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Archives for : August2018

All What you need to know about Sterlite Tuticorin #mustshare

Frequently asked questions

  1. Does Sterlite run a legal operation?

No. The factory is wholly illegal and built on a bed of lies. In 2006-2007, Sterlite obtained its licenses to expand production from 900 tpd to its current capacity of 1200 by lying to TNPCB and the Union Environment Ministry that it had adequate land, i.e. 172.17 hectares (ha), to accommodate the extra environmental protection infrastructure associated with increased pollution. Such infrastructure includes taller chimney stacks, land for storage of solid waste, ETPs and larger rainwater storage tanks to enable Zero Liquid Discharge. See Environment Clearance dated 09 August, 2007. https://poromboke.files.wordpress.com/2018/06/ec-2007.pdf

Sterlite has only 102.31 ha, not 172.17 ha. After lying to TNPCB and MoEF, and “convinced” them to ignore the violation. Less land means inadequate space for greenbelt, and air and water pollution control equipment, and no Zero Liquid Discharge. Less land means more          pollution. See TNPCB’s Inspection Report dated 22 February, 2018

https://poromboke.files.wordpress.com/2018/06/tnpcb-inspection-report-2018.pdf

  1. Does Sterlite have adequate Greenbelt?

Sterlite’s greenbelt is grossly inadequate to protect surrounding communities from the plant’s air pollution. Government of India guidelines require large hazardous industries like copper smelters to develop greenbelts that are between 500 metres and 1000 metres wide along the boundary of the industry. http://www.moef.gov.in/citizen/specinfo/enguin.html

On 1 August, 1994, TNPCB issued a No Objection Certificate stipulating a greenbelt of 250 metres around the battery limit of the industry. On 12 August, 1994, Sterlite requested TNPCB to relax this condition and permit the industry to develop a greenbelt of 10 to 15 metres around the plant as 150 acres of land would be required for the 250 metre wide greenbelt. On 18 August, 1994, TNPCB relented and allowed Sterlite to develop a 25 metre wide greenbelt instead of 250 metres. (See Pages 31 and 32 of NEERI 1998 report https://poromboke.files.wordpress.com/2018/06/neeri-nov-1998.pdf )

According to the Environmental Clearance dated 9 August, 2007, Sterlite is required to develop a greenbelt over 43 ha of the 172.17 ha project site. https://poromboke.files.wordpress.com/2018/06/ec-2007.pdf

The NEERI report of 2011 (Page 113) states: “Based on plantation assessment, the area of greenbelt developed and under development are 12.39 ha and 0.71 ha, respectively.” That is barely 30 percent of the legally required greenbelt area of 43 ha.

NEERI report 2011 (Page 104) contains a Greenbelt map that reveals that contrary to the requirement of a 25 metre greenbelt around the factory, most of the boundary has NO GREENBELT. This situation has not changed till date and can be verified using Google Earth.

NEERI 2011 report is at https://poromboke.files.wordpress.com/2018/06/neeri-2011.pdf

Ask Sterlite to reveal whether:

  • it has 172.17 hectares.
  • it has developed 43 hectares of that as greenbelt.
  • it has developed a 25 metre greenbelt around the factory.
  1. Does Sterlite have a functional Zero Liquid Discharge system?

Reports by NEERI, CPCB and TNPCB establish that Sterlite’s Zero Liquid Discharge is dysfunctional and fatally flawed because of inadequate capacity, and intermittent operation.

A ZLD system involves collection and treatment of toxic effluents. Separately, for highly toxic mega industries like Sterlite, a separate system is also required to collect and treat contaminated rainwater runoff. In the absence of an adequate rainwater handling system, toxic rainwater will escape from the factory premises contaminating surround lands and water sources.

A ZLD system is only as good as its ability to handle peak rainfall events.

NEERI 2011 (Page 42, Fig. 8.3) presents a rainwater balance. Here, the peak 24-hourly rainfall is given as 70 mm. Based on this, the total rainwater runoff is calculated to be 50,225 m3, marginally more than its rainwater storage capacity of 50,000 m3 at the time. The storage capacity has reportedly been increased to 80,000 m3 since 2011.

However, peak 24-hourly rainfall in Thoothukudi town is frequently well above 70 mm. On March 14, 2018, Thoothukudi registered a 24-hourly rain fall of 200.8 mm. On December 19, 2015, it recorded 116 mm of rain in a day. On October 17, 2006, the rain gauges registered more than 123 mm in the city. See

  1. https://www.dtnext.in/News/TamilNadu/2018/03/14193832/1065068/Heavy-rains-lash-3-Tamil-Nadu-southern-districts.vpf
  2. https://www.skymetweather.com/content/weather-news-and-analysis/tuticorin-receives-a-whopping-116-mm-rainfall-on-friday/
  3. https://www.thehindu.com/todays-paper/tp-national/tp-tamilnadu/heavy-rain-in-tuticorin/article3062555.ece

At 200 mm rainfall, the runoff would be 143,500 m3, nearly twice the holding capacity of Sterlite’s rainwater storage tanks. The excess contaminated water totalling 63,500 m3 will find its way out of the factory.

NEERI’s 2011 report (Page 109) observes that “the holding capacity of the existing rain water catchment reservoirs are inadequate to accommodate the quantum of runoff from the area during peak precipitation [of a meagre 70 mm].”

NEERI further observes that “In November 2010, due to heavy rains, the entire ETP area was flooded with stormwater. The industry management, as an emergency measure, routed the flooded rainwater alongwith treated effluent for advanced treatment through UF and RO system for recovery of recyclable water. However, the capacity of the evaporation system was inadequate to handle the excess rejects generated treating the storm water hydraulic load. Thus, the quantity of reects generated from the handling of storm water runoff during the heavy rainfall are stored in temporary storage ponds constructed to meet the exigency at the site acquired for proposed expansion project of M/s SIIL.” At 63 mm for Vanchi Maniyachi and 31 mm for Tuticorin, the heavy rains of November 2010 were below the 70 mm peak rain handling capacity reportedly in place at Sterlite. This indicates that the system is incapable handling even the design rainfall load.

On 14.03.2017, TNPCB issued a Notice to Sterlite directing the company to show cause why the company must not be closed for violating the Water Act. Specifically, TNPCB said the company was not operating its Zero Liquid Discharge system, and that improper effluent handling was “resulting in the flow of storm water to the nearby lands alongwith chemical spillage like gypsum etc.”

  1. Sterlite claims its chimney stacks are of adequate height because the company operates at a SO2 emission factor of 1 kg/tonne of acid produced. Is this correct?

 This is incorrect.

TNPCB has clarified via its RTI response dated 25 July 2018 that for plants constructed in 2005-2006 with more than one unit of sulphuric acid production in one location, stack height should be calculated using the combined capacity of all acid production plants in the location, and using a SO2 emission factor of 2 kg/tonne of acid produced. See RTI response at https://poromboke.files.wordpress.com/2018/08/tnpcb-rti-stack-height-2005-6.pdf

See CPCB standards for copper smelters and acid plants at https://poromboke.files.wordpress.com/2018/08/a10-3-cpcb-standards-2010-pages-423-424-553.pdf

The chimney has to be designed as per the above emission factor. Given Sterlite’s poor track record, TNPCB has further tightened its emissions by prescribing a more stringent emission level of 1 kg/tonne.

Dr. T. Swaminathan, a retired professor of Chemical Engineering from IIT Madras, has calculated the stack heights for the Sulphuric Acid plants and the smelter. According to his scientific opinion, the stack attached to the Sulphuric Acid plants should be of minimum 83.5 metre height. Even if an emission factor of 1 kg/tonne is taken, the stack height works out to 68 metres not 60 metres.

The smelter stack should be at least 102.5 metres tall. See Prof. Swaminathan’s scientific opinion at https://poromboke.files.wordpress.com/2018/08/report-glc-stack-height-2018.pdf

  1. Sterlite claims that power plants in Thoothukudi emit more SO2 than Sterlite. It states that higher sulphur dioxide levels in ambient air are a result of power plants and not Sterlite. Is this true?

It is true that thermal power plants emit more SO2 than Sterlite. However, that SO2 will cause harm to local populations only if chimney stacks are not properly designed and operated. The Central Pollution Control Board prescribes a minimum stack height of 220 metres for power plants with less than 500 MW capacity, and 275 metres for larger plants.

The 420 MW Tuticorin Thermal Power Station (Phase III) has a 220 metre stack. NTPL’s 1000 MW power plant has a 275 metre stack. In contrast, Sterlite operates with 60 metre stacks.

Moreover, neither power plant is located near the villages around Sterlite which are complaining of air pollution. Prof. T. Swaminathan verified calculations to estimate the maximum Ground Level Concentration (GLC) of SO2 caused by emissions from Sterlite’s acid plant and smelter stacks.

He found that: “SAP [Sulphuric Acid Plant] and furnace stacks will contribute to higher-than-permissible concentrations of SO2 at the Ground Level even if they perform strictly as per design parameters. . .Thus it is clear that with the present heights of the stacks the population near the plant are exposed to more than permissible concentrations of SO2 which will cause adverse short term and chronic health effects.”

Specifically, he reports that the acid plant stacks will contribute to a GLC of 125 micrograms/m3 of air at a distance of 1.6 km from the plant. The chimney stacks fitted to the smelter furnace will contribute 104 micrograms/m3 at a distance of 811 metres from the plant. Both levels are far higher than the National Ambient Air Quality Standard of 80 micrograms/m3.

  1. How true are Sterlite’s claims that it does not release any pollutants into the environment and runs a clean operation?

 These claims are untrue, and Sterlite has consistently suppressed data that could allow us to properly verify this claim. We have already proved how Sterlite is a major contributor to dangerous levels of Sulphur Dioxide in the vicinity of the plant.

Just as Sterlite has cut costs by saving on land and compromising environmental protection measures, the company has also been cutting corners by importing poor quality copper ore concentrate. Sterlite’s import documents reveal that copper concentrate shipments imported by Sterlite between 2009 and 2010 contained arsenic concentrations of 0.12% to 0.64%. Sterlite earned a discount of $667,360 (Rs. 4.8 crores) from the supplier for purchasing the lower-grade ore concentrate. Arsenic is not the only toxic contaminant in Sterlite’s ore concentrate. Lead, antimony, bismuth, chromium, zinc and uranium are also commonly found.

Sterlite’s own data reveals that using such highly contaminated ore concentrate can result in the emission of between between 2 and 21 tonnes (average 7.8 tonnes) of cancer-causing arsenic into Thoothukudi’s environment every day. See Arsenic mass balance at

https://poromboke.files.wordpress.com/2018/08/arsenic-mass-balance-calculation-20181.pdf

In 2005, TNPCB directed the company “to conduct every year a comprehensive Environmental Audit and submit the report to the Board.” The audit was to include a mass balance for all pollutants, including arsenic, zinc, fluoride. The unit was also required to conduct a comprehensive Environmental Impact Assessment study once in 5 years and furnish the report to the Board. Neither the annual audit with mass balance nor the 5-yearly study has been submitted by the company.

  1. Sterlite has dismissed complaints by local villagers of a higher incidence of cancers in recent years by pointing to Government of Tamil Nadu data that says cancer rate in Thoothukudi is normal. Does that mean local people are lying?

The 2014 Government health data records 1282 new cases of cancers from all of Thoothukudi district. At a district level, this may not be abnormal. However, if a disproportionate number of the 1282 cancer cases are from Tuticorin town or the villages surrounding Sterlite, that would certainly be abnormal. If Sterlite had complied with the Supreme Court’s direction, or if TNPCB had complied with the direction of the NGT, village level data would have been available. Also, Sterlite appears to have been emitting between 2 and 21 tonnes of carcinogenic arsenic daily into the environment.

Chennai Solidarity Group

poromboke.wordpress.com

Download the FAQ’s document here

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Open Letter to Punjab CM on imposing the death penalty for ‘drug peddling’

To,
Shri Amarinder Singh
Hon’ble Chief Minister of Punjab
Punjab CM Office, Room No. 25,
5th Floor, Civil Secretariat,
Chandigarh, 160001
[email protected]
[email protected]

Hon’ble Shri Amarinder Singh,

We, write to you in response to your statement proposing to introduce death penalty for drug peddling/smuggling. With due respect,  your suggestion, which has reportedly been conveyed to the Hon’ble Home Minister, Shri Rajnath Singh, is completely out of step with the current line of thinking on drug control, internationally and nationally.

It is all the more disappointing because your Government has otherwise been taking commendable steps to address drug use and dependence as a health problem in the State. In particular, your Government has shown exceptional leadership in introducing evidence-based treatment for drug-dependent patients. The  Outpatient Opioid Assisted Treatment Centres, which were started last year provide critical services to heroin/opioid-dependent persons, including counselling, peer support, referral, follow-up and most importantly, pharmacological therapy using Buprenorphine, for treating dependence, in accordance with the recommendations of the World Health Organisation, the UN Office on Drugs and Crime, and scientific bodies. The experience on the ground has been encouraging with patients becoming stable, returning to work and rebuilding their lives. Punjab’s health-oriented approach can serve as a model for other States that are either in denial or remain unconcerned about the suffering of drug dependent patients and their families.

Your government has shown remarkable leadership in embracing an approach that is centered on health, treatment and support and is more respectful of individual rights and human dignity. We urge you not to retreat from this path. The call for death penalty is thus a step in the wrong direction. It will not serve the objective it seeks to achieve.

Death penalty does not deter or reduce drug crimes

In its 262nd Report on the Death Penalty, the Law Commission of India had noted: “After many years of research and debate among statisticians, practitioners, and theorists, a worldwide consensus has now emerged that there is no evidence to suggest that the death penalty has a deterrent effectover and above its alternative – life imprisonment”.

The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) already provides the death penalty for a repeat offence of drug trafficking. Atleast 6 persons have been sentenced to death under section 31A, of which  2 cases were in Punjab. Yet, the drug problem has persisted, if not worsened, both in the country and the State. Internationally too, countries that have executed hundreds of drug offenders such as Iran have not managed to eradicate drugs or reduce drug use and dependence. Consequently, there has been a  rethink on  the ‘war on drugs’ including in hard-line countries like Singapore, Iran and Malaysia that have amended their drug laws in relation to the death penalty – making it more proportionate and humane.

At the UN General Assembly Special Session (UNGASS) on the World Drug Problem held in New York in April 2016, a total of 73 countries voiced their opposition to the death penalty for drug offences. The Official Document of the meeting records, as a matter of consensus, countries’ commitment to implement drug control measures in full conformity with and respect for human rights. India too, expressed support for adopting a public health approach, which can be seen in the 2014 Amendments to the NDPS Act. Importantly, these amendments also softened the rigour of the death penalty under section 31A of the NDPS Act, in recognition of evolving legal norms on drugs and human rights.

Persons  arrested for drug peddling are poor, vulnerable and may be ‘addicts’ themselves

As you know, the NDPS Act does not make a distinction between possession of drugs for personal use, sale or smuggling. Punishments are based solely on the quantity of drugs seized by the Police. Most people caught under the NDPS Act are low-level actors, who have little or no connection with the real source. Some are addicted to drugs themselves. Times of India in November 2017 reported that in Punjab, out of total 4,925 FIRs registered by the state police since January 2013 under the NDPS Act for heroin seizures, 91% (4,522) have been against those possessing less than the commercial quantity of 250 gram.

Imposing the death penalty on ‘drug-peddlers’, who are weak and vulnerable themselves, is a retrograde step.

Not in conformity with Constitutional standards

As you know, in India, capital punishment can only be imposed for in the ‘rarest of rare’ case of murder or killing. Till date, the Supreme Court has neither awarded nor upheld a sentence of death in a case that did not involve killing. Drug peddling or smuggling does not, even remotely, come close to this standard. While some drugs can cause dependence, that condition can be treated. Internationally, it is well accepted that drug offences are not the ‘most serious crime’ for which the death penalty may be one of the possible punishments. Like the ‘rarest of rare’, the concept of ‘most serious crimes’ refers to intentional acts of killing or the taking of life. This is not just the understanding of human rights experts or bodies, but also the International Narcotics Control Board (INCB) – the agency that oversees drug control globally, which has encouraged countries to consider abolishing the death penalty for drug offences.

The death penalty is an absolute violation of the right to life and when imposed for drug offences, also violates constitutional and international legal norms.

Overdose deaths are preventable 

It appears that your demand for the death penalty has been prompted by the increasing number of deaths in the State due to drug overdose. Deaths due to opioid overdose are preventable; with timely medical intervention and the administration of Naloxone – an essential medicine. It if the fear of criminal prosecution under the NDPS Act that prevents people from seeking help and/or reaching out to save precious lives. The death penalty is not the answer.

Compliance with the law, as it stands

As it stands today, the NDPS Act is one of the most strict and draconian laws in the country. With sentences starting from a minimum of 10 yrs rigourous imprisonment – upto 20yrs, extended pre-trial detention, bar on granting bail, suspension and commutation of sentence, presumption of guilt and reversal of burden of proof, the law is heavily weighed against the accused. And yet, according to news reports, over the past 6 months, over 900 persons have been acquitted in NDPS cases in the State. The reason for this is non-compliance of the procedure for search, seizure and forensic examination prescribed under the NDPS Act.This lacunae, cannot be overcome by introducing the death penalty.

In view of the above, we urge you to reconsider and take back your proposal on the death penalty for ‘drug peddling’.

Lawyers Collective

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Dalit rap artiste smashes Brahminical caste structure; weapons his Music

While the caste lynching increases in its toll, this Dalit rap artiste fights the caste prejudice and shuts the brahamanical caste structure through his art.

Sumeet’s upcoming video Ladai Seekh le

It’s been a long time in the market of slaves; you tell me I am free.

In the flock of humans, why are there high and lows;

In the flock of humans, why are there high and lows.

You have the answers, but you do nothing about it,

because you are the culprit.

Worth of my existence is told to me by your abuses.

Your midnight freedom Burns our slums and bastis;

Your midnight freedom burns our slums and bastis.

These lines are by Sumeet Samoos, a 24-year-old rap artiste from Koraput, Odisha who has lived and survived the caste discrimination in the country. Through his music, he tries to bring forward the voices of the masses which have always been unheard of in the caste-based society.  The form he chose for “emancipation from a Brahminical society” is ‘Hip Hop’, a form also associated with liberation of the Black community from racial discrimination in the Western world.

“Sumeet, a former student of Jawaharlal Nehru University, Delhi and a social activist does not hide the caste based targeting in the University spaces.Through his songs/poems, he challenges the casteism prevailing in the roots of all institutions in the nation.”

Despite numerous struggles which he had to face on account of being from the Dalit community, today, he is emerging as a leading voice and rap artiste in the nation. His first album, ‘Ladai Seekle’, is soon releasing where he reminds us the teachings of Baba Saheb Ambedkar, Malcom X, Periyar and Savitri Bai Phule. His work emerges as a tool to directly connect with the younger generation as well as understand and act against the stigma and harassment associated in the public as well as private lives of varied communities and caste hierarchies. A new perspective is brought into action using the popular culture of rap music in contemporary times.

Hip Hop music or rhythmic speech originated in the black populated ghettos of United States of America and was disassociated from art and music of the mainstream white supremacist culture of the Western world. In the wake of technological advances, new mediums opened up roads for black music to come into acceptance and limelight. 1979 became the year when Hip Hop music was officially recorded, voicing the fights and efforts of the black community against racism. The struggle of the form itself and also works of black contemporary rappers like Kendrick Lamar, Tupac and Joyner Lucas inspire Samos to create art works which could lead to a transformative Indian society, free of caste oppression, based on equality and rejecting caste privileges.

Samos’ works stands out not merely because it voices the underprivileged, but also because unlike the popular rap culture of Bollywood and Punjabi rap, it is not based on sexism. In the popular rap catered to the majority population of the urban youth, the feminine body is presented as a mere sex object not only visually but also in lyrics. It would not be wrong to say that leading rap artistes of the Hindi Film Industry have degraded the form and feminine identity to sheer slander.

Popular Indian rap artistes are not the only ones responsible for degradation of form as they have followed the footsteps of white pop culture where the main focus remains to cater to the market. Unlike the liability of catering to market, the thought process behind Samos’ music remains distinct and unique. Samos tells Delhi Post, “There are three things that inspire me. First is the long history of anti-caste emancipators, their life stories and their vision for an egalitarian society. Second, is the powerful conviction, spirit and hope among the marginalised castes to fight against a deeply unequal system of caste and to live a life of dignity despite all sorts of violence in everyday lives. Third, is my own experience which has taught me to keep going. The songs or poems that I write are a combination of all these three aspects.”

“Earlier this year, Samos was invited to Paris for a performance preceded by discussion for the city-based show ‘Radio Live’ and also performed at Hyderabad Central University at a programme organised for the commemoration of Rohith Vemula, PhD Dalit scholar whose suicide caused a major tremor in the academic world.”

Multiple videos of Samos have gone viral receiving great acceptance and acclaim on social media sites, making him the leading face of Dalit youth.

In his latest viral music video called ‘Hard Truth’, he critics the Dalit discourse propagated by upper caste scholars, restricting permeability for Dalit voices who undergo caste supremacy even in urban progressive spaces. The video is titled ‘Hard Truth’ as it aims directly to the so-called Dalit sympathizers who exploit stories and narratives of the unprivileged sections of society. This attitude of the upper caste makes Samos believe in the existing power structure of the society held in the tight grips of Brahmanism.

Politically the artiste is associated with Birsa Ambedkar Phule Student Association (BAPSA) at the Jawaharlal Nehru University. The organisation works for the interest of the Dalit-Bhahujan community in the campus. The organisation struggled against the removal of 100 per cent weightage to Viva voce against the University Grants Commission’s gazette legally as well as by constant protest demonstrations.

According to BAPSA, 100 percent weightage in Viva, restricted the students from the backward backgrounds to seek admissions due to their unpolished speaking skills, which is often the demand by elite professors. In multiple programmes conducted by BAPSA, Sumeet has stood with the organisation, giving immense credit to BAPSA and the people associated with it. According to Samos, “BAPSA has been crucial for me as it has exposed me to diversities, within oppressed communities as well as helped me shape my political articulation. Most importantly it has provided a community of students who have helped in different ways.”

In the coming future, Samos aims to pursue his post doctorate in creative writing where he can further enhance his skills and knowledge. He is a hero for many, and continues to encourage people from the Dalit community to keep up the battle initiated by Mahatma Phule and Baba Saheb Ambedkar. His aim is not merely to connect with the Dalit masses, but also to make the Brahaminical Society accept the ‘Hard truth’.

Source- Delhi Post

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Telegana – Crimes against women rising, despite rising levels of literacy #Vaw

Calling for action:Former Foreign Secretary Muchkund Dubey (centre), and former UoH professors D. Narasimha Reddy and Shanta Sinha releasing ‘Telangana Social Development Report-2018’ in the city on Tuesday.K.V.S. GiriCalling for action:Former Foreign Secretary Muchkund Dubey (centre), and former UoH professors D. Narasimha Reddy and Shanta Sinha releasing ‘Telangana Social Development Report-2018’ in the city on Tuesday.K.V.S. Giri

Incidence of crime highest in Hyderabad and RR districts

Telangana, despite witnessing rising levels of literacy, has shown an increase in crimes against women. And compounding this is abysmally low presence of women in institutions crucial to address these crimes—judiciary, police department and legislative bodies.

Incidence of crime, of which declining sex ratio is also an indicator, is the highest in Hyderabad and Ranga Reddy, the most urbanised and most literate districts. Also, the crimes against women in families far exceeds other forms of violence, according to ‘Telangana Social Development Report-2018: Gender, Access and Well Being’ brought out by the Council for Social Development (CSD), Southern Chapter.

Edited by Kalpana Kannabiran, Padmini Swaminathan and J. Jeyaranjan, the report provides baseline information drawn from official data on a wide range of themes with special focus on gender to “enable the Telangana government to arrive at evidence-based policies to address several issues raised under each of the themes”.

Former Foreign Secretary Muchkund Dubey, also the CSD president, released the report in the presence of former professors of University of Hyderabad – D. Narasimha Reddy and Shanta Sinha – and social activist Ruth Manorama here on Tuesday.

Speakers pointed out that both this year’s and TSDR-2017 reports highlighted the “deep-rooted bias” against women and children that was revealed through adverse sex ratio at birth, disproportionately large number of widows, declining female work participation, and a large number of women into domestic duties.

The report mentions a pronounced gap between boys and girls in higher education and that a large number of girls, ST girls in particular, walk to school, and that dropouts are high when distance is more. As per the 2014 figures, 10% of boys and 18% of girls have either not enrolled in schools or have dropped out. Also, increasing educational attainment among women is not reflected in working population.

In fact, there is greater proportion of non-literate women working and most literate women in non-working category!

There is also a sharp decline in female labour-force between the age group of 15 and 24 between 2004-05 and 2011-12 when compared to the all-India level indicating a complex array of changing nature of agriculture, reducing their employment prospects.

Mr. Dubey said the State did well when compared to the nationwide figures though the predominant role of private sector in health and education was discernible. Prof. Reddy said the report once again highlighted the need to strengthen primary and secondary education. Since the Telangana government has committed towards implementing sustainable development goals of the U.N., this report could be a ready reckoner, was the common refrain.

The Hindu

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UP temple purified with Gangajal after visit of Dalit woman BJP MLA #WTFnews

BJP MLA and UP temple under scanner

In a shocking incident, a temple in Hamirpur district of Uttar Pradesh was purified with ‘Gangajal’ and statues of deities were sent to Prayag for purification with Sangam holy water after a Dalit BJP woman MLA entered the temple.

The Dalit BJP woman MLA from Raath, Manisha Anuragi had visited Muskara Khurd village in her assembly constituency on July 12 to attend a function. On the insistence of party workers, she visited the famous Dhrum Rishi temple in the village to offer prayers, not knowing that woman entry into the temple is banned.

The temple is believed to be of Mahabharat era and entry to women devotees is banned for centuries. People believe that even if a woman touches the boundary wall of the temple, the area faces natural calamities like famine etc

Due to an old belief, entry of women is banned inside the temple. They are allowed to pay obeisance from outside only without touching even its boundary walls,” pointed a visibly upset villager.

During her visit inside the temple, the Dalit BJP woman MLA not only offered prayers but also climbed on a sacred platform where Rishi Dhrom is believed to have held his prayers. “No one has ever dared to climb on the platform. It is a sacred place and people offer prayers by bowing down at the platform,” fumed another villager.

Under pressure of the BJP workers, the priest of the temple Swami Dayanand Mahant did not say anything to the MLA when she entered the temple and offered prayers but later on he closed the temple for purification. The priest was also annoyed that lady MLA who had entered the temple belonged to a low caste.

Upset with her visit, agitated Priest Swami Dayanad Mahant and villagers called a panchayat. They alleged that they were facing the wrath of the temple deities ever since she entered the temple. They claimed that not a drop of water rained after her visit. The panchayat then decided to purify the temple to save villagers from the wrath of deities.

The entire temple was purified with ‘Gangajal’ (Ganga water) and statues of deities were sent to Prayag (Allahabad) for purification with water of Sangam, the confluence of three holy rivers Ganga, Yamuna and Saraswati, which mythologically was dried up some 4000 years ago.

After purification with Sangam water, the statues of deities returned on Saturday and were re-installed after a religious ceremony. A Bhandara was also organized on the occasion and announcement was made that the temple was purified and re-opened for ‘darshan’ to devotees.

The Dalit BJP woman MLA Manisha Anuragi clarified that she did not know that entry of woman was banned inside temple. “I went there only after my party workers insisted to offer prayers in the temple. I would have avoided going inside the temple if I was told that woman are not allowed to enter the temple,” clarified Anuragi.

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De-Coding Indian Intellectual Property Law

India’s IP Policy: A Bare Act?

 

It’s been more than two years since India’s National IPR Policy was first announced. Mired in one controversy after another, this policy has been the subject of much heated discussion and debate. We bring you the first ever comprehensive assessment of this policy, weighing in on its pros and cons (spoiler art: the cons far outweigh the pros!).

Thankfully our analysis has been published in the Indian Journal of Law and Technology, an open access journal, so you can access the article for free here.  You can also access this via an SCC subscription.

Our abstract is as below:

Amidst much fanfare, the Indian government unleashed an Intellectual Property Rights (“IPR”) policy around two years ago. This paper aims at the first ever comprehensive assessment of this policy, its purported rationale and implications. It argues that the policy is a shoddily drafted and poorly conceptualised document, which is resting on empirically unproven intellectual property (“IP”) assumptions. It is more faith-based than fact-based and endorses a fairly formalistic view of IP, taking it to be an end in itself. The paper goes on to demonstrate through the Carol Bacchi frame of “What’s the problem represented to be” (“WPR”) that the very rationale for the policy itself is unclear.”

Indeed when compared with the progressive South African IP policy that released on May 24, 2018, our policy falls short on several counts. As Prof. Carlos Correa rightly stated in a recent interview in the iconoclastic IP Watch: The recently adopted IP Policy by South Africa provides a good example of how a policy may be developed taking into account public interests rather than dogmatic views on the matter.” Also, a recent piece in the Business Line notes:

“The approach of the Indian IP Policy offers only lip service to the use of [TRIPS] flexibilities and does not offer any measures to optimise the use of flexibilities… Instead it focusses on enhancing the protection and enforcement of IPRs, which goes beyond its international obligations (referred as ‘TRIPS-plus’) without taking into consideration its negative implications. ”

Anyway, for those interested, we’ve excerpted some bits from our piece as below:

IV. Problems with the Policy

[T]he policy makes all the right noises and is long on its list of recommendations, but short of any real inventive solution or insightful measure as befits a national level IP policy of this stature. Most of its suggested solutions are rather trite at best, and regressive at worst. While the problems with the IP policy are many, we highlight the most egregious ones below:

A. Conflation of IP and Innovation

The greatest flaw of the policy lies in blindly exhorting a rapid “generation of IPRs”. This reflects the policy’s one-sided view of IP as an end in itself, rather than as a means to an end, namely creativity and innovation…

[It]…leans in favour of a rather formalistic and reductionist view of IP, failing to situate it within the larger context of the innovation ecosystem, refusing to acknowledge that while IP could accelerate innovation in certain technology sectors, it could block innovation in others.

This is a truth touted not only by those labeled as left-liberal ideologues, but also by powerful industry giants facing the brunt of a promiscuous patent regime — renowned giants such as Tesla’s Elon Musk,who castigated the present patent situation thus:

When I started out with my first company, Zip2, I thought patents were a good thing and worked hard to obtain them. And maybe they were good long ago, but too often these days they serve merely to sti- fle progress, entrench the positions of giant corporations and enrich those in the legal profession, rather than the actual inventors.

The policy assumes that innovation and creativity can be fostered only through increased IP protection, and fails to acknowledge the more significant role played by non-IP factors such as education, infrastructure, culture, financing, etc. as identified by the first think tank.

The policy sounds almost militant when it exhorts Indians to convert all conceivable knowledge to IP….

i. Public Funded Research and IP

i) The policy assumes that scientists fail to register their putative IP out of ignorance. However, history tells us that a number of visionary scientists consciously eschewed IP protection.

ii)… Some scientists may wish to patent their wares and enjoy the consequent exclusivity, while others may wish to promote a culture of open access, where new scientific discoveries are free of IP entanglements. There is no gainsaying the fact that IP registration, for the mere sake of registration, is non-sensical!… it bears noting that, on an empirical cost-benefit analysis, most U.S. universities have a negative balance sheet, when one compares the costs of IP registrations and licensing, as against the revenues through IP royalties.

iii) An undue focus on IP registration as a key performance indicator is likely to skew research priorities at scientific establishments, moving research away from basic into more applied streams that are more patentable and palatable to industry collaborators.

iv) Lastly, profiteering from publicly funded patents means that the tax payer pays twice…

The policy could have done better by encouraging a plurality of approaches for appropriating the value of publicly funded research, and vested more autonomy in the hands of scientists and researchers in this regard.

iii. IP Teaching and Respect

The policy advocates that IP be taught in schools and colleges. Leading one to ask: wouldn’t a course designed to make children more creative be better for fostering creativity than bogging them down with an additional course on intellectual property? Even if schools lack the resources to impart specific courses on creativity, they could at least ensure that they don’t stand in the way of what might otherwise have been a natural flowering of creativity in children.

A strenuous course on a legal regime whose alleged impact on innovation and creativity is highly contested is hardly the right recipe for a blossoming of creativity in schools.

Interestingly, the policy speaks about creating “respect” for IP as one of the steps for strengthening ‘Enforcement and Adjudication’. Why “respect”? Given that intellectual property has had a chequered history (with many viewing it as an inequitable tool of economic exploitation), “respect” is hardly the appropriate term.

The policy also proposes a long list of measures for spreading awareness of the benefit of IPRs, but none for making people aware of the various public interest exceptions inbuilt in the IP laws in order to ensure that the very purpose of creating these private rights is not defeated.

B. Other Problems with the Policy

Other problems with the policy are highlighted below:

i. Excessive Enforcement of IP and Criminalisation

The policy suggests a host of steps for strengthening of enforcement mechanisms for greater protection of IPRs, but none for balancing the enforcement, especially, criminal enforcement, that often compromises the civil liberties of defendants.

Most problematically, the policy proposes an amendment of the Cinematography Act, 1952 to criminalize unauthorized copying of movies. Undoubtedly, Bollywood requires some protection from the pirates, but criminalizing what is essentially a civil wrong (much like defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential for abuse at the hands of our police.

Also, many a time piracy is one of the best ways to ensure access to notoriously priced IP goods. Importantly, a certain level of piracy has in the past proven to be beneficial to the IP owner in that it encourages adoption of the IP good by the consumer at a cheaper pirated cost, and later at a higher IP price when the consumer can so afford.

The proposition that piracy always reduces incentives to create is not empirically born out. Quite the contrary! Illustratively, notwithstanding the allegedly high rates of design piracy in the fashion industry, the creation of new designs continues to take place at a frenetic pace. Paradoxically, one might argue that piracy fosters more creativity in this industry at least. Further, the effect of piracy may not be homogenous across every industry. In other words, piracy may not reduce the legitimate sales of all goods in an industry. This was amply demonstrated by a study on the effect of the shutdown of Megaupload, a website that facilitated pirated content, on the box office revenues. The study concluded that the shutdown benefitted only those movies that premiered in a relatively large number of theaters and not those which had smaller audiences.

…The policy, however, does not take any of the above nuances into consideration. Rather, it proceeds on the simplistic assumption that piracy necessarily deters creativity and therefore recommends an ultra muscular mode of IP enforcement.

ii. IPR: Whither Balance?

The policy tends to treat IP as a “marketable financial asset” and an “economic tool”, and recommends a strict enforcement of IP rights. While it does mention the importance of “balanc[ing] the rights of the public in a manner conducive to social and economic welfare and to prevent misuse or abuse of IP rights”, it fails to include any specific proposal or recommendation that might help effectuate this balance.

iii. Whither Transparency?

The policy fails to make any mention of the need to foster transparency in the intellectual property and innovation ecosystem. As noted earlier, the law not only grants rights, but also imposes certain duties on IPR holders in order that they might serve the interests of the public….The think tank could have…recommended a stronger enforcement mechanism with respect to these important IP duties too: one that would have helped foster greater transparency within the innovation ecosystem.

iv. Shoddy Drafting and Research

The policy also suffers from extremely shoddy drafting and research, as evident from the following:

i) The policy speaks of the need for commercial IP courts, when only a few months prior to the unleashing of the policy, the government had steered a legislation creating specialized “commercial courts” to success. Further, the policy speaks about housing all of the IP agencies within DIPP, when again, this was done a month prior to the release of this present policy. The government should at least have been up to date on its own initiatives, when formulating the IP policy.

ii) The policy exhorts multinational corporations (MNCs) to have IP policies. One wonders why the government is going out of its way to do so, when MNCs are known to be very savvy IP players in the market. It is the MSMEs and individual inventors who require encouragement and guidance to help access a regime that is terribly expensive and unduly complex

V. A Few Commendable Proposals

To be fair, the policy does contain some commendable recommendations. We highlight the main ones below and draw attention to some of their shortcomings, where relevant:

  1. The policy encourages openness in innovation, specifically noting the desirability of the free and open source paradigm in domains such as software and even pharmaceuticals. Unfortunately, the inclusion of these proposals in the section on “IPR generation” renders the commitment towards openness a bit suspect.
  1. The policy speaks about alternatives to the current IP regime such as the institution of awards or prizes. Unfortunately, this appears to have been recommended not as alternative to IP, but as an incentive for creation of IP itself.

VI. An Uncreative Policy

…Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar) conceptualised a patent policy that formed the blueprint of the present patent regime.97 By most accounts, this far-sighted policy triggered the remarkable growth of India’s pharmaceutical industry, earning it the moniker “pharmacy of the world”. It was a policy that was thoroughly researched, empirically validated and elegantly written in a little over a year. Compare and contrast that with the present policy that took more than two years and two separate think tanks to come to fruition. One beset with banality, dogged by dogma, rife with ridiculous assertions, lacking in any credible empirical support, and written in language that, at best, mimics a masterful memo from one bureaucrat to another. Surely we could have done better!

While proudly proclaiming the slogan “Creative India, Innovative India”, the policy states that “[t]here is an abundance of creative and innovative energies flowing in India”. It is a sheer pity that none of that abundant creative energy made it to this policy document, rendering it rather dull and dreary.

VII. What’s the Problem Represented to Be?

 Even apart from the various flaws in the text of the policy, one needs to revisit the rationale: What precisely is the point of this policy? Or to interrogate a bit deeper using Carol Bacchi’s frame, “What’s the problem represented to be?

[It] would appear that the policy appears to have stemmed out of a sincere belief that India lacks in creativity and innovation; and that a strengthening of IP protection would help enhance the rate and range of creativity and innovation. The assumption therefore (that underpins this implicit representation of the ‘problem’) is that IPRs necessarily ‘enhance’ creativity and innovation and also play a strong role in the same. Granted, India is lagging on several technological counts.

…But is it the country’s IP regime that is problematic? Or does the malaise lie elsewhere? Could it be cultural, where parents put undue pressure on their children to take up secure salaried jobs, as opposed to risky entrepreneurial ventures? Such factors are absent from the “problem representation” of the policy, and therein lies its biggest flaw. IP policy making should be driven by facts, and not faith. It must be based on empirical studies and stakeholder surveys and not on intuitions and assumptions; a point stressed by the First Think Tank Draft

IX. Conclusion

The Indian IP policy will go down in the annals of history as a wasted opportunity: an opportunity where we might have fashioned a progressive policy in a country that has thus far bucked mainstream pressure to conform to a developed country driven IP script. Instead, what we have is a dull and dreary document that contains soporific platitudes at best, and an aggressive one sided ratcheting of IP norms up at worst.

The policy lacks empirical rigour and appears more faith-based than fact based. It endorses a very formalistic and reductionist view of IP, taking it to be an end in itself. It ignores other factors such as education and cultural aversion to risk, which are likely to play a far greater role in triggering creativity.

To this end, the policy misses the larger macro frame where IP is but one tool in the overall innovation ecosystem; a more holistic approach might have made for a more progressive policy. In the end, one needs to ask: was there a need for such a policy at all? What purpose did it serve? Alas: Carol Bacchi’s thoughtful question remains unanswered!”

(This post has been co-authored with Prof. Shamnad Basheer)

India’s IP Policy: A Bare Act?

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Delhi HC -Don’t insist on documents like Aadhaar to give benefits of maternity schemes

New Delhi, Jul 31 (PTI) The Delhi High Court today said there was no legal basis for the AAP government to insist on documents like Aadhaar and bank passbooks, to provide maternity scheme benefits to pregnant and lactating women in the city.

A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the Delhi government not to insist on such documents for providing benefits to those eligible under maternity schemes like Janani Suraksha Yojana (JSY).

The court also directed the government to widely publicise the benefits of such schemes and the requirements for registration as many women appeared unaware about them.

“No such requirement (for Aadhaar) is set out in the scheme (JSY),” it said and added “there is no legal basis for respondent (Delhi government) to insist on the documents mentioned above for availing benefits of JSY”.

The directions by the bench came while hearing a woman’s PIL, filed through advocate Sija Nair Pal, challenging the Delhi government’s decision to insist on documents like Aadhaar to provide cashless facility under the JSY.

Pal placed an affidavit before the bench indicating a list of 22 poor women who were ignorant about the benefits of JSY and were not registered under the scheme.

Most of them did not have bank accounts or Aadhaar cards, the court noted and said that it indicated an “unfortunate state of affairs”.

The court said a lot needs to be done, including giving wide publicity to the schemes, to ensure women entitled to benefits under the JSY can avail the same.

In another matter pertaining maternity scheme, Pradhan Mantri Matritva Vandana Yojana (PMMVY), the court was told that women earlier eligible under it have been disentitled from availing the benefits after its name was changed.

The PMMVY was earlier known as Indira Gandhi Matritva Sahyog Yojana (IGMSY) which was run on a pilot basis in 53 districts of the country and the monetary benefit under it was Rs 6,000, the court was told.

After being changed to PMMVY, the monetary benefit was reduced to Rs 5,000 and earlier beneficiaries were disentitled, the court was also told.

Taking note of the situation, the bench said that any scheme for marginalised women has to be implemented so that all the targeted persons can enjoy the benefits.

“Rechristening of the scheme cannot lead to denial of its benefits to women who were determined eligible under the earlier scheme,” it said.

“They cannot be disentitled subsequently as their eligibility has already been established,” the court added.

With the above directions and observations the court disposed of both the PILs and directed the Delhi government to ensure that wide publicity is given to all maternity health schemes. PTI HMP PKS HMP RCJ RCJ

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Adultery as a Criminal Offence: Supreme Court Finds Loopholes in Govt’s Stand

adultery

The bench further observed that each partner to a marriage is equally responsible to keep the sanctity of marriage intact.

New Delhi: The Supreme Court on Thursday questioned the central government’s logic in defending adultery as a criminal offence.

A constitution bench, headed by Chief Justice of India Dipak Misra, seemed to be in disagreement with the Centre’s view that validity of Section 497 in the IPC should be upheld because it protects sanctity of marriages.

“The government’s rationale that it will protect sanctity of marriage doesn’t look sound. Sanctity of marriage is gone even when a married man has sexual intercourse with an unmarried woman but that’s not a crime. It is a crime only if a man has relations with a married woman and the husband of the woman complains,” observed Justice DY Chandrachud, one of the members of the five-judge bench.

The judge remarked that sanctity of marriage goes out of the window in such situations but the legislature has criminalised only one instance.

The bench further observed that each partner to a marriage is equally responsible to keep the sanctity of marriage intact.

“If a married woman has sexual intercourse with a married man other than her husband, why should the man alone be punished when woman too is equal partner to the crime? Such a distinction appears manifestly arbitrary,” it said.

Justice Chandrachud drew a parallel between the offence of bigamy under Section 494 in the IPC and Section 497. He noted that while bigamy is a gender-neutral offence and women can also be held liable.

“This disctinction between Sections 494 and 497 itself can make Section 497 unconstitutional,” remarked Justice Chandrachud.

The court also deliberated upon doctrine of severability so as to strike down the discriminatory and arbitrary part of Section 497 while retaining the other portion.

Justice Chandrachud, however, said that he was not sure when such a route can be taken when issues of personal liberty are involved.

“We will have to examine if the entire Section 497 in the IPC should go,” he added.

During the hearing, Justice Indu Malhotra described as “absurd” the part of Section 497 which gives husbands the authority to forgive the other man and settle the case.

“It is absurd to treat a woman as a chattel. Adultery law reduces women into a chattel. There is no crime if a woman has an extramarital relationship with the consent or connivance of her husband. Are women the chattels of their husbands?” asked the bench, wondering how such a provision was drafted in the Indian Penal Code.

The SC also cited a situation where a woman has been staying away from her estranged husband for years.

“If a woman then has a sexual intercourse with some other man, will it still lead to prosecution under Section 497 on a complaint by the estranged husband?” it asked.

Section 497 makes adultery an offence only with respect to a man who has a relationship with somebody’s wife. The wife is considered neither adulterous nor an abettor in law, while the man faces a jail term of up to five years.

Another peculiar aspect of Section 497 is the fact that the fulcrum of the offence is gone if consent or connivance of the husband can be established.

On a petition by Joseph Shine, the Constitution Bench is examining the validity of Section 497.

The arguments are currently underway in the court.

Replying to the plea, the central government has filed its affidavit, saying that the provision punishing adultery “supports, safeguards and protects the institution of marriage”.

The government agreed to the thought that “stability of a marriage is not an ideal to be scorned”.

Yesterday, the Supreme Court began hearing the challenge to Section 497 of the Indian Penal Code (IPC) which criminalises adultery.Section 497 of IPC criminalises the offence of adultery, but only the man is liable to be punished for the offence. Further, if the husband of the woman gives his consent for sexual intercourse with another man, no offence lies.

The jurisprudential basis of adultery as a criminal offence rests on women as a chattel of the husband with another man appropriating that chattel without the consent of the husband.

Thus, the man alone is punishable for the same. Further, if the husband consents to the sexual intercourse, no offence lies.

The debate surrounding whether man and woman should be made equally liable for adultery came up during the brief hearing today.

But since adultery as a crime is based solely on the wife being a property of the husband, Justice Chandrachud remarked,

“Why should adultery be a crime at all if it violates Article 14”?

Advocate Kaleeswaram Raj then began his submissions on behalf of the petitioner

News18.com

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