O P I N I O N S

PERSPECTIVE

Education Policy — A Tribune Debate 
Threat to personal liberty
The IT Act will turn India into a mass surveillance society, says Pushkar Raj
The Information Technology (Amendment) Act 2008 that received the President’s assent recently poses grave dangers to the personal liberty of the citizens guaranteed under the Constitution.

HC on Sec 377: Towards justice and equality
by Devadatt Kamat and Lavanya Regunathan Fischer
The Supreme Court has admitted an appeal questioning the Delhi High Court decision decriminalising homosexual acts which has been the centre of conversation. The High Court order had heralded India’s entry to the club of nations which have recognised the need to bring at par the rights of people with different sexual orientations.

OPED

Focus on Balochistan
Let’s not shy away from talking about it
by Mohan Guruswamy
Since the Prime Minister in his infinite wisdom put Balochistan on the Indo-Pak agenda, let’s not shy away from talking about it. The Pakistani case for Kashmir no longer rests on religion; the Bengali rebellion and secession in 1971 did in that argument. It now rests upon the more exalted principle of self-determination. That is what their friends abroad and even in India wax eloquent about.

Drona award, the latest feather in his cap Profile
by Harihar Swarup
Former badminton hero Pullela Gopichand will be most decorated Indian star in terms of National Awards. Already winner of the Arjun Award and the Rajiv Gandhi Khel Ratna Award, he is now recommended for Dronacharya Award.

On Record
Centre must talk to ULFA, says Indira Goswami
by Bijay Sankar Bora
Literary pursuits have earned Indira Goswami (popularly called Mamoni Raisom Goswami) laurels aplenty including the coveted Jnanpith Award (2000), the Sahitya Akademi Award (1982) and the Katha National Award (1993). Her novels and short stories are based on varied socio-economic settings in Assam and north Indian construction sites where she accompanied her late engineer husband, Madhavan Raisom Iyenger.

PERSPECTIVE

Education Policy — A Tribune Debate 
Threat to personal liberty
The IT Act will turn India into a mass surveillance society, says Pushkar Raj

The Information Technology (Amendment) Act 2008 that received the President’s assent recently poses grave dangers to the personal liberty of the citizens guaranteed under the Constitution.

Illustration: Kuldeep Dhiman

Section 69 (1) of the Act states that the Centre or the state may, subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted received or stored through any computer resource.”

These are vast overriding powers available to the police, implying that the government can now monitor all your emails, SMSes, phone conversations and web pages that you visited. Merely a police inspector on suspicion and in his discretion will be able to raid a home to search, seize and haul up a computer user for questioning in the name of carrying out investigation into a suspected “offence”.

The offence need not be cognisable. The police does not need a warrant from a magistrate to do so. And once one is charged he will have to prove his innocence. It is an unprecedented development striking at the root of the individual liberty.

Section 69 (3) is more scary. It provides that the subscriber or intermediary or any person in charge of the computer resource shall extend all facilities and technical assistance to provide access to the computer resource generating, transmitting, receiving or storing such information. Any person who does not comply with the direction attracts punishment for seven years.

This makes individual actions in public domain liable to be accessed at will of the state and its minions. The reason could be interest or the security of the nation or simply to prevent commission of any cognisable offence. All of us know that these are flexible terms open to weird bureaucratic interpretations. In the absence of a cogent definition of national interest and security, any action of an errant police officer would be legitimate. After all when some state governments were invoking POTA against 14-year-old for taking part in land displacement, they were also protecting national “interest and security”.

Earlier, phone tapping was allowed under the Indian Telegraph Act of 1885 (ITA) in the interest of the public safety. Its other sections provided that the government should formulate “precautions to be taken for preventing the improper interception or disclosure of messages”. But since 1885, no government thought it needful to formulate any such precautions since all governments like to spy on their opponents and, if possible, citizens.

It was only after 1996 that on a writ petition filed by the People’s Union for Civil Liberties (PUCL), the Supreme Court laid down certain guidelines to use the power conferred under ITA 1885 that some semblance of discipline came to be introduced in the government’s power of phone tapping. The court laid down that the power under the Act could only be used when question of sovereignty, security, integrity of India and relations with foreign countries are involved; it could also be used for public order or for preventing incitement to the commission of an offence.

It further stated that the phone tapping order could only be issued by the Union or State Home Secretary and it would indicate the kind of communication to be tapped. On top of it, the court stipulated that the original order would have to be reviewed by a committee consisting of the Cabinet Secretary, the Law Secretary and Secretary for Telecommunication at the Central level and also a corresponding committee at the state level and if it considers that there has been a contravention of Act it will set aside the order and also destroy copies of interception material.

There are no such safety mechanisms under the new Information Technology (Amendment) Act 2008 and it is unlikely that the government will soon formulate “procedure and safeguards” as provided in it. If it intended there was no reason why it should not have been part of the original Act. When the government showed no interest in formulating such provisions on Indian Telegraph Act 1880 for nearly 60 years after Independence and people had to wait for the Supreme Court intervention, there is no assurance that it will do so on the present Act.

In the absence of such safety valves, some people can be permanently under surveillance in whatever they do and wherever they go and the list can keep expanding at various levels without public knowledge as there is no centralised agency keeping record of such snooping. Even before the passage of the Act in a report called the Electronic Police State, India figured at 20th rank in a survey of 52 countries such as China, North Korea, Russia, Singapore and Iran.

This ranking is further likely to improve notoriously as the Multi-purpose National Identity Card (MNIC) programme of the Government of India gets underway. Mr Nandan Nilekani has assumed office with a Cabinet Minister’s rank as Chairman of the National Authority of Unique Identity and the government has already allocated money for it. The idea is to allot each one of us a unique number with scores of category of information profiling the individual’s life history.

The Union Home Ministry plans to link the identity number to certain government services like passport, driving licenses, healthcare, school and university enrolment, etc. If this number is a must, an individual may be compelled to part with private information.

This information, besides others serious risks of abuse of private information, might possibly be traded and sold as there is no individual data protection law like in the US or some European countries.

Though a Bill to this effect, “The Personal Data Protection Bill” was introduced in the Rajya Sabha in 2006, it was allowed to lapse.

All this is being done to strengthen national security. However, if the government had taken initiative to improve its ground level policing infrastructure investing the same amount of money, it would have strengthened the national security multifold besides being a great service to people of India furthering the cause of human rights and individual security.

Instead, it has chosen an opposite and a flawed course of action without learning from past experiences. Measures like the recently amended IT Act and MNIC will turn India into a mass surveillance society with more powers and scope for abuse to an already unaccountable police force. It has a real potential of turning India into Orwellian “1984 land”.

The writer, General Secretary of the People’s Union for Civil Liberties (PUCL), is also associated with the Commonwealth Human Rights Initiative, New Delhi

HC on Sec 377: Towards justice and equality
by Devadatt Kamat and Lavanya Regunathan Fischer

The Supreme Court has admitted an appeal questioning the Delhi High Court decision decriminalising homosexual acts which has been the centre of conversation. The High Court order had heralded India’s entry to the club of nations which have recognised the need to bring at par the rights of people with different sexual orientations.

While we are not as far ahead as our close neighbour Nepal where the Supreme Court has also recognised same-sex marriages, it is nevertheless a huge step in the direction of uniform access to justice and equality.

Many angles to this debate have been explored and doubtless the Supreme Court will hear and raise many more. But there is the need to add to them an interesting anomaly which has helped this judgement achieve national significance.

Clearly, it is not the legislature that has changed its policy. This shift is also not based on a Supreme Court judgement. The source of this impetus to recognise gay rights comes from the Delhi High Court: a court subordinate like all other high courts to the Supreme Court and bound traditionally in its influence to a demarcated territory.

The judgement has been accepted without question as giving legal sanction to homosexuality throughout the country. There has been no real mention of the federal question of its acceptability in all Indian states.

In the United States, different states recognised gay rights at different times. In India too, this would have been the position as a logical outcome of our federal structure. The Delhi High Court judgement would have applied only to Delhi. This though is not the case. As is fairly obvious, the High Court’s order is applicable nationwide.

The application of a judgement nationally has traditionally only been the prerogative of the Supreme Court. So how did the Supreme Court grant this power to its lower courts?

The Supreme Court did this by reading Article 226 of the Constitution dealing with jurisdiction and the power of the High Courts in a novel way, making it possible in effect for the High Courts to extend their jurisdiction to alien territories.

Article 226(1) clearly sets out the territorial limit of the power of the High Court: every High Court has the power to issue writs “throughout the territories in relation to which it exercises jurisdiction”. Therefore, a decision of a High Court cannot have any extraterritorial operation. Or in other words each High Court will interpret the law for its territory.

Even as late as 2008, the Supreme Court reiterated this position in its judgement in the Durgesh Sharma case where a two-judge Bench unequivocally stated that the “jurisdiction of a High Court has territorial limitations” and removes all doubt by clarifying that the High Court can thus exercise the power “throughout the territories in relation to which it exercises the jurisdiction”.

However, while this belief of territoriality is treated as the norm, four years earlier the Supreme Court, in a three-judge Bench decision, had already created an exception to this rule. This judgement of the Supreme Court (Kusum Ingots & Alloys Ltd. v. Union of India (2004) 6 SCC 254) took a much broader view of the territory of a High Court’s order. It did so by relying on the second clause of the very same Article 226.

Article 226(2) allows for an exception to this limiting of jurisdiction of the High Courts. It states that a High Court can issue writs to authorities even outside the jurisdiction of that court provided the cause of action for filing the writ arises within its jurisdiction. In simple terms, when injustice has been committed within its territory, a High Court does not have to worry about where the perpetrator government organisation is situated.

But the Supreme Court interpreted this clause in a much wider sense, to mean that any order passed by a High Court in a writ petition questioning an Act passed by Parliament, would be binding and have effect throughout the country. The Court observed that:

“An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.

It appears that the above observation was made in the case in passing, without any discussion of the law on the point or considering the express provisions of Article 226(1). The effect of the three-judge Bench decision is that if a Central Act is declared as unconstitutional, that enactment would be invalid throughout the length and breadth of the country.

This reading could not have been the intent of the architects of the Constitution who wanted to confer limited territorial jurisdiction on the High Courts and reserved the power of omniscience for the Supreme Court under Articles 32 and 141.

It is, therefore, perhaps an inadvertent privilege which the Supreme Court has conferred on the High Courts in opening up the ambit of this second clause to Article 226. A reading of this clause seems to suggest its application only to cases where the authority or the government against whom the direction is sought is situated outside the territory of that High Court but the cause of action for filing the Writ has actually arisen within the territory and thus the jurisdiction of the High Court. A too broad reading of the second clause of the Article would render the first ineffective.

The judgement on homosexuality has righted a wrong. It would be a pity if the scales of justice were to fall back into disharmony due to jurisdiction for it is time this apparent contradiction was resolved. Our legislators or the Supreme Court have to act while the Delhi High Court judgement holds the fray decriminalising homosexuality and allowing no prosecution to be initiated anywhere in the country for consensual homosexual activities under Section 377 IPC. There is not a moment to lose if India is to continue in its journey towards a just rights discourse.

OPED

Focus on Balochistan
Let’s not shy away from talking about it
by Mohan Guruswamy

Since the Prime Minister in his infinite wisdom put Balochistan on the Indo-Pak agenda, let’s not shy away from talking about it. The Pakistani case for Kashmir no longer rests on religion; the Bengali rebellion and secession in 1971 did in that argument. It now rests upon the more exalted principle of self-determination. That is what their friends abroad and even in India wax eloquent about.

The Pakistanis no longer harp about Indian perfidies in Junagadh and Hyderabad. Free elections, full integration and the sheer fact of Hindus being the major community in these two one-time princely states has put paid to that. But Kashmir still dogs us. It is predominantly Muslim and the demand for self-determination has us confused. Isn’t that what democracy is all about?

Ironically, however, Pakistan is the champion of self-determination when its own people do not often enjoy democratic rights. The three pillars upon which the Pakistani state rests are still Allah, Army and America. The people of Pakistan do not figure in this scheme at all. The Pakistani leaders want a diplomatic engagement with us on Jammu and Kashmir again. Their Prime Minister has once again donned the cloak of democracy that hangs outside General Kiyani’s bunker. But we must not shirk from talking about self-determination with them. It’s a two-edged sword and cuts both ways. Let’s take the case of Balochistan.

The Pakistani province of Balochistan is a mountainous desert area of about 3.5 lakh sq km and has a population of over 7.5 million or about as much as Jammu and Kashmir’s population. It borders Iran and Afghanistan and its southern boundary is the Arabian Sea with the strategically important port of Gwadar on the Makran coast commanding approach to the Straits of Hormuz. It also has huge oil and gas reserves.

Quetta is the capital of Balochistan, the population now consists of Baloch and Pashtu speaking Afghans, and from time to time Osama bin Laden and Mullah Omar. Like the Kurds, the Baloch are also a people ignored by the makers of modern political geography. There is also the Iranian province of Sistan and Balochistan spread over an area of 1.82 lakh sq km and with a population of over 2.5 million Baloch. Its capital is Zahedan. Through most of their history the Baluch administered themselves as a loose tribal confederacy.

A restless people, the Balochis naturally pushed eastwards towards the more fertile regions watered by the Indus River, but were halted by the might of the Mughals. But we still have reminders of the many Balochi incursions in the names of the towns like Dera Ghazi Khan and Dera Ismail Khan in the Punjab and NWFP.

Unlike the Dravidians of Mohen-jo-daro and Harappa who disappeared without a trace, the Brahui’s made one last hurrah when they asserted their power in Kalat. By the 18th century Kalat was the dominant power in Balochistan and the Khan of Kalat was the ruler of the entire region. But the Brahui’s paid for it by getting assimilated into the majority Balochis. Brahui language still survives in small pockets but only by just.

This writer’s late father, who served in British India’s Defence Services Staff College at Quetta in the early 1940s, would often speak of hearing the local tribesmen serving in the Staff College speaking a language that sounded remarkably like Tamil! A few years ago, this writer ran into a bunch of school kids from Kalat at the National Museum in Karachi and they were amused that he knew that uru meant village, arisi meant rice and tanni meant water even to me from distant southern India.

The British first came to the region in 1839 on their way to Kabul when they sought safe passage. In the wake of Lord Auckland’s disastrous invasion of Afghanistan, the British annexed Sind in 1843 from the Talpur Mirs, a Balochi dynasty.

On June 27, 1839 Ranjit Singh died and within 10 years his great prophecy on being shown a map with British possessions in India in “Ek din sab laal ho jayega!” came to be true. After the formal surrender of the Sikhs on March 29, 1849 and the annexation of Punjab, the British now had a long border with the Balochis. However, learning from their disastrous experience with the Afghans they generally preferred to keep out of harms way and seemingly took cognisance of Balochi assurances of the inviolability of their borders.

Speaking at the 57th session of the Commission of Human Rights at Geneva (March 9-April 27,2001), Mehran Baloch, a prominent Baloch leader said: “Our tragedy began in 1947, immediately after the creation of Pakistan. The colonialist army of Pakistani Punjab forcibly occupied Kalat at gunpoint.” Even now a struggle continues in Balochistan. After the killing of Akbar Khan Bugti, other leading Balochi leaders like Sardars Attaullah Mengal and Mahmood Khan Achakzai, and Nawab Khair Baksh Marri, heads of the three great Baloch clans, have been leading protests over the economic exploitation of the region’s great natural resources to the exclusion of the local people. Marri and hundreds of his supporters are under arrest.

Till 1977, the Indira Gandhi government actively worked for the democratic aspirations of the Balochis and Pathans. The Balochi fighters were trained in the deserts of Rajasthan. We also provided them with financial and diplomatic assistance.

With Bangladesh free, Indira Gandhi reckoned that Sind, Balochistan and Pakhtunistan should follow. After her electoral defeat in 1977, Vajpayee as the Janata government’s External Affairs Minister, made his first misguided and woolly-headed attempt to normalise relations with Pakistan. We now remember Lahore as his first, but that is not correct.

Indian support to the various movements struggling for self-determination in Punjabi-dominated Pakistan was withdrawn. The Sindhi refugee L.K. Advani did not protest even when the Jiye Sind movement of G.M. Syed was betrayed. He was quite pleased with being able to go to his hometown of Karachi and visit his old school.

Vajpayee’s assurances to Zia, the man who initiated the policy of “death by a thousand cuts” to destroy India, ensured that the Balochis were forced to leave their camps in Rajasthan and all financial, military and diplomatic assistance was cut. Even though the Janata regime did not last very long, the damage was done. The Gujral doctrine drove the final nail into that policy.

Now that the Pakistanis insist on talking to us about Kashmir and the Prime Minister’s infinite wisdom has put Balochistan on the agenda, let’s talk self-determination.

Drona award, the latest feather in his cap Profile
by Harihar Swarup

Former badminton hero Pullela Gopichand will be most decorated Indian star in terms of National Awards. Already winner of the Arjun Award and the Rajiv Gandhi Khel Ratna Award, he is now recommended for Dronacharya Award.

Gopinath has done it all for badminton, and while his playing days may now be over, he continues to win laurels as a coach, Drona Award being one of them. True to his persona, Gopinath said that the Dronacharya Award only increased his responsibility — to give more to the game that gave him everything.

As a coach, Gopichand’s dream project has been setting an international badminton academy in Hyderabad. A prime land in the Andhra Pradesh capital was given to him on lease in 2003 by the then Telugu Desam government for building the academy. Gopichand, who runs the academy, coaches among others India’s badminton sensation Saina Nehwal.

The academy is unique in many ways. Spread over a sprawling five-acre land, the Pullela Gopichand Badminton Academy is one of the finest training centres in the country.

Gopichand got a shock of his life when he came to know that three of five acres of land allotted to him by the previous Chandrababu Naidu government would be taken away by the present government. According to the state sports department, since the three acres were not properly utilised and the state government wanted to set up a sports college in preparation for the 1012 London Olympics, they wanted the piece of land. The order sent shock waves among the sports fraternity.

Gopichand made a hurried visit to Chief Minister Y.S. Rajasekhar Reddy to present his case. Meanwhile, there was a sigh of relief as the Andhra Pradesh High Court stayed the operation of the government order.

Gopichand burst into fame after achieving the highest level of success in international badminton, second only to Prakash Padukone. Barring Prakash, Gopinath has been the only Indian player to have won the prestigious All England Badminton Championship. He made his debut in international badminton in 1991 when he was selected to play against Malaysia.

In his international badminton career, he represented India in three Thomas Cups tournaments. In 1996, he bagged a Gold Medal in SAARC Badminton Tournament at Vijayawada. He repeated the victory in the same tournament in Colombo in 1997. At the Commonwealth Games, he won a silver medal in the team event and a bronze in the singles event. The proudest moment for him came in 2001 when he recreated history by winning the prestigious All England Badminton Championship in London.

Thirty-six-year-old Gopinath has tremendous respect for the rich Indian culture and tradition. He is follower of “The Art of Living” Guru Sri Sri Ravi Shankar. He is proficient in yoga which he practices in his spare time. Yoga helps him to relax and focus better. He is also a lover of music.

Though he is employed in the Indian Oil Corporation in Hyderabad, the IOC has permitted him to spend most of his time training at the Sports Authority facilities in Bangalore.n

On Record
Centre must talk to ULFA, says Indira Goswami
by Bijay Sankar Bora

Indira Goswami

Literary pursuits have earned Indira Goswami (popularly called Mamoni Raisom Goswami) laurels aplenty including the coveted Jnanpith Award (2000), the Sahitya Akademi Award (1982) and the Katha National Award (1993). Her novels and short stories are based on varied socio-economic settings in Assam and north Indian construction sites where she accompanied her late engineer husband, Madhavan Raisom Iyenger.

She is an acclaimed litterateur, Ramayana scholar and former Delhi University Professor Dr Indira Goswami (popularly called Mamoni Raisom Goswami). She hogged headlines when she tried to mediate between the outlawed United Liberation Front of Asom (ULFA) and the Centre to resolve the insurgency problem four years back. Though the attempt failed for various reasons, she still thinks that ULFA must be brought to the negotiation table if the problem has to be solved. She talks to The Sunday Tribune in Guwahati about her tryst with ULFA problem.

Excerpts:

Q: What prompted you to tread on a dangerous path — to act as a bridge between ULFA and the Centre to facilitate peace talks that ultimately didn’t materialise?

A: I have encountered this query on many occasions as I was the only litterateur in Assam who dared to make such an attempt. This was because I have been agonised by the continuing bloodshed and violence in my beautiful state.

Q: What did bring you to the thick of the problem?

A: It all started in early 2000s when I set out on a mission that was fraught with danger. I visited some banned ULFA camps, some worse insurgency-affected areas, villages and families of the two top ULFA leaders Paresh Baruah and Arabinda Rajkhowa to gather materials to write a novel. But the experience tormented me so much that I dropped my plan to write a novel and instead took a pledge to help tackle insurgency that had already taken so many lives. So, I tried to be the bridge between Government of India and the People’s Consultative Committee (PCG) constituted by ULFA in 2005 to prepare ground for direct peace talks. The talks did not materialise, but there has to be talks to find a solution to the lingering problem.

Q: Do ULFA leaders still keep in touch with you?

A: Yes. The commander-in-chief Paresh Baruah calls me up sometimes. Last time he called after the death of LTTE leader Prabhakaran. Paresh commented that Prabhakaran got killed because he didn’t maintain external links and hence found no escape route out of Sri Lanka. However, he hardly mentions about peace talks with the Centre nowadays.

Q: Do insurgents any longer enjoy mass support in Assam? Do you regret that your efforts to bring ULFA to negotiation did not pay off?

A: I don’t think so. People of Assam have lost faith in any armed movement. Insurgency will continue but without people’s support as the ULFA is surviving today. I don’t regret that whatever I tried was not sufficient to bring ULFA to negotiation because I tried my best out of humanitarian consideration.

Q: What is the reason for the current ethnic unrest?

A: It is a natural fallout of decades of negligence of ethnic groups and their interests by Assam’s prime institutions which did not take the call to strengthen the bond with these indigenous communities. Assam has, in fact, historically neglected major ethnic groups. Now, conflicts have arisen with the enlightened young generation of these ethnic communities asking for their space in society.

Q: How have you managed to stay rooted while you have spent a better part of your life outside the state?

A: It is because of my upbringing and basically due to my father, Umakanta Goswami. He was the Director of Public Instruction (DPI) in then undivided Assam. An immensely resourceful person, he ensured that his children were brought up the same way as the children of common people so that they aren’t spoilt by the affluence they are born to. We were never allowed to celebrate our birthdays. At times we felt so frustrated but it paid off well. All his children went on to excel in their chosen fields and remained rooted. Our mother, Ambika Devi, who was an exceptional woman, had a significant influence upon my young life.