Editorial 1 / Bridge too far
Editorial 2 / After life
Settlements in the open
Fifth Column / Can India and pakistan talk then?
Right conduct in the deep seas
Letters to the editor

The forthcoming visit to India of Mr Li Peng, chairman of China�s National People�s Congress, should help to give a significant boost to bilateral relations. The Chinese leader will be the highest official to visit New Delhi since the dip in Sino-Indian relations in May 1998, after India conducted a series of nuclear tests. Relations continued to be frosty for nearly a year until Mr Jaswant Singh, the minister for external affairs, visited China in 1999. Since then there has been the successful state visit of the Indian president, K.R. Narayanan this May, and the Chinese foreign minister, Mr Tang Jianxuan made an equally important visit to India in July this year. It is clear that both India and China have introspected and come to a common understanding that it is vital to forge stronger ties. The most significant factor accelerating bilateral ties is the desire for a multipolar world order. Both New Delhi and Beijing are deeply apprehensive about the manner in which American foreign policy is increasingly taking recourse to unilateral actions to deal with situations that are thought to be threatening international peace and security. For instance, China and India were particularly incensed by the air strikes carried out by the North Atlantic Treaty Organization, under the leadership of the United States, in former Yugoslavia. Similarly, both China and India face a common threat from international terrorism, especially of the kind being spread by radical Islamic groups that derive ideological and material support from forces in Pakistan and Afghanistan.

Yet, the warming of bilateral ties cannot hide the differences over a number of critical issues and should not prevent a frank dialogue on these. New Delhi�s most serious concern is with Beijing�s disturbing record of transfer of nuclear and missile technology to Pakistan. There is growing evidence that despite routine assurances by China, cooperation between Beijing and Islamabad on the nuclear and missile front has been growing in clear violation of Chinese acceptance of the guidelines of the missile technology control regime and its legal commitment to the nuclear nonproliferation treaty. While Beijing has only recently assured the United States that nuclear and missile cooperation with Islamabad has stopped, it is vital that New Delhi too secures a clear commitment on this score.

India also wants a clear delineation of the line of actual control on the India-China border. This will not mean a settlement of the border dispute, which admittedly is more complex, but merely an agreement on actual positions occupied by the two sides on the ground. While the Chinese foreign minister, Mr Jiaxuan, during his last visit, assured India that the �process would be accelerated� to clarify the line of actual control, there was no commitment. The progress is being limited to the middle sector, rather than in the really contentious eastern and, especially, the western sector, where the bulk of the problems occur. China needs to be made aware of Indian sensitivities and concerns on these issues. New Delhi also wants a recognition and acceptance of India�s status as a state with nuclear weapons. However, China is the only nuclear weapons state that continues to adopt a hard line towards India�s nuclear policy. While the other nuclear states have, more or less, come to terms with India�s new nuclear status, following the nuclear tests of 1998, it is Beijing alone that keeps harping on the United Nations security council resolution 1172. A healthier and firmer Sino-Indian relationship, it is clear, can only be built if both countries do not shy away from addressing the issues that have derailed ties, time and again.


There is life after death. The rise in importance of the so called third front would tend to demonstrate the truth of this otherwise unscientific claim. The decline of the Congress and the non-acceptability of the Bharatiya Janata Party among secular-minded people led to a coming together of the non-BJP and non-Congress parties under the umbrella of a common progra- mme. These parties found an obvious leader in Mr Jyoti Basu, who was then the chief minister of West Bengal but had an all-India image. But Mr Basu�s party refused to join in 1996 and again in 1997 a possible third front government. The BJP�s accession to power seemed to spell the demise of all third front aspirations. The retirement of Mr Basu from the chief ministership of West Bengal has, however, provided a fillip to the third front. There is a lot of visible activity and rallying around Mr Basu. It is significant that on his retirement Mr Basu had said he would devote his attentions to reviving the third front. He is obviously making things happen if meetings and pronouncements are good indicators of aspirations. Not only is Mr Basu free from the burdens of the chief ministership, his party is now willing, in terms of its own programme, to join a coalition government.

There may be more to all this than Mr Basu�s personality and his new-found role. Political pundits, looking into the political future seem to be in agreement that as things stand, the electoral performance of the Congress will be no better than last time. The BJP�s position, according to the conventional wisdom, will also be drastically weakened especially in Bihar and Uttar Pradesh, India�s two most populous states. The gainers from this will be those parties that constitute the third front. The timing to revive the third front is thus not without significance. It has behind it a particular reading of political trends. Mr Basu�s efforts should not be ridiculed. There may not be life after death, there is definitely one after retirement.


Some people equate the lok adalat to conciliation or negotiation; yet others compare it with mediation and even arbitration. Those who find it different from all these call it �peoples� court�. Literally translated, it can be understood as a court (dispute or grievance settlement forum) involving the people who are directly or indirectly affected by the dispute or grievance. It is certainly different from adjudication. Participation, accommodation, fairness, speed, transparency, practically no cost, voluntariness, good neighbourliness, lack of rancour and ill will between parties and efficiency are all distinctive features of this unique Indian institution rooted in India�s history and culture.

The British occupation of India and the anglicization of the Indian legal system practically put this popular institution into disuse in many parts of India and substituted it with the adversarial litigation based on English common law principles. Nevertheless, in private disputes in many of India�s 500,000 villages, some variation of the �peoples� court� continued to exist, imparting justice to millions of poor who had no access to the formal courts.

Of course, powerful groups in the community abused the institution, bringing it into disrepute in some places. It happened with the formal court system as well. Today, if the lok adalat has once again become popular among litigants, and the government considered it compelling to give it a statutory basis (the Legal Services Authority Act, 1987), it is because of its deep roots in Indian legal history and its close affiliation to the culture and perception of justice in the Indian ethos.

While giving statutory recognition to the institution of lok adalat in the Indian judicial administration, the Legal Services Authorities Act, 1987, has preserved its flexibility and adaptability to different situations in the complex structure of Indian society. It can be organized at any level � Central, state, district and taluka. Committees or authorities in charge of the Supreme Court, state, district or taluka legal services may organize it at such intervals and places and for such areas as they think fit. The number, qualifications and experience of members of lok adalat, other than judicial officers, are to be prescribed by the state government according to rules. Lok adalats have been conferred jurisdiction to settle civil, criminal or revenue disputes in the courts and tribunals in the area for which the lok adalat is organized.

Ordinarily, lok adalats are to consist of three members � a sitting or retired judicial officer, a member of the legal profession (advocate, law officer, law teacher) and a social worker, preferably a woman. The act and the regulations generally require the secretary of the legal services authority or committee to associate students, social activists and voluntary organizations in the community for facilitating the successful conduct of lok adalats.

Pending cases are referred to lok adalats either when both parties agree for such reference or when one of the parties desire it and the court also is satisfied with the prospects of its settlement or when the court itself desires its reference. Of course, in the second and third situations above, the court must give before such reference reasonable opportunity to the parties involved to present their points of view. Besides such pending matters, a lok adalat can take up issues referred to it in any matter if an application is received from any party to a dispute.

Lok adalats are intended to arrive at compromises and settlements. In doing so, it has powers of a civil court in summoning and examining witnesses, discovery of documents, reception of evidence on affidavits and requisitioning of public records. Further, it is open to lok adalats to specify its own procedure. It is considered judicial proceedings. It is to be guided only by the principles of justice, equity and fair play as understood in common law and constitutional law.

Whenever a settlement is reached, an award is made which is deemed to be a decree of a civil court. It is to be written down in simple and clear terms. No appeal is permissible against such awards which are deemed final. If no compromise is reached, it goes back to the same court for regular trial. If settled, the petitioner gets back the court fees paid for registering the plaint.

The methods employed by lok adalat members can be as varied and flexible as the members, and to some extent, the parties� desire. The object being settlement, parties desire flexibility in procedures. Members ensure fairness and equality so that the weaker party is not compelled to enter into unjust compromises. Lawyers can represent their clients with the permission of lok adalats, though advocacy, as in court, is not encouraged.

The venue of lok adalats can vary between the courtroom (on holidays) and the offices of panchayats, schools and so on. The atmosphere resembles more of a village festival than that of an awe inspiring court room. It is in the nature of a mobile court where the active players are the parties themselves, assisted by the lok adalat members rather than the lawyers and judges. Unlike in litigation, there are no victors and vanquished in lok adalat proceedings; both parties are victors in some sense.

Traditionally, legal aid is conceived of as representation by counsel in court proceedings. The Constitution guarantees the right to counsel of one�s choice [Article 22(I)] in case of arrest. Equal justice to all and free legal aid to those who are unable to secure equal justice because of economic or other disabilities are constitutional obligations of the state (Article 39A). The Supreme Court, in a series of judgments, has read legal aid as part of the guaranteed right of personal liberty (Article 21: Sukh Das, AIR 1986 S.C. 991). Thus perceived, legal aid, as legal representation in judicial proceedings, is part of Indian human rights law and is an enforceable constitutional right.

However, the Indian concept of �legal aid� is much wider in scope and application. All types of legal services, including public legal education (legal awareness), legal advice and counselling, public interest litigation, legal clinics in law- teaching institutions, lok adalats and settlements through similar alternate dispute resolution systems in the community, legal mobilization for social justice, para-legal and preventive legal services, law reform initiatives intended to help the poor are all brought within the scope of legal aid.

Several expert committees on legal aid appointed by the Central government in the Seventies (Justice Krishna Iyer committee (1973) on processual justice to the people and the committee for implementing legal aid schemes) popularized this wider understanding to legal aid, taking into consideration the socioeconomic condition of the people of India and the inability of the formal legal system to penetrate the countryside where poor people live. They canvassed for a proactive, people-friendly scheme of legal aid for providing meaningful access to justice.

Many people saw the lok adalat as a measure to divert litigation from formal courts and tribunals and a convenient strategy to reduce the mounting arrears of cases in the formal court system. The insurance companies that found the compensation amounts settled through lok adalats in motor accident cases economically and administratively convenient, started opting for the lok adalat route in preference to the tribunals.

Other cases seeking monetary compensation for land acquisition, administrative excesses and so on also found their way to lok adalats. A lok adalat-type mechanism is being invoked currently by government departments and public sector agencies to settle pension and provident fund claims, bank debts, consumer grievances and similar small claims of a civil or revenue nature. Of late, matrimonial disputes and minor criminal cases have entered the lok adalat forum in a big way, resulting in the establishment of what are called �continuous or permanent� lok adalats in many places.

Despite its popularity and success in the delivery of justice expeditiously and at nominal costs, there has not been any systematic study of the lok adalat in terms of its functioning and performance. What is available from official statistics is the total number of lok adalats held during a given period and the amount of compensation or other reliefs awarded. If the justice system is to be reformed, taking lessons from the rich and varied experiences of lok adalat, we need many studies to look at the mechanics and dynamics of the experiment in the context of due process and the right to equal justice under law.

There is some criticism against the wisdom of allowing the lok adalat procedure to be open and flexible. Some others condemn it as �second class� justice, good only for the poor and illiterate masses. A large section of the functionaries of the formal legal system seems to have either rejected the lok adalats or is not reconciled to having them as part of the system of administration of justice despite its statutory status. The lack of close monitoring and scientific evaluation of the institution has compounded the fears and the criticism, keeping the lok adalat as an ad hoc arrangement, extraneous to the justice delivery system of the state.

The author is vice-chancellor, West Bengal University of Juridical Sciences, Calcutta    

The ceasefire in Jammu and Kashmir is on, and the authorities say that gradually, peace is returning to the valley. Pakistan�s response has also been positive. It has ordered a ceasefire along the line of control.

The Indian prime minister, Atal Behari Vajpayee, has offered to extend the period of the ceasefire further, if Pakistan pledges not to encourage cross-border infiltration of militants. In fact, he claims that if Pakistan ensures a definite end to militancy in the valley, resumption of talks between the two countries on all disputes including Kashmir could take place. Although Pakistan is not in full control of all the insurgent groups, it can still tighten the vigilance on its side of the LoC, and possibly, the two countries can accomplish a joint monitoring of the situation.

Track II diplomacy, in which the two players, R.K. Mishra and Niaz Naik, discussed several formulations, could not bring forth any suggestions that could be accepted by both countries. Nor has India acceded to the demands of the Hurriyat leaders, supported by Pakistan, that the talks India was willing to have with it should include Pakistan. Islamabad, meanwhile, has said that the Hurriyat can have bilateral talks with India and then that could be followed by similar talks with Islamabad.

Careful first step

In fact, the Indian position is that the bilateral discussions with Pakistan would be held within the parameters set out in the Simla and Lahore agreements. The essential point is that in neither of the agreements do the people of Jammu and Kashmir find any mention. But people will certainly have to be taken into consideration; otherwise any settlement would be unstable. Moreover, while New Delhi has affirmed its willingness to listen to and discuss all forms of public opinion in the state, Islamabad has made no such offer.

One option for both countries would be the holding of free and fair elections on either side of the LoC. Each could invite observers from the other country to reduce suspicions about rigging and so on. However, during the track II discussions, Naik rejected this offer from Mishra., saying that it would be less than holding a plebiscite. Yet, since the Simla and Lahore agreements have not referred to plebiscite at all, it will only be appropriate that this proposition is given a thought. If this has to happen, the number of security forces members on either side of the LoC has to come down substantially.

After the elections, the armies could also be sent back to their barracks. The next logical step would then be to reduce the number of troops on both sides of the international border. These steps would be tremendous confidence-building measures. They would also serve in making peace a permanent condition between the two countries.

Give peace a chance

This step by step approach might have greater chances of succeeding than the eventful and historic journey of the Indian prime minister to Lahore and the warm welcome accorded to him by his Pakistani counterpart. This would enable the identification of the real disputes in the region and a positive movement in finding solutions to them. But this can only happen if the leaders of the two countries are determined to pursue the process involving these peaceful steps.

This will not be easy. Nor can one assume that those international players, which have a long term strategic interest in keeping the south Asian cauldron boiling, will be kept quiet. The nexus of arms-dealers and drug traffickers, those who profit from intra-regional tensions, will try to thwart any effort at building bridges. It is up to the leaders of these countries to meet these challenges.

Groups like the Pakistan India People�s Forum of Peace and Solidarity, the South Asian Fraternity, the Neemrana initiative and so on, which have organized dialogues between retired army leaders of the two countries, their media representatives, have arranged for exchange of women leaders and the visit of literary figures and industrialists, have an even more important role to play. They should act with renewed gusto.

As far as the terms for a final settlement of the dispute are concerned, no one can even venture to extend any suggestions. Only a step by step process can be advocated under these circumstances. And the nature of this process has to evolve with the times.


The question of whether China will accept the plan of the Association of South East Asian Nations for a code of conduct in the South China Sea has acquired a special significance in talks between China and the member countries of the ASEAN. Kavi Changkittavorn, executive director of The Nation, has observed, �After years of being viewed with suspicion over disputed South China claims, Beijing has skillfully managed and contained ASEAN�s concerns over the disputed maritime territories. It will surprise no one if eventually China agrees to support the regional code of conduct with some amendments.�

Indeed, China now supports ASEAN�s plan for a code of conduct in the South China Sea and has been cooperating with the regional grouping in this matter. The changes in China�s stance on the critical and thorny issue would lead one to believe that China�s endorsement of the plan would soon be followed by actual acceptance of the code itself. The question is when and how soon.

Conflicting claims to Spratly Islands in the South China Sea represent the most salient security issue in relations between China and the ASEAN. Dino Patti Djalal of Indonesia�s ministry of foreign affairs who is also a member of the organizing committee of the South China Sea workshops has pointed out, �There are many ways to judge China�s regional intentions, but in southeast Asia it is now increasingly measured in terms of its overtures in the South China Sea.�

In addition to an apparent Chinese impatience to begin oil exploration in territorial waters also claimed by Vietnam, China�s military activities and growing interest in developing naval capability in the South China Sea have aroused concern throughout the region. In March 1988, Chinese forces overwhelmed Vietnamese units to take possession of several of the Spratly Islands. And in early 1995, the Philippines discovered that China extended its presence in the Spratlys beyond the islets it fights over with Vietnam.

Manila�s reaction was strong because the Chinese installations lay only 160 kms from the Palawan Island which belongs to the Philippines. Discussions with Beijing following this incident, backed by a strong ASEAN declaration in support of Manila�s appeal to the Chinese to stop the occupation of additional islets, led for the first time to a more conciliatory Chinese stance.

Southeast Asia�s strategy with China has been to bring it into multilateral groupings like the Asian Regional Forum. But on the South China Sea question Beijing had previously adopted a hardline stand claiming indisputable sovereignty over the disputed Spratly Islands. China opposed any attempt to internationalize the issue and opted to deal with the ASEAN countries one-to-one, instead of submitting itself to a multilateral arrangement.

Renewing China�s hardline position, a foreign ministry spokesman said in 1995 that ARF had no business to discuss the Spratly Islands. China also refused to sign ASEAN�s Manila declaration of 1992 which called for a peaceful solution of the issue.

The Mischief Reef incident of 1995 marked the beginning of a gradual shift in China�s policy. The 1997 dialogue between China and the ASEAN at Huangshan in China brought about a significant change in China�s attitude. Beijing now agreed for the first time to talk about ASEAN members� claims in the South China Sea. China did not want to give up its sovereign claim, but tried to resolve the issue through diplomacy. China indicated that it wanted to avoid further conflict with southeast Asia over the Spratly Islands dispute.

In 1999, in a further effort to reassure the region, the Chinese prime minister, Zhu Rongji, told ASEAN heads of government that China would not ever seek hegemony in the region. �China will resolve its differences and disputes with ASEAN countries through friendly consultation and peaceful means, � he said.

Notwithstanding the changes in its policy, China was opposed to ASEAN�s plan for a code of conduct in the South China Sea which was intended to prevent future hostilities over rival claims and encourage hostilities over rival claims and encourage peaceful resolution of the dispute by barring the claimants from further expanding their presence in the area. Hopes that a draft code would be signed at the last ASEAN summit held in late 1999 in Manila were dashed by irreconcilable differences among the main claimants, namely, China, Vietnam and Malaysia.

The Chinese, nevertheless, agreed to freeze any further moves to create a presence on the Spratlys and to discuss the matter in multilateral fora. It was also significant that China now decided to work with the ASEAN toward a code of conduct. With the objective of having friendly relations with the ASEAN countries, China decided to make modifications and adjustments in its policy.

China realized it was necessary to do so to remove the misgivings in the minds of ASEAN leaders about its intentions.The meeting held in Kuala Lumpur in the middle of this year succeeded in identifying �key elements� toward the process of jointly drafting such a code. And then in August senior ASEAN and Chinese officials met in China�s northeastern city of Dalian to finalize a draft code of conduct to sort out differences over the wording of the document in time for the Zhu Rongji�s summit meeting with ASEAN leaders.

Beijing is expected to ask ASEAN to put aside differences and find avenues of cooperation in various areas, including environmental protection, scientific research, search-and-rescue operations, and combating transnational crimes such as piracy and drug-trafficking. Both China and ASEAN now seem determined to bury the hatchet and forge ahead towards the goal of a further strengthening of ties based on mutual understanding and trust.

Thus, in spite of being hypersensitive to matters pertaining to sovereignty, China seems willing to soften its stance to the extent of accepting ASEAN�s initiative for a code of conduct for the South China Sea. Sacrificing the right to be assertive in exercising control over the disputed area may appear too heavy a price to pay. But China seems prepared to make the sacrifice for the long term objective of maintaining close ties with ASEAN countries. By accepting the code of conduct, China will undoubtedly strike a good bargain. Such a decision will further enhance and buttress China�s credibility in the eyes of countries in and out of the region.

It will thus serve as a catalyst to broaden China�s influence in the region. Moreover, even as China retreats from its rigid position, it can take solace from the fact that acceptance of the code of conduct does not mean that it is relinquishing its claims over the area.



They�re off key

dam has received a fillip, from none other than the president of India (�President makes a splash�, Dec 10). K.R. Narayanan has openly sided with the cause of the Narmada Bachao Andolan, criticizing the development brigade for being insensitive to the need for protecting the environment. Narayanan�s statement may be the cause of great rejoicing within the Narmada Bachao camps, but it puts the Centre in an uncomfortable situation. Narayanan is, after all, the constitutional head of the nation, while the prime minister is its elected head. Narayanan�s comment amounts to the state speaking in two voices on the same issue, since the Centre has already declared that the construction of the dam will take place. The president has, in the past, rebuked the cabinet and the prime minister in Parliament for not discharging their duties properly. But when he feels it necessary to do so in a public gathering, the implications cannot be rosy for the democracy.
Yours faithfully,
Sukanta Sanyal, Calcutta

Shadow on the pitch

Sir � The decision taken by the disciplinary committee of the Board of Control for Cricket in India, to impose life bans on Mohammed Azharuddin and Ajay Sharma and five year bans on Ajay Jadeja and Manoj Prabhakar, is undoubtedly not enough considering the scale of the crime committed (�Board stirs to sweep cricket clean�, Dec 6). But at last, a conclusion has been drawn. This should not be the end of the road for the BCCI, rather the beginning of serious thinking and self-examination.

If the BCCI, the highest authority of Indian cricket, had been responsible and careful in the past, many of the unfortunate series of happenings would not have happened. The BCCI did nothing to check the rot in time. Also, the board�s differences with the findings of the Central Bureau of Investigation stretched out the investigation process. And yet the CBI never questioned the BCCI�s integrity. Last, despite being an autonomous body empowered with enough authority, the BCCI has always succumbed to pressure from outside and within.

The BCCI should realize that the interests of the cricket team are more important than the narrow interests of the board�s members.

Yours faithfully,
Rajesh Kumar Sharma, Kankinara

Sir � In the BCCI�s verdict, some suspects have been punished and some acquitted. Kapil Dev has been cleared from all the charges made against him. This is interesting, especially since both Ajit Wadekar and J.Y. Lele had accused Kapil Dev of manipulating results and adopting unfair means in the interviews secretly recorded by Manoj Prabhakar. The BCCI should clarify why it felt Kapil Dev�s name did not need to be mentioned at all in the verdict. If Lele and Wadekar have withdrawn their allegations secretly, then the reasons behind that need to be investigated as well.

Yours faithfully,
Arindam Banerjee, Jamshedpur

Sir � The imam of Fatehpuri Masjid has alleged that the attitude of the BCCI and the government of India towards Mohammed Azharuddin, the former Indian captain, betrays communal bias as Azharuddin belongs to a minority community (�Imam questions Azhar penalty�, Dec 7). And Allan Border, former captain of the Australian cricket team, has said that Azhar should consider himself lucky for getting away with a very light punishment (�Azhar lucky not to be in jail: Allan Border�, Dec 8). The imam should not forget that his role is that of a religious head, which entails being impartial and unbiased.

Yours faithfully,
A.S. Dua, via email

Sir � After much vacillation, the BCCI has dealt out punishments to some of the cricketers involved in matchfixing. The president of the BCCI, A.C. Muthiah, has done well to withstand the pressures on him and the board and taken the correct stand on the issue. Hopefully, this will be a deterrent for cricketers with immoral inclinations and will go a long way in cleansing the game.

Yours faithfully,
Sanjit Phookun, Nagaona, Assam

Quite a lot to bank on

Sir � It used to be a familiar picture of Indian ministers perpetually seeking loans from World Bank. Cartoons making fun of this were not hard to come by. The situation seems to have changed, mainly owing to the swadeshi ideology of the Bharatiya Janata Party. The most recent example of this reversal is the refusal of the government of India to accept, in July 2000, $ 250 million, the undisbursed amount of an original loan of $ 530 million, offered by the World Bank for the coal mines controlled by Coal India Limited, a public sector unit.

As in several other cases, the loan has strings attached, in the form of unacceptable conditions. It wanted CIL to close down some of its units and demanded a downsizing of the workforce. But CIL is not in such dire straits yet: it is a profit-making unit. It can generate the needed resources on its own. More than six and a half lakh people work for it.

The World Bank is far from being a charitable fund. It cannot make profits unless it gives loans on interest to the customers. It can only augur well for India that it is now in a position to turn down loans when the terms are not satisfactory

Yours faithfully,
V.A. Gopala, Bangalore

Sir � James D. Wolfensohn, the president of the World Bank, on his visit to India in September, had expressed concern over India�s delay in utilizing World Bank loans. But most often, such delays have little to do with slow implementation of the projects, and are mostly caused by the difficulty in getting together the required infrastructure.

World Bank loans are usually spent on projects which are too specialized to be implemented through a single undertaking. They are manned by multi-disciplinary functionaries drawn from more than one organization. The issues of organization structure, functioning, processes and financial procedures need to be settled. Considerable time is spent in such mobilization. This period sometimes runs into one and a half years.

To be fair, this period should be discounted while evaluating project performance.

Yours faithfully,
Ravi Kant, Washington, US

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