Editorials - 17-06-2021

The inflows during 2020-21 have not been in sync with the Government’s priorities for economic recovery

In an otherwise gloomy economic scenario, one area of cheer for the Government has been the numbers on inflows of foreign direct investment (FDI). In a recent press release, the Ministry of Commerce and Industry announced that “India has attracted highest ever total FDI inflow of U.S.$81.72 billion during the financial year 2020-21 and it is 10 percent higher as compared to the last financial year 2019-20” (https://bit.ly/3wBcEd6). The Reserve Bank of India (RBI) reported that the equity component of inflows was over U.S.$61.4 billion, a 19% increase over the U.S.$51.7 billion received in 2019-20. The credit for this record level of inflows was given to FDI policy reforms, investment facilitation and ease of doing business.

Taken on their face value, these numbers are indeed creditable, especially given that global FDI inflows in 2020 had declined by 42% over the level in 2019, and inflows to developing countries had fallen by 12%. However, if we consider the disaggregated data on inflows into India, the reality of foreign investors’ participation in the Indian economy seems a sharp contrast to what the Ministry has presented (https://bit.ly/35yBiyN).

RBI data as a pointer

The RBI provides a useful disaggregation of total inflows of foreign capital into India. This shows that net of repatriation/disinvestment, FDI inflows had declined by 2.4% in 2020-21, as compared to the previous year. This was due to a 47.2% increase in repatriation/disinvestment, which had reached a record level of U.S.$27.0 billion. The RBI reports yet another disquieting aspect of foreign capital inflow in 2020-21, a high increase in portfolio investment, fuelled entirely by a 69-fold increase in the participation by foreign institutional investors (FIIs), totalling U.S.$38 billion. This was the second highest level of FIIs’ involvement in India, after they invested U.S.$42 billion in 2014-15. Surely, sustained sizeable repatriation of the long-term FDI, together with a large increase in speculative capital does not bode well for an economy looking to recover from an economic slump.

Who the recipients are

Analysis of FDI inflows remains largely incomplete without referring to the largest recipients of FDI, which is possible using the Department for Promotion of Industry and Internal Trade database. Currently, data for the first three quarters of 2020-21 are available, during which 86% of the equity inflows for the financial year were received. This data shows that three Reliance Group companies, namely Jio Platforms, Reliance Retail Ventures and Reliance BP Mobility, together received U.S.$27.8 billion or, 54.1% of the total equity inflows during the three quarters. Other large recipients, though with far lower shares, were Schneider Electric India, Byju’s, ArcelorMittal India, GMR Airports and Amazon Seller Services.

More than U.S.$20 billion of promoter’s shares in Jio Platforms, currently having the largest wireless subscriber base in India, were sold to 14 foreign investors, including Facebook, Google, KKR & Co., Qualcomm and a number of financial investors and sovereign wealth funds. A major part of the funds was meant to facilitate Reliance Industries to withdraw its investments already made in the form of Optionally Convertible Preference Shares. This, therefore, amounted to indirect acquisition of shares held by Reliance Industries. While the entire investment in Reliance Retail was by financial investors, viewed in the context of Reliance Group’s expansion through acquisitions (e.g. Future Group and Urban Platter) the end use of the inflows becomes obvious. Again, bulk of the investment into Reliance BP Mobility was through the acquisition route.

Facebook’s entry in Jio Platform offered two significant benefits to the foreign partner; one, to substantially expand its social media reach by piggy-backing on Jio Platforms and, two giving Facebook a share in India’s rapidly expanding e-commerce business through Jio Mart. Following the Facebook deal, Reliance announced its partnership with Google for building an Android operating system, by selling 7.7% in Jio Platforms. Facebook’s shareholding was pegged at 9.9% possibly because the International Monetary Fund (and also the RBI) stipulates that if a foreign investor holds 10% or more of voting shares in a company, the investor “exercises a significant degree of influence on its management”. Interestingly, Jio Platforms remains “Indian controlled”, even though two major American companies now own nearly 18% of its shares.

Acquisitions lie behind other major inflows as well: Schneider Electric’s acquisition of L&T’s Electrical & Automation business, ArcelorMittal’s acquisition of Essar Steel, and Byju’s acquiring a number of companies including Akash Educational Services. GMR’s deal with Groupe ADP of France paved the way for a foreign government-controlled company to have a say in India’s aviation infrastructure. It may be pointed out that the RBI’s data on acquisition-related inflows grossly underestimate the extent to which foreign investors have taken over existing businesses.

Skewed distribution

Perhaps alluding to these large cases of inflows, the RBI commented in its Annual Report thus: “Even though FDI inflows were stronger in 2020-21, their distribution was highly skewed. The coefficient of variation of FDI flows (based on transaction size) was larger during the pandemic period, implying concentration in distribution. The lower incidence of transactions points to the underlying weakness in FDI inflows during the year. Without the top five FDI deals, FDI inflows during 2020-21 would have declined by about a third of their level a year ago”. The RBI is entirely correct in its observation that without the large inflows mentioned above, there is a serious question mark over FDI inflows. In the absence of large inflows, FDI equity inflows suffered a precipitous fall in Q4 of 2020-21, the second lowest inflows in Q4 since 2014-15 barring 2016-17.

Although the RBI has expressed its optimism that “[G]oing forward, the pipeline of FDI for 2021-22 could be supported by the thrust given to PLI and domestic growth prospects”, the nature of the bulk of the “investments” which involved a mere transfer of shares without creating productive assets in the country perhaps belies the expectation that FDI can contribute to the revival of the economy. This view is reinforced by the fact that contrary to the Government’s expectations of a larger magnitude of inflows into the manufacturing sector, this sector received just 17.4% of the total inflows during 2020-21.

To the services sector

The services sector attracted nearly 80% of the total inflows with information technology enabled services (ITeS) being the largest component, accounting for over 47% of the inflows thanks to the RBI’s classification of Jio Platforms as “Other information technology and computer service activities”. Wholesale and retail trade were the other prominent ones. According to the RBI, non-acquisition-related inflows into the manufacturing sector were the lowest in 2020-21 even in absolute terms, over the past five years. They were U.S.$6.7 billion in 2020-21, as compared to U.S.$12 billion in 2016-17, and were lower than even the previous year’s amount of U.S.$8.2 billion by 1.3%. Quick calculations based on the RBI data (which are gross underestimates) show that 34.9% of the reported inflows into the manufacturing sector were acquisition-related.

Clearly, FDI inflows have not been in sync with the government’s priorities for the post-COVID-19 economic recovery: the AatmaNirbhar Bharat Abhiyaan, anchored on the revival of the manufacturing sector through the Performance Linked Incentive (PLI) scheme. When this is the situation, ‘record’ levels of FDI inflows during 2020-21 cannot be a cause for celebration.

Biswajit Dhar is Professor, Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University, New Delhi. K.S. Chalapati Rao is former Professor, Institute for Studies in Industrial Development, New Delhi

India is drifting rapidly towards a state of ignorance even as it aims for development

Prime Minister Narendra Modi seems thoroughly modern. But he also appears to be steeped hopelessly in superstition. He promotes the exploration of the moon, orders the most sophisticated fighter jets, launches the first bullet train project, boasts about India being a vaccine ‘powerhouse’ that supplies vaccines to the world — all products of modern science. But he also simultaneously plumps for pseudoscience. He invokes cosmic energy to drive out the SARS-CoV-2 by exhorting the public to beat gongs and blow conches at auspicious hours based on ancient numerology; he does not pull up his Cabinet colleagues when they launch a yoga guru’s concocted COVID-19 medicine, drugs that have no clinical evidence of trials and have been condemned by the Indian Medical Association. Mr. Modi speaks glowingly of India’s scientific accomplishments in its mythic past and cites, for example, the elephant head transposed on Lord Ganesha as great strides in plastic surgery, long before the West invented it.

Nobel-winner physicist Richard Feynman coined the term ‘cargo cult science’ to describe all kinds of pseudoscience that passed off for science over the ages — ancient superstitions, black magic, voodoo, witch doctors, astrology, mind reading, ESP (extrasensory perception), expanded consciousness, aphrodisiacs made from rhino horns, and other debatable ideas. He spoke of a ‘Cargo Cult’ of people, the South Sea islanders in the Pacific, who, during the world war, had seen planes landing and delivering cargos. After the war, they wanted to receive similar gifts from the skies. So they prepared landing strips to resemble runways, set up flares on either side, made wood pieces that looked like headphones, stuck bamboo stakes to resemble antennas, and waited for planes to land to deliver the goodies, the cargo. They waited and waited and repeated their exercise by adjusting the sticks and flares but the planes did not land. They were missing something. They did everything right. But there were no planes. They were changing the form but not the substance. “We really ought to look into theories that don’t work, and science that isn’t science,” said Feynman. “Cargo cult science” was his phrase for research that mimicked science. Despite never seeming to yield verifiable results, it garnered public acceptance because it seemed to possess the semblance of rigorous methodology.

A slew of offerings

India has a surfeit of charlatans — godmen and ‘sadhus’ of various hues, dieticians of native foods who have morphed into self-anointed doctors, and quacks who have turned apothecaries and practise various alternative medicines. Traditional practitioners have set up labs on a limited scale for analysing blood sugar and cholesterol levels, and equipment like X-ray machines and ECGs on the lines of western medicine to acquire the veneer of science that gives them credibility. They peddle everything from esoteric diets to cow dung and cow urine, as ‘cure-alls’ for all ailments, including the COVID-19 infection, which has ravaged the country. They offer various things to the rising middle class, from Vedic medicines, which promise immunity and boost potency to increase libido, to ‘instant nirvana’.

It can’t be denied that home remedies are often beneficial. If one has a bad cold, a concoction of crushed black pepper and turmeric boiled in milk will do wonders. A terrible bloated stomach can be eased by buttermilk garnished with garlic and ginger. Corns in the feet can be managed without surgery by applying fresh lime and wrapping the affected parts in a ripe banana peel.

From home remedies to Ayurveda, there are many cures that work for illnesses. Alternative medicines from other parts of the world, including treatments from medicines used by tribal communities, have been useful and passed down from generations. But their limitations have to be recognised and acknowledged. Modern medicine, an offshoot of science that questioned existing beliefs and practices, discovered the method of experimentation to find out whether medicines worked, and if they did not, it encouraged exploring new ideas. This was the beginning of the scientific age.

Scientific progress has been possible only because the great men of science acknowledged their ignorance and were not afraid to question; each generation added to the fount of knowledge because they left the door to the unknown ajar. However, pseudoscientists are a danger to society because they are cocksure of their belief systems. They are not comfortable with doubts and uncertainties. It is alright to be not sure because certainty shuts all doors to corrections and blocks progress, which can be fatal for a civilisation.

Returning to the subject, one is compelled to wonder whether Mr. Modi is a man of science or pseudoscience. Why is he pushing both at different times and on different occasions? If it is a political strategy with an eye on the electorate to appease the public, both the modern and the rational, the traditional and the superstitious, it has not, going by the recent State elections, yielded the expected results. His mixed messaging, mystic symbolism and mythic metaphors are incongruous with the image of a leader in a hurry to propel India to a technologically advanced nation alongside the modern developed economies of the world. While Mr. Modi’s loyalists — both within the saffron fold and on the fringes — are wreaking havoc and showing India in a bad light as a country of obscurantists lost in ignorance and superstition and going back to the Middle Ages, his administrators and scientists at the helm of policymaking are paralysed by the predominance of regressive orthodox forces and are unable to give impetus to scientific advancements and infrastructural progress to lead India into the comity of developed economies. India, hitherto a rising power, suddenly seems a foundering ship adrift on the seas of pseudoscience amid a huge calamity.

Core values

The Indian civilisation, from its known beginnings, has served as a quest for knowledge for people to explore the deep meaning of life and existence. It is a great adventure of ideas in the history of the human spirit stretching back three thousand years. “Nothing is more sacred to man than his own history ... For us Indians, a study of Upanishads is essential, if we are to preserve our national being and character,” said Indian philosopher and former President S. Radhakrishnan. He added, “There is much in our past that is degrading and deficient but there is also much that is life-giving and elevating. If the past is to serve as an inspiration for the future, we have to study it with discrimination and sympathy ... While the fundamental motives, the governing ideas which constitute the essential spirit of our culture are a part of our very being, they should receive changing expression according to the needs and conditions of our time.”

Mr. Modi must heed the above words. Modern science is not antithetical to Indian thought. The spirit of enquiry, embracing new ideas and evolution through acquiring new knowledge is at the core of our being from the Upanishadic times. Without losing time, Mr. Modi must steer the nation back on to the path of science.

Capt. Gopinath is a soldier, farmer and entrepreneur

As Indian homes will be a key site where future cooling demand will play out, awareness of energy efficiency is crucial

More frequent and intense heat waves are expected with a rise in global temperatures due to climate change. In the last three decades, there have been 660 heat waves across India causing 12,273 deaths (https://bit.ly/3pXxtNj). India, with currently low penetration levels of air conditioners (ACs), will likely require substantial cooling services to keep citizens healthy and productive. The India Cooling Action Plan (https://bit.ly/3pZNm5B) projects the number of room air conditioners to become about four times in the next 10 years, and about 10 times in the next 20 years, making India the world’s largest energy user for cooling.

Scant data

Here lies a conundrum. Cooling will likely be at the forefront of India’s adaptation to climate change, but if cooling needs are met with inefficient ACs, it could be the bane of India’s mitigation efforts. Indian homes will be an important site where this conundrum between cooling needs and potential emissions will play out. Despite its clear importance, the implications of an increase in residential cooling demand have not been carefully examined. Estimates of AC ownership and usage, the two factors which will determine the extent of future cooling demand, have little empirical backing. We know little about what cooling appliances people seek, and how and why people make their purchase decisions. The pursuit of energy efficiency, too — for instance, who buys efficient technologies and why — remains underexplored.

Delhi survey results

In a recently published paper (https://bit.ly/3vBtTtu) in theEnvironmental Research Letters, my colleagues and I look at household cooling patterns, and unpack household characteristics that are leading to increased use of air conditioners and adoption of energy efficient choices. The findings are based on a door-to-door household survey in areas of Delhi, with above average levels of AC penetration.

We find that the desired levels of cooling vary greatly even among relatively homogenous communities. In Delhi’s wealthy neighbourhoods, 43% of the households own an AC, 39% own coolers and 18% only have a fan. Further, the way households use ACs also differs quite a bit. While most households use an AC for three to four hours a day during peak summer months, about 15% use ACs for over eight hours a day. It is interesting to note that the India Cooling Action Plan in its estimation of residential cooling demand, assumes that an average household uses an AC for eight hours a day, which as per our study seems to be an upper bound. People prefer different AC set-point temperatures, again indicative of varying perceptions of thermal comfort. Half of the households set their ACs between 24°C-26°C, and 27% prefer their AC temperature to be between 21°C-23°C. This wide range of preferred AC temperatures have important implications on energy demand requirements, as every 1°C increase in AC set-point temperature can lead to additional 6% energy savings (https://bit.ly/2TDcd3j).

Unfortunately, energy efficiency does not feature as a priority in the purchase of cooling appliances. Only 7% of the households have an energy efficient (star-rated) fan, and 88% of the coolers are locally assembled. Most people prefer to buy a three-star AC, and less than 20% of AC-owning households bought the highest rated five-star AC.

An obstacle

Large-scale adoption of efficient cooling appliances will be essential to providing the required thermal comfort in a low carbon manner. We find that low levels of energy efficiency awareness are a major bottleneck that hinders the purchase of more efficient appliances. A third of the households did not know of the Star Labelling programme, which is a government programme mandatory for refrigerators and air conditioners. Of the households that had heard of the programme, only half of them understood what it meant. We find that it is this set of informed households that are more likely to own a higher efficiency AC, and also likely to use the appliance efficiently. Higher upfront cost and low market availability of more efficient air conditioners (four-star and five-star) are other reasons for buying a less efficient AC. We find that many households also use alternative cooling strategies to keep cool, with the use of a fan being the favourite non-AC cooling option, and use of non-energy cooling methods such as natural ventilation being a common practice. Households using such non-AC cooling methods were found to use their AC for fewer hours.

Other solutions

The impending cooling demand transition in India offers a potential advantage. Because a majority of investments in cooling technologies, infrastructure, and behaviours are yet to be made, there is a unique opportunity to lock-in energy efficient consumption patterns. Awareness campaigns on the benefits of energy efficiency along with subsidies and financial incentives that help with the higher upfront costs can help drive up the adoption of more efficient technologies. Encouraging the use of passive cooling alternatives including energy efficient building designs can help provide the desired thermal comfort with reduced dependence on energy intensive cooling technologies.

Anna Agarwal is a fellow at the Centre for Policy Research, New Delhi. The views expressed are personal

The right to be forgotten must be studied along withthe concepts of fair criticism and accountability

In an important development for the ‘right to be forgotten’, the Delhi High Court recently ordered the removal of one of its own judgments from easy access. The petitioner was acquitted of certain crimes by the court and the judgment was freely accessible on the Internet. Unhappy with this, the petitioner sought removal of the judgment from a leading database platform and search engines. The court, as a temporary relief, asked search engines to remove this order from search results, and ordered the database platform to block the judgment from being accessed by search engines. The High Court recognised that the petitioner may have a right to be forgotten, which must be balanced with the right of the public to access courts of record.

The right to be forgotten is, generally, the right to have information about a person removed from public access. The proponents argue that individuals should be able to determine the development of their life in an autonomous way. Persons cannot be perpetually stigmatised for past conduct.

In 2017, the Supreme Court recognised the right to be forgotten as being under the ambit of the right to privacy (specifically, informational privacy) under the Constitution. It observed that if someone desired to remove personal data from the virtual space, it ought to be respected. The top court observed that a lot of personal information may serve no “legitimate interest”, was “incorrect”, or was not “necessary” or “relevant”. However, the right to be forgotten was subject to reasonable restrictions based on countervailing rights such as free speech. But despite the Supreme Court’s judgment, the right remains underdeveloped in India.

For now, individuals may request data hosts to take down some content, and it may be taken down based on the policies of the respective hosts. For example, some embarrassing selfies that a person posted as a minor may violate the terms of service. These photos may be taken down if so requested because they not only violate terms of service but are also unnecessary and irrelevant. However, if these photos have since become part of, say, a scientific study on Internet usage patterns by teens, or if the person now holds a prominent government office, they now serve a public purpose.

There is a general consensus that people should be allowed to modify or delete information uploaded by themselves. However, whether this extends to information uploaded by third parties is uncertain. Take for instance a news article reporting an accusation of sexual harassment against a public figure. If the person was never convicted, should they continue to bear the infamy? Is abhorrent conduct reportable only if there is a legal proceeding to support it?

The U.S. example

Perhaps there is a lesson in the American civil rights movement. Back then, some governments filed defamation claims against newspapers to disincentivise them from reporting violence against protesters. In one of these cases,The New York Timeswas held liable to pay $500,000 (a king’s ransom in 1962) by an Alabama court for some errors in their content. In appeal, the U.S. Supreme Court intervened inNew York Times Co. v. Sullivan (1964), and ruled that public interest reporting may continue without fear as long as it did not intentionally or recklessly make outright false statements. Thus, the court disallowed suppression of criticism and accountability, especially against powerful figures. The case has been cited by the Supreme Court of India several times. Nonetheless, many courts in the country have ordered take-down of unflattering news articles pertaining to legal proceedings, redaction of names of litigants, and removal of references from search results. However, this is perhaps the first instance of a court ordering the removal of access to its complete final judgment from certain spaces.

While there may be significant merit to the right to be forgotten, whether it extends to the removal of judgments of courts of record is uncharted territory. Judgments are published for good reasons. Trials held under public scrutiny act as a check against judicial caprices and help in enhancing the confidence of the public in the fairness and objectivity of the administration of justice.

The wrong that the Delhi High Court sought to correct could have been achieved by narrow tailoring. The court could have ordered that the name and personal details of the petitioner be redacted while maintaining public access to the judgment itself. Unaware of the Streisand effect, the court names the petitioner repeatedly in its interim order, while removing the acquitting judgment from easy access. The issue has been listed for a final hearing and the outcome is keenly awaited.

The authors are with Advaya Legal

Institutes should be given financial assistance to create safe campuses for students and staff

The state of campuses of higher education institutes in India is at its nadir currently. The second wave of the COVID-19 pandemic brought the entire country to its knees and people struggled to access basic healthcare facilities. But there is still a lack of serious consideration for the safety of campuses, which may be among the most vulnerable sites for the spread of infection at the community level. Apart from routine advisories in the form of notifications for standard operating procedures, protocols or guidelines issued from time to time at the apex level by the University Grants Commission (UGC), and at the State level by the respective Education Departments, nothing concrete has been done on the ground.

Campuses that house hostels, libraries, common rooms-cum-washrooms, canteens, auditoriums, gymnasiums, playgrounds, administrative offices, staff rooms, guest houses and staff quarters, besides classrooms and laboratories, require resources to change and modify their current settings for COVID-19-appropriate behaviour. Taking the ‘business-as-usual’ approach could lead to risking the lives of both students and employees on a very large scale. On May 10 this year, the UGC suggested a slew of measures that higher education institutes should adopt to fight the COVID-19 crisis. It recommended, inter alia, constituting a task force and setting up helplines, roping in counsellors and mentors for providing mental health support and enabling the well-being of all stakeholders, and creating a team of well-informed volunteers trained in life skills, including the NCC and the NSS. However, it did not mention the means and mechanisms for training the workforce for these specialised tasks. In the absence of that, such measures remain empty efforts.

Numerous orders

The abysmal financial state of higher education institutes, especially State-run universities, combined with a lack of will on the part of State governments already overwhelmed by the vaccination drive, has exacerbated the situation. Reports of deaths of several teachers in prominent universities highlight the loss of the national intellectual capital and scholarship.

The UGC in its order dated November 5 last year listed guidelines for colleges to reopen post the lockdown. It recommended that State governments estimate and prepare for the required procurement of essentials, such as disinfectants and face masks, in each of their districts and zones in consultation with higher education institutes; it also asked them to draw out a plan for distribution. Universities and colleges were instructed to ensure a sufficient supply of these items to students, faculty and staff. The UGC also suggested that higher education institutes set up on-campus facilities for the isolation of symptomatic persons and for quarantining of those who were in contact with infected persons. Alternatively, they could tie up with State-run hospitals or other approved premises, as suggested by local authorities, for providing essentials to quarantined or isolated persons.

The need for quick action

But these measures are far from reality. Explicit budgetary allocations for higher education institutes for COVID-19 management were found to be missing in the States’ annual budgets. This apathy on the part of institutes and policymakers (both at the Central and State levels) could endanger lives and may lead to a complete shutdown of academic activities in the time to come.

It is incumbent upon the UGC to direct State governments to generously provide financial assistance to higher education institutes for managing the COVID-19 crisis. The resources could come from the State Disaster Response Fund (SDRF) for the year 2021-22, which was released by the Department of Expenditure at the recommendation of the Ministry of Home Affairs much before the normal schedule, in view of the extraordinary public health crisis.

Milind Kumar Sharma teaches at the Department of Production & Industrial Engineering, M.B.M. Engineering College,

Jai Narain Vyas University, Jodhpur.

Views expressed are personal

HC bail orders are an indictment of attemptto portray Delhi protests as terrorist acts

Caught between a statutory bar on grant of regular bail and a judicial embargo on any close examination of available evidence at the bail stage, those arrested under the country’s main anti-terror law have been languishing in jails without trial for extended periods. The Delhi High Court orders granting bail to three student activists jailed for over a year for their alleged role in the February 2020 riots in Delhi represent a clear-headed effort to get around such impediments. Sound in legal reasoning and interpretation, the judgments of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani have made a salient distinction between those accused of offences against the country’s integrity and security on the one hand, and protesters or dissenters roped in unjustifiably under the rubric of ‘terrorism’ on the other. The Unlawful Activities (Prevention) Act has been invoked by the Delhi Police against activists and others who were among those organising the protests against the Citizenship (Amendment) Act, on the claim that they had also fomented the riots. Under Section 43D(5), there is a legal bar on granting bail if the court is of the opinion that there are reasonable grounds to believe that the accusation against those held isprima facietrue. Adding to this onerous burden on the accused to demonstrate to the court that the accusation is untrue is a 2019 Supreme Court judgment that bars a detailed analysis of the evidence at the bail stage and rules that bail can be denied on “the broad probabilities” of the case.

The High Court has ruled that the bail court can look at the available evidence to satisfy itself about theprima facietruth of the case. In other words, there is no statutory invincibility to the prosecution case merely because the UAPA has been invoked. It has found that none of the three — Asif Iqbal Tanha, Natasha Narwal and Devangana Kalita — was specifically or particularly accused of any ‘terrorist act’, ‘funding of a terrorist act’ or an act amounting to a conspiracy to commit a terrorist act or something preparatory to it. Once the UAPA charges were not seen to be true, it was open to the court to admit them to regular bail until conclusion of the trial. Further, with 740 witnesses cited, there is no scope for early conclusion of the trial. Riots are matters concerning public order, and not the security of the state. The court’s observation that the state, in its anxiety to suppress dissent, has blurred the line between the constitutionally guaranteed right to protest and “terrorist activity”, is a stern indictment of the establishment. The Delhi Police has gone to the Supreme Court on appeal against the verdict, possibly in the fear that the ruling may foil its design to paint protesters as ‘terrorists’. If the High Court’s approach to grant of bail is upheld, it would help secure the liberty of other dissenters held under the UAPA elsewhere without sufficient basis.

Legal steps must go hand-in-hand with diplomacy to avoidEnrica Lexierepeat

Nine years after two Italian marines shot dead two fishermen off the Kerala coast under the belief that they were pirates, the criminal proceedings against them are set to be formally closed. The Supreme Court of India has ordered that the criminal trial against them be stopped, after Italy deposited compensation of Rs. 10 crore. The Permanent Court of Arbitration, a tribunal under the United Nations Convention on the Law of the Sea, had last year ruled that even though India and Italy had concurrent jurisdiction to try the case, the marines — Salvatore Girone and Massimiliano Latorre — enjoyed immunity from Indian jurisdiction as they were acting on behalf of a state. The UN tribunal had also ruled that the Indian fishing boat,St. Antony, and the victims were entitled to compensation, asEnrica Lexie, the Italian vessel, had violated the boat’s right of navigation under the Law of the Sea. The two marines are likely to face trial in Italy, but as far as India is concerned, the monetary compensation may have to be treated as the only available form of closure for the moment. Given the legal tangles over jurisdiction, the lawfulness of their arrest and the location of their trial, as well as the provisions of law under which they should be tried, legal accountability through a criminal trial had been rendered extremely difficult. The legal heirs of the two victims are likely to get Rs. 4 crore each, and the owner of the fishing vessel, Rs. 2 crore.

In hindsight, the diplomatic turbulence the incident set off in the early days, the nationalist passions the killings raised and much of the delay in resolving the issue could all have been avoided. A possible way out was to have agreed to Italy’s offer of compensation and a trial in its own jurisdiction — the very thing that came out of the UN tribunal’s ruling. At that time, many in India believed it was an act of wanton killing, while those in Italy believed the fears of piracy were genuine. India’s efforts to assert criminal jurisdiction succeeded in national courts, with the Supreme Court ruling in 2013 that prosecuting the marines, who had been brought into Indian waters from the Contiguous Zone, where the incident took place, was solely in the Union government’s jurisdiction. However, when the NIA invoked a stringent anti-piracy law — the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 — it was received with consternation in Italy. European nations objected to the trial taking place under a law that provided for the death penalty. The provisions of the Act were dropped, but this led to significant delay in prosecuting the matter. A lesson is that such incidents should be dealt with a combination of legally sustainable steps and diplomatic efforts to find early resolution.

[Washington, June 17] The United States believes that there is an “increasing awareness on the part of Pakistan” that it must seek a political settlement with representative elements in East Bengal. Though General Yahya Khan has said nothing to indicate such a change of attitude, and has insisted all along that the Awami League is dead as far as he is concerned, the United States is proceeding on the assumption that he will eventually seek a solution within the framework of proposals made by the Awami League prior to March 25.

United States official sources say they have detected an inclination on General Yahya Khan’s part to abandon his initial attempts to set up a “puppet Government” in East Bengal.

The United States itself is unwilling to define what it means by its calls for a “political accommodation”. But it is less reluctant to concede that the Awami League’s ‘six-point’ plan constitutes the “floor” for any settlement.

The United States still believes that the leaders of East Bengal will settle for such a solution even after all the carnage perpetrated by the Pakistani army.