Prime Minister tries but fails to convince

RAJESH SINGH

Prime Minister Manmohan Singh in his structured interaction with television journalists recently justified his inaction on the massive irregularities in the allotment of 2G spectrum on the ground that neither the Union Finance Ministry nor the Telecom Regulatory Authority of India – not even the Telecom Ministry – had objected to the deal. He said, “If the Ministry of Finance and Ministry of Telecom both agree… and also that TRAI is an expert body; if all of them are of the same view, I did not feel I was in a position to insist on auctions.”

Of course, they were of the same view: that there was something wrong in the spectrum allotment and that corrective measures should be taken. The Prime Minister, therefore, should have insisted on auctions.

Interestingly, it was not just these organisations that had objected; even the Union Law Ministry had registered its protest over the manner in which the spectrum was being distributed by Mr Raja.

An overview of the developments that happened right under the Prime Minister’s benevolent gaze shatters the carefully constructed belief by Mr Singh’s spin masters, and now the Prime Minister himself, that he simply went by expert opinion and that he could not be held responsible for the presumptive loss to the public exchequer. Let us begin with the Law Ministry’s letter of November 1, 2007 to the Telecom Ministry – a missive that the Prime Minister very conveniently forgot to mention in his media interaction.

Then Law Minister H R Bhardwaj was perhaps the first senior Cabinet Minister to smell a rat. Apparently upset by the methodology adopted in allotting the spectrum, he wrote to the Telecom Ministry, “In view of the importance of the case (2G spectrum allocation) and various options indicated in the statement of the case, it is necessary that the whole issue is first considered by an Empowered Group of Ministers and, in that process, the legal opinion of A-G (Attorney General) can be obtained.”

The Law Minister was responding to an opinion sought by the Telecom Ministry on going ahead with the allocation of 2G spectrum licence on first-come-first-served basis and on prices fixed in 2001. An enraged Mr Raja wrote back – not to the Law Ministry but directly to the Prime Minister – questioning the idea of an EGoM to decide on spectrum pricing. He said in that letter, “The Ministry of Law and Justice, instead of examining the legal tenability of these alternative procedures, suggested referring the matter to EGoM. Since generally new major policy decisions of a department or inter-departmental issues are referred to the GoM, and needless to say that the present issues relate to procedures, the suggestion of the Law Ministry is totally out of context.”

This was on the morning of November 2, 2007. The same afternoon, the Prime Minister, perhaps alerted by Bhardwaj’s strong stand, wrote back to Mr Raja and cautioned him against taking any measures without informing him. “I would request you to give urgent consideration to the issues being raised with a view to ensuring fairness and transparency and let me know of the position before you take any further action in this regard,” Mr Singh directed his Minister. The Prime Minister also instructed him to adopt “correct pricing of spectrum and revision of entry fee”.

Thus, the Law Ministry registered its objection, Mr Raja dismissed it contemptuously, and the Prime Minister was all along in the loop. He did nothing. Towards the end of November the same year, came another shocker for the then Telecom Minister. The Finance Ministry got into the act, with then Finance Secretary D Subbarao sending a stinker to the Telecom Secretary on the issue. Mr Rao wrote, “It is not clear how the rate of Rs 1600 crore, determined as far back as in 2001, has been applied for a licence given in 2007… In view of the financial implications the Ministry of Finance should have been consulted in the matter before you finalised the deal.”

For good measure, Mr Subbarao added, “Meanwhile, all further action to implement the above licences may please be stopped.” The Finance Secretary was clearly expecting too much. Mr Raja had ignored the Prime Minister’s directive to adopt corrective pricing and revise entry fee; he was not going to be deterred by a Finance Secretary’s direction.

“If the Ministry of Finance and the Ministry of Telecom both agree…” – remember the Prime Minister’s clarification at the media interaction. Clearly the Finance Ministry had not agreed to the deal. Had then the Telecom Ministry agreed? We know that even it had not, if one goes by the assertions of senior Ministry officials. Neither then Telecom Secretary D S Mathur nor then Department of Telecom Member (Finance) Manju Madhvan was on the same page with Mr Raja. One had to leave in disgust while the other was swiftly replaced with then Minister’s yes-man after he retired. With senior officials in the Department of Telecom registering their protest to the deal, the only way to believe the Telecom Ministry was in agreement is to accept that Mr Raja alone was the Ministry.

And finally, was TRAI of the “same view” – as the Prime Minister asserted in his televised interaction? Of course it was not. Then TRAI chairman Nripendra Mishra had actually written to the Telecom Secretary Siddharth Behura – who had replaced Mr Mathur by then – objecting to the policy and the sudden revision of the cut-off date for submission of applications along with the requisite sum. When the government machinery went to town quoting a few statements of his that seemed to endorse the dubious methodology adopted, Mr Mishra went on record clarifying that his statements had been picked out of context. “Cherry picking”, is how he described it.

Judges should not interpret every law and make them ineffective

(First published in The Pioneer dated February 17, 2011)

RAJESH SINGH

Barely days after exonerating a member of the outlawed United Liberation Front of Asom on the strange premise that being a member of a banned outfit did not make one criminal, Justices Markandey Katju and Gyan Sudha Mishra of the Supreme Court of India let off another ULFA member on a similar pretext. This time they offered the explanation that they had “read down” some provisions of the Terrorist and Disruptive Activities (Prevention) Act -- under which the accused had been tried -- because they seemed to violate the Constitution. The option before the Bench, they added, was to strike them down as unconstitutional. In other words, “reading them down” was a means to maintain the constitutional validity of the Act and yet remove the conflict the statute posed with the fundamental rights guaranteed under the Constitution.
On the face of it, the explanation makes eminent sense, and courts have been “reading down” provisions in the past through fresh interpretations. (Moreover, we should be grateful to the Bench that it did not strike down the ‘offending’ sections, a move that would have rendered all our anti-terrorist laws toothless.) But there are established guidelines for reading down statutes, and the mere supposed need to protect the constitutionality cannot be reason alone to conduct that exercise. Let us look at three such guidelines:

Reading down cannot be used to emasculate a statute or create confusion, making its workability difficult.

No reading down of a provision is permitted if that exercise makes it into a provision altogether different from what was intended by the legislature.

Reading down is adopted only when the statute is unworkable or cannot be enforced.

We may now turn to the provisions “read down” by the eminent judges, namely Section 10 of the Unlawful Activities (Prevention) Act, 1967 and Section 3 (5) of TADA Act under which the earlier referred to ULFA member was tried. (Incidentally, the Justices also said that Section 124 (A) of the Indian Penal Code which deals with sedition must be read so that it conforms to the guaranteed fundamental rights. In other words, that too should be “read down, when occasion permits.)

Both Section 3 (5) of TADA and Section 10 of UAPA clearly lay down punishment for even mere membership of an outlawed organisation. There is nothing confusing in the provisions – if anything, they are so elaborately worded that they leave no scope for even the slightest doubt over interpretation. Because they are so carefully worded, there has never been any trouble over their implementation either. But the Bench decided to read them down anyway, creating in the process the very confusion the statutes sought to avoid, making them potentially unworkable. The introduction by the apex court judges of the concept of “passive” and “active” members of banned outfits, for instance, is a demarcation that the Legislature never intended to have – for in its scheme of things, all members of an unlawful organisation deserve some form of punishment. Now, the security and probe agencies will expend their energy in segregating the ‘active’ members from the ‘passive’, and the courts will indulge in hair-splitting exercises in deciding between the two.

Since “reading down” is employed as a tool for interpretation of statutes, we arrive at the question: When is the need to interpret real? Courts have settled the issue, and they have said that interpretation is required only where the statutes are ambiguous and, therefore, admit more than one interpretation. In case after case, our courts have underlined this basic rule. In Mithilesh Singh versus Union of India (2003) the Supreme Court stated that it was a presumption of interpretation of a statute that the Legislature inserted every word and expression for a definite purpose, and while interpreting no word can be rejected as being “inapposite or surplusage”. And, in the landmark Kartar Singh versus State of Punjab (1994) case, the apex court observed that the “object of interpreting a statute is to ascertain the intention of Legislature enacting it”.

The provisions of TADA and UAPA under debate – as indeed some others such as 124 (A) of the IPC and Section 6 of the Armed Forces Special Powers Act – are neither ambiguous nor do they encourage multiple interpretations. The object of the Legislature in making those provisions too is crystal clear. Yet, Justices Katju and Mishra thought it fit to interpret the statutes.

This brings us to the thumb rule for the interpretation of statutes: the doctrine of ‘harmonious construction’, which seeks to harmonise (or tone down) statues that are in apparent conflict with one another. The two-judge apex court Bench can claim that their act of reading down was to harmonise the sections of TADA and UAPA with the rights guaranteed under Articles 19 and 21 of the Constitution by adding clarity to the provisions, but even here the judges seem to have overlooked the basic principle laid down by the apex court itself, when it said, “Where the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound these words in their natural and ordinary sense”.

And not just that, the court went on to add, “…where alternative constructions are equally open… that alternative is to be rejected which will introduce uncertainty, friction of confusion into the working of the system”.

Will not the interpretations by Justices Katju and Mishra and the creation of various kinds of memberships by them of banned outfits, lead to confusion? Will they not affect the policing and prosecuting systems? The answer is obvious.

Finally, while the Bench’s concern for upholding the Constitutional guarantees is praiseworthy, it is not as if anti-terror laws like UAPA (and the lapsed TADA) have been unconstitutional. While the UAPA is a much milder law, even the harsher TADA (and the earlier Prevention of Terrorism Activities Act) was upheld for its constitutionality, despite being forcefully challenged on occasions. In the People’s Union for Civil Liberties versus Union of India case (2004), the court, while upholding provisions of POTA, said, “To face terrorism we need new approaches, techniques, weapons, expertise and of course new laws.. It has become our obligation to pass necessary laws to fight terrorism.”

Similarly, on the validity of TADA, the apex court in Kartar Singh versus State of Punjab had largely upheld the various contentious provisions ranging from the matter of confessional statement before a police officer as admissible evidence in courts under Section 15 of the Act to the establishment of TADA designated courts and the appointment of judges to such courts, to remedies before an aggrieved person who feels his fundamental rights have been tampered with.

A judgement that is worrisome

RAJESH SINGH

(First appeared in The Pioneer on February 9, 2010)

Justices Markandey Katju and Gyan Sudha Mishra have set a curious benchmark for members belonging to proscribed organisations. The learned judges of the Supreme Court of India have ruled that a mere membership of such outfits does not make one a criminal. To attract criminal proceedings, the member must indulge in or incite violence. This is great news for all the back office operators of banned groups, who until now faced action if caught, and bad news for investigating agencies and the central and state governments that are battling with the menace of extremism in various forms and at different levels. What is strange here is not just the verdict but the context in which the Justices pronounced it. Once we understand that, we will be able to better appreciate the needlessness of the ruling.

The case before the two member apex court Bench pertained to an appeal by one Arup Bhuyan who was convicted by a TADA court in March 2007 for being a member of the banned United Liberation Front of Assam. An aggrieved Bhuyan approached the Supreme Court contesting the conviction on the ground that he had confessed to being a member under duress. He claimed innocence saying he had nothing to do with the banned group. It must be remembered here that under Section 15 of the now-lapsed Terrorist and Disruptive Activities (Prevention) Act, 1987, a confession made before the police was admissible evidence in a court, although under other laws such evidence is inadmissible under Section 25 of the Indian Evidence Act, 1872. Also, a member of a banned outfit attracted criminal action under Section 3 (5) of TADA merely for being a member.

Clearly then, the case of the accused rested on the single most important point: that the only concrete piece of evidence against him was the “forced” confessional statement where he implicated himself. The issue before the Justices too was that point alone.

So far so good. The Bench then went ballistic on how confessions before the police cannot be overly relied upon because “the widespread and rampant practice in the police in India is to use third degree methods for extracting confessions”. The Justices helpfully provided an explanation for such conduct: because the police are neither trained nor equipped to scientifically investigate cases they rely upon force to squeeze out confessions from reluctant accused.

They did not stop at that. Calling torture a “terrible thing”, the Bench observed that “when a person is under torture he will confess to almost any crime”. Therefore, it concluded, the courts should be “hesitant before they accept such extra-judicial confessional statements”.

All of this is true, and there is no dispute with the Justices on the points raised, even if one bears in mind that Bhuyan’s confessional statement – in whatever manner it was extracted – was admissible evidence since he was being tried under TADA. In the end, the Bench set aside the conviction and acquitted the accused not just because it held the confessional statement with suspicion, but also because the prosecution (state of Assam) could not provide corroborative evidence of guilt. And that is where the matter should have ended.

It did not. The Justices, now in full flow, decided to get hypothetical and use the power of assumption to pronounce a ruling that can have an implication beyond the context in which it was made. They had let off Bhuyan because his membership of the banned ULFA could not be established. But what if he had been a member, the court wondered, rather unnecessarily. “Even assuming he was a member of ULFA it has not been proved that he was an active member and not a mere passive member”, the Justices stated. The court had cleverly slipped in an aspect that was extraneous – and even irrelevant – to the case at hand: the active and the passive, something which no law of the land distinguishes between.

Going by the pronouncements of the Bench, an active member of a banned organisation is one who directly resorts to violence or incites violence. Every other member is passive and cannot be tried for criminal activity. This nuanced understanding flies in the face of existing provisions of the law. Take, for instance, Section 10 of the Unlawful Activities (Prevention) Act, 1967, that is currently in force and deals with penalty for being a member of an unlawful association. It says, “Whoever is and continues to be a member of an association declared unlawful by a notification issued under Section 3 which has become effective under sub-Section (3) of that Section, or takes part in meetings of any such unlawful association, or contributes to, or receives or solicits any contribution for the purpose of any such unlawful association, or in any way assists the operations of any such unlawful association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine.”

The provision clearly covers all members of an outfit declared unlawful by the central government through a notification, without categorizing such members as ‘active’ or ‘passive’.

Allowing so-called passive members to get away, the Justices have sought to dismiss the concept of ‘guilt by association’ by citing the example of a 1966 US Supreme Court decision. While we shall not go into the validity of the comparison, it must be emphasized here that provisions of UAPA rely on this doctrine, whether it is Section 10 referred to earlier or Section 7 that prohibits the use of funds of an unlawful association. The latter reads, “ Where an association has been declared unlawful…any person has custody of any monies, securities or credit which are being used or are intended to be used for the purpose of the unlawful association, the central government may… prohibit such person from paying, delivering, transferring or otherwise dealing in any manner” with such financial instruments.

Incidentally, in the matter of Section 7 too, the member does not directly indulge in violence or incite violence. Going by the apex court’s recent ruling, would a member involved in financial transactions of a banned outfit, get away?

Guilty? Blame the judge!

RAJESH SINGH

It required just one unfavourable verdict – and that too from a lower court – for the family and friends of convicted doctor-activist Binayak Sen to launch a bitter tirade against the Indian judiciary. Until the other day they were confident that the legal system would give them justice. For a number of people, the verdict of the Additional Sessions Court in Chhattisgarh was indeed justice; for Sen and his sympathizers it was travesty of that. The matter will now be debated in the High Court – where it has reached, and, if necessary, in the Supreme Court as well. But already the wife of the high-profile activist, sentenced for life on a variety of charges including sedition, has declared her loss of faith in the judiciary. So upset was she that she announced her desire to seek asylum in a “more democratic and liberal country”, but retracted the statement a few days later.

That Ms Ilina Sen should not have trust in one of the pillars of Indian democracy is eerily similar to the credo of the Maoists who reject the Indian establishment and seek to replace it through their brand of violence. The Red ultras also have contempt for the political and the judicial system. But the Sens have claimed to be part of the mainstream, working for the welfare of tribals, and so they should not have succumbed to the extremist conclusions. Damning the Chhattisgarh administrative and judicial mechanism, she now says her husband should have demanded that the trial be conducted outside that state. If she believes that would have offered her a better chance of justice, it is still not late to resort to that move. But no, like the Maoists she too concludes that it is useless to depend on a system that has, despite its faults, delivered for six decades since Independence. The appeal to the High Court, one would presume, is just going through the motions.

It remains a mystery why she expressed a desire to seek asylum. There have been no reported threats to her – although she claims to fear for her life – nor has she exhausted all the means of justice and arrived at a dead end where staying back would entail a dangerous existence. Incidentally, she forgets that Maoists, who have been termed as among the country’s greatest threats to internal security, continue to flourish, though occasionally some get eliminated. If they can fearlessly continue, why should Ms Sen, who self-admittedly has done nothing wrong, be worried? Of course, innocent people do get trapped, harassed, tortured and even prosecuted at times in the country, and that is unfortunate. But there are mechanisms to address such excesses, and they have been applied to correct wrongs in several instances. In any case, if every ‘wronged’ person comes to believe that asylum is the only way out, there would be an exodus from this country – and from any other nation as well, since even the most liberal and democratic country suffers from drawbacks.

Perhaps the asylum declaration was designed to embarrass the country before the rest of the world that has been lapping up the Binayak Sen case. There are enough human rights activists across the globe to project her despair as a monumental failing of rights record in India. With such a network of well-wishers, Ms Sen can well become an international celebrity at the cost of India’s image. One wonders, though, which “more liberal democratic country” she had planned to settle down in. The US, the UK? Well, look at how they have dealt with Mr Julian Assange of WikiLeaks, who had the courage to publish classified material that has shaken several nations. She had the option of the Gulf States, one of which has given refuge to noted painter M F Hussain, who fled India because he had no “creative freedom” to perform here. One needs to be an extraordinary person to market the idea that a Gulf nation offers more creative freedom than India.

Having ridiculed the judge who convicted Binayak Sen, the latter’s friends have turned their attention to the “archaic” provisions dealing with sedition and conspiracy against the government that nailed Sen. There have been of late a number of articles slamming Section 124 (A) of the Indian Penal Code on the ground that it had been promulgated by the British regime to stifle nationalist sentiments, and thus had no place in present times. While its continuation is a matter of healthy debate, it must be remembered that the country did adopt the provision in 1951 after it had been thoroughly discussed by our law makers. Their relevance was felt even sixty years ago; surely now, when the country is faced with several threats to internal security, they are not out of fashion.

Incidentally, the law on sedition was upheld by the Supreme Court in the landmark Kedarnath Singh versus State of Bihar case in 1962 – the very same case that is being parroted by sympathizers of the convicted activist to claim that Sen had been wronged. The apex court had said that under provisions of 124 (A) that deal with sedition, there could be reasonable restrictions to one’s freedom of speech as guaranteed by Article 19 of the Constitution. A Constitution Bench observed that the provisions “impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interests of public order and within the ambit of permissible legislative interference with that fundamental right.”

Elaborating on the apparent contradiction between the sedition law and the constitutional right to free speech or expression, the Bench had stated, “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lean in favour of the former construction. The provisions of the sections read as a whole… make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency to create disorder or disturbance of public peace by resort to violence.”

All through the verdict, the learned justices took pains to explain why provisions of the law should not be read in isolation but should be considered in totality. In the Binayak Sen case, therefore, harping just on Article 19 that provides freedom of speech and expression without taking into account the restrictive measures of the constitutionally valid 124 (A), is bound to lead to lopsided conclusions.

Defending the Indefensible

RAJESH SINGH

(First published in The Pioneer dated Decembeer 31, 2010)

The life sentence handed down by a trial court in Chhattisgarh to doctor-activist Binayak Sen, convicting him for sedition, criminal conspiracy and collusion with Maoists, has attracted a furious response from so-called civil society groups and individuals. They have condemned the verdict as biased and influenced by political considerations. Not just that, these vocal critics — who find copious space in the print and electronic media to voice their concerns — have even questioned the judicial process that arrived at the damning conclusion.

Binayak Sen has every right to feel aggrieved by the judgement, and so do his family and friends. They have already decided to approach the High Court against the verdict. Like any other convicted person who believes he has been wronged by a court of the land, Binayak Sen can employ the best legal brains he can access to fight his case higher up the legal ladder. What will happen thereafter, we do not know, and this is no occasion to second guess the outcome. But, right now it is naïve to hail him as an innocent victim of state repression or slam the verdict as a manufactured one. He is guilty until proved innocent.

Before we get to the specifics, a small comparison will be in order. While Binayak Sen, convicted and sentenced for serious crimes against the nation, is being hailed by human rights activists as an icon of humanity, Gujarat Chief Minister Narendra Modi, with not a single charge against him in a court, let alone prosecution or conviction, has been pronounced guilty of communal crimes by these very activists. Binayak Sen’s friends have a funny sense of justice.

One of the strongest criticisms against the ruling has been that due process of law was not followed. Organisations like Amnesty International, always fishing for adversial human rights references — particularly in developing countries — were quick to claim that the trial was conducted in an opaque manner. This charge, at least, ought to have been rubbished even by Binayak Sen’s Indian friends, because they know only too well that our legal process is transparent to a point where it gets frustrating. The best example of that is the Ajmal Kasab case, where the terror accused has succeeded in waging a long winded, and for now unending, legal battle to prove his innocence even though all of India watched him on television killing people on Mumbai streets two years ago.

There was nothing secretive about the Binayak Sen trial nor did the court engage in shortcuts. The accused had at every stage of the trial opportunities to defend his position. The case went on for more than two years before Binayak Sen was convicted. He was formally charge-sheeted in August 2007 and sentenced only in December 2010. In the course of this period, the Indian legal system, which has now become a subject of scorn for the convict’s friends, afforded him relief when he merited the benefit. Thus, although in December 2007 the Supreme Court rejected his bail plea, it did give him bail later in May 2009 on the ground of his failing health. It is, therefore, churlish for his supporters to point accusing fingers at the Indian legal system now that he stands convicted.

If one goes by Additional Sessions Judge BP Varma’s verdict, Binayak Sen had produced a dozen witnesses in his support. He also had the occasion to cross examine the 97 witnesses that the prosecution presented to fortify its case against the doctor. Besides, Binayak Sen knew fully well the provisions of the various laws that he was being charged, whether it be the Indian Penal Code, the Chhattisgarh Special Public Safety Act and the Unlawful Activities (Prevention) Act. As an educated and well-informed individual, he was fully equipped to deal with the accusation against him. In what sense, thus, can somebody allege that he was not given a fair trial?

As for the charge that the judge was “persuaded” to rule against Binayak Sen, it is a serious one and ought not to have been made without sound basis. Just a sweeping remark that verdicts of the lower judiciary can be rather easily manipulated and that judges are prone to succumb to political pressure, like they have in the Sen case, is easily said than substantiated. While no one denies that actions of certain sections of the judiciary, especially at lower levels across the country, have indeed been questionable, it does not automatically lead to the conclusion that Mr Sen became a victim of that malaise. Not securing a favourable ruling is not reason enough to rant against the judges. Remember that even the recent Allahabad High Court judges who recently ruled on the Ayodhya title suit were criticised by some leading activists as being “un-secular” because their verdict was seen to have “favoured” the Hindus.

It would be more prudent for Binayak Sen’s friends to prepare a sound case for his defence in the High Court rather than waste time besmirching the reputation of the judiciary. After all, the convicted doctor has not denied that he had carried letters from and to individuals involved in Maoist activities. Given his education and intellect, he cannot take the plea that he did not know the letters he was ferrying across were written by and meant for Naxals involved in seditious activities, nor did he realise that his action, even strictly as a messenger, was questionable. And the other argument that he was unaware of Section 124 (A) of the IPC that deals with sedition, is fit to trashed, because being uninformed about the law is no justification for breaking it. But then, reportedly, Binayak Sen went even beyond the seemingly innocent activity of delivering letters; he helped people having Naxal connections with accommodation and opening of bank accounts. What business did a medical doctor, who is working among tribals to improve health facilities, have to become a conduit for Naxal activities and assist in their nefarious functioning?

Counting Our Tigers

Rajesh Singh

Most of us have a vague idea of how tigers are counted, though we are pretty sure the process is very different from conducting a human census. Unlike human beings who can be reached at homes and numbered, tigers are not waiting to be counted. Left to themselves, they would rather not have anything to do with the Homo sapiens variety. The fact that they are generally nocturnal, do not move in large groups and are largely unseen, makes the exercise that much more difficult. So, if conducting a countrywide human count is a long drawn out complicated exercise, arriving at tiger numbers is several times more challenging. Finally, even after applying the best available techniques, one can only get an approximate figure. How close that approximation is to the actual numbers depends entirely on the scientific execution of the census process.

A beginning is made by identifying the potential habitats of the striped cat. For a huge- sized country like India with several forest reserves spread across all four directions, this is an essential prerequisite because it tells us where to locate the tigers and then number them. Not doing so would be as foolish as arriving on Mars to count human beings. The exercise of identifying tiger habitats may sound unnecessary since we already have well defined tiger reserves, but the fact is that habitats keep changing their form, and any change in their composition impacts both the flora and the prey that are essential to tiger survival. Thus, theoretically we may have so-called tiger habitats that have run out of tiger population for a variety of reasons and we might also have new regions that could be inhabited by the big cat. A preliminary survey is, therefore, essential. “Monitoring Tigers and their Prey’, an excellent video guide on tiger census and edited by noted wildlife experts Dr Ullas Karanth and James D Nichols, offers us a scholarly insight into the process.

Written, filmed and directed by another wildlife enthusiast, Shekar Dattatri, the video takes us through the gamut of conducting a tiger count. And, although the identification of the feline’s habitat comes towards the end of the video presentation, it really sets in motion the procedures for tiger enumeration that are detailed earlier on in the guide. The purpose of the exercise, called Occupancy Sampling (or OS), is not to arrive at tiger numbers but to merely understand what proportion of the country’s landscape is occupied by the tigers and their prey, and how that occupancy has varied over a period of time. The important thing to remember here is that understanding the habitation of not just the tigers but their prey as well is essential at arriving at the final numbers. But, because the number is not the immediate issue in OS, it is not necessary to actually ‘see’ the animals – tigers or prey – either directly or with the help of camera images. Field workers have to depend on scat, scratch or other signs that indicate the possibility of tiger or prey habitation. As the video tells us, once a state’s forested region is identified as potential habitation for tigers, it is broken into several grid cells, each of roughly 200 square kilometres for the tiger. The idea is that the cell size should be greater than the average home range of the tiger: with the home range of the Indian big cat around 150 square kilometres, the video editors settled for the slightly higher figure. Each of these cells is then equally segmented and handed over to the field workers who look for tiger signs and detail them in the data sheets.

If Occupancy Sampling helps in identification of tiger habitats, the Camera Trap Sampling and the Capture-Recapture Sampling are direct methods to count the striped cats, and they can be put to good use in regions confirmed as tiger habitats through the method discussed earlier. Automatic cameras are placed on either side of a tiger trail or path (a trail is identified through signs like scratches, pug marks, scat etc.) at a height of some 45 centimetres from the ground. The cameras are fitted with a transmitter and a receiver that works on infra red technology to capture images. The need for such covert methods to photograph the tiger is simply because the big cats are extremely elusive and rarely spotted by enumerators. The numbers are arrived at through comparison of the stripes of the tigers, since no two tigers have identical stripes. The cameras, one each on either side, are essential since the stripe patterns on the two sides are different for a tiger, and the two images need to be clubbed together as that of a single tiger.

In the Capture-Recapture technique, repeated camera trap results are used to check what proportion of the tigers have been re-photographed. All the data so collected is then fed into the computer where especially designed software then wades through the material and arrives at a close approximation of the number of tigers.

But the most fascinating method of arriving at tiger numbers is an indirect one. The video calls it Line Transect Sampling (LTS). Working on the assumption that there is a direct correlation between tiger population and the number of prey available, this system estimates the prey population in a given habitat. The line transects can take the shape of either a straight line from point A to B, or a square or triangle. They should be randomly selected and not just close to locations like waterholes, otherwise we may end with overestimation of prey population. Some 20-40 such transects – each of them around four kilometres in length – would suffice for a habitat, according to the video.

Once the line is finalised, the field workers equipped with binoculars, range finders and compass walk straight along it and scan either side to sight prey animals. Binoculars will help them see those animals, range finders measure the distance between the workers and the prey first sighted and the compass will confirm the direction that will later help them calculate the perpendicular distance through its angle measurement. All of these statistics are then fed into the computer where again a software takes charge and churns out the prey estimate. Experts equipped with the prey population in a habitat can quite accurately estimate the number of tigers it has been supporting in the region.

In the end, these are all sampling methods and are, therefore, prone to error. It is good enough if these errors are within acceptable margins. So, the next time we are presented with tiger population figures, let us for a moment appreciate the complexity involved and pause to admire the various unknown and faceless field workers who make the exercise possible.

Forests department proposal mired in red tape

Rajesh Singh


(Published in The Pioneer dated November 8, 2010)


"Do it”.

This is what Prime Minister Manmohan Singh told his Minister for Environment and Forests in response to a suggestion that a new Department of Forests & Wildlife be created to better manage these natural resources. He said it during the 5th meeting of the National Board of Wildlife (NBWL) held this March, reacting to a suggestion made by noted wildlife film maker and author Valmik Thapar. An enthusiastic Jairam Ramesh nodded his head. He later said he was committed to having the “architecture” of the new department in place within six months — in September. But that has not happened.

And, if Ministry mandarins are to be believed, the new department is unlikely to be born soon. Clearly, the Prime Minister’s sense of urgency and the commitment of the Minister have been insufficient to prod the bureaucracy into action.

According to a senior official in the Ministry, a note detailing the proposal has been circulated to the Ministries of Finance, Law and Personnel for their inputs. The official, who did not wish to be named, told The Pioneer, “We are waiting for the response from the various Ministries to whom the proposal has been forwarded for comments. Based on their response, further steps will be taken. In any case, the bifurcation is not going to happen soon”.

Thapar is naturally dismayed. Talking to The Pioneer, he said, “We had the NBWL meeting in March 2010. The Prime Minister asked Jairam Ramesh to “do it”— move to create a new forests & wildlife division. Unfortunately, since then, there is little to show for that resolve. I am told a note has been prepared by the Ministry, but it is lost in bureaucratic maze. Perhaps the IAS lobby is blocking it, because the proposal calls for an official from the Indian Forest Service — and not from one among its fraternity — to head the proposed division in the rank of a Secretary”.

He said the separation of the two departments was absolutely essential to meaningfully address issues of wildlife and forests. “The bifurcation should happen because the Ministry is so preoccupied with environment-related issues that it finds little time to devote to wildlife and forests. Ninety per cent of the Ministry’s time is devoted to environment. Don’t forget that one-fifth of the country’s landmass comprises forests. The proposed department would at least give our forests the attention they deserve”.

The outspoken wildlife expert added that the Government needed to take organisations like the NBWL more seriously. Referring to the 4th Board meeting that was held before the March 2010 meet, he said that was way back in 2007. It was some two and half years later that the Board next met. “By not meeting regularly, we are making important institutions like the Board defunct. I trust it will meet more often at least from now on”, he said.

Even in the 2007 meeting, the Prime Minister had assured that the next meeting would be conducted six months later, but it took 30 months for that to happen, he pointed out.

Thapar is upset by the delay even more because he believes that the creation of a separate department could be the first crucial step in the bifurcation of the Ministry itself into two: Forests & Wildlife Ministry and Environment Ministry. “Eventually a completely new Ministry to handle forest and wildlife management is the ideal thing. The proposed new department could be a beginning in that direction. Unfortunately, we are faltering at the first step”, he lamented.

Ramesh is on record saying the move to create a new forests and wildlife department was “a decision taken” and that the Ministry should “use the opportunity of having a field-oriented department of wildlife”. Ramesh had also expressed the desire to bring about far-reaching changes in the manner the Ministry handled such issues.

He had said in April, “I want to use the opportunity to fundamentally restructure the way we are managing our forests and wildlife. It will take another 2-3 months before the full architecture of this new department emerges”.

The suggestion to divide the departments had come even as far back as 2006 at a Board meeting - with the Prime Minister’s office lending its support — but it was successfully thwarted by the Ministry because it feared loss of control over the forests and wildlife assets. Ramesh’s arrival in the Ministry led to revival of the move, but it remains to be seen if the Minister can ‘do it’.