Daily News Mail - News of 09/06/2015

NSCN(K) move at behest of elements in China?

• Indian agencies have a strong suspicion that NSCN(K) unilaterally pulled out of a ceasefire agreement with the Indian government in March at the instance of some elements in China. Since then, the insurgent group has carried out several acts of violence.
• According to MHA sources, Paresh Baruah of ULFA (I) was instrumental in bringing together several insurgent groups operating in the North-East States. Accordingly, the United Liberation Front of Western South East Asia comprising ULFA (I), NDFB (Songbijit) and other outfits was floated in April, under the chairmanship of NSCN (K) chief S.S. Khaplang.
• “Baruah had twice attempted to bring together the insurgent groups. This time round, he contacted Khaplang and convinced him to rope in other like-minded insurgent groups to target Indian security forces. Assured of support from some elements in China, he went ahead with the plan,” said an official.
• Intelligence inputs suggest that Baruah has been shifting base between Ruili and Kunming in the Yunnan province of China.
• It is suspected that the insurgent groups, which have set up camps in the thickly forested areas of Myanmar, have been getting weapon supplies from a factory of assault rifles being run at Pangwa in the Kachin province of Myanmar, close to the Chinese border.

S S Khaplang (L) addressing a joint rally of different separatist 

outfits at a camp in Myanmar's Sagaing Division

Some animals to be marked as vermin, says Javadekar

• In a move to resolve increasing man-animal conflict, especially those causing damage to crops, the Environment Ministry said on Monday that it had sought reports from the States to declare certain animals whose population is high as vermin for a limited period. Once declared vermin, that particular species can be hunted without restriction.

Farmers in distress

• “We had issued a circular in this regard earlier also. In areas where farmers are facing huge problems due to animals, there is a procedure to declare animals like blue bull and wild boar as ‘vermin(meaning of vermin - wild animals which are believed to be harmful to crops, farm animals, or game, or which carry disease, e.g. rodents.),’ for a particular period of time,” said Environment Minister Prakash Javadekar.

 Will the veena gently weep

The GI status of a product is not utilised to its potential, the stakeholders are unaware of the value of their GI and its benefits, and the quality of these products is not standardised. Even when made by genuine persons, the quality varies.

A Geographical Indication or GI is India’s strength. Practically everything we grow or make is linked to a region. This right has to be strengthened and protected

• When the government announced last year that it intended to frame an Intellectual Property (IP) policy, it evoked responses which were polar opposites.
• One heard the questions “why now?” and “why not now?” which were almost like an exchange between Alice and the March Hare, “Why with an M, why not with an M”. Then, there was the threnody in parallel: “S.3(d) must stay” and “S.3(d) must go.”
• It is not worth examining headlines such as “IP is not patents alone and patents are not about medicines alone”, for the noise is too overpowering. But it must be understood that IP is also located in unforgettable trademarks — in the creativity of writers, singers and others, in Geographical Indications (GI), and in traditional knowledge.
• Amid all this noise, there was a moment of calm, in the form of a pentatonic tune that was played out in Northeast India, and as a workshop organised by the Geographical Indications Registry, Chennai, in collaboration with the Tezpur University Intellectual Property Rights Cell (TUIPR) Cell, Tezpur University, Tezpur, and the North Eastern Development Finance Corporation Ltd (NEDFi), Guwahati. Its focus was to enhance business and to protect the region’s arts and crafts. This was followed by a Geographical Indication camp, a grass-root level initiative for the benefit of the famed Muga silk makers of Assam.

The benefits of GI

• Muga Silk is a GI. GI is a genre of IP that is India’s strength. Practically everything that we grow, make or produce is linked to a particular region. For example, we often hear these examples in every day conversation: ‘Leave your Kolhapuri chappals over there.’ ‘Come in and wash your hands with Mysore Sandal soap.’ ‘Have those idlis made with the Coimbatore wet grinder.’ ‘The Darjeeling tea in the Jaipur pottery cup.’ ‘Where did you buy that Sanganeri print?’ All of them are GIs.
• The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides for the registration, the protection against infringement, and also protection for authorised users. Our people have always been closely linked with the soil, the vegetation, in short the local environment to make or grow our products. So, the promotion of GI has other socio-economic and environmental benefits besides just the protection of IP. The Northeast region has a rich and ancient tradition and culture. It is also rich in bio-diversity. A stunning variety of forms of art and craft continues to be preserved by ethno-cultural groups who belong there. Like in the rest of India, the people there have fully and creatively used what they have found around them and have made it typically theirs and of their region. It is this that forms the basis for the generation of many GIs. Besides empowering them, the workshop was aimed at creating an awareness of their rights and teaching them how to make use of the law.

Low awareness

• The golden yellow Muga Silk was registered as a GI in 2007. But only two persons applied to be its authorised users till 2014. So the focus of the GI camp at Lakhimpur was to examine this single GI and the reason behind such low awareness. It was found that the GI status of the product is not utilised to its potential, the stakeholders are unaware of the value of their GI and its benefits, the quality of these products is not standardised, and even when made by genuine persons, the quality varies. Also, the market for the products and the pricing are fragmented, and there are ‘piggyback riders’ who pass off products as GI which naturally devalues the original product. This would apply to other GIs across the country. The camp’s report noted that there is a steady stream of products “that are not “pure Muga” but mixed with other yarns and being passed off as Muga “which is detrimental to the Muga producers”.
• Dr. Prabuddha Ganguli, the Ministry of Human Resource Development Intellectual Property Rights Chair of Tezpur University, who was associated with the workshop and the GI camp, said that the response from Muga makers was overwhelming, and that by the end of the day there were more than 90 people applying to be registered as authorised users. So, even small steps bear results, which is a very valuable lesson to all State governments. With some imagination and effort, they can make the legislation work so that quality is maintained and GI products do not face extinction.
• The veena is made from the wood of the jackfruit tree; the Thanjavur Veena is a GI. But it may soon become a distant memory because the raw material is becoming scarce and expensive and craftpersons are turning to other sources of income. It is not enough granting a product a GI; the State should nourish the craft. The Thanjavur Veena probably has a more hoary history than the Stradivarius violin. But it does not inspire the national passion that the violin has. In 2013, cyclone Thane which crossed the Tamil Nadu coast caused severe damage to crops and trees, which included jackfruit trees, in Cuddalore district. The State could have ensured that some of that was supplied to the veenai makers of Thanjavur. But the fallen trees were sold as timber! The nadhaswaram makers of Narsingampettai, Tamil Nadu, too are looking for the aacha tree to make their products; they want a GI for their nadhaswarams . But will registration alone be a panacea for their problems and ensure the continuity and nurturing of their crafts? One day when there is no jackfruit tree to make the veenai , or an aacha maram to make the nadhaswaram , will the Thodi and Kalyani gently weep?

For state, private initiatives

• Although the Act gives the creators/producers statutory and proprietary rights, it is insufficient. The Act must be translated into reality by state and private initiatives. GI owners also have a role to play in promoting their GI, but the undeniable reality is that many of them come from groups that are less vocal and less powerful than say trademark or patent owners. The weavers of Kancheepuram Silk (a GI) are abandoning their craft to earn their livelihood elsewhere, perhaps in one of the global corporations nearby. They know that the dignity and respect that they once commanded as master weavers cannot be earned in these occupations, but when hunger gnaws, one makes compromises. There was a master weaver and designer, Muthu Chettiar in Kanchipuram, who came to Madras in the early 20th century with just 13 annas in his pocket. His craft was so exquisite that the elite of Madras soon vied with each other to possess his saris. The colour ‘M.S. Blue’ was his creation, and the lady nonpareil who gave her name to that hue (M.S. Subbulakshmi) wore only his saris. Today, the looms in Kanchipuram are growing quieter by the day.

Reviving GIs

• The government has also announced the USTTAD (Upgrading the Skills and Training in Traditional Arts/Crafts for Development) scheme in Varanasi, which is expected to enhance the traditional skills of craftsmen and artisans there. Banarasi Silk is a GI too. If the scheme is worked as conceived, it will benefit the silk-weaving families and their 40,000 looms, and ensure that the exquisite art lives on. Let me cite another example. Ikat (a GI) weaving may not last this decade. Chennai’s Kalakshetra has taken up the revival of the ancient Kodalikaruppur weaving tradition. During the 19th century, these traditional saris were produced at Kodali Karuppur village, about 30 km from Kumbakonam, for the royal family of Thanjavur, using natural vegetable dyes. They went out of fashion due to a variety of reasons. Though Kodalikaruppur is not a GI, this case must be used as an example to revive fading GIs. However, there is another issue. When the GI is made in another area by the original craftsmen, will they be entitled to retain the indication? This is a question that evolving jurisprudence will address.
• A scheme called the Kanchi Mahaswami Kalvi Kalachara Kaitozhil Maiyam has been framed by private initiative in Kalavai to nurture the skills of the five groups of Vishwakarmas, who are creators who work with wood, iron, panchaloha , gold and black stone. The students will be taught the creative skills and, alongside, will also learn mainstream subjects. The Swamimalai bronze and the Nachiarkoil kuthuvilakku are GIs too. Unless this generation transmits the skill, and unless the continued existence of all the GIs is ensured, there will be no riders of these lost arts.
• In the Payyanur Pavithra Mothiram case, the Intellectual Property Appellate Board directed that the notice to the public must be issued in Malayalam, the regional language. The board also set aside the grant of GI registration to the ‘Payyanur Pavithra’ ring in the name of a society. It said: “The main object of the Geographical Indications of Goods (Registration & Protection) Act is to protect those persons who are directly engaged in creating or making or manufacturing the goods. When these creators or makers complain that the application has been made behind their back, we cannot allow the registration to remain.” The Mothiram, a uniquely crafted ring, is made of gold and silver by the artisans at Payyanur in Kannur district of Kerala, and it is believed to bring luck and grace to anyone who wears it with deep devotion. In the making of the ring, one requires great expertise and dedication and the artisan is isolated for at least three days to make it. The point is that language should not be a barrier.
• The craftspeople who come from the east, the northeast or the south may not know either Hindi or English, but that cannot make their rights less valuable. In fact, the GI camp in Lakhimpur was conducted in Assamese, as it is the language of the Muga silk weavers.
• In short, we must take the cue from the Northeast initiative which is a very important one and must be replicated across the country.

USTTAD Scheme

• The Centre on May 14 launched “USTTAD” — a flagship welfare scheme aimed at upgrading and promoting the skills of artisans from minority communities — in Varanasi, Prime Minister Narendra Modi’s Lok Sabha constituency.
• Launching the USTTAD — an acronym for Upgrading Skills and Training in Traditional Arts/Crafts for Development — Union Minister for Minority Affairs Najma Heptullah, said it was a major initiative of the NDA government to promote the skills and works of the craftsmen and termed the scheme as “close to the PM’s heart”.
• The scheme was announced in 2014 with the Finance Ministry allocating Rs 17 crore for it. Heptullah said the programme is linked to ‘Make in India’ campaign and seeks to help artisans connect with buyers.

Judicial Review and the Ninth Schedule of the Indian Constitution

Judicial Review

• Judicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary.
• Legislature, Executive and Judiciary are three organs of the political system and a system of checks and balances keeps them working in coordination with each other in a healthy manner.

Judicial Review in the Indian Context:

The provision of judicial review has been adopted in the Indian constitution from the constitution of the United States of America. In the Indian constitution, Judicial Review is dealt with, under Article 13. Judicial Review implies that the Constitution is the supreme power of the nation and all laws are under its supremacy.

Article 13 states that:

1. All the post constitutional laws, after the coming into force of constitution, if differ from it in all or some of its provisions then the provisions of constitution will prevail & the provisions of that post constitutional law will hide till any amendment in constitution relating to the same matter. In such situation, the provision of that law will again come into force (the Theory of Eclipse).
2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution; otherwise, the laws and amendments will be deemed void-ab-initio.

In such situations, the Supreme Court or High Court interprets the laws as if they are in confor­mity with the constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with Constitution is considered void.

The Ninth Schedule:

• The first amendment to the Indian Constitution added the Ninth Schedule to it. It was introduced by the Nehru Government, on 10 May 1951 to address judicial decisions and pronouncements espe­cially about the chapter on fundamental rights. Nehru was also very clear on the purpose behind the first amendment. The state wanted to pursue nationalisation, take away lands from the zamindars, re-distribute them, and make special provisions for the socially and economically backward.
• Despite having architected the Constitution, Nehru was not confident that the laws made to pursue these special interests of the state would stand up to judicial scrutiny on account of being discriminatory.
• The First Amendment that brought in Articles 31A and 31B conferring upon the state the right to make laws to acquire private property and to deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating something called the Ninth Sched­ule. It is interesting to note that the origins of the Ninth Schedule lie in land acquisition by the state, given the current political debate on SEZs and Singur, Nandigram.
• Since the First Amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The 4th amendment inserted six acts to the 9th schedule. The 17th amendment added 44 more acts. The 29th amendment brought in 2 acts from Kerala. The 34th amendment in 1974 added 20 more land tenure and land reforms laws enacted by the states.
• In 1975, Indira Gandhi’s infamous abuse of executive power leading up to emergency saw the 39th amendment adding cer­tain central enactments. 1976 saw the 40th amendment even more to the 9th schedule. The 47th amendment in 1984 added more, and then in 1990 the 66th amendment gave more protection to land ceiling acts.
• The 76th amendment to accommodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake however is the 78th amendment, which was about not just immunity to laws in 9th schedule, which was suspect, but amendments to those laws and making those amendments immune. Since then there were absurd laws from Sugarcane supporting price to the New Delhi Urban Zoning Laws all clamoring for an exalted spot in the much abused Ninth Schedule.

The Supreme Court Judgment and the Ninth Schedule:

• In a landmark ruling on 11 January 2007, the Supreme Court of India ruled that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution. Chief Justice of India, Yogesh Kumar Sabharwal noted, “If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated.”
• The Supreme Court judgment laid that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Article 14, 19, 20 and 21 of the Constitution.

Impact of the Judgment:

• The Judgment ended up the controversy behind the Ninth Schedule largely and was successful to put a bar on political intentions of keeping certain sensitive issues out of the reach of Judicial Review for narrow political gains. The landmark judgment was successful in strengthening the demo­cratic base of the society and bringing into the realm of justice, unfair acts of misuse of the provision of the ninth schedule in the Constitution.

India, Australia and the Rohingyas

• In May, the Thai police found dozens of bodies in an abandoned jungle camp in southern Thailand, which was used regularly to smuggle Rohingya Muslims fleeing persecution(meaning of persecution - hostility and ill-treatment, especially because of race or political or religious beliefs; oppression) in Myanmar. Later that month, around 139 suspected migrant graves were found, according to the Malaysian police, in a smuggler’s camp in Malaysia. Despite the escalating Rohingya crisis, India, which is making concerted efforts to build a strong relationship with Myanmar, and Australia, where the migrants are fleeing by boat, are not doing enough; only tentative temporary solutions are being proposed.
• Since coming to office in 2013, the Tony Abbott government has been turning back boats carrying migrants from Indonesia, and has also refused settlement to earlier migrants who had arrived by boat. The recent crisis has exposed Australia’s deeply flawed immigration policy. Instead of addressing the root causes of people fleeing persecution, it only worsens the regional climate for asylum seekers.
• Australia’s policy has given neighbouring states the licence to take tough measures of their own. In a summit in Bangkok, the Myanmar delegation cited Australian Foreign Minister Julie Bishopin’s argument that the “boat people” are not fleeing persecution in Myanmar but are, in fact, “economic migrants”. Unsurprisingly, Mr. Abbott has said he will not rebuke any government for turning back boats carrying asylum seekers. The result of this is that thousands of starving men, women and children have been stranded for months at sea on fragile vessels.
• The crisis shows that people facing persecution will flee borders, regardless of exogenous factors. This is most certainly true for the Rohingyas, an estimated 1 million of whom are stateless. According to the United Nations, 120,000 of them have been forced to flee Myanmar in the last three years. The Rohingyas, who have lived in poverty in Western Myanmar for decades, have no freedom of movement, access to healthcare facilities or education, and their right to vote was revoked earlier this year. Even to marry, they require permission from the authorities. In recent years, they have been subject to violence from nationalist groups. While ‘pull factors’ may change their destination, risking life at sea for a better life will always remain attractive. An effective policy would recognise this fact, and attempt to fix the problem at its source.
• Instead, the Australian government is cutting resources aimed at stabilising the situation in Myanmar. In May, $28 million was cut from the aid to Myanmar programme. Two weeks later, in response to the crisis, the government committed $11 million in aid for international agencies around Rakhine State. This suggests an unwillingness to commit to a long-term regional solution. We must, therefore, conclude that this is a policy for a domestic audience, not a solution for reducing human trafficking regionally or saving lives globally on humanitarian grounds.
• India has been trying to build a strong relationship with Myanmar in recent years, both on the economic and strategic fronts, by seeking to enhance connectivity through the Northeastern States. In addition, India has also been assisting Myanmar with capacity building in areas such as English language training and Information Technology. Further, under the Indian Technical and Economic Cooperation Programme, 500 slots have been reserved for Myanmar nationals with the goal of strengthening human resource capacity. All these steps send out a clear message: that India would like to play a constructive role in Mynamar’s transition to a robust democracy.

What India can do

• But New Delhi does not want to be seen as interfering in the Rohingya crisis, especially as the ties between both nations were strained for a long time, after New Delhi suspended relations when the military junta took over in Myanmar. During this period, China made tremendous inroads. It was only in the 1990s that India re-established links with Myanmar. Yet, it is surprising to see that not a single statement has been made by the Indian leadership in the context of the Rohingya crisis. This, despite the current government playing a constructive role in other crises such as the Yemen civil war, where it helped evacuate citizens from a number of countries including Pakistan, and the Nepal earthquake, where it sent relief supplies and assisted in rescue operations. In fact, Prime Minister Narendra Modi has, on more than one occasion, referred to the Indian ethos of tolerance and commitment to closer links with the outside world. He said at the United Nations General Assembly, for instance, that ‘Vasudhaiva Katumbakam’ — the whole world is one family — is India’s philosophy.
• Beyond platitudes, what role can India play in this crisis? First, it can contribute to the rescue efforts of the International Organization for Migration, which has already collected $I million for rescue efforts. Second, it can express displeasure against the atrocities on the Rohingya community, especially since it believes in democracy, liberalism and pluralism. An unstable Myanmar is likely to have strong security implications for India. The country cannot afford to have an ostrich-like approach towards this growing crisis and nor can Australia. Both will feel the long-term repercussions.