Tag: E.A.S. Sarma

Green Clearances for Great Nicobar Project Violate Constitutional Regulations: Former IAS Officer

EAS Sarma alleged that the government did not adequately consult the island’s tribal council before according environmental clearance for the project, which some have said endanger vulnerable groups on the island as well as its ecology.

New Delhi: A former IAS officer has written to President Murmu saying the Union government’s granting environmental clearances for its mega-infrastructure project on Great Nicobar island was without adequate consultation with the island’s tribal council and thus violative of constitutional regulations.

E.A.S. Sarma, who was tribal welfare commissioner in the Andhra Pradesh government as well as secretary to the Union government, said that in not adequately consulting the island’s tribal council, the government was violating the Andaman & Nicobar Islands Protection of Aboriginal Tribes Regulation, 1956, which he has previously said overrides laws applicable elsewhere.

His letter is reproduced at the end of this article.

The Great Nicobar project will involve the construction of settlements, a trans-shipment terminal, an airport, a power plant as well as defence facilities.

Sarma referred to an instance in 2022 where the island’s tribal council reportedly withdrew a no-objection certificate it had given for part of the project, saying it wasn’t fully informed of the project’s physical extent.

He alleged that in “pushing through” with environmental clearances to the project, the Union environment ministry had ‘totally ignored’ the Andaman and Nicobar Islands administration’s Shompen policy, which says the welfare of the Shompen tribe – classified as a ‘particularly vulnerable tribal group’ – must be prioritised and reviewed when moving with such projects.

He also criticised the ministry’s decision to direct afforestation in Haryana as compensation for denotifying forest land on Great Nicobar and said that as far as he knew, authorities did not consult with the Scheduled Tribes Commission while making preparations for the project as required by law.

In light of the alleged regulatory violation, Sarma wrote to the president: “…Perhaps there is a strong case for your high office to consult the apex court under Article 143 on the implications of the mega project for the Shompens and the Nicobarese of Great Nicobar island and the manner in which their concerns could be addressed.”

In related news, a report in The News Minute earlier this week said the island territory’s administration was flouting land acquisition laws in proceeding with the planned international airport on Great Nicobar.

And Sarma is not the only one to express his concern over the Great Nicobar project.

Earlier this year, 39 scholars wrote to Murmu saying the Shompens would face genocide if the Great Nicobar project went ahead, and last year scores of former civil servants wrote to her saying the project threatened not only the Shompens but also the island’s ecology.

§

To

Smt Droupadi Murmu
President of India
Rashtrapati Bhawan

Respected Rashtrapati Ji,

Kindly refer to my letters of 29-1-2023 and 14-4-2023, appealing for your urgent intervention to protect the interests of around 229 Shompens belonging to a Particularly Vulnerable Tribal Group (PVTG) and around 27,168 Nicobarese tribals in Great Nicobar Island, where it has been unilaterally proposed by the Central Government to set up a “Mega Infra Project”, that occupies 131 sq km out of 866 sq km of forest area, a little over 84 sq km out of 751 sq km of the statutorily notified Tribal Reserve, the exclusive habitat of the tribals and 70.6 sq km out of 733 sq km of a unique rain forest biosphere, posing a serious threat to the tranquility of the tribal communities, the original inhabitants of the island cluster.

My two letters cited above are accessible in the public domain at https://countercurrents.org/2023/01/mega-infrastructure-project-in-great-nicobar-island-would-be-violative-of-the-constitutional-mandate-and-adversely-impact-the-lives-of-the-local-tribals/ &

https://countercurrents.org/2023/04/mega-infrastructure-project-in-great-nicobar-island-need-to-consult-the-shompens-and-nicobarese/)

The “Tribal Reserve” referred above has been declared under Section 3(1) of the A&N Islands Protection of Aboriginal Tribes Regulation (ANIPATR) notified through a Presidential Proclamation in 1956 under Article 243(2) of the Constitution.

Section 11 of the above cited Constitutional Regulation prohibits the application of any other law that violates the intent of that Regulation. The said Section is extracted below:

“The provisions of this Regulation and of any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, or in any usage or agreement, or in any decree or order of any court or other authority.”

In other words, the action taken hastily by the Ministry of Environment, Forests & Climate Change (MEFCC) to accord environment clearance for the project under the Environment (Protection) Act was prima facie illegal, as it was without adequate consultation with the Tribal Council of the Islands, constituted under the A&N Islands (Tribal Councils) Regulation [ANITCR], 2009 promulgated by the President under Clause 1 of article 240 of the Constitution and, therefore, violative of Section 11 of ANIPATR.

In fact, the Tribal Council of Great Nicobar Island, in their letter of 22-11-2022 addressed to the A&N Administration, the Ministry of Environment, Forest and Climate Change (Forest Conservation Division) and the Commissioner cum Secretary (Environment and Forests), Union Territory Administration of A&N Islands, expressed their objection to the setting up of the proposed Mega Infrastructure Project (including the airport), saying that the authorities had earlier “rushed them” into signing a “No Objection” letter on the basis of misleading information and, after careful consideration among their members, they would revoke that No-Objection letter. In my letter dated 14-4-2023 addressed to the President of India (https://countercurrents.org/2023/04/mega-infrastructure-project-in-great-nicobar-island-need-to-consult-the-shompens-and-nicobarese/), I did bring this fact to Rashtrapatiji’s attention.

The manner in which the A&N administration, prompted by the Union government, seems to be rushing through the project makes a mockery of the avowed policy of the government to safeguard the interests of the local tribal communities, as envisaged in the Constitution and the Regulations promulgated in pursuance of it.

The A&N Administration approved detailed guidelines on “Policy on Shompen Tribe of Great Nicobar Island” vide its gazetted notification No. 89/2015/F 1-892/2009-TW/557 dated 22-5-2015 (https://tribal.nic.in/downloads/PVTG/The%20Andaman%20and%20Nicobar%20Gazette%20dated%2022-05-2015%20-%20Policy%20on%20Shompen%20Tribes%20of%20Great%20Nicobar%20Island.pdf).

Para 6.3 of the said notification states as follows:

“With regard to large scale development proposals in the future for Great Nicobar Island such as transshipment container terminal etc., the welfare and integrity of the shompen community should be given priority and be reviewed in consultation with the Department of Tribal Welfare and Andaman Administration Janjati Vikas Samiti and the Ministry of Tribal Affairs.”

Despite such a policy being formally notified by the Union Ministry of Tribal Affairs to protect the Shompens, MEFCC had chosen to ignore it totally, while summarily pushing through statutory environment clearance for the project in the guise of cutting the corners for a “strategic” project.

The irony of MEFCC’s misplaced approach to de-notify a large tract of the unique rainforest stretch, which provides habitat for the tribals in Great Nicobar island was evident when that Ministry, ostensibly in the name of complying with the apex court’s direction to undertake “compensatory afforestation” for the loss of forest in Great Nicobar island, permitted “compensatory” afforestation in far off Haryana, thousands of miles away from great Nicobar island, knowing well that Haryana government itself had tweaked rules that paved the way for influential real estate developers to ravage the precious Aravalli forests there. How can the loss of biodiversity in a rainforest stretch of Great Nicobar be compensated by a mythical show of afforestation far away? (https://countercurrents.org/2023/11/tropical-forests-in-greater-nicobar-islands-to-aravalli-forests-in-haryana-the-green-connection-between-politicians-and-their-corporate-allies/)

The latest in the series of hasty steps taken by the Central government, ignoring the interests of the tribals, is by initiating action to acquire land for an international airport in Great Nicobar island under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act, 2013, in which a so-called “Social Impact Assessment” study once again ignored the existence of Shompens and Nicobarese who would get indirectly impacted, with their Tribal Council kept in the dark, and the Shompen Policy nowhere mentioned. It shows how insensitive the A&N administration is towards the tribal communities whose interests it ought to safeguard as its primary responsibility. Had the A&N administration cared to consider the impact of the project on the local tribal communities, it would have elicited the views of anthropologists and other experts who are familiar with the socio-economic conditions of the Shompens and Nicobarese, a requirement that stands ignored.

When such huge disruptive projects are taken up, that involve intrusion into the forest habitat of the local tribals and a statutory infringement of their Tribal Reserve, both the Union and the State are required to hold prior consultation with the National Commission for the Scheduled Tribes (NCST) under Article 338(9). To the best of my knowledge, no such prior consultation had been held.

In a participatory democracy like ours, when disruptive projects like the Mega Infra Project in Great Nicobar island are proposed to be set up, the communities likely to be affected, especially the local tribals, represented by their Tribal Councils, ought to be consulted. In the instant case, the Great Nicobar Tribal Council has expressed its objection but the authorities in the A & N administration and the Union government have evidently chosen to ignore their concerns. The procedures hastily followed by the A&N administration and the decision makers in Delhi violate the provisions of both ANIPATR & ANITCR.

One cannot expect the Shompens and Nicobarese of Greater Nicobar island to approach any institution on their own to persuade it to heed to their concerns arising from the proposed mega infra project that would affect their lives directly and indirectly. When almost all institutions today seem to adopt a “hands-off” approach vis-a-vis the executive, for reasons best known to them, one is not sure as to how the Shompens and the Nicobarese of Great Nicobar can ever persuade the authorities to listen to their voice.

Since there has been a prima facie violation by the A&N administration of the provisions of two sets of Regulations, namely, ANIPATR & ANITCR, promulgated by the President under the Constitution, perhaps, there is a strong case for your high office to consult the apex court under Article 143 on the implications of the mega project for the Shompens and the Nicobarese of Great Nicobar island and the manner in which their concerns could be addressed.

I appeal to you, Rashtrapatiji, to take such action that safeguards the tribals of Great Nicobar island at the earliest

Respectfully,

E A S Sarma

Former Commissioner (Tribal Welfare) Govt of Andhra Pradesh (AP)

&

Former Secretary to the Government of India
Visakhapatnam

‘Is Election Commission Afraid to Act on My MCC Complaint Against Modi’, Former Bureaucrat Asks

E.A.S. Sarma had written to the poll body about statements Modi made on ‘shakti’ during an event in Tamil Nadu last week, saying they may have violated the model code of conduct. He said he did not hear back from the commission.

New Delhi: Expressing disappointment that the Election Commission of India (ECI) did not respond to his letter saying that Prime Minister Narendra Modi may have violated election campaign rules in a recent speech, former IAS officer E.A.S. Sarma asked the commission if Modi was “not answerable to the commission or the public at large”.

Sarma made a complaint to the ECI on Friday (March 22) to bring its attention to a speech Modi made in Tamil Nadu earlier that week.

He cited Modi as reportedly saying during this event that Hindus believe in nari shakti and matru shakti, that the INDIA opposition bloc made statements about destroying shakti and that these were insults to Hinduism.

“In its rally in Mumbai’s Shivaji Park, the ‘INDI Alliance’ openly announced that it wants to destroy the shakti that the Hindu religion has faith in. Everyone in Tamil Nadu knows what shakti means in the Hindu religion,” he is heard saying in a video of the speech.

Modi also said that several temples devoted to goddesses in Tamil Nadu were the ‘shakti of this place’ and said that in Hinduism, the term refers to matru shakti and nari shakti.

“The people of the ‘INDI Alliance’ repeatedly and deliberately insult the Hindu religion,” the prime minister also said.

Sarma said that these statements violated the model code of conduct and urged the ECI to take action against Modi if the report he cited was found true.

“Invoking the religious sentiments by a political leader during elections brazenly violates the model code of conduct … If what has been reported is factually correct, the commission should act on this urgently and initiate deterrent, exemplary proceedings against the person making such a statement,” Sarma had said in his March 22 letter.

Not having received a response yet, Sarma asked the commission on Monday (March 25) if it had chosen to act on his complaint and if it was “afraid to act independently” for any reason.

“Considering that each one of you is presently occupying the office of the commission as a result of selection predominantly made by the ruling political executive, does the commission as a collective body feel obligated not to cause any embarrassment to the head of the political executive?”, he also asked the three-member poll body in a reference to the new law on how election commissioners are appointed.

He added the commission must address his questions publicly and hoped it would “dispel any … perception” that it was unwilling to be apolitical and independent.

His letter from Monday is reproduced in full at the end of this article.

The ECI enforces the model code of conduct, which applies from when elections are announced and until results are declared. It seeks to regulate actions by governments, political parties and politicians to help keep elections free and fair.

The model code is voluntary, but the ECI issues notices to those who violate it and sometimes enforces punitive action as per its special powers. Some actions the model code prohibits also happen to be banned by criminal law or other legislation.

One of its provisions says that “there shall be no appeal to caste or communal feelings for securing votes”.

§

E A S Sarma
Former Secretary to the Government of India

To

Shri Rajiv Kumar
Chief Election Commissioner

Shri Gyanesh Kumar
Election Commissioner

Dr Sukhbir Singh Sandhu
Election Commissioner

Dear Dr Sukhbir Singh Sandhu, S/Shri Gyanesh Kumar/ Rajiv Kumar,

I requested the Election Commission of India (ECI), vide my letter of March 22nd, 2024 (https://countercurrents.org/2024/03/shri-modis-statement-invoking-religious-sentiments-in-tamil-nadu-violates-the-mcc/) to examine and act firmly on the statement reported to have been made by Shri Modi, the Prime Minister in Coimbatore in Tamil Nadu recently, appealing to the religious sentiments of the voters in prima facie violation of the Model Code of Conduct (MCC).

I have tried to ascertain whether the Commission has acted at all on my complaint and whether any order has been passed on it but, to my anguish and disappointment, I have not come across any evidence of it. It looks as though the Commission has chosen not to act on my complaint for reasons best known to it.

May I remind the Commission that as a citizen I am entitled to know the outcome of my complaint under Article 19 of the Constitution? Is not the Commission aware of its obligation to disclose the action taken on the complaint under Section 4 of the RTI Act?

As a concerned citizen and a voter having a stake in the ensuing elections, I have the following questions for each one of the three Election Commissioners to consider and provide satisfactory answers for the public to see at the Commission’s website and judge for themselves the impartiality and effectiveness of the Commission as an authority set up under Article 324 of the Constitution mandated to conduct elections in a free and fair manner:

1. Does the Commission consider a political leader appealing to the religious sentiments of the voters to vote for his/her party not a violation of the MCC?

2. Does the Commission think that a complaint made by an ordinary citizen-voter like me need not be acted upon, and that the concerns of ordinary voters could be readily ignored?

3. Does the Commission consider that Shri Narendra Modi, the Prime Minister is beyond the ambit of the MCC and, therefore, he is not answerable to the Commission or the public at large?

4. Is there one set of rules in the electoral process for Shri Modi and another set of rules for all others?

5. Has the Commission chosen to act on my complaint cited or decided to ignore it altogether?

6. Whether the Commission has ascertained the facts relating to the complaint from independent sources and passed a speaking order on my complaint? If so, can the Commission make a public disclosure of it?

7. Have there been any differences in thinking among the three individual Commissioners on the complaint in question and the reasons for the Commission not making a public disclosure of the dissenting views?

8. Considering that each one of you is presently occupying the office of the Commission as a result of selection predominantly made by the ruling political executive, does the Commission as a collective body feel obligated not to cause any embarrassment to the head of the political executive?

9. Is the Commission, for some reason, afraid to act independently on my complaint to enforce the MCC?

10. Considering that the expenses incurred by the office of the Commission are met from the public exchequer, should not the Commission feel accountable to the public at large?

As pointed out by me time and again, the public at large repose trust in the Commission as an independent Constitutional authority and expect it to function in an entirely apolitical manner, to be able to conduct elections in a free and fair manner. If the Commission displays any bias in favour of those influential in the ruling political executive, or any fear to act against them, the trust that the public repose in it is sure to get eroded, raising concerns about the Commission’s efficacy to function as a Constitutional authority.

I request the Commission members to meet specially to discuss the above questions and provide satisfactory answers to the public at large, failing which, I am afraid, that one would be constrained to infer that the Commission has no intention whatsoever to elevate itself to fulfill the mandate under Article 324 and act as an apolitical, independent body.

I sincerely hope that the Commission would do everything to dispel any such perception.

Regards,

Yours sincerely,

E A S Sarma
Visakhapatnam
25th March 2024

IAS Officers as Rath Prabharis is ‘Not Just Unethical But Illegal’: Ex-Civil Servant EAS Sarma

Deploying public servants in activity likely to influence voters during elections violates the election law, says former secretary to the government of India in an interview to The Wire’s Arfa Khanum Sherwani.

Former secretary to the government of India E.A.S. Sarma has written to the Election Commission of India once again on the Union government’s plan to use senior government officers as “rath prabharis” who will propagate information on so-called ‘achievements’ of the Narendra Modi government.

There have been other provocations too, such as ‘selfie-points’ being assigned to government, civil and defence staff which have Modi in the frame. But IAS officers as “rath prabharis” have led ex-bureaucrats, in particular, to express strong concern.

Sarma had first written to the ECI on October 21, saying that the commission must intervene and block this government order. These instructions, he argued, were against the Model Code of Conduct, which is in place in five states going to the polls.

Selfie point at a Metro Station in Delhi. Photo: Banjot Kaur/The Wire.

In his second letter sent on Monday (October 23), Sarma said he hoped the ECI had taken cognisance of his complaint.

Excerpts from a short interview with him on the latest in provocations, which appear to try and skew the level playing field which is a must for free and fair elections.

More so, while the Model Code of Conduct for the whole country is not in place, 2024 polls are around the corner.

What is your primary objection to the Modi government’s nomination of government officers as Rath Prabharis?

My objection is to the government asking its officers to showcase its achievements during the last nine years, on the eve of the Assembly elections. The announcement came after the Model Code came into effect. Therefore, it violates the Code.

You earlier stated that it is unethical but is it also illegal? Can officers say no to the govt order? Should the Election Commission act on it?

It is illegal as it violates the Model Code. Deploying public servants in activity likely to influence voters during elections violates the election law. Also, the civil services conduct rules prohibit civil servants from doing anything that is likely to unduly influence voters. A conscientious civil servant can point this out, say “no” and refrain from taking part in such activity.

There are four Union ministers contesting Assembly elections. It is bizarre that their officers should be showcasing their government’s achievements in constituencies in which they will contest when the Code is in force. In my view, it should attract disqualification of such candidates, for deploying their officers and public resources, when the Moral Code is in force.

The Election Commission ought to have acted on it immediately, instead of waiting for citizens and political parties pointing it out.

Is there a similar transgression in the past that this brings to mind?

I do not remember such an instance.

What options exist for citizens if the EC does not take note?

If EC fails to act, courts are the only resort.

Ritwick Dutta’s Many ‘Crimes’ and the FCRA’s Role in Tackling Them All

It is distressing that the political parties in power should pretend to be concerned about prosecuting NGOs for FCRA violations but conveniently bend every statute to allow foreign agencies to give huge donations to political parties.  

Lately, the Union government has weaponised the Foreign Contributions (Regulation) Act [FCRA] against non-governmental organisations (NGOs), which have been taking up people’s causes whilst questioning the illegalities committed by public authorities against Dalits, Adivasis, and other disadvantaged sections of our society.

For instance, it was reported a few days ago that the Ministry of Home Affairs (MHA) had recommended a Central Bureau of Investigation (CBI) inquiry against Aman Biradari, an NGO, established by writer and human rights activist, Harsh Mander, for alleged violation of the FCRA.

Aman Biradari Trust has been doing excellent work, according to reports, towards promoting fraternity and a secular attitude among people. While one cannot claim to have all the details of the FCRA case against Harsh Mandar, and one would prefer NGOs to be provided funds from domestic sources, it suffices to say that the government should draw a clear distinction between mens rea (intention to commit a crime) and a mere technical violation of the provisions of the FCRA.

Setting the CBI against an NGO like Aman Biradari for committing a technical violation of the FCRA seems to be an extreme measure, more to spite the NGO than to help it carry on its work.

Ritwick Dutta’s ‘crimes’

A more recent example is a CBI investigation initiated by MHA for FCRA violations against the well-known environmental lawyer Ritwick Dutta and the NGO promoted by him, Legal Initiative for Forest and Environment (LIFE).

The CBI seems to have alleged that an overseas-based organisation has funded LIFE’s legal activism to “take down India’s existing and proposed coal projects”, a somewhat over-simplistic charge that betrays the investigating agency’s inadequate understanding of how projects can have both social costs and social benefits, which need to be evaluated before decisions are taken. The CBI should know that it is civil society’s right to question the executive’s decisions in a democracy and to seek judicial intervention with the help of legal counsel.

Ritwick Dutta. Photo: https://thelifeindia.org.in/

While the exact nature of the FCRA violations alleged to have been committed by LIFE is not yet available, it is important to note that Ritwick Dutta’s first case was against the Vedanta Group, where he represented the Dongria Kondh tribals seeking a ban on bauxite mining in the Niyamgiri hills in south-west Odisha.

It is ironic that the Odisha Mining Corporation Ltd., a state public sector unit, supported by the enormous might of the state authorities, allowed the Vedanta Group to take up bauxite mining in Niyamgiri Hills, displacing Dongria Kondh Adivasis, recognised as a Particularly Vulnerable Tribal Group (PVTG), in blatant violation of the provisions of the Panchayats (Extension to the Scheduled Areas) Act [PESA] and the Forest Rights Act [FRA].

Also read: CBI Books Environmental Lawyer Ritwick Dutta for Alleged FCRA Violations, ‘Stalling’ Coal Projects

In the normal course, had the Odisha authorities ever cared to respect and comply with the PESA and the FRA, it would have first consulted the Gram Sabhas of the Dongria Khonds before unilaterally imposing bauxite mining on their lives. When the state failed to deliver justice to helpless Adivasis, civil society had to seek judicial intervention. Public-spirited advocates like Ritwick Dutta took up the Adivasis’ case before the apex court, which firmly stood on the side of the Adivasis and ordered the government to comply with the provisions of the PESA and the FRA, a direction that ultimately resulted in the Adivasis’ rights being fully protected. This, in turn, stopped the Vedanta group from carrying out bauxite mining on Niyamgiri hills, as the Adivasi Gram Sabhas consistently expressed their opposition to it.

When political parties in power, funded profusely by big business houses, choose to violate the law of the land and take decisions against the public interest, it is public-spirited legal activism alone that can come to people’s rescue. Should such people-oriented legal activism be considered a crime, when political parties themselves have no qualms about heinous criminal acts committed by their compatriots in the name of winning elections?

When the Andhra Pradesh government, with active support from the Union government, chose to allow a private company to set up a highly polluting thermal power plant in a unique wetland in Srikakulam district, the local communities including traditional fisherfolk collectively opposed it. The state’s nexus with the private company was so strong that it even chose to use coercive power against the agitating public, resulting in innocent persons losing their lives.

It was Ritwick Dutta who came to the fisherfolk’s help to put forward their case at different judicial forums, culminating in the National Green Tribunal (NGT) which pronounced a landmark order upholding the local communities’ case and protecting the wetland.

Ritwick Dutta’s legal activism thwarted the government’s plan to set up a thermal power plant such as that one would evidently amount to hiding the government’s collusion with the private promoter and condoning its illegalities that would have damaged the health of the local communities and disrupted their lives.

Lately, the Union ministry of coal has embarked on an ambitious plan to auction coal and other mineral blocks to private companies. Considering that many such blocks are located in the Scheduled Areas, largely inhabited by Adivasis, it is mandatory that the ministry obtains the prior consent of the Adivasi Gram Sabhas, as required by both the PESA and the FRA, without which the auction process would be considered illegal. In many cases, mineral blocks have been auctioned in violation of the PESA and the FRA.

Even in economic terms, the so-called “economic benefits” of mining, as simplistically perceived by the government, would be minuscule compared to the economic cost of the loss of valuable forest wealth that mining causes, the loss of biodiversity on that account, its adverse impacts on major river catchments and, more important, the socio-economic cost of displacement of Adivasi communities and their cultural losses.

It is a matter of serious concern that India’s elite bureaucracy and the political executive that oversee them should remain totally illiterate about path-breaking research studies carried out on the social-cost-social-benefit evaluation of projects and the pitfalls of rulers imposing projects without any genuine public participation in decision making.

Political leaders and their civil servant cohorts are advised to go through a comprehensive study, The Economics of Biodiversity: The Dasgupta Review (February 2021) commissioned by the UK government to understand the economic value of biodiversity and the long-term implications of taking up projects that cause loss of biodiversity.

Incidentally, Ritwick Dutta coauthored a book with the present Union environment minister, Bhupender Yadav on Supreme Court on Forest Conservation in 2005, a highly informative compilation of the apex court’s judgments that provided a far-reaching interpretation of the relevant provisions of the constitution and the country’s forest conservation laws. To consider his legal activism to be against the public interest is nothing but a figment of imagination.

Sterlite protest

There are many other NGOs who have of late come under the FCRA scanner.

Tamil Nadu governor, R.N. Ravi, apparently speaking on behalf of the MHA, recently announced foreign forces intent on destabilising India’s economy were behind an NGO that activated the local community to protest against Sterlite company’s highly polluting Thoothukudi copper smelter plant that caused widespread public health damage.

Also read: Behind TN Governor’s Thoothukudi Protest Claims, the Story of BJP’s Ties With Vedanta

The state taking sides with Sterlite deployed coercive steps against the agitating people leading to 14 deaths. Considering that Sterlite’s copper smelter unleashed toxic pollution on the people residing in its vicinity, with regulatory authorities reluctant to impose restrictions on the unit’s operations, it was inane on the part of the local government not to expect a public agitation with or without an NGO’s help. However, there is a far more worrisome aspect of the Thoothukudi saga, which the Tamil Nadu governor conveniently chose not to mention or was blissfully unaware of.

Smoke billows from the site of protests against the Sterlite unit in Thoothukudi. Photo: PTI/Files

The foreign-listed Vedanta Group, of which Sterlite is a subsidiary, along with several other foreign-listed companies, were known to have funded both BJP and Congress, in violation of the FCRA, in exchange for quid pro quos in terms of policy changes and condoning illegalities.

Altering laws to benefit political parties

The sordid saga of how the present government at the Centre monetised the FCRA to benefit itself makes interesting reading.

Both the national political parties, namely, BJP and Congress, accepted donations from foreign sources year after year, in violation of the provisions of the FCRA of 1976 and its successor legislation, FCRA, 2010.

The Association for Democratic Reforms (ADR) and this author filed a case before the Delhi high court [WP(C) 131/2013] and the court pronounced a judgment on February 28, 2014, directing the home ministry to take appropriate action within six months, against the political parties for violating the FCRA. Both BJP and Congress chose to contest the judgment before the Supreme Court (SLP No 18190/2014). During the proceedings before the Supreme Court, following detailed arguments on our behalf, the two political parties had to withdraw their SLPs, as recorded in the court’s order dated 29-11-2016.

In the normal course, if the government had any respect for maintaining the integrity of the electoral process, it would have immediately proceeded to take action against the political parties including BJP, for violating the FCRA, especially in view of the fact that foreign donations to political parties can hurt the sanctity of our democracy, much more than in the case of anyone else receiving such donations.

Representative image of Indian currency notes. Photo: rupixen.com/Pixabay

Instead of this, the present NDA government quickly took the extraordinary step of retrospectively altering the laws that rendered foreign donations illegal in the first instance and stood in the way of foreign donations flowing into the bank accounts of the political parties in the future.

Ironically, the government introduced those amendments, not through a regular Bill that could be discussed by both Houses of Parliament, but through the backdoor means of the successive Finance Acts of 2016 and 2017. The amendments not only “regularised” the illegal foreign donations received in the past but also legalised all future donations flowing into the coffers of the political parties, if a foreign company could merely channel it through a subsidiary set up in India. As if this was not enough, the government went one step further to amend the Companies Act itself to relax the ceiling on private companies’ donations to political parties, opening the floodgates to both domestic and overseas business houses funding India’s elections.

Also read: ‘Foreign Funding to Parties, Which Modi Govt Greenlit, Real Danger to Democracy’

Making no secret of the political parties’ insatiable greed for company donations, the present NDA government further introduced an opaque system of Electoral Bonds through which anyone and everyone can channel donations to political parties, without the citizens of India having an opportunity, as required in Article 19, to know who is funding the political parties.

It is ironic that an ordinary citizen has to comply with all kinds of cumbersome Know-Your-Customer (KYC) requirements for a simple account opened in a bank but the political parties should go scot-free when they blissfully receive thousands of crores of rupees without having to answer anyone!

While we have separately contested the propriety of the government retrospectively amending the two FCRA legislations, prima facie, there is no ethical justification for legalising an offence already committed by a political party under the FCRA and for condoning foreign donations to be received in the future, as by whatever name one may call it, foreign funding of elections is unacceptable.

Why should companies, especially, foreign companies, give donations to political parties? Certainly not out of love for promoting democracy, but more for quid pro quos from a willing political executive to enable them in every possible way to profiteer, at the cost of the public.

It is distressing that the political parties in power, especially the present NDA government, should pretend to be concerned about prosecuting NGOs for FCRA violations on the ostensible ground that foreign agencies funding such NGOs would “destabilise” the economy but conveniently bend every statute to allow foreign agencies to give huge political donations that could have a far more deleterious impact on the nation’s security and the integrity of our democracy.

When the MHA goes to the extent of coercing civil society in the name of FCRA violations on the ostensible ground that foreign agencies are trying to destabilise the economy by promoting domestic legal activism, it leads one to a feeling that the government is also indirectly conveying its discomfort at judicial pronouncements that result in reopening project proposals that violate the law of the land.

Niti Aayog’s lack of understanding

A similar feeling emerges from a report released by Niti Aayog in June 2022 claiming that Rs 24,541.15 crore and 82,060 jobs had been lost due to five cases in which the Supreme Court and the National Green Tribunal temporarily halted or completely banned economic activities that violated environmental laws or had adverse environmental effects.

The aim behind the NITI Aayog and PMO's plan is to reduce government expenditure on autonomous bodies. Credit: PTI

Niti Aayog. Photo: PTI

It is a matter of distress that the government’s premier think tank, Niti Aayog, should attempt such a study in the first instance and proudly release it to the public, betraying its utter lack of understanding of the executive’s obligation to respect the law of the land and the executive’s lack of respect for the role of the judiciary as the sole constitutional authority to judge the legality of the executive’s actions.

Niti Aayog should have known that if there are economic losses in such cases, they are attributable to the public authorities that ignored the law of the land and undertook projects in ways that are prima facie illegal. Niti Aayog has highlighted a highly impressionistic estimate of the job losses arising from projects being delayed but has conveniently ignored the number of people displaced by a project losing livelihoods or the trauma suffered by them.

It is unfortunate that Niti Aayog, unlike its predecessor, Planning Commission, apparently lacks an understanding of the way projects need to be evaluated from the society’s point of view. The Project Appraisal Division of the erstwhile Planning Commission used to carry out a full-fledged social-cost-social-benefit appraisal of public projects. Apparently, the present Niti Aayog has no such pretensions about project evaluation. When Niti Aayog has openly expressed itself in favour of grooming a few private oligarchs into becoming “global champions“, it has no time to waste on understanding the societal impacts of projects, the need to insist that projects should comply with the law of the land and that the civil society should be involved as an important stakeholder in decision making. It was reported some time ago that Niti Aayog even expressed a feeling that “too much democracy” was a hurdle to “reform”.

While the government may take the technically correct stand that errant NGOs committing technical violations of the FCRA provisions should be proceeded against, it should see whether such violations involved any serious criminal intent. More importantly, the government should ponder over the amendments it has introduced in the FCRA and the Companies Act that tilt the balance of power in a democracy from the citizen to big businesses and the long-term adverse implications of foreign funding of political parties hurting the national interest.

When governments refuse to recognise the illegalities of their own decisions, find fault with those who point them out and in effect “shoot the messenger” that brings sane advice, and one should feel deeply concerned about the future of our democracy. The sooner the government realises it, the better it would be for the security of the nation.

E.A.S. Sarma is a former secretary to the government of India. 

As FRA Implementation Hangs Fire, J&K’s Nomadic Tribes Live in Uncertainty

J&K should have come under the purview of the Act since October 31. Yet there is no clarity as to by when it will be brought in the UTs.

Srinagar: For decades, the tribal communities of Gujjars and Bakerwals have faced marginalisation in Jammu and Kashmir. In recent years, these nomadic people have even been driven out of the forest areas of Jammu.

When the Centre extended the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2007 to J&K last October, the landless tribals had assumed they would finally get the rights they have been fighting for decades.

But that seems far from reality. The implementation of the law, also known as the Forest Rights Act (FRA), has not taken place, even after the passage of nearly three months.

Under the FRA, tribals get legal protection against eviction from forests. They are also entitled to other rights including cattle grazing, access to water resources, forest-based livelihood rights and minor forest produce rights.

The J&K law secretary Anchal Sethi said there has been no progress made on the implementation of the Act. “It has to be implemented by the forest department. But they are not clear on how to go about it,” he said.

According to Sethi, the law department will come in only when the forest department sends proposals for changes, if needed, in the rules envisaged in the Act. “We haven’t got anything from them so far. There is thus no progress on its implementation,” he said.

‘Stands implemented’

The commissioner and secretary of the J&K forest department, Sarita Chauhan, told The Wire on Monday that the law “stands implemented” in J&K since October 31. Asked if the department has completed the required procedures for rolling out the FRA and if tribals could apply for the rights guaranteed under it, Chauhan dropped the call she was on with this correspondent.

Also read: FRA Can Now Be Implemented in J&K – so Why Hasn’t It Been Implemented?

She did not respond to subsequent repeated calls from The Wire till Tuesday evening for comments.

A senior official in the forest department said the tribal affairs department has to ensure implementation of the Act. The department was set-up in J&K by the PDP government in 2015, as a nodal agency to ensure implementation of all measures and laws by different departments meant for the welfare of the tribal communities.

“The tribal department should push for it. But, nothing concrete has been done so far,” the official said, insisting that he does not wish to be named.

The secretary, tribal affairs, Abdul Majid Bhat said the law will be implemented. But he did not specify the timeframe for its implementation. “When a Central Act becomes applicable it automatically stands implemented,” he answered when asked.

Asked if the department has ensured completion of the procedures for its implementation, he said, “That will be done. When I will get (the direction) from the government of India that the law is applicable (to J&K), we will start it,” he said and dropped the line.

The FRA was implemented across the country in 2006, granting tribal communities the right of settlement in forest areas. Till then, they were described as “encroachers”.

The law became applicable to J&K on October 31, 2019, when J&K Re-Organisation Act, 2019, was implemented in the erstwhile state after the Centre scrapped the region’s special status on August 5 last year. The Act was one of the 106 central laws extended to J&K.

No clarity over cut off date

Another official in the office of J&K chief secretary said forest, tribal and revenue departments would be involved in the implementation of the FRA on the ground. He said the FRA gives “title rights” to land farmed by tribals or forest dwellers as on December 13, 2005, up to a maximum of four hectares. He, however, said it was not clear which date J&K would set as the cut-off date.

“The implementation of the law is a long drawn process. If at all the government shows seriousness, it would take a few months,” the official said, insisting not to be named, adding the Union tribal ministry had also proposed the constitution of chief secretary-head panel for J&K and Ladakh Union Territories to finalise the rollout of the FRA.

Also read: Government Withdraws Controversial Amendments to Forest Rights Act

At the district level, the committees headed by the deputy commissioners concerned would see its implementation, the official said, and added the government would be needed to run massive campaigns to educate tribals, classified as Scheduled Tribes, to apply for the rights.

Sustained harassment of nomadic tribes

As per the Census 2011, the Scheduled Tribe comprises more than 14 lakh of the total 1.25 crore J&K population. There are 12 Scheduled Tribes in J&K – the Gujjars and Bakerwals being the largest tribes found in the majority of districts of J&K, though largely concentrated in Poonch, Rajouri, Dooda and Reasi districts of Jammu. More than 90% of the Scheduled Tribe population comprises Muslims.

These nomadic people spend summers in high altitude pastures of Kashmir and Ladakh. In winter, they return along with their livestock to the plains of Jammu and different areas of Rajouri and Poonch. While Bakerwals primarily rear goats and sheep, Gujjars rear cattle.

Since 2015, when the BJP first rose to the power in J&K, the media has been reporting about harassment of these nomadic tribes in Jammu forest areas. The creation of the J&K tribal affairs department was seen as an attempt to address their concern. But the BJP, which was PDP’s ally in the previous government, continued with their opposition to settlement of the nomadic groups in the forests.

In February 2016, a young boy, Yaqub Gujjar, was killed in Samba district during the eviction of Gujjars. This prompted then Mehbooba Mufti-led government to issue an order, banning eviction of nomads without prior approval of the tribal affairs department.

But that did not go well with her ally. In fact, senior BJP leader Ram Madhav, during a press conference in Jammu, highlighted this issue and asked the J&K government to withdraw the order.

As these tribals continue to struggle to get the rights, last week, the former Union Secretary, E.A.S. Sarma flagged the issue of implementation of the FRA in J&K in a communication to the Union home secretary, A.K. Bhalla.

“Now that FRA has become applicable to J&K, there should be no problem whatsoever for the authorities in the UT to invoke the powers under that Act and grant both individual and community occupation rights to the Bakerwals and the other STs,” Sarma writes in the letter, a copy of which is in possession of The Wire.

Sarma, who served as secretary to the Union government in the ministries of power and finance before resigning from then Vajpayee government had raised the issue with President Ramnath Kovind and then J&K governor, N.N. Vohra, in separate communication in April 2018 and May 2018 respectively.

Talking to The Wire, Saram confirmed he wrote to the home secretary last Saturday. “The Modi government had promised to implement all good legislation in J&K. What happened to the promise now? Why aren’t they implementing this law (FRA) in J&K?” he asked.

Senior PDP leader and former tribal affairs minister, Zulfikar Choudhary said the nomadic groups were living in a “constant state of pain.” “They are not welcomed in plains by people in Jammu and are harassed by the forest department inside the forests. Where shall they go,” he said.

Suspension of Officer Who Inspected Modi’s Chopper ‘Questionable’

According to the former Union secretary, the officer was only performing his duty in view of complaints that the chopper was being used to carry cash, and that the EC should not give the PM ‘special treatment’.

New Delhi: A day after the Election Commission suspended Karnataka cadre IAS officer Mohammed Mohsin for checking Prime Minister Narendra Modi’s helicopter at Sambalpur in Odisha in his capacity of general observer, a former Union secretary has termed it a “highly questionable response”.

In a letter to Chief Election Commissioner Sunil Arora and the two Election Commissioners Ashok Lavasa and Sushil Chandra, former secretary E.A.S. Sarma has accused the Commission of not supporting the officer for performing his duty. The officer in question, Mohammad Mohsin, is at present serving as a secretary in Karnataka’s Backward Class Welfare Department and was posted in Sambalpur on election duty.

Officer suspended to searching PM’s chopper

The incident occurred while the prime minister was in addressing the rally at Sambalpur. According to media reports, “Mohsin approached the SPG stationed by the helicopter and requested a search. SPG demanded a document authorising him to do so. The search was allowed, but it delayed the PM’s departure by 20 minutes.”

Following this, the Commission suspended him for not acting in conformity with its instructions. PTI quoted an EC official as saying Mohsin’s action was “contrary to the instructions of the Commission concerned SPG protectees.”

In fact, it seems there are no instructions which exempt the transport vehicles of SPG protectees from being searched at election time.

Asked to provide the exact rule or exemption which Mohsin allegedly flouted, the EC spokesperson provided The Wire a copy of a March 2019 EC memo which references a Bureau of Civil Aviation Security note. However, the line about exemptions in that document applies only to commercial airports – which the Sambalpur airstrip is not.

In any event, the EC’s argument did not find favour with Sarma. He charged that “the Commission has invoked a strange rule that the election personnel should not inspect the vehicles of SPG-protected persons and resorted to finding fault with the concerned officer who had merely done his duty to make sure that no cash was being carried in the chopper.”

Also read: EC Suspends Officer for Checking PM Modi’s Helicopter in Sambalpur

‘EC shying away from treating PM at par with CMs’

In this regard, he alleged that the Commission of  “unnecessarily shied away from treating Shri Narendra Modi on par with the other political leaders including the chief ministers.”

“What applies to the chief minister of a state should apply equally to Shri Narendra Modi, as both Shri Modi and the chief ministers are doing election work of the same kind,” he reasoned.

He also wrote: “I find that the Commission appointed officers in the States have not hesitated to inspect the convoys of the Chief Ministers, especially those belonging to the opposition parties. They have even been inspecting the helicopters in which the Chief Ministers have been travelling. On the other hand, the Commission has been somewhat hesitant when it comes to the convoys accompanying Shri Narendra Modi.”

‘Odisha CM’s chopper searched the same day’

Sarma’s argument carries weight because on Tuesday itself, a flying squad inspected the helicopter of Odisha Chief Minister Naveen Patnaik in Rourkela, while he was sitting inside it. The team approached the chopper as soon as it landed.

In his letter, Sarma also pointed to the earlier alleged violation of Model Code of Conduct (MCC) by Modi, BJP president Amit Shah and Rajasthan governor Kalyan Singh. He wrote: “I am disappointed that the Commission has not responded in the matter. Inaction in the case of these three persons has already raised questions in the mind of the public about the impartiality of the Commission.”

Congress earlier complained to CEC about suspicious box in PM’s chopper

Sarma also noted that the opposition parties have demanded a verification from the Commission about a “suspicious box” carried in Modi’s convoy. He was referring to a Congress delegation meeting the CEC and seeking an investigation into a “suspicious black box” alleging that it was carried in Prime Minister Narendra Modi’s helicopter during his poll campaign in Karnataka’s Chitradurga.

In light of this complaint, Sarma said, “the Commission has invoked a strange rule that the election personnel should not inspect the vehicles of SPG-protected persons and resorted to finding fault with the concerned officer who had merely done his duty to make sure that no cash was being carried in the chopper.”

Also read: Editorial: The Election Commission’s Silence Is Complicity

‘Special treatment to PM militates against spirit of Constitution’

Referring to the PM, he also questioned, “Why should the Commission accord any special treatment to him and his convoy, especially when doubts have been expressed by the opposition parties about suspicious boxes being carried in the convoys accompanying him?”

The retired bureaucrat reminded the poll panel that “Article 324 casts an obligation on the Commission to conduct elections in a free and a fair manner. If the Commission had issued any executive instructions on SPG-protected persons, in my view, such instructions cannot and should not override the Constitutional obligation of the Commission. Such instructions militate against the spirit of the Constitution.”

He therefore urged that the PM be treated at “par with the other political leaders” and the suspension order of Mohsin be revoked.

Exclusive: Finance Secretary Received Gold Biscuits as Gift for Diwali But Failed to Order Probe

Hasmukh Adhia says he sent the expensive gift to the government’s toshakhana but has no explanation for why he did not order an investigation.

New Delhi: In a revelation that places a question mark over the government’s willingness to take on businessmen trying to bend the system, Union finance secretary Hasmukh Adhia received two gold biscuits of 20 grams each from a mystery giver during Diwali in 2016 but neither he nor his minister, Arun Jaitley, sought to order an investigation into the identity and motive of the individual who evidently sought to influence him.

Despite two years having passed, the identity of the giver is still unknown.

The mystery gift was valued at around Rs 2 lakh for the two gold bars. Adhia was then holding the key office of revenue secretary. His importance in the establishment’s pecking order may be gauged by the fact that he was one of only a handful of individuals who was privy to Prime Minister Narendra Modi’s November 8, 2016 decision to demonetise high denomination notes.

Adhia confirmed to The Wire that the mystery gold was sent to his residence in New Moti Bagh and claims that as he was not at home when it was delivered, he does not know the identity of the generous gift-giver. But instead of asking for a Central Bureau of Investigation inquiry into what could only be termed an attempt to ‘bribe and influence’ one of the most powerful bureaucrats on Raisina Hill, Adhia says he simply sent the gold bars to the government’s official toshakhana – a facility run by the Ministry of External Affairs where gifts above a certain value given to officials and ministers are meant to be deposited.

Barely 24 hours before confirming receipt of the gold, Adhia had denied receiving an expensive gift from controversial billionaire jeweller Nirav Modi and sending it to the toshakhana, as this correspondent had been informed by well-placed sources.

In a written reply to The Wire the same day, Adhia said “No”, and added ” Period”. He also wrote, “Wonder how you can do a story based on any defaulter group spreading such false stories.”

After reconfirming with its sources that a gift of gold had indeed been delivered to his house, The Wire asked Adhia two follow-up questions on March 7. One, if his office had submitted five gold bars post-Diwali to the toshakhana, and two, why his office did not mention who gifted the mystery gold. Diwali in 2016 fell on October 30.

In an email response to these questions, reproduced in full, Adhia said it had always been his practice not to accept any expensive gifts during Diwali.

Email sent by finance secretary Hasmukh Adhia to Swati Chaturvedi/The Wire

“On November 4, 2016, I had sent a letter to the Cabinet Secretary informing him about the following,” he said, adding:

“During the Diwali festival recently, I got certain gifts which are precious in nature and which cannot be accepted by me as per the Conduct Rules.  Since they were delivered at my house in my absence, I could not even refuse to accept them.  And it is difficult for me to identify who sent these gifts for me now.

I, therefore, want to surrender these gifts to the Government which can be deposited in the Toshakhana for disposal through auction or as per rules.  The list of items being surrendered is as follows:

1. One new IPhone 7
2. Two gold biscuits of twenty gram each (MMTC mark)”

These items, Adhia told The Wire, were accordingly sent to the toshakhana of the MEA (Ministry of External Affairs) “as per the directions of the Cabinet Secretary.”

While Adhia has denied that the gold was gifted by diamond king Nirav Modi, the identity of the giver is still a mystery since no investigation was ordered.

No record of gold having been deposited in toshakhana

Curiously, the MEA, which maintains a complete online registry of gifts deposited in the toshakhana has no entry for Hasmukh Adhia for the corresponding period (October-December 2016) or even the next quarter.

Asked about this discrepancy, Adhia confirmed that he had “deposited [the gifts] in [the] Toshakhana of [the] MEA” and that he has a “receipt of the same dated 07-11-2016 from them”.

Absence of probe questioned

When this correspondent asked Adhia over the phone to comment on why he had not ordered an investigation, he said, “The important thing is that I did not accept the gift. Such things are common during Diwali, and things like sweets we do not refuse out of courtesy, but then how many officials would have done what I did and send the gift to the Toshakhana?”

E.A.S. Sarma, a former expenditure secretary in the Union finance ministry told The Wire that “the least [Adhia] could have done is ordered an investigation into why the gift was sent and show the government’s anger against the sender”. Gold biscuits are not an ordinary gift, he added, and clearly the sender had an intent to bribe the officer, who was not holding an ordinary post.

“The promoter of a private company gifting gold biscuits to a senior government officer, that too an officer dealing with taxation, is a serious matter. While such gifts are required to be surrendered to the government, it is equally important that a stern message is conveyed to all such individuals and companies that the government would not tolerate such instances in the future. Ordering an enquiry would have conveyed such a message. Not ordering an enquiry would have not only condoned the company promoter but also given the impression that private individuals could get away with such acts of malfeasance,” he said.

Sarma narrated an incident from his service days of a senior bureaucrat, P.V.R.K. Prasad, who received a packet during Diwali when he was not at home. “It was sent by some contractor. His children opened the packet thinking it contained sweets and discovered it had cash worth 2-3 lakhs. Prasad ran with the packet to N.T. Rama Rao, who was Andhra Pradesh chief minister at the time, and an investigation was conducted and action taken against the contractor.”

Sarma added that if the person who sent the gift of gold to Adhia was not probed, it is likely that he was someone who wielded influence over the upper echelons of the government.

Note: This article was updated to include Adhia saying that he has a receipt from the MEA’s toshakhana for the gifts he deposited.

In Filling PSU Boards With Party Apparatchiks, Modi is Violating His Own Norms

The decision to nominate BJP workers as non-official directors makes a mockery of the party’s 1998 manifesto and the government’s own guidelines issued in 2015.

The decision to nominate BJP workers as non-official directors makes a mockery of the party’s 1998 manifesto and the government’s own guidelines issued in 2015.

It’s time for gas: In the last year, BJP party workers have been appointed as non-official directors of eleven odd CPSEs. (In picture, Sambit Patra at top right has been sent to ONGC). Credit: PTI, Reuters

In an interview to the Wall Street Journal (WSJ) in mid-2016, Prime Minister Narendra Modi repeated his favourite maxim, “minimum government, maximum governance.”

He specifically went on to state, “in a developing economy, state enterprises do have a role in some sectors. They have to be managed professionally and efficiently. We have given them operational freedom and brought in talent from the private sector as well to facilitate this.”

Considering that the NDA government had until that point largely remained inactive when it came to reforming India’s central public sector enterprises (CPSEs), these statements kindled a hope, though belated, among all those who expected the CPSEs to become professional, efficient and functionally autonomous. There was hope that CPSEs could eventually set optimal benchmarks of performance for the private sector and create a competitive environment conducive to economic efficiency. There was also an all-round expectation that Modi would indeed come up with a “surgical strike” at CPSE reform that would, in his own words, “reform, perform and transform” governance.

The measures taken by the government since then have belied that hope. It has been business as usual for the CPSEs or even worse.

During the first two years of its coming to power, the NDA government went about with a clinical precision, replacing the independent directors of several CPSEs and in the process, raising apprehensions about the decision’s underlying motives. One glaring and questionable intervention made by the NDA government was in the case of the Oil and Natural Gas Corporation (ONGC), which was more or less strong-armed into acquiring a sizeable share of Gujarat State Petroleum Corporation (GSPC), a state enterprise that was indicted by the Comptroller and Auditor General of India (CAG) for taking a series of dubious investment decisions that drove it into a debt trap. There is no doubt that the acquisition of a stake in GSPC hurt ONGC’s finances and its credibility as a ‘Maharatna’ company.

Keshav Dev Malaviya, a political visionary of a rare kind who presided over the Ministry of Natural Resources (later became Ministry of Petroleum and Natural Gas) founded ONGC as a CPSE in 1956. He was undoubtedly the father of the domestic petroleum industry in the country. He considered ONGC a symbol of self-reliance in hydrocarbon development and a bulwark against foreign oil companies that dominated the sector till they were nationalised during the 1970s. He perceived ONGC as a professional institution par excellence and would never have dreamed of it becoming an institution affected by political patronage and manoeuvring as seems to be the case today.

A year after Modi’s prophetic interview with the WSJ, his government took the patently retrograde step of nominating BJP spokespersons and party workers as non-official directors of eleven odd CPSEs, many of which are ‘Maharatna’ and ‘Navaratna’ companies, which are expected to have a great deal of functional autonomy and be managed by professionals with experience.

These include ONGC (Sambit Patra), Engineers India Ltd (Shazia Ilmi), Cotton Corporation of India Ltd (Rajika Kacheria), Hindustan Petroleum Corporation Ltd (Asifa Khan), Bharat Heavy Electricals Ltd (Surama Padhy), Bharat Petroleum Corporation Ltd (Tamilisai Sounderarajan), State Trading Corporation (Bharatsinh Prabhatsinh Parmar), Export Credit Guarantee Corporation Ltd (S. Malathi Rani), Andrew Yule & Company Ltd (Sipra Goon), National Handloom Development Corporation Ltd (Shikha Roy) and National Aluminium Company Ltd (K.G. Sinha).

No doubt, the credentials of each one of these persons are prima facie unimpeachable. However, the question that begs to be asked is to what extent will they be able to add value to the management of the CPSEs?

Tit for tat

One could argue that the government in power is well within its right to nominate any person as a director of a CPSE and there is nothing wrong in nominating a person the government thinks fit to discharge that function. After all, such a practice was also followed occasionally by the previous UPA government and, therefore, there is no reason why the present NDA government should take the high road.

To test the efficacy of this argument, one must consider Section 166 of the Companies Act which defines the responsibilities of a director of any company; whether he or she is a “functional”, “independent” or“non-official” director. This section expects a director to “act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment”. It also expects that the director will “exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgment”. Crucially, the director should “not involve in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company.”

This section requires the government to nominate any person who fulfills these criteria. While it no doubt provides a great deal of discretion, such a discretion cannot evidently be arbitrary and injudicious. The discretion so provided in the Companies Act enables the government to nominate persons who have sufficient domain knowledge relevant to the operations of a given CPSE.

In its 1998 manifesto, the BJP, led by Atal Bihari Vajpayee, committed itself to managing the public sector “professionally”, “with least interference by government”. It was then that guidelines were issued to discourage the nomination of political party representatives to CPSE boards. Accordingly, on February 15, 2009, the department of public enterprises (DPE) advised all ministries that “non-official directors are to be drawn from the public men (sic), technocrats, management experts and consultants, and professional managers in industry and trade with a high degree of proven ability.”

As the gap between words and deeds widens, the credibility of sloganeering will get eroded, a situation that any prudent leader should be wary about. Credit: PTI

As the gap between words and deeds widens, the credibility of sloganeering will get eroded, a situation that any prudent leader should be wary about. Credit: PTI

The guidelines on CPSEs issued by the DPE in August 2015 as well as those issued by the department of personnel and administrative reforms in February, 2017, unanimously stipulate that persons nominated as non-official directors of CPSEs should be “professionals of repute having more than 15 years of relevant domain experience in fields relevant to the company’s area of operation”, “persons of eminence with proven track record from industry, business or agriculture or management.”

The decision taken now by the government to nominate BJP workers as non-official directors clearly makes a mockery of the BJP’s own manifesto of 1998 cited above and the guidelines issued more recently by the NDA government itself.

What does a director do?

The role of a director nominated by the government to be on a CPSE board is somewhat complex. Does he or she safeguard the commercial interests of the CPSE itself or the interests of the government that nominated him or her to represent it? To strike a balance between these two objectives, which sometimes could come in conflict, is not an easy task. Lord Denning, probably the greatest English judge of modern times, famously said, “there is nothing wrong with a director being nominated by a shareholder to represent his interests, so long as the director is left free to exercise his best judgment in the interests of the company which he serves. But if he is put upon terms that he is bound to act in the affairs of the company in accordance with the directions of his patron, it is beyond doubt unlawful.”

In the instant case, the BJP worker has apparently two patrons, not one. Should he or she be answerable to the government or to the BJP, a party to which he or she belongs and apparently owes his or her nomination to that party? This introduces a third dimension of complexity that creates a greater scope for conflict of interest. Some of these nominee directors are also active spokespersons for the BJP on television. Would that role not run counter to their role as CPSE directors? Do they have sufficient domain knowledge that enables them to provide meaningful inputs to the management?

ONGC’s recent decision to acquire a stake in GSPC is a case in point. A nominee director in compliance with the obligations cast on him or her by Section 166 would have resisted the move of the government to force ONGC to agree to such an acquisition which is neither beneficial to the company nor in the overall public interest. However, the decision that ONGC should acquire a sizable stake in GSPC is one that is apparently imposed on the company by those whose primary objective was to bail out GSPC and obfuscate its shortcomings. A nominee director on the board of ONGC would have found it difficult to resist the extraneous pressure exerted by those trying to push through the deal at any cost.

It is not just the CPSEs which have been at the receiving end of such political interference. There seems to be an attempt to induct party workers into several statutory bodies. For example, it was reported that the present government had tried to appoint a BJP worker as a member of the National Human Rights Commission (NHRC) and it would have gone ahead with that move but for a PIL filed before the apex court.

If Modi is earnest about reforming the CPSEs, he should distance the government and his party from them, encourage professional management, competition and public accountability. CPSEs have a crucial role to play in nation building for decades to come and any tinkering with their management is likely to hurt the economy.

Slogans such as “Minimum Government, Maximum Governance” and “Reform, Perform and Transform” are laudable, easy to articulate but difficult to translate into tangible action. Intentions underlying such slogans are more important than the spoken words. Intentions will mean nothing, unless they get translated into genuine action. As the gap between words and deeds widens, the credibility of sloganeering will get eroded, a situation that any prudent leader should be wary about.

E.A.S. Sarma is former secretary, Ministry of Power, government of India.

FIR Against Nandini Sundar and Archana Prasad a Clear Case of Vendetta Politics, Say Civil Society Members

Eminent citizens have unequivocally condemned the Bastar police’s efforts to frame academics and political activists in the murder of a tribal villager.

Eminent citizens have unequivocally condemned the Bastar police’s efforts to frame academics and political activists in the murder of a tribal villager.

Effigies of Bela Bhatia, Himanshu Kumar, Nandini Sundar, Manish Kunjam and Malini Subramaniam held aloft by uniformed security force personnel in Bastar, Chhattisgarh, before being set on fire on Monday. Credit: Special Arrangement

Effigies of Bela Bhatia, Himanshu Kumar, Nandini Sundar, Manish Kunjam and Malini Subramaniam held aloft by uniformed security force personnel in Bastar, Chhattisgarh, before being set on fire on Monday. Credit: Special Arrangement

In what is being seen as a vindictive attack against human rights defenders by the Chhattisgarh (CG) police, many public intellectuals and political activists came out in support of New Delhi-based academics Nandini Sundar and Archana Prasad, and political activists Vineet Tiwari and Sanjay Parate. The four, along with Maoists, have been named as accused in the murder of a tribal villager, Shamnath Baghel, in Nama village of the Adivasi-dominated Bastar region of Chhattisgarh.

They alleged that the FIR looks like a clear case of vendetta politics against those who have been trying to highlight the excesses of the security forces in the name of containing Maoists. Most civil society members The Wire spoke to said the innumerable reported incidents of police violence on adivasis in Bastar have taken a toll on regular life in the central Indian state. Thus, the police, who have allegedly been spearheading the human rights violations cannot be seen as a neutral party in the case and that is reason enough to quash the case or hand over the case to the courts.

Activists who are familiar with developments in Bastar in the last few years said that there is a strong possibility that the Bastar police, under the aegis of the controversial inspector-general of police (IG), Bastar range, S.R.P. Kalluri – accused by many activists of brazen human rights violations that include murder, fake encounters, sexual violence etc. – has bullied Baghel’s wife to file the FIR.

Sanjay Parate, the CG state secretary of the Communist Party of India (Marxist) and one of the accused persons in the FIR told The Wire, “I see the FIR against me and others as a continuation of a series of attacks on democratic rights and free speech. The Bharatiya Janata Party has waged a war on all democratic tenets of India. People who are talking about the welfare of adivasis, who visit them occasionally, are being shunted out systematically. The Bastar police has branded us as Naxalites only because we visited a few Adivasi villages to enquire about police excesses there. They are framing false charges against human rights defenders and political activists.”

“When we went to this concerned village, Nama, we found that villagers had formed a troupe of around 200-300 villagers to contain Maoist violence. They kept guard at night. They complained to us that despite various requests to the police to open a camp in the village, the police did not pay any heed. So they formed a group called called Tangiya (axe). When we enquired further, we came to know that police camps existed only in those areas where mining activities are going on or there is a possibility of mining. The police camps are there to prevent Adivasi resistance against private mining activities. In Nama, since there is no mining, there is no police camp. The villagers were left at the mercy of Maoists,” said Parate.

“After the murder of Baghel, the police found an opportunity to frame us in a ridiculous way just because we visited the village. His wife is clearly being manipulated. It seems unbelievable to me that with her limited exposure and education, she has mentioned our individual names clearly in the FIR. We were in the village only for a few hours. The charges in the FIR just escapes any form of reason,” he added.

Background

The four accused persons were members of a fact-finding team which had visited Bastar in May and had come out with a damning report against both the Bastar police and Maoists while highlighting the pitiable plight of the adivasis who they thought are caught in the war between the police and the Maoists.

Since then, the police, on different occasions, have tried to corner them, especially Sundar and Prasad, by pressing different charges against them. Soon after the team filed its fact-finding report, the Bastar police, in an unusual move, had written to the vice-chancellors of Delhi University and Jawaharlal Nehru University where Sundar and Prasad are faculty members, that it is conducting an enquiry against them after it received a complaint from villagers stating that they tried to instigate them against police. In October, the police and security forces in Chhattisgarh took on an overtly political role and burnt effigies of activists, petitioners and a journalist, including Sundar.

It may be noted that Sundar has been highlighting state abuses in CG for many years. She was also one of the petitioners in the case which led to the Supreme Court banning the state-sponsored vigilante group Salwa Judum in 2011. More recently, her intervention in the Supreme Court, along with some others, led the CBI to accept that it has filed a charge sheet against the security forces and armed auxilliary forces for burning down three villages in Bastar and attacking human rights activist Swami Agnivesh and his convoy when he tried to visit these villages in 2011.

Earlier this year, the journalist Malini Subramaniam and the Jagdalpur Legal Aid Group (JLAG) were forced to leave Bastar after a series of attacks by vigilante groups, allegedly patronised by Kalluri, against them. Similarly, regional journalists have found themselves under attack by police for reporting human rights violations in CG. The police framing false charges against activists, journalists, and defenders of human rights is a topic that has gained much currency in public debates and discussions in CG.

Therefore, most civil society members saw the FIR against Sundar and others as yet another way of police to intimidate its critics.

Here is what some of the members with whom The Wire spoke to said.

Kavita Krishnan – polit bureau member of CPI (ML-Liberation), who had visited CG as a member of a fact-finding team to enquire into state abuses.

The clear thing is that Nandini Sundar was the one whose petition in the Supreme Court resulted in the strictures against Salwa Judum. Now because of her efforts and that of her team which had visited Bastar a few months ago, several fake encounters were exposed. Now because of her efforts the CG police’s involvement in burning of villages has also been exposed. So police retaliated first by burning effigies of these people and now by filing charges of murder. This is a fit case for the Supreme Court and human rights commissions to defend the human rights defenders. Who is going to defend the rights of human rights defenders? That is the real question.

Bela Bhatia – Bastar-based researcher

The situation in Bastar is getting worse day by day. The police have been systematically targeting these public intellectuals and political activists since the time they wrote a fact-finding report on the repressive state machinery. Time and again, we have pointed out the state government’s complicity in turning CG into a police state. Senior officials have been defending the Bastar police despite a series of accusations against it. You see the police defying all constitutional principles. Where they should be arresting people on suspicion, one finds that such civilians have been killed. This is increasingly becoming the case. It is a completely undemocratic state of affairs. A cloud of fear has been hovering around Bastar for many years now. Unless the police stop abusing its power and the Maoists put a hold to indiscriminate killings, the situation in Bastar cannot improve.

Sadanand Menon – senior arts, culture, and political commentator

“It is high time to revise the Indian Penal Code (IPC) and Code of Criminal Procedure (CRPC) to include certain kind of new clauses which will include murder of logic, murder of democracy, murder of reason. In that case, all these police officials should be charged with these particular crimes. They are making a mockery of the rule of law. Since the citizen has no initiative on all this, one just hopes that the courts will come out with rulings that will once and for all close this chapter of impunity enjoyed by the police.

My own hunch is that in states like Andhra Pradesh, Madhya Pradesh, CG, and Odisha, the police have a complete upper hand. It is pathetic that citizens do not react to this kind of bureaucracy and state administration that takes law into its own hands. This is going to lead to all sorts of drastic consequences. We need to stop the administration from going completely rogue like this.  

From the chain of events in CG, the question that rises uppermost in one’s mind is that who is going to police the police? They seem to have a total run of the country – dictating who is going to do what, who is to speak what, what film should one see. When the police itself goes lawless and illegal, we are sure to find ourselves in a deficit democracy.

E.A.S. Sarma – retired bureaucrat and one of the litigants in the Salwa Judum case

Chhattisgarh government is yet to implement the landmark police reforms ordered by the Hon’ble Supreme Court in the famous Prakash Singh vs Union of India case. It shows how the state has been reluctant to make its police force apolitical and accountable.

In 2007, the state had enacted a new law to amend the “colonial” Indian Police Act of 1861. However, some of the provisions of the new Act are more “colonial” in nature as they have reduced the accountability of the police to the magistracy. This has hurt the public interest. In a democratic system like ours, we cannot afford to have a police force that lacks public accountability.

While I do not know the facts of the case filed against Nandini Sundar and others, I can say with confidence that she and several other activists like her have always stood for safeguarding the interests of the adivasis and questioning human rights violations. Apparently, such a stance on her part and on the part of the other activists is not to the liking of the rulers of Chhattisgarh. Harassing activists working for the adivasis is a highly regressive approach and it erodes the credibility of the Chhattisgarh government.

Sanjay Hegde  prominent lawyer

In an FIR, you can say anything. The real question is does the allegation in the FIR amount to anything? The person who was killed was an anti-Naxal killed by a Naxal. There is no direct involvement of Nandini Sundar, Archana Prasad, Vineet Tiwari, and Sanjay Parate. There can’t be. There is no incitement of violence. None of the facts stated in the FIR constitute the ingredients of murder. It is obviously a tool of harassment. The remedy, of course, is to move the high court and seek a quashing of the FIR under section 482.

Manish Kunjam –  Communist Party of India leader based in Sukma, Bastar. A well-known critic of IG Kalluri, Kunjam was attacked at a press conference recently by police-backed vigilante groups

I am both surprised and scared that such a FIR can also be filed. People who were not present at the site have been named. They had gone to the village only once for a fact-finding report published five months before. This is a clear case of the police backlash against them because these are the same activists who exposed the role of police in burning down Tadmetla, Morpalli, and Timapuram (names of the villages) in 2011. The police has become so lawless that it is openly engaging in vendetta politics.

Kalluri is acting with criminal impunity and the Raman Singh government has to be held accountable for giving a free hand to him. All the seven superintendent of police (SP) of Bastar have absolutely no standing in front of Kalluri. Bastar is being run by his whims.

Vrinda Grover – prominent human rights lawyer

What we are seeing is a rogue state, a rogue senior police officer. There are many instances in which serious charges of abusing authority have been levelled against Kalluri. He has been accused of causing very grave harm to ordinary people. Those who are highlighting and bringing this to the attention of Supreme Court or National Human Rights Commission (NHRC) are now being attacked.

All sorts of vigilante groups are being set up in Bastar. This has been a continuing pattern for some time now. And because no institution is intervening consistently to stop Kalluri and hold him accountable for these abuses, there is a serious situation where you have a rogue IG of police.

The state government has been completely silent on the charges against Kalluri. It has the power to transfer him, at least till the enquiry is pending, but it has not done so. Therefore, we are led to believe that the government is complicit in the police crimes. When the prime minister visited CG recently, IG Kalluri was one of the few men who was specially taken by top officials to meet him. The government and the administration are emboldening him. If the IG of police is allowed to burn effigies of citizens, how can the state government not be complicit?

The NHRC had sent its investigation team to look into incidents of sexual violence committed by the CG police. The report was submitted earlier this year. The matter is not being brought up.

Therefore, it is important for our public institutions like courts to promptly intervene to ensure the proper functioning of democracy. The delay in response only emboldens the authorities who are misusing their power.

Statement by students of Delhi School of Economics

Nandini Statement Endorsed Final by The Wire on Scribd

Note: Nandini Sundar is married to one of the founding editors of The Wire.

Does Innovation Have to be Mass Produced?

Grassroots Innovation – Minds on the Margin are not Marginal Minds is a compendium of rural innovations encountered by Anil Gupta during his travels over the last couple of decades.

Grassroots Innovation – Minds on the Margin are not Marginal Minds is a compendium of rural innovations encountered by Anil Gupta during his travels over the last couple of decades.

Representational image. Credit: Michael Foley/Flickr CC BY-NC-ND 2.0

Representational image. Credit: Michael Foley/Flickr CC BY-NC-ND 2.0

Today, the Indian Institutes of Management (IIMs) are considered stepping stones to success and brilliant careers in the financial sector, be it here or in the US. Paying lip service to the almost-forgotten Gandhian concepts of sustainable consumption and village-centric solutions does not mean that one has to actually follow Gandhian economics in the age of globalised economies. Going against this trend is Anil Gupta, a professor at IIM-Ahmedabad. Instead of heading West, he has been travelling on foot to remote villages in India for over two decades, searching for simple innovative solutions to problems no one – and certainly not India’s elite scientific institutions – seem to care about.

Over the course of his travels, Gupta has created an impressive compendium of unsung grassroots innovation and founded the HoneyBee Network that connects innovators and innovations across India. The Honeybee Network was followed by the Society for Research and Initiatives for Technologies and Innovations, the Grassroots Innovation Augmentation Network and the National Innovation Foundation, all to support the scaling up of these innovations to more marketable products through an infusion of technology and standards. Today, no less than the president hosts a national innovation festival – a testimony to the fact that Gupta’s concepts have found support at the highest official levels.

Anil K. Gupta Grassroots Innovation – Minds on the Margin are not Marginal Minds Random House, 2016

Anil K. Gupta
Grassroots Innovation – Minds on the Margin are not Marginal Minds
Random House, 2016

I have travelled with Gupta to a few remote areas of Gujarat to see some of the simple innovations that have sprung up in the most unlikely of places. Many of us who have been following Gupta’s painstaking efforts to find such unsung innovators admire his tenacity and principled commitment to the cause. We have also had cause for despair – despite committed support from some of the best and highest of quarters, many innovations could not be scaled up to a level that is acceptable in the manufacturing sector. So were Gupta and the innovations over-hyped? Or have we got it all wrong, fixated as we are on corporate marketing mantras?

Gupta’s book Grassroots Innovation – Minds on the Margin are Not Marginal Minds makes you rethink some of the assumptions about manufacturing to scale. It is not a compendium of magical innovations but rather a collection of personal, psychological and philosophical reflections and his angst at the societal indifference to the problems of the poor, institutional inertia to solve their problems and an aversion to taking risks to back little-known innovators and innovations.

There are delightful glimpses of his personal journey as a student to a rural bank official, to the portals of IIM – the student Gupta who stubbornly refused to learn rote answers from a guide book for his English exam to receive higher marks, preferring instead to write his own English sentences, even if with mistakes. His first realisation of the rich knowledge of some of the poorest farmers was when he was in Bangladesh, on the invitation of their government to restructure their farm research and the committed Gandhian who continues unfazed by conventional marketing mantras. Or the stories of his encounters with the famed Indian bureaucracy – he met six secretaries before the sixth recommended a seventh – E.A.S. Sarma who mercifully understood the importance of Gupta’s concepts.

Nor does he mince words when it comes to disagreeing with Abraham Maslow’s famous hierarchal model of human needs, which states that one can afford to dabble in art or innovate creatively only after material needs are fulfilled. Nor does he hide his objections to the assumption of the National Rural Employment Guarantee Act (NREGA) that ‘unskilled labourers’ need to be provided work. The skills of rural poor are not recognised and many artisans and others are ‘deskilled’ when they are asked to cut stones or build roads under NREGA, he argues

Gupta’s book raises many pertinent questions. “Frugal solutions are not always seductive for scientists and policy makers and extension workers,” he writes, “perhaps these are not reassuring ideas for many because of their inherent democratic nature and ease of use without expert help. Lack of institutional support thus comes in the way of diffusion of such low-cost, easy-to-use innovations amongst those who need these most but may not have discovered them themselves.”

He asks if we should we ignore the needs of communities whose own solutions may not be optimal because the scale is limited? But then why do we need to manufacture on a large scale something that is a niche-specific solution? Why should we deny the legitimacy of those solutions which have neatly addressed a local problem?

Anil Gupta. Credit: iimahd.ernet.in

Anil Gupta. Credit: iimahd.ernet.in

The long tail of innovations implies that while a few ideas may diffuse widely, a very large number of diffuse only in limited numbers and some not at all. Many small innovations remain localised to their embedded niches. Will the goal of social, ecological and cultural diversity – which are vital for sustainability – be served well only if we developed solutions which diffuse widely?

We are quick to spout marketing mantras, but why do policymakers and scientists refuse to observe the problems of women engaged in labour-intensive tasks of plucking tea buds with hands, or transplanting paddy, using the same method that has been used for thousands of years? Do simple solutions have no place in the scientific landscape? Is a solution acceptable only if it is complex in nature? Gupta asks, “Should the complexity of a solution be what it makes it worthy of attention from scientific minds or policy makers?”

This is not a grab-and-quick-read book. It makes readers pause and reflect whether they too have been guilty of the inertia and marketing assumptions about technologies that meet the needs of some rural areas.

Which brings us back to question – so why are the elite in India, the growing urban middle classes supposed to care? “With alienation comes anger, frustration,” points out Gupta. “Is there any greater threat to democracy than making a lot of communities around the world feel that their unmet needs are of no concern to those who matter?”

That point is all the more relevant now, given the growing divide between the haves and have-nots in India, and the tendency to sweep under the carpet any signs of poverty and rural distress which don’t sit well with the image of India as an ‘almost-there Superpower’. In this context, Gupta’s book is a timely reminder to India, of the how the other half of the country continues to find its path despite official apathy and neglect.

T.V. Padma is a Delhi-based science journalist with a special interest in development-related science policies and research.