Thursday, November 10, 2011
The rejection of his recommendation means that his prestige, none too high at any time, will suffer a terrible blow. Had the recommendation been accepted, it would have landed not only the Government of India but also the President in a most embarrassing situation in the Supreme Court. The court would be entitled to examine the material on the basis of which the Council of Ministers advised the President, and the onus of justifying the reckless action would not be on the petitioners but on the Union of India.
A nine-member Bench of the Supreme Court definitely construed the scope of Article 356 of the Constitution, which empowers the imposition of President's Rule in the States, in the famous case of S.R. Bommai and others vs Union of India and others ((1994) 3 Supreme Court Cases 1). It went beyond State of Rajasthan vs Union of India ((1977) 3 SCC 592) on the scope of judicial review. The President, who is sworn to uphold the Constitution and the law of India, can be fully trusted to follow this ruling whenever a draft proclamation imposing President's Rule in any State is presented for his/her signature by the Union Council of Ministers. The Prime Minister and the other Ministers, who have also taken the oath to abide by the Constitution, would also appreciate the stringent conditions the court's ruling in the Bommai case has imposed for the exercise of power under Article 356. The court decided the case on March 11, 1994. But the detailed implications of that ruling have yet to seep in.
The ruling was followed by a verdict by a five-member Bench in the Bihar case Rameshwar Prasad vs Union of India ((2006) 3 SCC 1). In both cases, the test of a vote by the Assembly in cases of disputed majority was approved.
It must be borne in mind that the court's ruling in the Bommai case, which remains definitive, came in the wake of deep, persistent public disquiet on the abuse of Article 356, a fact that is now universally admitted. The commission on Centre-State relations, headed by Justice R.S. Sarkaria, noted in its report, submitted in 1988, the deep resentment that the abuse of this provision caused among the States. The States were treated under the Constitution with less consideration and less respect than a municipality. The Supreme Court ruled (in New Delhi Municipal Committee vs Union of India) that a municipal body cannot be superseded, without notice ( S.L. Kapoor vs Jagmohan (1980) 4 SCC 379). The court said:
“A committee so soon as it is constituted, at once assumes a certain office and status, is endowed with certain rights and burdened with certain responsibilities, all of a nature commanding respectful regard from the public. To be stripped of the office and status, to be deprived of the rights, to be removed from the responsibilities, in an unceremonious way as to suffer in public esteem, is certainly to visit the committee with civil consequences. In our opinion the status and office and the rights and responsibilities to which we have referred and the expectation of the committee to serve its full term of office would certainly create sufficient interest in the municipal committee and their loss, if superseded, would entail civil consequences so as to justify an insistence upon the observance of the principles of natural justice before an order of supersession is passed.”
The order of supersession was held to be “vitiated by the failure to observe the principles of natural justice”. The judgment was delivered on September 18, 1980. The NDMC's term was to expire on October 3, 1980. The judgment was based on the principles of administrative law, which require strict observance of the principles of natural justice for such executive action. They apply if a State government supersedes a municipal body. Should they not apply also if the Government of India ousts an elected State government and imposes direct Central rule through a presidential proclamation under Article 356 of the Constitution?
In an authoritative exposition in the Constituent Assembly of India on August 4, 1949, the Chairman of the Drafting Committee, Dr B.R. Ambedkar, said: “If at all they are brought into operation, I hope the President, who is endowed with these powers, will take proper precautions before actually suspending the administration of the provinces. I hope the first thing he will do would be to issue a mere warning to a Province that has erred, that things were not happening in the way in which they were intended to happen in the Constitution. If that warning fails, the second thing for him to do will be to order an election allowing the people of the Province to settle matters by themselves. It is only when these two remedies fail that he would resort to this Article. It is only in those circumstances he would resort to this Article”. ( Constituent Assembly Debates: Vol. ix, pages 176-177).
The Supreme Court's ruling in the Bommai case highlighted clearly the many and stringent conditions for the valid exercise of the power under Article 356. They are:
(1) Whether conditions in fact exist objectively which render it impossible to carry on the governance of the State in accordance with the provisions of the Constitution; even so, this power must be used sparingly and so as not to disturb the federal balance of power between the Union and States since federalism is part of the unamenable basic structure of the Constitution.
(2) The State's Assembly must not be dissolved before both Houses of Parliament have approved the proclamation made by the President under Article 356.
(3) Even after such approval it will be open to the courts to consider independently whether in fact conditions so existed as to warrant exercise of the power under Article 226; judicial review, which is also part of the basic structure of the Constitution, is available in respect of Article 356. It can be exercised by the High Courts and the Supreme Court. Once a prima facie case is made out, the burden of proof will lie on the Government of India to justify the action.
(4) The court will be entitled to requisition the records from the government containing the material on the basis of which the Council of Ministers of the Government of India tendered the advice to the President.
(5) The courts have the power to order an interim stay on the exercise of power under Article 356.
(6) Lastly, the courts have the power, if the proclamation is struck down as unconstitutional, to order the revival of the dissolved State Assembly and restoration of the dismissed State government.
These six propositions emerge very clearly from the judgments pronounced by the nine judges who sat on the Special Bench that heard the case.
Article 356 is based on Section 93 of the Government of India Act, 1935. On August 14, 1947, a day before India became independent, the Governor-General, in exercise of his powers under Section 8 (2) of the Indian Independence Act, 1947, made the India (Provisional Constitution) Order, 1947, adapting the Act of 1935 with important modifications, as a provisional Constitution of India while the Constituent Assembly was at work on a new Constitution.
This Order omitted the hated Section 93 completely. Thus, from August 15, 1947, until January 25, 1950, the country was governed without any provision in its constitution for Governor's rule or Governor-General's rule. This period witnessed communal riots, refugee influx, the Telangana armed rebellion and much else. Section 93 was thus proved dispensable for two and a half years.
Article 356 was adopted by the Constituent Assembly bearing in mind the abnormal conditions the country was passing through.
The following exchange between Ambedkar and Pandit Hriday Nath Kunzru in the Constituent Assembly deserves noting. Pandit Kunzru put a specific question to Ambedkar during that debate on August 4, 1949:
“May I ask my honourable friend to make one point clear? Is the purpose of Articles 278 and 278-A to enable the Central government to intervene in provincial affairs for the sake of good government of the provinces?
The Honourable Dr B.R. Ambedkar: No. No. The Centre is not given that authority.
Pandit Hriday Nath Kunzru: Or, only when there is such mis-government in the province as to endanger the public peace?
The Honourable Dr B.R. Ambedkar: Only when the government is not carried on in consonance with the provisions laid down for the constitutional government of the provinces. Whether there is good government or not in the Province is not for the Centre to determine. I am quite clear on the point.
Pandit Hriday Nath Kunzru: What is the meaning exactly of the provision of the Constitution taken as a whole? The House is entitled to know from the honourable member what is his idea of the meaning of the phrase ‘in accordance with the provisions of the Constitution'.”
Ambedkar referred him to the Government of India Act, 1935, which used this expression in Section 93. He, however, took care to emphasise the limitations:
“In regard to the general debate which has taken place in which it has been suggested that these articles are liable to be abused, I may say that I do not altogether deny that there is a possibility of these articles being abused or employed for political purposes. But that objection applies to every part of the Constitution which gives power to the Centre to override the Provinces. In fact, I share the sentiments expressed by my honourable friend Mr Gupte yesterday that the proper thing we ought to expect is that such Articles will never be called into operation and that they would remain a dead letter.”
Objective tests for the use of the power
I. In the Bommai case, Justice P.B. Sawant said in his judgment, with which Justice Kuldip Singh concurred: “Articles 278 and 278-A of the Draft Constitution referred to above correspond to present Articles 356 and 357 of the Constitution respectively. Thus, it is clear from Article 355 that it is not an independent source of power for interference with the functioning of the State government but is in the nature of justification for the measures to be adopted under Articles 356 and 357. What is, however, necessary to remember in this connection is that while Article 355 refers to three situations, viz (i) external aggression (ii) internal disturbance, and (iii) non-carrying on of the government of the States in accordance with the provisions of the Constitution, Article 356 refers only to one situation, viz., the third one. As against this, Article 352, which provides for Proclamation of Emergency, speaks of only one situation, viz., where the security of India or any part of the territory therefore, is threatened either by war or external aggression or armed rebellion. The expression ‘internal disturbance' is certainly of larger connotations than ‘armed rebellion' and includes situations arising out of ‘armed rebellion' as well. In other words, while a Proclamation of Emergency can be made for internal disturbance only if it is created by armed rebellion, neither such Proclamation can be made for internal disturbance caused by any other situation nor a proclamation can be issued under Article 356 unless the internal disturbance gives rise to a situation in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. A mere internal disturbance, short of armed rebellion, cannot justify a proclamation of Emergency under Article 352 nor such disturbance can justify issuance of proclamation under Article 356 (1), unless it disables or prevents carrying on of the government of the State in accordance with the provisions of the Constitution. Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other Articles in the same part of the Constitution” (Para 57, page 92).
Thus, mere internal disturbance, short of armed rebellion, cannot justify a Proclamation under Article 356. No such disturbance can justify the issuance of Proclamation under Article 356 (1) unless the situation prevents the carrying on of the government of the State in accordance with the provisions of the Constitution.
Likewise, Justice B.P. Jeevan Reddy, with whom Justice S.C. Agrawal concurred, remarked in words of strong disapproval as follows: “Since the commencement of the Constitution, the President has invoked Article 356 on as many as ninety or more occasions. Quite a performance for a provision which was supposed to remain a ‘dead-letter'. Instead of remaining a ‘dead-letter', it has proved to be a ‘death-letter' of scores of State governments and Legislative Assemblies. The Sarkaria Commission, which was appointed to look into and report on Centre-State relations, considered inter alia the manner in which this power had been exercised over the years and made certain recommendations designed to prevent its misuse. Since the Commission was headed by a distinguished Judge of this court and also because it made its report after an elaborate and exhaustive study of all relevant aspects, its opinions are certainly entitled to great weight notwithstanding the fact that the report has not been accepted so far by the Government of India” [Para 295, page 228].
They proceeded to quote extensively from the recommendations made by the Sarkaria Commission, which thus received the imprimatur of the approval of the Supreme Court. (Justice Sawant had also quoted from it.) The judges added: “The aforesaid recommendations are evidently the outcome of the opinion formed by the Commission that more often than not the power under Article 356 had been invoked improperly. It is not for us to express any opinion whether this impression of the Commission is justified or not. It is not possible for us to review all the ninety cases in which the said power has been invoked and to say in which cases it was invoked properly and in which cases, not. At the same time, we are inclined to say, having regard to the constitutional scheme obtaining under our Constitution, that the recommendations do merit serious consideration (Para 300, page 231).
“It is probably because he was of the opinion that the invocation of this power was not warranted in many cases, Shri P.V. Rajamannar, former Chief Justice of Madras High Court [who was appointed as the Inquiry Committee by the Government of Tamil Nadu to report on the Centre-State relations], recommended that Articles 356 and 357 be repealed altogether. [See para (8) in Chapter IX, “Emergency Provisions” of his report, submitted in 1971]. In the alternative, he recommended, safeguards must be provided to secure the interests of the State against the arbitrary and unilateral action of the party commanding overwhelming majority at the Centre. In other respects, Shri Rajamannar's views accord broadly with the views expressed by the Sarkaria Commission and hence, need not be set out in extenso” (Para 301, page 231).
In para 434 (1), page 296, the judges concluded: “Article 356 of the Constitution confers a power upon the President to be exercised only when he is satisfied that a situation has arisen where the government of a State cannot be carried on in accordance with the provisions of the Constitution”. (italics here as in the original).
More than one judge emphasised that the power must be exercised very sparingly. Justice S. Rathnavel Pandian said: “I am of the firm opinion that the power under Article 356 should be used very sparingly and only when the President is fully satisfied that a situation has arisen where the government of the State cannot be carried on in accordance with the provisions of the Constitution. Otherwise, the frequent use of this power and its exercise are likely to disturb the constitutional balance. Further if the Proclamation is freely made, then the Chief Minister of every State who has to discharge his constitutional functions will be in perpetual fear of the axe of Proclamation falling on him because he will not be sure whether he will remain in power or not and consequently he has to stand up every time from his seat without properly discharging his constitutional obligations and achieving the desired target in the interest of the State” (Para 8, page 66).
Justices Sawant and Kuldeep Singh observed as follows: “An allied question which arises in this connection is whether, notwithstanding the fact that a situation has arisen where there is a breakdown of the constitutional machinery in the State, it is always necessary to resort to the power of issuing Proclamation under Article 356 (1). The contention is that since under Article 355, it is the duty of the Union to ensure that the government of every State is carried on in accordance with the provisions of the Constitution and since further the issuance of the proclamation under Article 356 (1) is admittedly a drastic step, there is a corresponding obligation on the President to resort to other measures before the step is taken under Article 356 (1). This is all the more necessary considering the principles of federal and democratic polity embedded in our Constitution. In this connection, we may refer again to what Dr Ambedkar himself had to say on the subject. We have quoted the relevant extract from his speech in Paragraph 77 above. He has expressed the hope there that resort to Article 356 (1) would be only as a last measure and before the Article is brought into operation, the President would take proper precaution. He hoped that the first thing the President would do would be to issue a mere warning. If the warning failed, he would order an election and it is only when the said two remedies fail that he would resort to the Article. We must admit that we are unable to appreciate the second measure to which Dr Ambedkar referred as a preliminary to the resort to Article 356 (1). We should have thought that the elections to the Legislative Assembly are a last resort and if they are held, there is nothing further to be done by exercising power under Article 356 (1). We may, therefore, ignore the said suggestion made by him. But we respectively endorse the first measure viz. of warning to which the President should resort before rushing to exercise the power under Article 356 (1). In addition to warning, the President will always have the power to issue the necessary directives. We are of the view that except in situations where urgent steps are imperative and exercise of the drastic power under the Article cannot brook delay, the President should use all other measures to restore the constitutional machinery in the State. The Sarkaria Commission has also made recommendations in that behalf in paragraphs 6-8-01 to 6-8-04 of is Report. It is not necessary to quote them here. We endorse the said recommendations” (Para 109, page 121).
Justice K. Ramaswamy said: “In particular when the Union of India seeks to dismiss a State Ministry belonging to a different political party, there is bound to exist friction. The motivating factor for action under Article 356 (1) should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the constitutional machinery has failed. It is to reiterate that the federal character of the government reimposes the belief that the people's faith in democratically elected majority or coalition government would run its full term, would not be belied unless the situation is otherwise unavoidable. The frequent elections would belie the people's belief and faith in parliamentary form of government, apart from enormous election expenditure to the State and the candidates. It also generates disbelief in the efficacy of the democratic process which is a death-knell for the parliamentary system itself. It is, therefore, extremely necessary that the power of proclamation under Article 356 must be used with circumspection and in a non-partisan manner. It is not meant to be invoked to serve political gain or get rid of an inconvenient State government for good or bad governance. But only in cases of failure of the constitutional machinery of the State government” (Para 223, page 191).
The judges also emphasised that Article 356 must be construed in the light of the federal character of the Constitution. Justices Sawant and Kuldeep Singh observed as follows: “The above discussion thus shows that the States have an independent constitutional existence and they have as important a role to play in the political, social, educational and cultural life of the people as the Union. They are neither satellites nor agents of the Centre. The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule” (Para 99, page 115).
Justice Ramaswamy made similar observations: “Federalism envisaged in the Constitution of India is a basic feature in which the Union of India is permanent within the territorial limits set in Article 1 of the Constitution and is indestructible. The State is the creature of the Constitution and the law made by Articles 2 to 4 with no territorial integrity, but a permanent entity with its boundaries alterable by a law made by Parliament. Neither the relative importance of the legislative entries in Schedule VII, Lists I and II of the Constitution, nor the fiscal control by the Union per se are decisive to conclude that the Constitution is unitary. The respective legislative powers are traceable to Articles 245 to 254 of the Constitution. The State qua the Constitution is federal in structure and independent in its exercise of legislative and executive power. However, being the creature of the Constitution the State has no right to secede or claim sovereignty. Qua the Union, State is quasi-federal. Both are coordinating institutions and ought to exercise their respective powers with adjustment, understanding and accommodation to render socio-economic and political justice to the people, to preserve and elongate the constitutional goals, including secularism” (Para 247, page 205).
Justices Jeevan Reddy and Agrawal observed: “The fact that under the scheme of our Constitution greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States. It is a matter of common knowledge that over the last several decades, the trend the world over is towards strengthening of Central governments be it the result of advances in technological/scientific fields or otherwise, and that even in USA the Centre has become far more powerful notwithstanding the obvious bias in that Constitution in favour of the States. All this must put the Court on guard against any conscious whittling down of the powers of the States. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of the principle – the outcome of our own historical process and a recognition of the ground realities” (Para 276, page 216-217).
Subject to review
II. There was complete unanimity on the point that a Proclamation made under Article 356 is subject to judicial review. Justice A.M. Ahmadi recorded that both the Attorney General and counsel for the Union of India agreed that a Proclamation under Article 356 is open to judicial review. There was scope for argument on the area of justiciability. It is well settled that mala fides, for instance, will vitiate the Proclamation.
III. Article 74 of the Constitution reads thus: “(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in exercise of his functions, act in accordance with such advice. Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”
A Government of India which advises the President to sign a Proclamation under Article 356 runs a clear risk. While no court can call upon the government to disclose its advice, it is now settled beyond all doubt that courts have the power to summon the files and ascertain the material on which that advice was based. The impact of that disclosure on the nature of the advice is obvious. If the advice is irrational, politically motivated, perverse or mala fide , it will expose the Government of India to ridicule and invite the censure of the court. That will emerge clearly from the material shown to the court. No government should put the President in such a predicament, in a court of law.
Justices Sawant and Kuldeep Singh ruled: “The validity of the Proclamation issued by the President under Article 356 (1) is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union government to prove that the relevant material did in fact exist, such material may be either the report of the Governor or other than the report. Article 74 (2) is not a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction” (Para 153, page 148).
Justice K. Ramaswamy observed: “By operation of Article 74 (2) only the actual advice tendered by the Council of Ministers gets immunity from production and the court shall not inquire into the questions whether and if so what advice was tendered by the Minister. In other words, the records other than the advice tendered by the Minister to the President, if found necessary, may be required to be produced before the constitutional court” (Para 208, page 182).
Justice Jeevan Reddy and Agrawal held to the same effect: “Article 74 (2) merely bars an enquiry into the question whether any and if so, what advice was tendered by the Ministers to the President. It does not bar the court from calling upon the Union Council of Ministers (Union of India) to disclose to the court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74 (2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the Proclamation, the Minister or the official concerned may claim the privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of Section 123” (Para 434 (6), page 297).
Justice S. Rathnavel Pandian also agreed with this conclusion: “I find myself in agreement with the opinion of P.B. Sawant, J. on his conclusions 1, 2 and 4 to 8 with which B.P. Jeevan Reddy J. concurs in his judgment (speaking for himself and on behalf of S.C. Agrawal, J.) but so far as the reasoning and other conclusions are concerned, I agree fully with the judgment of B.P. Jeevan Reddy, J. Yet I would like to give my brief opinion on the constitutional question of substantial importance in relation to the powers of the President to issue proclamation under Article 356 (1) of the Constitution” (Para 2, page 65).
Thus a clear majority of six judges in the nine-member Bench rule that the material on the basis of which advice was tendered is liable to be produced in court.
IV. Justice Jeevan Reddy and Agrawal ruled: “Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause (1) of Article 356, it must be held, having regard to the overall constitutional scheme, that the President shall exercise it only after the Proclamation is approved by both Houses of Parliament under clause (3) and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the Proclamation” (Para 434 (3), page 296).
To the same effect is the ruling of Justices Sawant and Kuldeep Singh: “Since the provisions contained in clause (3) of Article 356 are intended to be a check on the powers of the President under clause (1) thereof, it will not be permissible for the President to exercise powers under sub-clauses (a) (b) and (c) of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will not be justified in dissolving the Legislative Assembly by using the power of the Governor under Article 174 (2) (b) read with Article 356 (1) (a) till at least both the Houses of Parliament approve of the Proclamation” (Para 153 (IV), page 149). Justice S. Rathnavel Pandian concurred with this point as is clear from his observations in para 2 at page 65.
Here again, there is a clear majority ruling that the Assembly must not be dissolved until both Houses of Parliament have taken a decision on the Proclamation.
On revival of Assembly
V. The Bommai case breaks new ground on the revival of the Assembly despite its dissolution and the dismissal of the State government. Hitherto it was believed, quite mistakenly, that even if the orders in respect of them are held to be void the status quo ante cannot be restored. In principle, there is no reason why striking down a void order should not have the same consequences in these matters as in all other; namely, nullify the action and restore the situation to what it was before the unconstitutional act was committed. In the Bommai case the Supreme Court has ruled categorically that if a Proclamation under Article 356 is struck down as invalid, the court can order revival of the dissolved Assembly and restoration of the dismissed government.
Justices Sawant and Kuldeep Singh ruled: “If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante to the issuance of the proclamation and hence to restore the Legislative Assembly and the Ministry” (Para 153 (50), page 149). Justice Rathnavel Pandian concurred on this point.
Justices Jeevan Reddy and Agrawal held to the same effect: “Now, coming to the power of the court to restore the government to office in case it finds the Proclamation to be unconstitutional, it is, in our opinion, beyond question. Even in case the Proclamation is approved by Parliament it would be open to the court to restore the State government to its office in case it strikes down the Proclamation as unconstitutional. If this power were not conceded to the court, the very power of judicial review would be rendered nugatory and the entire exercise meaningless. If the court cannot grant the relief flowing from the invalidation of the Proclamation, it may as well decline to entertain the challenge to the proclamation altogether. For, there is no point in the court entertaining the challenge examining it, calling upon the Union government to produce the material on the basis of which the requisite satisfaction was formed and yet not give the relief. In our considered opinion, such a course is inconceivable” (Para 291, page 226-227).
In the summary of their conclusion, the judges ruled: “If the court strikes down the Proclamation, it has the power to restore the dismissed government to the office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the court has the power to declare that acts done, orders passed and laws made during the period the Proclamation was in force, shall remain unaffected and be treated as valid. Such declaration, however, shall not preclude the government/Legislative Assembly or other competent authority to review, repeal or modify such acts, orders and laws” (Para 434 (8), page 298).
VI. The Supreme Court also opened a new vista for challenge to unconstitutional action by holding, by a clear majority, that it has the power to grant interim relief. Justice Sawant and Kuldeep Singh observed as follows:
“The further important question that arises is whether the court will be justified in granting interim relief and what would be the nature of such relief and at what stage it may be granted. The grant of interim relief would depend upon various circumstances including the expeditiousness with which the court is moved, the prima facie case with regards to the invalidity of the Proclamation made out, the steps which are contemplated to be taken pursuant to the proclamation, etc. However, if other conditions are satisfied it will defeat the very purpose of the judicial review if the requisite interim relief is denied. The least relief that can be granted in such circumstances is an injunction restraining the holding of fresh elections for constituting the new Legislative Assembly. There is no reason why such a relief should be denied if a precaution is taken to hear the challenge as expeditiously as possible taking into consideration the public interests involved. The possibility of the delay in disposal of the challenge cannot be ground for frustrating the constitutional right and defeating the constitutional provisions. It has, however, to be made clear that the interlocutory relief that may be granted on such challenge is to prevent the frustration of the constitutional remedy. It is not to prevent the constitutional authority from exercising its powers and discharging its functions. Hence, it would be wholly impermissible either to interdict the issuance of the Proclamation or its operation till a final verdict on its validity is pronounced. Hence, the normal rules of ‘quia timet' action have no relevance in matters pertaining to the challenge to the proclamation. To conclude, the court in appropriate cases will not only be justified in preventing holding of fresh elections but would be duty-bound to do so by granting suitable interim relief to make effective the constitutional remedy of judicial review and to prevent the emasculation of the Constitution” (Para 115, page 124).
In a summary of their conclusions they ruled categorically: “In appropriate cases, the court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the court will not interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation” (Para 153 (6), page 149). This conclusion was also endorsed by Justice S. Rathnavel Pandian.
Justices Jeevan Reddy and Agrawal also expressed their concurrence with this conclusion: “In the light of reasons given and conclusion recorded hereinabove, we find ourselves in agreement with the conclusions 1, 2 and 4 to 7 in the judgment of our learned Brother Sawant, J., delivered on behalf of himself and Kuldip Singh, J. We are also in broad agreement with conclusion 8 in the said judgment” (Para 435, page 299).
To sum up, what the Supreme Court did is to make judicial review of the Proclamation under Article 356 far more effective by circumscribing the conditions in which the Article can be invoked; it asserted the right to call for the production of records on the basis of which Union Council of Ministers advised the President; put a restraint on the dissolution of the Assembly prior to parliamentary ratification of the Proclamation; asserted the court's power to order revival of the Assembly and the restoration of the government, even after Parliament has approved the Proclamation, if the court finds them to be unconstitutional; and, not least, it asserted the power to grant interim relief, to prevent the holding of elections to the Assembly in order to defeat a legal challenge to the Proclamation under Article 356 by which the Assembly had been dissolved.
These are all very substantial gains; very substantial guarantees against abuse of power and for the maintenance of the federal structure of the Constitution.
When Governor H.R. Bhardwaj recommended imposition of President's Rule in Karnataka, he revealed either his ignorance of the law – very understandable given his intellectual equipment – or his decision to flout the law; more likely than not the former. His retirement from any public office has been long overdue. Given the Government of India's brusque rejection of his report, with what self-respect can be continue to occupy the Raj Bhavan in Bangalore?
The ILO has been one of the few organisations that have, without ruffling too many feathers, tried to convey gently but firmly to governments the world over that the effects of the recession are far from over and that ignoring them could lead to a variety of consequences. A recent report, titled “Equality at Work: The continuing challenge”, looks at trends over the past four years and unravels many features that, perhaps, were earlier not looked at with the keenness they deserve.
The report is mainly on discrimination with regard to access to jobs. Worryingly, it has become the rule rather than the exception, exacerbated by the crisis that has had a differential impact on sectors in the economy and has also affected people differently. The report states the obvious to an extent. The risk has not been uniform – it has affected the low-skilled, the migrant, women and even young job aspirants, especially those who are not highly skilled but have had to enter the job market out of sheer necessity. The impact of the downturn on export sectors in many countries has severely affected women, who have been forced into informal forms of employment as a result. They also face acute discrimination in terms of the nature of employment, remuneration, benefits, working conditions, and so on. On an average, their wages are 70 to 80 per cent less than that of men and they “continue to be over-represented in low-income jobs”.
What is of equal concern is that women are increasingly being denied basic entitlements that were taken for granted earlier, such as maternity leave and related benefits. Several equality bodies, says the report, have observed increased discrimination against women in the matter of maternity. Dismissals from jobs on the issue of pregnancy and nursing, non-provision of time for nursing, withholding of pre- and post-natal benefits, denial of promotion, and refusal to allow workers to return to posts they occupied before going on maternity leave are just some forms of harassment faced by women at the workplace. The problem is more for those working in export processing zones.
The report highlights the growing incidence of sexual harassment at the workplace. According to surveys, women most vulnerable to such incidents were financially not independent, single, divorced or migrant women. In general, migrant workers across the globe were particularly affected by the economic crisis – they either had less work or faced deteriorating working conditions, xenophobia and even violence. Some countries, the report stated, excluded migrant workers from social insurance programmes and long-term portable benefits such as old-age pensions.
The report also says that hostile political discourse in some countries, probably alluding to recent anti-immigrant pronouncements made by certain leaders of the developed world, has aggravated discriminatory tendencies. Populist policies too, it says, aggravate xenophobic attitudes towards migrants. As compared to those in more regular forms of employment, migrant workers suffered more job losses. This was partly because they were employed in sectors that had been worst affected by the downturn, such as construction.
In general, many countries lowered their quotas for economic migrants. Quoting various studies and reports, the ILO report says that countries such as Australia, Thailand, Poland and the United Kingdom restricted immigration or devised ways to increase the restrictions on the entry of work-permit holders and also their rights and entitlements once they arrived. The report found that the employment gap between immigrants and native workers increased in the years between 2007 and 2009.
Alarmingly, over the past four years, there has been a rise in discrimination against men and women on religious grounds. The report does not specify which religious denomination suffers from discrimination, but it is not difficult to guess, given the contemporary discourse regarding religious extremism.
The impact of debatable income transfer programmes, which place conditions such as child attendance in schools and parents keeping their appointments with health centres, has not helped reduce poverty as such schemes do not address the determinants of economic vulnerability, argues the report quoting a United Nations survey. And, apart from the direct causes of economic vulnerability, factors such as racial, ethnic and gender discrimination exacerbate existing conditions. The irony is that while nations and caucuses such as the Group of Twenty (G-20) have committed themselves to addressing the social dimensions of globalisation following the Global Jobs Pact, adopted by the ILO in 2009, little has been achieved on the ground.
Even the stimulus measures have been disproportionately distributed, with countries choosing to focus on sectors that are male-dominated. And the stimulus responses have had the result of indirectly excluding vulnerable groups from the stimulus measures. In Germany, the report says, two recovery packages targeted sectors with a 78 per cent male and 22 per cent female workforce. Sectors that were to receive financial support from the government included the automotive industry, medical technologies, and construction and financial intermediaries, which employed men in large numbers.
A 2010 study, says the report, showed that the neglect of female-dominated sectors, including the services sector, posed a long-term risk to women's employment. A decline in female employment in the long run can be a distinct possibility, it warns. Even in the United States, where the stimulus package has had a mixed impact on vulnerable groups, an Ohio State University report in 2009 noted that substantial funding given to infrastructure projects could disadvantage racial minorities and women. African Americans, who represent 13 per cent of the population, and women, who comprise nearly half the population, held only 6 per cent and 9.4 per cent of construction jobs respectively. The sharp increase in unemployment in the U.S. since the crisis in 2008 has not affected communities uniformly. The rate of unemployment among African Americans was almost twice as high as among the white population, and the gap widened after the crisis. Similar employment gaps were seen in Europe as well. Even in countries where race categories were self-reported, as in Brazil, studies showed that the unemployment rate among the black and brown workers was higher than among the white workers. The former, who represented 45.3 per cent of the population, accounted for 50 per cent of the unemployed.
The report cautions that a joint paper of the ILO and the International Monetary Fund (IMF) had, in 2010, warned that a premature and early push for consolidation would damage macroeconomic growth and subsequently lead to larger deficits and debts. In essence, what the report seems to be saying and reiterating is that governments should not cut down on social spending, especially when dealing with the economic crisis.
However, not all pressures are from inside. A report by the International Trade Union Confederation (ITUC) has noted that the IMF lending agreements in the case of Latvia and Ukraine are eliminating investments in education and could leave behind a “lost generation” of young people without adequate skills for employment. Latvia, along with Greece and Ukraine, has initiated fiscal consolidation plans with severe deficits. Interestingly, while social spending and welfare measures bear the brunt, the budgets of labour administration such as inspection services and those of bodies that deal with discrimination issues get compromised. And this, says the report, could be one of the worst social consequences of the economic crisis. While some countries, in particular the Scandinavian countries, have consciously created institutions to deal with these matters, the trend towards reduced social spending appears to be the norm.
Many countries have not adopted the legal provisions to prohibit common forms of gender discrimination. The right to equal remuneration for women and men for work of equal value, as embodied in Convention Number 100, has not been incorporated in the national laws of many countries. The concept of remuneration also does not encompass all forms of compensation, including wages and other benefits. Women, the report says, are a long way from achieving gender equality in the labour market. Here again, many Scandinavian countries have made conscious efforts to increase boardroom participation for women through a system of quotas.
Then, of course, there is the issue of unpaid household work which does not reflect in statistics on gender pay gaps. According to estimates given at the 2009 session of the International Labour Conference, the value of unpaid household work could be equivalent to half the gross domestic product (GDP) of a country. While reviewing maternity legislation last year, the ILO found that maternity benefits provided by many countries were insufficient. Only 39 per cent of African countries were found to provide benefits in accordance with ILO standards, while in Asia, only two of the 23 countries reviewed matched up to the standards. Several equality commissions worldwide have found that discrimination against women on maternity matters continues to be pervasive in spite of long-standing laws, says the report. The lack of adequate paid leave too was an issue in several countries.
What the report recommends as a remedy is not enough. While there has been an ostensible increase in equality policies and harmonisation of national legislation with ILO conventions, what is lacking is a continued commitment and investment of resources. Almost all ILO declarations – such as the Global Jobs Pact and the Declaration on Social Justice for a Fair Globalisation – are lofty and well-meaning, but making them workable depends on policies that nations adopt.
The ILO would ideally like to pay particular attention, as it says, to ensuring equal remuneration for men and women, elimination of racial and ethnic discrimination, and equitable treatment of migrant workers. It would also like to see more countries ratify in spirit the core conventions on equality. But one major obstacle is the availability of adequate information on the different types of discrimination and their intersections. The available information suggests that the situation is bad and that governments should intervene. What U.N. agencies, including the ILO, have been doing, post-crisis, is to warn governments repeatedly not to resort to extreme measures of fiscal consolidation. Successive global reports on unemployment have warned of social tensions and unrest. The present report is yet another wake-up call.
A major paradox is that China, which has frequently pledged to eschew a hegemonic rise, is just as frequently accused of tracing a hegemonic path to superpower status. Surely, this can be partially explained by the sense of resentment among China's neighbours over its dramatically rapid rise as an economic powerhouse with an enormous military potential.
The second paradox in the region is the diplomatic ease with which Vietnam is courting the United States in a bid to keep China in check in the South China Sea region. In the process, the highly chronicled story of Vietnam being subjected to imperial pressures from the U.S. just a few decades ago looks like a non-event of recent history. The dramatic turnaround in Hanoi's equation with Washington should rank very high among the early-21st century examples of the old adage that global politics is all about the interplay of national interests and not about any permanence of friends or foes in inter-state relations.
In prime focus on the diplomatic scene in East Asia, by June 20, were the dissonant notes, independent of each other, from Vietnam and the Philippines on one side and from China on the other. Both Vietnam and the Philippines accused China of being domineering in its attitude towards the freedom of navigation and natural-resource exploration along the South China Sea. China's responses, somewhat nuanced in respect of these two neighbours, bear similarity in substantive terms.
Amid this latest flare-up of tensions, Hanoi has started referring to the South China Sea as “the East Sea”. Manila, with a deeply chequered history as a U.S. ally, now refers to the South China Sea as “the West Philippine Sea”. Unfazed, Beijing has asserted that “South China Sea is a name well recognised by the international community”.
At the same time, the international community has, in recent years, come to express routine “concerns” over the inter-state “disputes” about sovereignty in regard to the Spratly and the Paracel Islands that dot the South China Sea.
On June 7, the Chinese Foreign Ministry was emphatic in stating once again that “China has indisputable sovereignty over the South China Sea Islands and adjacent waters”. In a follow-up comment on Vietnam's assertions of “sovereign and jurisdictional rights” in the same waters, China reaffirmed its position.
While Vietnam challenges China's “sovereignty rights” over the Paracel Islands, Hanoi is not alone in disputing Beijing's claims to the Spratlys on the basis of historical and traditional realities. The Philippines, Malaysia, Brunei and Taiwan, a non-sovereign and non-state actor, are the other claimants.
Also well-chronicled is the shared belief of all these players, based on some scientific surveys as also speculation, that the South China Sea waters are rich in natural resources, especially oil and gas, besides being a premier maritime domain for international trade in goods and services.
The latest round of tensions began on May 26 when Hanoi alleged that a Chinese maritime-surveillance vessel “cut the exploration cables of Binh Minh 02 seismic vessel of Vietnam National Oil and Gas Group (PVN)”. Beijing was quick to respond, saying that Vietnam's oil and gas explorations had “undermined” China's interests and jurisdictional rights in the South China Sea area.
In the same breath, Beijing reaffirmed its “commitment” to safeguarding peace and stability in that maritime domain. However, Beijing was no less emphatic in saying that the relevant Chinese authorities had only acted in accordance with “normal marine law-enforcement and surveillance activities in China's jurisdictional sea areas”.
It was in this climate of tensions that Vietnam utilised the Asia Security Summit in Singapore in early June to demand that China respect the jurisdictional rights of its neighbours in the South China Sea area. The Philippines followed suit at that summit. The diplomatic row, aired publicly by the Defence Ministers of these countries, showed no sign of abating. On June 9, Hanoi said the cables of a 3-D seismic exploration vessel, charted by Vietnam's PVN, were cut by a Chinese fishing vessel. As before, the PVN vessel was operating within the maritime limits of Vietnam's continental shelf and exclusive economic zone, Hanoi asserted. Going a step further, Hanoi said the objective behind “these systematic acts by the Chinese side” was to raise a dispute over “an undisputed area”.
Hanoi also argued that Beijing's goal now, “unacceptable to Vietnam”, was to gain international recognition for “the Chinese claim to the ‘nine-dotted line' in South China Sea”. Hanoi's follow-up argument was that the line, as illustrated in a map said to have been presented by China to the United Nations Secretary-General on May 7, 2009, was “totally illegal”. Cited in support of this dim view was Hanoi's interpretation of the United Nations Convention on the Law of the Sea (UNCLOS).
Dismissing Hanoi's June 9 version and arguments, the Chinese Foreign Ministry said: “As is known to all, China has indisputable sovereignty over the Nansha Islands and the adjacent waters. Chinese fishing boats have been operating in the waters off [the relevant] Vanguard Bank for generations. While conducting normal operations in the above waters on the morning of June 9, the Chinese fishing boats were illegally chased away by armed Vietnamese ships. Amid the chase, the fishing net of one of the Chinese fishing boats tangled with the cables of a Vietnamese oil and gas exploration vessel, which was operating illegally in the same waters. Regardless of the safety of the Chinese fishermen, the Vietnamese vessel dragged the Chinese fishing boat for more than one hour. … The Chinese fishermen were forced to take the initiative to cut off the fishing net.”
Beijing urged Hanoi to “stop all actions that violate China's sovereignty, endanger Chinese fishermen's lives and properties, and complicate and expand disputes”.
In the shadow of such a new showdown, Vietnam found a kindred soul in the U.S. during their prearranged annual Political, Security and Defence Dialogue, which took place in Washington on June 17. Hanoi expressed satisfaction that the U.S. disfavoured “coercion or the use of force” – the code Vietnam uses for its perception of China's options for an “assertive” rise.
Matching the new mood in the Hanoi-Washington entente, the Philippines President Benigno Aquino expressed satisfaction over the U.S. “assurance of support” for the position of the Philippines on the South China Sea “disputes”. And, Manila began rallying support among the 10-member Association of Southeast Asian Nations (ASEAN) for a common stance in facing China.
Four ASEAN countries dispute the idea of Beijing's exclusive sovereignty over the South China Sea. The ASEAN now wants to engage China for converting their nearly decade-old joint declaration on South China Sea issues into a binding “code of conduct”.
It is in this situation that Manila has now floated the idea of “a rules-based system” of ensuring peace and stability across the South China Sea. And, with the U.S. having identified, about a year ago, this very same maritime domain as a vital area of America's “national interest”, Beijing and Washington may soon face a litmus test of leadership in this zone.
Wednesday, June 8, 2011
Africa has a bright future and the sooner the world gets behind its talk of the Dark Continent, the better off it will be. Its great resources are attracting everybody there. There are more than sixty billion dollars of annual investment now being laid out as the OECD brings out. But Africa no longer wants to be a passive supplier of the wherewithal of global expansion and the hewer of wood and drawer of water. A new generation of professionals and business men have arrived and the governance deficits are declining. South Africa, the melting in the Maghreb and many other examples are there for all to see.After a meeting of the Define network of the OECD I was asked to attend an Africa afternoon in Paris. Senior African policy makers were highly articulate on the need of FDI in Africa to have commitments to the economies on a long term basis rather than a lets get ours and go attitude.
Colonial terms were not only unacceptable, they were to be a bad memory of the past. Africa wants its place in the contemporary debates on modern corporate governance and the social responsibilities of business. The OECD was mounting a mission and my plea was that data on this aspect now demanded by global corporate governance standards as in the discussions of the International Chambers of Commerce should be available. Indian companies by now have about ten percent of the FDI and its growing. The experience of some who have a tradition of community service at home is that African societies have a strong sense of community and with peace tend to take advantage of any community initiatives more so than elsewhere.Most land based investments in Africa tend to replace old sources of food and water for example and newer initiatives such that with replacement the communities are empowered to rebuild these resources and meet basic needs more efficiently would be highly appreciated. This would also extend to the education and health sectors. Also resource conserving strategies of doing business and a concern for the environment would go far. India has the experience in its own quests and would do well to share it.
The monies we are placing on the table should be used for building public led public private partnerships for enduring relations for the future.
The naval muscle-flexing by Washington and Beijing in the last few weeks - in North-east and South-east Asia — reflects a rapid evolution of the strategic environment in our Asian neighbourhood.
The US and Chinese naval muscle-flexing in the waters of the Korean Peninsula and the visit of the US aircraft carrier George Washington to Vietnam last week point to a historic shift in Asia's international relations.
As old partners — China and the United States — try to stare down each other, new alliances are being forged between former adversaries — Vietnam and America. That this rearrangement has little do with ideology should draw some of our defence decision-makers out of the time warp they seem to be caught in. After all, China and Vietnam are among the few communist states left in the world.The current shift could be as consequential as that in the early 1970s. After more than two decades of war and conflict with Chinese communists and refusing to recognise the People's Republic as the legitimate representative of China, Washington reached out to Beijing in 1971. As Washington played the China card against the Soviet Union, the rest of Asia ended its hostility to Beijing and welcomed its integration into the international system.The Sino-American partnership against Moscow survived the collapse of the Soviet Union at the turn of the 1990s. As the economic interdependence between the two deepened in the last decade, some American analysts made the case for an informal Sino-American political condominium called “G-2”. Beijing's new assertiveness on a range of issues, however, shattered these hopes.
China's muscular military and foreign policies have put it at odds with its neighbours. The smaller nations of Asia are coping with the rise of China through internal and external balancing.
Internal balancing is about building one's own military capabilities. According to the authoritative Stockholm International Peace Research Institute, arms purchases by the South-east Asian nations have doubled in the period of 2005-09 in comparision to the previous five year period.External balancing involves combining one's own capabilities with those of a great power. Most of China's neighbours are turning to the United States for protection against a rising China. Japan and South Korea, who seemed to down play their traditional alliance with the United States in recent years, have in the last few months decided to re-embrace the United States. Many of them also want to expand their defence cooperation with India.
As America reaffirms its primacy in Asia, a rising China is unlikely to back down. Beijing, instead, will seek to step up its own military capabilities further vitiating the regional security environment.
Asia's new military dynamic means India can no longer afford its current laidback approach to military modernisation. Nor can New Delhi ignore the growing demands from its friends and partners to contribute to Asian security amidst the rise of China and the perceived decline of the United States.Most of Asia sees India's emergence as a valuable factor in constructing a stable Asian order. New Delhi's problem has not been a shortage of money but the lack of strategic imagination. The absence of a purposeful defence leadership has emerged as the biggest constraint on India's ability to raise its strategic profile in Asia.
Adm Nirmal Verma, the Chief of Naval Staff is in Bangladesh on a five-day official tour that started on Sunday. During his stay Adm Verma will visit the three major ports of the nation—Chittagong, Mongla and Khulna. He will also call on Prime Minister Sheikh Hasina and President Zillur Rehman.
Adm Verma’s visit is indeed a part of Delhi’s current commitment to deepen the bilateral engagement with Dhaka on all fronts. During Sheikh Hasina’s visit to India in January 2010, both sides agreed to resolve the many long-standing problems between the two countries.
Some of them relate to maritime territorial disputes and the question of resource exploitation in the Bay of Bengal and are likely to come up during Adm Verma's talks.Besides the bilateral dynamic with Bangladesh, Adm. Verma’s trip underlines India’s more focused defence diplomacy in the region.
Cribbing about our unfriendly neighbours and complaining about the warm military ties between them and China, India in the past simply neglected security diplomacy in Southern Asia.
Delhi has now consciously chosen to step up military interaction with all our neighbours. The only exception is Pakistan, where the Generals have never shown any interest in a structured interaction between the armed forces of the two countries.
Pak Army Chiefs prefer to deal with Indian political leadership when are directly in charge of running the country and don the presidential mantle. When they hold the remote, the Pak Army leadership does not want to be drawn into any service-to-service engagement with its Indian counterparts.Last year, Adm Verma visited Sri Lanka twice and hosted his Sri Lankan counterpart in India. The Army Chief Gen. V.K. Singh and the Air Chief ACM Vasant Naik traveled to Colombo in January this year.
The Indian Air Chief traveled to Dhaka in January 2010 and had received his Bangla counterpart in 2009. The three service chiefs now regularly travel in the neighbourhood and host their counterparts.
This intensive military diplomacy is driven by the recognition of the need to build solid institutional links with the armed forces of our neighbouring countries. But Delhi has much work to do before it can match China’s defence diplomacy in the Subcontinent.
Besides regular high level military exchanges, China has emerged as one of the main suppliers of arms to all our neighbours. India is yet to generate surplus weapons production and a policy for arms exports in the region.
That might happen some day in the not too distant future; but not right away. That was the main message from Beijing as it serenaded Gilani.
Last month, two weeks before the killing of Osama bin Laden, Gilani had led a powerful team to Kabul that included all the top civilian ministers as well as the army chief Gen. Ashfaq Pervez Kayani and the ISI boss, Lt. Gen. Shuja Pasha.
Gilani’s delegation met the Afghan President Hamid Karzai to define a new framework for peace and reconciliation within Afghanistan and the construction of a special relationship between Islamabad and Kabul.
According to leaks in the Western media, Gilani had apparently told Karzai to dump the diminishing United States in favour of a rising China.In the wake of raid on Abbottabad on May 2, it appeared that both Islamabad and Beijing flaunted their special relationship as the location and execution of Osama bin Laden deep inside Pakistan’s territory exposed the Pak army’s double dealing on terror.
As the rest of the world questioned the role of Pakistan’s security establishment in harbouring bin Laden, China was quick to offer a strong public defence Islamabad’s policy.
As the US mounted pressure to do more against the al Qaeda and the Taliban, Pakistan’s establishment flashed its China card. The hint was that if Washington pushed it too hard it had the option to deepen its alignment with Beijing.Although his visit to China was planned much earlier, there was much expectation that it would unveil their intent to join hands against the United States. Both had reasons to hold back.
For all its anti-American bravado, the Pak establishment knows the dangers of an overt defiance of the United States. The prospects for being branded as a rogue state and sanctioned again by the West can’t be too appealing for the economic managers of Pakistan.
China, too, made it clear that while the relationship with Pakistan was one of its most valued, it was not ready to paint in anti-American colours. While Beijing brings a lot of aid and investment into Pakistan, it can’t provide the kind of international political legitimacy and financial support that Islamabad gets from its Western patrons.
After rocking the bilateral relationship with its assertiveness in 2010, Beijing is in the mode of improving ties with Washington. As Gilani arrived in China, a senior Chinese military official was in Washington to lay the foundation for a new security dialogue.Last week, China and the United States also agreed to establish a special dialogue on Afghanistan. Beijing knows that its moment in the Sun in south-west Asia and the Persian Gulf is not far away. For now it might more sense not to contest the dominance of the United States in the region.
As Gilani arrived in Beijing, the ‘China Daily’ in an editorial cautioned against the impression that China is ganging up with Pakistan against the United States. “Any over-interpretation of Gilani's ongoing visit to China will prove to be superficial and speculative”. The Daily added that “China hopes to see US-Pakistani relations improve as it is in the same boat with the two countries in fighting terrorism.”.
Saturday, February 12, 2011
The article published in the Qiushi Journal, the official publication of the ruling Communist Party of China (CPC) said China must adhere to a basic strategic principle of not initiating war but being ready to counter-attack.
"We must send a clear signal to our neighbouring countries that we don't fear war, and we are prepared at any time to go to war to safeguard our national interests," the article said, suggesting an aggressive strategy to counter emerging US alliances in the region.
"Throughout the history of the new China (since 1949), peace in China has never been gained by giving in, only through war. Safeguarding national interests is never achieved by mere negotiations, but by war," it said.The piece said countries like Japan, India, Vietnam,
Australia, the Philippines, Indonesia, and Korea are trying to join the anti-China group because they either had a war or a conflict of interest with China.
"What is especially unbearable is how the US blatantly encourages China's neighbouring countries to go against China. We cannot completely blame the US, as flies do not stare at seamless eggs.
"They are attempting to gain benefits by using US," it said.
It suggested that China should use its economic clout and trade as a weapon to rein in neighbours. "China's neighbouring countries need China's international trade more than China needs them, with the vast majority of China's trade deficit caused by these countries," it said.
"Therefore, they, but not China, will suffer greater damage by antagonising China. China should make good use of these economic advantages and strategic power. This is also the most effective means to avoid a war," it said.
The article said the US has adopted a series of strategies to contain China like through an exchange rate war, through a public opinion war, besides launching military exercises and simulated warfare, and the development of an anti-China alliance.
China on its part, it said, can consider the idea of launching economic warfare through strategies to contain the US dollar and making effective use of forums like the IMF and initiating a space war by developing strong space weapons.It also suggested as a counter-strategy the idea of pursuing a strong policy against neighbours joining the US alliance, even attacking a nearby enemy and forming anti-US alliances in Latin America and Africa.
It also said the China should also launch a public opinion war by making an effective use of the free media in the US and other democracies.
Though suggesting a hard-line policy towards neighbours, the article, however, proposes to rope in countries with good foreign reserves like India to neutralise the influence of US dollar.
"Of course, to fight the US, we have to come up with key weapons. What is the most powerful weapon China has today? It is our economic power, especially our foreign exchange reserves (USD 2.8 trillion). The key is to use it well. If we use it well, it is a weapon; otherwise it may become a burden," it said.So in view of this China should "pick up courage" and go for aggressive buying of other currencies, including the Indian Rupee hence taking the lead in affecting the market for US dollars.
This approach, it said, is market-driven and it will not be able to easily blame China.
"Of course, the most important condition is still that China must have enough courage to challenge the US currency. China can act in one of two ways. One is to sell US dollar reserves, and the second is not to buy US dollars for a certain period of time," which will weaken the currency and cause deep economic crisis for Washington. Given the fact that China is the biggest buyer of US debt, its actions will have a demonstrable effect on the market.
"If China stops buying, other countries will pay close attention and are very likely to follow. Once the printed excess dollars cannot be sold, the depreciation of the dollar will accelerate and the impact on Americans wealth will be enormous.
"The US will not be able to withstand this pressure and will curtail the printing of US currency," it said.
Wednesday, February 9, 2011
Islamic banking is based on the principle of profit-sharing, rather than charging interest.
"The current volume of Islamic banking is USD 1.2 trillion. It is very small and less than 1 per cent when compared to conventional banking, which is nearly USD 243 trillion. But this USD 1 trillion was achieved within 40 years. This is growing 15-20 per cent much faster than conventional banking," expert Madzlan Husain said on the sidelines of 17th Commonwealth Law Conference being held here.
According to him, as many as 75 countries all over the world have recognised the need for Islamic banking and opened doors for it.
The segment constitutes nearly 22 pc of the total banking in Malaysia, which is considered as hub of Islamic banking. It has been growing at nearly 20 pc in countries like Kuwait, Bahrain and Saudi Arabia."The number is definitely growing. Recently, India also allowed Islamic banking in Kerala. The global financial crisis contributed to the growth. They feel that there is something structurally wrong with conventional banking system. Even countries like China, Korea are also implementing Islamic banking," Husain explained.
Recently, the Kerala High Court paved the way for setting up an Islamic bank by dismissing Janata Party leader Subramaniyam Swamy's plea challenging the state government's decision to start an Islamic bank.
"Why should our country lose the benefit of foreign direct investment in this sector by saying that we will not allow Islamic banking? When our Prime Minister visited Malaysia, he said that India will send a team of RBI officials to Malaysia to study Islamic banking aspects. I am sure that there will be a necessary regulation in place," L Nageswara Rao, the counsel for the Kerala Government in the Islamic banking case, said. According to experts, no financial institution that practices Islamic banking looked for bailout packages during the global recession.
"After the recession banks like Scotland Bank were to be bailed out. But not a single Islamic bank needed help or looked for bailout. It was completely unfazed by the recession. That is the reason France is competing with Britain to become a hub for Islamic banking due to ethical banking," said M J Husain, an Independent Director at South Africa-based ASBA Bank (a subsidiary of Barclays Bank).
Thursday, February 3, 2011
Washington views Egypt as a military and diplomatic partner, which it got to sue for peace with ally Israel in the teeth of Arab opposition and paved way for decades of relative concord in that part of the world.
India-Egypt ties pre-date this and are rooted in the exceptionally close relationship between Nehru and Nasser, founding members and buddies of the Non-Aligned Movement. It survived the US ingress into the region and even New Delhi's dalliance with Israel, although with noticeable less ardor.
Since the 1980s, there have been four Prime Ministerial visits from India to Egypt: Rajiv Gandhi (1985); P V Narasimha Rao (1995); I K Gujral (1997); and Manmohan Singh (2009). Mubarak visited India thrice, in 1982 (bilateral), 1983 (for NAM), and most recently in 2008, when New Delhi finally handed over the Jawaharlal Nehru Award for International
Understanding that had been conferred on him as far back as 1995.
Mubarak's 2008 visit was mainly driven by massive Indian investments in Egypt, which overcame the mushy sentimentality that hitherto characterized the ties. As with rest of the world, Indian movies are popular in Egypt.
In the past decade though, it's India Inc that has stepped up to the crease: Indian companies have made a mark in Egypt, raising India's profile that was otherwise largely cultural. Egypt is the beachhead for Indian push into North Africa and Maghreb, with Oberoi, which owns two hotels and runs cruises, leading the way in the hospitality sector.
Wipro and Satyam Computers set up global delivery centers in Cairo; Kirloskar assembled diesel engines and irrigation pumpsets in the country; Ranbaxy found an Egyptian subsidiary for manufacturing pharmaceuticals; Dabur, Marico and Asian Paints have operations here; Bajaj Auto dominated the three-wheeler market; Tata Motors, M&M, Ashok Leyland and Maruti have all motored in.
More recently, Essar, Reliance, and the Tata group are among those planning investments in Egypt worth an estimated $20 billion. Add to this, nearly 1,00,000 Indians vacation in Egypt every year.
Clearly, India has much to wish for in Egypt's stability.
Friday, January 21, 2011
Hours after a group of stone-throwing youth braved frantic police beatings and confronted grey fumes of teargas outside the Interior Ministry building in Tunis, the unthinkable happened. As darkness thickened on January 14 and agonising uncertainty gripped the Tunisian capital, word was out that Zine El Abidine Ben Ali, well entrenched dictator for 23 years, had fled. For hours, Mr. Ben Ali's plane flew in the Mediterranean night sky, desperately seeking a place to land. France, the former colonial master, saw no benefit in obliging an ageing overused ex-dictator that it had once so assiduously feted. It refused landing permission. Finally, the harried former first family of Tunisia, known for its ostentatious ways, was rescued by the Saudis, who opened one of their numerous palaces in Jeddah to accommodate their uninvited and loveless guests.
But back in Tunisia, despite curfew and an Emergency, there was unbelievable relief and much joy on the streets. Mr. Ben Ali's seemingly unassailable tyranny, reinforced by thousands of personally loyal troops, had suddenly collapsed. Many felt that a political revolution of great significance had been accomplished. Overnight, large sections of the media pronounced that not only an era of authoritarianism in Tunisia had ended but also a new powerful contagion of democracy was fast spreading to annihilate dictators, big and small, across West Asia. That still might be the case but not necessarily so — at least not immediately.
Built on solid organisational foundations and helped by the old and new media alike, the Tunisian rebellion has indeed aroused the masses across the region. As Abdul Bari Atwan, editor of the Palestinian daily, Al Quds Al Arabi, put it: “The Arab nation is patient, but its patience is similar to that of a camel. When it is furious, a camel does not stop until it wreaks revenge on its persecutors. It seems that such a camel has now broken free from its ties.”
But before the anticipation that the long-fossilised dominos in the Arab world will, at some stage, begin to fall is realised, Tunisia needs to consolidate its own fledgling political revolution. The Tunisians are already facing their first major challenge. Within hours of Mr. Ben Ali's fall, the former Speaker Fuad Mebazza, elevated to the presidency, announced the formation of a stopgap national unity government, which was also meant to accommodate important Opposition figures. However, on the night of January 17, the new government, when it was unveiled, was found stuffed with the hated members of the old guard. The key Ministries of Defence, Foreign Affairs, Interior and Finance were once again bestowed on Mr. Ben Ali's cronies.
The regime opponents have therefore their first task cut out — ensuring that the remnants of the old guard no longer occupy high places of influence and are firmly marginalised. Some success in isolating them has already been achieved. Four Opposition figures, co-opted by members of the old guard to occupy Cabinet berths, resigned in the space of 24 hours. However new and serious challenges, which any nascent revolution is bound to encounter, remain. Having accomplished the exit of a hated dictator, how does the Tunisian revolution gather steam and fill the vacuum left by the fast fading old guard? Unlike the Iranian revolution, which had Ayatollah Khomeini as its leader as well as a blaring emblem, how does the Tunisian revolution advance in the absence of a charismatic and popular leader?
The huge challenge notwithstanding, the chances are that the Tunisian people may yet succeed. Unlike many other countries experiencing political turmoil, Tunisia consists of mostly educated people and is institutionally well organised. This is a factor that goes hugely in the favour of Tunisians. Thus the anti-regime campaign that was triggered by the December 17 self-immolation of a university graduate, who was driven to sell vegetables and then denied permission to do so, had labour unions, professional syndicates, including well-entrenched unions of students, teachers, lawyers and journalists as its pillars.
These organisations, partly helped by new communication tools of Facebook and Twitter, could take advantage of the socio-economic deprivations that the Tunisians have experienced for years. As a result, a critical social mass of protesters grew, eventually bringing down the regime.
Despite Tunisia's zooming growth rates, the growing army of the jobless fed significantly into the successful uprising. Many analysts are of the view that the official 14 per cent unemployment rate hardly reflects the true picture of desperation the youth have been experiencing. According to some estimates, nearly half the youth in the 15-24 age bracket are unemployed in some parts of the interior, the core of the Tunisian revolt. Wages are low in the job-creating euro-centric tourism and textile manufacturing hubs established in “free trade zones.” The hardships of ordinary people have become all the more acute for, under the diktat of the International Monetary Fund and the World Bank, government subsides have been either lowered or removed in the food and gasoline sectors.
With mass misery rising, heavy corruption centred round the President, the President's wife, Leila Trabelsi and her family emerged as an emotive symbol to ignite the rebellion. According to a WikiLeaks cable from the U.S. embassy in Tunis, the Ben Ali and Trabelsi families had cornered nearly 50 per cent of the country's wealth. It was, therefore, not surprising that when the crowds went on the rampage on January 15, they targeted business properties associated with the two nepotistic ruling clans. In the Tunis neighbourhood of Cite Habib, a villa belonging to Leila Trabelsi's nephew was set afire. Dealership showrooms, owned by Mr. Ben Ali's son-in-law Mohamed Sakher El Materi, of Kia, Fiat and Porsche vehicles were also burnt down. The next day, Imed Trabelsi — Ms. Trabelsi's nephew who had been stabbed — died in a Tunis military hospital, accounting for the first fatality in the ruling family in the aftermath of the month-long uprising.
As the Tunisian revolt gathers its second wind, the role of the military could become crucial. It is widely believed that Mr. Ben Ali's nearly 1,80,000-strong security police are at loggerheads with the regular army. In fact, unlike the police whom the protesters targeted, evident from the torching of a number of police stations, the military continues to remain a popular force. The army's neutrality and thus its clean popular image came into focus when it declined to fire at the protesters, causing Mr. Ben Ali to sack his Joint Chiefs of Staff, General Rashid Ammar.
The uprising in Tunisia is leaving behind a deep imprint on the impoverished youth in the neighbouring countries. But can it spread fast and strongly enough to challenge the deeply entrenched regimes that have been built on the foundations of patronage, pillage and ruthless force, perpetrated by the grossest human rights violations?
The psychological impact of the Tunisian example in the region is palpable. In Algeria, four persons set themselves ablaze to protest their dire economic and political situation. Egypt, demographically the largest nation in the region and cultural heartbeat of the Arab world, has also witnessed a case of self-immolation.
Panic is also setting in among the regimes, though it would be erroneous to assume that its feckless dictators are considering throwing in the towel anytime soon. Nevertheless, a nervous Egyptian establishment has decided to rein in the prices of essentials like rice and sugar, and end the breadlines by not withholding wheat flour to bakeries for previous violations. The Egyptian daily, Al-Mesryoon, has reported that on the security front, instructions have been passed to prevent Opposition forces and movements from holding demonstrations or protests.
The Libyan dictator, Muammar Qadhafi, also appeared shaken by the dramatic developments on his doorstep. Soon after Mr. Ben Ali fled, he strongly disapproved of the Tunisian revolt. In a televised address, he chided the Tunisian people for being impatient. “You have suffered a great loss,” he said. “There is none better than Zine to govern Tunisia.”
A stunned Arab League — which has largely degenerated into a cabal of dictators and plutocrats — scampered to the Egyptian resort of Sharm el-Sheikh to collectively absorb the shock inflicted upon it by the commoners of Tunisia.
Despite the revulsion that it has generated, it would take much more than high-octane emotion to dislodge the odious dictatorships. Nevertheless, Egypt seems to echo loudest the radical voices of fundamental change that are resonating from the Tunisian street. Unlike many of the smaller countries, Egypt's battle-hardened core of the poor and the dispossessed are also its best organised.
Besides, the Egyptian Muslim Brotherhood is a highly potent force, which might come into its own as part of the larger Egyptian opposition, especially as the iron-fisted regime of President Hosni Mubarak is soon likely to witness a major transition.
Wednesday, January 19, 2011
The United Islamic Front for the Salvation of Afghanistan (UIF), or Northern Alliance, is a military-political umbrella organization formed shortly after the Taliban captured Kabul in 1996.
The anti-Taliban alliance comprised of ousted ethnic Tajik president, Burhanuddin Rabbani, Defense Minister Ahmad Shah Massoud and their Jamiat-i-Islami forces, and General Abdul Rashid Dostum and the ethnic Uzbek Junbish-i-Milli party. Many of the alliance followers were part of the Mujahideen guerillas fighting the Soviets in 1979-1989.
Massoud was one of Northern Alliance's most powerful and visible leader, and had personally trained most of its troops. Massoud was killed in September 2001 by Al Qaeda militants reportedly posing as Saudi journalists.
Post 9/11 attacks, it garnered support from the US in the latter's War against Terror. After weeks of persistent bombing of Taliban hideouts by US missiles, the Alliance was finally able to recapture Kabul in November 2001.
The current troop strength of the Alliance is estimated to be anywhere between 10,000 to 12,000 and is believed to be receiving technical aid from Russia, Iran and most recently, the United States. The Alliance is recognized by the United Nations and the governments of other nations.
Profile: Mullah Mohammed Omar, Founder leader of Taliban
Mullah Mohammed Omar, or Mullah Omar is the founder leader of Taliban of Afghanistan and was the de facto head of state from 1996-2001. He held the official title of the Head of the Supreme Council and that of Commander of the Faithful from the Islamic Emirate of Afghanistan. He is wanted by the US authorities for providing shelter to Osama bin Laden and his outfit, Al Qaeda.
Mullah Omar rose to power during the 1980s, when he led anti-Soviet Mujahideeen fighters to topple the Soviet regime in Afghanistan, losing his right eye in the ensuing battle.
He founded the Taliban movement in 1994, comprising of students from Islamic religious schools and Afghan refugees in Pakistan with the aim of restoring order to the lawless, post-Soviet Afghanistan.
He captured Kabul two years later without a fight, which many Afghans welcomed, believing it would mark an end to the civil war. Under Mullah Omar's rule, the Taliban enforced a strict interpretation of Islamic law, including banning women from going to educational institutions and work, persecuting homosexuals, and amputating the hands of thieves.
Following the 9/11 terror attack on the World Trade Centre in US, Washington led a campaign to oust the Taliban regime for sheltering Osama bin Laden, chief of Al Qaeda, and has since announced a $10m bounty on Mullah Omar's head.
The US-led invasion drove the Taliban out of power in Afghanistan and consequently, forced Mullah Omar to go into hiding. Omar, who is in his late 40s, remains a reclusive figure, and is believed to be hiding in the mountainous areas along the Afghan-Pakistan border.
Afghans vote in landmark presidential and provincial council elections on Thursday, but rampant insecurity and Taliban threats could affect the credibility of the polls.
These are some key facts about the country:
GEOGRAPHY: In the heart of central Asia, Afghanistan is bordered by the Islamic republics of Iran, Pakistan, Tajikistan, Turkmenistan and Uzbekistan, and by China. It is an arid, landlocked country of 652,225 square kilometres (251,825 square miles), about 85 percent of which is mountainous.
POPULATION: Between 26 and 32 million inhabitants.
HUMAN DEVELOPMENT INDICATORS: Afghanistan is the fifth poorest country in the world, with 42 percent of the population living on less than 14 dollars a month.
More than one out of four children dies before the age of five, the third highest rate in the world after Sierra Leone and Angola, according to the UN.
About 1,600 of every 100,000 mothers die in childbirth or because of related complications, second only to Sierra Leone (UN).
Afghans have a life expectancy of 43 (UN).
Only 23 per cent of the adult population can read or write.
LANGUAGES: Pashtu and Dari -- both Persian dialects. At least 30 other languages and dialects are spoken.
RELIGION: Overwhelmingly Muslim with about 80 percent Sunni and 20 percent Shiite.
RECENT HISTORY: In 1973, King Mohammed Zahir Shah was ousted in a bloodless coup after 40 years of rule.
In April 1978, a pro-Soviet coup brought communists to power. The following year the Soviets invaded Afghanistan and spent the next decade fighting mujahedeen guerrillas backed by Pakistan, Saudi Arabia and the United States.
In February 1989, the Soviets withdrew and civil war ensued.
On September 27, 1996 a group known as the Taliban (students of religion), which formed partly in Pakistan with the tacit approval of Washington, took power in Kabul and enforced Sharia law.
The Taliban executed former communist president Mohammad Najibullah and allowed Osama bin Laden's Al-Qaeda network to operate from the country.
On September 9, 2001 Ahmad Shah Masood, commander of the anti-Taliban Northern Alliance force, was assassinated by two men posing as journalists and presumed to be members of Al-Qaeda.
On October 7, 2001 following the September 11 attacks on the United States, a US-led coalition launched a war to topple the Taliban for failing to surrender bin Laden. After six weeks, the Northern Alliance took Kabul and most of the country.
Under peace accords agreed in Bonn in December 2001, an interim administration was established under the leadership of Hamid Karzai.
On October 9, 2004 an estimated eight million Afghans voted for the first time to elect a president. Karzai was the winner.
There are currently around 95,000 Afghan soldiers fighting Taliban militants alongside more than 100,000 international soldiers, nearly two-thirds of them in the US military, in the volatile south.
ECONOMY: The destitute country is being rebuilt with international assistance.
Afghanistan produces about 93 percent of the world's opium, according to the UN, bringing in four billion dollars a year (2.82 billion euros), part of which goes to finance the Taliban.
Afghanistan has four percent of the world's reserves of coal, along with iron, copper and precious stones. Deposits of lead, zinc, tin, tungsten and caesium have yet to be tapped.
The recent Afghan elections were held under the shadow terror assaults from one of the world's most dreaded outfits, Taliban. They were hell bent to stop their nation's tentative attempt to uphold democracy. The outfit's grip has extended far beyond its land of birth. Though major western powers have deployed their best minds and resources, they have not been able to contain let alone overpower the top echelons of Taliban.
Who are these people who have the only super power in the world a bloody nose and have pushed their own nation in the vortex of violence? Why do they take refuge in religion to kill innocent men and women?
Who are Taliban?
'Taliban' is plural of Talib, a Pashto word meaning "student". It is a group of students that believes in a fundamentalist narrative of their religious teaching. They wrested control of Afghanistan's government in 1996 and were driven out of power in 2001 by the US led coalition army. Despite its ouster, it continues to wield considerable clout in Afghanistan's rural regions especially the Pakhtun dominated south and east provinces including Kandahar.
Known for ultra-orthodox views and rigid interpretations of Islamic law, the Taliban bars women from going to schools or from doing jobs. Public executions of homosexuals and petty offenders too are not very uncommon.
The Taliban was initially a group of mujahideens who fought against the Soviet invasion in the 1980s. The battleground proved a steppingstone for those who later rose in the ranks of Taliban. One such leader was Mullah Omar, the Commander-in Chief, of the anti-Soviet army.
After successfully defeating the Soviet army, Omar formed the Taliban, comprising of a group of Islamic students, to bring order to the lawless, post-war Afghan society. Initially, they gained wide support of the Afghans who had grown weary of the constant fighting between the warlords.
With the help of government defections, the Taliban emerged as a force in Afghan politics in 1994 in the midst of a civil war between forces in northern and southern Afghanistan. They captured the southern city of Kandahar without force and over the next two years, steadily expanded their influence over the rest of the country. In 1996, they captured Kabul, the Afghan capital, and took control of the national government.
Currently, the Taliban strength is estimated at around 45,000. In addition to this, the Taliban has been reportedly recruiting a lot of children and elderly men in order to fight its opponents, particularly the Northern Alliance.