The HINDU Notes – 17th December 2019 - VISION

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Wednesday, December 18, 2019

The HINDU Notes – 17th December 2019

📰 Climate of inaction: On UN climate change conference

India should not take comfort from its status as a low per capita carbon emitter

•If climate change is the defining issue of the century, the UN conference in Madrid failed miserably in galvanising action to address it. This year’s outcome is all the more depressing because nearly 200 delegates representing rich and poor countries had the benefit of new scientific reports from the Intergovernmental Panel on Climate Change warning of near-certain catastrophic consequences of inaction, and an analysis from the UN Environment Programme on the gap between current greenhouse gas emissions and the limit over the coming decade. Eventually, in Spain, the Conference of the Parties to the Paris Agreement, degenerated into an unproductive wrangle over establishing a market system to trade in carbon credits earned through reductions in emissions, with some countries eager to cash in on poorly audited emissions savings from the Clean Development Mechanism of the Kyoto Protocol that preceded the Paris pact. Such horse trading stands in contrast to the real losses from extreme weather events that climate-vulnerable countries, India included, are facing with frightening regularity: even insured losses worldwide during 2017 and 2018 together stood at a record $225 billion, while the bulk of destruction had no such risk cover. These dire data should have imbued the climate negotiations with urgency and purpose, but the final declaration was desultory, merely expressing serious concern at the emissions gap in seeking to limit temperature increase to 1.5° C.

•Climate negotiators might have tossed the more intractable questions — raising $100 billion a year from 2020 for developing countries, creating a strong framework to address loss and damage from climate events and transferring technology to poorer countries on reasonable terms — to the next conference a year later, but they cannot avoid rising pressure from civil society in several countries for concrete action. One of the models that will be closely studied is the Green Deal that has been announced by the European Commission, with binding targets for member nations to cut emissions by at least 50% by 2030 and go net zero by 2050. This approach could potentially make the EU the leader in global climate action, a position that the U.S. never adopted, and China will take longer to aspire for. India’s own status as a low per capita carbon emitter offers little comfort as its overall emissions are bound to grow. With a low base compared to other major nations, it may well achieve its initial voluntary targets under the Paris Agreement, but a shift away from fossil fuels is inevitable in the longer term. As it prepares to face calls for higher ambition in 2020 and beyond, India has to involve its States in mitigation and adaptation efforts. Death and destruction by frequent storms, floods and droughts should lead to urgent cohesive action.

📰 The widening fissure in India’s rule of law

The relationship between the individual and the state is still marked by a deep, pervasive imbalance of power

•Last month, the news website Scroll revealed that more than 10,000 people in the Khunti district of Jharkhand had been chargesheeted by the police for sedition. These people are overwhelmingly Adivasis. Then, in early December, a judicial probe completed a seven-year long investigation, finding that a so-called encounter of “Maoists” in Chhattisgarh by security forces, in 2012, had been a “fake encounter” all along. The people killed had not been Maoists, but innocent villagers.

•These two incidents from central India — separated by time, but united in their character — illustrate a gaping tear in the fabric of constitutionalism and the rule of law in India. Put simply, even after seven decades of Independence, the relationship between the individual and the state is marked by a deep and pervasive imbalance of power. In ways that are strikingly similar to those employed by its colonial predecessor, the Indian state retains a range of legal — and extra-legal — weapons, which it can turn against its own people with minimal scrutiny or accountability.

•While these weapons remain sheathed in large parts of the country, it is in places like Jharkhand and Chhattisgarh, where there exists an intense conflict over land and resources, and serious challenges to the legitimacy of the state, that their ugly reality is revealed for all to see.

Sedition, a grey area

•Khunti’s sedition cases go back to 2017, and the start of the “Pathalgadi movement”. Adivasis who were faced with corporate takeover of their land resorted to an innovative form of protest: they began to carve provisions of the Indian Constitution’s Fifth Schedule — that guarantees tribal autonomy — upon stone slabs, placed upon the boundaries of the village. The first information reports (FIRs) that follow allege that the police were attacked with “sticks and traditional weapons” (an allegation that the Adivasis dispute); but additionally, the FIRs also state that the leaders of the movement have been “misleading the innocent people in the name of scheduled areas”, and “erecting stone slabs presenting wrong interpretation of the Constitution”. As a result of these FIRs, individuals spent many months in jail.

•The ongoing events in Khunti reveal multiple faultlines in the legal system, and multiple faults in those who implement it. A century-and-a-half after it was first enacted into the Indian Penal Code by the colonial government, the vague, ambiguous, and unclear wording of the sedition provision continues to make it ripe for abuse. Sedition is defined as “disaffection” against the government, or bringing it into “hatred or contempt”.

•It should be immediately obvious that the scope of these words is boundless, and boundlessly manipulable. However, when the sedition law was challenged in 1962, the Supreme Court of India chose to uphold it, while claiming to “narrow it down”. The court noted that only acts that had a “tendency” to cause public disorder would fall within the scope of the section.

Tool of oppression

•As the years since that judgment have shown, however, this dictum had no impact whatsoever on the abuse of the sedition law. To start with “tendency to cause public disorder” was almost as vague as the text or the original section. Second, as long as the section continued to exist in the form that it did, the police could, and did continue to invoke it to stifle protest and dissent; and trial courts could and did continue to refuse bail to jailed people. The failure, thus, extended to every wing of the state: to Parliament, for allowing the provision to remain on the statute books, to the Supreme Court for not striking it down when it had the chance, to State governments and State police, that have found in it a ready tool of oppression, and to lower courts, that enable prolonged incarceration of people under the section.

•The playbook of the sedition law has, of course, been replicated elsewhere, in postcolonial legislation. The Unlawful Activities (Prevention) Act, or UAPA, for example, contains language that is as wide and vague, criminalising “membership” of terrorist gangs or unlawful organisations, without any explanation of what “membership” means. Under these provisions, journalists, activists, and human rights lawyers allegedly associated with events at Bhima Koregaon in 2018, were arrested later that year, and still remain in jail without a trial.

•They have been denied bail by both the trial court and the High Court, raising once again the spectre of many years of imprisonment without any finding of guilt. There could be no easier way of silencing the voices of dissent.

Fake encounters

•The Chhattisgarh issue, on the other hand, is a mirror image: from alleged individual violence against the state, we turn 180 degrees to state violence against citizens. The problem of “fake encounters”, which has long dogged the Indian polity, was thrown into sharp relief when the Telangana police “encountered” four people accused of a brutal rape and murder in the early hours of December 6.

•It hardly needs to be said that “encounters” — and “fake encounters” — take place because there do not exist adequate structures of accountability. Without those structures, the police effectively operate in a zone of impunity. In 2009, the then High Court of Andhra Pradesh passed a landmark judgment, in which it attempted to create a regime of accountability. Central to this regime was the requirement that encounter deaths would be investigated as if they were murder cases. An FIR would have to be registered against the police officers responsible for the encounter, and to the extent that they invoked self-defence they would have to prove it.

•The High Court’s judgment, however, was stayed by the Supreme Court, which then passed a series of vague and unclear guidelines a few years later, on the same subject. Even this regime, however, was given a go-by in the recent Telangana encounter case, where, acting on a public interest litigation, the Supreme Court stayed all pending proceedings (including before the Telangana High Court, which was following the guidelines), and handed over the investigation to a “committee”, with a six-month reporting period, to boot.

•As the Chhattisgarh case shows, however, these committee-led investigations take years to complete, and even at the end of the process, the outcome remains unclear. Here again, then, an attempt at mitigating the stark imbalance of power between the state and the citizen , in a particularly violent and abusive context, has been progressively diluted.

•The Jharkhand and Chhattisgarh incidents show that the rule of law and the Constitution continue to fail those who need it the most, and in the places where it is needed the most. And the root cause of this failure is the active complicity of the very actors who we most expect to maintain the rule of law: clearly, abusive laws are enacted by Parliament, upheld by courts, misused by the police, and sanctioned (again) by courts.

•To break this seemingly unending cycle, it is important to understand that its root cause lies in how laws such as the sedition provision, the UAPA, and many others, systematically concentrate power in the hands of state agencies, and equally systematically, strip individuals and communities of legal ways to resist (the UAPA, for example, prohibits judges from granting bail if the police makes out a “prima facie” case against the accused).

•In our recent history, on the other hand, we also have had examples of laws that have done the opposite: both the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, or FRA, and the Right to Information (RTI) Act, for example, have rebalanced the relationship between the individual and the state in important domains. If we are to ever fulfil the promises of freedom and equality that the Constitution of India guarantees to all, we must learn from the social movements that gave birth to the RTI and the FRA, and organise in similar ways against laws such as sedition and the UAPA.

📰 Citizenship Act rules get ready

Ministry says no automatic grant of rights, migrants must apply online

•The Union Home Ministry on Monday said no migrant from the six non-Muslim communities from Afghanistan, Pakistan and Bangladesh “will become Indian citizen automatically”.

•A migrant should apply online and the competent authority would see whether he or she fulfilled all the qualifications for registration or naturalisation as an Indian citizen, a senior Ministry official said.

•The Citizenship Amendment Act, passed by Parliament last week, proposes to grant citizenship to “persecuted” minorities from any of the three countries who entered India on or before December 31, 2014. The Centre will soon frame rules to operationalise the provisions of the Act.

Advisory to States

•The Ministry on Monday issued an advisory to the States and Union Territories asking them to take all possible steps to check violence and ensure the safety of life and property.

•It requested them to take action against circulation of fake news and rumours on social media having the potential to incite violence.

•There are apprehensions that the Act, followed by a country-wide National Register of Citizens, will benefit non-Muslims, while excluded Muslims will have to prove their citizenship.

•“The CAA does not target any religious community from abroad. It only provides a mechanism for some migrants who may otherwise have been called ‘illegal’ depriving them of opportunity to apply for Indian citizenship provided they meet certain conditions,” the official said.

•The official explained that the Citizenship Act, 1955, which was amended last week, provides that Indian citizenship could be acquired by birth, descent, registration, naturalisation or by incorporation of territory.

•“Any foreigner on becoming eligible can acquire citizenship by registration or by naturalisation irrespective of his country or his community. The CAA enables migrants/foreigners of six minority communities from three specified countries who have come to India because of persecution on grounds of their religion to apply for Indian citizenship. It does not amend any existing legal provision which enables any foreigner of any class, creed, religion, category etc to apply for Indian citizenship through registration or naturalisation modes. Such a foreigner has to become eligible to apply for citizenship after fulfilling the minimum legal requirements,” the official said.

•“The CAA does not apply to Indian citizens and they are completely unaffected by it,” the official said. In the past six years, 2,830 Pakistani citizens, 912 Afghan citizens and 172 Bangladeshi citizens were given Indian citizenship and “hundreds of them are from the majority community of these three countries”.

•“Such migrants continue to get Indian citizenship and shall also continue to get it if they fulfil the eligibility conditions already provided in the law for registration or naturalisation,” the official said.

Citizenship to Tamils

•The official said that 4.61 lakh Tamils of Indian origin were given Indian citizenship from 1964 to 2008 after the signing of international agreements in 1964 and 1974. Nearly 95,000 Sri Lankan refugees are living in Tamil Nadu.

📰 ‘Abuse’ of RTI has led to ‘paralysis and fear’ among officials, says CJI Bobde

Need for laying down guidelines to check locus of applicants, filter RTI requests, he says

•Chief Justice of India Sharad Arvind Bobde on Monday said the unbridled use of the Right to Information (RTI) Act had created a sense of “paralysis and fear” in the government.

•“There is paralysis and fear about this Act (RTI). People are not taking decisions,” Chief Justice Bobde observed orally.

•The CJI said government functionaries were too scared to even take any decisions.

•Senior lawyer Prashant Bhushan, for activist Anjali Bhardwaj, said “only those who are corrupt have reason to fear”.

•The court was hearing an application filed by Ms. Bhardwaj and retired Commodore Lokesh Bhatra about the lack of transparency in the appointment process of information commissioners despite a judgment from the Supreme Court on February 15.

•“We want to find a way to stop the abuse of RTI Act. Don’t say as if there is no abuse,” Justice Bobde told Mr. Bhushan

•The CJI said time had come to lay down guidelines on the use of the RTI. Guidelines should be put in place to check the locus of the RTI applicant and put a “filter” on the kind of requests made under the 2005 Act.

•Justice Bobde said the court was not against the exercise of the right to information. “But it cannot be an unrivalled right. There is the serious problem of people filing RTI requests with malafide intentions, people set up by rivals,” he said. The RTI Act had become a source of criminal intimidation by people with an axe to grind. “Criminal intimidation is a nice word for ‘blackmail’,” Justice Bobde said.

•People who call themselves “RTI activists” and were in no way concerned with the issues on which they file RTI requests hade impeded government functioning, the CJI observed.

•“When I was in Mumbai, a government official said the Mantralaya is almost paralysed because of the kind of RTI requests made... Have you seen the kind of people seeking information. Anybody can ask. People describe themselves as RTI activists. Is that an occupation?” Justice Bobde asked.

•Justice B.R. Gavai, on the Bench, remarked that “people write ‘RTI Consultant’ on their letterheads”.

•Justice Bobde said the court was willing to hear arguments on the locus of people who filed RTIs and also about setting up a “filter which can be rightfully employed”.

•Meanwhile, Additional Solicitor General Pinky Anand submitted that an advertisement was published for the post of information commissioners on December 14. The search committee has just been constituted. “The needful would be done,” Ms. Anand submitted.

•The court directed the government to publish on its website the names of the members of the search committee set up in the process of appointment of the Central Information Commission’s information commissioners.

•Mr. Bhushan retorted that an advertisement was given over 11 months ago. A second advertisement was merely an excuse to delay appointments. “They will now have reason to wait for another 11 months,” Mr. Bhushan submitted.

•The court gave Mr. Bhushan liberty to file a contempt petition against the government, if required, for alleged non-compliance of its February 15 judgment.

📰 Unfulfilled promise: On Personal Data Protection Bill

India’s efforts to protect the personal data of its citizens fall short of privacy requirements

•India’s Personal Data Protection Bill, 2019 starts encouragingly, seeking to protect “the privacy of individuals relating to their personal data”. But by the end, it is clear it is not designed to deliver on the promise. For, even as it rightly requires handlers of data to abide by globally-accepted rules — about getting an individual’s consent first — it disappointingly gives wide powers to the Government to dilute any of these provisions for its agencies. The Bill, which was tabled in Parliament by the Electronics and IT Minister on December 11, has now been referred to a joint committee, to be headed by the BJP’s Meenakshi Lekhi. The committee is expected to table its report during the Budget session. Technically, therefore, this is not beyond redemption yet. But recent events have cast doubts about whether the Government is serious about delivering on the privacy promise. Recently, messaging platform WhatsApp said that some Indian journalists and rights activists were among those spied using technology by an Israeli company, which by its own admission only works for government agencies across the world. Google too had alerted 12,000 users, including 500 in India, regarding “government-backed” phishing attempts against them. The Indian Government has still not come out in the clear convincingly regarding these incidents.

•Importantly, one of the first to raise a red flag about the Bill’s problematic clauses was Justice B.N. Srikrishna, whose committee’s report forms the basis of the Bill. He has used words such as “Orwellian” and “Big Brother” in reaction to the removal of safeguards for Government agencies. In its report last July, the committee noted that the dangers to privacy originate from state and non-state actors. It, therefore, called for exemptions to be “watertight”, “narrow”, and available for use in “limited circumstances”. It had also recommended that the Government bring in a law for the oversight of intelligence-gathering activities, the means by which non-consensual processing of data takes place. A related concern about the Bill is regarding the constitution of the Data Protection Authority of India, which is to monitor and enforce the provisions of the Act. It will be headed by a chairperson and have not more than six whole-time members, all of whom are to be selected by a panel filled with Government nominees. This completely disregards the fact that Government agencies are also regulated under the Act; they are major collectors and processors of data themselves. The sweeping powers the Bill gives to the Government renders meaningless the gains from the landmark K.S. Puttaswamy vs. Union of India case, which culminated in the recognition that privacy is intrinsic to life and liberty, and therefore a basic right. That idea of privacy is certainly not reflected in the Bill in its current form.

📰 Future revenues critical for finance panel: 15th Finance Commission Chairman

States are lulled into complacency by the assured compensation cess, says N.K. Singh

•Future revenues are the most critical issue for the 15th Finance Commission, chairperson N.K. Singh said on Monday, adding that revenues from the Goods and Services Tax are the ‘elephant in the room’. He also hinted at the need to consider an incentive structure for States in order to encourage increased tax collections.

•Mr. Singh was speaking to journalists after the fifth meeting of the Economic Advisory Council of the Commission. The Commission has submitted its recommendation report for 2020-21 to the Finance Minister and is now working on a ‘comprehensive’ report for the five year period of 2021-26, he said.

•On Jammu and Kashmir, he clarified that the erstwhile State was being treated like any other Union Territory (UT) in the 20-21 report, and would receive grants directly from the Home Ministry, along with the other newly created UT of Ladakh.

•The Council discussed macro assumptions for the Commission’s award period relating to real growth, the structural shift in inflation, and tax revenues and expenditure patterns at both the central and State levels.

•The most critical issue was that of future revenues, especially GST revenues, said Mr. Singh, calling it the ‘elephant in the room’. The GST structure should be made more revenue-friendly and stakeholder-friendly, he said, adding that tax changes need predictability and certainty.

•He suggested that while the 14% rate of GST compensation to States was mandatory under law for the initial five-year transition period, he would not recommend ‘a mechanical replication’ in subsequent years.

‘Race to the bottom’

•Mr. Singh noted that while States have complained that GST revenues have been lower than expected, none of their Finance Ministers has raised protests, individually or collectively, in the GST Council of which they are a part. He said States had a collective tendency for a ‘race to the bottom’, accusing them of being ‘lulled into a state of complacency’ due to the assured 14% compensation cess. In the pre-GST era, State revenue officials would have worked harder to ensure that their tax collections met revenue targets, said Mr. Singh, suggesting that there may be a need for an incentive structure to encourage the State machinery to improve collections and tax compliance.

•His comments come two days before the GST Council meeting slated for December 18, where States are expected to push the Centre on delayed payments from GST compensation cess. There has been a shortfall of GST collections so far this year.

•While the government had budgeted for ₹6,63,343 crore in GST collections for 2019-20, only about 50% of the target has been collected in the first eight months.

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