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The killing in cold blood of Indian fishermen off the Indian coast by armed mercenaries on the Italian ship Enrica Lexie has deeper ramifications which impact not just our seafarers but the roots of our commerce and economic strength. That this has been on sale and barter to the highest bidder is not a secret, but that this is now resulting in the death of innocent fishermen is unforgiveable. An in-depth report on what really happened...
The killing by automatic weapons in cold blood of two Indian seafarers (fishermen) onboard the fv (fishing vessel) S. Anthony in Indian controlled waters off Alappuzha on the Malabar coast by the crew of the Italian ship Enrica Lexie once again brings into focus the unequal task that Indian seafarers have in trying to safeguard their own lives and livelihood. On one side is the real and present danger that our seafarers—people working on fishing boats, dhows, offshore industry ships and more—have from the perils of the sea which now include piracy in no small measure in waters off the Indian coast.
The bigger danger, however, is the almost criminal attitude and approach taken by the various authorities in India in this matter. In this case, if it had not been for the Indian Coast Guard and Indian Navy who to their credit acted independently of the soft-pedal attitude pushed forward by the state government in Kerala as well as the mercantile marine authorities in Kochi and Directorate General (DG) of Shipping in Mumbai, then it is not incorrect to state that the Italian ship would have simply escaped like a common criminal and proceeded on its way without demur.
It is not that we have to understand more about just a case of arrogance on the high seas by people who still bemoan the loss of their colonial power in this part of the world. That, too, is a simple truth. It is more important to understand certain facts of this case first:
1) The incident took place about 14 miles off the Indian coast around Alappuzha. One look at a coastal navigation map will show anybody with the least knowledge of navigation and due diligence that such a huge ship had no business to be so close to the coast there. Alappuzha is not a port of call for ships of this size and moreover, any prudent ship-owner and master will positively stay at least 30-35 miles off this coast for more than a variety of reasons—including standing instructions, safety and pollution. If the ship came so close, then it is clear that she did so with some ulterior motive—either to try and get local mobile phone signal or to probably be in line with some other vessel to pick up or drop off the security guards.
2) The case of the Costa Concordia mishap caused by her Italian master and crew in Italy is still fresh, and should have worked on the mind of any reasonable captain, especially Italian, to ensure that the ship stayed a safe distance away. Incidentally, standing instructions on board similar ships of Indian flag indicate that the ship needs to stay at least 36 miles away from coast in such scenarios—including off the Indian coast. This is in line with instructions issued by the DG Shipping on the subject, after the famous groundings off Mumbai last year, by ships which came too close to the Indian coast.
3) The golden rule, never to be broken, for any merchant seafarer, is that if you see a small craft especially if she is fishing, then you stay a good distance away—even if you have to alter course. For us, that was 10 miles—or more. The fisherman’s right to the seaway is paramount—especially close to the coast; that is one thing. The other more important thing is that you do not want your ship’s propellers to get entangled in fishing nets, which are made of very strong nylons, and can cause huge ships to come to a halt. Again, arrogance and bad seamanship by the master, unforgiveable.
4) One of the first things a watchkeeper on a merchant ship is supposed to do in case of threat of piracy or any emergency or distress is to punch certain buttons which create alarms in various parts of the world—by satellite and other forms of communication. For reasons of security, this is not going to be explained here, but as any seafarer knows—this is a cardinal role. Your certificate can be cancelled if you do not do so. The next steps to be taken, especially if the said emergency or distress is over is to report the same again by a due process.
5) This due process involves informing the vessel’s owners, operators and the relevant authorities. The world’s oceans have been divided into clearly demarcated zones for this, and there is absolutely no doubt that this episode was in the Indian controlled zone, as is known to even the most raw and fresh of seafarers. It appears that the ship informed the owners and operators, but neglected to inform the Indian authorities, while wheels within wheels started working in Kochi and Mumbai and Delhi to soft-pedal the incident and push it under the proverbial carpet.
6) The next step for the vessel is to stop to render help and then make for the nearest port (in this case Kochi, just about 35-40 miles away) and await further instructions, and there is no two ways about it. To try and escape towards Sri Lanka leaving injured fishermen or seafarers behind is counted as murder as per the laws of the sea, and as happened in this case, can only reveal an ulterior motive on the part of the owners and master as well as crew of the ship. It is to the credit of the Indian Navy and Coast Guard, which were aware of this incident, that they took independent action.
7) The timing of the incident, at 1630hrs, is also important. This is a time onboard when ALL FOUR of the management-level officers are awake and on duty, and there is no question of placing this to inexperience, as is being made out to the Indian authorities—who it seems are behaving like apologists for the Italians. Seafarers are placed in jail for far less serious offences in the rest of the world, is the Kerala government and the MMD/DGS so much in awe of the departed Italian colonials that even today there is talk of ‘excusing’ the Italian master and armed guards on board?
8) Most importantly, the status of approvals for Indian or foreign security companies hiring Indian origin guards for Indian or foreign ships operating in Indian waters, recruited from ex-servicemen of the Indian Navy or other services, has been kept in abeyance for months now at the level of the DG Shipping and other authorities in Mumbai and Delhi. Our ex-servicemen know our waters and should by all rights as well as common sense be on ships performing what is called “innocent passages” through Indian waters. Instead, we have a wide variety of trigger-happy mercenaries dredged from the dung-heaps on the basis of cheapest best, from all over the world, freely indulging in shoot-outs within miles of our coast.
This incident has far bigger implications than can be understood in so short an article, but in the first instance, this should be used for exemplary action against the master and crew responsible. This is no less than intentional homicide and murder on more than a few counts and then leaving the injured and dying fishermen while trying to escape makes it worse.
In the next article, I shall try to explain the economic aspect of such episodes. Interim, this report was done basis inputs from a variety of sources who all do not wish to be named, but it is amply clear that the merchant shipping and state authorities have been found majorly wanting in this case.
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Killing of Indian seafarers in cold blood off Kerala—the case of the St Anthony and Enrica Lexie (Part 2)
(Veeresh Malik started and sold a couple of companies, is now back to his first love—writing. He is also involved actively in helping small and midsize family-run businesses re-invent themselves. Mr Malik had a career in the Merchant Navy which he left in 1983, qualifications in ship-broking and chartering, a love for travel, and an active participation in print and electronic media as an alternate core competency, all these and more.)
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PPPs envisage a certain degree of government control in their functioning so that the decisions taken are in accordance with the objectives for which the partnership was set up. Therefore PPPs also come within the ambit of ‘public authorities’ as defined in the RTI Act enabling citizens to know or obtain information about them, the CIC said
Central Information Commissioner (CIC) Shailesh Gandhi said citizens have a right to know about PPPs (public-private partnerships), which directly or indirectly envisage a partnership with public funds. He also ruled that any entity which has received finance or grant of over Rs1 crore from the government would constitute 'substantial financing' rendering such entity a public authority under the RTI Act.
In an order issued on 14th February, the CIC said, "At present, most PPPs do not even accept the applicability of the RTI Act to them and wait for the issue to be adjudicated upon at the commission's level. For this some citizen has to pursue this matter. Such practices are required to be brought to a minimum and PPPs must comply with the provisions of the RTI Act."
The Public Health Foundation of India (PHFI), a 'public-private partnership' (PPP) that was not ready to submit itself to the RTI Act, 2005, has now finally surrendered and is to be brought under the Act. This follows the decision given by Chief Information Commissioner (CIC), Shailesh Gandhi, where he asked PHFI to appoint a public information officer (PIO) and First Appellate Authority (FAA) under the RTI Act by 15 March 2012.
According to Kapil Bajaj, who represented Kishan Lal, the petitioner, during the hearing, PHFI has no other option but to comply with the provision of the RTI Act. "PHFI has not suddenly realised after being taken to the Information commission that it would like to 'voluntarily' submit itself to the law but because it has been clearly shown to be a public authority under Section 2(h)," he said.
Mr Gandhi also asked the Health Foundation to pay a compensation of Rs3,000 to Mumbai-based activist Kishan Lal. Last year, Mr Lal filed an application under the RTI Act, seeking information about PHFI. However, PHFI said that it is an autonomous body duly registered under the provisions of the Societies Registration Act of 1860 and as a PPP it is not a 'public authority' as defined under the RTI Act, 2005. The Health Foundation further stated that as it is a completely autonomous institution, is not covered under the provisions of the said Act.
During the hearing, the CIC found out that one-sixth of the 30 members of the governing board of PHFI are public servants or senior official from the Union government. PHFI, however, claimed that most of the government officials on its board are occupying the positions in their 'personal capacity'.
Terming the claim of PHFI as 'untenable', Mr Gandhi, in his order said, "It is difficult to assume that senior public servants can be on the board of an organisation like PHFI-which has numerous interactions with the government, in private capacity. In fact, this would necessarily imply a conflict of interest. The commission can only assume that such public servants must necessarily be acting on behalf of the government-when they are required to take executive decisions as members of the board-in a public-private partnership such as PHFI. Any other conclusion would be an improper slur on their integrity. It is not possible that India's leading public servants could be acting in any manner, but as representatives of the government when they are on the board of PHFI. It is also true that significant funding is provided by the government to PHFI. Hence, it is presumed that the five officials on the board of PHFI are discharging their duties as public servants."
During the hearing, Mr Lal placed before the CIC, a report submitted to the Rajya Sabha in 2007 by the Department-Related Parliamentary Standing Committee on Health and Family Welfare. The report stated, "The Government of India is contributing Rs65 crore, approximately one-third of the initial seed capital required for kick-starting the PHFI and for establishment of two schools of public health. The remaining amount (approximately Rs135 crore) is being raised from outside the government, namely, Melinda & Bill Gates Foundation (Rs65 crore) and from high net-worth individuals. PHFI is managed by an independent governing board that includes three members from the ministry of health and family welfare viz. secretary (H&FW); DG ICMR and DGHS. Mr TKA Nair principal secretary to the prime minister, Dr MS Ahluwalia, vice-chairman, Planning Commission; Sujata Rao, AS&PD, NACO, ministry of health; Dr Mashelkar, DG CSIR are also members of the governing board. The presence of the officials from the government would ensure that the decisions taken by PHFI are in consonance with the objectives for which PHFI has been supported by the Government of India. It is expected that all members of the governing board would ensure the functioning of the foundation as a professional organization and with complete transparency."
The CIC observed that the Parliamentary Standing Committee also assumed that the vice-chairman of the Planning Commission, principal secretary to the prime minister and other public servants were ensuring that decisions of PHFI were in consonance with the government's objectives and complete transparency. "PHFI's refusal to accept its coverage by the RTI Act seems at variance with this," he noted.
PHFI admitted that it was set up in 2006 with an initial fund corpus of Rs200 crore (at present Rs219 crore), out of which Rs65 crore were provided as grant by the ministry of health and family welfare (MH&FW). The CIC noted that the funding of about 30% from the government cannot be considered as insubstantial. "...a grant of Rs65 crore given by the government from its corpus of public funds cannot be considered as insignificant and would render PHFI as being 'substantially financed' by funds from the government," he said in the order.
Commenting that citizens have a right to know about the manner, extent and purpose for which public funds are being deployed by the government, Mr Gandhi, said, "...not every financing of an entity in the form of a grant by the government would qualify as 'substantial', but certainly a grant of over Rs1 crore would constitute 'substantial financing' rendering such entity a public authority under the RTI Act."
In another significant ruling, the CIC said that PPPs, by their very nature, stipulate certain contributions by the government such as giving land at a concessional rate, grants and monopoly rights. In cases such as grants, direct funding by the government can be easily calculated. In cases such as giving monopoly rights or land at a concessional rate, value(s) must be attached and the same would tantamount to indirect financing by the government. In other words, PPPs envisage a partnership with public funds-directly or indirectly- and therefore citizens have a right to know about the same, Mr Gandhi said.
Being a public-private partnership, PHFI has received a substantial grant of Rs65 crore from the government initially. Further, PHFI has been receiving free land and handsome financial grants from state governments for setting up 'Indian Institutes of Public Health' (IIPHs) as part of the public-private partnership. For instance, the Andhra Pradesh government provided PHFI with 43 acres of land in Rajendra Nagar area of Hyderabad free of cost and Rs30 crore in financial grant for setting up IIPH. The Gujarat government provided 50 acres in Gandhinagar and Rs25 crore in grant. The Orissa government provided 40 acres near Bhubaneswar and the Delhi government spent Rs13.82 crore on acquiring 51.19 acres of Gram Sabha land in Kanjhawala village for PHFI to set up IIPH.
"This ruling is another slap on the face of the central government, steeped as it is corruption --- for implementing a policy (PPP policy) in a manner that makes a mockery of the principle of transparency and accountability to the public enshrined in the Constitution and the Parliamentary enactment in the form of the RTI Act," added Mr Bajaj.
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