Judging the Judge-maker

The four judgments of the majority have reasserted judicial independence, with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure.  

A powerful two-term Chief Minister of a central Indian State was seen obsequiously bowing and scraping and loudly saying “Yes Sir, No Sir, As you please, Sir” to an innocuous High Court judge. A friend of the Chief Minister later asked him why the most powerful man in a huge State was kowtowing to someone who only a few months prior, as an undistinguished government pleader, would not have been given even an audience. The Chief Minister’s eyes twinkled as he replied to his friend, “Now, he is one of the few people who can remove me from my chair”. The friend’s eyes twinkled as well when he recollected that the Chief Minister too owed his fortune to his predecessor having to resign after a court verdict.

The story may be apocryphal, as many stories from the bar are, but it explains exactly why judicial appointments are so vital in the running of a constitutional democracy. It also explains why the executive and legislature seek to have a say in the process of selecting judges and why today’s judges zealously seek to protect their two decade-old process of immaculate conception, unassisted by other organs of the state.

Till 1993, judges were appointed by the executive in consultation with the judiciary. In good times, consultation with the judiciary went beyond seeking of opinion to attempt a consensus. However, the judicial voice was often neither dominant nor decisive. In bad times, however, governments made calls for a “committed judiciary”, attempted to court-pack and sometimes indulged in rank favouritism. The situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”

Quiet revolution

It was in this backdrop, in 1993 during Narasimha Rao’s minority government, with Mandal, mandir and economic liberalisation simultaneously boiling, that a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.

Whenever a vacancy arose in the brotherhood, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. The Indian judiciary managed to create, by constitutional interpretation, a self-appointing elite. Within that elite, the power to recommend appointments belonged to a super-elite called the collegium.

In 1998, during the Vajpayee Government, on a presidential reference, the Court defined the collegium thus: “The opinion of the Chief Justice of India ...has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two seniormost puisne Judges of the Supreme Court. ...The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench.”

The judgment also went on to increase the size of the collegium by holding that “we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court…” Separate Collegiums of three senior judges were provided for the appointment of High Court judges.

Unstable structure

Since the collegium comprised of the most senior amongst the judges, who all retired upon turning 65, its composition was never stable. On an average, a senior judge would normally serve in the collegium for three years or less and would head it for less than a year. Hence, securing judicial appointments through the collegium became a deadly game of musical chairs and Russian Roulette, randomly mixed. Any High Court judge, hopeful of going higher, found himself desperately seeking not to anger any possible member of the collegium. Sometimes, collegiums got stymied, when old rivalries between its members saw each other’s favourites getting vetoed. There were also times that collegium meetings became examples of bargaining within the collective, and consensus emerging from a division of the spoils. In this system, while no single politician could ensure that a candidate became a judge, it was quite likely that a single judge’s wrath could wreck a hitherto promising judicial career.

The resultant appointments by the collegium, can largely be described as middle-of-the-road, with the elimination of most outliers. Thus, brilliance often got mistaken for unsteadiness and vice versa. Seniority became an indispensable shibboleth. Equally, while a reputation for corruption was a disqualifier, lesser evils like tardiness or sloth often got glossed over. Most importantly, decisions on appointments were hugely delayed, as judges resorted to politicking.

But the collegium also ensured that judges were not beholden to any politician. A bold judgment could end up unseating the most powerful of politicians or irretrievably damaging them. Politicians of all hues yearned for the early years of strong governments with huge parliamentary majorities, where judges were sometimes seen, but rarely heard of.

Towards the end of the UPA regime, the government sought to tame judges by demolishing the collegium. It brought in a constitutional amendment to provide for the National Judicial Appointments Commission (NJAC) — an independent commission with three senior judges, two eminent outsiders and the Law Minister. The UPA’s inept parliamentary handling led to a failure of the bill. A commanding NDA victory in 2014 saw the Modi government revive the proposal and Parliament amended the Constitution brought about the 99th Amendment to provide for the NJAC. Subsequent ratification of 20 States was obtained and it seemed that the collegium was history.

Petitions were filed challenging the constitutional amendment. Going by earlier experiences of judicial standoffs, many men of law expected that a constitutional amendment, almost unanimously passed by Parliament, would be rubber-stamped by the Court. Some were hopeful of judicial creativity finding a via-media which, while upholding the amendment, limited governmental interference. When the judgment was delivered on October 15, 2015, it was a decisive blow. The Court by a 4-1 majority, struck down the 99th Amendment. Justice Kehar’s judgment concluded that the NJAC did “not provide an adequate representation, to the judicial component” and that “clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges” It further held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.” The clause it was held, impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”. The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.

The four judgments of the majority have reasserted judicial independence with its concomitant autonomy in appointments, as an integral part of the Constitution’s basic structure. No parliamentary majority can amend the Constitution to alter its basic structure and hence the 99th Amendment failed constitutional scrutiny. The court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has also decided to have further hearings in November to iron out wrinkles in the working of the collegium.

Justice Chellameshwar’s dissenting judgment, has, with strong logic, beautifully worded, upheld the constitutional amendment which scrapped the collegium. Like all dissents, his judgment is an appeal to the future and the powerful brooding spirit of the law. He ended his dissent quoting Macaulay’s dictum, “Reform that you may preserve.”

The Court has now opted to take the path to reform, rather than change to an altogether new road created by Parliament. It is to be hoped that the court’s choice leads not to the dreary desert sands of dead habit, but into ever widening thought and action.

Revising civil service recruitment

In 1954, as a wide-eyed 17-year old university student (in those pre-Class XII days), I trudged up and down New Delhi streets, camera in hand, looking for that decisive moment, to capture the right image. The Holy Grail for a novice photographer was acceptance by The Statesman for its then iconic Monday column, 'New Delhi Notebook', and my photo that made it (probably in 1956) was taken on Shah Jahan Road, of a solitary tonga, ambling under a tree canopy, early on a mist-draped winter morning. That road is home to Dholpur House, the seat of the Union Public Service Commission (UPSC), the mecca for my ilk; many of us dreamt of the Foreign or Administrative Service as the pinnacle of our ambition.

The UPSC is unique among Indian institutions in its sustained, impeccable reputation for probity and fairness. It will thus be with special caution, I imagine, that the Expert Committee set up by the GoI in September 2015 will tackle its mandate to review all the processes and modalities of civil service recruitment. Its terms of reference are: 'to arrive at an examination pattern that is holistic and does not exhibit any bias for or against candidates from any particular stream, subject area, language or region.' This committee is to give its report in six months, and one hopes it will honour that deadline, notwithstanding the complexity of its task. It is to study the plan of examination, number of papers, their structure and duration, marking scheme, weightage of marks and system of evaluation, besides age limits and the wider factors mentioned above.

Offered here are some thoughts. First, consider the huge numbers that our civil service exams involve. Roughly 950,000 apply for the annual selection; of these, 460,000 take the 'preliminary' exam. That is ruthlessly pared down to a mere 15,000-odd that qualify for the 'main' exam. This second written test winnows the number to 4,000 that are called for interviews. We might call them the 'Grand Catchment' for the annual civil service intake. In the current system, they appear before the multiple interview boards that work in parallel, each chaired by a UPSC Member, assisted by a cluster of retired officials and others. Under time pressure, a mere half-hour is prescribed for each interview; in practice this leaves barely 25 minutes to engage each candidate, and assess her/his worth for public service. Is that sufficient for such a major selection?

Parliament has been concerned with the subjectivity of interviews, and over the years, the marks assigned to it have been pared down, to minimise this element. We also see a trend to do away with the interview altogether, for the junior branches of public services. But subjectivity can also be tackled another way, by making the interview process multi-layered, assessed separately by several professional panels, leaving no scope for manipulation.

Other public services around the world stretch their assessment of individuals to two or more days, conducted via complex programmes of individual and group interviews and discussions, tests and activities that gauge ability to respond to time and other pressures, people skills, service attitudes and empathy, plus psychological profile. Many will say there is simply no time to do this. That connects with my next point.

Second, why not accept the demand of the IFS, the Indian Police Service (IPS) - and perhaps from the Indian Administrative service as well - and subject that final crop winnowed from the written exam process, to separate interview streams, suited to particular services? The IFS needs officials with sound communication ability, outgoing personalities, those that are adept at engaging people across cultures. Every country with a serious-minded diplomatic service, be it Singapore, Thailand or the UK, conducts such interviews over two or three days, often through a residential programme.

Before someone throws up their arms that the UPSC cannot possibly get into such lengthy interviews, why not outsource them to the indenting ministries, closely monitored by the UPSC? Thus, the ministry of external affairs, seeking 40 recruits, would interview the top 160 (in conformity with established reservation formulas), that have offered the IFS as their choice, in that same cascading service selection process that applies today to the final appointment of the successful candidates. MEA can hold a full-day interview, or stretch it to two days, under close supervision by a UPSC Member. The home ministry would similarly conduct interviews for the IPS, and perhaps the Department of Personnel for the IAS. One might imagine another ministry, say finance, opting to handle its interviews for those opting for financial management services, such as Audit, Customs, and Income Tax. For other services user ministries might opt to jointly or individually establish their own processes.

Third, the professional work of IFS officials is principally in the world's international lingua franca, and that requires mastery over English. This is not a matter of patriotic attachment to Indian mother languages. One can think of a special formula of, say, a year of additional English language training for candidates that have opted to write UPSC papers in Indian languages. However implemented, the requirement that IFS officials need fluid mastery over English becomes self-evident to anyone that has attended a drafting group meeting at any international conference.

Fourth, in a clamour for age relaxation under various formulas and concessions implemented over time, the average age of entry has risen continually, as has the spread in the ages of the youngest and oldest in every service cohort.

That does not make for healthy internal dynamics within services. Why not cutback to stricter age norms?

Finally, a country that does not often come to mind when we look to foreign experiences: consider China, in addition to the more obvious choices. Besides its public services, the Chinese Communist Party (CCP) operates a huge, rigorous selection - and training - process, from the junior-most to minister and governor levels. We can learn much from the numbers processed and the surprisingly objective procedures. Always, the caveat will apply, that no foreign system can do more than offer some leads, which need examination and reframing, for highly selective adaptation in India.

Emerging Trends in Cyber Security

Issues of cyber security might have come from the fringes to the centre of the threat calculus, but framing a coherent response has proved to be a difficult task. The vulnerabilities specific to software, hardware, applications and critical infrastructure are generic, and do not need recounting. The approaches of countries such as China and Russia have been analysed and commented upon in considerable detail. China is seen as an outlier that is exploiting the vulnerabilities to the maximum, to conduct a range of activities from cyber espionage to cyber harassment, on the basis of a stated policy to neutralise the advantages of countries it perceives as hostile to it; advantages that could be in terms of military and technological superiority, or even an open society. Russia has been criticised for a policy of tolerating the activities of cyber criminals and even utilising them for its purposes through its intelligence agencies, so long as their activities are not directed against the motherland. Recent trends indicate that what should have been the exception is increasingly becoming the norm. The absence of agreed norms of conduct in cyberspace and the scope for conducting a myriad range of malafide activities with limited risk of retribution is leading to both vertical and horizontal proliferation of such activities.

In most countries, de facto responsibility for cyber security is being vested with intelligence agencies for reasons of expediency; they have the necessary expertise and experience to deal with cyber security issues. These moves have potential long-term detrimental and destabilising effects. In the first instance, the mutual suspicion generated by such agencies across the entire spectrum of institutions, both within and outside national boundaries, makes the kind of co-operation required for cyber security very difficult, even when backed by political and administrative fiat. Recent reports that the National Security Agency (NSA), which is responsible for cyber security in the United States, is building massive complexes to capture, store, and analyse data flowing through the world’s networks would mean that the same agency would become the leading source of information insecurity. This, coupled with other news of private companies with global footprints such as Google entering into close collaboration with the NSA, will naturally create suspicions in other countries where these companies operate. Other issues being debated within the United States pertain to the NSA’s attempts to arrogate more powers of investigation, but the arguments against the granting of such powers are applicable universally.

Unless there is an international effort to work towards norms for cyberspace, the lawlessness that currently pervades will assume gargantuan proportions. The unhealthy dependence on intelligence agencies to manage cyberspace will lead to unholy alliances between these agencies and the lawless elements, almost out of necessity since the so-called “cyberwars” that break out every now and then are a numbers game. A comparison of the cyber wars in West Asia and South Asia would seem to bear this out, especially with regard to why such attacks have not crossed any red lines, despite threats to bring down the financial systems and so on. The near equivalence of hackers in the countries of South Asia would point to a low level form of deterrence in existence. Nearly all upswings in defacements and hacking, which normally follow a tit-for-tat pattern, have ended in truces being called by the hackers on various sides. The invisible hand of the intelligence agencies has been seen to be present wherever in the world patriotic hacking has taken place, and South Asia would be no exception. That there have not been any major incidents of hacking ascribed to hackers in the sub-continent despite the low levels of computer security would lead one to speculate that these agencies have had a restraining effect on such activities. That said, the scope for losing control is quite high, especially as more and more critical services go online and become potential targets.

One of the biggest drawbacks to securing cyberspace in the Indian context is the lack of adequate data. Whatever data is available does not adequately convey the full picture, or worse, can be misleading. Skewed data also results in skewed priorities; the continued highlighting of website hackings leads to a great deal of time being spent on securing government websites, irrespective of their importance, at a time when greater attention should be paid to other facets of cyber security such as securing critical infrastructure or auditing the cyber security preparedness of companies in critical sectors. To illustrate, according to the annual report of the National Crime Records Bureau, cyber-related crimes were a mere 1,322 in 2010, making up 0.19 per cent of all crimes in the country. At the same time, according to figures from the Reserve Bank of India as recently reported to Parliament, the total amount involved in cases of financial fraud over the Internet in 2011 was Rs.787.39 lakh or US $1.6 million. And finally, according to the Computer Emergency Response Team-India (CERT-In), 13,301 security incidents were reported to it in 2011. While these indices have been monitored over the past few years and provide a general idea of the upward trend in cyber-related incidents, they do not lend themselves easily to further analysis in the absence of more detailed data. For instance, in the case of financial fraud, it would be useful to know whether these were perpetrated by exploiting technical vulnerabilities or through other means such as social engineering, or by a combination of the two. The absence of more precise figures creates an information gap between the various stakeholders, be it the government, the various service providers primarily in the private sector, and the end users of these services. Much of the data lies with different organisations and is not available in the public domain. With cyber infrastructure and data largely in the hands of the private sector, there needs to be much more by way of standardisation and sharing of data between the government and the private critical information infrastructure companies such as the Internet Service Providers.

These issues highlight the complex and inter-connected challenges in cyber security, and demonstrate how the short sighted approach towards these challenges is taking us further away from the oft-vaunted goals of an open, secure and stable cyberspace.

National Cyber Security Policy 2013: An Assessment

With an aim to monitor and protect information and strengthen defences from cyber attacks, the National Cyber Security Policy 2013 was released on July 2, 2013 by the Government of India. The purpose of this framework document is to ensure a secure and resilient cyberspace for citizens, businesses and the government. With rapid information flow and transactions occurring via cyberspace, a national policy was much needed.

The document highlights the significance of Information Technology (IT) in driving the economic growth of the country. It endorses the fact that IT has played a significant role in transforming India’s image to that of a global player in providing IT solutions of the highest standards.

The Cyber Security Policy aims at protection of information infrastructure in cyberspace, reduce vulnerabilities, build capabilities to prevent and respond to cyber threats and minimize damage from cyber incidents through a combination of institutional structures, people, process, technology and cooperation. The objective of this policy in broad terms is to create a secure cyberspace ecosystem and strengthen the regulatory framework. A National and sectoral 24X7 mechanism has been envisaged to deal with cyber threats through National Critical Information Infrastructure Protection Centre (NCIIPC). Computer Emergency Response Team (CERT-In) has been designated to act as a nodal agency for coordination of crisis management efforts. CERT-In will also act as umbrella organization for coordination actions and operationalization of sectoral CERTs. A mechanism is proposed to be evolved for obtaining strategic information regarding threats to information and communication technology (ICT) infrastructure, creating scenarios of response, resolution and crisis management through effective predictive, prevention, response and recovery action.

The policy calls for effective public and private partnership and collaborative engagements through technical and operational cooperation. The stress on public-private partnership is critical to tackling cyber threats through proactive measures and adoption of best practices besides creating a think tank for cyber security evolution in future.

Another strategy which has been emphasized is the promotion of research and development in cyber security. Research and development of trustworthy systems and their testing, collaboration with industry and academia, setting up of ‘Centre of Excellence’ in areas of strategic importance from the point of view of cyber and R&D on cutting edge security technologies, are the hallmarks of this strategy laid down in the policy.

The policy also calls for developing human resource through education and training programmes, establishing cyber security training infrastructure through public private partnership and to establish institutional mechanisms for capacity building for law enforcement agencies. Creating a workforce of 500,000 professionals trained in cyber security in the next 5 years is also envisaged in the policy through skill development and training. The policy plans to promote and launch a comprehensive national awareness programme on security of cyberspace through cyber security workshops, seminars and certifications with a view to develop awareness of the challenges of cyber security amongst citizens.

The policy document aims at encouraging all organizations whether public or private to designate a person to serve as Chief Information Security Officer (CISO) who will be responsible for cyber security initiatives. Organizations are required to develop their information security policies properly dovetailed into their business plans and implement such polices as per international best practices. Provisions of fiscal schemes and incentives have been incorporated in the policy to encourage entities to install trustworthy ICT products and continuously upgrade information infrastructure with respect to cyber security.

The release of the National Cyber Security Policy 2013 is an important step towards securing the cyber space of our country. However, there are certain areas which need further deliberations for its actual implementation. The provisions to take care security risks emanating due to use of new technologies e.g. Cloud Computing, has not been addressed. Another area which is left untouched by this policy is tackling the risks arising due to increased use of social networking sites by criminals and anti-national elements. There is also a need to incorporate cyber crime tracking, cyber forensic capacity building and creation of a platform for sharing and analysis of information between public and private sectors on continuous basis.

Creating a workforce of 500,000 professionals needs further deliberations as to whether this workforce will be trained to simply monitor the cyberspace or trained to acquire offensive as well as defensive cyber security skill sets. Indigenous development of cyber security solutions as enumerated in the policy is laudable but these solutions may not completely tide over the supply chain risks and would also require building testing infrastructure and facilities of global standards for evaluation.

Indian Armed forces are in the process of establishing a cyber command as a part of strengthening the cyber security of defence network and installations. Creation of cyber command will entail a parallel hierarchical structure and being one of the most important stakeholders, it will be prudent to address the jurisdiction issues right at the beginning of policy implementation. The global debate on national security versus right to privacy and civil liberties is going on for long. Although, one of the objectives of this policy aims at safeguarding privacy of citizen data however, no specific strategy has been outlined to achieve this objective.

The key to success of this policy lies in its effective implementation. The much talked about public-private partnership in this policy, if implemented in true spirit, will go a long way in creating solutions to the ever-changing threat landscape.

Indo-US Defence Cooperation: Harvesting Defence Technologies

It is raining defence technologies these days. On top of as many as 17 technologies offered by the United States for transfer to India, another 24 are believed to be on the cards, taking the tally to 41.  

This is not all. Some time back, four ‘path finder’ projects were identified by the two countries for co-production of defence products based on comparatively simpler technologies. These were: the Raven unmanned aerial vehicle (UAV), ‘roll-on, roll-off’ intelligence-gathering and reconnaissance modules for the C-130J Super Hercules aircraft, mobile electric hybrid power sources, and uniform integrated protection ensemble increment-2 (chemical, biological warfare protection gear for soldiers).

Meanwhile, a group of Indian and US officials has kicked off a dialogue for cooperating on design, development and manufacture of the third aircraft carrier for India. With such technologies as nuclear propulsion and electromagnetic aircraft launch systems, India could come to possess one of the most sophisticated aircraft carrier fleets in the region.

It would be fair to assume that these are technologies that India requires but does not possess. If so, transfer of these technologies could give a much needed shot in the arm for modernisation of the armed forces, if one also factors in similar offers from some other countries.

Raining technologies it is, but their harvesting poses a challenge. Consider the fact that the first 10 of 41 technologies were offered by the US two years back and the remaining seven within less than a year of the first offer. It has been long enough since then for some decision to have been taken on these offers.

Last year, Frank Kendall, US Under Secretary of Defence for Acquisition, Technology and Logistics, had told reporters that the ‘groundbreaking’ offers made by the US included co-development and co-production of Javelin missiles, apart from helicopters, unmanned aerial vehicle (UAV) and artillery systems. Two of these offers seem to have run into rough waters.
The Army is believed to have recently rejected the US offer of the Raven mini-UAV, although as many as 35 Indian companies have offered to make the mini-UAV as per the Army’s specifications. As for the missiles, India decided to go ahead with the Israeli offer of the Spike anti-tank guided missile (ATGM) and launchers  instead of with the US offer of Javelin missiles which was projected as one of the ‘groundbreaking offers’.

Not that these developments amount to a big setback. At least one India-US project for co-development of lightweight protective clothing for soldiers seems to have recently been cleared by the Ministry of Defence (MoD). But, for the present, that seems to be all, unless one considers the tremendous strides made by India-US defence trade sans transfer of technology.

The US has emerged as the largest supplier of arms to India, surpassing Russia and Israel, thanks largely to its Foreign Military Sales (FMS) Programme, under which the MoD buys military equipment following the procedure laid down by the US. There is apparently great comfort for MoD officials in procuring equipment through the FMS route as the procedural propriety is underwritten by US agencies. Even so, the history of the past three years of the Defence Trade and Technology Initiative (DTTI) of the US Government, started in 2012, raises issues that have implications for the further growth of defence cooperation between India and the US.

The first issue arises from the piling up of US offers without corresponding Indian swiftness in responding to them. This flies in the face of DTTI’s objective of “strengthening India’s defense industrial base by moving away from the traditional ‘buyer-seller’ dynamic toward a more collaborative approach”. The UAV Raven and ATGM Spike episodes raise questions about the mechanism for identification of the technologies and projects for co-development and co-production.

Flooding the MoD with offers may be of little use unless the offers are in response to specific requirement projected by it. Equally importantly, sitting over offers does no good for India’s image as a country that means business, both literally and figuratively. For things to move fast, it is important that the initiative be driven by a crack team in the MoD.

Second, the Indian side has to be absolutely clear about what it wants and should place the specifics of the requirement on the table when talks take place in several groups that have been set up under the rubric of DTTI. There should be no more repeats of Raven and Spike episodes. There also has to be clarity within the MoD of where other countries, which want to do similar business with India, figure in the changing calculus of India’s strategic outreach.  

Third, there is no point in turning one’s back on the financials. The defence budget, especially the segment that funds capital acquisitions, is widely seen as inadequate for financing the modernisation needs of the armed forces. Any substantial increase in budgetary allocations seems unlikely. If anything, the pressure on the defence budget is likely to grow once the recommendations of the seventh pay commission start getting implemented, probably next year onward.

Funds are also required for making up the shortage in ammunition, improving operational serviceability of the equipment held by the armed forces and discharging the committed liabilities in respect of several ongoing contracts.

There is a need to do the math and press the co-development, co-production agenda to the extent it is financially viable. No one, at least from the private sector, would enter the monopsonic defence production market unless there are reasonable prospects of the products being bought.  Eventually, therefore, it is the MoD which will have to pay for whatever is manufactured as a result of joint efforts.

Fourth, even government-to-government talks cannot yield much unless there is clarity about procedures and the bureaucratic propensity to dawdle gives way to alacrity and boldness in decision-making.

There are no laid down procedures for procurement of technology per se. The existing procedures relate to procurement of equipment, weapon systems, myriad platforms and other tangible capabilities. Technology is relevant only if it is tied to one of these. Therefore, the existing procedures will have to be realigned to impart momentum for co-development and co-production projects under the cooperation agreements with other countries.

Ultimately, everything hinges on decision-making which has been the bane of defence acquisition in India. Something drastic needs to be done about it. It seems prophetic that one of the objectives of DTTI is to “transform the bilateral defense relationship into one that is limited only by independent strategic decisions, rather than bureaucratic obstacles or inefficient procedures”. This is the key to bilateral defence trade not just between India and the US but with every other country.

Pradhan Mantri Khanij Kshetra Kalyan Yojana

Pradhan Mantri Khanij Kshetra Kalyan Yojana 

Background

After agriculture, mining is the second largest employer in India. Most of India’s minerals are located in forest areas inhabited by tribal, backward and deprived population. It can be argued, that the nation’s unemployment problem could have been solved to a great extent, and inclusive development achieved with exemplary standards, had this sector been accorded the importance it deserves.

The present government, under the visionary and dynamic leadership of Prime Minister Shri Narendra Modi ji, amended the MMDR Act in early 2015. Amid other significant improvements, the new Act addressed two root issues underlying the mining sector:

a)      Reinvigorating the mining industry by bringing in transparency and laying greater emphasis on exploration

b)      Distributing the fruits of prosperity achieved through mining to affected people for stable mining atmosphere

It is for the latter cause, that for the first time in the history of India, a separate fund was earmarked and established exclusively for the social and economic upliftment of mining affected people and places. The MMDR Amendment Act 2015 provides for District Mineral Foundation, or DMF, and mandates that all State Governments have to establish a DMF in each district affected by mining operations. To preserve the virtues of Cooperative Federalism, the Act empowered State Governments to frame rules pertaining to DMF.

Addressing the nation at large from the ramparts of Red Fort on Independence Day 2015, Hon’ble Prime Minister Shri Modi ji announced that the government would introduce a scheme for the welfare of people and development of area affected by mining.

The Scheme

In September 2015, the Ministry of Mines has issued Guidelines for using the funds accruing to DMF. Called as the Pradhan Mantri Khanij Kshetra Kalyan Yojana (PMKKKY), this scheme will be binding on State Governments.

Encompassing all facets of development, social and economic, immediate and long-term, the Pradhan Mantri Khanij Kshetra Kalyan Yojana rests on three main objectives:

1.      To implement various developmental and welfare projects/programs in mining affected areas that complement the existing ongoing schemes/projects of State and Central Government

2.      To minimize/mitigate the adverse impacts, during and after mining, on the environment, health and socio-economics of people in mining districts; and

3.      To ensure long-term sustainable livelihoods for the affected people in mining areas.

The objective has been spelled out clearly so that the end goal remains prominent in its clarity: causing substantial improvement in the quality of life.

Highlights of the Scheme

Here are some pertinent facts concerning the scheme, which may come in handy for administrators, legislators and citizens concerned:

ü      The Scheme is applicable with effect from January 12, 2015

ü      Mining leases executed before 12th January, 2015 will have to contribute an amount equal to 30% of the royalty payable by them to the DMFs

ü      Mining leases granted after 12th January, 2015 through auction will contribute an amount equivalent to 10% of the royalty payable

ü      The total fund generated under this scheme is expected to be around Rs 6,000 crore per annum

The System in the Scheme

To ensure that PMKKKY serves to enhance lives of mining affected people on a sustained basis, the Government envisaged that the funds of DMF must also be spent in the most optimum way possible. It intended that the PMKKKY should function as a self-sustaining system of support, and not as one-time Government sop. Hence, it was crucial to guard this scheme against the trap of populist measures. Caveats have therefore been installed to ascertain that important tasks are not sacrificed at the hand of urgent tasks.

The scheme earmarks 60% of expenditure of this fund for high priority areas, and 40% towards other priority areas. Areas included under each head comprise:

High Priority Areas	Other Priority Areas
Drinking water supply	Physical infrastructure
Environment preservation and pollution control measures	Irrigation
Healthcare	Energy and Watershed Development
Education	Any other measures for enhancing environmental quality in mining district
Welfare of Women and Children
Welfare of aged and disabled people
Skill development
Sanitation

Intended beneficiaries of the Scheme

Cutting out all ambiguities, the PMKKKY clearly lays out the definition of:

1.      Directly affected areas: Where, inter-alia, direct mining-related operations such as excavation, mining, blasting, beneficiation and waste disposal etc. are located.

2.      Indirectly affected areas: Where local population is adversely affected on account of economic, social and environmental consequences due to mining-related operations. These could be deterioration of water, soil and air quality, reduction in stream flows and depletion of ground water etc.

3.      Affected people/ communities: Families identified as ‘Affected family’ and ‘Displaced family’ as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and other families identified in consultation with Gram Sabha.

In line with these definitions, it mandates the DMF to maintain a list of people and places under these categories, who will be considered as the actual beneficiaries of the PMKKKY scheme. 

Special provisions for scheduled areas:

The process of utilization of PMKKKY funds shall be guided by the provisions contained in Article 244 read with Schedule V and Schedule VI to the Constitution relating to administration of the Scheduled Areas and Tribal Areas and the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The Gram Sabha of affected villages to have major say in approval of plans and inspection of reports.

Other features of the scheme:

·        The corpus of PMKKKY should, preferably, be dovetailed with the ongoing and existing welfare plans mooted by Centre/ State

·        An amount not exceeding 5% of the annual receipts of the Foundation subject to an upper limit fixed by state government may be utilised for administrative, supervisory and overhead costs of the Foundation

·        Staff/ manpower for implementing the PMKKKY scheme to be taken on contractual basis; no scope for permanent employment

·        For mining affected areas which fall under two districts, or a welfare plan that involves peoples/ places outside the district of operation, clear rules have been laid out in the guidelines

·        All work/ contracts to be awarded in accordance with rules issued by State Governments

·        Transfer of funds to agencies/ beneficiaries directly to bank account

·        Each DMF to maintain a website, and make public all data concerning details of self, beneficiaries, funds collected, minutes of meetings, action taken reports,  annual plans, status of ongoing projects etc.

·        The accounts of DMF to be audited every year, and included in its Annual Report

·        DMFs to prepare Annual Reports within three months of the end of Financial Year, should be laid before State Legislative Assembly and find place on its website

District-wise collection of Royalty in 2014-15

The district wise collection of mining royalty for 2014-15 for ten mineral rich states is given below. This gives planners and people a fair idea of the DMF collection they can expect in their district. And this is only the beginning, since auctions of new mines under the revamped law is yet to begin.

(tables come here)

Miles covered, and miles to go

As promised by the Prime Minister in his Independence Day speech, the PMKKKY has been devised as the dedicated fund for development of mining related areas. The other provisions of MMDR Amendment Act 2015 provide a facilitating and enabling environment for scientific, responsible, sustainable and transparent mining to flourish.

Together, we strive to create a nation which rides on its strengths, and has people at its heart.

Exercise Malabar – 15

Exercise Malabar – 15

Initiated in 1992, as a bilateral exercise between the Indian and US Navies, the scope, complexity of operations and level of participation has increased steadily in successive editions of the India-US Malabar Naval Exercise. The 18th edition of the exercise was held in the Western Pacific in July 2014 in which Japanese Maritime Self Defense Force (JMSDF) was invited to participate.

MALABAR-15, the 19th edition of the exercise, will be conducted in the Bay of Bengal from 14 -19 October 2015. Alongwith the Indian Navy and the US Naval Forces, JMSDF will also participate in the exercise. The scope of MALABAR-15 includes wide-ranging professional interactions during the Harbour Phase and a diverse range of operational activities at sea during the Sea Phase.

During MALABAR-15, the Indian Navy will be represented by INS Shivalik an indigenous frigate, INS Ranvijay a guided missile destroyer, INS Betwa an indigenous frigate and INS Shakti ¬¬¬¬a Fleet Support Ship. In addition, one Sindhugosh class submarine, INS Sindhudhvaj, Long Range Maritime Patrol Aircraft P8I and integral rotary wing helicopters are also scheduled to participate in the trilateral exercise.

The US Navy will be represented by the ships from Carrier Task Force (CTF) 70 of the USN 7th Fleet, which is based at Yokosuka, Japan. The CTF will include the Nimitz class aircraft carrier USS Theodore Roosevelt, Ticonderoga class Cruiser USS Normandy and Freedom Class Littoral Combat ship USS Forth Worth. In addition, one Los Angeles class nuclear powered submarine USS City of Corpus Christi, F18 Aircraft from US Carrier Air Wing and P8A Long Range Maritime Patrol Aircraft will also participate in the exercise.

The JMSDF will be represented by JS Fuyuzuki, a missile destroyer with SH 60K integral helicopter.

MALABAR – 15 is part of the process of enhancing naval cooperation among important navies of Indo-pacific regions which helps in enhancing mutual understanding. Sharing of best practices by the three navies will strengthen their respective capacities and help create better synergies for effective and speedy action to deal with challenges of disaster prevention and relief and maritime safety and security in the Indo-Pacific region, for the benefit of the global maritime community.