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 THE GST COUNCIL- A TRANSFORMATIVE INSTITUTION IN CRISIS

THE CONTEXT: The Goods and Services Tax Council is the backbone of the GST system. Of late, this sui generis federal institution has been facing several challenges impacting its working and output. The several States have voiced concerns about the lack of proper deliberations, the high handedness of the Centre, excessive delegation to bureaucracy etc. Added to this, there are questions being raised on the Constitutional status of the decisions of the GST Council. Against this backdrop, this writes up comprehensively examines the various issues the GST Council is facing and also analyses the probable solutions for improving its working.

BACK TO BASICS: UNDERSTANDING THE GST COUNCIL

ABOUT GST COUNCIL ·         The Constitution (One Hundred and First Amendment) Act, 2016 inserted Art 279A into the constitution which heralded a new regime of cooperative fiscal federalism by establishing the GST Council.

·          The GST Council is a joint forum of the Centre and the States which will make recommendations to the Union and the States on important issues related to GST.

COMPOSITION ·         Union Finance Minister – Chairperson. the Union Minister of State, in-charge of Revenue of finance – Member. the Minister In-charge of finance or taxation or any other Minister nominated by each State Government – Members.

·         The GST Council Secretariat, New Delhi shall be manned by officers taken on deputation from both the Central and State Governments.

FUNCTIONS OF THE GST COUNCIL ·         Make recommendations to the Union and the States on issues related to GST such as:

  • ØThe goods and services that may be subjected to or exempted from GST,
  • Model GST Laws, principles that govern Place of Supply, threshold limits,
  • GST rates including the floor rates with bands, special rates for raising additional resources during natural calamities/disasters,
  • Special provisions for certain States, etc.

·         The GST Council will also recommend the date on which GST will be levied on petroleum crude, high-speed diesel, petrol, natural gas and aviation turbine fuel.

DECISION MAKING PROCEDURE ·         The quorum of GST Council is 50% of total members

·         Decision is taken by 3/4th majority (75%), wherein the Central Government would have the weightage of 1/3rd of the total vote cast.

·         The State Governments would have a weightage of 2/3rd of the total votes cast.

·         The decisions are taken mostly on the basis of consensus but the Council voted on the issue of tax on the lottery in a meeting held in 2020.

THE GST COUNCIL AND THE MAKING OF INDIAN COOPERATIVE FEDERALISM

The adoption of GST and the creation of the GST Council itself was a major shift from the past in terms of cooperative and competitive federalism. The working of the GST Council also has been transformative in terms of its number of meetings (more than 43 times), review of GST rates and efforts to seek cooperation with states for the effective implementation of GST. In fact, the work of the GST Council was considered as more successful than that of the Inter-State Council and National Development Council. However, the Covid-19 pandemic and the emerging implementation challenges of GST have also posed challenges for the GST Council.

THE FACTORS AFFECTING THE FUNCTIONS OF THE GST COUNCIL

COMPENSATION TO STATES ·         As per the GST (Compensation to States) Act 2017, the Central Government has to compensate the States for any revenue loss arising out of GST.

·          Despite this legal mandate, the Centre largely failed to compensate the States on time in 2019-20 and also during the pandemic period.

·         Although an agreement was reached later, the fraternal feeling that dominated the Council proceedings have suffered serious damages.

·         Also, the modalities of unpaid compensation worth 63000 crores have not been settled yet which is likely to create further tension and conflicts in Council meetings.

LONG GAP BETWEEN MEETINGS ·         The Council is expected to meet every quarter but during the Covid 19 period, the meetings became irregular. For instance, the recent meeting on May 28, 2021, was held after a gap of seven months although the States have been requesting the Centre to schedule early meetings.

·         The gaps in holding the meetings and consequent delay in taking important decisions impact the entire GST system (Recall, debate on GST on life-saving medical drugs and devices during Covid second wave)

MOUNTING CRITICISM FROM STATES. ·         Tamil Nadu Finance Minister has lamented that the GST system is “badly designed and executed and repudiated the practice of every State having equal vote despite the difference in size and population.

·         West Bengal’s Finance Minister has argued that the GST Council’s meetings have become “acrimonious, vexing, and almost toxic with the erosion of mutual trust that held fast between the State and the Centre since the inception of the GST Council”.

·         Kerala’s Finance Minister has claimed that the GST is “antithetical to federalism to begin with”.

POLITICISATION OF MEETINGS ·         The deliberations in the Council meetings have seen the States and the Centre taking positions based on political party lines. The BJP and non-BJP groupings have started to impact the cordial and cooperative atmosphere in the meetings.

·         States even alleged that during virtual meetings, their microphones were switched off which prevented them from voicing their concerns.

EXCESSIVE DELEGATION ·         The GST Implementation Committee comprised of civil servants implements the decisions of the Council and also takes routine and procedural decisions in the period between the Council meetings.

·          The States have pointed out that the GIC has been taking substantive decisions without taking approval from the Council.

·         Bureaucratic decisions—ranging from restricting input tax credits to cancellation of GST registration—set the dangerous precedent of delegating excessive powers to bureaucrats and States like Punjab has asserted that it will not incorporate such substantive legal changes in State legislation in future unless cleared by the Council.

GST DISPUTE RESOLUTION MECHANISM ·         Art 279A (11) provides that The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute—

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more other States on the other side; or

(c) Between two or more States, arising out of the recommendations of the Council or its implementation.

·         Despite four years of GST, the adjudicatory mechanism has not been established which means future disputes can disrupt the GST system itself.

UNRESOLVED CONSTITUTIONAL ISSUE ·         Cooperative federalism implies a reasonable degree of autonomy to the participants. Each party can bargain about the terms of cooperation and, if driven too hard, decline to cooperate.

·         Voluntary participation is the core feature of cooperation in a federal polity which is at odds with the GST Council’s “majority rules” decision-making process. As a result, there is a lack of certainty regarding the status of the GST Council’s decisions (Read Ahead)

NATURE OF DECISIONS OF THE GST COUNCIL: RECIPE FOR CONFLICTS?

LACK OF CLARITY OF RECOMMENDATIONS POSSIBLE REASON

NUMBER 1

POSSIBLE REASON

NUMBER 2

POSSIBLE REASON

NUMBER 3

·         The GST Council is mandated to make “recommendations” on all matters to GST to the States and centres.

·         But nowhere in the Constitution is it mentioned whether the recommendations are binding on the Centre or the States.

·        If one or more States decide to opt-out of GST or refuse to follow the recommendations, it will lead to a constitutional crisis.

·   Treating the Council’s decisions as binding would be unconstitutional as it would be violating the legislative supremacy of both the Parliament and the State Legislatures.

·   Art 246A provides for concurrent taxation power to the Parliament and State legislatures relating to goods and services under GST.

 

·  The Supreme Court of India has long held that federalism is part of the Basic Structure of the Constitution.

·         Application of Basic Structure Test to any such amendment that violates the fiscal autonomy of the States may not stand the scrutiny of the courts under the Basic Structure doctrine.

·         There may be a lack of political will to make the GST Council’s decisions mandatory which would impact

the Constitutional right (however limited) of States to determine their own indirect tax policy

·  The States may have adopted a wait-and-watch approach. If the GST system is successful and their revenue targets are met, well and good. Instead, they may opt-out and revert to the old system.

MAKING THE DECISION BINDING: PROBABLE SOLUTIONS AND THEIR IMPLICATIONS

SERIAL NO: SOLUTIONS IMPLICATIONS
1 ·         A Constitutional Amendment clarifying that the “recommendations” of the GST Council are binding on the Centre and the States.

 

·         This would end the ambiguity once and for all but would be tough to achieve for lack of political will.

·          States may not agree as the Amendment would make it obligatory for them to accept the decision of a majority, even in situations where they register their dissent. As recent events show, the States are yet to fully trust the GST system.

2 ·         Seeking court intervention to interpret the existing GST-related legislative provisions. The wording of certain provisions suggests that the GST Council’s decisions, despite being termed “recommendations,” are indeed binding.

·          For instance, the language of section 9(1) of the CGST Act 2017 suggests that the Centre can impose tax only at rates that are recommended by the GST Council. The language of the States’ GST statutes is almost identical to the Central Law.

·         A clarification from the Supreme Court on the real meaning and effect of the GST Council’s “recommendations” would provide clarity.

·         Under the doctrine of purposive interpretation, a court is supposed to attach to a provision the meaning that serves the “purpose” behind it.

·         This may or may not pass the Supreme Court of India’s “Basic Structure Test,” on the ground that federalism may be affected by undermining the legislative authority of States

3 ·         To create a dispute resolution mechanism for the GST Council that is similar to the existing Inter-State Water Disputes tribunals(ISWT)

·         The ISWT are the only quasi-judicial bodies in India that have original jurisdiction to decide inter-State disputes, which would otherwise fall within the exclusive domain of the Supreme Court of India.

 

·         As mentioned above, Article 279(A) (11) requires the GST Council to establish a mechanism to adjudicate Centre-State and inter-State disputes.

·         Making the decisions of such a dispute resolution mechanism final and binding could be an indirect way of making the GST Council’s decisions binding.

·         This solution might pass judicial scrutiny, unlike the other two, primarily because of the water disputes tribunals’ precedent.

4 ·         Improve the existing system by promoting voluntary compliance by States through incentivisation.

·         For instance, the GST Council is empowered to recommend a special rate for a specified period to raise additional resources during any natural calamity or disaster.

 

·         The Council exercised this power in January 2019, when it approved the State of Kerala’s proposal to levy a 1 per cent cess, following a devastating flood in August 2018.

·         This has generated goodwill among the constituents of the federal polity. The GST Council has many such tools to address the economic exigencies of the federal units and its use in an apolitical manner can enable smooth functioning of the GST Council.

REFORMING THE GST COUNCIL: THE WAY AHEAD

NOTION OF BINDING RECOMMENDATIONS ·         As outlined above, bringing clarity in respect of the “recommendations” must be the immediate priority of the Council. Among, the possible solutions listed above, the Fourth One seems to be more apt.

·         Fiscal autonomy is the essence of all federations; federal units may simply walk away in the absence of a binding mechanism. In Canada, for instance, British Columbia pulled out of Canada’s harmonised sales tax (HST) system barely three years after agreeing to participate.

DE POLITICISING THE COUNCIL ·         Both the Centre and States should adopt a more conciliatory attitude in deliberating critical issues in the Council and outside.

·          The Centre being the more mature and powerful partner need to show more accommodation to States concerns. For instance, its decision to directly borrow from the market (although belatedly) and channelize the funds to the States in lieu of GST revenue shortfall is well appreciated by States.

·         The dichotomy based on political party grouping must be ended and rather an issue-based position must be taken by all partners.

ISSUE OF COMPENSATION TO STATES ·         The GST Compensation to States 2017 Act has many grey areas which have made the Council meetings a political slugfest.  For instance, the compensation period is only for five years.

·         But as Covid 19 shows, the revenue shortfall is likely to last longer and such other exigencies might occur in future also.

·         So necessary consensus should be reached on the extension of the compensation period, the manner of funding it, and also what the phrase “on account of GST” means in the Act.

MODALITIES OF CALLING COUNCIL MEETINGS. ·         As it stands, the Centre has the monopoly in calling or deciding the meetings of the Council by virtue of it being headed by the Union Finance Minister. This has resulted in an element of arbitrariness in the working of the Council.

·         The States should have critical say in calling the meetings and also in deciding its agenda. For instance, if one-fourth of States demand Council meetings, then the Centre should schedule it urgently. Giving more voice to the States in the working of Council will allay their fears of losing out on the fiscal front thereby the working of the Council will become more productive.

LIMITING BUREAUCRATIC LEGISLATION ·         The GST Implementation Committee’s mandate must be clearly earmarked especially the items/areas where the Committee can make rules/regulations. Where substantive issues are involved, say changing the procedure of compliance, withholding input tax credit etc require approval from GST Council.

·         GST Council is the microcosm of the State Legislatures and the Parliament and thus delegated legislation must not be pursued to an extent of bypassing these peoples’ representative institutions.

·         Further, every critical decision of the Council must be placed before the State Legislatures and their approval must be taken and/or the state GST Law be amended wherever needed.

ESTABLISHMENT OF DISPUTE SETTLEMENT MECHANISM. ·         Along with the adjudicatory mechanism provided under Art 279A (11), the GST Appellate Tribunal under CGST Act must be set up on priority. While the former will provide a platform for effective grievance redressal for federal units, the latter will cater to the taxpayer segment (Recently a PIL has been filed in the Supreme Court to direct the Centre to constitute the tribunals both at national and regional under CGST Act).

·         Setting up these bodies will open up new chapters in the working of GST system and make the Council function with renewed purpose.

THE CONCLUSION: The GST Council has been a pioneering experiment in the arena of fiscal federalism in India. Although fiscal sovereignty and autonomy are the key features of a federal political system, the States and centres have surrendered their taxation power for the collective good. Despite such noble intentions and objectives, the GST Council suffers from multiple issues, perhaps the biggest among them is the “nature of recommendations of the council”. Along with providing clarity on this issue, the increasing politicisation of the proceedings of the Council must be addressed. In order to make India Atmanirbhar, the GST Council must work in the spirit of “cooperative and collaborative federalism” than in “competitive and disruptive federalism”.




THE RULE OF LAW VS THE RULE BY LAW

“The “Rule of Law” is what we fought for; the “Rule by Law” is an instrument of colonial rule. In the face of a pandemic, it’s important to reflect on how the tension between the two defines the quality of justice.”

                                                                                                                       ———- Chief Justice N.V. Ramana

THE CONTEXT: On June 30th, 2021, Chief Justice N.V. Ramana delivered the 17th Justice P.D. Desai Memorial Lecture on the “Rule of Law”. According to CJI, regular participation in polls was not a guarantee against the tyranny of the elected. In his speech, he underscored the pressure of social media on institutions. Identifying Covid-19 as “an unprecedented crisis”, CJI urged the governments to evaluate how they used the rule of law or failed to ensure protection to, and, the welfare of all of our people. This article provides insights into the lecture on the Rule of Law vs. the Rule by Law.

IMPORTANT EXCERPTS OF THE LECTURE

JOURNEY FROM RULE BY LAW TO RULE OF LAW
  • Our struggle for independence marked our journey towards the establishment of a state defined by the “Rule of Law”.
  • There was a need to give a guarantee for the laws to be framed with a human face for the benefit of the masses. A framework was needed to ensure this. The framework that forms the binding link between law and justice in this country is what “We the people” gave to ourselves in the form of the Constitution.
CONSTITUTION AND RULE OF LAW
  • The framers envisaged the Constitution which not only took care of the prevailing conditions but would also continue and be relevant for all times to come.  Therefore Constitution is conceived as a living document whose contents evolve over the years, as the Courts deal with new situations and question and interpret the Constitution in the light of the same.
  • The Constitution embodies within itself the concept of Rule of Law and the same can be witnessed from our Preamble, the Fundamental Rights, the Directive Principles of State Policy, the Separation of Powers, etc.
  • By situating the concept of Rule of Law at the confluence of three important values – human dignity, democracy, and justice, our founding fathers showed the path for the rest of the world too.
ADVICE TO JUDICIARY v  For the judiciary to apply checks on governmental power and action, it has to have complete freedom. The judiciary cannot be controlled, directly or indirectly, by the legislature or the executive, or else the Rule of Law would become illusory.

Judges should not be swayed by the emotional pitch of public opinion, which is getting amplified through social media platforms. Judges have to be mindful of the fact that the noise thus amplified is not necessarily reflective of what is right and what the majority believes in.

Social media is incapable of distinguishing between right and wrong, good and bad, and the real and fake. Therefore, media trials cannot be a guiding factor in deciding cases. It is therefore extremely vital to function independently and withstand all external aids and pressures.

v  The ultimate responsibility of a judge is to uphold the Constitution and the laws. Reason, reasonableness, and protection of human dignity are the values that will serve us well.

THE ROLE OF LAWYERS
  • The “Rule of Law” demands expertise, experience, and commitment. Lawyers should perform their duties with integrity and diligence. We need social virtue rather than economically self-interested behaviour.
  • Historically, lawyers have a rich tradition of social activism demonstrated by the number of lawyers who participated in the Indian freedom struggle.
  • We need now to rebuild and recreate a tradition of civic professionalism. We need a professional ideology about social responsibility.
  •  Both young and senior counsels should extend a helping hand to those in need of justice. Extending ease of access to justice is no less a social justice.
THE ROLE OF SOCIETY
  • To advance the “Rule of Law” we primarily need to create a society where “Rule of Law” is respected and cherished.
  • Only when the citizens believe that they have fair and equal access to justice, can we have sustainable, just, inclusive, and peaceful societies.
  • Citizens can strengthen the “Rule of Law” by being knowledgeable about it and by applying it to their daily conduct and pushing for justice when needed.

4 CORE PRINCIPLES OF RULE OF LAW

PRINCIPLE DETAILS ANALYSIS/PRESENT STATUS
‘LAWS MUST BE CLEAR AND ACCESSIBLE’
  • When laws are expected to be obeyed, the people at least ought to know what the laws are.
  •  Law should be worded in simple, unambiguous language.
  •   In India, we are constantly striving to make legislations and judgments accessible to the general public by translating them into various Indian languages.
“EQUALITY BEFORE THE LAW”
  •  An important aspect of “equality before the law” is having equal “access to justice”.
  • Access to justice forms the bedrock of the “Rule of Law”.
  •   This guarantee of equal justice will be rendered meaningless if the vulnerable sections are unable to enjoy their rights because of their poverty or illiteracy or any other kind of weakness.
  •  There is a need for legal empowerment of women. It not only enables them to advocate for their rights and needs in society but also increases their visibility in the legal reform process.
“RIGHT TO PARTICIPATE IN THE CREATION AND REFINEMENT OF LAWS”
  • The very essence of a democracy is that its citizenry has a role to play, whether directly or indirectly, in the laws that govern them.
  •  In the seventeen national general elections held so far, the people have changed the ruling party or combination of parties eight times, which accounts for nearly 50 per cent of the number of general elections.
  • Despite large-scale inequalities, illiteracy, backwardness, poverty, and alleged ignorance, the people of independent India have proved themselves to be intelligent and up to the task. The masses have performed their duties reasonably well.
“STRONG INDEPENDENT JUDICIARY”
  • The judiciary is the primary organ that is tasked with ensuring that the laws which are enacted are in line with the Constitution. Judicial review is one of the main functions of the judiciary.
  • The Supreme Court has held this function to be a part of the basic structure of the Constitution, which means that the Parliament cannot curtail the same.
  •  But the responsibility of safeguarding constitutionalism lies not just on the Courts. All the three organs of the State, i.e., the executive, legislature, and the judiciary, are equal repositories of Constitutional trust.
  • The role of the judiciary and scope of judicial action is limited, as it only pertains to facts placed before it. This limitation calls for other organs to assume responsibilities of upholding Constitutional values and ensuring justice in the first place, with the judiciary acting as an important check.

 

THE RULE OF LAW BY DICEY

  • A detailed analysis of the concept of Rule of Law was done by Professor A.V. Dicey who in his book “Introduction to the Study of the Law of the Constitution” published in the year 1885 tried developing the concept of Rule of Law.
  • Dicey’s theory of Rule of Law consists of three basic principles:
  1. The supremacy of law
  2. Equality before law
  3. The predominance of Legal Spirit
THE EVOLUTION OF THE RULE OF LAW

  • The origins of the Rule of Law theory can be traced back to the Ancient Romans during the formation of the first republic.
  •   Plato has written that if rule of law is under the supervision of any law then it doesn’t have any value and the concept of state will get collapsed. Aristotle has written that law should be the final sovereign of the state.
  •  It has since been championed by several thinkers in Europe such as Hobbs, Locke, and Rousseau through the social contract theory.

DIFFERENCE BETWEEN RULE OF LAW AND RULE BY LAW

  RULE OF LAW RULE BY LAW
DEFINITION
  • The term “rule of law” comes from the French phrase “la Principe de legality,” which translates to “government based on legal principles.” It is based on the Latin phrase “Lex is Rex,” which translates to “Law is King.”
  •  It is based on the Latin term ‘Rex is Lex’ which means ‘King is Law’.

 

ORIGIN
  • The Rule of Law was first originated by Sir Edward Coke, the Chief Justice in England at the time of King James I. Coke was the first person to criticize the maxims of Divine Concept. He strongly believed that the King should also be under the Rule of Law.
  • According to him, “Rule of Law” means the absence of arbitrary power on the part of the Government.
  •  In his battle against the Church and common law judges, King James I of England triumphed, twisting the phrase ‘Lex is Rex’ to ‘Rex is Lex.’
THE CONCEPT
  • The state should act as per the “Rule of Law” which is the foundation of any constitution.
  •   The state acts as per what it this as lawful rather than what the “Rule of Law” says like invoking section 144 without its necessity.

 

RULE OF LAW AND INDIAN CONSTITUTION

  • In India, the concept of Rule of Law can be traced back to Upanishads. Its traces can also be found in the epics like Mahabharata and Ramayana, Ten Commandments, Dharma Chakra, and other seminal documents.
  • The Preamble to the Indian Constitution mentions Justice, Liberty, and Equality.
  • Articles 13, 14 and 21 of the Indian Constitution promote equality although there are exceptions as we

JUDICIAL PRONOUNCEMENTS ON RULE OF LAW

The International Congress of Jurists declared that the rule of law “is a dynamic concept which must be employed to safeguard and advance the civil and political rights of an individual in a free society.”
  • The judicial decisions have played an indispensable role to counter any arbitrariness on part of the state.
  • In K. Kraipak V. Union of India the Apex Court held that ours being a welfare State, it is regulated and controlled by the Rule of Law.
  • In Maneka Gandhi v. Union of India, the court ensured that the exercise of power in an arbitrary manner by the government would not infringe the rights of the people.
  • The Apex Court in Indira Nehru Gandhi Vs. Raj Narain (1975) held that the Rule of Law embodied in Article 14 of the Constitution is the “basic feature” of the Indian Constitution and hence it cannot be destroyed even by an amendment of the Constitution under Article 368 of the Constitution.
  • In L Chandra Kumar v Union of India, the court declared the independence of the judiciary to be a part of the basic structure and further the court struck down the amendment to article 323A of the constitution.
  • The Habeas Corpus Case (1976) held that article 21 is the sole repository of Rule of law in India.

Some Exceptions:

  • Articles 15 and 16, Article 105 and Article 194.
  • Criminal immunity to President and Governor as mentioned in Article 361.
  • Diplomatic Immunity as per the Vienna Convention.

 

ANALYSIS: PRESENT STATUS OF RULE OF LAW IN INDIA

  • In India, the Rule of Law is not followed in stricto sensu (In the strict sense.”). There are several instances:
  1. Several guidelines have been laid down by the court to curb the practice of honour killing but still, there have been numerous instances of honour killing reported. The decision on honour killing is taken by an extra-constitutional body by the nomenclature of Khap Panchayat which engages in feudalistic activities has no compunction to commit such crimes which are offences under the Indian Penal Code, 1860. No heed is paid to the basic human right of “Right to life and liberty”.
  2. The Sabarimala case verdict throws light upon the discretion of men in abiding by the directions given by the Supreme Court only to the point if they are analogous to the belief they hold. After the verdict massive protests were carried out, there were also occurrences of violence against women who tried to enter the temple. The women were denied their constitutional right to worship and the principles of equality were violated even after the practise was declared unconstitutional by the Apex Court.
  3. Another evil practise pertinent in society is that of mob lynching. Supreme Court described it as horrendous acts of mobocracy and stated that “the law is the mightiest sovereign in a civilized society”.

In fact, the present debate has started due to an increase in the incidences of RULE BY LAW like

  1. Internet shutdown in J&K for over one year
  2. The arbitrary application of laws against media and journalists
  3. The arbitrary application of UAPA, sedition law and NSA against protesters, dissenters, activists, etc.
  4. Gagging criticisms on the mishandling of covid second wave

Such developments give a feeling of an authoritarian state and not of a democratic state. The CJI in his lecture has also highlighted how the people have largely plaid their role through 17 general elections and have rejected the governments if they have failed to withstand the rule of law. No government is permanent. Hence, it is the duty cast upon the three organs to play their role in upholding the rule of law.

THE CONCLUSION: The work of ensuring complete justice can never be said to be completed. The mandate of our Constitution is to work tirelessly to surpass our expectations, to make India a country wherein rights are cherished, and which sets an example for other countries to follow.

“Desamamte Matti Kadoi, Desamamte ManushulOi”(“A nation is not merely a territory. A nation is essentially its people. Only when its people progress, the Nation progresses”)

                                                                                                             ———– Maha Kavi Gurajada Appa Rao,




POLICE-PUBLIC RELATIONS-WHY POLICE REFORMS ALONE WON’T REVIVE PUBLIC TRUST IN POLICE?

THE CONTEXT: The police in a democracy works for the welfare of “citizens” unlike in an authoritarian system where it acts for the welfare of the “rulers”. Police being a part of a larger social milieu, reforms in police will not be enough to build bridges between them and the people. The Second Administrative Reforms Commission has noted that police-public relations are in an unsatisfactory state because people view the police as corrupt, inefficient, politically partisan and unresponsive.

An analysis of how public trust in the police has evolved between 2005 and 2012 based on the India Human Development Survey released in 2015 reveals the following. In 2005, about 23% of the surveyed households expressed a great deal of confidence in the police; over 49% only some confidence; and 28% had hardly any confidence. In 2012, there was a rise in the share of those with a great deal of confidence to 27%; those with only some confidence remained unchanged (about 50%), and those with hardly any confidence fell to 22%. Thus, confidence in the police rose over that period, but moderately. This data proves that peoples’ confidence in the police is rather sub optimal and requires some heavy lifting.

Also, in the context of the pandemic, a cooperative relationship between the police and the populace is vital for not only managing the pandemic but also addressing the post-Covid developmental challenges. In this background, this article looks at the various aspects of this pressing issue so that candidates can have a clear grasp of this subject matter.

. Who is the police and what are its duties and functions?

  • Police are the function of that branch of the administrative machinery of government that is charged with the preservation of public order and tranquillity, the promotion of public health, safety, and morals, and the prevention, detection, and punishment of crimes.
  • The police Act, 1861 is an important statute that highlights the functions and powers of police officers.
  • The preamble to this Act states, “it is expedient to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime”
  • Therefore, another definition of ‘Police’ can be construed from the preamble which is Police is an instrument whose objective is the prevention and detection of crime.
  • Section 57 of the Model Police Act, 2006, lays down the roles, functions and duties of the police. Following are the important provisions of the said Section. Section 57 states as follows,
  • to uphold and enforce the law impartially, and to protect life, liberty, property, human rights, and dignity of the members of the public;
  • to promote and preserve public order;
  • to protect internal security, to prevent and control terrorist activities, breaches of communal harmony, militant activities and other situations affecting Internal Security;
  • to protect public properties including roads, railways, bridges, vital installations and establishments etc. against acts of vandalism, violence or any kind of attack;
  • to prevent crimes, and reduce the opportunities for the commission of crimes through their own preventive action and measures as well as by aiding and cooperating with other relevant agencies in implementing due measures for prevention of crimes;
  • to create and maintain a feeling of security in the community, and as far as possible prevent conflicts and promote amity; etc.

 

Social Responsibilities of the police

Social Responsibilities as mentioned under Section 58 of Model Police Act, 2006 are as follows.

  • behave with the members of the public with due courtesy and decorum, particularly so in dealing with senior citizens, women, and children;
  • guide and assist members of the public, particularly senior citizens, women, children, the poor and indigent and the physically or mentally challenged individuals, who are found in helpless condition on the streets or other public places or otherwise need help and protection;
  • ensure that in all situations, especially during the conflict between communities, classes, castes and political groups, the conduct of the police is always governed by the principles of impartiality and human rights norms, with special attention to the protection of weaker sections including minorities;
  • render all requisite assistance to the members of the public, particularly women, children, and the poor and indigent persons, against criminal exploitation by any person or organised group;

From the above, it becomes clear that the police becomes handicapped without active support from citizens across the whole chain of police functions. This support will only come when there is trust between both. For instance, when the people have fear of the police, then no cooperation is possible between them. This further reinforces the trust deficit. But despite the provisions for a cooperative working relationship between the police and public under the statutes, there exists a deep distrust of police in the minds of the general public.

 

 

WHY IS THERE A DEEP TRUST DEFICIT?

  • Police as a Regime force: The common man perceives police as an instrument of the governments for achieving their political objectives. For instance, A Delhi court has remarked that investigation into a case related to the communal violence in northeast Delhi seemed to be “targeted only towards one end” while asking the Delhi police to ensure a fair investigation.
  • The politicisation of the police: According to former Mumbai Police Commissioner, Julio Ribeiro “A sizeable percentage of officers today carry an invisible stamp on their foreheads showing their loyalty to a particular party”. The ambition of the senior IPS officers to occupy posts of importance is a major contributory factor to the Politicisation. When the seniors surrender their authority by complying with requests from politicians, corruption increases and the investigation of crime in sensitive cases are based not on facts and law but on the wishes and interests of the politician in power.
  • Nexus and Corruption: The nexus between criminals, politicians and police functionaries have, over the years, assumed very dangerous proportions. Even after the Vohra committee in 1993 has highlighted the issue, things have not changed much. For instance, The Maharashtra Police department has the most corruption complaints against it among 44 state government departments in the bribery list released for 2019 by the anti-corruption bureau (ACB).
  • Police Impunity: On May 22, 1987, 19 personnel from UP police rounded up 42 Muslim youths from the Hashimpuramohalla (locality) of Meerut, shot them in cold blood and dumped their bodies in a nearby irrigation canal. As many as 16 of the 19 accused policemen surrendered only in May 2000 –three of them died in the intervening period — and were enlarged on bail, before getting acquitted by a Tis Hazari court to which the case was transferred in 2002 from Ghaziabad by the Supreme Court. It was only on October 31, 2018, that Delhi High Court overturned the decision, convicting all 16 and sentencing them to life imprisonment.
  • Custodial Violence: The brutal and brazen killing of Jayaraj and Bennix in Tamil Nadu Police’s custody has rightfully caused a public outcry against those in uniform. According to an analysis of the NCRB data as many as 255 people died in police custody in three years from 2017-2019, but only three police personnel were convicted in these cases in these years

According to the recently released 2019 National Crime Records Bureau (NCRB) report, a total of 85 people died in police custody in 2019 for which only 23 arrests were made.

  • Bias in Police: As per, Status of Policing in India Report 2019 (SPIR 2019) prepared by the NGO Common Cause and Loknitiprogramme of the Centre for the Study of Developing Societies (CSDS),  about half of the police personnel reported that Muslims were ‘naturally prone’ towards committing violence. ‘Police personnel in four of the states surveyed, namely, Uttarakhand, Jharkhand, Maharashtra and Bihar, had about two-third or more police personnel who held this view. Four out of five police personnel from Uttarakhand held this opinion,’ the report states. ‘Police personnel from Karnataka and Uttar Pradesh have the highest proportion of those believing that people from Dalit communities are highly likely to be naturally prone towards committing crimes,’ says the report.
  • The fear of police: SPIR 2018 found that 14 per cent of the citizens are highly fearful of the police, and 30 per cent are somewhat fearful of the police. Further, it was found that people fearful of the police are less likely to report willingness to approach the police even if there is a need. Police personnel seem to recognise that common people nurture an inherent fear of the institution and hence, are reluctant to approach them.
  • Attitude towards mob violence: In recent years, numerous cases of mob violence against individuals (‘mob lynching’) on suspicions of cow-slaughter, kidnapping, etc. have been reported, and the police is known to have played an enabling role for the people engaging in such forms of violence. While more than one in every three police personnel believe it to be natural for a mob to punish the alleged culprit in a case of cow-slaughter (‘to a large extent and ‘somewhat’ combined), about two in every five believe so in other three cases of crimes,’ says the report.
  • Poor Police Reforms: Almost all the points mentioned above come under the purview of reforms in police. Despite numerous expert committee recommendations and the SC directions, even rudimentary reforms in police not been carried out. For instance, The Justice Thomas committee tasked by the SC to monitor police reforms implementation was dismayed by the total apathy of the state governments in carrying out the reforms.

police reforms in india: an overview

  • Various expert bodies have examined issues with police organisation and functioning over the last few decades.
  • The recommendations of these commissions and committees have been largely ignored by the governments and in the Prakash Singh case 2006, the SC has given the following directions for police reforms. These directives more or less summarises the recommendations of various commissions.
    • Constitute a State Security Commission in every state that will lay down policy for police functioning, evaluate police performance, and ensure that state governments do not exercise unwarranted influence on the police.
    • Constitute a Police Establishment Board in every state that will decide postings, transfers and promotions for officers below the rank of Deputy Superintendent of Police, and make recommendations to the state government for officers of higher ranks.
    • Constitute Police Complaints Authorities at the state and district levels to inquire into allegations of serious misconduct and abuse of power by police personnel.
    • Provide a minimum tenure of at least two years for the DGP and other key police officers (e.g., officers in charge of a police station and district) within the state forces, and the Chiefs of the central forces to protect them against arbitrary transfers and postings.
    • Ensure that the DGP of state police is appointed from amongst three senior-most officers who have been empanelled for the promotion by the Union Public Service Commission on the basis of length of service, good record and experience.
    • Separate the investigating police from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people.
    • Constitute a National Security Commission to shortlist the candidates for appointment as Chiefs of the central armed police forces.

Implementation:  According to a report of the NITI Aayog (2016), of 35 states and UTs (excluding Telangana), State Security Commissions had been set up in all but two states, and Police Establishments Boards in all states.31  The two states in which the State Security Commissions were not set up by August 2016 were Jammu and Kashmir and Odisha.  Note that the report also found that the composition and powers of the State Security Commissions and the Police Establishment Boards were at variance with the Supreme Court directions.  For example, in states such as Bihar, Gujarat and Punjab, the State Security Commission were dominated by government and police officers.  Further, many of these Commissions did not have the power to issue binding recommendations. In other words, these directions by the SC are observed more in breach by the Governments till today. Even the Police Acts enacted were a mere rehash of the Police Act 1861.

role of police reforms in building public trust

S.NO AREA OF REFORM                       REFORM AND IMPACT
1 POLICE ACCOUNTABILITY:

 

 

  • The Second Administrative Reforms Commission and the Supreme Court have observed that there is a need to have an independent complaints authority to inquire into cases of police misconduct
  •  The independent complaints authority can create a conducive environment for people to fearlessly voice their complaints. Action taken by the authority will lead to changes in police behaviour towards citizens.
2 VACANCIES AND OVERBURDENED POLICE
  • Currently, there are significant vacancies within the state police forces and some of the central armed police forces.
  • As per the Bureau of Police Research and Development report of January 2016, the total sanctioned strength of state police forces across India was 22, 80,691, with 24% vacancies (i.e. 5, 49,025 vacancies).
  • The filling up of vacancies can enhance the police efficiency thereby redressing public grievances.
3 POLICE INFRASTRUCTURE
  • Modern policing requires a strong communication support, state-of-art or modern weapons, and a high degree of mobility. 
  •  The CAG has found that the weaponry of several state police forces is outdated, and the acquisition process of weapons is slow, causing a shortage in arms and ammunition.
  • A better police infrastructure can improve the professional work culture of the police thereby building public trust.
4 REGISTRATION OF FIRs
  •   In the landmark case of Lalita Kumari vs Government of Uttar Pradesh, 2013, the Supreme Court held that if a victim’s statement discloses information about a cognisable offence, the registration of the FIR is mandatory.
  •  Yet, it is common for police personnel to refuse filing FIRs even in serious, cognisable cases,’ says the Status of Policing in India Report 2019 (SPIR 2019)
5 CONSTABULARY RELATED ISSUES
  • The constabulary constitutes 86% of the state police forces.
  • A constable is expected to exercise his own judgement in tasks like intelligence gathering, and surveillance work, and report to his superior officers regarding significant developments.
  • He assists with investigations and is also the first point of contact for the public.
  • Therefore, a constable is expected to have some analytical and decision-making capabilities, and the ability to deal with people with tact, understanding and firmness.
  •  The Padmanabhaiah Committee and the Second Administrative Reforms Commission have noted that the entry level qualifications (i.e. completion of class 10th or 12th in many states) and training of constables do not qualify them for their role.
  • One of the recommendations made in this regard has been to raise the qualification for entry into the civil police to class 12th or graduation.
  • It has also been recommended that constables, and the police force in general, should receive greater training in soft skills (such as communication, counselling and leadership) given they need to deal with the public regularly.
6 COMMUNITY POLICING
  • Police require the confidence, cooperation and support of the community to prevent crime and disorder.
  •  For example, police personnel rely on members of the community to be informers and witnesses in any criminal investigation.
  • Therefore, police-public relations is an important concern of ineffective policing.
  • One of the ways of addressing this challenge is through the community policing model

COMMUNITY POLICING: A MODEL FOR BETTER PUBLIC POLICE RELATION

  • Community policing requires the police to work with the community for prevention and detection of crime, maintenance of public order, and resolving local conflicts, with the objective of providing a better quality of life and sense of security.
  • It may include patrolling by the police for non-emergency interactions with the public, actively soliciting requests for service not involving criminal matters, community-based crime prevention and creating mechanisms for grassroots feedback from the community.
  • Various states have been experimenting with community policing including Kerala through ‘Janamaithri Suraksha Project’, Rajasthan through ‘Joint Patrolling Committees’, Assam through ‘MeiraPaibi’, Tamil Nadu through ‘Friends of Police’, West Bengal through the ‘Community Policing Project’, Andhra Pradesh through ‘Maithri and Maharashtra through ‘Mohalla Committees’

why police reforms are not enough?

What is missed in the call for police reforms are the inherent biases of the police that have been exacerbated in many states and Union territories by discriminatory legislation like the Citizenship Amendment Act, a variety of state laws on cow slaughter and so-called ‘love jihad’, and a political atmosphere favouring their ruthless application. Protests have been crushed and innocent lives have been lost, even as the accused in cases of ‘cow lynching’ have largely gotten away while the police turned a blind eye, and first information reports are filed against the hapless victims who are mostly Muslims and/or Dalits

The Status of Policing in India Report for 2018 revealed that police personnel have an inherent bias against minorities and marginalized sections of Hindus such as Dalits. About half the police personnel were reported to hold the view that Muslims were “naturally prone” to committing violence

Other critical areas like rampant political interference, depiction of police in cinema, issues in the criminal justice system, ineffective legislative control and the faulty socialization processes etc must also be reformed for enhancing public trust in police.

what more measures need to be taken?

S. NO SPHERE OF REFORMS CONTENT OF REFORM
1 POLITICAL/ELECTORAL REFORMS Measures for checking criminalization of politics through changes in electoral funding rules, fast track courts for speedy trials of politicians etc can reduce rampant misuse of police machinery for partisan purposes. This can lead to police autonomy and enhanced professionalism.
2 LEGAL REFORMS Laws dealing with criminal activity provides high scope for police discretion, especially in cognizable offences. For instance Section 124A of IPC dealing with sedition and Section 153A related to promoting enmity between groups. Also, the vague and overarching terms in-laws like UAPA, IT Act 2000, etc provide huge scope for abuse of these laws by police. In PUCL Vs. Union of India, 2021, the Supreme Court felt appalled after finding that people are still being booked and tried under Section 66A of the Information Technology Act, which has been scrapped for six long years for being “unconstitutional and a violation of free speech.
3 POPULAR CULTURE The role played by popular cinema in glamourizing the no-nonsense, tough-on-crime cop has certainly played a role in normalizing police violence. It encourages lynch-mob vigilantism as justice. Realistic portrayal of police in the medium of popular culture can change the popular and police perception about each other.
4 JUDICIAL SENSITIVITY The long delay in justice delivery and pendency of cases in courts result in people losing faith in rule of law. This has a direct bearing on police-public relations which will be marked by confrontation and conflict. AlsoJudicial response to custodial violence has been erratic, and despite the Supreme Court’s guidelines in DK Basu’s case, the rate of conviction in custodial violence or death claims continues to below.
5 ROLE OF PROSECUTION Prosecution plays a crucial role in the criminal justice system. An independent and professional prosecution setup can address the frivolous and motivated arrest of innocents by the police.
6 CIVIL SOCIETY ACTIVISM  Equally important is the public outrage over police brutality or deaths which has been largely missing from India. It is in sharp contrast with the Black Lives Matter movement in the United States. Citizens’ participation can galvanise different societal elements coming together to correct injustices.
7 PARLIAMENTARY CONTROL The legislative control over the police through questions, debates, scrutiny in standing committees etc are largely missing. Hardly, a meaningful discussion takes place on police omissions and commissions in these forums. Thus relentless and consistent watch must be kept by the “people’s institutions” on police. Ideally, the governments both at the centre and states must come up with an annual white paper on state policing in India which must be debated in the parliament and state legislatures.
8 ROLE OF CITIZENRY. Building trust is a two-way process. A law-abiding citizenry will definitely contribute to lesser law and order problems in society. Thus the coercive nature of police will not be visible as often due to the reduction of conflicts in society. So people have a responsibility to their fellow beings and to society and the country at large. Such a civic conscious populace will create conditions for cordial and cooperative engagement with the police.
9 e- GOVERNANCE The India Justice Report (IJR) 2020 supported by Tata Trusts has studied the e-portals of various state police organisations that provide citizen-centric services such as requests for issue/renewal of various NOCs, verification requests for servants, employment, passport, etc.

The report mentions that “despite the push for digitization, no state offered the complete bouquet of services…

Users face numerous problems of accessibility to these services.

Several portals did not work despite repeated attempts over three months.


THE WAY FORWARD

  • Civil society must exert pressure on the executive and the judiciary through advocacy, research reports, PILs etc. While providing constructive suggestions for addressing the lack of public trust in police, it can also put moral pressure on these institutions to act quickly.
  • The Law Commissions must be mandated to comprehensively study and review the legal and administrative aspects of policing environment and recommend measures to make the police a people’s police.
  • Local government authorities must be empowered to have some degree of supervision and control over local police. This will improve the police responsiveness to the concerns of general public leading to greater trust.
  • E-governance is an effective way to help the overburdened beat and police station officers as well as harried citizens. User-friendly citizens portals for obtaining passports and driving licences have been game-changers.
  • The IJR 2020 audit confirms that states need to invest more resources to upgrade their e-portals for providing the 45 identified basic services to the citizens. This is a task that police leadership can concentrate on without any political interference
  • The Ministry of Home Affairs (MHA) earmarked about Rs 20,000 crore for the modernisation of police (2017-2020), for schemes such as crime and criminal tracing networks and systems (CCTNS), police wireless and e-prisons. States can take up this crucial service delivery mechanism.

CONCLUSION:The Indian police has been conceived and operationalised as a “force” and not as a “service”. It is not surprising because the Indian Police has been modelled on the “Irish Constabulary System” of the 19th century in the United Kingdom. The objective of this policy was to “instil fear in the minds of people’. On the other hand, the London Police worked on the philosophy of “police are public and the public is the police”. Thus, the ethos of Indian police still largely resembles the structural. cultural and functional aspects of colonial British Indian police.

Although, these aspects can be dealt with by comprehensive police reforms the larger issues of changes in politics, bureaucracy, legal system and judiciary, cultural milieu and social capital etc must also be addressed simultaneously. The buzzword of 21st-century government is “good governance” and in Indian context it is “sabkasaathsabkavikas and sabkaviswas”. Achievement of this ideal demands a trust-based relation between police and the citizens.




THE STRIKING DOWN OF THE 97TH AMENDMENT ACT- THE REASONS AND IMPLICATIONS

THE CONTEXT: In July 2021, a three-judge bench of the Supreme Court partly upheld a Gujarat High Court judgment that struck down part of the 97th Amendment Act 2011 dealing with cooperative societies. In a PIL, Rajender Shah vs. Union of India, the apex court nullified Part IXB of the constitution in so far as it relates to State cooperative societies while the Gujarat HC has struck down the entire Amendment.  This article analyses various aspects of this judgment and its significance in the context of the increasing tendency of centralization of Indian polity.

THE SALIENT FEATURES OF THE 97TH AMENDMENT

  • The Parliament has enacted the 97th Constitutional Amendment act 2011 that dealt with different facets of cooperative societies in the country.
  • This Amendment brought in the following changes in the Constitution
  • Art 19 1 (c) – the word “cooperative societies “was added. Thus, a Fundamental Right to form cooperative societies came into existence.
  • Art 43B was added to DPSP. It provided that the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control, and professional management of cooperative societies.
  • Part IXB inserted articles 243 ZH to 243 ZT. They provided for the powers of the Central Government and State Legislatures to regulate incorporation, elections, and governance of cooperative societies.
  • For multi-state cooperative societies, the powers of regulation lie with the Central Government while States could control those having operations within their boundary subject to Part IXB.

THE CONSTITUTIONAL ISSUES IN THE AMENDMENT

Although the Amendment was aimed at addressing the weaknesses and lack of accountability in the cooperative movements in the country, the manner of passing it has attracted judicial intervention. The problems in the Amendment are highlighted below:

AREA THE EXPLANATION
SCHEDULE  7
  • List II, Entry 32 provides exclusive power to State Legislatures to make Laws for cooperative societies.
  • The 97th Amendment restricts this power by limiting the State’s Legislative domain. For instance, the Amendment specified the maximum number of directors, the process of elections, auditing, etc.
ARTICLE 246(3)
  •  It provides that States have exclusive legislative powers in matters falling under List II. Thus, the Amendment violates this provision.
368(2)
  • Any change in schedule 7 requires ratification by at least half of the States after the Parliament passes the Amendment by a special majority. But, the 97th Amendment did not conform to this procedure as ratification by the States was not followed.
LIMITATIONS IN THE CONSTITUENT POWER OF THE PARLIAMENT
  • It means the Parliament’s power to amend the constitution is not unlimited. This power is curtailed by both “procedural and substantive (for instance, Basic Structure) “grounds.
  • The procedural requirements under 368(2) have been violated in the 97th Amendment.
DOCTRINE OF COLOURABLE LEGISLATION
  • It means what cannot be done directly cannot be done indirectly.
  • The Amendment did not shift the subject “cooperative societies” into either List 1 or List III which could have enabled the Parliament to frame Laws in the said subject.
  •  But this has not been done yet the legislative competence of States has been severely curtailed by the Amendment.
  • The Parliament could not have legislated for “cooperative societies directly, but it did it indirectly by bringing in the Amendment.
PRINCIPLE OF FEDERALISM
  •  Our Constitution has been described as quasi-federal in that there is a tilt in favour of the Centre vis-à-vis the States that have given the federal supremacy principle.
  • Yet within their sphere, the States have exclusive power to legislate on topics reserved exclusively to them.
EXPERIENCE WITH 73 RD AND 74TH AMENDMENT.
  •  Entry 5 of List II, 7th Schedule deals with the subject matter of legislation so far as Panchayats and Municipalities are concerned.
  • Both the Constitution 73rd and 74th Amendments were sent for ratification and were ratified by Legislatures of more than half of the States.
  • Like Part IXB, Part IX and IXA put restrictions on the States’ power to legislate on Entry 5 which necessitated ratification by the States.

WHAT SURVIVES IN THE 97TH AMENDMENT NOW?

  • The judgment of the High Court is upheld except to the extent that it strikes down the entirety of Part IXB of the Constitution of India.
  • Part IXB of the Constitution of India is operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union territories of India.
  • This means the Parliament can make laws concerning the regulation of multi-state cooperative societies that have operations in more than one State.
  • Changes to Article 19 (c) and insertion of Article 43 B are not touched and remain intact.
  • Thus, the Fundamental Right to form cooperatives and the duty of the State to take steps for effective management of cooperatives still exist in the Constitution.

THE DISSENT NOTE: THE DOCTRINE OF SEVERABILITY

The majority judgment by Justice RF Nariman (Justice BR Gavai concurring) invoked the Doctrine of Severability to hold that Part IXB of the Constitution of India is operative insofar as multi-State co-operative societies are concerned. However, Justice Joseph, in his dissent, held that the provisions of Part IXB dealing with multi-State co-operative societies cannot be saved. According to him, the Doctrine of Severability cannot be applied to sustain Article 243ZR and Article 243ZS to the multi-State cooperative societies operating in various States and Union Territories. Justice Joseph held that once the substantial provisions of Part IXB have been found unconstitutional, the other articles cannot survive.

The doctrine of severability: The doctrine of severability states that when some particular provisions of a statute infringe or violate the Fundamental Rights, but the provision is severable from the rest of the statute, then only that offending provision will be declared void by the courts and not the entire statute. In simple words, the unconstitutional and Constitutional parts of the Law can be separated. Then, the Constitutional part can be held valid which will enable the Law to survive.

The doctrine derives its applicability from Article 13(1) of the Constitution which says that the Laws which are inconsistent with the provisions of Fundamental Rights guaranteed by the Constitution shall to the extent of that inconsistency be considered void.

This doctrine enables judicial review of pre-Constitutional laws also in that it widens the scope of the judicial review. Similarly, the doctrine also provides scope for saving the Laws made by the Legislature by upholding those provisions that pass Constitutional muster.

In the R.M.D.C v. the State of Bombay, the SC laid down the following principles concerning this doctrine:

THE PRINCIPLE OF LEGISLATIVE INTENTIONS
  • To find out whether the valid part of the statute can be separated from the invalid part, the intention of the Legislature is the determining factor.
  • To find the legislative intent behind a statute, it will be legitimate to take into account the history, object, title, and preamble
THE PRINCIPLE OF INSEPARABILITY
  •  In case the valid and non-valid parts of a particular statute are inseparable then it will invariably result in the invalidity of the entire statute.
THE PRINCIPLE OF INDEPENDENCE
  • When the statute stands independently after the invalid portion is struck out then it will be upheld, notwithstanding that the rest of the statute has become unenforceable.
THE PRINCIPLE OF UNITY
  • In cases where the valid and invalid parts are separable but both of them were intended to be part of the same scheme, then the whole scheme will be invalid.
THE PRINCIPLE OF COMPLETENESS
  • Severability is to be determined by reading the statute as a whole and not specific provisions or parts.

SIGNIFICANCE IN THE CONTEXT OF INCREASING CENTRALISATION

There has been a tendency towards increasing the unitisation of Indian polity recently. It is held that the Union Government has been encroaching upon the legislative, policy, and administrative domains of the States. The many States have argued that this centralizing approach has disturbed the federal nature of Indian governance and is making the States “glorified municipalities”!  They provide few examples of this alleged encroachment which are briefly discussed below:

FARM LAWS ENACTMENT
  • Agriculture, Agri trade and market, etc are State subjects. But the Union brought crucial Laws through the colourable exercise of power.
NATIONAL EDUCATION POLICY
  • States have not been consulted at all in its formulation and the governance structure proposed has no role for States
15TH FINANCE COMMISSION
  • The terms of reference to the Commission like whether revenue deficit grants are to be provided to States, making grants conditional on implementing the pet schemes of the Centre, etc have been criticized by States.
ISSUE OF GST COMPENSATION
  • States argue that despite the pandemic hitting their revenue badly, the Centre has not fulfilled the commitment to compensate the States under GST.
THE ELECTRICITY AMENDMENT BILL 2021
  • The Bill mandated that States privatize their DISCOMs, remove subsidies and provide for DBT and vesting the tariff deciding power with a central body etc (Although the Centre has earlier agreed to withdraw the Bill in the context of farmers’ protest, it has introduced the Bill in the just concluded Monsoon Session)
NATIONAL INVESTIGATION AGENCY ACT 2008
  • The NIA Act has been challenged by the Chhattisgarh Government in the SC alleging that the Act encroaches into the “policing” function. Police is an exclusive State subject and the NIA exercising the power of a police force is contrary to the federal division of subjects in Schedule 7.
DOWNGRADING A STATE INTO A UT
  • After the repeal of Art 370 and 35A, through the Jammu Kashmir Reorganization Act, the State of J&K has been downgraded into a UT.

In this backdrop, the SC judgment striking down the substantial portion of Part IXB has breathed new life to federalism. The SC held that exclusivity of State Legislatures over entries in List II of the Seventh Schedule is a facet of the quasi-federal nature of the Constitution. The Constitution is not unitary but quasi-federal in nature is part of the Basic Structure of the Constitution, the court observed.

Any significant addition or curtailment of a field of legislation in List II will amount to a “change” of the entry from the State list, requiring ratification of State Legislatures. As mentioned above, this judgment sets the background for hearing the challenges against the Farm Laws brought in by the Union. This judgment provides an insight into the philosophy of the thinking of the apex court.

If the sentiment expressed in this judgment is analyzed, then the court is highly likely to uphold the federal ethos in the Farm Laws case too, States believe. The importance of Art 368(2) which acts as the bulwark against legislative overreach by the Union and protects States’ interests has been reaffirmed by the SC.

It is noteworthy that the 97th Amendment has been challenged by “citizens” and not by” States”. The court rejected the argument by the Union that no States have challenged the Amendment and thereby they (the States) have accepted it. The court observed, “When a citizen of India challenges a Constitutional Amendment as being procedurally infirm, the court must examine such challenge on merits as the Constitution of India is a national charter of governance affecting persons, citizens, and institutions alike”.

MINISTRY OF COOPERATION vis-à-vis THE SC JUDGMENT

In this backdrop, the striking down part IX in so far as they deal with State cooperatives has implications to the scope of the new Ministry of Cooperation. Because the executive power of the Union Government extends only to those matters concerning which the Parliament has the power to make Laws (Article73 (1)).

Likewise, the executive power of the State Government extends to those matters for which the State Legislatures have the power to make Laws (Article 162). In other words, the executive powers are co-extensive with the legislative powers.

So, going by the Constitutional scheme as explained by SC in Rajendra Shah vs Union of India, the executive power of the Union Ministry of Cooperation is concerning multi-State co-operative societies alone.

The Centre will not be in a position to compel the States to bring the laws relating to cooperatives in conformity with the Centre’s vision. Thus, as of now, this new Ministry may have to confine itself to administering the Multi-State Cooperative Societies Act 2002. It can also set broad policy frameworks for cooperatives and persuade and incentivize the States to adopt them.

THE WAY FORWARD:

  • The Union can re-enact the Amendment and get it ratified by half of the States as per Art 368(2). That cooperatives need reforms is not doubted by anybody and thus an approach based on cooperative federalism can herald new opportunities for the cooperative sector in India.
  • The Union should not be seen as treating the States as mere appendages. States are independent constitutional entities in their own domains. Consultative and collaborative federalism is the need of New India.
  • In a democracy run by a Constitutional system, adherence to procedures is vital for the Rule of Law and Constitutionalism. Thus, all organs of the State especially the Governments must follow them in letter and spirit.
  • The principle “decentralise whenever possible and centralise whenever utmost necessary “must guide the Indian polity.
  • Cooperatives have great potential to facilitate holistic socio-economic and political development in the country. The apex court decision must not be seen as a setback by the Centre in its approach to develop this sector.

THE CONCLUSION: This judicial review must lead to reaffirming the commitment of the Governments at various levels to be faithful to the procedural aspects of governance. At the same time, the esteemed objectives of providing a binding broader framework to regulate and develop the cooperative landscape must be pursued with greater vigour.




Direct income support for farmers – Issues, challenges and lesson from states policies

THE CONTEXT: The recent farmer agitation has brought the issue of farmer distress front and centre in the public consciousness. The time seems ripe to find new solutions to the structural challenges facing farmers. One of the solution is to support farmers by Direct Income Support (DIS) but in recent time several reports highlighted that such schemes are facing many challenges. In this article, we will discuss that what should be the way forward for the effective implementation of these scheme.

 

Income support scheme in India for farmers

 

  • In agriculture, there are two major types of government support measures. The first one is price support measure and the second is income support measures.
  • Price support means the government is procuring the agricultural produce from farmers at a remunerative price. India’s Minimum Support Price based procurement is a classic example of price support scheme.

 

Direct Income Support

 

  • The second type of support is DIRECT INCOME SUPPORT (DIS).In this scheme, government transfers direct payment to the poor farmers.
  • Under the WTO terminology, it is called Direct payments to farmers or Decoupled Income Support. Decoupled means such an income transfer to farmers will not influence (or minimum influence) production and price of the respective crops.

 

PM KISAN SAMMAN SAMMAN NIDHI

 

  • The Pradhan Mantri Kisan Samman Nidhi (PM-KISAN) is the first universal basic income-type of scheme targeted towards landed farmers.
  • It was introduced in December 2018 to manage agricultural stress.
  • Initially, the scheme was targeted at small and medium landed farmers, but with the declining growth in gross value added of the agricultural sector, it was extended to all farmers in May 2019.
  • This direct benefit transfer scheme was aimed at addressing the liquidity constraints of farmers in meeting their expenses for agricultural inputs and services.

Features of the scheme:

  • Income support: The primary feature of this Yojana is the minimum income support it provides to farmers. Each eligible farmer family is entitled to receive Rs.6000 per annum across India. However, the amount is not disbursed at once. It’s divided into three equal instalments and meted out four months apart.
  • Funding: PMKSNY is an Indian government-sponsored farmer support scheme. Therefore, the entirety of its funding comes from the Government of India.
  • Identification responsibility: While the responsibility of funding lies with GOI, the identification of beneficiaries is not under its purview. Instead, it’s the responsibility of State and Union Territory governments.

 

Benefits of Direct Income Support

 

Direct Income Supports’ ability to encourage farmers to raise production is less. At the same time, it has some positives:

  • There is no leakage – income is transferred through DBT.
  • There is protection for farmers against income loss and adverse terms of trade impact on agriculture.
  • It is less distortionary and is WTO combatable; there is less influence on production and price.
  • Farm income support is superior to price support as it is crop neutral. The farmer is getting reward for continuing with agriculture whatever may be the crop he is cultivating. On the other hand, India’s MSP historically, favored wheat and rice farmers as procurement was concentrated on these two crops.

 

PM KISAN after two years: A critical review

 

The PM KISAN scheme has completed two years (seven installments are released of the scheme) but facing several crises.  The scheme is a useful vehicle to provide support to farmers and it was included in the Pradhan Mantri Garib Kalyan Package during lockdown but, was this a useful way of relieving distress during the lockdown?  A survey by NCAER National Data Innovation Centre in June 2020 provides some useful insights in this regard:

Findings of the survey

  • Lower level of economic distress among farmers than among other groups.
  • While farmers faced some logistical challenges in transporting and selling their produce, 97 per cent of them continued to harvest Rabi crops and prepared for the Kharif season.
  • Nearly 75 per cent of the cultivators who usually hire labourers for agricultural activities continued to do so.
  • The farmers were relatively immune to the economic impact of the lockdown as nearly 32 per cent of them experienced a large income loss which is much lower compared to the proportion among casual wage workers and business households
  • The proportion of households that had to borrow to meet their day-to-day consumption needs during the lockdown was relatively low for the farmers.

Performance of PM-KISAN during the Pandemic

  • Only 21 per cent households received cash transfers through PM-KISAN.
  • Around two-thirds reported receiving Rs 2,000 and about a fourth received Rs 4,000, possibly because family members engaged in agricultural activities may be co-residing within a household.
  • About 35 per cent of rural PM-KISAN recipients suffered income losses to a large extentin comparison to more than half of the non-recipients.

Lack of Data Base

  • The scheme was hurriedly announced right ahead of the 2018 elections and then the government did not have proper database of farmers.
  • There are nearly 14.5 crore families in India but govt did not has proper database of these families. Many states like West Bengal, have delayed or did not submit the data related to farmers.

Difficulty in Identifying Beneficiary Farmers

  • According to agricultural census of 2015-16, number of landholdings in the country was projected at Rs 14.65 crore. But land holding do not determine the number of farmer families present in the country as there are multiple owners for a single land. In such scenario, all the farmer families which own the land are eligible for the scheme.
  • Number of landholdings in Punjab according to agricultural census were 10.39 lakh but number of beneficiaries’ farmers in PM-kisan data base list were 17.52 lakh till October 23, 2019.

Census Issue

  • Other problem includes the agricultural census that counts the number of operational landholdings. Which is the piece of land being used for cultivation without considering the title of land. Whereas PM-kisan scheme considers the farmer families recognised as land holders under the state or union territory.
  • Further, around 14.3 crore landless farmers (census 2011) will not be able to avail this scheme. Mainly due to the fact they are not the land holders and are contract farmers.

Others

Intended Farm Households are not covered: PM-KISAN is not reaching all farmer households as intended as most of the farmers in UP, Haryana and Rajasthan own land and should be receiving benefits but only 21 per cent of the cultivators interviewed reported receiving the benefit.

    1. Not a pro-poor scheme: it is not pro-poor since recipients of PM-KISAN seemed to be better off than the general rural population even before the lockdown.
    2. Lack of digitized land records: In many States, land records are not updated regularly and therefore, there could be instances where the cultivating farmers would have partitioned their holdings from other family members, but would not have the records-of-right to claim the benefit instantly.

 

What should be the Way Forward?

 

Proactive role of Banks

  • There are reports that after the loan waiver in Maharashtra or transfer of first instalment to the Bank accounts of farmers under KALIA scheme in Odisha, concerned bank branches adjusted the deposit money against past liabilities of few farmers.
  • This kind of scenarios may lead to subversion of the objectives of the income support scheme, which is clearly intended to assist the farmers with some disposable cash for purchase of inputs.

Strengthening IT backbone

  • Needless to say that States with robust computerized land records data base and a good IT infrastructure will be in a better position to implement PM-KISAN.
  • With ICT usage and direct transfer of money to farmers’ bank accounts, pilferage would also be less.
  • Farmers not having bank accounts should be encouraged to open ‘no-frills’ accounts under the Jan-Dhan Yojana. Linking Aadhaar data base will further strengthen the system and analytics later on from this big-data eco-system could assist decision making empirically.

Targeting benefits and updation of land records

  • In many States, land records are not updated regularly and therefore, there could be instances where the cultivating farmers would have partitioned their holdings from other family members, but would not have the records-of-right to claim the benefit instantly.
  • These kind of genuine cases need to be redressed by revenue authorities so that eligible cases are not deprived.

 

Lesson from states policies

 

  • Odisha’s KALIA scheme offers some important lessons for the effective implementation of the scheme.
  • Odisha used a three-step framework to identify beneficiaries. These are:
  • Unification:The first step involved unifying state databases with “green forms” which were essentially applications from farmers who wanted to opt in.
  • Verification:The second step involved verification of information through databases like the Socio-Economic Caste Census, National Food Security Act and other databases; de-duplication through Aadhaar; and bank account verification through bank databases.
  • Exclusion: The third step involved excluding ineligible applicants like government employees, tax payers, large farmers, and those that voluntarily opted out.
  • The use of technology and non-farm databases meant that KALIA could include sharecroppers, tenant and landless farmers as beneficiaries, which is a significant step towards inclusive agricultural policy-making.
  • KALIA has now laid the foundation for a state-wide farmer database with 100 per cent Aadhaar, mobile number and financial address seeding. This database can be leveraged for targeted scheme delivery beyond DIS, issuing customised agri-advisories and improving financial access.

 

CONCLUSION

 

PM- KISAN is India’s first direct support scheme, which should be surely successful. But for this, govt of India should learn some important lessons from other sources like the KALIA scheme and for that technology can play a vital role. The potential of technology to transform social welfare delivery is exciting. An approach that leverages data to maximize citizen benefits, while ensuring privacy, security and access, must be the way forward if we are to truly realize the power of digital to serve every Indian.

Just add to your knowledge

The MSP as a Price Support Measure

  • WTO calls these subsidies as amber box subsidies that distorts trade. Such subsidies should be reduced as they may make a high cost producer a big produce and the country may export its produce.
  • According to the WTO, a support (subsidy) by the government that influences production and price is trade distorting and it should be reduced.

PM-KISAN (Direct Income Support)

  • In this case; the government will be giving direct payment to the farmers for their low income from farming.
  • Under the WTO terminology, it is called Direct payments to farmers or Decoupled Income Support.
  • Decoupled means such an income transfer to farmers will not influence production and price of the respective croops.
  • Under Agreement on Agriculture (WTO), the direct payment to farmers comes under the Green Box.

Sources

https://indianexpress.com/article/opinion/columns/kalia-scheme-direct-income-support-odisha-welfare-7228320/

https://www.hindustantimes.com/india-news/5-top-performing-states-under-pm-kisan-scheme-101614160699833.html

https://indianexpress.com/article/opinion/columns/pm-kisan-farmer-scheme-lockdown-6536208/




A case for a revamped need based PDS

THE CONTEXT: The Economic Survey rightly flagged the issue of a growing food subsidy bill, which, in the words of the government, “is becoming unmanageably large”. The reason is food subsidy, coupled with the drawal of food grains by States from the central pool under various schemes, has been on a perpetual growth trajectory. This article discusses about the issues related to increasing food subsidy, need to recast the system and possible solutions.

 

Public Distribution System

 

Basic information

  • PDS evolved as a system of management of scarcity through distribution of foodgrains at affordable prices.
  • The operational responsibilities including allocation within the State, identification of eligible families, issue of Ration Cards and supervision of the functioning of Fair Price Shops (FPSs) etc., rest with the State Governments.
  • The Public distribution system (PDS) is an Indian food Security System established under the Ministry of Consumer Affairs, Food, and Public Distribution.
  • PDS is operated under the joint responsibility of the Central and the State Governments:
  1. The Central Government, through Food Corporation of India (FCI), has assumed the responsibility for procurement, storage, transportation and bulk allocation of food grains to the State Governments.
  2. The operational responsibilities including allocation within the State, identification of eligible families, issue of Ration Cards and supervision of the functioning of Fair Price Shops (FPSs) etc., rest with the State Governments.

Evolution of the system

  • Before 1960-PDS was introduced during the time of World War II. It was before the year 1960 that the distribution through PDS was dependent on imports of food grains.
  • 1960s-The Public Distribution System was then expanded in the 1960sto handle food shortages and take care of distribution.
  • The Food Corporation of India and the Commission of Agricultural Costs and Prices were also set up by the government of India to improve domestic procurement and storage of food grains.
  • 1970s– It was during the 1970s when PDS evolved as a universal scheme for the distribution of food.
  • 1992- The Revamped Public Distribution System (RPDS)was launched in 1992 with a view to strengthen and streamline the PDS as well as to improve its reach in the far-flung, hilly, remote and inaccessible areas.
  • 1997- the Government of India launched the Targeted Public Distribution System (TPDS)with a focus on the poor.
  • Beneficiaries under TPDS  Divided into 2 categories – Households Below Poverty Line and Households Above Poverty Line.
  • 2000- Antyodaya Anna Yojana (AAY)launched in December, 2000 was a step in the direction of making TPDS aim at reducing hunger among the poorest segments of the BPL population.

Functions

  • The centre procures food grains from farmers at a minimum support price (MSP) and sells it to states at central issue prices. It is responsible for transporting the grains to godowns in each state.
  • States bear the responsibility of transporting food grains from these godowns to each fair price shop (ration shop), where the beneficiary buys the food grains at the lower central issue price.

 

Food Security and PDS System

 

  • With a network of more than 400,000 Fair Price Shops (FPS), the Public Distribution System (PDS) in India is perhaps the largest distribution machinery of its type in the world.
  • PDS is said to distribute each year commodities worth more than Rs15,000 crore to about 16 crore families.
  • This huge network can play a more meaningful role if only the system is able to translate into micro level a macro level self-sufficiency by ensuring availability of food grains for the poor households.
  • Food Security of beneficiaries is ensured by distributing food grains at subsidized prices through the Targeted Public Distribution System (TPDS).  It protects them from price volatility due to inflation.
  • Over the years, while the spending on food subsidy has increased, the ratio of people below the poverty line has decreased.

 

The Issue

  • During 2016-17 to 2019-20, the subsidy amount, clubbed with loans taken by the Food Corporation of India (FCI) under the National Small Savings Fund (NSSF) towards food subsidy, was in the range of ₹1.65-lakh crore to ₹2.2-lakh crore. In future, the annual subsidy bill of the Centre is expected to be about ₹2.5-lakh crore.
  • As the National Food Security Act (NFSA), which came into force in July 2013, enhanced entitlements (covering two-thirds of the country’s population), this naturally pushed up the States’ drawal (Based on an improved version of the targeted Public Distribution System (PDS), the law requires the authorities to provide to each beneficiary 5 kg of rice or wheat per month.)
  • For this financial year (2020-21) which is an extraordinary year on account of the COVID-19 pandemic, the revised estimate of the subsidy has been put at about ₹4.23-lakh crore, excluding the extra budgetary resource allocation of ₹84,636 crore.

 

Other Challenges Related to the Food Subsidy

  • While MSP is declared for 23 crops, the biggest financial burden comes from wheat and rice.
  • Overall procurement of rice and wheat has gone up to 52 million tonnes and 39 million tonnes, respectively. The requirement of PDS and welfare schemes is about 60 million tonnes.
  • This leaves a surplus of about 30 million tonnes, in addition to the carry-over stock of about 42 million tonnes (current)—far above the buffer and strategic reserve norms.
  • The cost of holding this stock works out to Rs 29,000 crore per year.

 

Will increasing CIP revamp the system?

Food grains via ration shops are supplied at highly subsidised rates of ₹3 per kg for rice, ₹2 per kg for wheat and ₹1 per kg for coarse grains through Public Distribution System (PDS) as per the National Food Security Act (NFSA).

  • The Economic Survey has hinted at an increase in the Central Issue Price (CIP),which has remained at ₹2 per kg for wheat and ₹3 per kg for rice for years, though the NFSA, even in 2013, envisaged a price revision after three years.
  • One should ponder over the advisability of keeping so low the retail prices of food grains at fair price shops, even after the passage of nearly 50 years and achieving substantial poverty reduction in the country. As per the Rangarajan group’s estimate in 2014, the share of people living below the poverty line (BPL) in the 2011 population was 29.5% (about 36 crore).
  • The Centre, by stating through the Survey that it is difficult to reduce “the economic cost of food management in view of rising commitment” towards food security, does not want the NFSA norms to be disturbed.
  • Political compulsions are perceived to be coming in the way of the Centre and the States increasing the prices.

 

Possible Solutions

 

Decreasing the quantum of coverage

  • It is time the Centre had a relook at the overall food subsidy system including the pricing mechanism. It should revisit NFSA norms and coverage.
  • An official committee in January 2015 called for decreasing the quantum of coverage under the law, from the present 67% to around 40%

“Give-up” option

  • For all ration cardholders drawing food grains, a “give-up” option, as done in the case of cooking gas cylinders, can be made available.
  • Even though States have been allowed to frame criteria for the identification of PHH cardholders, the Centre can nudge them into pruning the number of such beneficiaries.

Slab system

  • As for the prices, the existing arrangement of flat rates should be replaced with a slab system. Barring the needy, other beneficiaries can be made to pay a little more for a higher quantum of food grains.
  • The rates at which these beneficiaries have to be charged can be arrived at by the Centre and the States through consultations. These measures, if properly implemented, can have a salutary effect on retail prices in the open market.

 

Conclusion

 

  • There are no two opinions about reforms implemented in the PDS through various steps, including end-to-end computerisation of operations, digitisation of data of ration cardholders, seeding of Aadhaar, and automation of fair price shops.
  • Yet, diversion of food grains and other chronic problems do exist. It is nobody’s case that the PDS should be dismantled or in-kind provision of food subsidy be discontinued.
  • After all, the Centre itself did not see any great virtue in the Direct Benefit Transfer (DBT) mode at the time of giving additional food grains free of cost to the States during April-November last year (as part of relief measures during the pandemic).
  • A revamped, need-based PDS is required not just for cutting down the subsidy bill but also for reducing the scope for leakages. Political will should not be found wanting.



Why does India need dual citizenship?

THE CONTEXT: In a stunning development for Overseas Citizens of India (OCIs), the Ministry of Home Affairs issued a notification on March 4 dramatically altering the compact between OCIs and the Indian state. It is saying that the notification is the end of India’s experiment with dual citizenship. The development has started a new debate. In this article, we will analyse the issue in detail.

Notification by the ministry of home affairs

 

The new notification issued under the section 7(B) of the Citizenship Act, 1955. Under this notification the rules and regulation for the OCIs has been rescheduled. This notification supersedes three earlier notifications which were issued in 2005, 2007 and 2009.

The OCI cardholder shall be required to obtain a special authorization/permit to visit India from the competent authority or the Foreigners Regional Registration Officer (hereinafter referred to as “FRRO”) or the Foreigners Registration Officer (hereinafter referred as to “FRO”) if the Indian mission visit is for following purposes:

  • To undertake research;
  • To undertake any Missionary or Tabligh or Mountaineering
  • or Journalistic activities;
  • To undertake an internship in any foreign Diplomatic Missions or foreign Government organizations in India or to take up employment in any foreign Diplomatic Missions in India;
  • To visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority.

For any time period to stay in India and the exemption from registration with the FRRO or FRO, the OCI cardholders can also claim exemption from registration with the FRRO or FRO. Necessary to mention the OCI cardholders who are ordinarily resident in India shall intimate the FRRO or the FRO through email every time there is a change in permanent residential address and their occupation.

Parity with Indians nationals in the matter of

  • Tariffs in airfares in domestic sectors in India; and
  • Entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India.

Parity with non-resident Indians in the matter of

  • Inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption;
  • Appearing for the all India entrance tests.
  • Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens;
  • Purchase or sale of immovable properties other than agricultural land or farm house or plantation property
  • Pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:-

(a) Doctors, dentists, nurses and pharmacists

(b) Advocates

(c) Architects

(d) Chartered accountants.

 

Who are OCI citizens?

 

OCI citizens are of Indian origin; however, they are foreign passport holders and are not citizens of India. India does not allow dual citizenship but provides certain benefits under Section 7B (I) of the Citizenship Act, 1955 to the OCIs.

The ministry of home affairs defines a person as a oversees citizen of India who:

  • Was a citizen of India on or After 26thJan 1950
  • Was eligible to become a citizen of India on 26thJan 1950
  • Is a child or grandchild of such person

But a person is not eligible of OCI; if his parents or grandparents have ever been the citizen of Pakistan or Bangladesh. This category was introduced by the government in 2005. The government of India via Citizenship (amendment) 2015 merged the person of Indian origin (PIO) category with OCI category.

 

How new ruling impacts the OCI card holders?

  • Prohibits them from undertaking certain activities without prior permission of the Foreigners Regional Registration Officers (FRRO).
  • Parity with Indian citizens in the matters of tariffs in air fares in domestic sectors in India and entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India.
  • Special permission to undertake research work or taking up employment in any foreign diplomatic missions in India will need permission.
  • Prior permission will be needed if wants to visit any place that falls within the protected or restricted or prohibited areas.
  • This regulation will impact the government’s 2018 decision that made an OCI eligible for appointment as permanent teaching faculty in a premier educational institution. Such recruitments are governed by Section 7B 2(I) of the Citizenship Act, 1955.
  • It restored the lifelong visa to OCIs that was temporarily suspended in March 2020 in the wake of the Covid-19 pandemic.
  • An OCI cardholder to intimate the FRRO by email whenever there is a change in permanent residential address and in their occupation.
  • Eligible for appearing in all-India entrance tests. This will only be against any NRI seat and shall not be eligible for admission against any seat reserved exclusively for Indian citizens.
  • In a related case pending before the Karnataka High Court, the Centre had in March 2019 maintained the same stand. However, on 15 December 2020, the HC directed that students under the OCI category are to be considered citizens of India for admission to professional courses and not restrict their admissions only under the NRI quota.

Under the Foreigners (Restricted Areas) Order, 1963, the following areas have been declared as `Restricted’ Areas – Andaman & Nicobar Islands – Entire Union Territory and Sikkim – Part of the State.

  • Whole of Arunachal Pradesh
  • Parts of Himachal Pradesh
  • Parts of Jammu & Kashmir
  • Whole of Manipur
  • Whole of Mizoram
  • Whole of Nagaland Parts of Uttarakhand

 

OCI holders at par with NRIS?

 

  • The new notification is making OCI cardholders par with Non-Resident Indians in the matter of inter-country adoption of Indian children.
  • Appearing in the all India entrance tests and purchase or sale of immovable properties other than agricultural land or farm house or plantation property.
  • They can pursue the professions in India as per the provisions contained in the applicable relevant statutes which include doctors, dentists, nurses and pharmacists, advocates, architects, chartered accountants.

 

Is the new notification an end for India’s experiment with dual citizenship?

 

In 2006, in order to meet calls for dual citizenship, India introduced the OCI card for foreign nationals of Indian descent. The OCI card allows foreign citizens of Indian origin to visit, live and work in India as citizens would. But there were many key restrictions:

  • OCI card holders could not vote or participate in Indian politics
  • Can’t occupy any positions in public service
  • Can’t invest in agricultural land holdings

Moreover, it was hope that in future India will provide dual citizen to OCIs card holders and for that Lok Sabha MP Shashi Tharoor introduced a bill in Parliament to amend the Indian Constitution and allow dual citizenship for Indians. But, the new notifications are being seen as a step backward from granting dual citizenship to people of Indian origin who are citizens of foreign countries.

 

What is dual citizenship and why does India need it?

 

Introducing dual citizenship means that foreign citizens would be allowed to hold Indian passports and exercise all rights of an Indian citizen including participating in politics, policy and governance.

 

Why does India need Dual citizenship?

 

For Indian diaspora:

  • It would open the floodgates for a diversely skilled group of professionals to come back home, infusing India’s somewhat insular and protectionist policymaking apparatus with much-needed international expertise.
  • Dual citizens will bring Indian policymaking the benefits of global perspectives and lessons from global best practices.

To expand foreign policy:

  • For years, Indian foreign policy discourse has suffered from introversion and fence-sitting on matters of international politics and security. A large part of the domestic debate on foreign policy is restricted to the immediate neighbourhood – and often just one country out of them all: Pakistan.

Global influence:

  • They will also be more invested in steering Indian foreign policy discourse towards discussion on increasing India’s global influence, rather than on less meaningful populist chest-thumping: After all, many of them changed their passports in large part because of the consequences of India’s underwhelming global influence (the Indian passport is currently ranked 86 out of 109 positions on travel freedom – below Zimbabwe and Sierra Leone).

Easy citizenship by foreign countries:

  • Many Indians abroad change their passports for very practical reasons seeking access to a higher quality of life, high-paying jobs in multilateral organisations where Indian citizens are over-represented, or merely for mobility and travel freedom.
  • Between 2014 and 2017, 4.5 lakh Indians opted for citizenship of another country. As foreign countries offer easy citizenship in exchange for cash and investments, the trend is only set to grow.

For development:

  • Dual citizenship will more fully leverage the political influence of Indians abroad by giving them a more direct stake in India’s development – and more meaningful roles by which to contribute to it. If Indian dual citizens return home to be in politics or government, they are more likely to do so in order to fix many of the developmental challenges that forced their migration, rather than to serve any ‘grand designs’ of foreign sabotage in India

Others  countries are offering dual citizenship:

  • Eighty-five countries in the world offer dual citizenship. India needs to join this long list to avoid embarrassments such as an Indian winning the Nobel Prize but not being an Indian citizen.

But the new notification of government of India is against the demand of modern times that makes OCIs card holder as par Indian Citizens in some cases but restricted in some other cases and make them as par the NRIs. Although there are some criticisms of dual citizenship like:

  • the threat of having foreign citizens in positions of policymaking and power.
  • How can Indians trust folks who owe allegiance to a foreign power.

But the problem with these arguments is that this approach is totally misunderstand the Indian diaspora spectacularly. Unlike several foreign citizens of Chinese or Russian descent, Indian-origin citizens in the West did not flee from their home country out of spite or suppression.

 

What are the options for India? Case studies from other countries

 

Many countries have found a way around the technical and security issues involved.

  • Bangladesh requires its citizens to obtain a “dual nationality certificate” so that it can control who gets to take dual citizenship and under what circumstances.
  • Brazilians can acquire another country’s passport but they must enter and exit Brazil only on the Brazilian passport.
  • Canada actually encourages dual citizenship; the US discourages but allows it.
  • If the concern is security, one can look at Pakistan, which allows its citizens to hold dual citizenship of only 16 other countries, doesn’t let dual citizens run for public office or join the military. Signing dual citizenship agreements with other countries helps prevent its misuse.

CONCLUSION: The introduction of dual citizenship is a great opportunity for India to expand its global influence and attract the world’s talent to aid its domestic growth. More importantly, it will reinstate India’s legacy as a civilisation that is open rather than insular, global rather than protectionist, and confident rather than insecure. For India’s aspirations to be a global power, there are few attributes more pertinent than those.

 

Difference between OCI card holder, PIO and NRI

 

Overseas citizen of India:

  • OCI is an immigration status given to a foreign citizen of Indian origin as an alternative for dual-citizenship which is not allowed by the Indian Constitution.

Non-residential India:

  • NRI is a residential status given to a citizen of India with an Indian Passport who resides in a foreign country for the purpose of work/business, or education.

Person of Indian origin:

  • PIO is an identification status given to whom or whose any of the ancestors was a permanent Indian resident/citizen and who is currently holding valid citizenship and passport of another country.

 

Sources

https://www.outlookindia.com/website/story/india-news-how-new-oci-notification-is-going-to-impact-overseas-citizens-travel-stay-and-more/377216

https://theprint.in/opinion/its-time-for-india-to-adopt-dual-citizenship/307701/

https://scroll.in/global/988721/with-new-oci-notification-india-has-ended-its-experiment-with-dual-citizenship

https://m.timesofindia.com/nri/other-news/new-oci-card-rules-turn-the-spotlight-on-the-dual-citizenship-debate/amp_articleshow/81448930.cms

https://www.theweek.in/columns/shashi-tharoor/2020/12/03/time-to-approve-dual-citizenship.html




The Ranking of Indian Democracy and the need for Indian Think Tank

THE CONTEXT: The fifth annual democracy report by Sweden’s V-Dem Institute, titled ‘Autocratisation goes viral’, has downgraded India from “the world’s largest democracy” to an “electoral autocracy”.V-Dem’s findings are consistent with other contemporary international inferences on the quality of democracy prevailing in India: Freedom House designated India to be “partly free” recently; India was described as a “flawed democracy” in the latest Democracy Index published by The Economist Intelligence Unit.

 

India: A Captured Democracy

 

The current crisis of Indian democracy should be seen as the outcome of a “democracy capture”.  In democratic societies, the common good should prevail over individual interests. The state’s role is to design and implement public policies that enhance and improve the rights of its citizens. If the opposite is the case, the state is said to have been ‘captured’. A state that grants privileges to a few over the majority of the population is one in which public policies reduce or limit the rights of its citizens.

The current crisis is different from the Emergency

  • Emergency was an exception to a norm; what we now have is a different norm.
  • Emergency needed a formal legal declaration. Capturing democracy does not.
  • The Emergency had a beginning and was, at least on paper, required to have an end. Democracy capture has a beginning, but not necessarily an end.
  • Beyond Kashmir, there has been no mass arrest of politicians, and many more state governments are run by political parties that do not rule in Delhi.

This is ‘democracy capture’ as democracy is both the object and the subject of this capture. The apparatus being seized is democracy. And the means being deployed for this capture are also democratic. The formal procedures of democracy have been used to subvert the substance of democracy. This democracy capture could not have happened without some structural weaknesses within the Indian democracy. Therefore, one must focus on the conditions that made this kind of capture possible.

 

Government to blame

 

The rankings blame the government for the backsliding of democracy.  They say there has been increased pressure on human rights groups, intimidation of journalists and activists, and a spate of attacks, especially against Muslims under the present regime. This has led to a deterioration of political and civil liberties in the country.

  • V-Dem said the “diminishing of freedom of expression, the media, and civil society have gone the furthest” and that far as censorship goes India was “as autocratic as Pakistan and worse than its neighbours Bangladesh and Nepal”.
  • Freedom House said civil liberties have been in decline since 2014, and that India’s “fall from the upper ranks of free nations” could have a more damaging effect on the world’s democratic standards.
  • And The Democracy Index said the “democratic backsliding” by authorities and “crackdowns” on civil liberties had led to a decline in India’s rankings. It said government policies had “fomented anti-Muslim feeling and religious strife and damaged the political fabric of the country”.

The world moves towards autocratisation

 

Going by rankings, democracy, despite its enduring appeal, appears to be in trouble all over the world. The erosion of freedoms in India seems to be consistent with the retreat of liberal democracies around the world. According to V-Dem, electoral autocracies are now present in 87 states that are home to 68% of the global population.

  • In the 2020 Democracy Index, only 75 of the 167 countries and territories covered by the model – or 44.9% – are considered to be democracies.
  • Freedom House estimates less than 20% of the world’s population now lives in a free country, the smallest proportion since 1995.
  • According to V-Dem Liberal democracies are diminishing, and are home to only 14% of the people.
  • During 2020, two-thirds of countries imposed restrictions on the media and a third of countries have emergency measures without an expiry date.
  • But the breakdown of democracy in established cases is concerning. India is the latest example of this following Hungary and Turkey. The Indian case stands out given the size of its population and past record as a successful model of multi-ethnic democracy

India’s Autocratisation Process

 

  • Autocratisation typically follows a similar pattern across very different contexts. It begins with ruling governments attacking the media and civil society, followed by polarisation of the society by disrespecting opponents and spreading false information and culminates in elections and other formal institutions being undermined.
  • Leaders in some constitutional democracies have used use constitutionalism and democracy to destroy both. Electoral mandates plus constitutional and legal changes are used for this. They support elections and use their electoral victories to legitimise their legal reforms. They use constitutional change for achieving the unified domination of all of the institutions of state.
  • India follows the pattern observed in other cases of recent democratic breakdown, the typical pattern for countries in the ‘Third Wave’. India is among the countries leading the ‘third wave of autocratisation’.

Third wave

  • Unlike previous waves, the present wave mainly affects democracies.
  • Traditional methods of dramatic and blatant military coups (1stwave) and election fraud (2nd wave) have been replaced with legal, informal and discrete power transfers (3rd wave).

Like for authoritarianism

  • Surveys have reported that Indians have demonstrated both majoritarian and authoritarian impulses for some years now and younger people do not have particularly more progressive beliefs.
  • In the latest round (2010-2014)  of the World Values Survey, India along with Pakistan and Russia, featured below the global average on the importance accorded to democracy.
  • The latest Pew Global Attitudes Survey, conducted in early 2018, found that a majority of Indians were satisfied with the way democracy was working

 

Evidences from the reports

 

India is now ‘Partly Free’ in Freedom House’s report

  • Freedom in the World report has downgraded India’s status from a ‘Free’ country to a ‘Partly Free’ country. The report noted a “multiyear pattern” as it attributed the downgrade — from a score of 71 in 2019 and 75 in 2018 to 67 in 2020.
  • It said criminal charges were filed against journalists, students, and others under “colonial-era sedition laws” and the the Information Technology (IT) Act in response to “speech perceived as critical of the government, notably including expressions of opposition to the new citizenship legislation and discussion of the official response to the COVID-19 pandemic”.

Discrimination’ against Muslims

  • A number of Hindu nationalist organizations and some media outlets promote anti-Muslim views, which the government has been accused of encouraging.
  • The implementation of the CAA and the government’s intention for a NRC threatened to disenfranchise Muslim voters.
  • The report also mentioned cow vigilantism.

Lack of freedom’ in institutions

  • Freedoms of various institutions such as the Election Commission of India and the Supreme Court have been called into question.
  • The amendment of the Right to Information Actpotentially exposed the commissioners to political pressure.

Freedom of media and expression

  • The report said the authorities have used security, defamation, sedition, and hate speech laws, as well as contempt of court charges, to quiet critical voices in the media which has exacerbated self-censorship.
  • It also claimed that academic freedom has declined and that academics, professors and students are intimidated.

How reliable are these rankings?

 

Global exercises.

  • Freedom House’s latest global report on political rights and civil liberties covers developments in 195 countries and 15 territories.
  • V-Dem claims to produce the largest global dataset on democracy involving 202 countries from 1789 to 2020.
  • The Economist Intelligence Unit’s Democracy Index gives a snapshot on the health of democracy in 165 countries and two territories.

Rules and parameters

  • V-Dem says it measures “hundreds of different attributes of democracy” with almost 30 million data points, involving more than 3,500 scholars and country experts.
  • The Economist’s Democracy Index is based on measuring electoral process and pluralism, the functioning of government, political participation, political culture and civil liberties”.
  • And Freedom House says it uses a two-tiered system consisting of scores and status – a country is awarded points for each of its political rights and civil liberties indicators.

Subjectivity

  • Such rankings, according to a study by University of Pennsylvania, are the result of quantitative assessments – like distribution of seats in the national legislature among political parties – and qualitative judgements, like evaluating whether safeguards against corruption are effective.
  • Aggregating these indicators into an index is a subjective exercise, depending on the judgements of experts to identify metrics to include and how to weight each appropriately.
  • Most rankings do not impose a single definition of democracy – experts agree that an “electoral democracy” is really the bare minimum

India is now an ‘Electoral Autocracy’ in V-Dem’s report

 

India registered a 23-percentage point drop on its 0-to-1 Liberal Democracy Index (LDI) scale, which aims to capture electoral and liberal aspects of democracy.

With this slide, India has moved from the top 50% of the 180 countries analysed by V Dem to the bottom 50%. In last year’s report, India was last among the 90 countries in the top 50%. This year, it is ranked 97th, falling into the bottom 50%.

Elections

  • The autonomy of the ECI saw a severe depreciation since around 2013 and signals the decline in the quality of critical formal institutions.
  • The overall freedom and fairness of elections also was hard hit, with the 2019 elections, hastening a downgrading to an electoral autocracy.

Freedom of expression

  • By 2020, censorship efforts are becoming routine and no longer even restricted to sensitive (to the government) issues. India is, in this aspect, now as autocratic as is Pakistan, and worse than both its neighbors Bangladesh and Nepal.
  • In general, the government has used laws on sedition, defamation, and counterterrorism to silence critics. For example, over 7,000 people have been charged with sedition after 2014 and most of the accused are critics of the ruling party.
  • The law on defamationhas been used frequently to silence journalists and news outlets that take exception to policies of the government.

Civil Society

  • Constraints have been also placed on civil society. The UAPA, 1967, amended in August 2019, is being used to harass and imprison political opponents, as well as people mobilizing to protest government policies and to silence dissent in academia.
  • The government have increasingly used the FCRA to restrict the entry, exit and functioning of Civil Society Organisations.

India’s slide in other indices which monitor democratic freedoms

 

  • India’s slide in these reports only mirrors its decline in indices compiled by independent bodies which monitor democratic freedoms over the past few years.
  • In March 2020, Reports Without Borders (RSF)placed India alongside China, Russia, Iran and Saudi Arabia in a list of press freedom’s “worst digital predators”. The list flags countries where companies and government agencies use “digital technology to spy on and harass journalists”.
  • In April 2020, the US government’s Religious Freedom Monitorrecommended that the country’s state department should include India in the list of “countries of special concern”. It noted that religious freedom had improved globally but singled out India for seeing a “sharp downward turn”.
  • Again in April, India was ranked 142nd out of 180 countries in RSF’s Press Freedom Index, sliding two ranks down. It criticised the ‘longest electronic curfew’ in history in Kashmir and highlighted that ‘state troll armies’ in the country use the ‘weapon of disinformation’ on social media.
  • The country also fell 26 places to rank 105th among 162countries and territories on a global economic freedom index released by the Fraser Institute in Canada in September 2020.
  • Finally in December 2020, India was ranked 111th out of 162countries in the Cato Institute’s Human Freedom Index 2020. Between the 2019 and 2020 indices, the country plummeted 17 spots.
  • With the Centre giving the nod to the new IT Rules, which give the government sweeping powers, future reports could see India’s media freedom being downgraded further.

India is a “Flawed Democracy” in EIU’s ‘Democracy in sickness and in health report

 

India has fallen two places to 53rd in the 2020 Democracy Index report released by The Economist Intelligence Unit (EIU). The country was ranked 51st in 2019, with an overall score of 6.9 which has dropped down to 6.61. While India’s democratic credibility and scores suffered this year, regional neighbours, namely, Bangladesh, Bhutan and Pakistan saw marginal improvement.

Religious strife

  • It cites the CAA, as the primary cause that fuelled protests in the country for months.
  • The ground-breaking ceremony for the construction of Ram temple in Ayodhya, is the second significant event that the report cites to explain the fall in India’s position as a vibrant democracy

Lockdown

  • The government’s handling of the COVID-19 pandemic and a crackdown on voices that criticised its measures.
  • According to media reports, 55 Indian journalists were threatened, arrested and booked by the Centre and state governments for their reporting on COVID-19.

How has India’s government reacted?

 

The flurry of downgrades has cast a shadow on the global image of India’s democracy. The government has said that the ‘Freedom in the World’ report is “misleading, incorrect and misplaced”. The government also issued a point-by-point-rebuttal.In parliament, the chairman of the upper house, Venkaiah Naidu, did not allow an opposition MP to pose a question related to the V-Dem report

What could be probable impact on India?

 

A) Foreign Policy

The biggest impact of these developments is, of course, internal. But the impact is also external. India has been accorded great respect in the world but the perceptions are now changing. Other countries’ view of India is influenced by calculations and hopes that it can help counter Chinese expansionism in Asia.

India exercises lesser economic power internationally than China. Democracy was unquestionably one of India’s biggest international assets. The United States and its allies have courted India as a potential strategic partner and democratic counterweight to China in the Indo-Pacific region. However, the Indian government’s departures from democratic norms could blur the values-based distinction between Beijing and New Delhi

B) Entrepreneurship

In India, due to the diversities of economic life, the evidence shows that economic growth is best achieved in times of civic and social freedom. In India’s economic growth oriented phases where governments delivered steady growth rates, state had a lighter footprint on civic life.

The attempt to spur free private enterprise is bound to fail when the state apparatus is constricting civil and democratic rights. The common entrepreneur is a free thinker. But when the freedom to think is constricted, the robust energies of new entrepreneurs are in danger of being snuffed out.

What is the criticisms of these reports?

 

  • But just as democracy is not about poll statistics, our democratic credentials can’t be crunched into a score either. The parameters in play are unquantifiable. The method used to condense complexities of this vast country into a score that allows a rank ordering could be debated. Globally, ratings are being called into question. One prominent researcher concludes that the ratings may look scientific but they’re actually subjective.
  • General observation does confirm that India has not escaped global trends. Power appears more centralized than before and complaints have been aired of dissent losing space. What these ratings seem not to have taken into account are the popular voices of support for the constitutional values and democratic principles of equality, liberty and justice.
  • As Nobel laureate Amartya Sen has argued, Indians are an inherently argumentative, and our traditions of debate and discursive problem-solving go back millennia. The country’s response to the suspension of civil liberties during the Emergency testifies to that. It is hard to argue that Indians at large are not better informed and keener on empowerment now than they were then. Democracy is far more than the periodic ritual of exercising our franchise, yes, but it cannot be reduced to an index reading either.
  • Other organs of the state, Parliament and the Courts have enacted and reinforced progressive social legislation. Gay sex decriminalized, right to privacy fire-walled and women have been granted equal rights to pray in thus far male only places of worship. Even when state governments have enacted legislation impinging upon the private lives of two consenting adults the courts have been quick to restrain police who filed cases under the laws.
  • A large number of nations where there is no separation of powers between the state and religion, which do not have a republican form of government, and where the concept of equality before law does not exist, are way ahead of us. In fact, many countries in the top ten nations have different forms of Christianity as their state religion, whereas the secular ideal is embedded in the preamble of our Constitution.
  • These rankings are useful for research and identifying very broad trends that academics are interested in.This is an instance of academic discourse and concepts operating at a considerable distance from lived experience. The operational concepts across the two domains are very different.
  • Indeed, the methodology and ranking mechanisms adopted by organisations like Freedom House and projects like V-Dem can be critiqued. But Within their limitations, such assessments fulfil two purposes. They allow cross-national comparisons. One may have reservations about their criteria but being common for all countries, they give a reasonable idea where a country stands vis-à-vis others. They also tell us how a given country has been performing over time.
  • The ministry of external affairs is considering a “world democracy report” as well as a “global press freedom index” to be brought out by an independent Indian think tank.
  • The discussions were going on before recent reports by Freedom House and V-Dem Institute downgraded India’s democratic rankings.
  • The ministry of external affairs began discussions that India should counter reports such as the report from the Sweden-based V-Dem Institute and the Press Freedom Index by defining its own parameters on democracy.
  • In its internal note, MEA also suggested that missions across the world could actively engage with NGO/institutes such as the RSF and V-Dem and provide them with material which will help them put “India at the rightful place on the democracy and press-freedom index, in future reports”. The matter is still being considered and no decision has been taken.

WAY FORWARD:

 

  • The signs of authoritarianism cannot be denied. Since the end of the Cold War, most democratic breakdowns have been caused not by coups but by elected governments themselves. More prevalent now is what scholars are calling “democratic backsliding”, a new concept to depict democratic erosion led by elected politicians, often quite legally. Many government efforts to subvert democracy are legal in the sense that they are approved by the legislatures or accepted by the courts. There are examples from Latin America and Europe, and the US under Donald Trump. India’s democracy is backsliding, because elected politicians are subverting democracy.
  • Democratic backsliding in India is especially concerning because India’s democracy was exceptional as democracy was not only established at low levels of income, but it even flourished. Other certificates from foreign monitors or watchdogs are welcomed and celebrated. This is true of the QS World University Rankings 2021, and World Bank’s annual report on ease of doing business 2020. These are applauded — as they should be. Yet, the bedrock beneath top-notch campuses and a vibrant market are the nation’s democratic credentials and the work of maintaining them is the most stellar achievement of all. They are what separate India from its neighbours in the region, and what distinguish it from China. The combination of an open market and an open democracy is what attracts private players and investors factor into their economic calculations. There must be no erosion or backsliding here — and in an increasingly interconnected world, perceptions of erosion and backsliding need to be addressed, not dismissed.
  • If democracy was just about free and fair elections, India would be the world’s greatest democracy. The apparatus needed for a healthy democracy goes beyond elections to unelected institutions: the judiciary, the press, the Reserve Bank of India, the Election Commission of India, the Comptroller and Auditor General (CAG), the Lokpal, the Central Bureau of Investigation (CBI), the tax agencies, the police, and so on.
  • The more powerful a government, the more it pushes its way ahead of independent institutions. India will always have this problem of an executive seeking to ride roughshod over independent institutions through whatever means possible. Institutions that serve as the bulwark of democracy must regain their spirit and purpose for India to arrest its slide.
  • An awakening looks unlikely unless citizens themselves take up the cause of democracy. We had to pressure the government to have an independent system of appointing the Election Commissioners. Nobody wants to relinquish their powers. It is we the people who have to force the political class to have this conversation. Most of the Indian media has become a mouthpiece of the government. We need an equivalent of the First Amendment in the United States to ensure press freedom. It is civil society that will have to help create a consensus that we need to do something to ensure greater media independence.

CONCLUSION:

 

Democracy means that the rulers represent the will of the people. It will never happen on its own. People must act to make it happen. And they need to do it as a matter of habit, daily and everywhere. That lever of control over the government – seeking accountability – must be used at every step. Reclaim democracy. It must be done daily. Seeking it once every five years will not do.

 

Sources

https://www.thehindu.com/opinion/op-ed/a-democracy-capture/article32329108.ece

https://theprint.in/opinion/no-emergency-modi-shah-are-using-democracy-to-subvert-democracy/447685/

https://thewire.in/rights/india-no-longer-democracy-electoral-autocracy-v-dem-institute-report-bjp-narendra-modi

https://www.hindustantimes.com/india-news/india-rated-as-an-electoral-autocracy-by-global-institute-101615412313577.html

https://www.thequint.com/videos/news-videos/india-only-partly-free-it-is-not-just-an-internal-matter

https://www.bbc.com/news/world-asia-india-56249596

https://oi-files-d8-prod.s3.eu-west-2.amazonaws.com/s3fs-public/file_attachments/captured_democracy_executive_summary.pdf

https://theprint.in/opinion/authoritarian-streak-among-indians-on-the-rise-and-its-helping-bjps-hard-right-turn/335467/

https://indianexpress.com/article/opinion/columns/two-homegrown-questions-for-indian-democrats-7231466/

https://indianexpress.com/article/opinion/columns/elected-government-death-of-democracy-india-7200030/

https://www.bbc.com/news/world-asia-india-56393944

https://www.hindustantimes.com/india-news/india-mulls-new-democracy-report-freedom-index-by-local-think-tank-101615938955923.html

https://indianexpress.com/article/opinion/columns/india-china-emergency-democracy-7196194/

https://www.livemint.com/opinion/online-views/democracy-is-not-just-about-numbers-11579713634454.html

https://www.theleaflet.in/flawed-democracy-india-falls-to-53rd-position-in-economist-intelligence-units-global-democracy-index/#

https://timesofindia.indiatimes.com/blogs/bloody-mary/freedom-from-fear-for-the-economy-to-grow-democracy-cant-be-in-recession/




Abraham Accord and India’s Foreign Policy prospects In West Asia and beyond ?

THE CONTEXT: The Abraham Accord was signed between Israel and few Arab Nations in 2020 under the mediation of the then US President, Donald Trump. The agreement is held to open up new chapters of geopolitical cooperation and competition in West Asia. For India the bonhomie between the Jewish nation and the Arab states provides the possibilities for greater engagements with these blocks without having to play the balancing act. In this backdrop, the article examines how India can leverage the agreement for enhancing its outreach to West Asia and beyond.

 

Abraham Accord and its relevance to West Asia

 

What is Abraham Accord?

  • Abraham Accords was signed in the White house, in September 15, 2020,between the UAE, Bahrain and Israel, under U.S. President Donald Trump’s mediation.
  • Under the agreement, the UAE and Bahrain would normalize ties with Israel, heralding better economic, political and security engagement.
  • The UAE and Bahrain were followed by Sudan and Morocco in signing the Abraham Accords.
  • The accord is the first between Israel and Arab countries since the 1994 Jordan-Israel peace treaty.

Relevance to the region:

  • Although Egypt (1979) and Jordan (1994) had established diplomatic relations with Israel earlier, the Abraham Accords are widely seen as making a definitive breakthrough in the relations between Israel and the Arabs.
  • Israel-UAE relationship is seen to have acquired a character independent of Israel’s relations with Palestine and a promise of expansive political, economic and technological cooperation.
  • The agreements have the backing of Saudi Arabia, arguably the most influential Arab power and a close ally of the UAE and Bahrain. Riyadh has opened its airspace for commercial flights between the UAE and Israel.
  • The perceived Iranian hegemonic presence from Syria and beyond has made Israel and the Gulf partners more vulnerable. This accord and the normalization also explain a new reality: Israel has now become a formidable force in setting these emerging relations.
  • The accord shows that the best way to address challenges is through cooperation and dialogue and that developing friendly relations among States advances the interests of lasting peace in the Middle East.
  • It will encourage efforts to promote interfaith and intercultural dialogue to advance a culture of peace among the three Abrahamic religions in the region.
  • The Accords, from the UAE’s perspective can make sure the emirate along with its international centers of trade such as Dubai and Abu Dhabi do not become targets between Jerusalem and Tehran
  • Israel inaugurating its first diplomatic mission in Abu Dhabi and direct flights will result in business and tourism picking up between the two countries leading to greater prosperity and progress.

India and Abraham Accord: Opportunities ahead

 

Impetus to look West Policy:

  • Look West policy focuses on three main axes:  the Arab Gulf countries, Israel and Iran. India’s relations with the Arab Gulf countries had already undergone change and expansion since the 1970s. By contrast, India’s relations with Israel and Iran are more recent, emerging largely since the 1990s.
  • The accord provides strong impetus to India’s West Asia policy as the engagement with the two axes of Arab Gulf countries and Israel can be concurrently pursued.

Removal of strategic hurdle:

  • The signing of the Accords has removed a significant strategic obstacle of   delicate balancing act India has had to play out between the Arab Gulf and Israel over the decades especially in the backdrop of Palestine question.
  • New Delhi had welcomed the Accords, highlighting its support for mechanisms that offer peace and stability in the region.

Sea lanes of communication and energy security:

  • Defence of the waterways in and around the Persian Gulf, the Arabian Sea and the extended Indian Ocean Region (IOR) is critical as India still imports more than 80% of its annual oil requirements, much of which still comes from suppliers such as Iraq and Saudi Arabia.
  • The Accord in all likelihood will reduce the tensions and conflicts in the region which will help India’s energy supply passing through these waters and also provide a respite from continuous deployment of defense assets in the region

Churning geopolitical equations:

  • The new geopolitical churn is driven by Turkish president Recep Tayyip Erdogan’s assertive claims for the leadership of the Islamic world and Pakistan’s growing alignment with Turkey and its alienation from its traditionally strong supporters in the Arab Gulf — the UAE and Saudi Arabia.
  • Erdogan has been championing Pakistan’s case on Kashmir after India changed the territorial status quo of the state in August 2019. At Pakistan’s behest, Erdogan is also blocking India’s entry into the Nuclear Suppliers Group.
  • Thus there exists a greater scope for converging interests between India, the UAE, and Israel in this background

Eastern Mediterranean engagements:

  • Turkey’s quest for regional dominance has also widened the scope for Indo-Abrahamic convergence to the eastern Mediterranean to include Greece and Cyprus. Greece and Turkey have territorial disputes in the Aegean continental shelf
  • Greece has also looked towards India to enhance bilateral security cooperation. Greece’s European partners like France, which have a big stake in the Mediterranean as well as the Arab Gulf, have taken an active interest in countering Turkey’s regional ambitions.
  • This provides opportunities for India in deepening cooperation going beyond the West Asia towards the Mediterranean
  • Growing maritime connectivity with Greece can be a way of broadening India’s trade and investment footprint within Europe. It also serves strategic purposes in the context of increasing Turkish criticism of India.

Potential paradigm changes in thinking:

  • Many in India who view the Middle East through the religious prism believe Hindus and Jews are natural allies in the region. Many in Pakistan have long convinced themselves of a “Hindu-Yehudi conspiracy” to undermine its very existence.
  • But the deepening of Indian and Israeli ties with moderate Arab states challenges (in the context of the Accord), this religious paradigm of seeing cooperation among nation states as primarily driven by religious affiliation. The fresh perspective of viewing reality can reduce political and popular opposition to foreign policy outreaches in the region.

Scope for a formal partnership:

  • Deepening engagement between India, the UAE and Israel can be converted into a formal coalition. There are many areas like defence, aerospace and digital innovation where the three countries can pool their resources and coordinate development policies.
  • Coordination with Saudi Arabia will certainly remain a high priority for the three nations. Meanwhile, others like Greece are eager for greater cooperation with the coalition.
  • Also, Sudan can provide springboard to East Africa while Morocco is a gateway to western Mediterranean and North Africa.

Evidence of enhanced engagement (2021):

  • India carried out ‘Zayed Talwar’ naval exercises with the UAE off the coast of Abu Dhabi further deepening the fast developing strategic cooperation between the two countries
  • Indian Army chief, visited the UAE and Saudi Arabia, becoming the first chief of the Indian Army to do so.
  • An Indian contingent of the Indian Air Force will now visit Israel in October 2021 to take part in multilateral military exercises.
  • The recent visit by the Indian Air Force chief to Israel is another example of India’s rising attention towards the region.

Analysing the challenges: Abraham Accord and Indian outreach

 

Palestinian issue:

  • India is committed to the two nation states theory in the Middle East and its support to Palestinian statehood remains unchanged. Although India has tried to de hyphenate the Israel-Palestine relations, the challenge remains to balance the engagements with these two.
  • Moreover, the Arab world’s response (whether within Accord or outside) to the Palestine issue will also influence the trajectory of India’s outreach.

Iranian response:

  • Iran is one of the axis in India’s Look West Policy and the country has important place in India’s strategic calculus be they energy, security, or connectivity.
  • For instance, the connectivity projects such as Chabahar Port and Chabahar-Zahedan rail project have huge significance to India’s ambitions in Central Asia and Afghanistan, specially under changed scenarios after the Taliban takeover.
  • Iran perceives the Abraham Accord an attempt to clip its wing in the region and may view India’s growing proximity to the grouping with suspicion which may hamper India’s interests.

Role of Saudi Arabia:

  • Saudi Arabia, a close ally of UAE and Bahrain is among the most powerful countries in the region, is not a part of the Accord. Saudi Arabia has maintained a distance from this arrangement although Riyadh has praised the Accords, but said that the resolution of the Palestinian State remains at the forefront of its requirements
  • What course of action does the country takes in future will decide the Accord’s effectiveness and by extension the contours India’s outreach.
  • More so, when the vacuum left by the retreat of the Arab powers from the Israel – Palestine conflict is being filled by the non-Arab Muslim powers — Iran, Turkey and their allies.

Evolving regional dynamics:

  • With the U.S. in retreat and Turkey and Iran pursuing more aggressive foreign policies, there is a three-way contest taking shape, in which Sunni-ruled Arab kingdoms, all American allies, are realigning their geopolitical interests with Israel.
  • The Abraham Accords are likely to sharpen this contest. In such a scenario, Indian options in West Asia will remain what they were or may even get limited.

 

WAY FORWARD

 

Recalibrating strategies:

  • Till recently, India has been a reluctant power in this region but with a relatively weaker US and an assertive Chinese presence, India can’t afford to remain isolated.
  • New Delhi must recalibrate its options and methods in alignment with Gulf partners and Israel for its own security and strategic interests.

Leveraging the changed narrative

  • The Gulf states’ non-secretive relations with Israel would certainly legitimize India’s de-hyphenation policy towards Israel-Palestine relations.
  • The emerging ties between India and Israel and India-GCC relations need to be leveraged to help find new ways for multilateral engagements on strategic issues like, security, energy challenges, agriculture, space to cyber technology.

Soft power diplomacy:

  • India’s soft power has created a trust factor although India’s current domestic factors have seriously damaged its democratic credentials. In March 2020, the UN approached India for a constructive mediation between Israel and Palestinian considering New Delhi’s good relations with both sides.
  • India’s official de-hyphenation policy has been hailed by these two sides in the recent past. India needs to use this trust and acceptance factor in furthering Palestinian institutional building and equally nurture the special relationship with Israel.

More pragmatic engagement:

  • India’s energy security challenges and conditions of its expatriate workers’ conditions in the Gulf might serve India’s long term interest if it engages more pragmatically in this region.
  • India’s relations with Iran need not be strained for its enhanced outreach with the countries in the region which have a conflictual relation with Iran.

Extending cooperation into newer areas:

  • India and Israel’s relations have found new trajectories beyond defence and agriculture to cybersecurity and artificial intelligence.
  • In the past, India and UAE have signed a deal for securing their huge oil base. Similarly, India had major deals with Saudi for a huge investment. Notably, these Gulf states have one of the highest sovereign wealth funds and India offers an attractive market.

CONCLUSION:

 

The Abraham Accord presents greater opportunities to the peace, stability and progress of the Middle east. It also provides huge prospects for Indian’ outreach to west Asia in multiple areas. The shape and direction, the agreement will take depend on the Iranian and Saudi actions along with Palestinian issue resolution. India needs to devise strategies to reap the benefits of the changed equations in the region while minimizing its fallouts.

 

QUESTIONS

 

Q.1 How far do you think the Abraham Accord will address the pressing issues in Middle East? Justify your answer

Q,2 The Abraham Accord opens up new opportunities and challenges to India’s outreach in West Asia. Comment

 




Gig economy- Informalisation of labour or Freedom of work

THE CONTEXT: The concept and practice of gig economy has gained wide currency across the globe. In India, the entry of various food delivery apps, cab aggregators and others have revolutionized this segment of the economy. While they provide huge scope for freelance/part time jobs for India’s demographic dividend, the management practices of these platforms have raised concerns of labour exploitation. In this context, this write up examines how gig economy results in informalisation of labour on the one hand and provides freedom of work on the other.

Developing conceptual understanding

 

What is Gig economy?

  • The gig economy is a job market which consists of short-term or part-time work done by people who are self-employed or on temporary contracts.
  • Section 2(35) of the Code on Social Security 2020 defines a gig worker as a person who participates in a work arrangement and earns from such activities outside of a traditional employer-employee relationship
  • As per the World Economic Forum, gig economy is defined by its focus on workforce participation and income generation via “gigs”, single projects or tasks for which a worker is hired.
  • The term “gig” is a slang word for a job that lasts a specified period of time; it is typically used by musicians.
  • Examples of gig employees in the workforce could include work arrangements such as freelancers, independent contractors, project-based workers and temporary or part-time hires.
  • As there is no employer-employee relationship, the gig workers are not tied to any particular employer and therefore have greater flexibility in terms of the work they can choose and the hours they dedicate.
  • Businesses have flexibility when they are not dependent on a set of employees for executing tasks, and additionally benefit from avoiding the cost of social security and fixed remuneration provided to employees.

What is platform work?

  • Platform work means a work arrangement in which an organization or an individual uses online platforms to provide goods and services to consumers. For example, Uber, Ola, Zomato etc.
  • The Code on Social Security 2021 defines platform work as a work arrangement outside the traditional employer-employee relationship in which organisations or individuals use an online platform to access other organisations or individuals to solve specific problems or to provide specific services in exchange for payment.
  • Section 2(61) of the Code on Social Security defines a platform worker as someone engaged in or undertaking platform work.
  • In general, platform workers are the most visible and vulnerable faces of the gig economy. The gig work includes platform work also and often these terms are used interchangeably. For the purpose of our discussion, we also take a similar approach.

What is meant by informalisation of labour?

  • When the share of the informal workers in the total labour force increases, the situation is called informalisation of labour.
  • It is a process of consistent decline in the percentage of formal sector labour force and consistent increase in the percentage of informal sector labour force in the economy.
  • The Economic Survey of 2018-19, released in July 2019, said “almost 93%” of the total workforce is “informal”.

What is the meaning of formal and informal sector?

  • It must be made very clear that there is no universally accepted definition of formal and informal or organised and unorganised sector in India (http://iamrindia.gov.in/writereaddata/UploadFile/org_unorg.pdfread for further information)
  • In general, the informal sector of the economy is characterised by irregular and low income, precarious working conditions, no access to social safety nets, lack of legal safeguards etc.

Definition of labour force

  • Persons who are either ‘working’ (employed) or ‘seeking or available for work’ (unemployed) or both during a major part of the reference period, constitute the labour force. In simple words persons who are employed and unemployed are included in labour force (15-60 in general).

Definition of workforce

  • The Work force on the other hand includes only the employed and excludes the unemployed. People who are actually working are included in workforce. The difference between labour force and workforce is the total number of unemployed persons

How Gig Economy leads to informalisation?

 

Outside the purview of regulatory framework

  • The gig economy is outside the ambit of almost all the regulations applicable to the other sectors of the economy. The formal sector employment has been a tightly regulated one and even the informal sector faces some regulation. There is near absence of regulation in the area of gig economy especially in the context of labour rights.

Unclear employment relationship

  • In gig economy, the traditional employer and employee’s relationship is replaced by vague ideas of “partners, independent contractors and the like “. These companies call themselves as “aggregators and not employers” which provides escape route from the application of labour laws to them

Exploitative service conditions

  • The remuneration and working conditions are arbitrarily set by the companies and workers often complain unwarranted deduction from their salaries. There exists no grievance mechanism to raise the concerns of the workers. For instance, a Swiggy delivery boy earlier received 50 rupees for an order which has been progressively reduced to 20(10 in some cases) rupees on weekdays.

Subjugation to algorithms

  • The platform workers’ work life is controlled by the software application. It decides everything from when and where to onboard (log in), how much time is allowed for delivery, calculation of incentives and even imposition of penalty! The gig worker has no voice in deciding any of these aspects and the Application exerts total control over the workers.

Non existent social safety net

  • None of the social security benefits available to the traditional workers are available to gig workers. Even the adhoc group insurance is available only on “on duty days’.  The workers are vulnerable to risks of accidents and many have lost lives during the course of their duties. The companies don’t even have any data on how many of its partners have succumbed to Covid 19 or were infected by the virus.

Demand and supply mismatch:

  • when the labour supply is high and more disposable, the gig workers have no power to influence payment offerings, and freedom to choose becomes an illusion. In the interplay of demand and supply mechanisms, the gig workers always lose out. Thus, as platforms become more popular among gig workers, more of them join the pool, which leads to companies dictating the terms and conditions of work. The All India Gig Workers union has been protesting against the wage reduction by Swiggy but to no avail.

No scope for collective bargaining

  • The problem lack of a formal relationship within the gig economy landscape is accentuated by lack of effective unionization of the workers. The temporary nature of work, disaggregated location of workers etc do not make it feasible for a collective airing of grievances. Even the recently formed Indian federation of App based Transport workers’ protests did not change the status quo.

Exercising control without accountability

  • The companies claim that its workers are self-employed, and they can choose when and how long they wish to work. This is not true as for instance, Swiggy does not allow “home log in” and the worker has to reach a “hot zone” for log in. When a worker logs out or is irregular, then the frequency of the orders he receives is reduced. In other words, the companies exercise almost all the control of a traditional employer without commensurate responsibility to workers.

 

Gig Economy and the Freedom of work

 

Freedom of choice

  • The employees have the freedom to choose from a host of firms operating in the sector. For instance, a delivery executive can choose Swiggy, Zomato or any other food delivery app. This choice is also available in the case of e- commerce companies or cab aggregators and others. This freedom to choose can help the workers to look for greener pastures.

Flexible working hours

  • There are no mandatory working hours in these sectors and the worker is free to join in or out any time. This flexibility provides scope for control over one’s work which can be harnessed by those looking for part-time job like students, under employed etc.

No formal training required

  • The gig economy generally does not demand any formal education, skills or formal training for carrying out these jobs. For instance, a smart phone and a bike is enough for getting work in food delivery apps (of course subject to company policies). Thus it provides great livelihood opportunities for the unskilled and semi-skilled.

Incentivisation of hard work

  • The gig economy works on the principle of ‘the more you work, the more you earn’. This approach encourages those having the zeal for hard work by providing incentives on a par with the output of work. The scope for extra earning works as a great motivator.

Gender empowerment

  • The technology based platforms enable women to be a part of workforce by virtue of their openness.
  • Women could utilize the informal nature of the platforms especially factors like no restriction of time and place for their advantages. Studies indicate that women students and even housewives have been harnessing the opportunities for financial independence and supporting family during pandemic.

 

How to bring elements of formalization in Gig Economy?

 

Data on the size of the Gig workforce

  • Any step towards addressing the issue of informalisation in gig economy require proper data on the size of the workforce. The Parliamentary Standing Committee on Labour has criticized the labour ministry for its lackadaisical attitude relating to data collection. Data driven policy making and governance need to be the core of reforming the sector.

Legal interventions

  • Regulation by the State of this sector without undermining its animal spirit is the need of hour. The Code on Social Security although defines the gig and platform workers, is silent on the aspect of regulation. A separate regulatory regime for gig sector can be brought which must balance the interest of both the companies and workers.

Providing concrete social safety measures

  • The companies need to be persuaded to set up social security system for the workers. Alternatively, they can be legally mandated to contribute to the fund established by Centre or state governments.
  • For instance, the Code on Social Security, 2020, mandate companies employing gig or on-demand workers, to allocate 1-2% of their annual turnover or 5% of the wages paid to gig workers.

Clarifying the relationship between company and the workers

  • It is necessary to define clearly the nature of relation between these platform companies and the workers. Taking shelter under terms (partner etc) which have no legal basis will only lead to conflicts between workers and the companies and eventually impact the business prospects of the companies.

Learning from international judicial interventions

  • In 2021, the UK Supreme Court ruled that Uber’s drivers were entitled to employee benefits; in 2018, the California Supreme Court specified a test for determining an employer-employee relationship, which effectively designated gig workers are employees.  Indian courts must take a leaf out of these progressive judicial interventions.

Unionization of the workers

  • There is strength in numbers and the workers need to organize themselves to press for legitimate demands from the government and the companies. A federation of all gig workers must be established to work as a pressure group and a forum for constructive suggestions in improving the work culture and business practices.

Best practices of the state governments

  • Karnataka govt is in the process of drafting a law to provide minimum wages and social security benefits to the gig workers. It also formed a company, inter alia, to promote gig economy companies. The Karnataka Digital Economy Mission, a company with 51% stake for the Industries aim to promote the gig economy through various facilitative measures. These type of positive interventions can be replicated in other states also.

 

WAY FORWARD

 

  • The gig economy rides on the innovative and entrepreneurial spirit of the business leaders. Light-touch regulation of the sector which focuses on enabling the companies to accommodate the concerns of the labour rather than coercing them need to be adopted.
  • The huge success of the Initial Public Offerings of Swiggy and Zomato in Bombay Stock Exchange point out to the enthusiasm and trust of investors in the growth prospects of the sector. The listing of these companies means they have to disclose details of business practices under SEBI’sbusiness responsibility and sustainability reporting (BRSR) requirements. This may nudge/force the companies to address the concerns of forced labour as the employees are paid below minimum wages in many cases.
  • Although the Social Security Code 2020 aims to provide social security benefits to the gig workers, these are not legally guaranteed. It means the benefits will be available to the workers as and when government formulates the schemes. It is high time the good intentions are translated into concrete actions. The Industry is also in line with this approach as in a recent report, ASSOCHAM had suggested that gig workers should be entitled to potable benefits.
  • Neoliberal policies adopted by governments world over have put capital in high pedestal over labour. In India also the condition is not different as the race to attract private capital and investment have led to dilution of workers’ rights and their progressive informalisation. This is clearly visible in the context of the criticism of the four labour codes brought in by the government and the data provided by Periodic Labour Force Survey 19-20. Therefore, a Welfare State and Compassionate Capitalism must work in tandem for equitable distribution of surplus among the management and labour.

 

CONCLUSION

 

The Economic Survey 2020 has appreciated the role played by gig economy in terms of service delivery and provision of employment to the labour force in the pandemic period. This sector holds out huge promise especially in the context of governments’ push towards digital economy through Digital India. It is true that the freelance nature of the work and other attributes may not strictly fit into the traditional employer-employee matrix. But that does not mean the labour should be left for exploitation and suffer from poor working conditions. It is in the interest of all stakeholders; the promoters, management, workers, the shareholders the consumers and others that adequate concreate measures be adopted for a win situation for all.




How the Coronavirus is widening inequality around the World

THE CONTEXT: Before the coronavirus, inequality was already increasing in many parts of the developing world. But the pandemic is going to greatly heighten existing economic and social inequalities. In this article, we’ll discuss the role of Covid-19 in heightening inequality in the world and how to tackle them.

 

The background

 

  • The late microbiologist and environmentalist, René Dubois, famously articulated that every civilisation created its own diseases and epidemics. Into the eighth month of the novel coronavirus disease (COVID-19) pandemic, one is convinced about what ours would be: Inequality.
  • And it took a pandemic to bring this out. It is now being popularly mentioned as the ‘pandemic of inequality’. Nobody is sure when this defining point of the pandemic would be declared over.
  • In the last fortnight, global conversations on the pandemic revolved around its impacts on hunger, poverty and inequality, making the world slide again into a time where it had started talking about various global goals like the Millenium Development Goals and Sustainable Development Goals (SDG).
  • Recent estimates and analysis show that the pandemic is impacting the already poor more, whether they are in developed or developing countries.

António Guterres, secretary-general of the United Nations, while delivering the 2020 Nelson Mandela Annual Lecture, said:

“The COVID-19 pandemic has played an important role in highlighting growing inequalities. It exposed the myth that everyone is in the same boat. While we are all floating on the same sea, it’s clear that some are in superyachts, while others are clinging to the drifting debris”.

 

Role of Covid-19 in widening inequalities

 

Loss of job& pay

  • The pandemic has increased inequality between workers. Lockdown policies enacted by many governments to suppress the spread of the virus have particularly hurt the working poor in developing countries.
  • For these workers, who depend on a daily wage and casual work, the inability to travel to their places of work has led to a significant loss of earnings, with no protection and high levels of insecurity about the future of their livelihoods.
  • Consider a street vendor selling vegetables in the streets of Delhi. As the pandemic hit India and the government issued stay at home orders, the street vendor suddenly found herself out of living. In contrast, for the professionals who are able to work from home, the pandemic has had a more limited effect on their earnings.
  • The vast majority of workers in developing countries are in informal jobs, without access to the types of support that workers in rich countries get from their governments, such as furloughing schemes.

Digital divide

  • The pandemic is contributing to an acceleration in technological change, helping certain businesses stay open digitally and enabling many people to work from home who were previously unable to.
  • Those countries whose citizens have access to the internet and are well educated will gain from the move to online technologies such as Zoom for virtual meetings.

Widening gender gap

  • While both men and women must stay at home due to lockdown policies, women are more likely to take care of children and domestic chores, leading to an unequal distribution of household duties within the family.
  • Women across the world are much more likely to hold jobs in retail and hospitality where remote working is less possible, and which are particularly hit by lockdown-induced job losses.
  • The closure of schools and day nurseries may force women to withdraw from employment. In times of economic stress, girls are often the first to be withdrawn from school (or to miss classes) as they substitute for working mothers.

Rising protectionism

  • Coronavirus has hit at a time of weak levels of international cooperation. A major example of this is the ongoing trade war between the US and China, as well as numerous statements by the United States President Donald Trump that have undermined important international bodies like the World Trade Organization and World Health Organization.
  • The wider trend towards economic nationalism, with countries like the US and UK pulling out of major trade blocs, will be accentuated by the pandemic.
  • Greater protectionism in developed countries shuts developing countries out of their richer markets, leaving limited opportunities to gain from world trade.

Access to the vaccine

  • Access to the Covid-19 vaccine, once it is developed, will determine the scale and speed of recovery from the pandemic. This is likely to differ across rich and poor countries, further accentuating inequality.
  • The WHO has warned of vaccine nationalism where the distribution of vaccines is mostly given to citizens of rich countries, which are pouring billions of dollars into this research.
  • We have already witnessed huge fights to procure the necessary personal protective equipment for healthcare workers on the front line of the pandemic.

Impact of Covid-19 on Children

  • According to the recently released UN Report on the Impact of Covid-19 on Children, almost 24 million children could drop out or not have access to school next year due to the economic impact of Covid-19.
  • An estimated 42-66 million children could fall into extreme poverty as a result of pandemic.
  • The economic loss might reach 16,000 USD of lost earnings over a student’s lifetime, translating over time into 10 trillion USD of lost earnings globally.
  • 188 countries have imposed countrywide school closures, affecting more than 1.5 billion children and youth.
  • More than two-thirds of countries have introduced a national distance learning platform, but among low-income countries the share of distance learning is only 30%.
  • Rising malnutrition is expected as 368.5 million children across 143 countries rely on school meals for a reliable source of daily nutrition.

 

Other facts from different sources/reports to highlight growing inequalities

 

  • Oxfam, a non-profit operating across the world, has estimated that there are 121 million more people on the brink of starvation today due to mass unemployment, disruption to food production and supplies.
  • In 2019, the WFP assisted 97 million people, which was a record at that point of time. Currently, it assists 138 million people. A severe hunger crisis is precipitating due to the pandemic, among those who were already surviving on subsistence level or with external support.
  • According to the WFP, the number of hungry in the countries where it operates would increase to 270 million by the end of this year. This will be an increase of 82 per cent from the level immediately before the pandemic erupted.
  • It is first time since 1990, when the concept of human development measurement was adopted across the world, that the human development measure would come down in 2020.
  • Over time, economic growth has led to reduction in income inequality among countries. But within countries, inequality in income has, in fact, increased — by four per cent in Gini Coefficient (a statistical measure to gauge wealth distribution) since 1990.
  • This global increase in inequality was driven by widening inequality in China, India, Indonesia and the United States.
  • A Food and Agriculture Organization assessment shows that COVID-19 may cause an increase in each country’s Gini by two per cent.
  • In this case, the number of poor will additionally increase by 35-65 per cent. In India alone, some 400 million people would slip into poverty due to the impacts of the pandemic. And these are mostly workers in informal sectors. This again shows how disproportionate the pandemic’s impacts have been.
  • Recently concluded high-level political forum also highlighted that: First, the world has slipped on its commitments for SDGs. Second, inequality will further widen, thus making it very difficult to garner global support to fund the development agenda.

 

WAY FORWARD

 

  • To avoid the outcome of the pandemic, progress on three fronts is required : Information, Solidarity and
  • It is critical that education is at the heart of international solidarity efforts, from debt management and stimulus packages to global humanitarian appeals and official development assistance.
  • Now is the time to step up international solidarity for children and humanity— and to lay the foundations for a deeper transformation of the way we nurture and invest in our world’s youngest generation.
  • India as a lower-middle-income country needs to use education as an equalizer for its widespread socioeconomic inequalities. Focus on increasing education budget in New Education Policy budget and decreasing digital divide are welcome steps to achieve this goal.
  • Inclusive access to finance to strengthen and expand rural supply chains is also crucial. Banking products and financial services must be made available to poor populations on priority basis.
  • The Food and Agriculture Organisation (FAO) of the United Nations has recently launched a new comprehensive Covid-19 Response and Recovery Programme to provide an agile and coordinated global response aimed at ensuring access to nutritious food for everyone.

 

CONCLUSION

 

Whether the pandemic’s effect on inequality will be felt for many years to come will depend on whether governments in developing countries take concerted action – both in the immediate future, in providing large-scale income-support programmes for the working poor, and in the long term, in educating their workers to prepare for a more digitally advanced world and building the infrastructure for it. It will also depend on how the international community can act in a unified way to provide much-needed debt relief and finance for low-income countries.

 

Question to Ponder

  1. The COVID19 pandemic has played an important role in highlighting growing inequalities. It exposed the myth that everyone is in the same boat. While we are all floating on the same sea, it’s clear that some are in superyachts, while others are clinging to the drifting debris. Comment.
  1. Covid19 crisis has derailed the development process of the world and only a sustained innovative and coordinated effort can help the world overcome this crisis. Discuss the steps taken by India in this regard.
  1. Covid19 is now being popularly mentioned as the ‘pandemic of inequality’. Discuss the reasons for this and suggest some measures to reduce inequalities.
  2. While one part of the population enjoys work and nutritional security, health insurance and housing of globally acceptable standards, others survive at the edge of unprotected and uncertain work, abysmal housing without clean water and sanitation, and no assured public health care. Can we resolve to correct this in postCOVID India? Suggest how.



FCRA AMENDMENT

THE CONTEXT: Foreign Contribution (Regulation) Amendment Bill, 2020 was passed by both the Houses recently which seeks to amend FCRA,2010. It seeks to regulate the acceptance and utilisation of foreign contribution by individuals, associations and companies. In this article, let us try to understand the key amendments and the associated problems regarding it along with possible suggestions.

Amendments under Foreign Contribution (Regulation) Amendment Bill, 2020

 

Acceptance of Foreign Contribution

  • FCRA Act, 2010 prohibits acceptance of foreign contribution by certain persons such as election candidate, editor or publisher of a newspaper, judge, government servant, MPs and MLAs, judges and political parties among others
  •  FCRA (Amendment) Bill 2020 adds public servants ( as defined by IPC) to this list. He is any person who is in service or pay of the government, remunerated by the government for the performance of public duty.

Transfer of foreign contribution

  • A person cannot transfer foreign contribution to any other person unless such persons is also registered to accept under FCRA act 2010
  • FCRA (Amendment) Bill 2020 prohibits to transfer of foreign contribution to any other person I.e. individual, association or registered company

Aadhar for Registration

  • Under FCRA Act, 2010 , a person may accept foreign contribution if they have:
    1. Obtained a certificate of registration from central government or
    2.  Not registered, but obtained prior permission from the government to accept foreign contribution.
  • Under FCRA (Amendment) Bill 2020, now, any person seeking prior permission, registration or renewal of registration must provide the Aadhaar number of all its office bearers, directors or key functionaries, as an identification document.  In case of a foreigner, they must provide a copy of the passport or the Overseas Citizen of India card for identification.

FCRA Account

  • Presently, a person must accept foreign contribution only in a single branch of a scheduled bank specified by them.  However, they may open more accounts in other banks for utilisation of the contribution.
    1. Foreign contribution can be received only in an account designated by the bank as “FCRA account” in such branch of the State Bank of India, New Delhi, as notified by the central government.
    2. No funds other than the foreign contribution should be received or deposited in this account.  As per FCRA (Amendment) Bill 2020,
    3. The person may open another FCRA account in any scheduled bank of their choice for keeping or utilising the received contribution.

Restriction in utilisation of Foreign Contributions

  • Under FCRA Act, 2010 If a person is found violating any provision of FCRA, the unutilised or unreceived foreign contribution may be utilised or received, only with the prior approval of the central government.
  • Now, as per the current bill, the government can also restrict usage of unutilised foreign contribution for persons who have been granted prior permission to receive such contribution. It can be done, based on a summary inquiry and any other inquiry which makes government believe that such person has contravened the Act.

Renewal of License

  • As per Under FCRA Act, 2010, License needs to be renewed within six months of expiration
  • According to FCRA (Amendment) Bill 2020, Now the government can conduct an inquiry before renewing the certificate to ensure that person applying for it is-
  1. Not fictitious or benami.
  2. Is not prosecuted or convicted for creating communal tensions or indulging in activities aimed at religious conversion
  3. Guilty of diversion or misutilisation of funds.

Restriction in use of foreign contribution for administrative purposes

  • Under FCRA Act, 2010, not more than 50% can be used for administrative expenses but as per the current bill, it reduces it to 20%.

Surrender of Certificate

  • FCRA (Amendment) Bill 2020 adds a provision allowing the Central government to permit a person to surrender their registration certificate based on an inquiry but such provision is not available under FCRA Act, 2010

Suspension of Registration

  • Under FCRA Act, 2010, a registration of a person can be suspended for period not exceeding 180 days.
  • The Bill adds that such suspension may be extended up to an additional 180 days.

Necessity of FCRA

 

  1. International Learning : As per a study by University of Iowa, India has disproportionately high number of foreign funded NGOs. Other outliers were Egypt and Iraq which later suffered from anarchy and upheaval. Thus, to maintain our integrity, it is necessary to regulate these NGOs.
  2. NTU Singapore study : The study showed that foreign interference, foreign influence, soft power and hostile information campaigns are used by NGOs to impact the unity and integrity of nations and highlights the importance of regulating them.
  3. IB Report :An IB report highlighted how FCRA funds were being diverted towards scuttling developmental projects in the power, mining, agricultural and industrial sectors. The modus operandi includes  disguised money flows, staged protests and PR hit jobs against specific projects.
  4. Poverty Porn :Pictures of hungry African children and distraught rural women are used to raise funds, which are then diverted for business-class travel, five-star dinners and jamborees for NGO staff.
  5. High Staff Pay : The donations to organisations like Amnesty International are provided to save democracy and protect human rights. Instead, they are used to pay former executive high severance pay in the
  6. Industry-NGO nexus : Industries are running their own NGOs which are at times used to promote their product in the garb of welfare.

SYNGENTA CASE

 

Switzerland based agrochemical giant Syngenta runs a foundation in India for transforming Indian agriculture. Emamectin Benzoate used to be imported and sold at Rs 10,000 per kg by Syngenta NGO, was later manufactured by domestic companies and sold at Rs 300/kg. Thus, Industry promoted its product through its NGO not for welfare but to increase its own profit.

Problems under FCRA Amendment Bill

 

  1. Legislative Scrutiny :The bill got passed by both the Houses of the Parliament without any real deliberation and thus is seen as a legislative action that intends to silence civil society.
  2. Meaning of Democracy : The bill proposes a flawed understanding of democracy which reduces it to electoral democracy and any other form of democratic action is seen with suspicion and as illegitimate.
  3. Lack of data : The Bill fails to elaborate on the necessity of amendment. It has no data to showcase lack of accountability or regulation of the already heavily regulated NGO sector.
  4. Restriction on distribution of funds :The amendment stops distribution of funds to other bodies including FCRA registered bodies. It fails to understand the structure of NGOs where a big and capable NGO raises funds and then distributes it to small organisation which lack capacity to raise foreign funds on their own.
  5. Restriction of Administrative Expenses to 20% : The expense of any NGO that works on research, advocacy, capacity building, networking, model building for social innovations etc. are mostly administrative expenses. These same NGOs seek accountability from government and thus restriction fo fund use over 20% will throttle civil society.
  6. Bank account to be opened in SBI Delhi Branch : When all the commercial banks are connected through Core Banking solutions, the insistence on a SBI Delhi Branch shows unprecedented centralisation.
  7. Power of Investigation :The enhancement of power of the investigative officers and government officials in the name of inquiry do away with time bound investigations which were in earlier amendment.

WAY FORWARD

 

  1. Institutionalised Transparency and Accountability : NGOs need to be transparent and accountable in their own conduct if they seek to ensure transparency and accountability from the government.
  2. Regulation : NGOs need to be regulated and an Industry led NGO should not be allowed to work in the same or allied sector as that of the parent company. This will stop Industry-NGO nexus and allow real philanthropic bodies to start NGOs.
  3. Macro-management : Government needs to macro-manage the sector and not micro-manage the working of NGOs. Regulation should not lead to silencing the functioning of bodies.
  4. Independent Directors : Similar to Companies, NGOs should also have independent directors which are not motivated by profits and thus provide an independent voice of conscience to the NGOs.
  5. Time-bound Inquiry and permissions : Any inquiry and permissions that have to be provided by the government need to be time bound and all remarks should be noted down in written with attached evidences.


CONCLUSION:

 

NGOs are the third tier of Governance and play an important role in ensuring development of people and the nation. However, it is also true that some of the NGOs have been utilised by people with vested interests against the unity and integrity of nations. Thus, it is pertinent that NGOs should be regulated by the government while at the same time ensuring that their voice is not stifled and their survival is threatened. A proper balance between these two needs to be maintained for ensuring growth of nation and development of citizens.

Questions to Ponder

 

  1. “NGOs are dangerous. They do what the missionaries used to do in Colonial times. They are trojan horses. The worse the situations, the more the NGOs” ‐ Arundhati Roy. Comment.
  1. Critically analyse the FCRA Amendment Bill, 2020 while enumerating its salient features.



At 15, RTI act crippled by rising backlogs

THE CONTEXT: Fifteen years have passed since the implementation of the landmark Right to Information Act, 2005. In this article, we will assess the performance of the Act along with the associated problems and possible suggestions.

 

Some success stories of RTI 

 

  1. High number of applications being filled : There is a constant increase in the number of application being filed for seeking information. There are around 60 lakh cases filed every year as per an estimate.
  2. Attendance of the Village School Teacher in Panchanpur : Villagers sought information regarding attendance records, leave records and medical records of the absconding village school teacher. The teacher was summoned and suspended while a new teacher was appointed to the school thus upholding accountability of the system.
  3. Transparency in PDS for BPL Families, Bahraich, UP : When ration was not provided to the village between the period of Feb 2006 to December 2006, villagers filed an RTI regarding the acquisition and the distribution of the ration and also asked for copies of the ration records. The Kotedar was finally suspended after inquiry and thus upheld transparency in the system.
  4. Scams : Many scams such as Adarsh Society Scam, 2G scam, Commonwealth Games Scam, Indian red Cross Society Scam etc were found due to the application of RTI.

Problems with RTI Performance

 

  1. Capacity :The Central Information Commission has been headless since August 2020 leading to reduced capacity of the Commission. Similar, Odisha is functioning with only four commissioners and Rajasthan with three while Jharkhand and Tripura have none.
  2. Inter-state distribution : There is inter-state differences in the number of pending cases with the maximum being in Maharashtra followed by UP
  3. Low punishment to Government Officials : As per a study, government officials hardly face any punishment for violating the law. This sets a wrong precedent which promote complacent attitude to wards the Act in government officials.
  4. Pendency : Around 2.2 lakh cases are pending in Central and State Information Commissions which are the final court of appeal under the Act. It will take years to clear this backlog.
  5. Awareness : Awareness still eludes people of their rights provided under the RTI Act for holding public officials accountable.
  6. Failure of Courts to Uphold RTI : Court itself has failed to uphold RTI as seen in the RTI application for PM CARES or to the case seeking list of wilful defaulters from RBI.

RTI act salient features

  1. RTI Act provide for setting up of Central Information Commission and State Information Commission. These Commissions act as the Second Appellate Authority and also exercise supervision and monitoring over the functioning of Public Information Officers.
  2. Public authorities have to provide information as early as possible as but not later than 30 days (not later than 48 hours in the matters pertaining to life and liberty of an individual).
  3. In case of delay, the Central Information Commission or the State Information Commission can impose a penalty. The Commission can also recommend disciplinary proceedings against the officials guilty of the not providing information with malafide intention.
  4. In case of denial or not providing proper information an appellate structure has also been provided. First appeal lies with the First Appellate Authority nominated by the Department while the second appeal lies with the Central Information Commission or State Information Commission.
  5. Under the law, every commission should have a chief and up to 10 commissioners.

Supreme court ruling in CBSE vs. Aditya Bandhyopadhyay case, 2011

 

  1. RTI Act should not be “allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquillity and harmony among its citizens”.
  2. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty.
  3. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising `information furnishing’, at the cost of their normal and regular duties.”

The controversial verdict is being utilised by the PIOs to discourage RTI Applicants.

WAY FORWARD

 

  1. Awareness : Government should undertake immediate and widespread dissemination of knowledge about the law, as mentioned in Section 26 of the Act.The media and the civil society can play a major role in spreading awareness.
  2. Change in the mindset of officials : Officials need to realise their authority will in no way be undermined by opening up official bureaus.
  3. Modernisation :Officials have to put extra hours of work for streamlining and record-keeping, weeding out records as per the procedure laid down and computerising maximum information with proper indexing.  Information should be easily accessible by the people.
  4. Review of Laws : Even though the Act provides for precedence of its provisions over any other existing law that may contradict it, there is still a chance of conflict between laws. Thus, constant and consistent review and analysis of various provisions of the Act should be undertaken to ensure that it actually facilitates and does not restrict access to information.

CONCLUSION

 

In the present times, the incentives for secrecy are great, and the scope for discretionary actions wide, and thus, the role of information commissions is crucial for ensuring that people can obtain information on healthcare facilities, social security programs and delivery of essential goods and services meant for those in distress.

Questions to Ponder

 

  1. Critically analyse the performance of RTI in its life of 15 years.
  2. “Information is the currency of Democracy”. Comment.



Should contempt powers be reviewed ?

THE CONTEXT: The Supreme Court had initiated suo moto criminal contempt proceedings against advocate and activist Prashant Bhushan for his tweets regarding the functioning of Judiciary. The long drawn battle between the two has raised the issue over the need for review of contempt powers of court

Prashant Bhushan case chronology

 

1. In the first tweet, He commented on the role of Judiciary especially the last four CJIs in the destruction of Indian Democracy.
2. In the second tweet, He commented on the CJIs act of driving a 50 lakh bike at a time when the SC was in lockdown.
3. Supreme Court initiated contempt proceedings on the basis of a complaint filed by a lawyer. Subsequently, Supreme Court held Mr. Bhushan guilty on both twits “against the judiciary”.
4. Advocate Bhushan refuses to apologise. This started a battle between the two due to which experts called the Supreme Court’s action as causing a chilling effect on fundamental right to freedom of expression.
5. Supreme Court finally took a liberal approach and gave a punishment for Rs. 1 only.

Sources of contempt in constitution

 

1. Article 129 : It grants the Supreme Court power to punish for contempt of itself. However, it fails to define Contempt of Court in clear terms.
2. Article 142 (2) : It gives the Supreme Court power to investigate or punish of any contempt of itself.
3. Article 215 : It grants High Courts power to punish for contempt of itself. It also fails to define Contempt of Court in clear terms

Contempt of court definition in India as per contempt of court act ,1971

 

Contempt refers to the offence of showing disrespect to the dignity or authority of a court. The Act divides contempt into civil and criminal contempt.
1. Civil contempt refers to the wilful disobedience of an order of any court.
2. Criminal contempt includes any act or publication which:

  • ‘Scandalises ’the court, or
  • Prejudices any judicial proceeding, or
  • Interferes with the administration of justice in any other manner

3. ‘Scandalising the Court ’broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.

Contempt powers of Court

 

1. Fairness of criticism vs. Contempt : There is a think line between the two which needs to be checked by the judiciary as fair criticism of Judiciary is not contempt as per Section 5 of The Contempt of Court Act, 1971.
2. Interference : Section 13 of Contempt of Court Act states that even if some comment is assumed to be contempt, unless it substantially interferes or tends to substantially interfere, sentence cannot be imposed.
3. Truth of Statement : As per the amendment of 2006 in Contempt of Court Act which introduced section 13(b), truth is considered as a valid defence against contempt proceedings.

Nand Lal Balwani case, 1999 that shows necessity of contempt powers

 

  • Nand Lal Balwani, who claimed to be an advocate enrolled with Bombay Bar Association since 1995 shouted slogans in the open court and thereafter hurled his shoe towards the Court thereby interrupting court proceedings. He was informed that his actions were a case of contempt of court and was given time to file his response. Later afternoon he was sentenced to four months of jail for his actions. This shows that a safeguard such as contempt powers is important to punish such acts against the judiciary as judiciary upholds the trust of citizens and thus maintaining its superiority is important.

Problems with contempt powers

 

1. Fundamental Duty to develop spirit of inquiry and reform : Article 51A(h) mandates that every person needs to develop the scientific temper, humanism and spirits of inquiry and inform. If critical analysis of Judiciary is threatened with persecution, it stops citizens from performing their duty.
2. Freedom of Expression: Fair criticism of Judicial action is not contempt of court and thus citizen’s fundamental right to freedom of speech and expression under Article 19(1)(a) should be encouraged and not denied.
3. Right against Self-incrimination: Article 20(3) embodies the principle of privilege against self incrimination and declares that a person cannot be compelled to be a witness against himself. In Contempt of court cases, judges directly question the accused.
4. Vindication of Judges: Contempt power is necessary for the proper administration of justice. It is not to be used for the vindication of a judge as a person. However, in the present case it was used for the vindication of sitting CJI.
5. Vagueness: Section 2(c) of the Contempt of Court Act, 1971 uses phrases like scandalises or tends to scandalise or Lower the authority of court which are vague in characteristic.

Law commission of India report of 2018

 

1. High no. of Contempt cases: The Commission observed that there were a high number of civil (96,993) and criminal (583) contempt cases pending in various High Courts and the Supreme Court. The high no. of cases justify the continuing relevance of the Act.
2. International Comparisons: UK has abolished contempt laws. However, there are two differences with UK which warrant its continuity in India.

  • India has high no. of continuing cases while the last case of scandalising the court in UK
    was in 1931.
  • The offence of Scandalising the Court continues to be punishable in UK under other laws.
    Abolishing it will leave legislative gaps.

3. Source of Contempt laws : Superior courts in India derive authority from the Constitution. Thus, deletion of the offence from the Act will not impact the inherent constitutional powers of the courts.
4. Impact on Subordinate courts : If the definition of contempt is narrowed, subordinate courts will suffer as there will be no remedy to address cases of their contempt.
5. Ambiguity : Amending the definition will cause ambiguity. If there is no definition for criminal contempt in the Act, superior courts may give multiple definitions and interpretations to what constitutes contempt.
6. Adequate Safeguards : The Commission noted that there are several safeguards built into the Act to protect against its misuse. The Commission further noted that the Act had withstood judicial scrutiny, and therefore, there was no reason to amend it.

Way Forward

 

1. Independent Tribunal : The bench that faced contempt should not be the same that decides the contempt. A separate independent tribunal should be established to look after all the contempt cases.
2. Separation of criticism of judge and Judiciary : Courts should write down reason for initiating contempt proceeding and explicitly explain how it impacts the imparting of justice and is not due to the criticism of some libel judge or some verdict.
3. Liberal Approach towards Contempt : The courts should not be sensitive towards criticism and only take up contempt in various serious cases of Contempt.
4. Regulation of Social Media : Twitter which was used by Prashant Bhushan gives absolute freedom of speech and expression can be misutilised for spreading contempt. Thus, there is a need to ensure that technology is not utilised for undermining the institutions.

Some examples from courts that have set the precedent for contempt proceedings across the world 

1. Regina versus Commissioner of Police, 1968 case : The judgment remarked, ““Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
2. Chief Justice Gajendra Gadkar : He cautioned against frequent or indiscriminate use of the power of contempt and observed, “Wise Judges never forget that that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality
of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct.
3. D.Feldman in his book – Civil Liberties and Human Rights in England and Wales, argues that the nature of the proceedings of contempt are in breach of Article 6 of the European Convention of Human rights which guarantee that an accused be informed of the nature and
cause of the allegation against him .
4. Justice Krishna Iyer :“The principle is to avoid confusion between personal protection of a libeled Judge and prevention of obstruction of public justice and the community’s confidence in the great process. The former is not contempt, the latter is, although overlapping spaces
abound.”
5. Phillmore Committee of UK : The crime of scandalising the court should be replaced by a new and strictly defined criminal offence.

Conclusion

 

  • Contempt power of the Court was envisaged by the founding fathers of the India Constitution as a necessary safeguard for upholding the dignity of the Judiciary. Even the Law Commission in its report has suggested continuance of the Contempt power.
  • However, it is also pertinent from experience that there is a greater need to have a liberal approach towards contempt of courts and principles of natural justice should be upheld in such cases.

Question to Ponder

 

  1. Critically analyse the necessity of Contempt of court powers in India.
  2. Do you think Contempt power is necessary for the proper administration of justice? Give your view with justification.  



Is the role of Parliamentary Standing Committees reducing?

THE CONTEXT: There was not a single meeting of any parliamentary committee in the four months following the national lockdown and the opposition parties have claimed that the government is making Parliamentary Standing Committees irrelevant by bypassing them while passing legislations. The Lok Sabha Speaker has initiated an assessment of the effectiveness of the Standing Committees and the Rajya Sabha secretariat had already done a similar analysis.

BACKGROUND

 

  • The institution of Parliamentary Committees has its origins in the British Parliament. The earliest parliamentary committees were the Public Accounts Committee (PAC) (1921) followed by the Estimates Committee (1950).
  • A parliamentary committee is a committee which is appointed or elected by any House or nominated by the Speaker/Chairman and which works under the direction of the Speaker/Chairman and presents its report to the House or to the Speaker/Chairman and the respective Secretariat. They draw their authority from Article 105 and Article 118
  • The practice of regularly referring bills to committees began in 1989 after government departments started forming their own standing committees. Prior to that, select committees or joint committees of the houses were only set up to scrutinise some very important bills.
  • DRSCs were set up first in 1993, to ensure Parliament could keep with the growing complexity of governance.  These are permanent Committees that are reconstituted every year.
  • DRSCs are composed of members from across political parties. Currently, there are 24 DRSCs. Each has 21 members from Lok Sabha and 10 from Rajya Sabha.
  • Each DRSC focuses on a set of ministries and, therefore, helps its members build sector knowledge. DRSCs can examine Bills referred to them; select specific topics related to the ministries and examine implementation by the Government; and examine the budgetary outlays of the departments.
  • They do not consider matters of day-to-day administration but only focus on long-term plans and policies to guide the working of the executive. They have the right to call for records and witnesses and prepare reports that are then placed before Parliament for necessary action.
  • Some of the important Bills currently under scrutiny of standing committees include those on data protection, surrogacy and DNA technology regulation and the Industrial Relations Code, 2019.

TYPES OF COMMITTEES

 

  • There are broadly two kinds of committees: (a) Standing Committees; and (b) Ad-hoc Committees.
  • Both Houses have a similar committee structure, with few exceptions. Their appointment, terms of office, functions, and procedure for conducting business is regulated as per Rules of Business of each House.
  • Standing committees are permanent in nature, and are reconstituted from time to time. They can be further divided into financial committees and DRSCs.
  • Ad hoc committees are appointed for a specific purpose — like the examination of a bill or inquiry into specific subjects, say, the 2G scam — and exist only until this purpose is fulfilled.

IMPORTANCE OF STANDING COMMITTEES

 

  • Over the years, responsibilities of the government have increased significantly. Government expenditure and legislation have become technical and complex in nature. Disruptive changes in technology and the expansion of trade, commerce and economy in general throw up new policy challenges. The laws and regulations that are required to govern a digital society cannot be made without highly specialised knowledge and political acumen. MPs may have great acumen but they are generalists. They are neither effective in their role as lawmakers nor in questioning the functioning of the government. Also, given the volume of work it is difficult for Parliament to scrutinise all government activities in the House in a limited time.
  • Parliamentary Committees ensure that Parliament can effectively discharge its two functions – lawmaking and oversight of the executive. Their ability to devote more time on each item allows them to examine matters in greater detail. Smaller group of lawmakers with interests and expertise of individual members could have more open, intensive and better informed discussions. Members of Parliament can get the assistance of experts through the committees.
  • The sittings of Parliament are steadily declining over the years, from 100-150 sittings in the 1950s to 60-70 sittings per year. Fewer sittings of Parliament are compensated by the working of DRSCs. During the recess in the current Budget session, the committees have done work worth 30 sittings of Parliament. Also, only a limited proportion of the budget (17% in the 16th Lok Sabha) is usually discussed in the House. The DRSCs examine the budget in detail and ensure financial accountability. Bills that are referred to committees are returned to the House with significant value addition. For example, the Committee on Food and Consumer Affairs suggested several amendments in the Consumer Protection Act, 2019, most of which were accepted and incorporated in the Act.

ADVANTAGES

 

  • Parliamentary committees enable input from experts and those who may be directly affected by a policy or legislation. For example, the DRSCs often invite comments from the public and call people to testify.
  • Since time on the floor of the house is allocated on the basis of party strength, many MPs very less time. But in committee meetingsMPs can contribute extensively to the discussions.
  • Committee reports are usually exhaustive and provide authentic information on matters related to governance. Their reports allow for informed debate.
  • Being outside direct public glare allows members to discuss issues and reach consensus without worrying about constituency pressures.
  • They also help parties reach consensus on various issues as committee meetings are ‘closed door’ and members are not bound by party whips and the anti-defection law does not apply to committees.
  • The committees allow members to focus on some specific areas and build their expertise, which helps them scrutinise issues more thoroughly.

 

FUNCTIONING OF DRSCs

 

While it is difficult to analyse the quality of deliberations of its sittings, the number of sittings held by various DRSCs can be used as an indicator to measure the quantity of work done by them.

  • Examining Demands for Grants: in many cases MPs do not have sufficient time to study the DRSC reports on Demands for Grants
  • Examining Bills: the trend shows that fewer Bills are being referred to Committees as compared to previous Lok Sabha
  • Examination of Issue some of the subjects identified for examination by DRSCs constituted for 2019-20 include: state of the Indian economy, online security measures for data protection etc.
  • Reports submitted by DRSCs: During the 16th Lok Sabha, 2,038 sittings were held by DRSCs and they submitted 1,111 reports. On average, DRSCs published one report in 1.8 sittings. Average sittings taken to publish one report vary across DRSCs.

 

RECENT TRENDS

 

  • The recent decline in the role and performance of standing committees is part of a larger trend visible even before the lockdown, an India Spend analysis of published parliamentary data regarding eight standing committees found.
  • Despite 133 Bills being passed in the 16th Lok Sabha, 15% higher than the previous Lok Sabha, a lesser number of Bills were sent to committees for scrutiny. According to PRS Legislative Research, only 25% of the Bills introduced were referred to committees in the 16th Lok Sabha, as compared to 71% and 60% in the 15th and 14th Lok Sabha respectively.
  • Comparing every standing committee’s number of meetings and number of hours under both governments shows a steady decline. The number of sittings decreased by 22.1% and the standing committees were 26.8% less productive by number of hours during 16th Lok Sabha as compared to the 15th Lok Sabha.
  • The average attendance of every departmentally-related standing committee was 54% in the second session (November-December 2019) and 48% in the third session (January-March) of the 17th Lok Sabha.
  • The standing committee on finance, which scrutinises the expenditure of the Ministry of Finance, had the lowest attendance of all at 22 between November and March.

HOW THE ROLE OF PARLIAMENTARY STANDING COMMITTEES IS REDUCING?

DIMINISHED SAY IN LEGISLATIVE MATTERS

There was a decrease in the involvement of standing committees in legislative matters. Only 25% of all bills were referred to committees, compared to 71% under the previous government. Only about 10% of bills introduced in Parliament during the 17th Lok Sabha have been referred to committees.

The opposition has charged the government with bypassing parliamentary panels by introducing all bills in the Lower House, where it has a strong majority. Controversial laws like RTI Amendment Bill and the UAPA Amendment Bill were not referred to any Parliamentary Committees despite the Opposition’s motion. During the lockdown between March and August, the government has promulgated 11 ordinances. Some of the ordinances which had nothing to do with the pandemic could have been brought as bills and sent to the committees for review.

PARTISANSHIP CURTAILING DELIBERATION

Traditionally, parliamentary committees function on a non-party basis. This tradition seems to have broken down and members have started political posturing. The committee on home affairs saw political partisanship during its meeting on Kashmir post abrogation of Article 370.

When a party has sufficient numbers in both Houses of Parliament, it is almost inevitable that these standing committees are populated by members from the ruling disposition, which enables them to prevent matters unfavourable to the government from being taken up.The PAC was recently prevented from scrutinising the PM-CARES Fund by committee members from the ruling party.

Such political partisanship during the proceedings of committees has reduced its deliberation over important issues such as tracking the expenditure of ministries and, consequently, its ability to hold the government to account.

VIRTUAL MEETINGS NOT ALLOWED

Virtual meetings of standing committees were not allowed by the Speaker despite requests due to the confidentiality conditions under Rule 275 of the Lok Sabha. If parliamentary standing committees were able to meet virtually, they could review the performance of the government and how it dealt with the pandemic.

The standing committee on labour looked at the performance of the One Nation-One Ration Card scheme and the welfare benefits to migrant labourers, but months later. Timely review and recommendations by the committee was required here. More than 15 countries have allowed their parliamentary committees to meet virtually to ensure socially distanced proceedings.

A NEW TREND

Several Bills piloted by the Finance Ministry have been referred to specially-formed joint committees of the two Houses rather than the DRSCs. The DRSC is chaired by a member from the opposition while the joint committees were chaired by a member of the ruling party.

WHY THE ROLE OF PARLIAMENTARY STANDING COMMITTEES IS REDUCING?

 

In 2002, the NCRWC pointed out some shortcomings of the committees: (a) low attendance of MPs at meetings; (b) too many ministries under a committee; (c) norms not followed by most political parties while nominating MPs to committees; and (d) the constitution of DRSCs for a year leaves very little time for specialisations.

Saving time and scrutiny could be reasons to bypass parliamentary panels. It can take months to table a report in the Parliament with some bills being referred to committees more than once. When a government has adequate numbers to push through legislation, it might view the committee as unnecessary and disadvantageous as it allows the Opposition to get its dissent noted on record.

Repeated requests to either send or not send or send bills to a joint committee, instead of an already established specialised committee, creates an impression that the committee process is political and not focused on technical scrutiny. Not referring a bill to a committee sends the message that the bills piloted by the government are perfect, and they are so urgently needed that they do not require the contribution of a committee of MPs. These impressions reduce overall interests of the MPs to participate in the meetings.

With reports of large-scale absence of MPs from the committees, the Rajya Sabha Chairman has pointed out that a total of 95 MPs did not attend a single meeting of the 8 DRSCs that reviewed allocations for 18 Ministries after the presentation of the 2020-21 Union Budget. MPs are unable to pay attention to the committees as they prioritize social functions in their constituency due to risk losing voters.

The issue of members not attending the meetings of committees, particularly DRPSCs, has come to the fore against the backdrop of the opposition’s criticism that the government was bypassing parliamentary scrutiny by not referring bills to the DRPSCs. The committee chair’s supervisory role has not proved to be effective and there is no mechanism for a regular assessment of the performance of the committee.

MEASURES TO STRENGHTHEN THE COMMITTEE SYSTEM

 

REFERRING BILLS TO COMMITTEES

Currently, it is not mandatory to refer a Bill to a Committee. All Bills, other than Money Bills, should be referred to the DRPSCs for consideration and scrutiny after public opinion has been elicited. The Committees may schedule public hearings, if necessary, and finalise with the help of experts the second reading stage. Referring all Bills to a Committee would ensure that all laws go through a minimum level of Parliamentary scrutiny.

EXPERT WITNESSES AND RESEARCH SUPPORT

Very often, MPs experience a knowledge gap when dealing with specialised subjects. The DRSC usually invites experts while scrutinising Bills but this is not always the case. The technical support available to Parliamentary Committees is limited to a secretariat. Late Speaker Somnath Chatterjee favoured associating external experts with parliamentary committees to support the committees in analysing legislations and policies. There is a need to reconsider the infrastructure support that MPs require for contributing effectively. Committees in other countries such as the UK, USA, and Canada can retain specialist advisors to assist in specific inquires.

REPORTS OF THE COMMITTEES

Currently, reports of the Parliamentary Committees are not discussed in the Parliament. The reports are non-binding and have persuasive or advisory value. The government can ignore the recommendations. Major reports of all Parliamentary Committees should be discussed by the Parliament especially where there is disagreement between a Parliamentary Committee and the Government. The findings and recommendations of the PAC should be accorded greater weight.

LONGER TENURES

The Standing Committees are permanent and the one-year term is of the members of the committees and not of the committees per se. MPs should have longer tenure in committees so that they could build up their expertise in subject areas. Once a member is nominated to a committee, he should be allowed to continue till he retires or otherwise discontinues the membership.

ATTENDANCE OF MEMBERS

Persistently absent members from the committees should be dropped from them after being duly cautioned. A proportionate reduction in salary and other allowances could also be effected

WAY FORWARD

 

  • Parliamentary committees are the brain of Parliament. They give the institution the ability to identify pressing and prospective issues, suggest solutions, and highlight gaps in implementation. They are a huge reservoirs of information, which are made available to MPs in order to enlighten themselves, and contribute ideas to strengthen the parliamentary system and improve governance.
  • The DRSC system has been a fairly successful experiment. It is important to further strengthen its ability for detailed scrutiny of issues so that it helps parliament work well in its lawmaking and accountability roles. They largely have an audit-based role of their respective ministries and are restricted in their areas of functioning. Strengthening their working will improve Parliament’s overall effectiveness. Standing Committees should embrace the entire spectrum of administration for an in-depth and continuous study.
  • The performance of the Committees affects the overall effectiveness of Parliament as an institution. There should be periodic evaluation of the parliamentary committees which can be then reviewed by the chairman of the Rajya Sabha and the speaker of the Lok Sabha along with the chairmen of the committees following a parliament session.

CONCLUSION

 

  • Standing committees are the parliament’s principal instrument to ensure executive accountability. These Committees could restore the balance between Parliament’s legislative and deliberative functions and its role as a representational body. They could provide a potent mechanism for a meaningful multilateral dialogue and reasonable accommodation of varying viewpoints and harmonization of conflicting interests.
  • Parliamentary oversight of administration is never intended to adversely affect administrative initiative, effectiveness and discretion. The purpose of accountability mechanisms is to strengthen efficient functioning of administration and not weaken it. Better scrutiny leads to better governance.

Question to Ponder

 

  1. Are Parliamentary Committees witnessing a gradual decline? Analysis the situation and suggest measures to strengthen the committee system.



The USA Withdrawal from Afghanistan- Opportunities and Challenges for India

The Context: USA President Biden has announced the withdrawal of all US troops from Afghanistan by September 11, 2021, the 20th anniversary of the 9/11 attacks. The development has deep implications on the South Asia region and will impact regional stability at a large scale. In this article, we will analyze the opportunities and challenges for India after the USA withdrawal from Afghanistan.

The USA Withdrawal from Afghanistan:  All You Need to Know

The Present Development• In April 2021, US President Joe Biden announced that all American troops would be withdrawn from Afghanistan by September 11 of 2021, thus bringing to end the country's longest war, spanning across two decades.
• Following suit, the North Atlantic Treaty Organization will also pull out its troops from the war-torn country.
Background of the Withdrawal• The longest-running conflict in US history, the war in Afghanistan has led to the deaths of nearly 2,400 American troops, and cost the country around $2 trillion.
• After contemplating for months since winning the election, Biden has decided that US troops should not remain in Afghanistan
• In 2009, as Vice-President under Barack Obama, Biden had strongly opposed expanding the US military presence in the country and maintained that its goal should be restricted to counterterrorism missions.
• But despite his arguments, Washington went on to increase its number of troops from 36,000 in 2009 to almost 1 lakh in 2010. It was only after the killing of Osama bin Laden by a SEAL team in Pakistan’s Abbottabad in 2011 that the US began winding down its presence in Afghanistan.
Why did the U.S. Invade Afghanistan?• After the September 11, 2001, terrorist attacks, the USA declared war on Afghanistanby saying that the Taliban had turned down USA demand to hand over al-Qaeda leaders, including Osama bin Laden, who plotted the attacks.
• Inside Afghanistan, the NATO coalition troops led by the U.S. quickly dislodged the Taliban regime and established a transitional government.
• The U.S. rejected an offer from the Taliban to surrender and vowed to defeat the insurgents in every corner of Afghanistan.
Why is the U.S. Pulling Back?• The U.S. had concluded long ago that the war was unwinnable. Presidents, starting with Barack Obama, had promised to bring American troops back home from Afghanistan. But the U.S. wanted a face-saving exit.
• In July 2015, the Obama administration had sent a representative to the first-ever meeting between the Taliban and the Afghan government that was hosted by Pakistan.
• The talks did not progress as the Afghan government disclosed after the first round that Taliban leader Mullah Omar had died two years earlier.
• Later, President Donald Trump appointed a special envoy to directly negotiate with the Taliban. That envoy and his team held talks with Taliban representatives in Doha that led to the February 2020 agreement between the U.S. and the insurgents.
• In the agreement, the USA promised that it would withdraw all American troops from Afghanistan by May 1, 2021. After that, President Joe Biden endorsed the deal but pushed the deadline for withdrawal to September 11.

What does the USA Withdrawal from Afghanistan Signify for different Stakeholders?

Afghanistan• The departure of troops will leave a security void that will create even greater instability in Afghanistan.
• The US has handed Afghanistan back to the Taliban. The Taliban are stronger than they have ever been since 2001 and are in complete control of over 30 percent of Afghanistan’s area.
• Once US troops completely withdraw, the Afghan security forces devoid of their intelligence and firepower will be simply unable to withstand the Taliban and they could just storm into Kabul as they did in 1996 and re-establish the Islamic Emirates of Afghanistan.
• Afghanistan could slip back to medieval anarchy of hardline Islamism, with women banned from jobs or education not even permitted to move freely and minorities under constant threat.
The USAThere were two prime objectives for the USA to invade Afghanistan
• The USA was succeeding to achieve its primary object i.e.: to defeat the terrorism of Al-Qaida and Take revenge for the 9/11 attack by killing Osama it was failed on the ideological front and did not establish a peaceful democracy. This is a major defeat for the USA.
Pakistan• This is a moment of both vindication and concern in Islamabad. The Taliban are a creation of the Pakistani security establishment.
• After the US invasion of Afghanistan, they removed themselves to safe havens in Pakistan territory, and the Taliban High Council operated from Quetta in Balochistan.
• For Pakistan, it is a moment of vindication. The US withdrawal will create turbulence in Afghanistan which they could use to enable the Taliban to come into power.
• This would give them a pliant leadership in Kabul which will provide it much-vaunted ‘strategic depth’. They could also use it to fan the flames in Kashmir as was done in the early 90s.
• All this at a time when the economy is flailing, and Pakistan stays afloat on an IMF loan with strict conditionality, and the Taliban are not a monolith.
• It has to guard against instability in Afghanistan from spilling over the border. Pakistan’s eastern front with India is quiet at the moment, so that is one headache less, but it would remain a concern for the Pakistan Army.
Russia along with Central Asian Countries• In recent years, Russia has taken on the role of peacemaker in Afghanistan. But both the Taliban and the Afghan government have been wary of its efforts.
• The U.S. exit from Afghanistan is a security headache for Moscow which fears spiraling fighting may push refugees into its Central Asian backyard and destabilize its southern defensive flank.
• Afghanistan's Central Asian neighbors - Tajikistan, Turkmenistan, and Uzbekistan - with whom Afghanistan shares its longest border have bolstered border security in the backdrop of a Taliban takeover of the border crossings.
• Russia held many talks to establish peace in Afghanistan after the USA withdrawal. In November 2018 Russia invited the Taliban for a talk. After that, it held another peace talk in March 2021 and the next peace talk is going to be held in mid-August 2021.
• After a conference in March of Russia, the US, China, and Pakistan, along with Taliban and Afghan delegates, a joint statement by the four principals said they did not support the establishment of an Islamic Emirate, leaving the Taliban angry. Russia's growing links with Pakistan could translate into a post-US role for Moscow in Afghanistan.
China• In conjunction with Pakistan, China will also seek to reestablish its influence and perhaps use its economic clout to extend CPEC there. Afghanistan's location fits in well with China's long-term strategic plans.
• A Taliban regime in Afghanistan might end up stirring unrest in the Xinjiang Autonomous region, home to the Uighur minority. Conversely, as an ally of Pakistan, it could see a bigger role for itself in Afghanistan.
• China is willing to work with the Taliban in Afghanistan. In August 2021 China's foreign ministry welcomed Taliban Official in Beijing which shows that China is ready to work with the Taliban in Afghanistan.

For India

  • The US withdrawal will have grave implications for India. Their presence provided a security umbrella for the government and even our interests there.
  • India had very good ties with the democratically elected government in Kabul and had earned a tremendous reservoir of goodwill there.
  • India has invested heavily in infrastructure projects like the making of the Parliament Building, the development of Kabul’s electricity grid, the Zaranj – Delaram road, and many other projects.
  • On the other hand, we have never had good ties with the Taliban and their role in the hijacking of IC 814 to Kandahar still rankles.
  • Our influence in Afghanistan and our very presence will be at risk should the Taliban come to power in the aftermath of the US withdrawal.
  • India has repeatedly expressed its concern and is in favor of a two-pronged approach for Afghanistan: Encourage the warring sides to agree to total ceasefire and bring them to the negotiating table for them to draw up a political agreement on their own.
  • Moreover, the first action by India after taking over the presidency of the United Nations Security Council is to convene a meeting to discuss the worsening situation in Afghanistan.

Opportunities for India

To Deal with Elected Government• This is an opportunity for India to deal with the elected government for the establishment of democracy in a strong manner. It will help India to keep out the Taliban.
Training and Equipment to Defence Forces• Although, the USA will withdrawal its troop from Afghanistan it will continue the training and other aid to Afgan forces. India should use this development as an opportunity and try to play an active role in the post-USA scenario.
Regional Stability and Peace• India may seek to use its role in regional efforts to bring peace and stability to Afghanistan, like the recent UN effort, to press its goal of ensuring Afghan territory cannot be used by anti-India militants.
Economic Cooperation• India should increase its economic cooperation with Afghanistan and help them to overcome the Covid-19 impact.
Use its Goodwill Image• Without interfering in Afghanistan’s internal affairs, India can still build partnerships between various stakeholders and raise the capacity and capability of its friends to resist the Taliban onslaught.
• Essentially, India will need to step beyond conventional and conservative diplomacy to play a more proactive role in supporting the Afghans.

Challenges for India

Economic Concerns• Ever since reconstruction work began in Afghanistan, India has invested over $3 billion in building roads, hospitals, schools, providing training, arms, and fighter aircraft to the Afghan armed forces. After the US withdrawal, India's investment will be at stake.
Security Concerns• Taliban’s arrival on the centre stage will not only put India's economic interests at stake in Afghanistan, but it will also pose a huge security threat to India because Pakistan's prominence in Afghanistan will increase and Islamabad could use the Taliban against Indian’s interests there.
Nexus Against India• Since Russia has also moved to improve ties with Pakistan and is more than keen to play an important role in Afghanistan's internal affairs, as evident from Moscow's peace talks with the Taliban last year, the possible emergence of a strategic China-Russia-Pakistan axis along with the Taliban, could jeopardize India’s position.
China Influence• China is the most important regional player. With the help of Pakistan and Russia, it can influence Afgan policy which is not good for India.
• India has the ambition to bypass Pakistan to grow its relationship with middle Asia but china's influence can affect its policy.
• China recently signed a 400-Billion-dollar deal with Iran, which is another concern for India.
Jammu and Kashmir• Many Taliban soldiers could move to India, especially to the Kashmir valley, to pursuit their Jihad. The insurgency in Kashmir has peaked in 1996 when the Taliban had captured power in Afghanistan.

Should India have Dialogue with the Taliban?

India should have a dialogue with the Taliban:

  • The Taliban, no longer an untouchable force, control much of the country’s rural territories.
  • The U.S. has already signed a deal with the Taliban, China welcomed the Taliban delegation, Russia hosted talks many times and European powers have also shown interest in sponsoring talks. So, India has to be more flexible and adapt to the new strategic reality.
  • Russia called another meeting, namely troika plus, for bringing political reconciliation in Afghanistan. Although, Russia has invited the United States, Pakistan and China to the meeting and kept away India.

What kind of dialogue does India have with the Taliban?

  • Since the fall of the Taliban, India has cultivated deep ties with the Afghan people and the government, with investments in multiple projects dealing with education, power generation, irrigation, and other infrastructure development.
  • India should have a dialogue with the Taliban but continue the support to the elected government in terms of trani9ng the security and police forces, and rallying other countries to finance the Afghanistan government, in its efforts to ensure peace.
  • India joining the peace process could strengthen the hands of the Afghan government, which is negotiating from a position of weakness.
  • If the Taliban agrees to share power elected government, it is good but if it does not agree then the Indian government should try to support the elected government. If the Taliban takes power forcefully, it would not be acceptable for India.
  • The question India faces, like the other stakeholders, is how to help Afghanistan end the violence without a total capitulation to the Taliban. New Delhi should, using its regional clout as well as its deep ties with both the U.S. and Russia for peace in Afghanistan.

What Should be the Way Forward for India?

Broader Diplomatic Engagement• India should consider appointing a special envoy dedicated to Afghan reconciliation.
• The envoy can ensure that Indian views are expressed at every meeting, broaden engagement with the Afghan government and other political actors, and reach out to certain Taliban representatives.
Continued Training and Investments• India should provide more military training to Afghan security forces and invest in longer-term capacity-building programs.
• It should actively support and invest in the National Directorate of Security (for example, by providing training and sharing intelligence).
• Finally, given the continued levels of violence and the impact of the coronavirus on the Afghan economy, India should expand its development assistance.
Working With and Through Others• India should look to broaden its engagements with Iran and Russia, explore opportunities for cooperation (as limited as they might be) with China, and find common ground with the United States on Afghanistan’s future.
• This does not mean forcing competing interests to align; it means investing in a wider diplomatic initiative with the view to carving out areas of convergence.

Conclusion: Although, USA withdrawal brings adverse impacts in India’s Afghanistan policy. While the development brings many challenges for India but it also opens many opportunities to play an active role in Afghanistan. India needs to be careful to play its card in its Afghanistan policy.

Questions to Ponder

  1. ‘USA withdrawal from Afghanistan is both a challenge and an opportunity for India’. Comment on the statement.
  2. Discuss how the USA withdrawal from Afghanistan would impact India’s interests in Afghanistan?
  3. India needs to decide its role in Afghanistan, it is sure that India can’t be merely a spectator in the context of Afghanistan. Discuss the statement in light of recent developments.

 




The Issue of Microplastics Pollution

THE CONTEXT: Amidst all the claims of making Ganga clean and clean, a Delhi-based NGO Toxics Link has found that the river Ganga has rapidly degraded due to human activities. In the study, the presence of Micro-Plastics has been studied along the banks of river Ganga. This article analyses the issue in detail.

What are Microplastics and Where do they come from?

Micro-plastics are very small (generally less than 5 millimeters in size) plastic particles that can originate from a variety of sources, such as ingredients in cigarette filters, textile fibers and cleaning or personal care products, and dust from car and truck tires, as well as from larger plastic products broken down by the effects of the sun, wind and ocean waves.

There are two types of micro-plastics: “primary” and “secondary” micro-plastics.

  • Primary micro-plastics are manufactured to be tiny in order to serve a specific function for example, as an abrasive in a consumer product.
  • Secondary micro-plastics come from the breakdown of larger plastic items.

Microbeads as a part of microplastice pollution
• Microbeads are a sub-category of microplastics, commonly manufactured for domestic use in cosmetic scrubs, toothpaste, and cleaning products.
• Cosmetics companies added them to their personal care product portfolios, including cosmetics, lotions, face washes, toothpaste, shampoos, sunscreens, shaving creams, and exfoliators.
• These microbeads can get stuck in the eyes and also get lodged in the eyelid, thereby injuring the cornea.
• The abrasive material used in toothpaste can get stuck in the gums and bone holding the teeth, trapping bacteria and leading to gingivitis, bleeding from the gums, and weakening of teeth.

What does the Recent Study about the Levels of Pollution in River Ganga tell us?

  • Samples of Ganga’s water were collected from Haridwar, Kanpur, and Varanasi. Micro-plastics were found in all of them.
  • Five samples of water from the river at Haridwar, Kanpur, and Varanasi were sent to the National Institute of Oceanography in Goa for examination. 40 different types of polymers of microplastics are present in the water of river Ganga.
  • Resins such as EVOH, polyacetylene, PIP, PVC, and PVL were found in abundance at all three sites.
  • Apart from micro-plastics, there were other kinds of plastics as well such as single-use plastic and secondary plastic products.
  • Of the samples, those taken at Varanasi had the highest concentration of plastic pollution.
  • Untreated sewage from densely populated cities across the river’s course, along with industrial waste and religious offerings that are wrapped in non-degradable plastic add a significant amount of pollutants into the river.
  • As the river flows, these waste and plastic materials are carried into the Bay of Bengal and then into the ocean which is the “ultimate sink “of all plastics that are used by humans.

The reasons for Microplastics in Ganga

  • Dumping of plastic items and waste into the river, which over time turns into small pieces and the river eventually takes this waste into the sea in large numbers. This chain is the last stop for the plastic being used by humans.
  • The poor condition of both solid and liquid waste management. It is necessary to take steps to fix it.
  • In comparison to Kanpur and Haridwar, Varanasi has the highest number of microplastics found in the Ganga river.
  • It is clear from the microplastics found in the Ganga river that plastic waste management rules are in force in the country, but they are not being implemented properly. There is a need to ban single-use plastic.

The Impacts of Microplastics Pollution

Among the range of plastic debris that is found in water bodies, micro-plastics are the most notorious because of their small size, on average micro-plastics are less than 5 mm in length or roughly equal to five pinheads.

River and Ecosystem• Micro-plastics have effects on animals living in rivers.
• Most plastic pollution starts on land before traveling, via rivers, to the ocean. During this MPs affect the river ecosystem badly.
• There are higher concentrations of microplastics in rivers than there are in the sea.
• In the UK, a recent sample of the river Mersey near Liverpool found that there was an average of 84,030 particles of microplastics in each square meter of water.
• Microplastics have been found in fish and other animals. There is evidence that they can cause physical harm to small creatures in a variety of ways, such as directly damaging their mouths or by filling their stomachs and impairing their ability to feed.
• Microplastics act as a vehicle for transporting harmful chemicals into humans and other animals.
Impact on Marine Species• Micro-plastics are harmful to marine species.
• More than 663 marine species are affected by marine debris and 11 percent of them are related to micro-plastic ingestion.
• Because micro-plastics are so small, they are ingested by marine habitants including fish, corals, planktons, and sea mammals and are then carried further into the food chain.
Impacts on Human• In the case of humans, most of the micro-plastics can be found in food, water and food containers and their ingestion can cause health problems.
• The results of this study are a matter of grave concern from the public health perspective.
• The Ganga is a source of water for not just drinking and bathing purposes but also for irrigation to a large extent.
• A study conducted by the World Wide Fund for Nature last year revealed that an average person consumed 5 grams of plastic, which is equivalent to a credit card.
• Another study published by Environmental Science and Technology revealed that humans might be consuming 39,000 to 52,000 micro-plastic particles a year.
• Micro-plastics might contain toxic chemicals that cause obesity, diabetes, and some types of cancers. As the problem continues to mount and plastic continues to remain an integral part of human life, a solution must be sought at the earliest.
Impact on Environment• Micro-plastics are being impacted the environment from north to south.
• The river is acting as a carrier of plastics and micro-plastics and transporting significantly large quantities into the ocean.
• In 2020, alarm bells went ringing after scientists found micro-plastic pollution in the snow near the peak of Mount Everest. Tiny plastic fibers within a few hundred meters of the world’s highest mountain, at a spot called the balcony, located at 27,500 feet, just a few hours climb from Everest’s summit.
Bioaccumulation Bio and Magnification• Micro-plastics holds the potential for both bioaccumulation and biomagnification.
• Bioaccumulation refers to the entry of a pollutant or toxic substance into the food chain whereas bio-magnification refers to the increase in the concentration of a toxic substance at each successive trophic level after entering into the food chain.
• In bioaccumulation, the concentration of the toxic substance increases in the organism of the same type as the toxic substance is retained in the body of the organism while in biomagnification, the toxic substance gets accumulated in the body of organisms at successive trophic levels at a higher concentration than the previous trophic level.

What are the Solutions?

Recycling• The most natural response to microplastic pollution is recycling.
• While recycling is not a permanent solution that will remove plastic from the face of the earth. It is, however, a smart solution to prevent microplastic pollution.
Reducing Plastic Consumption• It is an important step that can be taken to ensure that the level of microplastic pollution in the country is removed.
• From regulating the use of single-use plastic to ensuring proper waste management, several steps can be taken by the government and local bodies to prevent microplastic pollution.
• The fact that India today produces 20 times more plastic than it did in 1964, is proof of the fact that a change is needed and it is needed immediately.
Public Engagement• Taking personal initiatives such as zero-waste trips, shunning disposal food, using your own utensils, quitting the use of bottled water and giving up plastic packaging, here are some of the steps that every citizen can take to curb microplastic pollution.
Strengthening EPR• The strengthening of the implementation of Extended Producer Responsibility (EPR) in Plastic Waste Management Rules since a lot of pollution in the Ganga was due to industrial waste.
• EPR put the onus of plastic waste management on the producers or the company’s manufacturing the products. It also pushes the argument that rivers should be declared as ‘no plastic zones’.
Industrial Engagement• Before a phase-out or ban is announced by the Union government, the industry must voluntarily start putting a label on the personal care and cosmetic products (PCCPs) that mentions that their products contain intentionally added micro-plastics.
• This will enable the consumer to take responsibility for keeping the environment free from the impacts of micro-plastics.
• The Central Drugs and Standards Control Organisation must recognise the products that use intentionally added primary micro-plastics and equip themselves to restrict the use of prohibited raw materials.
International Experience to Reduce the Microbeads • Microbeads are not captured by most wastewater treatment systems. If washed down the drain after use, they can end up in our rivers, lakes, and oceans.
• The best way to reduce the impact of microbeads is to prevent them from entering the environment in the first place.
What is Australia doing about microbeads?
• In 2016, agreed to support a voluntary industry phase-out of plastic microbeads found in rinse-off personal care, cosmetic, and cleaning products.
• Consistent with the intention of protecting the marine environment, the phase-out targets rinse-off products which are reasonably capable of entering the marine environment through normal use.
• The 2019 National Waste Policy Action Plan includes a commitment from the business sector and governments to phase out 100 percent of microbeads from the targeted rinse-off products.
• Plastic microbeads in these products can be substituted with natural abrasive ingredients, such as pumice, salt, and crushed seed kernels.

Conclusion: As micro-plastics have become a severe danger for marine life and human health, the government should regulate the micro-plastics contains products and should focus to reduce the use of micro plastics and plastic as well. Apart, from it, a mass movement for the active engagement of all sections of society is vital to get positive results in reducing micro-plastics.

Additional Information

Microplastics and Nanoplastics

  • Plastic particles below 5 mm in length are called micro-plastics. The smaller ones, with a size equal to or less than 100 nm (1/10 000 mm) are called Nano-plastics. They are so tiny that one cannot see them with the naked eye or even with an ordinary optical microscope.
  • Micro-plastic particles are accidentally consumed by marine organisms, which are then consumed by predator fish. Nano-plastic particles are even more toxic to living organisms as they are more likely to be absorbed through the walls of digestive tracts and thereby transported into the tissues and organs. Consequently, such plastic particles can interfere with various physiological processes, from neurotransmission to oxidative stress and immunity levels of freshwater and marine organisms.
  • Extended Producer Responsibility (EPR): It is initiated by National Environmental Standards and Regulations Enforcement Agency in 2013. It is defined as an environmental protection strategy that makes the manufacturer of the product responsible for the entire life cycle of the product and especially for the take-back, recycling and final disposal of the product.

Particle categoryDiameter range
Nano-plastics<0.0001 mm
Small micro-plastics0.0001 mm- 1 mm
Large micro-plastics4.75 mm
Meso-plastics4.76- 200 mm
Macro-plastics>200mm

Questions to Ponder

  1. Discuss the impacts of micro-plastics on human health and marine life.
  2. What are sources of micro-plastics? How they can be contained?