The Yatra conundrum!

Yatra specialist in Indian politics, L.K.Advani started his first rath yatra from Somnath, Gujarat on September 25, 1990 to Ayodya on October 1990, to mobilize people for building a Ram temple. By the time he reached Ayodya, he had transformed it into the political face of Hindutva, the hawk that he came to be regarded as for many years after that. He and the BJP, reaped rich benefits from being the right wing hawk. The BJP rose to power in 1998-99 and Advani himself became Deputy Prime Minister.

Advani led Janadesh Yatra from the other three directions in Bhopal on September 25, 1994. This yatra was on the topic of religion bill. The fifth yatra named Bharat Suraksha Yatra for national security and unity started on 6 April 2006 to 10 May 2006. In between he led two others Swarna Jayanti Rath Yatra and Bharat Uday Yatra.

On October 11, the veteran ‘yatri’ Advani started his 40-day ‘Jan Chetna Yatra’ against corruption. BJP leaders may not have had very high expectations from, Advani’s journey- some saw it as a demonstration of the veteran warhorse’s prime ministerial ambitions, others as a move that could allow the party to appropriate the anti-corruption agenda set by Anna Hazare – but none of them could have anticipated the string of political disasters that has plagued the ‘yatra’. The expectation was that the series of reported scams would be showcased in his yatra to show ‘the complete moral decline of the UPA’. ‘Ab Bas’ – Enough is enough – was the chosen theme song. And the joke doing the rounds of the party was that ‘enough is enough’ could easily be a fit description of this sixth Advani yatra.

On October 10, Advani said, “There were 19 MPs who cross-voted. They were given bribes and were made to cross-vote (In defiance of their party whips). Corruption has helped UPA-I to survive” However, far from focussing on corruption in the UPA, certain events have, unfortunately for the BJP, turned the limelight on that party itself. Not soon after the yatra entered Madhya Pradesh, a scandal broke out in Satna, where journalists were handed over envelops containing cash, presumably to ensure favourable coverage for the Advani yatra as the veteran was to enter Satna the next day. The fact that he was forced to switch over to a helicopter to avoid, bad roads in M.P. – a state governed by his party for the better part of a decade – was also a poor advertisement for the BJP’s ability to deliver on governance. Finally on October 15, as the journey entered the fifth day, a court in Bangalore sent the former Karnataka Chief Minister B.S.Yeddyurappa to jail, along with former Minister S.N.Krishnaiah Setty, on corruption charges. Only a few weeks earlier, the party leadership was forced to sack Ramesh Pokhrial as Uttarkhand Chief Minister and replace him with B.C.Kanduri as corruption charges against Pokhrial mounted and could no longer be ignored. Against this backdrop, Advani’s anti-corruption yatra appeared to have lost all moral ground even before his rath rolled out from Bihar on its more than 7,000-km-long journey.

As for the ‘cahs-for-votes’ charge made by Advani, even as trial continues in court, two former and one sitting MP of the BJP have been sent to jail, along with former political aide of Advani himself, Sudheendra Kulkarni. Though cross-voting took place during the 2009 confidence motion, records maintained by the Lok Sabha secretariat state that the number of MPs who defied their party whips was 15, with both government and the opposition benefiting almost equally from the cross-votes, and not 19, as Advani said.

As many as seven MPs – six from Samajwadi Party and one from the Congress defied their party whips to vote against the government and with the opposition. The flow of cross-votes in the opposite direction was almost the same: eight MPs in all – four of the BJP, one each from the Biju Janata Dal, the Janata Dal (United), the Telugu Desam Party and the Janata Dal (Secular) – defied whips to vote for the government.

BJP leaders admitted privately that all four of their MPs who defied the whip that day — Brijbhushan Sharan Singh, H.T. Sangliana, Manjunath Kunnur and Somabhai Patel — were known to be disgruntled and were on their way out from the party. They had not been expelled earlier as that would have allowed them to retain their seats. Similarly, cross-voting by Congress MP Kuldip Bishnoi came as no surprise as he had, for all practical purposes, ceased to be a member of the Congress, having joined the political outfit set up by his father Bhajan Lal. The rest of the cross-voters were from the SP, which had become a divided house.

If all these MPs had voted in line with their party whips, the result of that vote in 2009 would have been 274 to 257 in favour of the government, instead of the actual result of 275 to 256. While the charge of MPs being bribed should still be investigated, the Lok Sabha secretariat’s data does undercut a foundational claim of Advani’s yatra: that bribery ensured the Congress victory in Parliament that day.

All these put paid to the hoax sought to be perpetrated by the saffron party – that it had earned the moral right to mount an offensive against the Congress-led UPA government at the Centre ‘on grounds of taint.’ This derived from the party’s self-indulgent claim that it was a clean party, or ‘a party with a difference’, to recall a shop-soiled self-description of an earlier era. The BJP lending its support to the Anna Hazare campaign with gusto, to the extent of declaring itself a camp follower (in a submissive letter by party president Nitin Gatkari to Hazare), and before that the RSS- the BJP’s ideological life-force publicing its organizational backing to the plank, were all carefully tailored to vicariously wear the halo of being anti-corruption fighters. Not many took note as the manicured perception took beating with the charges in Uttarkhand and Karnataka. It should cause no surprise if there are found to be other skeletons rattling in the BJP’s cupboard in Karnataka with links on high.

Official investigations are going on into the illegal mining rackets of embarrassingly significant proportions being allegedly spearheaded by other members of the erstwhile Yeddyurappa government (Reddy brothers) and patronized by leading lights of the BJP. The cuts of the power pie also went to the former leader’s acolytes. Within the BJP top leadership too, there were said to be Yeddyurappa patrons, the degree depending on what they could milk from the southern leader. The BJP saw Karnataka as its gateway to South India. The party’s actions while in power in the state do, however, prove to be its gateway to down of South India, into the sea waters.

Not able to suppress his prime ministerial ambitions Advani is on the rath yatra to advertise his party’s ‘probity’. In the wake of all these developments, he and his party may not be sure of what more is in store, so as to manage to end it with some grace, or forced to abruptly call it off!              r

Judiciary on Trial !

Commenting on the Supreme Court on October 19 ordering Jayalalitha to appear before the Special Court in Bangalore on the next day in the Disproportionate Assets case against her and her live-in aide Sasikala, DMK General Secretary Prof. K. Anbazhagan said, “It was inevitable for the court, because it felt that it was taken for granted by the accused, who perhaps had taken the maximum number of adjournments (vaidha) in the country and any more leniency shown to them would lead to non-disposal of any case.”

In a pre-Assembly election interview given to the NDTV in March last, Jayalalitha took exception to the North Indian media calling her also as corrupt along with other leaders of TN and said that the cases filed against her were ‘politically vindictive’ and that she had come out clean in all of them except in a couple of cases. Those who had followed the case-histories of her, know that her claim is a misinterpretation and debauched. A reading of the Supreme Court judgement in TANSI case will make clear as to whether she was acquitted or managed to get it. If at all she had any respect for judiciary, she should have quit public life for ever if she had ‘atoned her conscience’, as the apex court wanted.

It was indeed trying for courts hearing her cases and appeals after appeals for years and years. Taking this Disproportionate Assets case filed in the year 1997, the journey all along these 14 years was long-drawn out and tedious involving Special courts in Chennai and Bangalore, Madras and Karnataka High Courts and Supreme Court. That she acquired the distinction of being called ‘Vaaidha Rani’ for seeking adjournments for more than 130 times in Special Court, Bangalore alone, beside the protractive tactics adopted by her in Chennai trial and on appeals to higher courts, on flimsy grounds, beginning with challenging the very setting up of special court.

After delaying for six years, and in between Jayalalitha returning to power in 2001, the ‘process of justice was being subverted’ (Supreme Court observation). On November 18, 2003, the Supreme Court ordered the transfer of the two Disproportionate Assets cases against her and four others from a Chennai special court to a special court in Bangalore. A Bench, comprising Justice S. N. Variava and Justice H. K. Sema, thereby allowed the petitions filed by the General Secretary of DMK, Prof. K. Anbazhagan praying for a direction to transfer the cases to a court outside Tamil Nadu to ensure a free and fair trial.

The court had on February 28 stayed all further proceedings in the two cases pending before a Chennai Special Court. The Bench held that Prof. Anbazhagan had made out a case that public confidence in the fairness of trial was being seriously undermined and great prejudice appeared to have been caused to the prosecution which could culminate in miscarriage of justice. The Bench rejected the charge made on behalf of Jayalalitha that the petitioner being a political opponent had filed the petition due to political vendetta and hence had no locus standi. “This submission has no force,” the Bench noted and added that “in a democracy, the political opponents play an important role both inside and outside the House. They are the watchdogs of the Government in power.” In that view of the matter, the petition lodged by such persons could not be brushed aside on the allegation of political vendetta. The petitioner being a political opponent “is vitally interested in the administration of justice in the State” and is a “party interested” within the meaning of Sec. 406 (2) Criminal Procedure Code (which provides for transfer of a case from one court to another), the Bench said.

The petitioner’s senior counsel, T.R. Andhyarujina, argued that if this case was allowed to continue in Chennai in the hostile atmosphere prevailing in the State it might result in another “Best Bakery case” of Gujarat (in which all the 21 accused were acquitted by a trial court) and the Bench, by transferring the case to Bangalore, has agreed with the contention. The judges said that “it is undisputed that 76 witnesses have been recalled. Many of them had earlier been cross-examined. We were informed that witnesses were recalled as senior counsel for Jayalalitha had been busy attending to some other case filed against her when they were first examined.”

The Bench said that the fact that witnesses were recalled for cross-examination on flimsy grounds after Jayalalitha assumed power as Chief Minister and the Public Prosecutor appointed by her Government did not oppose and/or gave consent to application for recall of witnesses was indicative of how “judicial process is being subverted.”

“Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law,” the judges observed.

In the present case, the Bench said, “it appears that process of justice is being subverted... The circumstances are such that it would create reasonable apprehension in the minds of the public, at large, in general, and the petitioner, in particular, that there is every likelihood of failure of justice.”

The judges took serious exception to the trial court dispensing with the personal appearance of Jayalalitha and said “be you ever so high, the law is above you. The grounds cited by her in the application were not all mitigating circumstances to have granted dispensation of personal appearance. To say the least, that was a ploy adopted to circumvent the due process of law.”

Referring to the submissions made by K.K. Venugopal, senior counsel for Jayalalitha, that the apex court had allowed the accused to dispense with their personal appearance in certain cases, the Bench made it clear that “the general rule remains that the accused must answer the questions by personally remaining present in the court. It is only in exceptional circumstances that the general rule can be departed/ dispensed with. In this case, Jayalalitha was available at Chennai and there was no exceptional exigency or circumstances such as her having to undertake a tedious long journey or incur a whopping expenditure to appear in court to answer the questions under Sec. 313 CrPC. The conduct of the Public Prosecutor in not opposing such a frivolous application has to be deprecated.”

The Bench issued the following directions: The State of Karnataka, in consultation with the Chief Justice of the High Court, shall constitute a special court under the Prevention of Corruption Act, 1988 to whom the two cases pending on the file of XI Addl. Sessions Judge, Chennai shall stand transferred. The special court should have its sittings in Bangalore. The State of Karnataka shall appoint a special judge within a month and trial shall start as soon as possible and will then proceed from day-to-day till completion. Tamil Nadu shall ensure that all documents and records are forthwith transferred to the special court in Bangalore.

The State shall appoint within six weeks a senior lawyer having experience in criminal trials as the Public Prosecutor to conduct these cases and he shall have an assistant of his choice; the investigating agency shall render all assistance to the Public Prosecutor and his assistant; the Public Prosecutor will be at liberty to recall witnesses who had resiled from their previous statement and declare them as hostile and seek permission to cross-examine them. He will also be at liberty to take action for perjury against some or all such witnesses. In case any witness asks for protection, Karnataka shall provide protection to that witness; the special judge shall put to all the accused all relevant evidence and documents appearing against them whilst recording their statement under Sec. 313 CrPC. All the accused shall personally appear in the court to answer questions under Sec. 313 CrPC on the day they are called upon to do so.

“In our view, the petitioner has raised many justifiable and reasonable apprehensions of miscarriage of justice and likelihood of bias, which would require our interference,” the judges said and ordered the transfer of the two cases to a special court in Bangalore.

But Jayalalitha, as was her wont, once again moved the apex court. The Supreme Court rejected an application of Jayalalitha, seeking transfer of the Disproportionate Assets cases against her and four others from a Bangalore court to a court in any other State, preferably in Andhra Pradesh.

A Bench consisting of Justice S.N. Variava and Justice H.K. Sema held that “no case is made out for modification of our order [dated November 18, 2003, shifting the two cases from a Chennai special court to a Bangalore court]. The petitions are dismissed being devoid of merits.”

“To say the least, the apprehensions [of Jayalalitha] with regard to the Cauvery water dispute and forest brigand Veerappan have got nothing to do with the judicial function of the court. At the same time, the security and safety of the applicant and witnesses are well safeguarded as highlighted in the counter affidavit of Karnataka,” the Bench said.

Seeking to modify the order, Jayalalitha had contended that in view of the surcharged atmosphere and large scale agitation by a section of the people of Karnataka targeting her as well as attacks on Tamil speaking people caused by the highly sensitive Cauvery water dispute, she would not get a free and fair trial in that State.

Rejecting this submission, the Bench pointed out that Karnataka, in its affidavit, had stated that the “false and self-serving” statements had been made by Jayalalitha to bolster her plea for relief. Also, there was no reason to apprehend that Karnataka would not take adequate steps for ensuring a fair and free trial as directed by the apex court.

The Bench also noted the submission made by the State Advocate-General, A.N. Jayaram, that Karnataka “has no interest in the outcome of the trial” and “looks upon it only as a constitutional duty to be discharged to effectuate the order of the apex court.” Further, the Advocate-General had submitted that the State had already constituted the special court on the City Civil Court campus in Bangalore and a special judge had been appointed.

In the light of these submissions, the Bench said “we are not persuaded to re-appreciate the circumstances leading to the filing of the transfer petitions and order of this court transferring the same to Karnataka.”

The Bench noted that “after hearing both the sides and threadbare discussion, this court was of the view that it is expedient for the ends of justice [that] the cases be transferred from Tamil Nadu to Karnataka for trial in accordance with law.”

Referring to her plea for shifting the case to Pondicherry, the Bench said that under Section 406 of the Code of Criminal Procedure, the apex court could order transfer of a case from the jurisdiction of one High Court to another, and in respect of Pondicherry, it was within the jurisdiction of the Madras High Court. Therefore, if her submission was accepted it would amount to transfer of a case from the Madras High Court to the same jurisdiction of the High Court and that situation was not contemplated under Section 406 Cr.P.C.

The Judges said “we must unequivocally say that in a democratic country like ours, governed by the Rule of Law, the efficient and independent judiciary manned the subordinate courts, where justice is administered impartially, fearless of public glamour, regardless of public responses and indifferent to private, political or partisan influences.”

“We have no least doubt in our mind that the judge who has been assigned the job will do well in discharging his divine duty in accordance with law, keeping in mind the above principles,” the Bench observed and dismissed the application.

Again she moved a review petition and on Apr.28, 2004, the Supreme Court rejected Jayalalitha’s petition seeking review of its order transferring the trial of two disproportionate assets cases from Chennai to a special court in Bangalore. Her review petition was rejected by a division bench of Justices S.. Variava and H.K. Sema. Jayalalitha had requested the court to shift the trial of the Rs.66.67 crore Disproportionate Assets cases to any state other than Karnataka.

Once again she moved a curative petition in the Supreme Court on Jan.18, 2005. Leaving no option for Jayalalitha but to face trial at Bangalore, the Supreme Court dismissed her petition seeking stay on the trial and permission to argue for transfer of the case outside Karnataka.

A five-Judge Bench comprising Chief Justice R C Lahoti, Justice N Santosh Hegde, Justice Y K Sabharwal, Justice S N Variava and Justice H K Sema dismissed her curative petition against the Court’s November 18, 2003 order transferring the trial from Chennai to Bangalore for holding a “free and fair” trial. The November 19 order was passed by a Bench comprising Justice Variava and Justice Sema on a petition filed by DMK leader K Anbazhagan seeking transfer of the case outside the State alleging “undue haste” shown by prosecution to complete the trial against the Chief Minister. The same Bench had on February 17, 2004 dismissed an application seeking modification of the order on the ground that the situation in Karnataka was hostile to her in view of her stand in the ongoing Cauvery water dispute between Tamil Nadu and Karnataka. It had on April 28 dismissed her petition seeking review of the November 18 order and seeking transfer of the case outside Karnataka to any other State including Pondicherry. Jayalalitha exercised her last option in August last year by filing the curative petition. The five-Judge Bench dismissed it saying “no case was made out” according to the parameters fixed by apex Court for entertaining her curative petition.

With all these the trial in the Special court was set to begin. According to SC order, senior counsel Acharya was appointed as the Public Prosecutor and a chargesheet running to about 75,000 pages was filed and 45 witnesses were cited. In the very next week, Jayalalitha filed a petition in Karnataka High Court seeking to discharge her in the case, which was dismissed on March 18, 2004. From then on the accused pleaded adjournments for reasons such as quashing the trial, demanding three sets of chargesheet to each of the four accused, copy of the chargesheet translated into English, finding mistakes in translation, demanding cross examination of translators, against deposition of witnesses, the father of the counsel of one of the accused expired, finding out mistakes in chargesheet, Assembly polls in TN, time for appointing new counsel etc.,

Adjournments sought since 2005:

2005: Mar.14, 28, May 16, 25, 27, 28, June 4,7,9, 21, 22, 23, 27, 29, July 12, 16, 22, 23, 26, 27, Aug. 2, 10, 26, Oct.10, Nov.19

2006: June 3, July 29, Sep.2, Oct.28, Nov.25

2007: Feb.9, Mar.24, Apr.28, July 21, Sep.22, Oct.27, Dec.25

2008: Feb.2, Apr.5, May 3, Aug.2, Sep.6, 27, Nov.3, Dec.6

2009: Jan.3, Apr.4, 30, May 5, June 16, July 23, Aug.27, Sep.5, 10, Oct.20, Dec.19

2010: Jan. 23, 30, Feb.8, 19, 25, Mar.3, 4, 5, 18, 22, May 3, 7, 25, June 3, 14, 26, 30, July 22, Aug.6, 21, 28, Sep.13, 23, 30, Oct.19, Nov.18, 25, 30, Dec.15, 16

2011 : Jan 4, 18, 19, 27, 29, Feb.8, 14, Mar.9, 26, Apr.2, 6, 19, 26, May 15, 26,30, Jun.3, 8, 15, 18, 23, July 8, 14 ……

After all impediments caused by her and her associates to the due process of law, the Special court started examining 45 prosecution witnesses from Sep.30 2010 at the rate of five a day and completed it. The counsels for the accused also completed cross examination of witnesses. Her plea for re-examination of witnesses was also rejected.

After the ADMK won the election and Jayalalitha assumed office on May 16 last, it was reported that the Chief Secretary convened a review meeting of the DVAC and directed them to reinvestigate the Assets case against her. But on a petition from Prof. K.Anbazhagan the Special court and then the Karnataka High Court quashed the decision of DVAC to conduct further probe which would only be an attempt to destroy the evidence already on record.

The High Court noticed that when the case was transferred to the Special Court in Bangalore, accused No.1 (Jayalalitha) was the Chief Minister of Tamil Nadu and in the subsequent elections her party was defeated. However, in the recent elections (May 2011) held to the State Assembly, the party headed by her secured majority and she has been sworn in as Chief Minister just a few days prior to the filing of this application.

“The fact that now the Superintendent of Police, Directorate of Vigilance and Anti-Corruption, Chennai, is trying to bypass the SPP makes this court to note that the observations made by the Apex Court in the order of transfer that the process of justice was being subverted would apply to the present situation,” the court said.

It is after all these that Jayalalitha was directed by the Supreme Court on Oct.19 to appear before the Special Court in Bangalore on the next day to answer questions under Sec.313 CrPC. She did so on Oct.20 and 21 and answered 567 Questions out of 1,339 questions and the session is posted on Nov.8 for further questioning. But her counsel had informed Media that they would again approach the SC for remedy because ‘she was ordered to appear only for two days.’ So, when the process will be completed and the D-day for judgement will dawn is a million-dollar question!

In all the cases against her, over 14 years since 1997, the period is a testing time for the patience, perseverance and objectivity of the courts at all levels. In short, the judiciary was put on trial!

‘Amma’ magic or myth?

In the ‘Deccan Chronicle’ daily’s supplement ‘Chennai Chronicle’ on Oct. 16, there is a report, saying “the Chief minister and ADMK chief, J.Jayalalitha, has once again become a symbol of inspiration and courage for her partymen. Discouraged by the poor turn out for the Tiruchi West bypoll and pessimistic forecasts of poll pundits, the morale of the party local body candidates hit a low. But, it was only till Amma hit the campaign trail. A couple of days after her whirlwind tour, ADMK men are once again busy discussing their victory margins. That is Amma magic for you.” Admittedly, it might be her magic for ADMK cadre, but she has once again turned out to be a myth for the people of Tamil Nadu, who were misled by false propaganda and promises to repose faith in her, five months back.

On the previous day (Oct.15), ‘The Hindu’ carried a report under the headline, ‘Jayalalitha promises to end power cuts in one year’, report stated, “Jayalalitha on Friday said that the state would become free from power shortage in one year… within few months of assuming office, the ADMK government had reduced the duration of power cuts gradually. Through sustained efforts to augment power generation, TN will be turned into a state sans power cuts.”

Almost all English and Tamil dailies had given wide coverage to her campaign. ‘The New Indian Express’ continuing with its role of ‘official English mouthpiece of ADMK’ and Tamil daily ‘Daily Thanthi’ stooping to the level of publishing her ‘speech’ (read out uninspiringly) on the first page under the banner heading ‘vote for ADMK’! While factual and undistorted reporting of the leaders should be welcomed, these dailies do not adopt the same yardstick for reporting the speeches and statements of Kalaignar. If only, they had adopted the same method of reporting, they would have reminded their readers of what Jayalalitha promised people during her election campaign in March- April and what were all her comments during DMK rule on power shortage!

During her Assembly election campaign, she promised to address power cut in the state within three months of assuming office. By their day-to-day experience, people for themselves know whether ‘the duration of powercut had been reduced gradually by the ADMK government’ as Jayalalitha claims and dailies report, or duration of powercut increased day after day. Jayalalitha knows that she cannot sell the lie. That was why like other leaders of smaller parties and unlike a Chief Minister, her late decision to undertake a whirlwind tour of the state which speaks for her panic reaction.

Secondly, what are the ‘sustained efforts’ that she proposes to take to augment power generation to turn TN into a state sans powercuts? Nothing so far! But the truth is that it will happen and the state will turn power surplus, thanks to the power projects, conceived, funded and started execution by the previous DMK rule.

A report in the Financial Express on March 2, 2009 under the headline ‘New projects to make Tamil Nadu power surplus by 2012’ stated:

“The power-starved state of Tamil Nadu, which had not commissioned any major power project after 1996, has lined up a slew of power projects for over 14,000 MW generation capacity in public and private sectors. These projects are expected to make the state power sufficient by 2011 and power surplus after 2012. Tamil Nadu presently has an installed capacity of over 10,000 MW and faces 1,500 MW power deficit affecting industrial and domestic consumers.

The new power projects for over 11,500 MW in public sector and 2,500 MW in private sector are at different stages of implementation. The first unit of the 2,000-MW Kudankulam atomic power project is also close to the stage of being commissioned. There will also be over 4,000-MW installed capacity in renewable sector with over 3,000 MW from wind turbines alone, followed by biomass, co-generation and others.

Of the thermal projects, about 6,000 MW would be commissioned in 2010-11 by the public sector power companies as joint ventures with the Tamil Nadu Electricity Board (TNEB), State Electricity Minister Thiru Arcot N Veerasamy said in the sate assembly. It includes 1,200-MW expansion of North Chennai and 600-MW expansion of Mettur thermal stations, TNEB-National Thermal Power Corporation (NTPC) joint venture 1500-MW Vallur thermal project, TNEB-Bharat Heavy Electricals Ltd (BHEL) joint venture 1600-MW Udangudi super critical thermal power project and TNEB- Neyveli Lignite Corporation (NLC) 1000-MW joint venture at Tuticorin. He said the first 1,000 MW unit of the Kudankulam atomic power project was scheduled to go on stream in December 2009.

The work on 1,000-MW Vallur thermal power project attracting nearly Rs 5423 crore is at the stage of progress. Its capacity can be expanded by another 500 MW. NTPC and TNEB have floated a 50:50 joint venture company - NTPC Tamil Nadu Energy Company Ltd for the coal-based thermal power project. It is the first NTPC project in Tamil Nadu though it supplies 1,492 MW to the state from Ramagundam in Andhra Pradesh and Kayamkulam in Kerala. The unit-1 at Vallur would be ready by November 2010 and the later by March 2011.

[Kalaignar had explained the delay in his statement on June 17: “The works for units 1 and 2 of Vallur Thermal Power Station at an estimated cost of Rs.8,000 were started on 13.8.2007 during DMK rule and works for the third station on 28.7.2009. The boiler for unit one was installed and installation of turbine was going on. Other than key electricity machinery the works for installing other machineries was carried out for the other two units. The tender for buying key mechanical devices for unit 3 had been given to BHEL and works were going on. Units 1,2 and 3 would be linked to the grid in August 2011, October 2011 and September 2012 respectively and planned to bring into operation in October 2011, December 2011 and November 2012.”]

 The Rural Electrification Corporation (REC) has sanctioned Rs 3796 crore, which is the debt component of the project. Foundation stone was laid for the super critical 1,600 MW (800x2) Udangudi thermal power project near Tiruchendur, in Tuticorin district, recently. Estimated to cost Rs 8700 crore, it is a joint venture between BHEL and TNEB. TNEB is teaming up with NLC to set up a coal-based 1,000 MW power project at Tuticorin. The foundation stone for this was laid on Febraury 28 by the External Affairs Minister Pranab Mukherjee. The promoters have formed a new company, NLC-Tamil Nadu Power Ltd, to develop the 500x2 thermal power project estimated to cost Rs.4,900 crore. NLC and TNEB will have 89% and 11% equity respectively. REC has sanctioned Rs.3437 crore, the entire debt component of the NLC-Tamil Nadu Power Ltd.

Coastal Energen , a Coal and Oil group company, is setting up a 1,200-MW merchant power project at Tuticorin. It is to be commissioned in 2012 and major share of the power would be available to the consumers in Tamil Nadu. Ahmed Buhari CEO said the company has signed a power purchase agreement with Tata Power. It will sell the power to the bulk consumers in Tamil Nadu itself.

Cuddalore Powergen Corporation, promoted by the BGR Energy group, is setting up a 1320 MW (660x2) thermal power project at Cuddalore with a power purchase agreement with TNEB. This MoU-route power project is scheduled to be commissioned in 2013. There is a proposal to set up 4,000-MW mega power project at Cheyyur, Kancheepuram district. The Power Finance Corporation is taking the lead in this. NLC proposes to set up a 1600 MW project at Jayamkondam, Perambalur district, at an investment of Rs.10,000 crore. These two projects will be commissioned after 2012.”

This is the reality of the power position in Tamil Nadu: the efforts taken by the previous DMK government with all sincere by not only to overcome power shortage but to turn Tamil Nadu into a power surplus state, start bearing fruits now. While in opposition Jayalalitha shed crocodile tears for the difficulties faced by people of the state due to her failure to execute any power project during her earlier regime. And now she is trying to play hoax on the people by claiming the outcome of DMK government’s efforts as her achievements. It is regrettable that the media, which is well aware of the truth even by their own past reports, do not come forward to clarify it to the people and opt play a second fiddle to the ADMK’s disinformation campaign.

One can deceive some people for sometime and not all the people all the time!

Regulating Visual Media

“Vettel scorches his way to victory  – Formula One big brass lavish praise on inaugural Indian Grand Prix” – The Hindu. “Vettel wins, world raises toast to India – Crowd of 95,000 watches as country roars on to Global Motor Racing stage with hugely successful F1 event” – The Times of India. “Vettel warms Indian hearts – World champ’s speed endorses nation’s first GP” – Deccan Chronicle. “For India, It’s Formula Won – Huge turnout, celeb-glitter, praise for circuit and country mark the climax of inaugural Indian GP” – The New Indian Express. “Vettel lifts cup but India wins F1 race” – The Economic Times.

These are the screaming headlines of lead news stories on page one of these dailies on October 31 splashed with huge photographs all over, of the inaugural Formula One Grand Prix of India at the Buddh International Circuit in Greater Noida on the previous day, October 30. If this is the exuberance of the print media reporting the event, it is needless to say how the visual media was engrossed in their 24x7 news channels. The presumption of the media is that this is the top most and most absorbing news for the 120 crore people of this cursed country. The irony is that the huge and lavish circuit and stadia was named after Gautham Buddha! The people of 75 villages around the complex mostly poor farmers and agricultural workers live in absolute poverty and without electricity, water supply and other basic amenities – which are of least concern for the media, professing to be the pulse and voice of the people.

The fact is, on the contrary, the modus operandi and modus vivendi of the media are far removed from the people of this country as reflected by the new Chairman of the Press Council of India and former Supreme Court judge Justice Markandey Katju, in an interview to CNN-IBN (published on page 9 and 10 of this issue), who also insists on bringing the electronic media under the purview of the council and giving the council more teeth so as to punish the errand news channels.

An acrimonious debate has been going on about regulating the media in general and electronic media in particular. The Union government has clarified time and again that it does not have any plans or desire to regulate TV channels. For the print media there is at least the Press Council of India, though dubbed as a toothless regulator, for the electronic media there is none. There is, however, a demand to convert the Press Council into the Media Council so that it has jurisdiction over the electronic media as well. Though most people support self-regulation, there is also a sizeable section which feels that it has failed and some other sort of regulation is needed but the government must not regulate.                                                                                             

    Generally, broadcasters argue that viewers are the best judges. Viewers’ choice is important but not ultimate. If people want to view blue films, should TV channels be free to show them? The role of the media is not just creating but cultivating public opinion.

‘Sach ka saamna’ was one such reality show which was a direct intrusion into privacy which people enjoyed. That’s why, regulation is needed. Self-regulation is, doubtless, the best solution, but unfortunately, it has failed miserably. Self-regulatory mechanism of private TV channels got a body blow when India TV, a member of News Broadcasters Association (NBA)— a group of 31 news broadcasters — quit it in April 2009 alleging bias a day after the NBA Disputes Redressal Authority slapped a fine of Rs. one lakh on it for “deceptively dubbing” a US-based policy analyst’s interview. The NBA, formed in 2008 in the face of growing pressure from the government to regulate news content, set up a self-regulatory body headed by a former chief justice of India. Its draft aims at ensuring that channels assume more responsibility for the shows they air, making it mandatory for every channel to appoint a ‘content auditor’ to address all complaints of content violation.. The withdrawal of India TV from the group vindicated the fear being expressed right from the beginning that self-regulation may not be effective. It was the result of the carping criticism that the media, in general, and TV channels, in particular, faced for their slipshod reporting of the 26/11 terrorist attack and the Aarushi murder case, to name a few, and a fake sting operation which showed Uma Khurana, a Delhi government school teacher, as running a brothel using school girls. An angry mob would have lynched her but luckily she survived and ultimately got justice. It created so much revulsion that some sections demanded legislation to control the media and ban sting operations.

    News channels are facing the credibility crisis of the worst order. Heads of news channels themselves admitted while participating in India’s first news television summit held in New Delhi in 2008 that the “race for eyeballs” was forcing news channels into pornography and crime shows. One must not forget that media is not only supposed to cater to the public taste, but also to create the public taste. Actually, this problem rears its head when the tyranny of market rules the roost. Advertisers, no doubt, go by the numbers of viewers, but the question is: should the quality be dissipated in order to mobilize revenue? Generating revenue to run a media house is acceptable, but to run a media house for earning revenue is unacceptable. Actually, media houses are registered under the Companies Act and not under the Registration of Societies Act under which one cannot earn profit. Mahatma Gandhi’s ‘Indian Opinion’ did not have a single advertisement and he financed it by his earning from the law practice. In fact, during the freedom struggle, several national leaders published their own magazines to propagate their viewpoints. Dravidian leaders Thanthai Periyar, Arignar Anna, Kalaignar and several others published dailies and journals facing enormous difficulties.

Common charge against the news channels is that they are intruding into privacy, and reduce one’s honour by putting pictures, simulations, re-enactments and alterations in a misleading context. The Supreme Court on 24 August, 2007 directed the Ministry of Information and Broadcasting to stop TV channels from telecasting photographs of Monica Bedi taken surreptitiously in a bathroom in Bhopal jail. This is not the first time that a girl in the bathroom has been snapped. Such video recordings have been telecast earlier. This unfortunate trend acquired a monstrous dimension in the Aarushi murder case when she was shown, by computer simulation, sleeping with the domestic help, Hemraj, under one blanket. TV channels took the stand that they showed what the police informed the media about the progress in the investigation. But such a lewd depiction cannot be justified under any circumstances. Privacy is under invasion, primarily for sale, but also in the name of state security. A salacious media is crossing all limits to capture nudity. Mind-boggling technological innovations have made intrusion into privacy a child’s play. Girls are not safe even in bathrooms with peeping Toms’ shenanigans wreaking havoc threatening to tear individuals apart. A reporter’s job is persnickety, requiring him to adhere strictly to truth and refrain from expressing any personal opinion and meticulously protect one’s dignity. The right to privacy is a fundamental right as recognized by the Supreme Court in R. Rajagopal v. State of Tamil Nadu (1994) which said that anyone violating the right to privacy of the person concerned would be liable in an action for damages. It has been protected even under the Norms of Journalistic Conduct (2005) issued by the Press Council of India.                                                        

Media Trials: ‘Media trial’ is a popular word in the street of intellectuals and our judiciary has shown its unhappiness on it several times. News channels are delivering decisions indirectly by their coverage and angle of stories. They don’t feel the sensitiveness of the incident as well as their responsibilities. In an incident of Delhi, a girl made allegations of rape and continual sexual harassment on her own uncle(Mama). News channels snatched this sensational story and started to broadcast it continuously with headings like “Haiwan Mama Ka Karnama”, “Vasana Me Andha Bana Mama” etc. After few days that mama and his wife committed suicide. According to suicide note that person was impotent so he was not able to do such a heinous crime. After investigation the girl’s allegations were found full of suspicion and a conspiracy against that person (Mama) came in to light. Here, the irresponsible behavior of news channels took to valuable and innocent lives.

The abuse of freedom by a section of the media for creating sensation, achieving pecuniary benefit and enhancing their TRPs, has to be checked in public interest. The right of media always comes with a duty - duty to report fairly, objectively and accurately. That duty attracts restrictions and limitations which protect the right of an individual.  Freedom of the press  is essential for healthy functioning of democracy; however, democracy comes with responsibility.  Freedom of the press cast responsibility on media as well.

Expression of views and making analyses of the news by the news channels, have  become a regular affair. Telecasting views on the news relating to  the arrest of an alleged accused and airing of press conference by the police, tantamount to the trial by media which may have prejudicial impact on the witnesses, the accused and  the administration of criminal justice in general and it may also affect the judge sub-consciously. In a recent double murder case in Noida, speculative stories by certain news channels have  dented the image of the alleged accused beyond repair inasmuch as the father of the victim was condemned before the actual trial had commenced.

The direct live telecast of the sixty hours Operation Black Tornedo by the security forces to combat terrorist attack in Mumbai particularly on Oberoi Trident and Taj Mahal Palace Hotels and Nariman House, by news channels included live feed of air dropping of NSG commandoes on the rooftop of Nariman House which had taken away the element of surprise and was critical and crucial in the operation of Black Tornedo.  The live footage shown by TV channels to the viewers, could also have been used as free intelligence input by the perpetrators sitting far away from the place of incident who allegedly guided the attackers to take appropriate emergent measures against the positions of security forces through satellite/mobile phones.  Such live feed of Commandoes being air dropped directly endangers the success of operations and safety of hostages as well as security forces. 

Another criticism against the media, not only TV channels, as a whole is that it gives news based on unnamed sources. Newspapers can afford to wait for some time to verify the authenticity but the news channels dishing out news round the clock do not have any patience to wait and cross-check as the culture of ‘breaking news’ does not allow any time. Quoting unknown sources is a must to protect the credibility of the report as well as the person who leaks the information. In some cases it may be misused, but then it dents the credibility of the channel or the paper. In 1981, The Washington Post gave back a Pulitzer because reporter Janet Cooke had cooked up a story about an 8-year-old heroin addict who did not exist. Subsequently, its editor announced the “no more unnamed sources” policy to the newsroom. The experiment failed miserably as its competitors published important news stories that the Post did not, and the experiment ended after two days. Sometimes, senior officials themselves leak when they feel that it is in the public interest to expose some misguided policy. It was Mark Felt, then deputy director of the FBI, who leaked the Watergate conspiracy to Bob Woodward.                                                                                                           

    Curbing the freedom of expression is neither desirable nor easy under our Constitution which has made it a fundamental right. It was because of this reason that the Election Commission’s order to ban the exit poll was set aside by the Supreme Court though parliament did it subsequently by amending the representation of people Act. The Election Commission banned it without genning up on the legal position and got rebuke from the Supreme Court. Later it had to be brought to force by an amendment to the People’s Representation Act

The right to freedom of expression guaranteed by Article 19(1) (a) of Constitution, recognized as a basic feature of the Constitution, can be curtailed only on specific grounds mentioned in Article 19(2). The Supreme Court has clearly held in Bennett Colemam & Co. v. Union of India [(1972) 2 SCC 788] that there cannot be any other ground for curbing this freedom. However, in Union of India  v. Motion Pictures Association [(1999) 6 SCC 150], it rejected the prayer of cinema hall owners that the order to compulsorily screen scientific and educational documentaries by cinema halls curtailed their right to freedom of expression as it is in the national interest. Moreover, the Supreme Court has not struck down any legislation for violating the basic structure. The basic structure doctrine evolved primarily in the context of constitutional amendments only. But in S. R. Bommai v. Union [(1994) 3 SCC 1], the Supreme Court examined even the Presidential proclamation under Article 356 on the touchstone of basic structure, and upheld the dismissal of three state governments headed by the BJP as constitutionally valid as those governments were not likely to observe the ideology of secularism, a part of the basic structure, and held the dismissal of other state governments as unconstitutional. However, in cases of legislations, the apex court has flatly refused to apply this yardstick (Kuldip Nayar v. Union). In Indira Nehru Gandhi v. Raj Narain (1975 Supp SCC 1.), it set aside the 39th amendment but upheld the similar amendments in the RP Act.

    Media enjoys tremendous privileges in the public interest, but TV channels are dishing out rubbish in the name of public interest. Though self-regulation is not effective, government regulation is not the solution either. A broad-based autonomous body should play the watchdog.

It is no exaggeration to say that media represent the sector of the economy that is the envy of others because of the extremely buoyant growth rates witnessed over the last two decades, in an environment characterised by minimal or no regulation. The sole statutory, quasi-judicial body set up for media regulation in the country is the Press Council of India. While it aims to preserve the freedom of the press and maintain and improve the standards of press in India, it has no way of imposing punishments or enforcing its directions for professional or ethical violations.

In the absence of any other government regulator, the focus has shifted to self-regulation by the media organisations, individually or collectively. Collective self-regulation has failed because it is neither universal nor enforceable. Individual self-regulation has also failed due to personal predilections and the prevailing of personal interest over public interest.

It is relevant to note that, to an extent, the most effective de facto media regulator happens to be the advertisers and sponsors who determine the bulk of the revenue stream of our media industry. Their aims and desired outcomes, however, might not align with public policy goals of the government or markers of public interests and may, instead, stand in opposition to them. The common citizen, who is a consumer of media products, is thus faced with a piquant situation.

While economic deregulation has been the dominant trend of the recent past, it is premised on a dynamic market place with a system of independent regulation, especially competition regulation, to prevent cartelisation, abusive behaviour by dominant firms, and corporate transactions that derail the competitive processes in the market.

When the government, the polity, the market and the industry are unable to provide for full-spectrum systemic regulation that protects consumer welfare and public interest, who will step in to address the gap? As we debate the issue of media regulation, the following aspects need closer scrutiny:

First, the objective of regulation in democratic societies such as the USA, France and others is to enhance diversity, competition, and localism among media outlets and to promote public interest with a focus on upholding constitutional values, protecting minors, and limiting advertising. Intrusive content regulation is minimised because those who are aggrieved can resort to legal means in the knowledge that the justice delivery system will address their grievances in a reasonable time period. Unfortunately, the same cannot be said about our justice delivery system. The time taken to settle court cases deters individual citizens, and even corporate entities, from seeking legal options and forcing the search for alternative tools of administrative justice and facilitation for grievance redressal.

Second, we have not had an informed debate in the country on the issue of multiple ownership and cross-ownership nor a cogent national media policy that covers print, radio, television, cable, DTH platforms, video and film industry, internet, and mobile telephony. In most developed countries, rules on cross-ownership and multiple-ownership are intended to prevent the emergence of monopolies and cartels and promote competition. Many States in India have a few media groups dominating both the print and electronic media. At the national level, we have seen the emergence of a handful of media conglomerates spanning the entire media spectrum. Its impact on moulding public opinion, generating political debate, and safeguarding consumer and public interest is a moot question.

Third, India is among the few democracies without active media watch groups engaged in objective analyses of the media, discerning prejudices and latent biases, and subjecting the media to a dose of their own medicine. For an industry that has over fifty thousand newspapers and hundreds of television channels, systematic media criticism is non-existent.

What this means is that in the absence of government and industry regulation, even civil society has been unable to provide an effective de facto media regulatory mechanism.

Fourth, no discussion of media regulation can ignore the recent controversy over ‘paid news’.

We need to introspect whether the strategy of relying on advertisement rather than subscription as the main revenue source for media outlets has created a difficult set of ethical problems for the media industry as a whole. Once content ceased to be the revenue driver for a media outlet, the effort to leverage it as a direct revenue source began. The inability of the industry and the Press Council to go public with its report on paid news is also another pointer to the problems of self regulation and the ‘culture of silence' in the entire industry when it comes to self criticism.

Fifth, the structural biases of the development process have favoured urban areas over rural ones, metropolitan areas over other urban areas, English-speaking over those speaking other Indian languages, the middle and upper classes over the others who constitute the vast majority of our citizens, and the service sectors over other areas such as agriculture.

These biases have prompted the media industry to resort to “sunshine journalism” where the focus is on the glass that is quarter-full rather than that which is three-quarters empty! When media portrayal is of a life that is always good, optimistic, going with the tide of those with discretionary spending power and their causes and pet themes, the role of the media as a defender and upholder of public interest is relegated to the background and its commercial persona takes over, replete with its allegiances to the market and the shareholders and issue dear to them.

Sixth, no discussion of media regulation can ignore the slow erosion of the institution of the editor in Indian media organisations. When media space is treated as real estate or as airline seats for purpose of revenue maximisation strategies, and when media products are sold as jeans or soaps for marketing purposes, editors end up giving way to marketing departments.

One might ask, if the situation is so stark, what can be the way forward?

A good starting point would be for all stakeholders of the media industry to realise that the ethical underpinning of professional journalism in the country has weakened and that the corrosion of public life in our country has impacted journalism.

We should not forget that vibrant journalism in a democracy is watchdog journalism that monitors the exercise of power in the state, stands for the rights and freedoms of citizens, and informs and empowers citizens rather than entertains and titillates them and feeding to their pervert notions and apolitical tendencies. Vibrant journalism always springs from the bedrock of professional ethics. Our media, and democracy, are fortunate that we have shining examples of journalists who not only embody the ethical dimension, but sadly, also laid down their life for the same.

‘Media trial’ reached a crescendo since the CAG report on ‘presumptive loss’ in the allocation of spectrum. Although the report itself quotes four figures and concede that the presumed loss was debatable, the media as a whole hung on the highest figure of Rs.1,76,000 crore, if the 2G spectrum were auctioned like the 3G spectrum, which was not permitted by the policy of the government. Knowing the truth very well, the media deliberately clung on the figure and more mischievously propagated the ‘presumed loss’ as scam that it got firmly embedded in the minds of people as well as the judiciary. Showing the portraits of former Telecom Minister A.Raja round-the-clock on TV channels for any news connected with it, the viewers had been virtually brain-washed by the so-called ‘free media’ like the ‘totalitarian regimes’ do. The result is one ‘enlightened’ reader of a daily posts the opinion that ‘Raja should be hanged to death’ when the CBI filed additional charges. This is how the media had brutalized the minds of people.

Now, fed up with the distortions of court proceedings in the case, the Supreme Court judge Justice Singhvi had said on Nov.1, “We express our serious anguish over distorted and misleading versions of proceedings reported in newspapers, which is most unfortunate and regrettable. There is also an attempt to tarnish CBI.” But this was what the media was doing all along. On October 24, when the trial court was to hear the bail petitions of Kanimozhi and others, the Zee TV conducted an opinion poll early in the morning on whether Kanimozhi could be given bail or not, and published the result even before the court proceedings started. In that evening the NDTV conducted a debate on the same issue with participants like Subramanian Swamy. The judges had said that the proceedings in the trial court would not get influenced by these reports. It is an admission by default that the court and CBI were influenced by the media.

Expectedly, The Editors Guild of India have come out with a scathing condemnation of Markandey Katju’s ‘ill-conceived, sweeping comments on the media’. They get hurt when the same yardstick used by them for castigating politicians and bureaucrats as a class and creating a low opinion about them, the people and in the society. How many upright politicians and bureaucrats would have suffered was no consideration for them. It is almost a year since the malaise of ‘paid news’ phenomenon was unearthed. How many newspapers, journals and TV channels published the news? Why there was no debate? Again with regard to the BJP’s misadventure at Satna when journalists were handed over envelops containing currency notes, for reporting L.K.Advani’s yatra, only one journalist came out and exposed it, while dozens of others kept mum as they were accustomed to it. Hence, both proprietary and working journalists should first mend themselves before pointing fingers on others.

What is wrong with the PCI chairman advocating responsibility and accountability for the Media? They claim to be the Fourth Estate or Fourth Pillar of Democracy. If so, when all the other three estates/ pillars, the Legislature, Executive and even the judiciary (with the passing of the Judicial Accountability Bill) are made accountably (to the people) why media dither? Are they super-citizens? It is time, though belated, to bring the visual media also under the purview of the Press Council of India and the council empowered with more teeth, like the regulatory bodies RBI and SEBI. Are not they enjoying concessions, rights and previleges on par with the print media?