-
nately or fortunately I dont know, this
class of arguments can never disprove
an experimental result.
Some of these theoretical arguments
relate to possible observation of
effects arising from faster-than-light
propagation, like the Cohen-Glashow
argument of erenkov radiation due
to superluminal neutrinos. But using
the same beam the other experiment,
ICARUS, did not see any erenkov
effect. Does that disturb you in any
way?
Our correct approach is to be calm
and to do our job without many pertur-
bations. On the other hand, this mea-
surement of the non-existence of such
erenkov emission is rather trivial be-
cause we also do that. We dont need
another experiment. We also dont see
this. And, moreover, I should say that
it is known knowledge from the 1970s
that if this erenkov radiation events
existed they would have been noticed
then.
So with all the respect for the work
of our colleagues, I think this does not
add anything spectacular. It is com-
pletely known. It is clear that we dont
see this effect. But still this is based on
fully respectable and solid theory.
And this could question the results
but never disprove. So we have to go
ahead. The goal is to understand our
results, whether it is correct or wrong,
and only other measurements can do
that.
Similar is the other argument made
by Ramnath Cowsik and others that
the energy spectrum of neutrinos that
you observe is not commensurate
with pion decay and kaon decay
kinematics if the neutrinos are
superluminal. From your own
perspective as an experimentalist,
you would have done many
experiments relating to these
particles earlier. Would you like to
redo any of those experiments to see
a similar effect if it exists?
I see what you mean. I didnt think
about it actually. I think it would be
great to nd past experiments, revise
[earlier] experiments which could
shed light on this. Since you asked me,
I would need some time to think about
it, but it is a good approach, I think.
Again from the perspective of an
experimentalist, what kind of
explanation would be satisfying to
you?
Satisfying is a nice word. Since I
like football, what I would like to say is
you play to win and sometimes you win
and you get three points and some-
times you lose and you get zero points.
Some other times you make 0-0, 1-1.
Well, 0-0 or 1-1 would be satisfactory
in this case. If I have to dream of a
solution to this story, it would be the
most wonderful thing to happen
nding new physics, new effects but I
would still be happy if the explanation
of this effect would not be a trivial
thing but a nasty one. This is a chal-
lenge for us. So there is every kind of
possibility a mistake or a discovery
and also something in between. There
is a chance that you fall in the grey zone
where this could be understood in
terms of known physics without in-
voking trivial mistakes.
The leader of your group is said to
have remarked that the idea of
actually measuring the neutrino
velocity was prompted by the earlier
observation in 2007, though not
conclusive, by the experiment MINOS
at Fermilab, which observed a similar
excess over the speed of light, c?
No. Not really. When OPERAs da-
ta acquisition system was designed, al-
ready the responsible persons, in
particular Dario Autiero who was
leading the data analysis and gave the
seminar at CERN, overdesigned the
system in order to provide this kind of
measurement. And this happened
quite early, much before the measure-
ment of MINOS. But this is not a real
issue. What matters is when you make
measurement and what results you
get.
Anyway, MINOS did observe some
excess over c. But it was not
statistically conclusive. In what
respects was OPERA designed to be
much more accurate than MINOS?
This, I think, is our small merit in
the sense in the last years when the
experiment was conducted, starting in
2008, and during the preparation of
the experiment in 2006, which was
before the MINOS result, the neutrino
velocity experiment was designed to be
very accurate. And the goal was to have
an accuracy at the end to be a factor 10
better than MINOS. And this is con-
rmed by the result we have; ours is a
6-sigma result and MINOS was 1.8.
This is probably something that we are
most proud of. As I explained before,
this is a combination of many things:
high statistics, accurate calibration,
precise timing, overdesigning of the
OPERA data acquisition system, etc.
Tritium beta decay measurements in
the 1990s gave negative values for the
square of neutrino masses, which
would be the case if neutrinos were
tachyons. Is there any way of saying
that the superluminal neutrino that
your experiment sees is not
tachyonic?
Well, there are theorists who
claimed many years ago that the mu-
on-neutrino was a tachyon. So this is
not new. Also, colleagues are showing
me their speculations saying that this
is a proof that neutrino from muon is a
tachyon. I dont have any argument to
say yes or no. For me this phenom-
enology of neutrinos is still not com-
pletely dened. We have to
understand whether we have energy
M A R C H 2 3 , 2 0 1 2
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dependence, whether we have parti-
cle-antiparticle dependence [depend-
ence on whether it is a neutrino or an
antineutrino], and so many things. In
addition, we need all the checks from
the experimental point of view, look-
ing for systematics, etc. Once all this is
nished, we could take up more ad-
vanced physics-oriented studies, not
detector-oriented. Now we are work-
ing rather modestly on the search for
systematic effect linked to the experi-
ment. Later on we could start to elab-
orate upon these effects, energy
dependence and other things. If we get
condence in our measurements then
we can do something more. But I
wouldnt go too fast.
What kind of immediate
improvements in your experiment do
you foresee purely in terms of
instrumental and measurement
techniques?
This is a good question. After the
bunched beam that we experimented
with last November, now we have a
shut-down period. During this shut-
down we are working on several addi-
tional points. One is the possibility of
using the other part of the detector,
namely the RPCs [Resistive Plate
Chambers]. The RPCs were not used
in the main analysis and we will try to
use it to add new data or to do cross-
checks. The other thing is we want to
use and exploit the two muon detec-
tors in the muon pits for intermediate
measurements [see Fig.2]. This is in
progress.
Then we are also improving the
time resolution of our data acquisition
system. We have a jitter which is par-
ticularly more when we use a bunched
beam, which we want to reduce, and
that has just begun. We are then redo-
ing all the measurements, all the de-
lays and we want to repeat the geodesy
as well and we want to use again the
standard beam and the bunched beam,
as well as neutrino-antinuetrino run
with the bunched beam. So it is quite a
heavy schedule and I count that by
2012-end we will know much more.
So when can we expect the new round
of results?
I think 2012 will be a very impor-
tant year. We will get a lot of new
measurements, new data, and hope-
fully new independent checks. So I
would be happy to give an interview
around December 2012 to you.
Among the other experiments that
can possibly do a check on
superluminal neutrinos, MINOS in the
U.S. in its new phase or T2K in Japan,
which do you think has the potential to
check your results more accurately?
I think MINOS certainly has great
potential, especially after their refur-
bishment and upgrade. They did nice
measurements in 2007 and now cer-
tainly they have to do more. They have
improved and upgraded their detector.
We really look forward to seeing their
results. I hope it will be soon and this
will be an important tile of the mosaic.
Even if they would conrm our result, I
still will not stop working on the as-
sessment of our result. You know na-
ture is kind with us but sometimes it is
very difcult to understand its rules.
So if even two experiments give the
same results, it would not make me
happier. We would only be more com-
mitted to understand what we are do-
ing. But certainly MINOS has the
potential.
In addition, the other experiment
at Gran Sasso [ICARUS] has set itself
the goal of making the measurement.
But you will certainly understand that
it will have some potential systematics,
related to the beam or geodesy or other
things, common with us. The degree of
independence is higher for MINOS.
One of the points made was that the
arrival time of electron-neutrinos
from supernova 1987A also
contradicts superluminal neutrinos.
From that perspective it has been
argued that the superluminal
propagation is perhaps conned only
to the muon sector and perhaps does
not extend to the electron sector. Is
there a possibility of using a similar
beam from CERN across the same
baseline with electron-neutrinos? Is
there a similar experiment one can
devise using electron-neutrinos?
That would be a great opportunity
certainly. And, in fact, digging for elec-
tron-neutrino events which are con-
taminating the muon-neutrino CERN
beam at the level of a few per cent is
probably a mission impossible. As you
say, the best option would be to have
an electron-neutrino beam. Now you
know that we do not have great free-
dom in building a neutrino beam. We
have to start with protons, make pions
and kaons and they decay into muons
and muon-neutrinos. In order to make
an electron-neutrino beam, the only
idea that is somewhat feasible is using
SCHEMATI C OF UNDERGROUND structures associated with the CNGS beam
at the CERN end including the muon detectors.
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beta [decay] beams. The time scale for
building a beta beam is at least 10
years. Also, getting high-energy beta
beams will be even more difcult. I do
not see a near-time possibility of such a
measurement. I agree it would be very
interesting.
If superluminal propagation of
neutrinos is true, it shakes the very
foundations of physics, particularly
two of its pillars. One, the special
theory of relativity which has been
veried to great accuracy in various
processes with photons, though not
with neutrinos, and the other is the
aspect of particle kinematics arising
from the conservation of energy. So
how do you see yourself reconciling
your results with physics as we know
it today impacting your other
experiments in the future for
example, when you apply special
relativistic time dilation to decay life
times of particles?
I myself proposed to my colleagues
the recipe or the rules: we should not
elaborate on questions like, If this is
true what would you do. I would like
to respect our decision. Still, I think
there is no way out. All of special rela-
tivity is working perfectly. Whatever
be the outcome of this [experiment], I
am sure we will keep using special rela-
tivity equations to make our acceler-
ators working and our experiments
meaningful. So there is no point talk-
ing about it. So whatever new [phys-
ics] would come I dont want to
elaborate on that it is clear that we
will continue doing in the future what
we are doing now. We will not change
our equations or formulae for calculat-
ing processes or working with acceler-
ators. So there must be something else.
As an experimentalist, what have
been the key technological challenges
that you faced in running this
experiment?
You learnt that the leitmotif of our
measurement is accuracy. Never say
this is a small correction. But say all the
time, lets make this, lets do that. If you
want to work with nanoseconds and
centimetres over such times and such
distances you need to not neglect any-
thing. Maybe this is a lesson that we
learnt. Try to be even tedious. Try to do
the best you can. Absolutely. Dont say
that this or that can be done later on.
Dont say we need not do this. You
better do everything you can.
DETECTORS OF THE FUTURE
Besides the OPERA experiment, you
are into designing new detectors for
other experiments. What kind of new
detectors are you working on?
Thank you for your question,
which allows me to advertise my fa-
vourite future detector technology,
which is liquid argon TPCs [Time Pro-
jection Chambers]. There are a few
groups in the world working on this, in
Europe, the U.S. and Japan. I am
working with my colleagues and I have
the pleasure of working with this tech-
nique as I think it is a major break-
through for future neutrino
experiments. It is an extremely power-
ful technique. It is in a phase, not really
R&D, but advanced R&D. We already
have a detector that has been built and
others that are going to be built in the
next few years. And the dream is to
build tens of kiloton detectors for large
observatories of the future; maybe
even for the INO [India-based Neutri-
no Observatory]. Why not? It will be a
dream to build a liquid argon detector
for the INO in India. This is certainly
the thing that is challenging me per-
sonally, and my group is working on
this technology. I am really in love with
this technique.
So do you think instead of using
emulsion chambers you could use
liquid argon detectors for the OPERA
experiment?
I think OPERA was well designed
and use of emulsions was the best
choice at that time. Unfortunately,
OPERA is only 1.3 kT. Now, if you
want to build next-generation neutri-
no observatories you need at least 20
kT detectors or even 100 kT. You have
to go for new techniques, new scale,
new technique. And liquid argon, I
think, is the best.
T
HE Government of India
has signed at least 50 bilat-
eral investment treaties
(BITs) we do not know ex-
actly how many because the
information is still not in the public
domain. In addition, there are at least
10 free trade agreements or eco-
nomic partnership agreements that
include investment chapters or clauses
relating to bilateral investment protec-
tion. More than 20 such agreements
are currently being negotiated, accord-
ing to the website of the Union Minis-
try of Commerce.
BITs have been viewed with seri-
ous reservations by independent anal-
ysts for several reasons. They can have
far-reaching and typically negative im-
plications for host country govern-
ments and citizens, because of the
sweeping protections afforded to in-
vestors at the cost of domestic socio-
economic rights and environmental
standards.
One of the biggest problems with
such treaties or investment chapters
in most FTAs is that they allow pri-
vate companies to le cases against
governments, instead of conning
themselves to dealing with govern-
ments. So they subject countries to the
risk of litigation by corporations from
or based in a country that is a signatory
to the same agreement.
There are also concerns about the
nature of the arbitration bodies that
rule in the case of disputes. Recently, a
number of countries (including Vene-
zuela, Bolivia and Ecuador) have ei-
ther threatened to begin proceedings
to withdraw from the International
Centre for Settlement of Investment
Disputes (ICSID), the arbitration body
afliated with the World Bank, be-
tiples of the pathetic and delayed
amounts paid as compensation to all
the victims of the Bhopal disaster by
Union Carbide and its successor Dow
Chemical, the company that is now the
sponsor of the Olympic Games.
Now, another case brings out other
dangers associated with BITs, which
can have serious implications for the
future because of the complex ram-
ications of the decisions. This is a case
brought by White Industries Australia
Limited against the Republic of India,
before a tribunal of the United Nations
Commission on International Trade
Law, or UNCITRAL (another interna-
tional arbitration body), in a case that
was heard in Singapore.
The bare facts of the case relate to
an agreement of White Industries with
the public sector undertaking (PSU)
Coal India Limited to supply the
equipment for and assist in the devel-
opment of an open cast coal mine in
Piparwar, Jharkhand. The contract al-
lowed for bonus to be paid to White
Industries in the event the production
target was exceeded, and penalty in
case of under-fullment. It was gov-
erned by Indian laws but contained a
clause requiring all parties to arbitrate
under the International Chamber of
Commerce (ICC) Arbitration Rules.
Subsequently, disputes arose be-
tween White Industries and Coal India
about whether bonus payments or
penalty payments were applicable. In
this context, Coal India, which felt it
deserved to extract a penalty, encashed
a bank guarantee of around $2.77 mil-
lion. White Industries then led a case
before the International Court of Ar-
bitration of the ICC in London in
2000, and the tribunal awarded White
more than $4 million (with a note of
cause of concerns that the Centre is
heavily biased in favour of transna-
tional companies.
India has already had to suffer
once because of its commitments un-
der a BIT, in the case of Enron, the
multinational power company (Enron
vs the Government of Maharashtra).
In this case, the completely one-sided,
unfair and ultimately impractical
Power Purchase Agreement signed by
the Maharashtra State Electricity
Board with the Dabhol Power Compa-
ny (DPC, which was mostly owned by a
consortium led by Enron and includ-
ing GE and Bechtel) had to be repu-
diated by the government. The DPC
and the international sponsors of the
project GE and Bechtel led cases
against the Government of India
through their afliates in Mauritius.
Ultimately, the cases were settled out
of court with an estimated compensa-
tion of around $1 billion. It should be
noted that this amount is many mul-
Worrying trend
A recent ruling of an international tribunal makes it imperative for India to take a
careful look at bilateral investment treaties signed with foreign corporations.
Preoccupations
JAYATI GHOSH
Column
M A R C H 2 3 , 2 0 1 2
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M A R C H 2 3 , 2 0 1 2
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dissent from the Indian judge mem-
ber). Coal India then approached the
Calcutta High Court to have the award
set aside, and won the case. The case
has subsequently gone back and forth
in Indian courts, with claims and
counterclaims led by both parties. It
has gone up to the Supreme Court,
where the matter is yet to be heard.
In view of the delay, White Indus-
tries has led a complaint with the ICC
tribunal against the Republic of India,
arguing that because Coal India is a
PSU and, therefore, controlled by the
government, its behaviour amounts to
a breach of various clauses of the Aus-
tralia-India BIT. That judgment has
now been delivered. The details of this
particular case need not detain us here.
Instead, we should be concerned with
the specic questions asked and deci-
sions taken by the tribunal, and their
implications for future cases involving
foreign companies operating in India.
The most critical point relates to
the delay in getting the case concluded.
To those familiar with the Indian judi-
cial system, a period of nine years from
the start of the very rst claim (and
that too in a civil case involving only
contested compensation) may not
seem that long. There is no doubt that
our judicial system is excessively over-
burdened and that cases of litigation
generally last for inexcusably long pe-
riods. But the situation is typically
much worse for a very wide range of
litigants who have much more at stake,
including their very lives. It is hard to
argue and, indeed, the tribunal also
accepted this that there was any case
of discrimination through delay in this
particular case.
In spite of this, the ICC tribunal
decided that the Indian judicial sys-
tems inability to deal with Whites ju-
risdictional claim in over nine years,
and the Supreme Courts inability to
hear Whites jurisdictional appeal for
over ve years amounts to undue delay
and constitutes a breach of Indias vol-
untarily assumed obligation of provid-
ing White with effective means of
asserting claims and enforcing rights.
On this basis, the tribunal decided that
India is in breach of the BIT.
Further, the tribunal decided that
the failure of the court to establish the
case thus far effectively meant that the
Government of India is liable to pay
full compensation to White for the
loss it has suffered as a consequence of
the breach of Indias BIT. This com-
pensation comes to a hefty amount:
more than $4 million; interest on that
amount at 8 per cent per annum since
March 1998; $84,000 for the fees and
expenses of the arbitrators; and
$500,000 to cover the costs of Whites
ICC arbitration!
So now we have an extremely wor-
rying precedent set by this particular
case law the ability of a tribunal to
demand of a state hefty compensation
payments simply for the legal delays
involved in a case involving two corpo-
rate entities which has yet to be settled
in the highest Indian court. This is not
only prejudging the legal result in the
Indian judicial process, but then forc-
ing the government to pay and effec-
tively holding it responsible. Given the
inevitable delays in Indias civil jurid-
ical process, one can imagine that the
several other foreign companies will
feel emboldened to le for internation-
al arbitration along similar lines.
These and other examples mean
that the Government of India must
take a serious and careful look at its
existing commitments under the vari-
ous BITs it has signed. At the very
least, it must make all the details of all
existing and proposed agreements
public. If citizens and taxpayers are
going to be forced to pay when cases go
against India in such arbitrations, at
the very least we must know what the
government has already got us into.
THE HEADQUARTERS OF Coal India Ltd in Kolkata. India has had to suffer
because of its commitments under BIT, as in the case with White Industries
of Australia and, earlier, Enron of the U.S. (Below) The Dabhol power plant
in Dabhol, Maharashtra, built by a consortium led by Enron.
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Neyveli Lignite
Corporation
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TPS-I I EXPANSI ON OF the NLC at Neyveli in
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S P E C I A L F E A T U R E
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THE Neyveli Lignite Corporation Limited, a
public sector undertaking headquartered at Neyveli
in Tamil Nadus Cuddalore district, is diversifying
from using lignite to generate electricity to using coal
for power generation. It is all set to establish an
all-India presence with coal-red power stations in
Uttar Pradesh, Odisha, Madhya Pradesh and Jhark-
hand. The NLC has already forayed into Barsingsar
in Bikaner district in Rajasthan, where it has exca-
vated lignite and is using it to generate 250 MW (two
units of 125 MW each). It will execute the Barsingsar
Thermal Power Project Expansion with 250 MW
capacity and the units will receive lignite from Hadla
and Palana in Rajasthan. In Gujarat, it has plans to
excavate lignite at Valia in Bharuch district and the
Valia mine will feed the thermal power station at
Bharuch. The NLC has set up a joint venture with
Uttar Pradesh Rajya Vidyut Utpadan Nigam Limit-
ed (NUPL, that is, NLC- UPRVUN Power Limited)
for a 2,000 MW coal-based power project at Ghath-
ampur in Kanpur district. It will have a joint venture
with Mahanadi Coalelds Limited and Hindalco to
excavate a coal mine near Mahanadi coalelds and
use the coal to generate 2,000 MWof power.
In Tamil Nadu, work has got into top gear in
Tuticorin for installing two units of 500 MW each by
the joint venture NLC-Tamil Nadu Power Limited
(NTPL), comprising the NLC and the Tamil Nadu
Generation and Distribution Company (TANGED-
CO). It is the rst joint venture for the NLC. Coal will
be the fuel and the coal linkage is with Mahanadi
Coalelds Ltd in Sambalpur, Odisha. An exclusive
jetty for the transfer of coal from ships is under
construction. The rst unit will be commissioned by
March 2013. The second unit will start generating
electricity six months later. The NTPL crossed a
major milestone when the boiler drum of the second
unit was lifted on September 22, 2011. Work on the
construction of two cooling towers, the coal handling
system, the y ash handling system and the desal-
ination plant are under way on a fast track. A sophis-
ticated indoor switchyard is under construction.
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The Neyveli Lignite Corporation is all set to establish its presence in mining and
power generation across several States. BY T. S. SUBRAMANI AN
It is diversifying to using coal for
power generation and is ready to
set up coal-red power stations in
Uttar Pradesh, Odisha,
Madhya Pradesh and Jharkhand.
MAI N 1A OF Neyveli
Lignite Corporation
showing the lignite
bed and bucket wheel
excavators.
In pursuit
of power
SPECIAL FEATURE NEYVELI LIGNITE CORPORATION
M A R C H 2 3 , 2 0 1 2
1 2 0 F R O N T L I N E
SPECIAL FEATURE NEYVELI LIGNITE CORPORATION
At a coastal site near
Sirkali in Nagapattinam
district, Tamil Nadu, the
NLC has plans to set up a
super-critical thermal
power station of more than
4,000 MW using coal. It
will have six units, each of
which will generate 680
MW. In Neyveli itself, the
rst unit (250 MW) of
Thermal Power Station
(TPS)-II Expansion, using
lignite as fuel, was fully
started up on February 2
and it will start pumping
electricity into the grid in
March. The second unit of
250 MW will be commis-
sioned a few months from
now.
Work on building the
Neyveli New Thermal
Power Project (NNTPP) of
1,000 MW (two units of
500 MW), using lignite, is
gathering momentum.
These units will replace
the NLCs ageing TPS-I
with nine units with a total
capacity of 600 MW.
A.R. Ansari, the Chair-
man-cum-Managing Di-
rector of the NLC, unveiled
its Corporate Plan and Vi-
sion -2020 on August 15,
2011. He set a goal of gen-
erating 10,000 MW by the
end of the Twelfth Five Year Plan. This
target will include the new and exist-
ing units at Neyveli and Barsingsar,
and those to come up in Rajasthan,
Tamil Nadu (Tuticorin, Sirkali), Guj-
arat and Uttar Pradesh.
Ansari has a team of ve Directors,
B. Surendar Mohan, Director (Mines);
J. Mahilselvan, Director (Power); K.
Sekar, Director (Finance); R. Kanda-
samy, Director (Planning and Pro-
jects); and Sarat Kumar Acharya,
Director (Human Resources).
Indeed, the NLCs unique feature
is that it is both a mining and an elec-
tricity generation company, said S.
Sridhar, Deputy General Manager,
Public Relations, NLC. Coal India is
only a coal mining compa-
ny. The National Thermal
Power Corporation is only
a power generation PSU.
But the NLC has expertise
in both, Sridhar ex-
plained. Neyveli has open-
cast lignite mines.
The NLC has several
rsts to its credit. It is the
rst lignite-red thermal
power station in south-
east Asia; the rst pit-
head TPS in India; the
rst TPS in India with So-
viet collaboration. In Ney-
yeli, even though the
lignite is seated at a depth
of only 120 metres, its
seam thickness is very
high. So excavation is dif-
cult. What makes the
mining challenging is that
there is a reservoir of wa-
ter below the lignite seam,
which exerts an upward
thrust. It is not possible to
mine the lignite until the
upward thrust is reduced.
So the entire area has to be
depressurised to excavate
the lignite. If the water is
not pumped out, the mine
oor will burst and the
mine will be ooded.
There are three lignite
mines at Neyveli: Mine-I,
Mine-II and Mine-IA.
They are all open-cast mines (Fron-
tline, May 3, 1996).
Mine-I is situated over an area of
27 sq. km with a reserve of 365 million
tonnes near a massive township for
NLC employees. German excavation
technology in open-cast mining was
used in the mine for the rst time in
India. This included specialised
mining equipment (SME) such as
bucket-wheel excavators, conveyors
and spreaders. About 10.5 million
tonnes of lignite are excavated a year
from Mine-I. This lignite is fed to
TPS-I and TPS-I Expansion (420 MW
two units of 210 MW each). Mine-II
is located 5 km south of Mine-I. It
covers 43 sq. km with 600 million
tonnes of reserves. Its capacity is 15
million tonnes a year. This mine needs
the fuel requirements of TPS-II (1,470
MW) and the TPS-II Expansion (500
MW). Mine-IA covers 11.6 sq. km, and
three million tonnes of lignite are exca-
vated from it every year. This mine
provides lignite to an independent
power producer called ST-CMS, which
generates 250 MW in a nearby station.
Lignite from this mine is also sold to
small-scale industries in and around
Neyveli.
There are three TPSs in Neyveli.
TPS-I has nine units with a total ca-
pacity of 600 MW. The station com-
prises six units, each with 50 MW
capacity and three with 100 MW each.
The units are 40 to 50 years old. Tamil
Nadu receives the entire power from
this station. Residual life assessment
studies have shown that they can be
operated for another ve years. The
NLC plans to phase them out by 2014.
TPS-I Expansion comprises two
units of 210 MW each. TPS-II has sev-
en units of 210 MW (a total of 1,470
MW). Thus, the total electricity gener-
ation capacity at Neyveli is 2,490 MW.
TPS-II is a major provider of electric-
ity to all the southern States and the
Union Territory of Puducherry. These
States receive power from TPS-I Ex-
pansion as well.
Under TPS-II Expansion, two
units of 250 MW each have been built.
The rst unit has been started up. On
February 13, it was generating 252
MW. Electricity from the rst unit will
be available on a commercial basis
from March. The second unit will
come on line a few months later.
We have ventured into a new tech-
nology called Circulating Fluidised
Bed Combustion (CFBC) for both
units. This is the rst CFBC power
plant for any fuel for 250 MW capac-
ity, said A. Thangamuthu, Deputy
General Manager (Mechanical), NLC,
as he showed the Frontline team the
state-of-the-art Control Room for the
two units of TPS-II Expansion. He
said the NLC was the pioneer in the
CFBC technology in India. (The two
units at Barsingsar also use the tech-
nology). S. Periannan, Chief Manager,
J. MAHI LSELVAN,
DI RECTOR (Power).
K. SEKAR,
DI RECTOR (Finance).
B. SURENDAR
MOHAN, Director
(Mines).
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(Mechanical), NLC, proudly chipped
in: The NLC is also the rst plant in
India to build tower-type boilers for
seven units of 210 MWeach for TPS-
II.
An insight into how difcult it is to
mine the lignite was available when
Frontline visited Mine-IA. The total
height of Mine-IA is 120 metres. It will
vary from mine to mine, place to
place, said Augustin M., executive en-
gineer, NLC. Above the lignite bed
were ve overburden benches ar-
ranged in a neat way. Overburden is
the soil excavated before the lignite
seam below can be reached. This over-
burden is neatly stacked up in the form
of benches, and there are ve tall over-
burden benches in Mine-IA. While the
rst four overburden benches from the
lignite seam-level were each 20 metres
tall, the topmost overburden was 30
metres in height.
Several gigantic bucket-wheel ex-
cavators were mining the lignite, and
big machines, called stackers, were
stacking it in open bunkers. Outside,
in the stockyard, the lignite was
weighed and big dumpers were trans-
porting it to ST-CMS for power gener-
ation. At a distance from Mine-IA, at
the bed-level, is an articial lake
formed by water pumped out of the
aquifer below the lignite seam. From
the lake, water was being pumped to
the elds of a nearby village. The
NLCs TPSs use water for steam gener-
ation to drive the turbine and generate
electricity.
Elsewhere, in Mine-I and Mine-II,
which are big mines, conveyor-belts
over a distance of several kilometres
were ferrying lignite from the mines to
the thermal power stations. Before it is
used in the TPS, the mined lignite is
crushed into small pieces of 80 mm to
120 mm size and they are further pul-
verised into powder in a mill. This lig-
nite powder is fed into the furnace of a
big boiler, which produces the super-
heated steam to drive the turbine to
generate electricity to light up homes,
power textiles mills, and so on.
In the Control Room of TPS-I Ex-
pansion units, we could see, on the
computer monitor, the intensity of the
ames in the furnace. Every millise-
cond, information comes on the health
of the station and on problems, if any,
in various areas, and people will act,
said S. Madhavanthan, Additional
Chief Manager, TPS-I Expansion. If it
is a serious problem, a hooter will
come into play.
In his laboratory, J. Govindarajan,
Chief Manager (Geology), NLC, held
up a big chunk of lignite and declared,
This is a 25-million-year-old gift from
nature to us. Lignite is tan brown in
colour, light to handle and brittle. He
explained how lignite came to be
formed in the Neyveli-Puducherry ba-
sin in Tamil Nadu. Three rivers form
an arc around the Neyveli region. They
are Kadilam to the north, owing be-
tween Panrutti and Neyveli, Vellaru to
the south, owing near Sethiathope,
Manimutharu to the west, owing
near Vriddhachalam.
On the western side is high land
and on the east, the sea the Bay of
Bengal. In the basin that lay sand-
wiched among these three rivers, vege-
tation grew with the help of sediments
brought in by the rivers. Geological
changes happened and marine trans-
gression took place three times. Pres-
ervation of marine micro-organism
over millions of years led to the forma-
tion of hydrocarbons. In other words,
lignite was born from vegetable matter
having undergone biochemical decay
to the stage of peat (rotten wood) and
then metamorphosed to lignite under
the pressure of the soil above through
oods, movement of the Earths crust
and dehydration.
In 1877, W. King of the Geological
Survey of India (GSI) came across a
carbonaceous strata when he was
studying the artesian wells around
Pondicherry (now Puducherry). Poi-
lay, a French engineer, encountered a
lignite seam in 1884 in a bore hole he
drilled near Bahour, Pondicherry.
When Jambulinga Mudaliyar, who
was earlier president of the South Ar-
cot District Congress Committee,
drilled borewells in his land near Ney-
veli in 1935, black particles gushed out
and this attracted the attention of
some geologists who were camping in
the Neyveli-Vriddhachalam area. In
1943-46, when the GSI started drilling
operations near Neyveli, there were
clear indications of the presence of lig-
nite.
In the late 1940s, H.K. Ghose, ge-
ologist and mining engineer, deputed
by the Government of India, drew up
plans for excavating the lignite at Ney-
veli. In November 1956, the NLC was
formed. Prime Minister Jawaharlal
Nehru launched the mining oper-
ations on May 20, 1957. The rst unit
of 50 MW capacity in TPS-I was com-
missioned on August 4, 1962.
About 83 per cent of the lignite
deposits in India are in Tamil Nadu.
There are 40 billion tonnes of lignite
reserves in India. Lignite deposits oc-
cur in Tamil Nadu (32,892 million
tonnes), Puducherry (416 million
tonnes), Rajasthan (4,835 million
tonnes, Gujarat (2,722 million tonnes)
and Jammu and Kashmir (28 million
tonnes). Kerala has a little quantity of
lignite, but it is not economically viable
to mine that deposit.
Today, the NLC is poised for a rap-
id growth in mining and power gener-
ation across several States of India.
R. KANDASAMY, DI RECTOR (Planning and Projects); S.K. Acharya, Director
(Human Resource); K.S. Balasubramanian, DGP and CVO.
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SPECIAL FEATURE NEYVELI LIGNITE CORPORATION
IN the context of the Neyveli Lignite Corpora-
tions (NLC) plans to diversify from lignite-based
electricity generating stations in Tamil Nadu and
Rajasthan into setting up coal-red power stations
in Tamil Nadu, Uttar Pradesh, Jharkhand, Madhya
Pradesh and Odisha, Frontline met its Chairman-
cum-Managing Director A.R. Ansari recently in his
ofce. A product of the Indian School of Mines,
Dhanbad, he began his career in the National Miner-
als Development Corporation and joined the NLC as
General Manager, Mines, on September 1, 1997. He
went on to become its Director (Planning and Pro-
jects) and eventually the CMD on December 17,
2008. Excerpts from the interview:
On August 15, 2011, you spoke about the NLCs
Corporate Plan and Vision-2020. What are its
highlights?
The main highlight of the NLCs Corporate Vi-
sion is how to make the company stronger how to
increase the power generation of 2,490 MW to
10,000 MWby the end of the Twelfth Five Year Plan
[2012-2017]. To do this, you need to look into the
economics of how to create assets and make available
the resources. Public sector units [PSUs] can invest
only 30 per cent equity and the remaining 70 per
cent should come from borrowings. Even if it is a
Rs.5,000 crore project, I can invest only Rs.1,700
crore as the NLC equity and I have to borrow the
remaining from the market and financial institu-
tions.
Another point in corporate planning is the
growth of human resources in the organisation
what will be the status of executives, supervisory staff
and non-executives by 2020. You can call it the
succession plan or the growth plan of employees. The
third highlight is corporate social responsibility
how to be compassionate towards your projects
neighbours and what should be the developmental
growth of the society around your project, which
includes creating educational institutions, recre-
ational facilities and basic amenities.
We sell power,
not lignite
Whatever we plan for the Twelfth
Plan period, after we install the 500
MW units, the NLC will install
only super-critical boilers because
I have to change the gears faster to
reach the destination of 10,000 MW
[by 2017].
Interview with A.R. Ansari, Chairman-cum-Managing Director of the Neyveli
Lignite Corporation. BY T. S. SUBRAMANI AN
A. R. ANSARI , CMD, NLC, says one of the
highlights of the companys corporate vision is
social responsibility.
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I will add one more to the slogan of
roti, kapada aur makan power.
Without electricity, you cannot do
anything in todays context. There can-
not be any infrastructure without pow-
er. These are the three areas
corporate social responsibility, career
growth and succession plan for the
employees and the technological
growth of the organisation which to-
gether can take the NLC to greater
heights. I have achieved the navarat-
na status from mini-ratna. Any suc-
cessor can take this organisation from
navaratna to maharatna position.
What are the benets that will accrue
to the NLC by its being ranked a
navaratna company?
The fundamental benet of the
navaratna status is that the company
gets total nancial autonomy. Mini-
ratna companies have nancial pow-
ers [to execute projects] up to Rs.500
crore. For a navaratna, no project
needs to go to the government for ap-
proval. Its board is empowered to take
up independently any project in the
country. However, for a joint venture
project, both partners can spend only
up to Rs.1,000 crore collectively, as the
equity part. Recently, the government
gave navaratnas more power to ac-
quire assets abroad, up to Rs.3,000
crore. Navaratna companies now have
the full authority to invest up to
Rs.3,000 crore. You need not consult
the government. Your board is
empowered.
What are the NLCs plans in terms of
more lignite excavation, greater
power generation and increasing
protability? Has work started on
replacement for the NLCs vintage
Thermal Power Station [TPS]-I units?
All power stations in Neyveli are
lignite-based. We have huge deposits
of lignite in India, almost 40 billion
tonnes. Eighty per cent of that is in
Tamil Nadu. Of that 80 per cent, a
further 80 per cent is deep-seated, 300
metres below the surface. There is no
technology available even globally to
exploit it unless you go for an under-
ground coal gasication system or pro-
duce coal-bed methane. Coal-bed
methane is possible to work out, but
the technology of underground coal
gasication is a nightmare. Its status
today is the same as it was when I was a
student of mining 43 years ago. There
is some work being done, but there is
no exploitation commercially.
At what stage is the work on the
Neyveli New Thermal Power Project
[NNTPP], which will replace the six
units of the Thermal Power Station
(TPS)-I units with a total capacity of
600 MW capacity?
The rst unit of TPS-I was com-
missioned in 1962. The life of a ther-
mal power station is about 25 years.
TPS-I has completed 42 years of ser-
vice. Some units have completed even
45 years and are going strong. TPS-I
will be laid off in phases between 2014
and 2019. Phase 1 of the lay-off was
expected to be in December 2008 or
2009. The rst step I took when I be-
came the CMD was to stop it. I have
now extended the life of the plant by
another ve years. The laying-off [of
all the units in TPS-I] will begin in
2014 and end in 2019. I have tried to
club it with the Twelfth Plan period in
such a way that there is no loss of
capacity in this organisation.
Planning is what makes the orga-
nisation register a consistent growth.
We had declared in 2005-06 itself that
TPS-I would be laid off from 2009. But
we had not made a plan for substitut-
ing this capacity. I took a step to ensure
that when this 600 MWis laid off, my
1,000 MW[of NNTPP with two units
of 500 MW each] will be ready. It
means you get an additional 400 MW.
TPS-I Expansion [with two units
of 210 MW each] is already working to
full capacity. TPS-II is working to full
capacity. We are now in the commis-
sioning stage of TPS-II Expansion.
This has been delayed by three years.
Meticulous planning and its imple-
mentation will make a company grow
consistently. We will overcome. We
will soon issue letters of awards [on
the NNTPP].
At what stage is the construction of
the joint venture power project [two
units of 500 MW each] with the Tamil
Nadu Generation and Distribution
Corporation [TANGEDCO] in Tuticorin?
It will be based on coal, not lignite.
Eleven per cent is the shareholding of
the TANGEDCO. Around 89 per cent
is from the NLC. The construction of
the rst unit is in full swing. It has been
delayed by a year as of today. I am
expecting it to be completed by March
2013. The second unit will be commis-
sioned four to six months later.
You have ventured from Tamil Nadu
into Barsingsar in Rajasthan, where
you have excavated a lignite mine and
set up an electricity generation plant.
How large is the lignite deposit in
Rajasthan?
Only 12 per cent of the total depos-
its of lignite in the country is in Rajas-
than, in three major locations in
Bikaner, Barmer and Naguar districts.
Barsingsar is in Bikaner district. I
would like to mention that wherever
there is lignite deposit, there is no coal
deposit. It is a gift of God. This has to
be highlighted. In all the States where
lignite has been found, there is no coal
deposit. The major lignite deposits are
in Tamil Nadu, Gujarat and Rajas-
than. These three States are devoid of
coal deposits. Jammu and Kashmir
has lignite deposits of 10 to 12 million
tonnes and some coal also, but it is
USI NG THE CONVEYOR belt to ferry
lignite to the TPS.
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negligible. We have already signed an
MoU with the Gujarat government.
How big is the project there?
We have initially planned for a
1,000-MW project in Surat district. It
is a single deposit of lignite. It runs to a
length of about 300 km. A river is pass-
ing through it. They have earmarked
the deposits as A, B, C, D, E and F
blocks. The block A and a part of B will
be worked by the Gujarat government.
A joint venture of the NLC will exploit
the remaining blocks. The river passes
through block B. So the joint venture
will exploit north of B and along the
remaining blocks. Kutch is another
rich area, but not a very thick deposit.
A lot of minor deposits are there.
You talked of a coal-red power
project in Uttar Pradesh?
This is diversication of business
from lignite to coal. We are already
doing it in a small way in Tuticorin,
using coal. Our plan is to build a 2,000
MW super-critical power project in
Kanpur district in U.P., about 150 km
from Lucknow. We are looking at an-
other project of 2,000 MW capacity
near Mahanadi coalelds in Odisha.
You will mine the coal there.
The coal block is yet to be allotted.
If it is allotted, we have a mining ca-
pacity and we will do it. In U.P., there
is no coal deposit, but a minor deposit
is available in the Singrauli elds. A
minor portion is in U.P., but a major
portion is in Madhya Pradesh.
Henceforth, the NLC will go for
only super-critical projects. Whatever
we plan for the Twelfth Plan period,
after we install the 500 MW units, the
NLC will install only super-critical
boilers because I have to change gears
to reach the destination of 10,000 MW
[by 2017].
We need to go into the fth gear.
All units with a capacity of 660 MW
and up to 800 MW are super-critical
units. If you install three super-critical
units, it becomes 2,000 MW. So, fu-
ture planning will entail only super-
critical units and they will be basically
coal-red.
What happened to the NLCs coal-
red power project at Sirkali in Tamil
Nadu?
I am planning to generate 2,000
MW in Odisha, and a cluster of units
with a total capacity of 4,000 MW in
two phases, of 2,000 MW each, near
Sirkali. We will be laying the founda-
tion [for Sirkali] and it has to be car-
ried forward with spirit and
enthusiasm. If we want to become a
maharatna company, these important
milestones have to be crossed.
Why did you choose Sirkali?
Why have I gone to the coastal ar-
ea? Land is a scarce commodity in our
country. If you go to the coastal area,
there is least resistance from farmers
[for acquiring their land for projects].
Much of it is wasteland, within 4 km
from the shore. It is not really culti-
vable, that is why we are planning our
future units mostly in the coastal areas.
If you want to build a project two
things are essential: land and water. If
these two are available, the board will
give in-principle clearance. I will use
seawater and install desalination
plants. So I will not disturb the ground
water.
How do you plan to extract the lignite
deposits at Srimushnam and
Jayamkondam in Tamil Nadu and
Bahour area in Puducherry, which are
all thickly populated?
Bahour is a place where you cannot
really exploit. It is close to the sea and
there is a likelihood of seepage of sea-
water, thus adulterating the ground
water. That is why we are not exploit-
ing the area.
What is the problem at
Jayamkondam?
It is a beautiful deposit.
There has been a delay.
There is no delay. There is a prob-
lem and it is multi-faceted. We have a
deposit which can cater for generating
1,000 MW for a minimum of 25 years
if you are going to have north and
south blocks. The problem in that area
is that it is a totally agricultural land. If
we have to exploit both the north and
south blocks, I will have to displace
more than 42,000 people. I will have
to remove 12,000 houses. Seventy in-
stitutions have to be displaced
schools and engineering and diploma
colleges. Once we are able to do that, it
will be another hub like Neyveli.
But somebody has to work sincere-
ly because there is no substitute for
these 42,000 people when you dis-
place them. If you are displacing them
100 per cent, then the project becomes
unviable. The land compensation itself
[will be heavy]. Today, we are paying
Rs.6 lakh an acre. We have to buy
13,000 acres. Imagine the cost. Even
that may be viable. But whether such a
huge manpower of 42,000 can be dis-
placed is a million-dollar question.
The Centre wants to bring a Bill
asking the mining companies to share
their prots with the land-losers. Do
you welcome it?
The legislation is for mining com-
panies, especially coal mining compa-
nies. In fact, the NLC is not a mining
company. It is a power [generation]
company. Our mines are captive to the
power plant. Whatever we exploit, we
cede it to the power plant. We sell less
than 5 per cent [of the lignite excavat-
ed] to the cottage industry. Only small
industries brick kilns, small boilers
and others buy lignite, which is less
than 5 per cent of our production. My
turnover comes from the sale of power,
not from the sale of lignite.
What will be the NLCs turnover for
2011-2012?
I am aiming at Rs.5,000 crore.
What will be the prot?
I am not able to quantify. It will be
more than that of 2010-11. This orga-
nisation is now on a consistent growth
path on turnover, prot and assets. If I
prove myself in all the three areas, I
dont think there will be any problem
in future. This organisations potential
is high and it needs to be tapped prop-
erly and effectively in the context of the
present and the future.
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SPECIAL FEATURE NEYVELI LIGNITE CORPORATION
OUR main aim is to give back to
nature what we have taken from it.
We want to build condence among
the public that it is possible to reuse
the land that we mine for lignite,
said S. Shivaprasad, Chief Manager
(Geology), Mine-I, Neyveli Lignite
Corporation (NLC), as he showed us
land where paddy had been culti-
vated, fully grown coconut trees had
been transplanted, and a variety of
trees were in full bloom. Among the
trees were mahua, or Madhuca in-
dica (Iluppai in Tamil), Indian la-
burnum (Konrai in Tamil),
Pongamia pinnata (Pungai), ta-
marind, jamun, Acacia nilotica, Sis-
soo (Vaagai), Inga dulci
(Kodduka puli) and Melia indica
(Malai Vembu). The trees were so
densely packed that it looked like a
mini-forest. There was a small lake
with ducks in it. Spotted deer
roamed the forest.
Beyond the open paddy elds is a
hillock, about 30 metres high, that
stretches away for many kilometres.
It is overburden, that is, soil piled
up after open-cast mines are exca-
vated to get at the lignite bed, located
at a depth of more than 100 metres.
It gives one a sweeping view of the
NLCs 53 square-kilometre town-
ship where its 18,000 employees
live. Despite the devastation caused
by the Thane cyclone on December
30, 2011, which attened about ve
lakh trees in the township alone, it is
remarkable how green it still is. S.
Sridhar, Deputy General Manager,
Public Relations, said condently on
February 13, We will plant ve lakh
trees in our township within a year.
But the hillock chain of over-
burden poses a problem with the
wind blowing the soil in different
directions and dust particles hang-
ing in the air. So a team headed by
Shivaprasad and R. Nedunchezhi-
yan, Additional Chief Manager (civ-
il), Mine-I, set about levelling the
overburden. In several places they
have created paddy elds and mini-
forests out of the attened overbur-
den. A total of 1,850 hectares have
been reclaimed and 1,583 hectares
re-greened. Ponds, where lignite ash
from the NLCs Thermal Power Sta-
tions (TPSs) are dumped, have been
reclaimed as well. Paddy and banana
are cultivated in these reclaimed y
ash ponds. The Centre for Applied
Research and Development
(CARD), an in-house R & D unit of
the NLC, monitors the air, water and
soil to keep a tab on the pollution
levels. Efuents from the TPSs and
mine outlets are periodically
analysed.
Shivaprasad and Nedunchezhi-
yan explained how the atted over-
burden is improved in stages to
match its original fertility. After the
soil settles down, it is tilled and the
topsoil is mixed with potassium and
y ash. The topsoil is again mixed
with saw dust, groundnut shell
powder, lignite dust, gypsum, urea,
superphosphate (fertilizer) and far-
myard manure. The land is ready for
plantation and sunn hemp is culti-
vated to x nitrogen in the soil.
When the sunn hemp plants are in
owering stage, the soil is tilled
again. After this is done several
times, it becomes a normal eld.
If the land thus reclaimed is to be
afforested, saplings of Indian labur-
num, Madhuca indica, Pongamia
pinnata, tamarind, jamun, Acacia
nilotica, neem and teak are planted.
Humic acid, extracted from lignite
by CARD, is sprayed once in two
months. If the reclaimed land is to be
used for agriculture, roads and
drainage are laid. Paddy, coconut,
vegetables, banana, guava and sapo-
ta are grown and marketed. Inte-
grated farming is also done with the
help of Tamil Nadu Agriculture Uni-
versity and Annamalai University.
T.S. Subramanian
Reclaiming mine spoils
A RI CE CROP and transplanted coconut trees on land obtained by
levelling the overburden.
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letters
Gujarat pogrom
IT is sad to note that justice
has not been done to the vic-
tims of the 2002 Gujarat
pogrom (A decade of
shame, Cover Story, March
9). The determined quest of
some victims for justice is
laudable. However, the path
has thus far been long and
arduous. It is a pity that the
long arm of the law is yet to
catch up with the perpetra-
tors of the pogrom. Chief
Minister Narendra Modi
simply cannot wash off this
taint with his development
mask, which in any case is
only a means to polarise
people on communal lines.
J.ANANTHA
PADMANABHAN
SRIRANGAM, T.N.
THE articles show what a
violent course our country
has taken of late. Our talk
about fraternity sounds hol-
low when we see brothers in
violent confrontation with
one another. Time cannot
heal the scars left in the
minds of children who saw
the violent aftermath of the
Godhra tragedy.
A.P. NIRMAL
KANNUR, KERALA
THE pogrom is a big blot in
the history of Gujarat and
India. The victims are still
suffering though there is
enough evidence against the
perpetrators of the crime.
JACOB SAHAYAM
THIRUVANANTHAPURAM
THE overenthusiasm to get
Modi prosecuted is mis-
placed. The same enthusi-
asm is missing in the case of
the Sabarmati Express car-
nage in Godhra. If there was
no Godhra incident, there
would not have been a Mus-
lim massacre in 2002.
Even if we assume that
Modi asked the police to al-
low people to vent their an-
ger, it does not mean that he
incited violence. The anger
of the people in a democracy
is vented through protest
marches, hartals, and so on.
If people indulge in vio-
lence, it is the duty of the
police to curb it. They need
not and should not obey un-
lawful orders. If Modi is re-
sponsible for the Gujarat
communal riots, then Jawa-
harlal Nehru is accountable
for the communal riots dur-
ing Partition.
S. RAGHUNATHA PRABHU
ALAPPUZHA, KERALA
IT is quite shocking to learn
that Muslims in Gujarat can
live only in certain areas. It
seems that the Modi gov-
ernment is implementing
the 21st century version of
the South African apartheid
policy through his outra-
geous social engineering
schemes.
A. YESHURATNAM
THIRUVANANTHAPURAM
THE ghosts of Godhra will
haunt Narendra Modi for-
ever. If the BJP presents
Modi as its prime ministe-
rial candidate, it will be a
mistake.
SUSHIL KUMAR
AURANGABAD, BIHAR
THE Cover Story article A
tale of two reports (March
9) indicated the two serious
points of disagreement in
the reports of the SIT and
the apex court-appointed
amicus curiae Raju Rama-
chandran. But the SIT re-
ports and the amicus curiae
report have referred to Mo-
dis communally provoca-
tive statements.
Then why is it that the
SIT is not conducting an im-
partial probe into the alle-
gations of a larger
conspiracy and administra-
tive complicity behind the
carnage as alleged by the
police ofcer Sanjiv Bhatt?
Why has the SIT treated
Bhatt as an unreliable wit-
ness? The amicus, on the
contrary, has suggested that
the weight of the evidence
favoured Bhatt.
The ght for justice
must go on until Gujarat ad-
mits its mistake and the
guilty are punished. Forget-
ting the atrocities would
mean accepting them, even
encouraging similar acts.
BIDYUT KUMAR
CHATTERJEE
FARIDABAD
Reservation
P.S. KRISHNAN has dis-
cussed the issue of reserva-
tion for Muslims elaborately
and convincingly from his-
torical, social, cultural and
economic perspectives (A
fair deal to Muslims,
March 9).
However, it remains a
fact that reservation was ini-
tiated as a temporary mea-
sure. It had to go at some
time or the other. B.R. Am-
bedkar, Kaka Kalelkar, and
B.P. Mandal looked at it
from the past contexts. To-
day, in the second decade of
the 21st century, the situa-
tion is vastly different. The
premises and the parame-
ters of reservation need a
fresh look. Factors such as
social and economic mobil-
ity of people, caste and class
and access to education
have all changed drastically.
Krishnan has given a
hint about the future direc-
tion reservation should take
but leaves it very vague,
maybe for obvious reasons.
A bureaucrat of his stature
could have outlined the
steps to be taken with a time
frame.
M. N. PALSANE
PUNE
Vallarpadam
ALMOST all the ports in the
country are in dire need of
optimisation of their servic-
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M A R C H 2 3 , 2 0 1 2
1 3 4 F R O N T L I N E
ANNOUNCEMENT
Letters, whether by surface mail or
e-mail, must carry the full postal
address and the full name, or the
name with initials.
es or deepening the harbour
basin (Waiting for cargo,
March 9).
Deepened ports will at-
tract mainline vessels. The
government should im-
prove infrastructure by wid-
ening port entrances and
constructing adequate
berths and yards.
P. SENTHIL SARAVANA
DURAI
VAZHAVALLAN, T.N.
Inhuman
THE humiliation of S. Vel-
laiyan by a stone quarry
owner is shocking (Pits of
horror, March 9). It is a
shame that such barbaric
practices prevail in free In-
dia even now.
Workers are the real
backbone of the country,
but in truth they are sub-
jected to all sorts of hard-
ships by employers. The
Tamil Nadu government
should provide a conducive
environment for the work-
ers and put an end to such
feudal practices.
JAYANT MUKHERJEE
KOLKATA
THE macabre incident il-
lustrates how Dalits and the
downtrodden con-
tinue to be victims
of the high-hand-
edness of the upper
classes. The Tamil
Nadu government
and the Human
Rights Commis-
sion should take
stringent action against the
perpetrator of the crime.
N.C. SREEDHARAN
PALLIKUNNU, KERALA
The U.S.
THE articles under the
World Affairs section
(March 9) bring out the true
nature of American foreign
policy.
The U.S. has emerged as
a war-hungry nation, ever
ready to start or join any
war, provided it is not on its
own soil. Afro-Asian na-
tions have been its main tar-
gets. Its stated objectives of
containing communism
and democratisation have
never been realised. It has
never won any war but only
caused immense damage to
the lives of millions of civil-
ians, including children.
The U.S. must know that the
days of empire-building
through force are long over.
The U.N. is a miserable
failure, unable to control
such countries.
S.S. RAJAGOPALAN
CHENNAI
Maldives
MALDIVES in-
ternal stability
with a pro-India
government in
place is of utmost
importance for In-
dia (A Presidents
exit, March 9).
Mohamed Nash-
eed was seen as a pro-India
man his rst state visit af-
ter assuming ofce was to
India. Only time will tell
whether India was right in
being passive when he was
ousted. If things remain un-
stable and a fundamentalist
pro-Pakistan party nally
assumes power in the is-
land-nation, it will result in
further headache for India.
G. ANUPLAL
BANGALORE
2G verdict
DR SUBRAMA-
NIAN SWAMY
needs to be con-
gratulated for his
success in getting
the Supreme Court
rap the UPA gov-
ernment (Spec-
trum shocks,
March 9). While he may
have the lost the battle in
making Home Minister P.
Chidambaram a co-accused
with A. Raja in the 2G spec-
trum case, he is sure to win
the war in the High Court or
the Supreme Court. Swamy
never surrenders easily.
S. BALAKRISHNAN
JAMSHEDPUR
Partition
I REFER to A.G. Nooranis
comparison between what
he sees as the failure of
statesmanship of Moham-
mad Ali Jinnah during the
process of Indias partition
and the more successful ap-
proach of Edward Carson
during the partition of Ire-
land a quarter century earli-
er (Horrors of partition,
March 9). He notes that
Carson himself excluded
from Ulster (Northern Ire-
land) three overwhelmingly
Catholic counties and was
content with the six that had
a Protestant majority. En-
larging territories on false
premises was a system of
land grabbing, he [Carson]
remarked. It should be
noted that two of the six
counties that remained
within the territory of
Northern Ireland (Ferma-
nagh and Tyrone) also had
clear Catholic majorities.
Bearing in mind the trou-
bled history of that jurisdic-
tion after 1920, perhaps the
comparison in the
respective states-
manship of the
two gures is not
so attering to the
Irishman after all.
GABRIEL
DOHERTY
CORK, IRELAND
Hindutva
THE Cover Story article
Communal curriculum
(February 24) seems preju-
diced. It is ridiculous to crit-
icise the introduction of
lessons in the Bhagavad Gi-
ta in schools. The 700 slokas
of Gita are pure scientic
and management princi-
ples. That the Gita has a
global acceptance is well
known. Albert Einstein of-
ten said that he got inspira-
tion from the Gita for his
research. The Gita is part of
the syllabus for manage-
ment studies in Harvard
University.
Describing the trident
as a tool for communal mo-
bilisation in the cover pho-
tograph is senseless.
DEEPESH G. NAIR
VALLAMKULAM, KERALA
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Published on alternate Saturdays.WPP No.CPMG/AP/SD-15/WPP/11-13 & MH/MR/South-180/2012-14.Postal Regn. No.TN/ARD/22/09-11. RNI No.42591/84