What has changed in Jammu and Kashmir

Source: By Faizan Mustafa: The Indian Express

The Govenment on 5 August 2019 fulfilled its election promise of removing the special status for Jammu and Kashmir in India’s Constitution. Special status was withdrawn by invoking the same Article 370 which had been seen as firewalling the autonomy of Jammu and Kashmir. What are the constitutional issues in — and arising out of — this development? What will change in the state and the country? What can be the basis of a possible legal challenge to the decision of the government?

Has Article 370 been scrapped?

The Constitution (Application to Jammu and Kashmir) Order, 2019, issued by President Ram Nath Kovind “in exercise of the powers conferred by Clause (1) of Article 370 of the Constitution”, has not abrogated Article 370. While this provision remains in the statute book, it has been used to withdraw the special status of Jammu and Kashmir.

The Presidential Order has extended all provisions of the Indian Constitution to Jammu and Kashmir. It has also ordered that references to the Sadr-i-Riyasat of Jammu and Kashmir shall be construed as references to the Governor of the state, and “references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers”.

This is the first time that Article 370 has been used to amend Article 367 (which deals with Interpretation) in respect of Jammu and Kashmir, and this amendment has then been used to amend Article 370 itself.

What is the status of Article 35A now?

Article 35A stems from Article 370, and was introduced through a Presidential Order in 1954. Article 35A does not appear in the main body of the Constitution — Article 35 is followed by Article 36 — but appears in Appendix I. Article 35A empowers the Jammu and Kashmir legislature to define the permanent residents of the state, and their special rights and privileges.

On 5 August 2019 Presidential Order has extended all provisions of the Constitution to Jammu and Kashmir, including the chapter on Fundamental Rights. Therefore, the discriminatory provisions under Article 35A are now unconstitutional. The President may also withdraw Article 35A. This provision is currently under challenge in the Supreme Court on the ground that it could have been introduced in the Indian Constitution only through a constitutional amendment under Article 368, and not through a Presidential Order under Article 370. However, Presidential Order, too has amended Article 367 without following the amending process.

So, what has changed in Jammu and Kashmir?

Rajya Sabha on 5 August 2019 approved The Jammu and Kashmir Reorganisation Bill, 2019. The Bill was also passed by Lok Sabha on next day. In effect, the state of Jammu and Kashmir will now cease to exist; it will be replaced by two new Union Territories:Jammu and Kashmir, and Ladakh. UTs have become states earlier; this is the first time that a state has been converted into a UT. The UT of Jammu and Kashmir will have an Assembly, like in Delhi and Puducherry.

Article 3 of the Constitution gives Parliament the power to amend the Constitution by a simple majority to change the boundaries of a state, and to form a new state. But this change requires that such a Bill be first referred to the concerned state Assembly by the President for ascertaining its views. Explanation II of Article 3 says Parliament’s power extends to forming Union Territories.

Not only has Jammu and Kashmir lost its special status, it has been given a status lower than that of other states. Instead of 29, India will now have 28 states. Kashmir will no longer have a Governor, rather a Lieutenant Governor like in Delhi or Puducherry.

It is also likely that corporates and individuals will be able to buy land in Jammu and Kashmir. Non-Kashmiris might now get jobs in Kashmir. A process of demographic change might begin, and progress over the coming decades.

What is the significance of Article 370?

The most important feature of federalism in the United States was the “compact” between the 13 erstwhile British colonies that constituted themselves first into a confederation and then into a federal polity under the country’s 1791 constitution. India’s Supreme Court in State of West Bengal v. Union of India (1962) attached the highest importance to an “agreement or compact between states” as an essential characteristic of federalism. In SBI (2016), the apex court accepted the presence of this compact for Kashmir. Article 370 was an essential facet of India’s federalism because, like the compact in the United States, it governed the relationship of the Union with Jammu and Kashmir. The Supreme Court has held federalism to be part of the basic structure of India’s Constitution.

The original draft of Article 370 was drawn up by the Government of Jammu and Kashmir. A modified version of the draft was passed in the Constituent Assembly of India on May 27, 1949. Moving the motion, N Gopalaswami Ayyangar said that if the accession was not ratified by a plebiscite, “we shall not stand in the way of Kashmir separating herself away from India”.

On October 17, 1949, Article 370 was included in India’s Constitution by the Constituent Assembly. Some critics of Article 370 have argued earlier that Kashmir joined India in 1947 without any conditions, and Article 370 unnecessarily gave it special status. However, the drafting of the Constitution ended on November 26, 1949 — Article 370 had been included before the Constitution was adopted.

What did the Instrument of Accession say?

The Indian Independence Act, 1947, divided British India, i.e., the territories under the direct administration of the British, into India and Pakistan. The 580-odd princely states that had signed subsidiary alliances with the British had their sovereignty restored to them, and were given the options of remaining independent, joining the Dominion of India, or joining the Dominion of Pakistan. Section 6(a) of the Act said joining either India or Pakistan would have to be through an Instrument of Accession. States could specify the terms on which they were joining one of the new dominions.

Technically, therefore, the Instrument of Accession was like a treaty between two sovereign countries that had decided to work together. The maxim of pacta sunt servanda in international law, which governs contracts or treaties between states, asks that promises must be honoured. On 5 August 2019 Presidential Order under Article 370 is a negation of the constitutional pact that India signed with Maharaja Hari Singh.

The Maharaja, the Hindu king of a Muslim-majority state, had initially wanted to stay independent. He signed the Instrument of Accession on October 26, 1947, after Afridi tribesmen and Pakistan Army regulars invaded the state, and India agreed to help only after he acceded. The Schedule appended to the Instrument of Accession gave the Indian Parliament power to legislate for Jammu and Kashmir on only defence, external affairs and communications.

In Clause 5 of the Instrument of Accession, Hari Singh said that the terms of “my Instrument of Accession cannot be varied by any amendment of the Act or of The Indian Independence Act unless such amendment is accepted by me by an Instrument supplementary to this Instrument”. In Clause 7, he said: “Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or to fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

Article 370 was a constitutional recognition of the conditions mentioned in the Instrument of Accession, and reflected the contractual rights and obligations of the two parties.

But wasn’t Article 370 just a temporary provision?

Article 370 is the second Article of Part XXI of India’s Constitution, which is titled “Temporary, Transitional and Special Provisions”. Article 370 was temporary in the sense that the Constituent Assembly of Jammu and Kashmir was given the right to modify/delete/retain it. The Constituent Assembly of Kashmir decided in its wisdom to retain it.

The other view was that it was “temporary” until a plebiscite had been held to ascertain the wishes of the people of Jammu and Kashmir. In a written reply to Parliament last year, the government had said there was no proposal to remove Article 370.

  1. In Kumari Vijayalakshmi Jha vs Union Of India (2017), Delhi High Court rejected a petition that argued that Article 370 was temporary, and that its continuation was a fraud on the Constitution.
  2. In April 2018, the Supreme Court said that the word “temporary” in the headnote notwithstanding, Article 370 was not temporary.
  3. In Santosh Kumar (2017), the apex court said that due to historical reasons, Jammu and Kashmir had a special status.
  4. The Supreme Court in SBI v Zaffar Ullah Nehru (2016) observed that the federal structure of the Constitution is reflected in Part XXI. The court also said that J&K has a special status, and that Article 370 was not temporary. The court referred to Article 369 of Part XXI that specifically mentions the period of five years; no time limit is mentioned in Article 370. The court observed that Article 370 cannot be repealed without the concurrence of the Constituent Assembly of Jammu and Kashmir.
  5. In Prem Nath Kaul (1959), a five-judge Bench of the Supreme Court observed that Article 370(2) shows that the continuance of the exercise of powers conferred on Parliament and the President by the relevant temporary provisions of Article 370(1) is made conditional on the final approval of the Constituent Assembly of Jammu and Kashmir.
  6. In Sampat Prakash (1968), the apex court decided that Article 370 could be invoked even after the dissolution of the Constituent Assembly of Jammu and Kashmir. “Article 370 has never ceased to be operative,” the five-judge Bench said.

Why didn’t governments before this take such a step?

Nehru probably lacked the political will, and wanted to honour the constitutional pact with Maharaja Hari Singh. He also had a sentimental connection with Kashmir. Atal Bihari Vajpayee’s idea was that of the healing touch — in the form of Kashmiriyat, Insaniyat and Jamhooriyat. The first Modi government was in an alliance with the PDP in Jammu and Kashmir till 2018. The Home Minister has said that once peace returns and the situation improves, the government will restore statehood to Jammu and Kashmir.

Can the Presidential Order be challenged in the Supreme Court on what grounds?

It will most likely be challenged. However, the Supreme Court will consider that Article 370 does, indeed, give sweeping powers to the President. It might also take two to three years for a Constitution Bench of the court to decide such a challenge.

The possible grounds of challenge could include the argument that the conversion of Jammu and Kashmir into a Union Territory is in violation of Article 3, as the Bill was not referred by the President to the state Assembly. Also, can the Constituent Assembly mean Legislative Assembly? Are the Governor and the state government one and same?

The constitutional relevance of Instrument of Accession will also be examined by the court. Whether Article 370 was part of the basic structure will likely be considered. The use of Article 367 in amending Article 370 will also be examined.

So, is Kashmir now fully integrated with India?

Article 3 of the Jammu and Kashmir constitution itself declares the state to be an integral part of India. In the preamble of the Jammu and Kashmir constitution, not only is there no claim to sovereignty like in the Constitution of India, there is, rather, a categorical acknowledgment that the object of the Jammu and Kashmir constitution is “to further define the existing relationship of the state with the Union of India as its integral part thereof”. Integration thus, was already complete. Article 370 merely gave some autonomy to Jammu and Kashmir, which has now been withdrawn.


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Legal hurdles could derail Kashmir move

Source: By Namit Saxena: Deccan Herald

Home Minister Amit Shah’s statement on Kashmir on 5 August 2019 brought about this big change in the current status quo: Empowered under Article 370(1) of the Constitution, vide the Constitution (Application to Jammu and Kashmir) Order, 2019, the President of India superseded the Constitution (Application to Jammu and Kashmir) Order, 1954, and amended Article 367 of the Constitution.

The Jammu and Kashmir Reorganisation Bill, 2019 seek to declare Ladakh as a Union Territory without legislature and Jammu & Kashmir a Union Territory with legislature. The question is, will these moves pass legal muster or be shot down when challenged in court?

Article 370 is in the nature of a ‘temporary provision’ with respect to J&K. It comes under Part XXI of the Constitution, which deals with “Temporary, Transitional and Special provisions” — granting J&K a special autonomous status. Unlike other similarly situated ‘special provisions’ for other states, Article 370 was intended to be temporary in nature. The 1954 Presidential Order restricted applicability of laws to the territory of J&K without the state’s permission and gave it proportionate representation in Parliament. This Order also inserted Article 35A in the Constitution, which has been a bone of contention for many years.

Since then, there have been more than 45 Presidential Orders, extending different parts of the Constitution to J&K, and making necessary amendments to the Constitution for their application to the state. The conjoint effect of Articles 370 and 35A and the 1954 Presidential Order is that the Centre needs the state government’s concurrence to apply laws — except in defence, foreign affairs, finance and communications. These provisions also lay down that the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights, as compared to other Indians. As a result, Indian citizens from other states cannot buy land or property in J&K.

Legal issues

Under Article 370(1), which starts with a non-obstante clause (meaning that no other constitutional provision binds it), the President has been provided with a special power. The only condition is that it should be in ‘concurrence’ with the ‘government’ of the state. The first issue arises here. There is no ‘government’ in the state and it is under President’s Rule. Can the Governor be kept on the same pedestal as an elected government?  

Secondly, on whose aid and advice can the Governor act in the absence of elected representatives? Thirdly, there is no sanction by the Governor till now with the parliamentarians. If the sanction was taken from the Governor and notified, its validity could have been challenged and the next step of direct declaration could have been avoided.

The fourth issue is that Article 370 has itself been indirectly used to dilute itself. Article 370(3) provides that the President may declare Article 370 to be inoperative but only on the recommendation of the ‘Constituent Assembly’. In the absence of an express declaration, the Constituent Assembly cannot be understood as the Legislative Assembly or the Parliament.

On the other hand, the Constituent Assembly can never be reconvened in the absence of any law to that effect. Therefore, vide the instant Presidential Order; the President has also laid down that the Constituent Assembly shall be deemed to mean Legislative Assembly of the state. Can a constitutional provision be amended without being tabled, discussed and debated?

This raises another question: whether a constitutional provision can be used to dilute itself? Furthermore, it is trite law that what cannot be done directly, cannot be done indirectly. So, by amending Article 367, empowered under Article 370(1)(d), the Presidential Order dilutes Article 370 and negates Article 370(3). An answer to this may be that Article 370(3) is only one of the modes and not the only mode of doing away with Article 370 as a whole.

Last, but not least, Article 367 has been amended by a Presidential Order. Whether a constitutional provision (except those expressly permitted to be done so) can be amended by the President without a constitutional amendment bill being passed by both Houses (except for a money bill) simply by way of a Presidential Order deserves to be answered. These will be the questions which will arise before the Supreme Court once this Presidential Order is challenged.

The Presidential Order does not repeal or revoke Article 370by using Article 370(3). However, it makes Article 370 excessively weak and brings a monumental change in its strength. A five-judge Bench of the Supreme Court in its March 1961 judgment in Puranlal Lakhanpal vs The President of India discussed the President’s powers under Article 370(1) to “modify” the Constitution.

Though the court observed that the President may modify an existing provision in the Constitution in consequence of the power under Article 370, the judgment is silent as to whether the President can, without Parliament’s knowledge, introduce a new Article or amend an Article which will dilute Article 370. The Order will be challenged soon, and the Supreme Court’s will be the final word. Till then, fingers crossed!


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Who holds the key?

Source: By Gagan Bajpai: Deccan Herald

Article 370 was added to the Constitution by the founding fathers of the country after mature consideration and deliberation. It was the condition of Kashmir’s accession to India. It is argued that if the accession of Kashmir is sacrosanct, then the condition of accession – that is, Article 370 -- is also sacrosanct. Therefore, before finding out who holds the key to it, it is important to understand the most talked-about but least read Article of the Constitution.

Article 370 encompasses a very different kind of Centre-state relationship than the one existing between other states and the Centre. This special relationship is a product of a unique legislation. After the accession of the State of Jammu and Kashmir, only Articles 1 and 370 of the Constitution were applied to it and it was decided that the rest of the Articles could be made applicable only by virtue of Presidential orders, in consultation with the Government of J&K, in matters related to the Instrument of Accession [370(1)].

Under Article 370(2), the power of the state government to accord concurrence to the orders passed by the President in matters other than the items mentioned in the Instrument of Accession would end once the state’s Constituent Assembly was convened.

Additionally, it states that the power of the Constituent Assembly to rectify such orders would end the day the Constituent Assembly was dissolved. However, the most interesting part of Article 370 is its clause 3. Article 370(3) empowers the President to make an order to abrogate or amend Article 370. However, the recommendation of the state’s Constituent Assembly was made mandatory in this regard. This means that the President of India may, by public notification, declare that the Article shall cease to be operative or shall be operative with such exceptions and modifications as he may specify.

The President can issue such a notification only on the recommendation of the Constituent Assembly of the state. Since the Constituent Assembly ceased to exist in 1956, this provision has become inoperative. Since Article 370 starts with the expression, “Notwithstanding anything in this Constitution,” therefore Article 370 can only be repealed using its own express provision of repeal and not through any other provision.

One possible way out of this impasse for the central government is through Article 368. Article 368 provides for the powers and procedure of amending the Constitution. However, Article 368 also provides that no amendment passed in accordance with it shall apply to the state of Jammu and Kashmir unless it is extended to J&K by an order issued by the President under clause (1) of Article 370. Such an order will further require the concurrence of the state government. Therefore, it could well be said that Article 368 is subjected to Article 370 insofar as the repeal of Article 370 is concerned.

The authority of the President to pass presidential orders under Article 370 has come up before the Supreme Court only twice till date. Therefore, it becomes imperative to discuss how the issue was dealt with by the apex court. In Prem Nath Koul vs State of J&K, a constitutional bench collectively observed that the Constitution-makers attached great importance to the final decision of the Constituent Assembly under Article 370(2). However, in Sampat Prakash, the Supreme Court held a view contrary to its earlier judgment in Prem Nath Koul.

It is quite interesting, rather perplexing, to note that although the only case which came before the Supreme Court till then in relation to Article 370 was the Prem Nath Koul case, the court did not even consider or refer to it while deciding Sampat Prakash and held that under Article 370, the President can pass orders despite the state’s Constituent Assembly having ceased to exist.

However, it is to be noted that the judgment, as in Prem Nath Koul, has been given by a constituent bench of five judges and hence overrules the decision as given in Sampat Prakash, which was a single judge decision, thus concluding that the state’s Constituent Assembly’s concurrence is mandatory for passing any repealing legislation.

Hence, the way to repeal the Article is to pass an order under Article 370 itself making a constitutional amendment under Article 368 ipso facto applicable to the State of Jammu and Kashmir. Such an order can be made only with the concurrence of the state government. After making such an order, Parliament may pass a Bill to amend the Constitution containing a provision for the repeal of Article 370. Such an amendment will have to be passed by two-thirds of the members’ present and voting and absolute majority of the total membership in each House of Parliament.


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Citizen as terrorist

Source: By Prasenjit Chowdhury: Deccan Herald

The amendments to the Unlawful Activities (Prevention) Act that propose to allow the government to designate an individual as a terrorist give rise to the fear of blatant abuse of the provision. Interestingly, the Congress ostentatiously walking out in the Lok Sabha demanding parliamentary scrutiny voted in favour of the UAPA Bill in Rajya Sabha. Congress leaders mumbled they could not oppose its passage, lest they should be portrayed as diluting the fight against terrorism.

Just in case anybody has any questions about the unwary targets, Home Minister Amit Shah’s statement makes it clear that the new law will make it difficult for ‘Urban Naxals’. Anybody harbouring misplaced sympathies or ideologies that the ruling dispensation finds wayward may be booked as terrorists and jailed, while the iron-fisted law would render redress difficult to obtain. Therefore, a vast army of civil and human rights activists, dissenters, political opponents and members of the minority communities — often trolled and vilified as groups belonging to “tukde tukde gang” — already stand terrorised over what the amendments portend.

But hold on. Many consider that the repealing of the Prevention of Terrorism Act of 2002 (POTA) in 2004 was just an eyewash as most of its provisions were added to the UAPA by amending it in 2008, when the UPA was in power. It was empowered with excessive and undemocratic powers by dint of which police officials were authorised to charge at will any “association of persons or a body of individuals” as belonging to a terrorist group. In case of the charge collapsing in a court of law, the offending police officers were not taken to task. Not just POTA, even its predecessor, the Terrorist and Disruptive Activities (Prevention) Act (TADA), was also a discredited law as both were extensively abused, used to target religious minorities, specifically Muslims, and allowed for their harassment and persecution.

It is almost certain that the institutional responses to the 9/11 terror attacks in the US have caused far more damage than the initial attack did in so far as they spawned huge surveillance, passage of several draconian laws, and the creation of a wide range of anti-terrorist policies and practices in many countries.

The most notorious of these is a law passed shortly after the 9/11 attack — Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism — or USA PATRIOT Act. A host of such anti-terrorist laws legalised mechanisms for the routine monitoring of everyday life in airports, schools, offices, libraries, banks, online communications, and the like. Not to be outdone, the Pentagon even expanded its secretive Counterintelligence Field Activity, using “leading edge information technologies and data harvesting” to determine who within the US population could be a security threat.

Much in the same vein, the passage of the POTA, 2002, came in the wake of the 1999 IC-814 hijack and 2001 Parliament attack. But POTA was repealed barely two years later in the wake of reports of its gross misuse. In 2004, the government chose to strengthen the UAPA, 1967. The law was amended further in 2008 after the Mumbai attacks, and again in 2012 in compliance with the guidelines of the Financial Action Task Force (FATF), an inter-governmental organisation set up in 1989 to develop policies to combat money laundering and terrorist financing.

The finer point of designating an individual as a terrorist, as per the latest amendment to the UAPA, has surely raised the possibility of being misused, more so due to a lack of set procedure, and without clear guidelines if an individual can be called a ‘terrorist’ prior to conviction in a court of law. But to be fair, the previous UPA government also had been resorting on the ground to blatantly illegal suppression of various people’s movements in the name of security, while trying to project an enlightened face on paper by admitting that these movements, and naxalism in particular, are intimately connected with social oppression and endemic deprivation. While the UPA government always professed to the ‘correct’ understanding of naxalism, in practice, it never went beyond treating it as a mere ‘law and order’ problem.

The present government is doing the same. Think about how the Modi government, in its first tenure, had been harassing and attempting to silence the leaders of the Dongria Kondh tribe, famous for winning a “David and Goliath” court battle against a British mining giant. There had been an alarming increase in arbitrary, politically motivated arrests of tribal people — typically accused of Maoist links — who were resisting mining operations or government policies which endanger their lands and communities. 

Over 72 years after Independence, it is sad commentary to see that democratic India has passed one draconian law after another — MISA (1971)TADA (1985), UAPA (1967), POTA (2002), AFSPA (1958) and numerous other laws enacted by the Union and state governments after Independence on one pretext or another that makes the imperial Rowlatt Act look like a mild and liberal one in comparison. All of them have records of being extensively ruthless and grossly misused in the absence of judicial review and transparency. Indian citizens have been exposed to almost all possible forms of atrocities – custodial torture, rape, illegal detention, extra-judicial murders, fake encounters, disappearances – that continue to remain part of standard police modus operandi in the discharge of their duties.

While the fight against terrorism is necessary, it is time to consider if such draconian laws through which India’s judicial system gives the State far-reaching and authoritarian powers, the roots of which lie in the colonial era and which blur the distinction between suspicion and sure knowledge, have any place in a democracy. To sustain a balance between the imperative to preserve fundamental rights vis-à-vis the need to make the legal framework to combat terror stronger calls for wider constitutional debate.



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A strategic approach that could curb global warming

Source: By Sudipto Mundle: Mint

The effects of global warming are already visible. Average temperatures are only 0.8 degree Celsius higher today than in 1880. Yet there is already an increasing frequency of extreme weather events, rising ocean temperatures and disappearing corals, melting glaciers and shrinking polar ice caps, and rising sea levels. Public action has nevertheless been too feeble to cope with this looming disaster. The Paris accord has been signed and containing global warming is now on the policy agenda. Still, it is mostly business as usual both in private industry and in public policy.

The Economist magazine, though a leading champion of free market liberalism, recently argued that our failure to address global warming is a great market failure and called for muscular government action. It cited an estimate by the Inter-governmental Panel on Climate Change that containing the earth’s temperature increase over the 1880 benchmark to under 1.5 degrees Celsius will require a 20% reduction in oil and gas production by 2030. But ExxonMobilalone plans to produce 25% more oil and gas by 2025, and other oil majors are headed in the same direction.

The oil majors support the Paris accord. They are also among the largest investors in solar power and other renewables. Nevertheless, the roughly $300 billion of annual investment in renewables is just a fraction of the investment being made in extracting more fossil fuels. Why this disconnect between the required investment priorities for containing global warming and the actual investment priorities of energy companies?

The answer is that these companies are accountable to their shareholders. Their investments are driven by profitability, which in turn is driven by current and future projections of demand and supply. Fossil fuels like coal, oil and gas are more profitable than renewables and account for 85% of the total energy supply. That is what drives the current shareholder value of oil companies.

Looking to the future, the latest BP Energy Outlook (BPEO) projects that even under the most aggressive transition scenario, renewables will account for just about 16% of total energy supply in 2040, up from around 3% today and hydro and nuclear power will account for another 11%. Fossil fuels will still account for over 70% of total energy supply. In fact, the main transition, the BPEO envisages, is a shift from coal to oil and further to gas, not from fossil fuels to renewables. No wonder that oil and gas continue to account for the bulk of investment in the energy sector.

Clearly, market incentives fall well short of what it will take to contain global warming within the limits necessary for global survival. It is this market failure that requires muscular policy intervention by governments as The Economist argued. The intervention required is not rigid state control but fiscal policies to radically shift market incentives and profitability in favour of renewables.

Central to such an approach are the policies pursued in the developing world, especially China and India. Energy demand is projected to grow annually by 1% to 2% over the next 20 years. This is partly because of growing population but mainly because of rising incomes in the developing countries which have started from a very low base of per capita energy consumption. Virtually all the incremental demand for energy will come from China, India and other developing countries, according to the BPEO projections.

India’s energy policy has to be seen in this global context, with two India-specific factors in mind: resource endowments and energy security. India remains heavily dependent on vast reserves of coal, which is also the dirtiest fuel. But switching from coal to cleaner oil or gas poses a security risk since India is heavily dependent on imports for these fuels. Hence, India’s long-term strategic interest requires a radical shift from fossil fuels to renewables, including hydropower. But other supporting strategies are required over the medium term. A strategic energy policy menu could thus include:

Renewables: India should move towards maximum dependence on renewables, given its vast potential for completely clean, radiation-safe and strategically riskless solar and wind power. Instead of subsidizing power prices and distorting energy markets to achieve this goal, tax incentives should be used to maximize investment in renewables. They can turn India’s barren deserts and other non-cultivable land into vast energy generation fields. However, the share of renewables being very low at present, this long-term strategy will entail continuing dependence on other energy sources over the medium term.

Coal: Heavy dependence on coal will continue for years, but it should be gradually reduced. Meanwhile, large tax concessions could incentivize investment in clean coal technologies that can significantly reduce carbon emissions from coal-based power plants.

Oil and gas: The shift from coal to oil and gas will further increase India’s import dependence and energy security risk. To minimize this risk, import sources should be diversified further while incentivizing domestic exploration for oil, especially gas reserves.

Nuclear power: Though a clean fuel with large expansion possibilities, it carries a high risk of disastrous accidents as seen in Russia, Japan and the US. Given India’s relatively weak regulatory environment, it is best to draw on nuclear power only to meet gaps in supply from other sources.

Hydropower: This is a clean, renewable energy source, though usually not treated as such. Its share of energy supply has declined from nearly 54% at independence to only 11% today. This neglect is inexplicable since only 35% of hydropower potential has been utilized and “run of the river" projects do not require large ecologically damaging reservoirs that also displace people. This readily available energy source is a low hanging fruit that should be exploited to the maximum and at the earliest.


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Mandir-masjid syndrome

Source: By Prafull Goradia: The Statesman

Reports that some 49 temples have been built on government land in a single Delhi parliamentary constituency are unfortunate. They should be treated by the government as a law and order issue and be dealt with expeditiously. If left in suspense, the chances are it would turn into a communal conflict. There are some three thousand temples across the country which were in the centuries past converted into mosques. Not all of them may remain dead issues; no government has taken the trouble to solve them and they have been left to be settled judicially. In course of time, such issues turn into political controversies. The self-styled secular parties would be reluctant to offend their Muslim constituents, whereas others would need to assuage their Hindu followers.

Take Ayodhya and the Ram Janmabhoomi controversy which has soared the heights of absurdity. There has never been any doubt about who brought down the mandir, replaced it with a structure and when. He was Mir Baqi in about 1530 A.D. The edifice was without a minaret or a wazoo; so unusual for a mosque. Responsible Muslims avoid praying in edifices which were earlier used by nonbelievers for their worship. In all probability, this structure at Ayodhya was a maqbara or mausoleum for Babar or for Mir Baqi.

Down the decades, someone must have called it a mosque and so it became. At some stage, the Shias lost interest and the local Sunnis took over. Lately, the head of the Shia Personal Law Board Janaab Rizvi has declared that his community wishes Hindus to build a temple as they like. The Shias no longer lay any claim at Ayodhya. On the other hand, the Sunni Personal Law Board is fighting the case in the Supreme Court with a do or die determination. What has the Sunni Personal Law have to do with a Shia stone structure whatever it might have been?

It is not widely realized that the fact that this conflict is going on and on is a price of our democracy. For fear of losing votes, politicians avoid dealing decisively with such issues, and prefer the judiciary to handle them. When in the 1930’s Sir Sikandar Hayat Khan was the Premier of Punjab, the High Court decided a case favouring the Sikhs to retain Shahidganj edifice as a gurudwara although it was earlier a masjid.

The popular Muslim reaction was that the verdict was unfair and the government should go in appeal to the Privy Council in London and get back their place of worship. Sir Sikandar said “no, let us not appeal”. The reason he gave was that all the mandirs had turned masjids in the rest of India, especially Ajmer Sharif. If mandirs were to win in the Privy Council, all these masjids would have to be returned. This was statesmanship, decisive despite its potential unpopularity.

Sir Arnold Toynbee, the distinguished British historian, associated a place of worship with national honour when in 1960 he had come to Delhi to deliver the Maulana Azad Memorial Lecture. He expressed great surprise that Aurangzeb’s mosque in Varanasi was still there. He felt that it should have been removed and illustrated the issue with a Polish example. In 1817, when the Russians conquered Warsaw, they converted the city’s main church from a Catholic to an Orthodox place of worship, merely to humiliate the Poles. When in 1918 Russia had lost in World War I and Poland became independent, the Poles retaliated by demolishing the Orthodox church and replacing it with a Roman Catholic one. That was for national honour, said Toynbee.

Now to take an Indian example, Sardar Vallabhbhai Patel visited Junagadh on November 12, 1947, as a mark of celebration for the people of Saurashtra… having recovered the princely state of Junagadh from the jaws of Pakistan. The Sardar had the humiliation of Somnath in his mind. In the afternoon, he visited Veraval beach where the original temple of Somnath was situated. The current temple was a modest one, built at the behest of Maharani Ahilyabai of Indore. Patel, having had a darshan, decided to build a grand temple of Lord Shiva nearby. He appealed to the public to donate funds and the government to have the mandir built under the direction of Kanaiyalal Munshi, a Cabinet colleague as well as an outstanding Gujarati litterateur.

The project was completed in 1951 and to the exasperation of Prime Minister Nehru; Rashtrapati Rajendra Prasad agreed to inaugurate the new Somnath temple. So far, governments in India have been turning a deaf ear and a blind eye to issues relating to places of worship, especially mandirs and masjids. This is escapism so as not to risk losing votes. This, however, is wrong; it is the duty of the state to resolve such issues in a rightful manner. It is therefore suggested that, without interfering with worship or religion, the government concerned should take hold of any controversy and give an early decision in an impartial manner, so that disputes do not turn into communal conflicts and eventually land themselves into political opportunities.

Relevant in this context would be the Places of Worship Act 1991, which was tailor-made for mischief. It was passed during the monsoon session of Parliament a year earlier in preparation for the Babari demolition. The moot point that this legislation made was that no place of worship could be changed from the shape or form it was in at the time of Independence. But with one exception; namely, the Babari edifice at Ayodhya, which could be altered as was implied in the Act.

After 6 December 1992, the motive behind the Act could be seen through. When darkness fell on Ayodhya, by 5.30 pm, the Babari structure had not fallen; only the three domes had crashed. Uncannily, no photograph of such a scene, the building without the domes, has been available anywhere. By 5.45 pm, four BJP state governments had been dismissed. The UP Governor was in charge of the state in Lucknow. The state of UP, after 5.45 pm, was in the hands of the central government. At 10 pm, Prime Minister Narasimha Rao in a television speech condemned the demolition at Ayodhya and promised that the masjid would be rebuilt. In actual fact, all that was necessary was to reconstruct the three domes.

By the morning of 9 December, there was not a sign left of the erstwhile edifice. Ram Lalla’s murti had taken its place in a tent temple, where it still is. What was uncanny earlier in the day of December 6 was the thrashing received by several press photographers. These young men had thought that they were going to project the Kar Sevaks by photographing them. Instead, the Sevaks asked them to stop taking pictures and surrender their camera films. When the photographers did not comply, their cameras were snatched and the men were severely beaten up. Normally, the Kar Sevaks should have been appreciative of being photographed, but in this instance, they were antagonistic. The question arose whether they had any official connection and whether their photographs could compromise their positions.


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Sovereign borrowing in dollars could prove addictive

Source: By Vivek Dehejia: Mint

If you’re a non-smoker, and someone tells you that smoking one cigarette a day for the rest of your life will not be so harmful for you, and may be enjoyable, would you walk to the nearest paanwala and buy your first smoke? Probably not, you will likely reason that, if you enjoy that first cigarette, you will be tempted to increase your intake, and, if you are not disciplined, you might end up being a pack-a-day smoker, which would most certainly be harmful to your health.

As it turns out, this is the best analogy I can find for the ongoing debate in India on whether there should be government debt issued that is denominated in foreign exchange, which is one of the most adventurous proposals in the Union budget for 2019-20. As Union finance minister Nirmala Sitharaman said in her budget speech on 5 July: “India’s sovereign external debt to gross domestic product (GDP) is among the lowest globally at less than 5%. The government would start raising a part of its gross borrowing programme in external markets in external currencies. This will also have a beneficial impact on demand situation for the government securities in the domestic market."

This proposal has been much debated since then, with a surprisingly broad range of critics, from right-of-centre economists such as former Reserve Bank of India governor Raghuram Rajan, to left-of-centre nativists allied to the current governing party. As it happens, the critics are right, and it would be a very bad idea for India to indulge in the “original sin" of borrowing in dollars (or euros, or yen, or any currency other than the rupee).

This is where the smoking analogy comes in. Sovereign borrowing in foreign currency is similar. Issuing a small amount of debt denominated in a foreign currency may be relatively innocuous, but, if it tempts the government to increase its foreign currency borrowing, the consequences could be disastrous in the long run.

Let us recall that almost all macroeconomic crises in emerging economies emanated from issues relating to foreign exchange—be it the exchange rate itself or the level of indebtedness in foreign currencies. Thus, the Asian crisis of the late 1990s originated with unsustainable foreign currency debts, as have most macroeconomic crises in Latin America and Africa.

Apart from 1991, which was a singular episode, triggered by the spike in oil prices and the collapse of remittances from workers abroad following the first Gulf War, India has been largely immune from major macroeconomic disturbances emanating from overseas. A key reason is that we did not borrow abroad in foreign currencies. The closest we came, and it should provide a salutary warning, was in the waning days of the previous government’s term, when an excessive inflow of “hot" money in the form of foreign portfolio investment in Indian equities caused India to be added to the club of emerging economies known as the “Fragile Five" in the aftermath of the “taper tantrum" of 2013.

Think about it. India became a member of this dubious club though all the monies that had flown in and were at risk of flowing out were invested in rupees. This was destabilizing enough. Imagine, instead, if at that time India had a large sovereign debt denominated in dollars and there was a sharp depreciation of the rupee as foreign portfolio investors fled to put their monies back in the safe harbour of US treasury securities? The bloodletting would have been much worse and could have led to a genuine, full-blown macroeconomic crisis reminiscent of 1991.

In short, the prospect of foreign borrowing creates considerable downside risks without much in the way of attendant upside gains. It would be unwise to commit this original sin, as all previous governments of all political stripes have understood.

So why then does the government at present wish to open this Pandora’s Box? It is a matter of speculation, but it seems very likely that treasury and central bank officials have succumbed to lobbying efforts by honey-tongued Wall Street investment bankers and fund managers who never met a novice investor that they didn’t attempt to solicit business from. Such folks usually promise the world—in this case, cheap borrowing in dollars—and then make a fortune on the sovereign foreign bond issues while the hapless sovereign bears all of the exchange-rate risk.

If you think such an argument makes me a protectionist, think again. Many years ago, my great guru, economist Jagdish Bhagwati, wisely distinguished between free trade in goods and services, on the one hand, and free trade in capital, especially financial capital, on the other. He argued, correctly, that the former is analytically distinct from the latter, as the latter carries considerable risk of destabilizing an economy. In having made this case, Bhagwati, ironically, is on the same side of the debate as the distinctly left-of-centre economist and his Columbia colleague, Nobel laureate Joseph Stiglitz, and on the opposite side from folks like Lawrence Summers, who has been among the most aggressive and shrill exponents of the “Washington consensus" over the several US administrations he has worked for.

Bhagwati and Stiglitz are right, and summers is wrong. India should resist the entreaties of Wall Street and its acolytes in India, and must stay away from the addiction of foreign borrowing.



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Travesty of the Law~I

Source: By Ashok Kapur: The Statesman

It is a quirk of public life in India that the improbable always happens. The Lokpal Act, 2013 has been ‘activated’ after all these years, though one was confident that the Act would be aborted. The talk of Lokpal had been going on for long, but it was hoped that the periodic mention in the media was no more than a vacuous ritual indulged in by political parties to mollify a handful of loudmouths masquerading as social activists if not learned jurists.

It reminds one of the proverb that the ‘Way to hell is paved with good intentions’. In this case, it can even be said that it is paved with the best of intentions. Undeniably, the intentions of these activists cannot be faulted; they are concerned with widespread corruption and abuse of authority by the elected representatives, without any check.

Besides, it is the day-today venality of the petty official that plagues the common man no end. Had some of these activists read the Act, they would have been aghast. The hope that the Lokpal will be a panacea for all such ills is entirely misplaced. He can do no such thing. The entire concept is not only flawed but is highly unconstitutional.

The Act is a travesty of the law which will result in a host of endless problems for the elected government of the day. It is a poorly conceived piece of legislation; even the concept of Lokpal has not been defined. It is a catchy slogan, outlining a structure that will smoothly facilitate the virtual takeover of an elected government by an unelected judiciary not accountable to anyone. India, like any modern democratic state has three coequal organs ~ the legislature, the executive and the judiciary.

Each has a defined role under the Constitution, and one organ cannot encroach on the functional independence of the other two. Thus, the legislature cannot adjudicate, nor does the judiciary implement the laws. To do so would violate the ‘basic structure’ of the Constitution as enunciated by the Supreme Court itself in the celebrated case of Kesavananda Bharati almost half a century ago. It is immutable, the apex court had categorically pronounced. All public functionaries are either members of the legislature or the executive or the judiciary.

The proposed Lokpal will not be a member of the legislature, for he will not be an elected person. Nor will he be a member of the judiciary, as one cannot be a judge unless one is a law graduate, which is not the prescribed minimum qualification for the Lokpal. Hence, he will be a member of the senior executive selected without consultation with the UPSC, which is a Constitutional body. One of the most important ‘basic features’ is the separation of powers among the three coequal organs.

In terms of the same, the judiciary has no executive role. According to the Act, the Lokpal will be selected by an administrative committee to be set up by the Executive, comprising members of the higher judiciary. As the committee will be an executive entity, such a dispensation is unconstitutional in the sense that it violates the ‘basic structure’ of the Constitution.

In terms of ‘separation of powers’ under the Constitution as enunciated by the largest-ever Bench of the apex court itself, members of the judiciary cannot be a part of the executive. To do so is unconstitutional. The structure of the Lokpal is skewed. It will comprise ‘benches’ dominated by the judiciary. The Lokpal will essentially be an investigation authority, a kind of ‘supercop’ who is accountable to no one.

He will have authority over the Prime Minister, the elected Council of Ministers and the Members of Parliament, besides all-India Services and other Group ‘A’ services. Arguably the most basic feature of the doctrine of ‘basic features’ is the independence of the judiciary. Once it is diluted, all is lost. The Lokpal will retire at the age of 70. Judges of the Supreme Court retire at 65 whereas judges of High Courts retire at 62.

The Lokpal will comprise both serving and retired members of the higher judiciary, to be appointed by the Executive. Once the prospect of a postretirement bonanza appears within easy reach, it may seriously dilute the independence of the serving judiciary. One of the greatest jurists of the 20th century and former judge of the US Supreme Court, Robert H. Jackson, had warned of the serious consequences of such a dispensation ~ “A judge can be more easily bribed by ambition than by money.”

One often talks of the independence of the judiciary but from whom? From the executive; as the executive will select and appoint the Lokpal, the temptation to cozy up to the executive amongst some of the sitting judges may prove all too irresistible. The Lokpal will be structured in the form of ‘benches’ with multiple members. These ‘benches’ adjudicate, they cannot investigate. Ironically, the apex court had itself pronounced the law authoritatively in a landmark judgment almost fifty years ago, that the judiciary has no role in investigation of criminal offences.

It is the task of the executive. The judiciary comes into the picture only after the investigation is over. The law is well-settled, that the highest court in the land cannot exercise even its inherent powers to interfere in the course of investigation. The Lokpal, after investigation, will file the charge-sheet in the Special Court which will be manned by judicial magistrates, who are members of the subordinate Judiciary.

If the investigation is going to be supervised by Supreme Court and High Court judges, the accused can hardly expect a fair and objective trial from a member of the subordinate judiciary. The trial will be under the Criminal Code of the nation, arguably the finest Code in the democratic world. The safeguard built in the same has been done away with.

The arrangement is unconstitutional, especially in the case of Members of Parliament of both the Houses. After investigation, the chargesheet will be approved and finalized by the Lokpal without any consultation with the two of the highest Constitutional authorities in the country after the President ~ the Vice-President as the ex officio Chairman of the Upper House and the Speaker of the Lower House.

The Lokpal Act is an ordinary law, and it is open to serious doubt if such a law can override the Constitutional scheme. The Lokpal will merely inform the two highest Constitutional functionaries of the fact of prosecution, although the Supreme Court itself has held otherwise.



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Species loss endangers humans

Source: By Bharat Dogra: The Statesman

Recently, the Global Assessment Report, endorsed by 130 countries issued a red alert on extinction of species. This report warned that up to one million of an estimated eight million species of our planet are at risk of extinction, many of these within a few decades.

A growing worldwide concern of recent times is the extent to which life nurturing conditions have been disrupted. While climate change is most widely discussed in this context, another equally important and in fact closely related concern is the fast increasing threat of losing more and more animal species. Perhaps the biggest indicator of the reckless mismanagement of our planet in recent times is the extent to which other forms of life have been decimated.

An alarming wipe-out to the extent of 60 per cent of various forms of wildlife is indicated by recent statistics. The Living Planet Index (LPI) is produced for World Wide Fund for Nature (WWF) by the Zoological Society of London. This Index uses data on 16,704 populations of mammals, birds, reptiles, fish and amphibians, representing more than 4,000 species. On this basis declining trends in wildlife are monitored. This effort involves 59 scientists from all over the world.

The data resulting from such tracking revealed in late 2018 that in the 44 years between 1970 and 2014 these populations fell by an average of 60 per cent. The decline was recorded at 52 per cent in 2010. In other words, during just four years, there was an 8-percentage-point attrition.

Mike Barrett, executive director of science and conservation at WWF, said that the wildlife crash is continuing unabated. He said, “If there was a 60 per cent decline in the human population that would be equivalent of emptying North America, South America, Africa, Europe, China and Oceania.” Habitat loss is the biggest cause of this massive unprecedented loss caused largely by human activities, followed by killing for food.

Three hundred mammal species are being “eaten into extinction” while there is massive overfishing in oceans. Other top scientists and biodiversity experts have been warning about the onset of ‘the sixth mass extinction’ – the only one caused by the activities of human beings.

A widely discussed recent study by Gerardo Cebellos, Paul R. Ehrlich and other scientists has stated that the “average rate of vertebrate species loss over the last century is up to 100 times higher than the background rate.” Further, this study asserts, “Under the background rate, the number of species that have gone extinct in the last century would have taken, depending on the vertebrate taxon, between 800 and 10,000 years to disappear. These estimates reveal an exceptionally rapid loss of biodiversity over the last few centuries, indicating that a sixth mass extinction is already under way.” Insects comprise about two thirds of all terrestrial species of Earth.

A recent detailed review of loss of insect species (Francisco Sanchez – Bayo and A.G. Wyckhuys, journal Biological Conservation Vol. 232) indicates that insects are even more threatened than mammals or birds. More than 40 per cent insect species are threatened with extinction and a third is endangered. Their rate of extinction is eight times faster than that of mammals, reptiles and birds. Butterflies, bees and moths are among the worst hit.

A big role in the extinction, which is avoidable, is played by the proliferation of chemical pesticides and other toxic sprays in farms and gardens. Ninety per cent of the world’s most important food crops are threatened by human behaviour that is destroying bees, birds, bats, and other pollinators, according to two US scientists conducting a campaign to protect pollinators.

“It is clearly a concern on the global level”, says Stephen Buchmann, a world-renowned entomologist who launched the forgotten pollinator campaign with Gary Nabhan. Earth is not just for human beings. While various species need to be protected for their own sake, it also needs to be emphasized that various life forms together constitute a highly inter-linked web of life. When some of its constituents are lost others are threatened too.

Loss of one or more species threatens other species. Loss of thousands of species also threatens the survival of human beings. This is why rapid loss of biodiversity is also listed alongside climate change as an extremely serious problem which constitutes a survival crisis or an existential threat. Checking rapid bio-diversity erosion, loss and extinction should be a top priority for humanity in the years to come. We don’t have much time left.

As the Cebellos – Ehrlich study says, “Averting a dramatic decay of biodiversity and the subsequent loss of ecosystem services is still possible through intensified conservation efforts, but that window of opportunity is rapidly closing.” In other words, we do not have much time to avert disaster. The next few years, especially the next decade, will be crucial from the point of view of deciding if we are able to take the much-needed steps to protect biodiversity in time.

A special report from the Inter-governmental Panel on Climate Change said this in the specific context of climate change very recently, and we only need to add that this time specificity, more particularly the special importance of the next decade, is equally important in the context of bio-diversity.


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India suffers in Chabahar

Source: By Harsh V Pant: Deccan Herald

In her maiden budget, Finance Minister Nirmala Sitharaman has slashed the allocation of funds for the development of the Chabahar Port in Iran from Rs 150 crore to Rs 45 crore for the current financial year. It has generated significant commentary in the media though the government is insisting that if required, more funds will be made available for this project.

Highlighting the importance of the Iranian port for New Delhi, Indian Ambassador to Tehran Gaddam Dharmendra said India will fulfil all its commitments in Iran’s Chabahar Port despite the economic hurdles. Viewed as a response to Pakistan’s Gwadar Port, Chabahar connects India with Afghanistan bypassing Pakistan. It also provides connectivity for India to Central Asia and the wider Eurasian landmass.

India signed a trilateral agreement with Iran and Afghanistan in May 2016 on the development of Chabahar Port in Tehran with the aim of establishing a strategic transit and transport route connecting the three countries. This pact was aimed at ensuring the development of Chabahar Port into a regional trade hub for which New Delhi had issued a credit line of $150 million through Exim Bank in 2016.

The first phase of the port was inaugurated in December 2017 and commercial activity began in January this year when India took over operations of a part of the Shahid Beheshti Port, Chabahar. Recognising its strategic importance for Afghanistan, the US has not sanctioned the port and has given India an exemption even after US President Donald Trump decided in April not to renew exemptions that let eight countries, including India, buy Iranian oil without facing tough American sanctions.

But the ground realities are getting difficult as those vendors who are to supply equipment for the port are now reluctant to deliver for fear of antagonising the US. The private sector seems to be giving up on the project, which is challenging the operational environment. India’s ability to respond to these challenges remains rather limited for all the blame that many in India and Iran might be laying at India’s doorstep. It is rather interesting that some of the suppliers are Chinese as well.

The larger reality of Indo-Iran relations and Iran’s escalating dispute with the US will shape the future trajectory of the Chabahar project. Until May, India was the second largest buyer of crude oil from Iran, after China. But after the US ended its sanctions waiver, which had allowed India to import Iranian crude oil, India’s energy ties with Iran have undergone a change.

Tehran had previously attracted Indian buyers with lucrative provisions, such as free shipping and extended credit. However, the revival of US sanctions on Iran has forced New Delhi to change its calculus.

In 2018-19, despite mounting US pressures to cut oil imports, India had purchased 4,79,500 barrels of crude oil per day, more than what it had purchased in the previous financial year. After Trump administration ended its Iran sanctions waiver for India, the US encouraged its oil-producing allies, including Saudi Arabia and the United Arab Emirates, to boost production and provide stability in the international oil markets. In an interesting shift, there has been an increase in India’s oil imports from the United States, outpacing imports from its traditional suppliers in West Asia.

India is also getting assurances from the UAE, which has promised to cover for any shortages that India, would face owing to the current situation. The continuing tensions in the Strait of Hormuz and the proximate region have made India nervous. The ongoing crisis could have further ramifications, as India’s dependence on imported crude oil has hit a multi-year high of 84% this year.

On the other hand, India’s domestic oil output has fallen from 36 million tonnes in 2015-16 to 34.2 million tonnes in the most recent fiscal year, which raises concerns in New Delhi about the future of the country’s energy security. It is therefore important for India that West Asia region remains stable. Trends toward a military confrontation wouldn’t serve its interests.

Other concerns

India also has extensive trade, investment, security and people-to-people ties with countries in the region. As External Affairs Minister S Jaishankar underlined during his recent meeting with US Secretary of State Mike Pompeo, “energy security is part of it [situation in the Gulf], but there are other concerns as well about diaspora, regional security, and trade.”

The US sanctions regime has hurt India’s trade with Iran. While Indian companies are now hesitant to do business with Iran, foreign companies, including those from Europe and China, are refusing to participate in the Chabahar project, and that has slowed its development. Despite assurances from the US that its sanctions regime would spare legitimate non-fossil fuel-related business between India and Iran, Washington’s secondary sanctions target companies which indulge in Iran’s port and shipping sector, which makes Indian investments in Chabahar and other associated developments around it vulnerable.

Though the US has issued India a waiver to develop Chabahar port, the Trump administration’s crippling economic sanctions on Iran have ensured that companies remain wary of engaging the Iranian ports sector, resulting in slowing down of trade via Chabahar.

India’s West Asia policy has traditionally tried to balance the three poles in the region: the Arab Gulf states, Israel and Iran. As Trump turns the screws on Iran, it is this policy that may increasingly become untenable.


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Mandatory national service

Source: By Gurmeet Kanwal: Deccan Herald

Lured by high corporate salaries and the attraction of rapid advancement, India’s youth are no longer opting to join the armed forces. This is so because armed forces officers are not as well paid deployments in border areas and for internal security duties are frequent, family life is often disrupted, and a rigid exit policy demands that regular officers must serve for at least 20 years.

Consequently, there is a shortage of over 10,000 officers in the army. A large number of vacancies at the National Defence Academy (NDA), Khadakvasla, and the Indian Military Academy (IMA), Dehradun, remain unfilled every year. This growing shortage adversely affects the army’s junior leadership – the cutting edge of the army. There is a similar shortage of officers in the navy and the air force as well.

The armed forces had pinned their hopes on the Seventh Pay Commission. As had happened after the previous Pay Commissions, these hopes were not realised as the central government simply cannot match the salaries and career flexibility provided by the corporate sector. What can then be done to ensure that the armed forces attract a steady stream of high calibre candidates to fill officers’ posts?

The answer lies in innovative lateral thinking, rather than attempting to flog the dead horse of better pay and allowances. As the shortage of officers is primarily in the ranks of Captain and Major and equivalent ranks in the navy and the air force, the solution lies in a re-vamped short-service entry scheme which offers lateral induction into civilian jobs after four to five years of service in the armed forces, or the opportunity to quit. Such a scheme would confer the twin benefits of filling all the vacant positions and reducing the pension bill.

The best option — with multiple benefits to the nation — would be to make a short stint of ‘military service’ compulsory for all aspirants for the central services, including the Indian Administrative Service (IAS), the Indian Foreign Service (IFS), the Indian Police Service (IPS), other Allied Services, the Central Police and Paramilitary Forces (CPMFs) and other similar organisations as there is no dearth of volunteers for these services. All new recruitment to the central services should be channelled only through the armed forces, for men as well as women. In six to eight years, the problem of shortage of officers in the armed forces will be satisfactorily resolved.

Soon after assuming office as prime minister in 2004, Manmohan Singh had mooted a proposal to select candidates for the IAS and the Allied Services after the Class 12, with a view to catching those young and moulding them for a career in the bureaucracy. These young candidates would be trained at the NDA, which provides the finest all-round education at the under-graduate level in India.

It would be in the national interest for the budding central services officers to undertake compulsory military service for about four to five years, during which they would be exposed to a disciplined way of life, gain hands-on experience of man-management, inculcate leadership qualities, imbibe values and ethics and learn to be officers and gentlemen.

To give effect to this win-win proposal, all entry into the army, the navy and the air force should be through the Combined Defence Services examination for the NDA, conducted by the Union Public Service Commission (UPSC). On graduating from the NDA, the cadets should receive further training at the respective academies of the three services and then join these as commissioned officers. After four to five years of service, all volunteer officers should be given three chances each to appear for the UPSC examinations and interviews for lateral transfer into the IAS, IFS and the Allied Services.

Those who do not wish to leave or do not qualify could chose to continue to soldier on in their respective service or opt to leave with a reasonably attractive golden handshake. The option to leave should be available at 10, 15 and 20 years of service and with full pension any time thereafter. Besides better pay and allowances, other conditions of service also need to be improved substantially for officers of the armed forces. For example, there is no reason at all why married accommodation should not be made available at 100% scales.

Graduates of the NDA receive BSc degrees as the armed forces require a fairly high threshold of the knowledge of science. The NDA syllabus can be suitably modified to accommodate the special managerial requirements of the central services. Particularly at the IMA, Dehradun, and the corresponding academies of the navy and the air force, studies for a recognised management diploma can be included in the syllabus and, if considered necessary, the duration of training can be increased to two years to enable the Gentlemen Cadets to acquire an MBA degree.

The overall gains will be phenomenal. Armed forces officers joining the central services will be trained leaders of men; some of them baptised by fire, and would have had the unique privilege of commanding men in active operations. Above all, they will have the opportunity to serve the national cause in many strife-torn corners of the country and will gain first-hand experience of the problems of the local peoples. Their acquaintance with and insights into the unique diversity of India’s culture and traditions, reflected in the armed forces, would surely stand them in good stead in the remaining 30 to 32 years of their service.

Besides all else, there will be an exponential increase in inter-service cooperation, something that is vital for good governance but is conspicuous by its absence today. This is a win-win proposal that can be quite easily implemented and an idea whose time has come.


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Last 15 minutes are the longest

Source: By Dilip D’Souza: Mint

India’s own Chandrayaan-2 lifted off from Sriharikota on 22 July 2019. It’s now somewhere in space, heading for the Moon. Correct?

Well, yes and no, and that’s actually why this is such a fascinating exercise. Chandrayaan-2 is indeed somewhere in space. If all goes as planned, it will land on the Moon in September; so in that sense it is indeed going to the Moon. Yet, if you knew nothing about Chandrayaan-2 and were somehow able to watch it right now, as you read this, the phrase “heading for the Moon" would not come to mind. Because what it is doing right now is quite different from what that phrase suggests: It is orbiting the Earth. Yes, orbiting—like plenty of satellites and the International Space Station and, when it was in operation, the Space Shuttle.

Why, instead of setting a course for the Moon is Chandrayaan-2 whirling around our planet?

Let’s start by answering another question. When a technical snag of some kind aborted Chandrayaan-2’s planned launch last week, the new launch date was Monday, 22 July. Not just that, it was going to happen at 2.43pm. Not just that either, some reports mentioned something very interesting about this chosen moment. There was a small “launch window" around that particular moment, lasting just a couple of minutes. If Chandrayaan-2 could not take off during that window, it might have had to wait as long as a few months, for another launch window to open up.

Why this small windowwhy this precision? The short answer might be that anything as intricate and difficult as a Moon mission needs precision. But the longer answer is far more satisfying.

Apart from the verb, shooting for the Moon is nothing like shooting at a target on a firing range. At the range, you’re not moving and the target isn’t moving. You aim, you fire and, if your aim is true, you hit the target Simple.

But what if the target is moving? We quickly learn what to do then as well: Aim just slightly ahead of it, in the direction it’s moving, and if your aim is true, you hit the target again quite simple.

But what if the target is far away? So far off that your bullet has no hope of reaching there without some meaningful nudges on the way? Not only do you have to figure out how to do such nudges, you also have to ensure they don’t send the bullet off target.

But what if you’re moving, too? Now you have to account for your own motion as you aim, because it will affect the path the bullet takes. And, if your target is rotating around you, and if you and the target are together rotating around a vastly larger object which is itself a tiny component of a gigantic spinning spiral conglomeration… well, exactly how do you take aim? In fact, what does it mean any more to take aim? You see, now we’re getting closer to a sense of the complexity of the Earth-Moon dance, the complexity that gets us into thinking about such things as launch windows.

With both the Earth and the Moon following their particular paths through space, working out a path from one to the other is a matter of serious mathematical theory and calculations. To get an idea of this, consider this very simplified comparison. Suppose we have two chances to launch our rocket to the Moon. The first, at a time in the Moon’s orbit when it is at its farthest point from the Earth, called the apogee and second when the Moon is at its closest, or perigee. Which of these moments would you choose for a launch?

Naturally, you think the second. For on the face of it, that will be a shorter trip that will likely need less fuel than the other. In reality, of course, things are not quite as simple. Taking into account the time for the journey and weather conditions on Earth, for example, might just lead you to conclude that it’s better to launch while the Moon is approaching and some distance away from the perigee. Taking into account where the launch site is in relation to the Moon during a given launch window — facing the Moon? The opposite side of the Earth — might call for still more calculation, more changes in the path.

And then, there’s the need to escape Earth’s gravity, and yet use the same gravity to propel the craft. If that sounds contradictory, bear with me.

When we launch a rocket, it has to reach “escape velocity"—a speed that will free it from the clutches of gravity here on Earth. But even so, that’s really only good enough so that it doesn’t fall back to Earth, but instead goes into orbit around the Earth, one that gets increasingly elliptical. As  the Beresheet mission, spacecrafts use their orbit around the Earth—indeed, Earth’s gravity itself—as a slingshot.

They pick up speed as they zoom close to the planet and past, then use that speed to range further out, before coming back again. Do this over and over, orbit after orbit, and eventually the spacecraft gets so far from Earth that it is essentially out of the reach of Earth’s gravity—and in this case, it is drawn into the Moon’s gravitational field.

In fact, the various intrepid crafts we’ve sent coursing across the solar system—Voyager, Pioneer, Mariner, Cassini—have very deliberately taken advantage of such “gravitational assists" not just from the Earth, but from the giant outer planets as well. In 1981, for example, flying past Saturn boosted Voyager-2’s speed from 16km per second to nearly 35km per second. Neptune accelerated it similarly in 1989. This is how Voyager-2 has successfully journeyed past the outer edge of our solar system, into the unimaginable vastness beyond. Fuel alone could never have taken it as far.

So, if your favourite Moon mission has the time to execute these ever-expanding ellipses around the Earth, it is actually the most fuel-efficient way to reach the Moon. It builds momentum for the trip by using gravity rather than fuel. On the other hand, for the Apollo missions with their perishable human cargoes, time was critical. So, they needed to fly more directly towards the Moon than gradually stringing ellipses together into a gravitational slingshot.

For these reasons and plenty more, Chandrayaan-2’s path to the Moon—like Mangalyaan’s to Mars a few years ago, like Beresheet’s earlier this year—looks like a child’s doodle: Two sets of ellipses joined by a long, loopy line. And, this is why, where Apollo took about four days to cover the approximately 350,000km that separates us from our satellite, Chandrayaan-2 will need over six weeks and will probably have logged a few million km by then.

When it does get there in September, what will ensue also needs a whole lot of complex calculations and careful manoeuvring. Chandrayaan-2 will start orbiting the Moon, preparing for its lander, Vikram, to execute a “soft landing". Put it another way: Vikram had better not crash on landing. Apart from instruments for various experiments, it’s carrying Pragyan, a rover that is expected to roam the lunar surface for 14 days.

So, at some point, Vikram will separate from the orbiting craft and start descending towards the surface. Once it gets close, it will fire directional thrusters to orient itself in relation to the ground, and its main engine to slow its descent. Why so? If it doesn’t fire its engine, Vikram will fall like a stone and shatter on impact. Fire it too powerfully, and it might just float back into space. This entire engine jockeying, then, while trying also to make sure Vikram’s “feet" are pointing at the ground, that they will make contact simultaneously so the craft stays upright, that the engine shuts off on touchdown. The whole descent should take about 15 minutes. You know it will likely be the longest 15 minutes in the lives of all the members of the team at the Indian Space Research Organisation (Isro).

Will Chandrayaan-2 manage all this? Considering that it’s somewhere up there already, getting its gravitational assists on cue, there’s every reason to believe it will also nail that soft landing. Yet even if it doesn’t, to me the effort itself—the science, the mathematics, the imagination and vision of this, or any mission into space—already makes the mission a triumph. Still, it’s going to be a long 15 minutes in September.


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Sovereign bonds

Source: By Udit Misra: The Indian Express

In her maiden Budget speech earlier in this month, Finance Minister Nirmala Sitharaman announced something that no previous FM had done. She said that the Indian “government would start raising a part of its gross borrowing programme in external markets in external currencies”. According to most reports, this type of borrowing is likely to start by October with the initial amount of $10 billion. However, this idea has not gone down well with several top economists, such as former RBI Governor Raghuram Rajan, who have underscored the reasons why past governments have stayed away from raising loans overseas in foreign-denominated currencies.

The latest economist to caution the government is Rathin Roy, who is not only the director of the National Institute of Public Finance and Policy (a government think tank) but also a member of the Prime Minister’s Economic Advisory Council. “I would pay very careful attention to what several Governors of the Reserve Bank are saying”, Roy said during a public event.

What exactly are sovereign bonds?

A bond is like an IOU. The issuer of a bond promises to pay back a fixed amount of money every year until the expiry of the term, at which point the issuer returns the principal amount to the buyer. When a government issues such a bond it is called a sovereign bond.

Typically, the more financially strong a country, the better respected is its sovereign bond. Some of the best known sovereign bonds are the Treasuries (of the United States), the Gilts (of Britain), the OATS (of France), the Bundesanleihen or Bunds (of Germany) and the JGBs (of Japan).

What is the controversial part?

The current controversy relates to India’s sovereign bonds that will be floated in foreign countries and will be denominated in foreign currencies. In other words, both the initial loan amount and the final payment will be in either US dollars or some other comparable currency. This would differentiate these proposed bonds from either government securities (or G-secs, wherein the Indian government raises loans within India and in Indian rupee) or Masala bonds (wherein Indian entities — not the government — raise money overseas in rupee terms).

The difference between issuing a bond denominated in rupees and issuing it in a foreign currency (say US dollar) is the incidence of exchange rate risk. If the loan is in terms of dollars, and the rupee weakens against the dollar during the bond’s tenure, the government would have to return more rupees to pay back the same amount of dollars. If, however, the initial loan is denominated in rupee terms, then the negative fallout would be on the foreign investor.

For example, imagine two 10-year sovereign bond issues by India: one for $100 in the US, and the other for Rs 7,000 in India. For the sake of simplicity, suppose the exchange rate is Rs 70 to a dollar. As such, at the time of issue, both values are the same. Now suppose the exchange rate worsens for India and falls to Rs 80 a dollar at the end of the tenure. In the first case, the Indian government would have to pay Rs 8,000 (instead of Rs 7,000 that it got initially) to meet its dollar-denominated obligation.

In the second case, it would pay Rs 7,000 and the lender would be short-changed as these Rs 7,000 will be equal to just $87.5 at the end of tenure. That is why, if the exchange rate is expected to worsen, sovereign bonds denominated in domestic currency are preferable.

So, why is India borrowing in external markets in external currency?

There are many reasons why. Possibly the biggest of these is that the Indian government’s domestic borrowing is crowding out private investment and preventing the interest rates from falling even when inflation has cooled off and the RBI is cutting policy rates. If the government was to borrow some of its loans from outside India, there will be investable money left for private companies to borrow; not to mention that interest rates could start coming down. In fact, the significant decline in 10-year G-sec yields in the recent past is partially a result of this announcement.

Moreover, at less than 5%, India’s sovereign external debt to GDP is among the lowest globally. In other words, there is scope for the Indian government to raise funds this way without worrying too much about the possible negative effects.

Thirdly, a sovereign bond issue will provide a yield curve — a benchmark — for Indian corporates who wish to raise loans in foreign markets. This will help Indian businesses that have increasingly looked towards foreign economies to borrow money.

Lastly, the timing is great. Globally, and especially in the advanced economies where the government is likely to go to borrow, the interest rates are low and, thanks to the easy monetary policies of foreign central banks, there are a lot of surplus funds waiting for a product that pays more.

In an ideal scenario, it could be win-win for all: Indian government raises loans at interest rates much cheaper than domestic interest rates, while foreign investors get a much higher return than is available in their own markets.

Then why are so many cautioning against this move?

The biggest potential fly in the ointment is the element of risk that comes into the picture when a government borrows in foreign markets and in foreign currency. As N R Bhanumurthy and Kanika Gupta (both of NIPFP) have shown recently, the volatility in India’s exchange rate is far more than the volatility in the yields of India’s G-secs (the yields are the interest rate that the government pays when it borrows domestically). This means that although the government would be borrowing at “cheaper” rates than domestically, the eventual rates (after incorporating the possible weakening of rupee against the dollar) might make the deal costlier.

Rajan has also questioned the assumption that borrowing outside would necessarily reduce the number of government bonds the domestic market will have to absorb. That’s because if fresh foreign currency comes into the economy, the RBI would have to “neutralise” it by sucking the exact amount out of the money supply. This, in turn, will require selling more bonds. If the RBI doesn’t do it then the excess money supply will create inflation and push up the interest rates, thus disincentivising private investments.

Lastly, based on the unpleasant experience of other emerging economies, many argue that a small initial borrowing is the thin end of the wedge. It is quite likely that the government will be tempted to dip into the foreign markets for more loans every time it runs out of money. At some point, especially if India does not take care of its fiscal health, the foreign investors will pull the plug on fresh investments, creating dire consequences for India.


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How not to educate India

Source: By Abusaleh Shariff: The Indian Express

The draft National Education Policy 2019 (DNEP19) is a must-read document as it has implications for India’s ability to reap its “demographic dividend”. Accelerated economic development is dependent upon the value added by a youthful labour force, which can occur only through appropriate investments in human development, including education. Education is a powerful instrument for reducing poverty and inequality; and it enhances competitiveness in the global economy. Ensuring access to quality education for all is central to the economic and social development of India, according to the World Bank.

The DNEP19 lays out a vision for, and even romanticises, the need for affordable and quality education for all. This is an elaborate draft of 477 pages, with four parts, an addendum — 23 chapters in all. However, it does not address several relevant issues.

I will discuss five issues that the draft must consider incorporating: One, financing of education; two, privatisation; three, technology (ICT) as a leveler and equity enhancer; four, English as a medium of instruction and five, the state’s responsibility in educating the masses. Only the fourth point has been discussed in the DNEP19 and that too mostly by undermining the role and importance of the English language. Given the state of education in India, this report lost an opportunity to discuss the advantages of public investments in elementary and high school education that generate “public good”, as against the university-level policy focus on promoting “private good”.

The DNEP19 targets investments in education to the tune of 20 per cent of the government’s annual revenue. But it forgets to review why India has failed to reach the internationally-recognised level of expenditure (6 per cent of GDP) earmarked for this sector. The current allocation (both Centre and states) amounts to only 3.3 per cent of GDP.

This report has appealed to philanthropists and companies to route their corporate social responsibility (CSR) funds to supplement government efforts, but it forgets that such funds will not be ideologically neutral. The report has also not recognised or estimated the role of private investments in education, and the proliferation of private English-medium schools across India. Reckless and unregulated private schools and colleges, besides compromising on quality, will only increase (not reduce) social inequalities in India.

According to the 71st round of the National Sample Survey, 21 per cent of rural and 42 per cent of urban school-going children are enrolled in private-unaided schools. Adjusting for children aged 6-18 years who do not go to school (non-enrollment and dropouts); there are an estimated 50 million children in private schools. It is of utmost importance that primary education is imparted through public sector facilities and that children belonging to various castes, classes and religions must be taught in such schools to generate a sense of belonging and nationalism. One of the main reasons for the emergence of religious intolerance in India is polices that promote segregated primary and elementary education on the lines of caste, religion, class and language.

The report also fails to estimate the share of income that households spend on education. The financing of each level of education — elementary, intermediate and higher-level — comes with its own set of challenges. For example, the government-aided schooling system prevalent in the state of Kerala is not even referred to as a viable model of institutionalised education financing. Maybe a new “public-private-partnership” model will succeed in achieving the objectives of quality, affordability and equality of access.

Education reform must focus on certain fundamental principles — standardised yet personalised learning, literacy and numeracy, scientific temper, systems that promote both competition and collaboration between schools and ensure equity of outcomes.

In the 21st century, technology is the most secular and equitable source of education across the world. I respect the DNEP19 for emphasising the need to protect and promote our culture through the study of classical languages, mother tongues and regional languages. Yet, one cannot deny the income-augmenting character of English in India. Those who are fluent in the English language live in households with three time’s higher income than those without any knowledge of English. By ignoring this, the DNEP19 has laid out a “language trap”, which will create social inequality and impede economic growth due to loss of the demographic dividend.

The report does not emphasise enough the role and importance of state governments in imparting education to the masses. Special education zones targeting unrepresented groups are talked about; but such a targeting strategy will fail without identifying the states which are laggards in education and reaching out to them.

In the health sector, frequent comparisons are made between states so that the budgetary and policy initiatives are aligned to the best practices and are implemented across states. There is adequate indication that through this report, and possibly through a new bill, “education” will be compromised by being placed under the complete control of the national government.

The DNEP19 has not assessed or reviewed the past efforts of Sarva Shiksha Abhiyan; rather, it has devoted a whole chapter on how to establish and centrally manage the Rashtriya Shiksha Aayog or the National Education Commission. This points towards a centralisation of the education system, which is not only inimical to the economy but also to social harmony.


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The moon and the law

Source: By C. Raja Mohan: The Indian Express

When Chandrayaan 2 arrives at the moon in a few weeks from now, it will seek to soft-land the lunar module, Vikram with its rover, Pragyan, on a site between two large craters in the South Polar Region. India is not the only one interested in the moon’s South Pole. Other countries as well as private corporations are aiming at the same area; for a good reason — the lunar South Pole has places where the sun never sets.

These places are called “Peaks of Eternal Light”— points on any celestial body that receive sunlight through the year. There are barely any peaks that have “eternal” or permanent illumination. But there are some which have light for a large part of the year. The moon has these peaks on its polar regions. The peaks in the South Polar Region are considered more attractive than those in the north.

Near permanent sunlight facilitates the establishment of lunar stations with assured supply of solar energy. Some of these peaks are fortunately located next to areas that are in permanent darkness and hold significant reserves of lunar ice. Many recent surveys, including those by Chandrayaan 1, have identified the presence of water in the Polar Regions. Having easy access to water is obviously critical to a sustainable human presence on the moon.

Water can also be broken down into hydrogen and oxygen, which in turn can be turned into rocket fuel. With moon’s low gravity, space vehicles need a lot less fuel than on earth for take-off. That could make the moon a convenient way-station from which human explorers could travel to other celestial bodies. Mars is already in the sights of many space-faring nations.

Right now, the moon rush on the earth is aimed at the lunar South Pole. In January this year, China’s Chang’e 4 soft-landed in the Von Karman crater on the dark side of the south polar region. China hopes to build a lunar robotic station near the South Pole in little more than a decade.

The US lunar programme, revived by the Trump Administration, now aims to put man back on the moon in the next decade. NASA’s focus is on the South Pole and if it succeeds, it will be the first manned crew to arrive at the South Pole.

NASA, however, has some competition at home from Amazon’s Jeff Bezos. In May this year, Bezos unveiled the Blue Moon project that seeks to land men and women on the moon in the next few years. “It’s time to go back to the moon and this time stay,” Bezos said. Bezos wants to land two tons of cargo on each mission and start building a lunar base at the Shackleton Crater, very close to the lunar South Pole. It is named after Ernest Shackleton who explored the earth’s South Pole in the Antarctic.

As a lunar race unfolds, the world will run, sooner than later, into difficult problems about such mundane issues as property rights. The international law of outer space is now defined by the 1967 Outer Space Treaty. The OST is quite explicit in affirming that outer space and celestial bodies like the moon can’t be “appropriated” by any nation through claims of sovereignty, occupation or any other means. It calls the exploration and use of outer space “shall be the province of all mankind”.

Like so much in law, one principle often contradicts another. The OST also wants states to show “due regard to the corresponding interests of all other States Parties to the Treaty”. The interpretation of these principles is becoming contentious as the world’s space-faring nations come to terms three important facts.

The “peaks of eternal light” constitute the most valuable real estate on the moon; they come in small patches and are in short supply. If the principle of respecting “corresponding interests” means “non-interference” in the pre-existing lunar activity of another state, some international lawyers worry, we could end up with up de-facto ownership for those who show up first on the peaks of eternal light.

Quite clearly, this is a recipe for competition and conflict on the moon. To make matters worse, the Outer Space Treaty has no provision for effective dispute resolution. The OST certainly exhorts states to cooperate and extend mutual assistance to each other in outer space. It also calls for consultations when conflicts arise. That inevitably takes us out of the legal and into the political domain.

There is also contention on another question — who owns the resources of the moon? In a law approved in 2015, the US has authorised its citizens to own, transport and sell resources exploited on the moon. Washington argues that this provision does not violate OST’s principle of “non-appropriation” of the moon’s territory. Tiny Luxembourg has passed a similar law to attract companies interested in space mining. The UAE is expected to follow suit soon.

As India celebrates the successful launch of Chandrayaan 2, Delhi needs to match the extraordinary success of its scientists with sustained diplomatic effort at the highest level. Amidst the growing scale and scope of humanity’s lunar adventure, the Foreign Office needs to take up international space cooperation as a strategic priority. It also needs to develop a stronger political voice for India in shaping new rules for the moon and outer space.


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