The HINDU Notes – 10th August 2018 - VISION

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Friday, August 10, 2018

The HINDU Notes – 10th August 2018

📰 Nod for three changes to triple talaq Bill

•The Union Cabinet on Thursday approved three crucial amendments to the triple talaq Bill, including a provision for bail to an accused before the start of trial.

•These three provisions to the Muslim Women Protection of Rights on Marriage Bill, which makes instant triple talaq illegal and imposes a jail term of up to three years, provide additional safeguards from the Act being misused.


•While the proposed law will remain “non-bailable” — the police cannot grant bail at the police station — the accused can approach a magistrate for bail even before trial.

📰 Perils of historical amnesia: on Article 35A

Critics of Article 35A forget that it was introduced to bring J&K closer to India, not tear it further apart

•The irony of today’s India is that while our politics is looking towards our history more often than ever before, we are also becoming comfortable with its constant manipulation. The controversial Article 35A of the Constitution, which is currently being challenged in the Supreme Court, is a case in point. Its critics have argued that the Article affords Jammu and Kashmir undue powers, particularly by preventing non-State residents to own land in the State. The media has largely gone along with this explanation, often portraying the debate as a question of “special status” of Jammu and Kashmir and the Article as some sort of unusual concession to the State. In fact, the fundamental purpose of Article 35A, when it was introduced in 1954 as part of a Presidential Order, was the exact opposite: instead of giving the state a “special status”, it was designed to take autonomy away from it.

A larger package

•The Article was introduced in May 1954 as part of a larger Presidential Order package, which made several additions to the Constitution (not just Article 35A). The overall gist of this Order was to give the Government of India enormously more powers over the State than it had enjoyed before. For the first time, India’s fundamental rights and directive principles were applicable to Jammu and Kashmir and the State’s finances were integrated with India. Importantly, the Order also extended the Indian Supreme Court’s jurisdiction over certain aspects of Jammu and Kashmir.

•Just as crucially, the Order had come about only after the Jammu and Kashmir government had agreed to it and passed a similar legislation in its own Constituent Assembly, making it clear that these powers were Jammu and Kashmir’s to give, not India’s to take. In fact, at the time of its introduction, the Order was celebrated in India as a great step towards bringing Jammu and Kashmir closer into the Union of India. Even the Hindu right-wing leaders had hailed it as a “commendable step”. No eyebrows were raised over the minor issue of Article 35A, which made up a very small component of the Order.

•Of course, the larger problem is that after decades of confusion and purposeful obfuscation, we tend to forget that initially Kashmir was conceived as a State with “special status”. The controversial Instrument of Accession signed by Maharaja Hari Singh in 1947 which brought the State into the Union of India gave New Delhi control only over Kashmir’s defence, foreign policy and communications. On all other matters, the State government retained powers. On the spectrum of autonomy, Jammu and Kashmir lay somewhere between, say, Bihar, a fully integrated State of India, and Bhutan, which enjoyed limited sovereignty under the protection of India. India’s tenuous grasp over Jammu and Kashmir was further complicated by New Delhi’s international commitment to hold a plebiscite in the State to decide its eventual fate.

•It is because of this weak India-Kashmir constitutional link that Sheikh Abdullah became “Prime Minister” of Kashmir; the State had its own Constituent Assembly and flag; there were customs checks between India and the State; the Supreme Court did not have jurisdiction over key issues in the State; Kashmir militia was constituted as a separate force; and Srinagar tried to send its own trade commissioners to foreign countries. With the coming into effect of the Indian Constitution in January 1950, New Delhi’s powers over Jammu and Kashmir were defined more clearly through a Presidential Order (a predecessor of 1954 Order). However, just in the areas of defence, foreign affairs and communications was Jammu and Kashmir put on the same footing as the rest of India. On issues of commerce, audit, judiciary, elections and finance, there were considerable modifications. India’s fundamental rights and directive principles were not applicable in Jammu and Kashmir at all.

The Delhi Agreement

•Only in 1952, after the international clamour for an immediate plebiscite had somewhat subsided, did Jawaharlal Nehru invite Abdullah to discuss how India and Jammu and Kashmir could be more closely integrated. The result was the 1952 Delhi Agreement which, contrary to popular belief, still fell short of the 1954 Presidential Order. For instance, the 1952 agreement did not finalise financial integration and required the fundamental rights and citizenship to be granted to the State’s residents via the State Legislature.

•Before the Delhi Agreement could be implemented, the situation was altered radically because of three factors. First, any plans for an immediate Plebiscite were abandoned in 1954, which strengthened New Delhi’s hand. Second, in 1953, Nehru faced a nationwide campaign from the Hindu right-wing demanding greater integration of Kashmir. And finally, and perhaps most importantly, in August 1953, Abdullah was arrested and replaced by Bakshi Ghulam Mohammed, who was far more amenable to integration with India.

•So, in January 1954, New Delhi negotiated a new agreement with Bakshi, which was passed by the Kashmir Constituent Assembly in February, and eventually introduced through Presidential Order in May. However, it still left the State with enormous autonomy. Foremost, all “residuary powers” rested with the State legislature. The State government could detain people who did not enjoy the right to appeal to the Supreme Court. It also retained its controversial land reforms measures and the final authority over any alteration of the State’s boundaries. Among its lesser known provisions at the time was Article 35A, a holdover from the colonial era.

•It took another 70 years of successive governments steadily chipping away at Jammu and Kashmir’s autonomy to bring it to today, when the only meaningful “special status” that it enjoys is Article 35A. Almost all of State’s other autonomous powers have been subsumed by New Delhi. Today’s debate over the Article should be seen as part of this larger decades-long process of the State’s integration into India, sometimes through legal means and sometimes through outright fiat.

Vestige of a broken promise

•To be sure, the whole project of federal nation-building requires constant negotiation between the nation state and its components. Arguably, India’s efforts to bring Kashmir into its fold can be told as part of such a story. However, such efforts need to have an underpinning of at least some kind transparent democratic process. Should Article 35A be removed, it must be removed as an expression of the will of the people, through a political process which includes the people of Jammu and Kashmir in the discussion. Or, in the very least, it has to be remembered that the Article is not some special concession to Jammu and Kashmir but the last vestige of a broken promise that India had made to it decades ago.

📰 Responding to widespread concern

On the SC/ST (Prevention of Atrocities) Amendment Bill

•The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Bill, 2018 overrides a March 20 judgment of the Supreme Court, which restricted the powers of the police under the Code of Criminal Procedure to arrest a suspect. The verdict also read down a specific bar in the Atrocities Act of 1989 against anticipatory bail. Accused persons were not allowed to seek anticipatory bail to thwart arrest.

•The judgment reasoned that many false cases are foisted on innocent persons under the 1989 Act and that the fundamental right of an innocent person to be protected from arbitrary arrest should be protected. For this, the court ordered that a Deputy Superintendent of Police should conduct a “preliminary inquiry” into every complaint of atrocity committed against an SC/ST member. Subsequently, the arrest of the accused persons should be approved by the Senior Superintendent of Police concerned. The judgment had led to widespread violence and loss of lives across the country, following which the government moved the Supreme Court for a review.

•The 2018 Bill, passed by the Lok Sabha even as the government’s review petition is pending in the Supreme Court, overcomes the March 20 judgment by amending the 1989 Act to introduce Section 18A. This provision does away with the need for a preliminary inquiry or requirement for an investigating officer to take prior approval from his superior before registering an FIR on a complaint under the Act.

•The statement of objects and reasons of the Bill highlights that the provisions of the Code of Criminal Procedure provide that information relating to commission of an offence should be recorded if the probe officer has “reason to suspect the commission of an offence”. The investigating officer can arrest a person and there is no requirement of conducting a preliminary inquiry before recording information.

•The principles of criminal jurisprudence and Section 41 of the Code of Criminal Procedure imply that once the investigating officer has reasons to suspect that an offence has been committed, he can arrest an accused. This decision to arrest or not to arrest cannot be taken away from the investigating officer.

•The Bill brings back the bar on accused seeking anticipatory bail. It says the provision of Section 438 (anticipatory bail) of the Code shall not apply to a case under this Act, notwithstanding any judgment/order of any court.

📰 U.S. hits Russia with new sanctions

Blames Moscow for the attempted assassination of a former Russian spy in England and his daughter

•The Trump administration said on Wednesday that it would soon impose new sanctions against Russia in response to the attempted assassination in March of a former Russian spy living in England and his daughter.

•Under the terms of the sanctions, any attempt by a U.S. company to obtain an export licence to sell anything with a potential national security purpose — gas turbine engines, electronics, integrated circuits and testing and calibration equipment — will be automatically denied. Exporters can attempt to prove that the goods will be used for legitimate purposes, but that is a tough hurdle to clear.

•An administration official described the list of affected items as “enormously elaborate”, but outside experts said the actual amount of exports involved is fairly small because the Obama administration already banned exports to Russia that could have military purposes.

•Tougher measures are called for in the legislation, however, if Russia fails to prove that it is no longer using chemical weapons.

Important step

•“Today’s step is an important but moderate set of sanctions,” said Peter Harrell, a sanctions official in the Obama administration, adding that further sanctions expected in three months “could be among the most severe yet, but could also be quite modest, depending on where the Trump administration wants to go.”

•The sanctions were imposed under the provisions of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991, which mandates that once the government has determined that a country has used chemical or biological weapons in violation of international law or even made “substantial preparations” to do so, sanctions must be imposed.

•British officials had declared that Russia was to blame for the attempted poisoning of Sergei V. Skripal, a British citizen, and his daughter Yulia, in large part because of the obscure poison involved. It was one of a strain of nerve agents known as Novichok that they say is kept under tight control by the Russian authorities.

•The Trump administration agreed with the determination by the British government that set in motion the sanctions.

📰 A welcome retreat: withdrawing the FRDI Bill

The Centre wisely withdraws the FRDI Bill; but the issues it sought to address remain

•In just under 12 months since its introduction in Parliament, the Centre has quietly withdrawn the Financial Resolution and Deposit Insurance Bill, 2017. The decision to seek the Lok Sabha’s approval to withdraw the legislation this week is a clear acknowledgement by the government that it had underestimated the extent and intensity of public opposition to the proposed law. One provision in the Bill had, in particular, generated the greatest debate and attracted the fiercest criticism and ultimately proved to be its very undoing: the “bail-in” clause. That banks, by the very nature of their business, are essentially dependent on the funds lent to them by depositors to serve as the pool of lendable resources from which they provide credit to borrowers is well known and requires no elaboration. So when a depositor apprehends that her hard-earned savings placed in a bank may be at risk from a law that forces her to partake in the pain of financial losses in case her bank is forced into resolution on account of distress, she will naturally fear such a legislation. The government did make strenuous efforts to reassure the public, explaining the rationale for the Bill as well as the built-in “safeguards” relating to the bail-in provision. However, its exertions made little headway. Union Minister Piyush Goyal finally informed the joint parliamentary committee that was reviewing the Bill that a “resolution of these issues would require a comprehensive examination and reconsideration”, and that therefore the government deemed it “appropriate” that the Bill be withdrawn.

•However, the need for a specialised dispensation to cope with large financial corporations on the verge of going bust cannot be overstated, especially given the contagion risk that a bank failure can pose to overall financial stability. The withdrawal of the FRDI Bill should therefore be used as an opportunity by policymakers to reappraise the existing framework for resolving bankruptcy scenarios among financial entities. While such a review ought to include an evaluation of the progress made by the Insolvency and Bankruptcy Code in addressing the crucial issue of debt resolution in the banking sector, it must also look at ways to strengthen the Deposit Insurance and Credit Guarantee Corporation. Set up in the early 1960s in the aftermath of the collapse of two banks, the DICGC, which guarantees repayment of bank deposits up to ₹1 lakh in case a bank is liquidated, has not reviewed the amount under guarantee since 1993. This anomaly must be addressed, especially at a time when several state-run public sector banks have been roiled by a series of frauds and high levels of bad loans. Any measure that helps prevent further erosion of public faith in the beleaguered banking system would undoubtedly be very welcome.

📰 UAE top source of inward remittances in 2016-17: RBI

‘Maximum funds sent to Kerala, mostly for family expenses’

•The United Arab Emirates (UAE) has emerged as the top source of inward remittances, while Kerala has received the maximum funds sent from abroad, according to the Reserve Bank of India’s survey of inward remittances for 2016-17.

•UAE’s share in total remittances was 26.9%, followed by the United States (22.9%), Saudi Arabia (11.6%), Qatar (6.5%) and Kuwait (5.5%).

•According to the survey, 82% of the total remittances received by India originated from eight countries — UAE, the U.S., Saudi Arabia, Qatar, Kuwait, Oman, the United Kingdom and Malaysia.

•Among destinations, Kerala has the highest share with 19%, followed by Maharashtra (16.7%), Karnataka (15%), Tamil Nadu (8%) and Delhi (5.9%).

•Kerala, Maharashtra, Karnataka and Tamil Nadu together received 58.7% of total remittances.

•“More than half of remittances received by Indian residents were used for family maintenance, i.e., consumption (59.2%), followed by deposits in banks (20%) and investments in landed property and shares (8.3%),” the survey said.

•Remittances essentially represent household income from foreign economies arising mainly from the temporary or permanent movement of workers to source economies. For the survey, RBI said responses were received from 42 major authorised dealers (ADs), accounting for 98.3% of total remittances in 2016-17.

‘RDA most popular’

•The rupee drawing arrangement (RDA) is the most popular channel of remittances which accounts for 75.2% of remittances, followed by SWIFT (19.5%), direct transfers (3.4%) and cheques and drafts (1.9%).

•Private banks got the lions share in total remittances with 74.1%, while public sector banks share was 17.3% and the remaining with foreign banks.

•“Size-wise analysis shows that 70.3% of all reported transactions were of more than $500 and only 2.7% were of less than $200,” the RBI said.

📰 SC alters Lodha’s BCCI proposals

SC alters Lodha’s BCCI proposals
One State-one vote norm junked

•The Supreme Court has finalised the new Constitution for the Board of Control for Cricket in India (BCCI), rejecting the ‘one State-one vote’ recommendation of the Justice R.M. Lodha Committee and altering the cooling-off period for cricket bosses.

•Softening the rigour of the recommendations, a three-judge Bench, led by Chief Justice of India Dipak Misra, on Thursday disagreed with Justice Lodha that cricket could prosper only if the BCCI was represented by every State and Union Territory. The former CJI had relegated cricket associations to the status of associate members.

•Instead, the court restored full BCCI memberships to three associations in Gujarat and Maharashtra each. They are the Maharashtra, Mumbai and Vidarbha cricket associations in the State of Maharashtra and the Baroda and Saurashtra cricket associations in the State of Gujarat.

•“To utilise territoriality as a basis of exclusion is problematic because it ignores history and the contributions made by such associations to the development of cricket and its popularity,” Justice D.Y. Chandrachud, who wrote the judgment, reasoned.

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