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Public Statement on Baby steps of Modi Regime

Written By mediavigil on Thursday, May 28, 2015 | 1:59 AM

It’s a one year old infant. It has taken few perfect steps, has faltered on some but is yet to take several required steps to chart a course different from previous regimes. When the President appointed Narendra Modi as the Prime Minister of India on 21st May, 2014, an open letter was published providing some suggestions for the new government. The evaluation of its performance in the light of those suggestions is germane.
·         In a case of arresting the decline in autonomous foreign policy, Narendra Modi led government supported a UN treaty to regulate corporations reversing the stance of Dr Manmohan Singh led government. It was indeed a sad commentary on the state of affairs in India that Congress led Government of did not express its support for the Ecuadorian declaration regarding "Transnational Corporations and Human Rights" before the UN Human Rights Council session in September 2013.  
In a significant development at the 24th session of UN Human Rights Council in September 2013, the representative of government of Ecuador at the UN made a declaration  on the subject of "Transnational Corporations and Human Rights" proposing a legally binding international instrument on business & human rights under the UN.  The proposal was aimed at clarifying “the obligations of transnational corporations in the field of human rights" besides providing “for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to" do so. 

But contrary to its consistent stand since the 1970s Congress led government chose to align itself with most of those countries like Norway that seem to safeguard the interests of transnational business enterprises. It is noteworthy that this reversal in India’s position for a brief period happened when Salman Khurshid was the Minister of External Affairs in the Congress led government from 28th October, 2012 to 26th May, 2014.

By June 2014, Norway responded to Ecuadorian proposal by tabling an alternative resolution co-signed by other countries different from that of Ecuador for adoption by the UN Human Rights Council. Ecuadorian resolution was drafted by Ecuador and South Africa and co-signed also by Bolivia, Cuba and Venezuela.It appears from the UN records that India remained aligned with Norway at least till 24th June, 2014. 

It is apparent from the circumstantial evidence that when Sushma Swaraj of the BJP led government took over from Salman Khurshid as the Minister of External Affairs, India’s long held position was restored. It took exactly one month for the new minister to undo the damage done by her predecessor. The current position is apparently an outcome of the legacy of India’s role in the Non Aligned Movement. 

When the resolution was put to vote for adoption by the UN Human Rights Council on 26th June, 2014, India voted in favour of the Ecuador and South Africa’s resolution which was adopted by the Council. 

Notably, Government of India used to be at the forefront of initiatives like Code of Conduct for TNCs. Its support for the Ecuadorian resolution vindicated its consistent stand and rectified the brief aberration during Salman Khurshid’s tenure as Minister of External Affairs. 

The UN resolution officially titled “Elaboration of an international legally binding instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights” was adopted at the 26th session of the UN Human Rights Council during 10th -27th June 2014. The statement of the Permanent Mission of India in Geneva on Consideration of Draft Resolution provided the Explanation of vote by India.

The statement reads: “The issue of transnational corporations and other business enterprises is an important area where the international community must work together tonot only encourage businesses to respect human rights but also hold them accountable for violations arising out of their business operations….  When states are unable to enforce national laws with respect to the gross violations committed by businesses and hold them accountable due to the sheer size and clout of the transnational corporations, the international community must come together to seek justice for the victims of the violations committed by the Transnational corporations.  We believe that we need to further the dialogue on these aspects and the resolution gives us an acceptable roadmap for the Council to move forward in this direction. We will, therefore, vote in favour of the resolution.” 

The UN resolution reflected India’s concerns. It took into account “all the work undertaken by the Commission on Human Rights and the Human Rights Council on the question of the responsibilities of transnational corporations and other business enterprises1 with respect to human rights.” It stressed that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations. 

This resolution has decided to establish an Open-ended Intergovernmental Working Group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, the mandate of which shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. 

It also decided that the first two sessions of the Open-ended Intergovernmental Working Group on a legally binding instrument on transnational corporations and other business enterprises shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument.  It gave the task of preparing elements for the draft legally binding instrument to the Chairperson-Rapporteur of the Open-ended Intergovernmental Working Group ahead the thirtieth session of the UN Human Rights Council. This Open-ended Intergovernmental Working Group is supposed to submit a report on progress to the thirty-first session of the Council. 

It is noteworthy that the resolution does not confine itself to TNCs, it also covers “Other business enterprises” which has been defined as “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.” This provision was incorporated at the suggestion of Government of India. Notably, “transactions and projects supported by export credit agencies are often protected by confidentiality provisions” unmindful of the fact that it undermines the interest of the affected communities.  

The experience of self-regulation – infamously manifested in the abuses that led to eruption of the global financial crisis in 2008 – suggests that business enterprises cannot be relied upon to self-regulate in a manner that ensures that their activities do not undermine the enjoyment of human rights. 

Voluntary and self regulatory frameworks have failed consistently to regulate corporations. There is an urgent need for a legally binding treaty is adopted to regulate admittedly undemocratic organisations like corporations which have become bigger and more powerful than democratic governments. Modi government took the right step at the most appropriate time. 
·         An argument was advanced for adoption of the Contesting Election on Government Expenses Bill, 2012 which is pending in the Rajya Sabha to combat black money. This Bill has been long due for putting a check on increasing use of black money in elections and political activities to facilitate State funding of elections. This six page long Bill introduced by Prabhat Jha, Member of Parliament from BJP merited his government’s attention. This Private Members' Bill reiterates what several Parliamentary Committees have recommended.
One used to hear that Asif Ali Zardari was called Mr 10 % during Benazir Bhutto's regime in Pakistan. Radia tapes revealed that there was a Mr 10 % in Indian National Congress led Government too. One year has passed but government has not pay any heed to Contesting Election on Government Expenses Bill. Given solemn assurances by the ruling party for combating black money, it is hoped the government will adopt the Bill in the next year.  

If corporate donation directly to political parties is justified then why are they stopping at 7.5 % (through Companies Act, 2013), how about having a 50-50 partnership! There was political consensus on 7.5 %. Has the government explored whether or not there can be no unanimity regarding 50-50 partnership?   
·         By shaping not only the strategies, rational choice but also their goals, political parties as institutions structure political situations and leave their own imprint on political outcomes. This significance underlines the inference that parties cannot be left at the mercy of non-state actors. As long as these actors shape the outcome no matter who wins in electoral battles, democracy is not a winner because our deformed political system is turning legislatures into a forum for legalized bribery.
The way out could be to ensure corporate donations are pooled into an electoral fund which can be used for state funding of elections.

An argument was made for adoption of the 20 page Bill titled "The Intelligence Services (Powers and Regulation) Bill, 2011" that was introduced in the Lok Sabha by Congress MP Manish Tewari, "to regulate the manner of the functioning and exercise of powers of Indian Intelligence Agencies within and beyond the territory of India and to provide for the coordination, control and oversight of such agencies…”

It states, "In view of the reasons stated, the Bill seeks to enact a legislation pursuant to Entry 8 of List I of the Seventh Schedule of the Constitution of India to provide: a) A legislative and regulatory framework for the Intelligence Bureau, the Research and Analysis Wing and the National Technical Research Organisation; (b) Designated Authority regarding authorization procedure and system of warrants for operations by these agencies; (c) A National Intelligence Tribunal for the investigation of complaints against these agencies; (d) A National Intelligence and Security Oversight Committee for an effective oversight mechanism of these agencies; and (e) An Intelligence Ombudsman for efficient functioning of the agencies and for matters connected therewith. The Bill seeks to achieve the aforesaid objectives."
·         Prime Minister should have paid heed to the words Julian Assange , founder of Wikileaks, who may have to stay in Eucadorian Embassy until 2022 saying, “Who arrogates the power to spy on the entire earth-every single of us-and when he is caught red handed, explains to us that “we’re going to have to make a choice. Who is that person? Let’s be careful about who we call “traitor”. 
India should have taken explicit or implicit position on the revelations made about Five Eyes Intelligence Alliance and surveillance on head of States that has come to light thanks to the efforts of Assange and Snowden. A High Powered Committee needs to be given the task of analyzing and verifying the revelations made by Wikileaks and Snowden in a rigorous manner. India’s foreign policy and other related policies need to be guided in the light of these disclosures and should not remain caught in a time warp.

Advocacy of national identity cards as if “everyday forms of identity surveillance” is natural and rational is a hangover of the colonial and imperial times.  How is it that when heads of states are put under round the clock surveillance by colonial and imperial powers it is deemed an assault on national sovereignty but when a national government undertakes the same over their masters, the citizens, it becomes natural and rational. The democratic mandate is against electronic and biometric identification exercises like aadhaar, the government should have stopped the ongoing handing over of personal sensitive data to foreign intelligence companies like Mongo DB, Safran Group, Accenture, Ernst & Young and others and fixed accountability for the same on the acts of omission of the previous government.  This has not been done. The mandate which the NDA got is a mandate against aadhaar among other things. The NDA government has disrespected the mandate by endorsing aadhaar and related programs. Voters will remember it for sure.  

The report of the Parliamentary Standing Committee (PSC) on Information Technology on Cyber Crime, Cyber Security and Right to Privacy reveals how aadhaar number compromises both national security and citizens’ sovereignty for good. The database of these numbers is being stored on cloud which is beyond India’s jurisdiction. In the light of the fact that in the previous government there were many ministers and cabinet minister ranking officials who seem to have violated the oath of office and secrecy, there was a need for the formation of a judicial commission to examine whether oath of office and secrecy has been adhered to by the ministers in the previous governments.

The servility of the previous regime towards agencies like NSA and their infantile reactions recorded in the report of the PSC in the face of evidence that the entire union cabinet was under NSA's surveillance must be remembered as one of the dark chapters of Indian history. 

This Bill merited the attention of the government. It needed to be examined by a High Powered Parliamentary Committee whose recommendations are mandatory. There is a need for a law and a Commission for Parliamentary Scrutiny and Audit of Intelligence Operations. In the one year of Modi government there has not been any initiative in this regard.
·         There was a need to end the Congress culture of tribunalization of judiciary, to ensure mandatory translation of all court orders in Hindi and other vernacular languages in High Court and Supreme Court and to ensure that official transcripts of arguments in the courts are put in public domain. 
The performance of National Green Tribunal is far from satisfactory. Such functions should be confined to judiciary but legislature has erred in encouraging one tribunal after another ignoring the views of legal scholars, jurists and bar associations. The existence of tribunals needed to be re-visited and the language of judicial process should have been accessible to seekers of justice. It has not been done so far.  
·         As to The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Second Amendment) Bill, 2015, there is logical compulsion for bringing out a White Paper of land acquisitions undertaken by East India Companies, British Government and government of independent India so far in the name of public purpose.

Any peoples’ government would have rejected the recommendations of Dr Vijay Kelkar committee’s report which recommended sale of government owned lands, which has been acquired for ‘public purpose’ since 1894. This report was accepted by P Chidambram as Finance Minister in his 2013 budget speech. The Kelkar committee had submitted its report on 3rd September, 2012. The committee recommended that over the next two-three years the government should raise resources by selling unutilised and under-utilised land of the PSUs, port trusts, and the railways, to fund the infrastructure sector. Such stance with regard to government owned land for public purpose is totally immoral and erodes peoples’ trust in government. 
·         Conceptualization and implementation of economic activities in Ganga basin continues in a business as usual manner. Ganga river basin spreads over 239 parliamentary constituencies comprising 80 seats of Uttar Pradesh, 40 of Bihar, 40 of West Bengal, 25 of Madhya Pradesh, 16 of Rajasthan, 12 of Jharkhand, eight of Haryana, five of Uttarakhand, four of Chhattisgarh, two of Himachal Pradesh and seven of Union Territory of Delhi. The catchment area of the Ganga falls in four countries, namely India, Nepal, Tibet-China, and Bangladesh.
On 26th March, 2015, Prime Minister Narendra Modi chaired the fifth meeting of National Ganga River Basin Authority (NGRBA) and called for an "uncompromising mission-mode approach" to stop further pollution of the river. He said the task at hand could not be accomplished without "Jan-Bhaagidaari" (people's participation). The issue of Jan Bhaagidari can only be understood in relation to Sarkari Bhaagidaari (government participation), Bank Bhaagidari(participation of banks), Company Bhaagidari (participation of companies), Thekedar Bhaagidari (participation of contractors), Siyaasi Bhaagidari (participation of political parties) and Ganga Bhaagidari (participation of Ganga). But the meeting confined itself to the quality of water of Ganga river alone in a deeply parochial manner. Even with regard to water quality it did not address all the water sources in the Ganga basin and its relationship with soil pollution. Given the fact that Ganga river and Ganga basin has been divided into a large number of ongoing and proposed projects that focuses on water quantity. This includes diversion of rivers for Interlinking of Rivers project; NGRBA should have paid attention to how depletion of water due to extraction of water in myriad ways has deteriorated Ganga’s water quality.  The party and the government never talk of Jan Bhaagidari when they endorse and approve projects which pollute and degrade Ganga.
The reference to Jan Bhaagidari was made in BJP’s election manifesto 2014. It referred to cultural heritage wherein it promised to “Ensure  the  cleanliness, purity  and  uninterrupted  flow  of  the  Ganga  on priority. Massive Clean Rivers Programme across the country driven by people’s participation.” The survival of the river and its basin is hardly a priority; it’s the electoral slogan of nirmal Ganga (cleanliness of the river) which seems to pre-occupy the attention of the government at the moment. So far it has disregarded aviral (uninterrupted flow) of the Ganga. Water quality improvement is impossible without uninterrupted flow.
This meeting of the NGRBA assumed significance especially because it happened in the aftermath of the submission of 217 page long Main Plan Document titled Ganga River Basin Management Plan (GRBMP) dated January, 2015 along with complemented by eight mission reports and many thematic reports to the government. The plan provides a draft of a 36 page long National River Ganga Basin Management Bill, 2015 which proposes National River Ganga Basin Management Commission (NRGBMC) and National River Ganga Basin Tribunal.
As per the draft Bill, the NRGBMC is “to serve as a custodian of the Ganga basin and work for its upkeep and improvement on the premise that health of National River Ganga is a key indicator of the health of NRGB as a whole.” What is starkly evident is that this “whole” of “National Ganga” is actually only a part of the International Ganga but the plan fails to accommodate this reality. The plan is likely to face massive opposition from the residents of Ganga basin and the Ganga basin states because it recommends that although “Constitution gives full control over waters of a river to a State (List II entry 17)”, central government make “State’s rights….subject to any law made by Parliament for the regulation and development of interstate rivers” by invoking List I entry 56 of the constitution. The plan recommends that “Parliament can make a law taking over the regulation, development and management of an interstate river for the common benefit of the States in national interest.” In effect, the plan makes a controversial recommendation suggesting that Ganga river should be nationalized. The plan should have examined the role of bottle water industry in the Ganga basin, it failed to do so.   
This recommendation of the plan does not factor in the sad experience of declaring tiger as a national animal, for instance. Whenever living entities have been declared national in the country they have become endangered. 
It has been said that by 2025, India could become among the top five economies in the world. If India does become a $5 trillion economy but get all its rivers polluted, food chain poisoned and genetic pool depleted and biometric database of Indians sold or stolen at the behest of commercial czars, will it not be a pyrrhic economic victory? Will not tantamount Faustian bargain?

Benjamin Franklin, one of founding fathers of USA said, “Insanity is an expectation of a different result after doing the same thing over and over again.” NDA government is following the path that was paved by the previous governments’ policies and programs, in the one year it has not done anything to change the direction. Unless it does so NDA’s electoral victory would be another lost opportunity.  

For Details: Gopal Krishna, ToxicsWatch Alliance (TWA), Mb: 9818089660, 08227816731, E-mail: 1715 krishna@gmail.com, Web: www.toxicswatch.org
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