The students and youth in UP and Bihar have come out on the streets spontaneously using social media contacts taking very good initiative, finding out new methods of campaign to highlight the plight of unemployed millions.  There are large numbers of youth who had passed the central and state competitive examinations in 2017 and 18 who are not employed yet. No competitive exams are held so far in 2020. Those who were offered placements from campus interviews are also mostly not employed. As there was a huge number of unemployed already, the pandemic has worsened the situation. Neither central nor state governments are coming out with any proposals or promises about employment or unemployment allowances to those not getting jobs. It is in this situation, after establishing contacts through tweets before the Teacher’ Day on 5th September, tens of thousands of students came out in the streets at large number of cities including University centres like Varanasi and Aligarh with the banner “Students against Unemployment” on 5th September at 5 minutes past 5 pm, clapping hands, clanging plates and ringing bells, in Modi style!. Though the mainstream media mostly refused to report, through social media this campaign has become viral.

It was a good beginning. It will definitely encourage to spread to more contacts, to more areas. Such initiatives shall help to spread the campaign countrywide also, giving rise to new forms of mass protests and struggles. On 5th they raised the slogan: “Modi, Provide Employment, or Quit” They were exposing Modi’s total failure to provide jobs, even while destroying the existing jobs massively. They used the same form of action Modi used on 22nd March Janata Curfew called by Modi to confuse and terrify people using Covid19 as a weapon!

“Students and Youth against Unemployment” then called on the students and youth to come out on the streets or protest before their houses switching off the lights on 9th September at 9pm for 9minutes, lighting candles and mobile lights, again using the form of action Modi used to saffronize and terrify people using Covid19 as a cover. Modi is challenged and exposed in his own style!  On 17thSeptember, when the RSS parivar was celebrating the birthday of Modi, the youth came out again on the streets with the banner “All India Unemployment Day” This spontaneous mobilization of students and youth calls for support by all organizations working among the students and youth.

CPI(ML) Red Star,  many progressive secular forces, and mass organizations  opposing Modi’s corporate fascist rule supported the students and youth and joined them at 9pm on 9th September, switching of lights and lighting candles.  We can use social media extensively, support it, appeal to people to join it. It is a good beginning, make it as much successful as possible. It is one way to give momentum to resistance against Modi fascism

It Was the farmers from Punjab followed by Haryana and in some other areas who started coming out in the streets opposing the three ordinances issued by Modi government for wholesale corporatization of agriculture, by the government agencies getting closed down and corporates given full control, which the farmers know the end of MSPs of important products also. As the ordinances are hastily turned in to acts in the monsoon session of parliament, farmers’ movement is gaining strength, demanding to scrap them. It is bound to spread from Punjab and Haryana to other states. It has forced the SAD minister to resign from cabinet and SAD from NDA.

On 5th September, at 5 minutes after 5pm, thousands of youth and students came out in the streets of UP and Bihar towns mainly clanging the plates demanding employment, not speeches! Following social media calls in many More places they came out on 9th September, at 9pm for 9 minutes, switching off electric lights and burning candles, demanding employment, not speeches! Now on 17th September, when the RSS parivar is celebrating 70th birthday of fascist Modi, ridiculing him once again, the youth and students have come out observing this day as “National Unemployment Day”.

The resistance and fight back is just starting. The rumblings can be heard. When Modi and his ministers talk about vaccines from which imperialist countries, but not about free testing, treatment for  the millions of Covid19  patients, and not for food, jobs for the tens of millions, when thousands of children die for want of food, when the number of students, unemployed youth and starving families committing suicides are increasing, the fascist terror unleashed by the corporate fascist Modi government, however barbarous it may be, cannot to stop the masses from rebelling and come out. Let us challenge the RSS fascism, its majoritarian Hindutva Manuvadi ideology in the service of imperialism, and join hands with the people’s movements!

According to latest reports from the LAC in Ladakh region, the standoff between Indian and Chinese forces continuing for almost five months at many points have reached an explosive situation, with firing having taken place at one of these points after 45 years. Slowly and in a planned way the RSS line on Tibet raised by it from the very beginning, supporting the US line, has started coming to the forefront as reflected in the way the cremation of an Indian soldier of Tibetan lineage was organized with provocative speeches attended by Ram Madhav, RSS/BJP spokesperson. Trump would like to keep the tension on India-China border at flash point and raise the Tibetan question as a campaign issue in his presidential race. The Modi govt also wishes to prolong the standoff so that people’s attention can be diverted from crucial issues like galloping Covid19 cases, joblessness, high price rise of essential commodities and unprecedented economic retardation leading to starvation condition for tens of millions. 

The Modi govt's belligerence has been compounded by unwarranted, provocative statements made by Chief of Defence Staff Gen Bipin Rawat, a known RSS affiliate, who also dragged Pakistan into the question in order to provide a further fillip to national chauvinism. Tellingly, Rawat's comments were made at an interactive session at the US-India Strategic Partnership Forum, where he insisted that India's policy of engagement, if not backed by credible military power and regional influence, would imply acknowledging China's pre-eminence in the region. He also commented on "China's economic assistance to Pakistan-occupied Kashmir and continued military and diplomatic support to Pakistan." 

China, which has controlled Covid19 infection and is regaining economic growth, on the other hand, will wish to stop any form of US-backed incursion into Tibet by Indian forces at any cost. China would also not be averse to seeing the Indian economy face increasing crisis as more and more funds are pumped into the war budget. 

As both sides accuse each other and maintain large forces on both sides, it creates conditions for a confrontation with severe consequences. The danger is real, as the RSS Parivar as well as mainstream media along with Sanghis on social media are propagating war mongering and jingoism! Almost similar war mongering is spread by the Chinese side also. In this situation a flare-up can take place at any time. The situation becomes more dangerous as the Congress as well as other main opposition parties are also joining the war mongering campaign to show that they are not behind RSS Parivar in national chauvinism and warmongering.

CPI(ML) Red Star has repeatedly demanded that the border disputes which are leftovers of the colonial period should be resolved through bi-lateral discussions, and India should not go for border war, which will be extremely harmful to the people. We appeal to all democratic forces to rise to the occasion and campaign against war-mongering and jingoism, with the demand that all border conflicts in general and the Indo-China conflict in particular be solved through political dialogue. Negotiations may be taken up at the highest levels, so that the tension is diffused immediately. Subsequently, fresh round of discussions may be started to settle the dispute in a good-neighbourly manner.

CPI(ML) Red Star declares that if, instead of taking such a stand, the Modi government, provoked by the RSS and US imperialism, goes ahead to another border conflict, we shall swim against the tide of war mongering and chauvinism. We firmly declare "No to war" and " No war-mongering" and for a peaceful settlement of border dispute through bilateral political and diplomatic channels. We shall launch a nationwide mighty movement for food, employment and democracy, and shall actively strive to mobilize the people against any bloody, disastrous war to settle border disputes.

Forty years have passed since the fascist coup of September 12, 1980. The analysis of the defeat of the revolutionary movement and the correct determination of the shortcomings of the fight against the fascist coup of September 12, provide us with important knowledge for the fight against the fascist palace coup of Erdogan. By September 12, 1980, Turkey had, in Gramsci‘s words, reached the height of an “organic crisis”, while the various sections of the ruling class were uniting under a single rule to avert the deadly threat of revolution. In those years clashes raged between state and people and between the bourgeoisie and the working class. In fact, in the 70s, a new revolutionary movement took shape with a massive attraction, based on the enormous legacy of the revolutionary breakthrough of 1971, and especially after the amnesty of 1974. Literally “spontaneously” thousands of students and workers flowed into the ranks of the emerging revolutionary and reformist organizations, whereupon civil-fascist attacks and anti-fascist resistance escalated. The confrontation between fascism and anti-fascism had reached the level of a violent polarization of society. Not only did a revolutionary situation develop, but also a civil war of low-intensity. The regime was unable to overcome this dilemma because the Turkish bourgeois state system, based on the political rule of the generals and the high state bureaucracy behind the scenes, could not possibly produce a solution with its existing structure and instruments. The bourgeois parliament and its governments slipped from one crisis to the other. The Turkish economy was in an overproduction crisis with structural features. The ideological hegemony of the rulers was in the process of dissolution and the dominance of US imperialism in the region was shaken by international developments. These circumstances ushered in one of the bloodiest chapters in the history of the Turkish Republic, in which the fascist state succeeded to inflict a defeat on the revolutionary movement with grave consequences.

A historical comparison between the fascist military coup 1980 and the fascist palace coup today The military coup of September 12, 1980, explained the purpose of the coup at a rally in Konya: “If we hadn't come, they would have come.” TÜSIAD, the association of the collaborative monopoly bourgeoisie, explained the class character of the fascist putsch directly with the words: “So far the workers have laughed, but from now on we will laugh.” Of course, the revolutionary forces had a premonition. Since 1978 almost all revolutionary organizations and political publications had written about an impending fascist coup. But there was no strong preparation of the revolutionary organizations for what was on the way. Despite all the willingness to fight, militancy and the strong mass movement of the 1970s, no successful resistance was prepared. If we leave aside the ideologically very valuable resistance and the revolutionary insistence of individual revolutionary militants and a few limited revolutionary organizations, a “defeat without fight” ensued. The consequence of this was not only that the revolutionary boom has dissolved. Ideological and political devastation, affecting the entire future of the revolutionary movement, strained the following periods of struggle and shaped all subsequent generations. Despite all the similarities between the military coup of September 12, 1980 and the palace coup under Erdogan, there are significant differences: For over five years the vanguard of the revolution in Turkey and Kurdistan has been resisting the severe attacks of the AKP dictatorship. Even if this reality is viewed in isolation from all subjective and objective developments, it has enormous value, because while the fascist palace coup aimed to neutralize the revolutionary movement with shock blows and achieve victory in a short time, the revolutionary forces were able to build a long-term resistance line. Although a long period of five years has passed, the fascist palace coup still failed to achieve its strategic goals, which consist of the liquidation of the revolutionary vanguard and social movements. In general, the longer the struggle against fascism lasts, the lower become the political possibilities of counterrevolution. Fascist coups that do not achieve an early victory, lose a lot of strength over time. Revolutionary forces, on the other hand, who demonstrate their determination and invincibility at this time, can transform the resistance tendencies of the people into a real force. In the terminology of guerrilla warfare, the “prolonged war” will wear down and weaken the fascists, but gradually increase the anti-fascist forces.

The united revolutionary forces struggle today under conditions with many revolutionary possibilities, which subjectively concern the revolutionary vanguard and are objectively based on political developments. The strategic and tactical advantages of the fight against the coup today compared to the days of September 12, 1980 can be explained under the following points: - The fascist military coup of September 12, 1980 succeeded in neutralizing a revolutionary moment, whereby it also eliminated a large part of the revolutionary organizations and abolished the organizational integrity, functioning and working conditions of the remaining structures. In addition, the September 12 coup succeeded to achieve economic, political and social stability on behalf of the ruling class. In the broadest sense, the dynamic of the crisis that sparked a revolutionary situation was largely eliminated by the coup. Today the fascist palace coup failed in all of the above-mentioned issues. Although some revolutionary forces suffered a considerable loss of strength, the revolutionary resistance line could not be liquidated. Turkey is currently in its worst political, economic and social crisis. Even if the palace coup slows down the course of the collapse of the Turkish bourgeois state, which is in a structural crisis, it cannot create a medium-term solution. The situation is still such that the rulers can no longer rule as before and the oppressed no longer want to be live in the same way. Leading revolutionary organizations that want to convert this revolutionary situation into revolutions are ready. This is one of the main reasons the fascist palace coup is doomed to defeat. - The attitude of the revolutionary democratic masses is different today than in the period after September 12, 1980, when an atmosphere of fear was created. Even if there has been a significant decline in the mass movement in 18 the last 5 years, and the numerous massacres, waves of arrests and repression have had a gruelling effect, the most advanced sections of the mass movement persist in fighting. Some social movements, especially the democratic women‘s movement, are clear indicators of this. The links between the mass movement and revolutionary organizations could not be severed either. So the masses do not turn their backs on the revolutionary organizations and in almost all existing social movements the revolutionary vanguard plays a decisive role. The broadest masses, however, in spite of their silence still show the tendency to reject the fascist palace coup.

From September 12, 1980 until today, the level of development of the Turkish-Kurdish revolution has changed considerably. While the revolution in Turkey suffered a defeat on September 12, 1980, the revolution in Kurdistan was preparing for a major advance. Today the Kurdish pillar of our united revolution has triumphed in Rojava, awakened a social dynamic in Northern Kurdistan and created an important balance against the state. While the September 12 coup ended a phase of revolutionary upswing, the attempted coup by the Fascist palace today must defeat a revolution that has started and is making significant progress. -Despite its mass strength, strong cadre reserves and militancy, the revolutionary movement before September 12 was programmatically far from a power perspective. This lack of power perspective has had a direct impact on the choice of means and forms of struggle. The anti-fascist armed struggle of the era before September 12 could not reach the level of a political-military line aimed at power. This is the main reason why, after the coup, the possibilities of creating resistance positions with a political-military character were not seized upon.

Today there is a revolutionary vanguard that organizes revolutionary violence in a way that is aimed at the overthrow of the fascist chief regime and the victory of the revolution. Although the desired level has not yet been reached, today's political-military struggle indicates under a strategic point of view towards a different situation than before. -The most basic need of the fight against fascism are front organizations with a united character. However, it was impossible to build a united revolutionary leadership either before or after the fascist military coup of September 12, and 19 even successful alliances of action were scarce. The FKBDC (United Resistance Front against Fascism), which was founded to take up a political-military struggle against the fascist coup of September 12, 1980, remained on paper and disbanded due to the liquidational attitude of some structures. Although the revolutionary street movement continued in the early days of the military dictatorship and even some armed reprisals followed, a significant part of the old revolutionary organizations turned to liquidationism and orientated themselves on a reformist course within the ruling order.

Today, in contrast to September 12, there are united revolutionary organizations both on the practically legitimate fighting front and on the political-military front. There is uninterrupted resistance on both fronts. In particular, the increasing impact of violent revolutionary actions brought the fight against the fascist palace coup to a new level. This level is developing towards a political centre and becomes a barricade against the ideological dissolution of September 12, which included the goodbye to arms idea. - Prisons play a big role. The coup of September 12 had not only established its rule in the streets, but also conquered the prisons. The revolutionary forces, which the coup could not overcome in the dungeons, offered legendary resistance and developed into a real revolutionary armed force after the prison. However, if you look at the whole picture, the prisons at that time fulfilled the function of integrating the revolutionary movement into the ruling order. The prison policy of the fascist palace coup today is also in line with September 12. In this context there are tens of thousands of revolutionary, patriotic and anti-fascist prisoners. However, the prisoners did not submit to the fascist palace coup. In addition to strong ideological moral values, in some cases resistance in prisons also played a leading role for the political struggle. In view of the fascist coup of September 12, this is a great achievement. In the face of September 12, the revolutionary movement not only suffered organizational defeat, but also fell apart. So much so that over time it lost its ideological hegemony over the laboring people and could not prevent the erosion of revolutionary values. In the quarters, schools and villages under revolutionary hegemony, no armed mass resistance and no barricade fights against the military-fascist regime began

Although hundreds of armed revolutionaries marched from the Black Sea region to the Tarsus Mountains, no guerrilla warfare based on the unity of country and city began. In the months after September 12, when the revolutionary energy of countless militants and their belief in defeating the coup were still alive, no popular resistance was organized. The unused objective possibilities of organizing an anti-fascist resistance of the people against the regime of September 12 make it necessary to analyze the revolutionary mentality of the years before September 12. Especially because in the same objective conditions, the Kurdish freedom movement succeeded in preparing major advances. In summary, all parts of the revolutionary movement were shaped by revolutionary spontanism, which led to strategic myopia and tactical incompetence. The lack of a power perspective manifested itself in the uncertainty in the question how the widespread and effectively waged political struggle against civil fascists could leap straight to the level of a revolutionary war against the state apparatus. For example, the enormous potential of the Kurdish national revolutionary dynamic has not been realized.

The importance of the conflict between Alevis and Sunnis for the revolutionary strategy was not recognized. While the dynamism of the development of the revolutionary movement began to wane since the May 1, 1977 massacre, the need for a revitalized political struggle was not understood. In fact, there was neither a political nor a military strategy. The assassination of the most talented and strong-willed leaders of the revolutionary advance of 1971 prevented the birth and maturation of a practical revolutionary headquarters. Informal and mostly statuteless organizational structures mirrored the revolutionary spontaneity. The “movement or party” debate reflects the theorization of the superficial nature of the organization's spontaneous nature. The weakness of organizational strategies was demonstrated by the fatal blows to major revolutionary organizations only within a few months of September 12. Overall, the defeat after the coup on September 12, 1980 is a school of struggle. Revolutionary cadres of the 1970s transferred the positive characteristics of their generation, the lively appropriation of revolutionary values, devotion and spirit of sacrifice, to the new revolutionary generations, creating generations of victories. The coup experience also provides essential general information. Fascist coups are trying to crush the revolutionary struggle with the help of military and sheer violence. The fascist military coup of September 12 was successful in this way, and the fascist palace coup today aims to succeed in a similar way.

Although the characteristics of both coups are different, that reality remains unchanged. Using the example of Turkey and Kurdistan, we can see that under the current conditions the chances of success for the fight against the coup without a political-military fight are slim. Important achievements of the social movement also run the risk of disappearing if the political-military front is unsuccessful. If a coup means violence, then a line of struggle that does not speak of violence and is not properly organized and has no chance of success. The fascist palace today lacks opportunities to completely ban democratic rights and freedoms, which makes the practically legitimate front of battle an important field of battle, in contrast to the days of September 12. Any movement that legitimately, militantly and consistently pushes the boundaries of the fascist palace coup transforms the tendency of the masses to resist into political force and results in progressive forces being won over to the revolutionary ranks. The most important thing today is the continuity of resistance on every front. Every spark can trigger a revolutionary wildfire, our resistance creates sparks.

The spread of Corona Virus in India has been on the upswing despite the measures undertaken by the state. In most parts of India the suffering has been immense. The central Government took up the issue of Covid 19, with great amount of delay. From early February WHO started warning the Governments all around about the impending dangers of the pandemic. That time Indian Government was busy in organizing ‘Namaste Trump’ and the ruling party at Centre was busy with the operation Kamal to overthrow the Congress Government in MP. As The Janata Curfew was declared on 22nnd March and total lockdown on 24th March, the issue started being taken up seriously. To shirk the responsibility of the state, it found a very convenient target. The Tabligi Jamaat’s (TJ) seminar (13-15 March) in Markaz Nijamuddin was blamed for the spread of Corona by the Government and then by the media. Definitely some lapses must have occurred in organizing of the seminar at this time, and a large assembly taking place during a pandemic is inexcusable at one level.

At the same time thousands of people had come to India for the event ‘Namaste Trump’. Nearly two lakh people were exposed to this event. The Temples and Mutt congregations were going on. The TJ people had come to India with due permissions and screenings at airports. Despite all this the move to blame them for spreading Corona just exemplified the mind set and political manoeuvre of the Government. Demonising Tablighis was to target the whole Muslim Community of country.

The Godi (Lap) Media (or Communal media) went hysteric in proclaiming that Tablighis were deliberately spreading the disease as per the plan. This is their ‘Corona Jihad’ and they are preparing ‘Corona Bomb’ in Markaz, which is at stone’s throw from the police station of the area! The reach of this section of media is astounding. It got picked up and ‘Muslims are deliberately spreading the disease’ became part of the ‘common social understanding’. The impact on the social life was instant. Muslim truck drivers at places had to run away to escape the mobs. The Muslim vegetable vendors were beaten up at places and not permitted in many housing colonies.

After some of these Tablighis were quarantined and admitted to hospitals, it was a heyday for the fake news makers. What started doing rounds was that these Tablighis are making obscene gestures to nurses, are spitting, and are moving in the wards without clothes. All this gave grist to the mill of Islamophobia, already peaking in India. Police promptly went into action and cases were launched against the Tablighis who had come from abroad. The cases filed were under various clauses related to violation of VISA rules, spreading the epidemic, and also preaching Islam.

In couple of judgments on the issue, the role of media and police has come from scathing criticism. The blatant falsehood of FIR’s and the propaganda of section of Media stand exposed. In its judgement the Aurangabad bench of Bombay High court, the observation of the court are remarkably reflecting of the state of affairs of the attitude of police and media towards Muslims. The High Court clearly stated that the action against Tablighis is an attempt to find the scapegoat for the Covid 19. It observes, “, “A political Government tries to find the scapegoat when there is pandemic or calamity and the circumstances show that there is probability that these foreigners were chosen to make them scapegoats. The aforesaid circumstances and the latest figures of infection in India show that such action against present petitioners should not have been taken.” And further critiquing the media, the Court observes, “There was big propaganda in print media and electronic media against the foreigners who had come to Markaz Delhi and an attempt was made to create a picture that these foreigners were responsible for spreading covid-19 virus in India. There was virtually persecution against these foreigners.”

The judgment should go down as a case study of the attitude of state (police) and media towards its religious minorities in the country as those Muslims who came from aboard for seminars or touring the country were harassed to no end. The Court states, “This action indirectly gave warning to Indian Muslims that action in any form and for anything can be taken against Muslims. It was indicated that even for keeping contact with Muslims of other countries, action will be taken against them. Thus, there is smell of malice to the action taken against these foreigners and Muslim for their alleged activities. The circumstances like malice are important consideration when relief is claimed of quashing of F.I.R. and the case itself.”

Incidentally as Covid 19 shows us that those who matter and those who spread information are totally biased and look for scapegoats among Muslims, it also shows that there are some who are treated as Holy Cows. In the recent Delhi violence most of those who have been targeted are those who were active in protests against Government in anti CAA-NRC agitations. Those who gave provocative speeches, Desh Ke Gaddaron ko, (Anurag Thakur), There are rapist amongst those participating in the protests (Parvesh Varma) and ‘We will dislodge them physically (Kapil Mishra), are very much moving around while those who talked of peaceful protests are under the scanner.

Similar attitude was also observed in the series of bomb blasts, which shook the country between 2006-2008. Just one example will suffice, in the aftermath of Makkah Masjid blast (Hyderabad) scores of Muslim youth were arrested right away. They were released again by Court for the lack of any credible evidence. In Malegaon blast case ditto, one of the accused in the blast Pragya Thakur is on bail and has become the law maker. In practice what is ruling is the biased attitude, targeting some for their religion and exonerating others, again for their belonging to a particular religion!

(On August 31, a Supreme Court Bench headed by Justice Arun Mishra approved the decision by electricity regulators to grant Adani Power “compensatory tariffs” amounting to Rs 8,000 crore for electricity generated at its power plant in Rajasthan. The verdict, just before Justice Mishra’s retirement on September 2, is the seventh judgment since the beginning of 2019 in which benches headed by him have ruled in favour of Adani group of companies.)

Bengaluru/Gurugram: On August 31, a Supreme Court bench headed by Justice Arun Kumar Mishra, that included Justices Vineet Saran and M R Shah, ruled in favour of a company in the Adani group in a dispute with public sector power distribution companies in Rajasthan. The verdict, issued three days before Justice Mishra retired from the court on September 2, has granted Adani Power Rajasthan Limited (APRL) – which owns a 1,320 megawatt capacity thermal power station in Kawai, Baran district – “compensatory tariffs” worth over Rs 5,000 crore and penalties and interest payments of nearly Rs 3,000 crore.

This “price” of Rs 8,000 crore will be borne by electricity consumers in the cities of Jaipur, Jodhpur and Ajmer. This is the seventh verdict in favour of Adani group companies issued by benches headed by Justice Mishra since the beginning of 2019.

The verdict was on petitions by power distribution companies (discoms) of the three cities, and a separate petition by the All India Power Engineers Federation (AIPEF), a representative body of employees of public sector power companies, against a September 2019 verdict of the Appellate Tribunal for Electricity (APTEL). Agreeing with the APTEL’s contention that APRL had suffered on account of a “change in law” for which it was owed compensation, the Supreme Court bench rejected the arguments made in appeal by the discoms and AIPEF.

The court held that a memorandum of understanding (MoU) signed by the government of Rajasthan providing an “assurance” that it would “facilitate” allocation of coal mined domestically as fuel supply for Adani’s power plant in Kawai, constituted the basis for power purchase agreements (PPAs) signed by the Adani group company with the Rajasthan discoms in 2010. This was despite those PPAs having been signed on the basis of APRL bidding successfully in a competitive auction, which it qualified to participate in on the basis of a coal supply agreement (CSA) it signed with its sister company, Adani Enterprises Limited (AEL), for coal imported from Indonesia.

Subsequently, the failure of the power plant to secure a coal allocation from the government constituted a “change in law,” the court held. This, coupled with the fact that in 2011 the price of coal imported from Indonesia had risen significantly above the levels agreed upon in the CSA that qualified APRL to participate in the auction, entitled the company to “compensatory tariffs,” the Supreme Court ruled.

Domestic or Imported Coal?

The case before the apex court depended on answers to two important questions.

In 2009, the Rajasthan discoms conducted an auction in which private power producers were invited to participate and present bids to win the right to sell electricity to the state. In order to qualify to participate in the auction, the private power generation companies needed to have in place CSAs – either a domestic coal linkage that would supply enough coal for the entire lifetime of the PPAs or a CSA for imported coal that would supply at least half of the fuel requirement for the first five years of the PPAs.

At the time the auction was announced, with requests for proposals being circulated, in February 2009, the Adani group company was in the process of setting up its power plant at Kawai, but did not have any CSA. While in a MoU signed by the government of Rajasthan with AEL in March 2008, the government had assured its support to the project in facilitating it to obtain a domestic coal linkage, this did not constitute a concrete agreement that would qualify it to participate in the auction.

While preparing its bid, in June 2009, APRL wrote to the Rajasthan government seeking its support under the terms of the MoU for securing a coal linkage, requesting either the allocation of excess coal from existing coal mines owned by the state government, including the Parsa East Kente Basan mine in Chhattisgarh, which another Adani group company was contracted to mine, or to support its application for allotment of a captive coal block to the Union government.

However, without a CSA guaranteeing its coal supply, APRL would not qualify to bid in the auction. Hence, in June 2009, it executed a CSA with group company, AEL, for supply of coal imported from Indonesia for the Kawai project. In addition, APRL also applied for a long-term coal linkage contract to the Union Ministry of Coal in July 2009. With this CSA for imported coal in place, APRL submitted its bid in the auction, attaching the agreement to its bid.

It was because of this agreement that APRL’s bid was considered in the first place during the auction. Having qualified, the Rajasthan government sought a clarification from APRL regarding the evaluation of its bid. APRL clarified that it intended to “use domestic coal as well as imported coal.” Pointing to the CSA, it said: “A duly executed Fuel Supply Agreement for more than 50% of the coal requirement for a period of 5 years has been submitted along with this bid.”

The company added: “…we have also submitted with the bid a MoU executed between the GoR (government of Rajasthan) and AEL wherein...the state has assured in making its efforts to facilitate in getting coal linkage/block or coal from any other source for the power project.”

Hence, APRL stated that “we (will) meet the fuel requirement on the basis of imported coal tie-up,” adding: “… we are sure to get domestic fuel tie-up with the support of the GoR. In view of this we submit that our bid should be evaluated on the basis of Domestic Coal tie-up. We undertake that payment considering domestic coal escalations will be acceptable to us during the term of the PPA (power purchase agreement).”

However, once its bid qualified and was evaluated by the discoms, APRL cancelled its CSA with AEL on June 10, 2009. The agreement had been used only to qualify for the auction.

APRL’s bid was the lowest and it won a contract to supply electricity to the state discoms from its 1,320 megawatt (MW) capacity Kawai power project. A letter of intent (LoI) was issued to APRL by the discoms on December 17, 2009, which stated the following: “Your offer to provide 1,200 MW power at the rates mentioned at Annexure-1 and escalations thereof on domestic coal is based on your commitment that the above rates would be applicable even in case of coal requirement being met by you by way of back up arrangement with imported coal.”

This meant that even if APRL were to use imported coal under its CSA with AEL, the tariff would be calculated based on the prices of domestic coal. This LoI was “unconditionally accepted” by APRL.

Terms of Power Purchase Agreement

However, the PPA that was signed the following month, on January 28, 2010, did not reflect the same terms. While it noted that the fuel supply arrangement for the PPA was based on the supply of domestic coal with a fallback support arrangement of imported coal for five years, it dropped the language clarifying that the tariff would be calculated against domestic coal prices, irrespective of the source of the coal – imported or domestic.

Given this sequence of facts, the first question before the Supreme Court was whether the bid was based on domestic coal or imported coal. The APTEL and the Rajasthan Electricity Regulatory Commission (RERC) that had ruled on the dispute before it, had both held that the bid was indeed based on domestic coal.

While the discoms, represented by senior advocate C Aryama Sundaram argued that though the bid was evaluated based on a domestic coal linkage, no such linkage was actually in place, and it was the CSA for imported coal that was a fallback option for supplying 50% of the coal required by the power plant for the first five years that qualified APRL’s bid. In fact, the CSA had been for 61% of the coal requirement. Accordingly, the discoms argued that if any compensation has to be claimed, it could only arise on the remaining 39% of the domestic coal that APRL had said it would use for the project during the first five years, if this was the subject of a change in law.

Senior advocate and Congress party leader Abhishek Manu Singhvi, appearing for the Adani group company, meanwhile, argued that the CSA was only a qualifying document, and had no bearing on the tariff which was determined entirely against domestic coal. The entire bid was premised and accepted on domestic coal, and hence was affected by a “change in law” when the government failed to provide the promised coal linkage, and therefore APRL was entitled to compensation, he argued.

The Arun Mishra-led bench came down on the side of the Adani group company, ruling that the bid was based entirely on domestic coal.

Padamjit Singh, the convenor of the AIPEF, in an interview to Newsclick said this was the result of a “self-goal” by the Rajasthan discoms: “The Rajasthan discoms took the precaution to put a condition in the LoI that regardless of whether Adani Power were to use foreign or domestic coal it will be paid power tariffs determined according to domestic coal prices. This is recorded in the Supreme Court order as well. But the problem arose because this condition was not put in the PPA.”

Singh asked that “if Adani Power was awarded the contract under a certain understanding, why was that condition not put in the PPA, when it was such a critically important condition?” He said this condition was the basis on which the PPA was awarded.

“Adani had accepted the LoI unconditionally, so there would have been no way to challenge it if the discoms had put it in the PPA and the matter would have rested right there,” the AIPEF convenor pointed out, adding: “This was where the Rajasthan discoms lost the game. It was a self-goal. It was a huge blunder, or perhaps the discom officials were arm-twisted. There is no reasonable explanation.”

Libbying by Rajasthan Governement

The second significant issue before the Supreme Court was whether, having assured APRL in its MoU with the Rajasthan government that it would facilitate it to acquire a coal linkage, did APRL face a “change in law” when it failed to do so until 2018? Under the terms of the PPA, “change in law” is one of the conditions that enables either party to seek a tariff revision.

This question too, ultimately was decided by a “self-goal” by the Rajasthan discoms.

In August 2007, a LoI was issued by the Rajasthan Rajya Vidyut Udpadan Nigam Limited (RRVUNL) in favour of AEL to develop the Parsa East and Kente Basan (PEKB) coal block located in northern Chhattisgarh. The LoI stipulated that the coal could be utilised at the discretion of the Rajasthan government for new upcoming thermal power projects.

In March 2008, a MoU was signed between the Rajasthan government and AEL for the latter to set up a coal-based thermal power generation project in Kawai that also stipulated that the state government assured its support to the project in ensuring allotment of a coal linkage. Between May and June 2008, AEL wrote to the Rajasthan government six times, requesting that it consider allotment of coal from the PEKB coal mine, which was already being developed. With no such allotment forthcoming, at the end of August 2008, AEL requested the state government to apply to the Ministry of Coal for a coal block to be allocated to the Kawai project for the development of a captive coal mine.

In July 2009, when it was preparing to file its bid in the auction for the right to sell power to the discoms, AEL applied for a coal linkage to the government. It did so under the terms of the National Coal Distribution Policy of 2007, under which projects approved by a Standing Linkage Committee of the government would receive 100% of its coal from the public sector Coal India Limited (CIL).

By the beginning of 2010, APRL had PPAs in place with the Rajasthan discoms, but no coal linkage yet. At this stage, APRL once again wrote to the Rajasthan government seeking allocation of a captive coal block for its Kawai project. It further requested the state government to execute a fuel supply agreement between RRVUNL (which had discretionary authority over the use of coal from the PEKB coal mine) and itself.  Starting in January 2011, the Rajasthan government lobbied the Union government to seek the allocation of a coal block for the Kawai power project.

In a previous article for NewsClick, the authors of this article have described this process in detail:

The Rajasthan government wrote to the Ministry of Coal in January 2011 requesting it to allocate coal blocks identified by the government in Chhattisgarh to meet the coal requirements for various power projects in the state, including the one at Kawai. Receiving no response for over a year, in February 2012, the state government wrote to the Central government again, this time to both the Ministry of Coal and Ministry of Power, requesting that the Kawai project be considered at par with other power projects in the Central government’s 11th Five Year Plan (2007-12), despite the project being part of the 12th Five-Year Plan (2012-17).

In response, the Ministry of Power responded that the project was part of the Twelfth Plan and would be considered for implementation in due course. Meanwhile, the ministry suggested that the government of Rajasthan examine the possibility of increasing the mining capacity in coal blocks already allocated to it in Chhattisgarh and allocate coal for the Kawai project from these blocks.

At the same time, in February 2012, the Standing Linkage Committee decided that no new fuel supply agreements (FSAs) would be signed by CIL owing to a shortage of coal.

The Rajasthan government wrote back in November 2012 that there was not enough surplus coal in its allocated coal blocks allegedly without attempting to revise the quantity of coal it was recovering from those mines. In effect, the Rajasthan government, after having committed itself to securing domestic coal for the Kawai project, and after being asked by both APRL and the Central government to supply coal from its own coal mines in Chhattisgarh, was refusing to do so.

Thereafter, the Rajasthan government escalated its lobbying in New Delhi. On November 26, 2012, a letter was sent by Chief Minister Ashok Gehlot to the Ministries of Coal and Power requesting ad hoc allocations of coal, as the Kawai power plant was due to commence operations. The Rajasthan government wrote another letter to the Planning Commission in January 2013. In December 2012, the Kawai power plant started operating on imported Indonesian coal on a “test” basis, and was synchronised with the state’s power grid in August 2013.

In February 2013, APRL wrote to the discoms stating that the Rajasthan government’s persistent attempts to secure a domestic coal linkage had failed and that since the plant was running on Indonesian coal, the prices of which had surged following the implementation of a new law by the Indonesian government, it would require a revision of tariff to compensate the private company for its higher costs due to use of imported coal.

With no domestic coal linkage in place, in April 2013, with the scheduled supply of power due to begin, APRL approached RERC with a petition seeking a hike in electricity tariff over what had been fixed, based on its bid in the competitive auction in 2010.

After this, in May 2013 the government decided to change the National Coal Distribution Policy (NCDP), that was notified in July 2013. In this amended policy, CIL would supply a portion of the fuel requirements of power plants which were yet to secure coal linkages, and supply the remainder by importing coal, which the power generators could also import for themselves.

Change in Lasw?

The question before the court was, whether this inability of APRL to secure a domestic coal linkage constituted a change in law. But reviewing the arguments and counter arguments would be futile because, in an affidavit submitted to the RERC by the discoms, months before the Ashok Gehlot led Congress government in Rajasthan demitted office in December 2013, the discoms admitted that it did agree that a change in law had indeed taken place!

“This was a suicidal admission,” said Singh. “This was quoted everywhere – from the RERC to the APTEL to the Supreme Court as well – and it has been exploited to the hilt.”

He added: “There was a swing of opinion or attitude somewhere mid-way in the case. It was like a friendly match and the government in Rajasthan appeared to be inclined to favour Adani Power and did not take a hard line against giving them any kind of concession. But somehow later on, they seem to have woken up and decided to contest it tooth and nail. But that changeover came too late. And by then they had already scored a number of self-goals.”

(Mis-)Using Energy Watchdog Judgment

With the admission by the discoms, the judgment draws on the so-called “Energy Watchdog” judgment of the Supreme Court of April 2017. In that case, also a demand for compensatory tariffs by an Adani-owned power plant – its Mundra power plant which supplies power to Gujarat, and several other states – the Supreme Court had ruled that it was entitled to limited compensation on account of change in law, because it already had a CSA in place with CIL, which was modified by the amended NCDP of 2013.

However, in the same judgment issued by a bench comprising Justices Rohinton Nariman and Pinaki Chandra Ghosh, the Supreme Court had also elucidated a fundamental principle: “The price payable for the supply of coal is entirely for the person who sets up the power plant to is clear that an unexpected rise in the price of coal will not absolve the generating companies from performing their part of the contract for the very good reason that when they submitted their bids, this was a risk they knowingly took...the risk of supplying electricity at the tariff indicated was upon the generating company.”

The present judgment draws from the Energy Watchdog judgment in its understanding of change in law, while appearing to ignore the above principle. Despite not having been a CSA in place, the verdict by the Justice Arun Mishra-led bench held that the MoU between the Government of Rajasthan and APRL was sufficient to fulfil the basis for holding that APRL had suffered a change in law.

Over Invoicing of Coal?

A Third Issue, that had been raised by the AIPEF, was that of allegations of over-invoicing of coal imported from Indonesia, that have been raised against 40 Indian companies including companies in the Adani group by the Directorate of Revenue Intelligence (DRI), the investigation arm of India’s customs authorities under the Ministry of Finance.

The DRI has alleged that companies in the Adani group, among other private and public sector companies, had artificially inflated the prices of imported coal by manipulating invoices and valuations. Additionally, it had alleged, the illicit gains thus made were being parked in offshore  tax haven jurisdictions.

Specifically with regard to its investigations into the Adani group, the DRI is in a legal battle at the Supreme Court over Adani’s attempts to block its investigation. In 2018, the DRI had sent Letters Rogatory to Singapore, Hong Kong, Switzerland and the United Arab Emirates seeking the support of the courts in those countries to obtain banking and other documents it required for its investigation into the Adani group’s import of coal from Indonesia. The Adani group sought to quash these letters rogatory, first in the courts in Singapore, and having failed there, at the Bombay High Court. The Bombay High Court had in 2019 ruled in Adani’s favour and quashed the letters rogatory, which the DRI is currently appealing before the Supreme Court. In January of this year, the Supreme Court stayed the High Court’s order as it heard the case.

The Justice Arun Mishra-led bench refused to entertain the issue. Noting that the AIPEF’s counsel, Prashant Bhushan, had sought to bring the matter to the court’s attention, the verdict reads “we are of the opinion that until and unless there is a finding recorded by the competent court as to invoicing, the submission cannot be accepted.”

Impact of Judgement

The one count on which the Supreme Court’s verdict has given a minor relief to the discoms is on the interest rate payable on the compensatory tariffs due, calculated back to the beginning of the supply of electricity from the plant in 2013. While the Adani group company had sought an interest rate of 2% more than the SABR interest rate (Stochastic Alpha Beta Rho, a measure used in banking and finance), the Supreme Court’s verdict has capped it at 9%.

AIPEF’s Singh explained what this meant in quantitative terms: “As a result of this judgment, the discoms will face an immediate financial burden. The original claim which was allowed by the APTEL – 50% of which was paid after an interim order – was around Rs 5,130 crore. On that, Adani Power Rajasthan has claimed interest of around Rs 3,000 crore. The Supreme Court's judgment has not modified the original claim at all, but has said that the interest rate can be slightly reduced. So the interest would be marginally reduced. In the judgment, it has been said it should not exceed 9% while Adani had sought an interest rate 2% higher than the SABR rate. In total, the amount would still approach Rs 8,000 crore.”

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