The HINDU Notes – 02nd March 2020 - VISION

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Monday, March 02, 2020

The HINDU Notes – 02nd March 2020

πŸ“° Experts raise concerns for India over U.S.-Taliban agreement

They say the proposed Afghanistan-Pakistan dialogue, facilitated by Washington, must not cut India out of the region’s security architecture

•New Delhi has signalled its acceptance of the U.S.-Taliban and U.S.-Afghanistan peace agreements in Doha and Kabul that aim to end the 18-year war in Afghanistan, by sending envoys to witness them.

•The two agreements set out a course for the next 14 months, including the pull-out of U.S. troops, the denial of space to foreign terrorist groups and any violence against the U.S. and allies, and intra-Afghan dialogue.

•However, after a closer look at the texts of the two agreements distributed to news agencies, named the “Agreement for Bringing Peace to Afghanistan between the Islamic Emirate of Afghanistan which is not recognised by the United States as a state and is known as the Taliban, and the United States of America”, and the “Joint Declaration between the Islamic Republic of Afghanistan and the United States of America for Bringing Peace to Afghanistan”, diplomatic and security experts say the impact on India may be a cause for worry for the government.

Terms still nebulous

•“The reduction in violence is a much-needed respite for Afghans,” said Amar Sinha, National Security Advisory Board member and former Ambassador to Afghanistan.

•However, Mr. Sinha added that “all Taliban demands have been front-loaded, while the actual terms of the ‘peace deal’ are yet to be negotiated between the Taliban and the Afghan side, facilitated by the U.S. So, much of the heavy lifting remains.”

•More critical of the agreement, Anand Arni, former Special Secretary in the Research & Analysis Wing, who worked closely on Indian policy in Afghanistan, said it was “entirely one-sided”. “Taliban cannot deliver on the assurances it has given, and yet the U.S. has handed over Afghanistan to them. There is no reference to the Constitution, rule of law, democracy and elections,” he said.

The salient points of concern are:

Does the term “U.S. and Allies” include India?

•In the Doha agreement, the Taliban has guaranteed “enforcement mechanisms that will prevent the use of the soil of Afghanistan by any group or individual against the security of the United States and its allies”. However, it is unclear whether India, which is not a U.S. ally, is included in this definition, and whether Pakistan-backed groups that threaten India, would still operate in Afghanistan. The Kabul declaration with the Ghani government more specifically commits to stopping “any international terrorist groups or individuals, including al-Qa’ida and ISIS-K, from using Afghan soil to threaten the security of the United States, its allies and other countries.”

Impact of prisoner release and lifting sanctions

•Officials worry most about the “mainstreaming of the Haqqani network”, which Lashkar-e-Taiba terrorists reportedly fight alongside and were responsible for the 2008 bombing of the Indian embassy in Kabul. According to the agreements, 5,000 Taliban prisoners will be released by March 10, 2020, the first day of intra-Afghan negotiations, and the remainder in another three months. Officials also point out that the U.S. has committed to taking Taliban leaders off the UN Security Council’s sanctions list by May 29, 2020, which could considerably bring down the number of terrorists Pakistan is accused of harbouring, according to the FATF greylist conditions. This might benefit Pakistan during the June 2020 FATF Plenary, when it faces a blacklist for not complying.

Handing powers to Taliban

•In the Doha agreement, the U.S. has committed to clearing five bases and bringing troop levels down to 8,600 in four and a half months, and even appears to submit to the possibility of a Taliban-led government, by extracting promises that the Taliban will not provide “visas, passports, travel documents or asylum” to those threatening the U.S. and its allies. This appears to sideline the “Intra-Afghan” dialogue, and India’s support for the election process for leadership in Afghanistan. In the last section of the agreement, the U.S. and Taliban seek “positive relations with each other and expect that the relations between the United States and the new post-settlement Afghan Islamic government as determined by the intra-Afghan dialogue and negotiations will be positive”.

Afghan govt. in peril?

•This indicates that the Ghani government, which India has recognised as winner of the 2019 election, will only serve for an interim period. This also raises a big question mark on the future of Afghanistan’s government, and whether it will remain a democracy. “The bottomline is that India cannot look at the agreements or the route to Kabul via Washington’s view,” said Mr. Arni.

•Above all, experts warned the Afghanistan-Pakistan dialogue facilitated by the U.S. on cross-border terrorism and mechanisms must not cut India out of the region’s security architecture.

πŸ“° Foreign Secretary to visit Bangladesh

PM expected to visit Dhaka this month

•Foreign Secretary Harsh Vardhan Shringla is expected to reach Dhaka for a two-day visit on Monday to prepare the grounds for Prime Minister Narendra Modi’s visit to Bangladesh later this month. The visit will give space to both sides to revive their bilateral relationship, which has been tense since India passed the Citizenship Amendment Act, 2019 (CAA).

•Continuing the negative trend, Bangladesh Speaker Dr. Shirin Sharmin Chaudhury cancelled her India visit on Sunday, raising concerns over high-level contacts between the two sides.

•Bangladesh had invited Prime Minister Modi along with other international leaders to the launch of ‘Mujib Year’ celebrations in Dhaka on March 17. Dhaka's leading newspaper Daily Star reported that the government of Bangladesh has also invited Congress president Sonia Gandhi for the inaugural event. Former President of India Pranab Mukherjee, too, is scheduled to travel to Bangladesh around the same time for the celebrations.

•Mr. Modi’s journey to Dhaka assumes importance as it comes three months after the controversial CAA was passed by the Indian Parliament. The new law, which has sparked protests across the country, grants citizenship rights to the minority communities of Bangladesh, Afghanistan and Pakistan. In a recent interview, Prime Minister Sheikh Hasina termed the CAA “unnecessary”.

πŸ“° Viral economies

The coronavirus is pushing the world intoa recession, and India cannot be immune to it

•The global economy appears headed for uncharted, troubled territory thanks to the second wave of the coronavirus that has now spread to countries as far apart as Nigeria and New Zealand. The virus has crippled global supply chains, hit air travel and convulsed markets as it appears all set to adversely impact the U.S. economy, the global economic engine. This, when the Chinese economy is already in deep trouble due to the impact of the virus. A slowdown or worse, recession, in the two global economic engines is bad news for the world economy, which may well tilt into recession. Markets reflected these concerns last week as indices plunged and investors stampeded for the exit, dumping stocks. Big money moved to the relative safety of government bonds, pushing prices up and yields down. The U.S. markets experienced their worst week since the 2008 global financial crisis as the Dow Jones Industrial Average and the S&P 500 fell by over 12%. Interestingly, investors seemed to boycott even that ultimate refuge during troubled times, gold, whose prices also fell during the week. They seemed to place greater faith in the sovereign guarantee of the U.S. government reflected in its Treasury bills. But there is trouble ahead for the U.S. economy as companies ranging from Apple and Nvidia to Procter & Gamble and Adidas are in difficulty because of their large exposures to the Chinese market or their reliance on suppliers from China. This is a crisis unlike any other. It is not a financial crisis that can be sorted out with time-tested measures such as rate cuts and bail-outs. The challenge of the virus attack is that it is immune to financial solutions.

•For India, the troubles could not have surfaced at a worse moment just when there are some tentative signs of a return to growth. Policymakers are sanguine about the impact on the domestic economy and how they can manage the situation by resorting to airlifting of materials if the supply chain is disrupted. But the problem extends beyond supply chain disruptions, which, by the way is serious for industries such as pharmaceuticals, electronics and automobiles. In a situation of a global recession, exports, which are not growing even now, could take a hit, further slowing down one of the economic engines. And risk averse foreign investors could hold back fresh investments in India. What augurs well though is that Indian companies are not major participants in the global supply chains originating in China. And second, crude oil prices are slipping which is good news for the macro economy and inflation. The government needs to watch the developing situation and, for now, do all it can to support industries that are reliant on Chinese inputs.

πŸ“° A plural legacy more vital than ever

Jawaharlal Nehru’s deep sense of history, culture and context acquires more relevance in preserving the idea of India

•We live in an an avowedly post Nehru age. Few if any ills that afflict India today are not laid at his door. Debate and dialogue are more than welcome. To his credit as much as to other founders, India is a vibrant and live electoral democracy. But there is more to his legacy than this alone.

•The coming of Independence to India in August 1947 and the formation of a democratic republic three years hence was no doubt a moment of historic import for the world at large. India like the United States was not a direct battle ground for the most part, save for Nagaland and Manipur in the course of the Second World War. But this was a country deeply involved in the great contest for world domination between the Axis and Allied powers.

•At the heart of this war to end all wars were two critical ideas: whether a people had the right to rule themselves or not and also what mode of rule was best for the world.

How India chose it to be

•It is a testament to history that India chose to follow the democratic path and while there were inclinations to socialism, these were strictly to be along lines of a plural democracy, allowing for checks and balances unknown in the only one party socialist state that then existed, the Soviet Union. But India was more than a country emerging from the shadow of British imperial rule: its path would be one of a plural democracy.

•That differences could exist at the very apex of the leadership but be settled via dialogue, debate and consensus had long been clear. Speaking on January 25, 1942, Gandhiji had remarked that (though) Nehru had been resisting him ever since they had met, they stood as one in the face of odds. Dividing them was like dividing water by striking with a stick.

•In his perhaps most clear endorsement of the man who he had mentored for more than two decades he said, “When I am gone, he will do what I am doing now. Then he will speak my language too.” His reference was to the steadfastness of principle but also to the willingness to compromise. The leader had to bind over and rule, not divide and reign.

•We do not know if this was on the mind of the Mahatma when he broke his last fast on January 18, 1948. His last message to the Prime Minister was on a post card. “ Apna upvass chod do . Bharat ke Jawahar bane raho, ” it said. “End your fast. May you remain the jewel of India.”

•This was sent from Birla House where the fast for peace in the capital of the new India had brought together the very groups at the forefront of the riots. Unknown to most in India or the world at large, Nehru too was on fast in sympathy with his leader.

•At stake were the life and liberty of Delhi’s own inhabitants, most so Muslims who had opted to stay on after Partition. Twelve days later the assassin struck.

•As Sardar Patel wrote in the Abhinandan Granth of October 1949, it was the untimely death of “the Great Master” that evoked in his associates a deeper sense of unity. Reminiscing about his long association with Nehru, Patel was warm, appreciative, and open in his affections. Their very intimacy and closeness as co-workers made it, “difficult for me to sum him up for public appreciation.”

The idea of a nation

•There was and is more to democracy than the peaceful passage of power via the ballot box. Equally audacious was the idea of nation where all would be equal as citizens. This was all the more so given the rise of fascism in the 1930s.

•The idea of a superior ruling race had been explicit in the case of the Axis powers. Mussolini’s invasion of Ethiopia in 1935, and the violent campaigns of Nazi Germany and imperial Japan left scars among conquered peoples that were known to the world.

•But even the most powerful of the Allies, the United States under Franklin Delano Roosevelt still practised segregation on a third of its territory. The Soviet Union, committed to working class unity, acted like any imperial power in using the Red Army to impose its preferred regimes in much of east central Europe.

•The idea of India was at odds with such notions of legally sanctioned inequality at home or colonialism abroad. Much more than that when Gandhiji spoke of “his language” it was one of the coexistence of faiths and cultures seeking peace and harmony.

•No book illustrated this as well as one written during Nehru’s longest ever jail term. He had been taken into custody on August 9, 1942 and stepped out of gaol on June 15, 1945. This over 1,000-day-long prison term had enabled him to write a treatise of India’s past and future, The Discovery of India .

•The most recent edition runs to 642 pages but the original was longer still, written in long hand by a political prisoner on that most precious of rationed goods in war time: paper. It was here that Nehru wrote of India as akin to a palimpsest where one layer of new comers could join another. Each layer was added to the older one. This process had frictions, a fact he freely acknowledged, but the result was the composite fabric that was India. India’s democratic sensibilities ran deeper than the Constitution. It was in contrast with Ceylon which after an election based on universal suffrage in 1948 stripped the Indian Tamil plantation workers of citizenship. Nor was it like Burma where Indians who had lived there for generations fled the advance of the Japanese armies, never to return. India was envisaged as inclusive, plural and democratic. The roots of this lay in the freedom struggle but was a conviction deepened by the years of the Second World War. This was as much the case with Nehru as his fellow inmates in Ahmednagar in the long night of 1942-45: Narendra Dev, Maulana Azad or Govind Ballabh Pant.

•There is no doubt much of this dream was shaken to the core by Partition. But it did not lead India to ape other states narrowly based on faith, clan, lineage or language. The record was far from faultless but there is no doubt of the effort to move on.

•There was and is much to dispute about Nehru’s record and legacy. But it is astonishing how easy it is to take it for granted. A commitment to liberal democracy and a plural society was exceptional among Asia’s leaders. He stood out in a continent where rival ideas of rule by one party or one ethnie were vying for power.

•This was a man with wider horizons but a deep sense of India’s history, culture and context. In his testament he wrote of the Ganga as living entity. The river connects us to, “a memory of the past of India, running into the present, and flowing on to the ocean of the future”.

•A plural society has much to learn from Nehru’s record. Critical engagement with his record is a must. An India sans Nehru’s legacy of democratic values stands to lose far more than it will gain.

πŸ“° A big, bad deal

The U.S. deal with Taliban leaves the Afghan people at the mercy of violent, tribal Islamists

•The deal signed between the U.S. and the Taliban in Doha on Saturday sets the stage for America to wind down the longest war in its history. It went into Afghanistan in October 2001, a few weeks after the 9/11 terror attacks, with the goals of defeating terrorists and rebuilding and stabilising the central Asian country. Almost 19 years later, the U.S. seeks to exit Afghanistan with assurances from the Taliban that the insurgents will not allow Afghan soil to be used by transnational terrorist groups such as al-Qaeda and that they would engage the Kabul government directly to find a lasting solution to the civil war. America’s desperation is understandable. The Afghan war is estimated to have cost $2-trillion, with more than 3,500 American and coalition soldiers killed. Afghanistan lost hundreds of thousands of people, both civilians and soldiers. After all these, the Taliban is at its strongest moment since the U.S. launched the war. The insurgents control or contest the government control in half of the country, mainly in its hinterlands. The war had entered into a stalemate long ago and the U.S. failed to turn it around despite both American Presidents Barack Obama and Donald Trump having sent additional troops. Faced with no other way, the U.S. just wants to leave Afghanistan. But the problem is with the way it is getting out.

•The fundamental issue with the U.S.’s Taliban engagement is that it deliberately excluded the Afghan government because the insurgents do not see the government as legitimate rulers. By giving in to the Taliban’s demand, the U.S. has practically called into question the legitimacy of the government it backs. Second, the U.S. has made several concessions to the Taliban in the agreement. The Taliban was not pressed enough to declare a ceasefire. Both sides settled for a seven-day “reduction of violence” period before signing the deal. The U.S., with some 14,000 troops in Afghanistan, has committed to pull them out in a phased manner in return for the Taliban’s assurances that it would sever ties with other terrorist groups and start talks with the Kabul government. But the Taliban, whose rule is known for strict religious laws, banishing women from public life, shutting down schools and unleashing systemic discrimination on religious and ethnic minorities, has not made any promises on whether it would respect civil liberties or accept the Afghan Constitution. The Taliban got what it wanted — the withdrawal of foreign troops — without making any major concession. Lastly, the U.S. withdrawal will invariably weaken the Kabul government, altering the balance of power both on the battlefield and at the negotiating table. A weakened government will have to talk with a resurgent Taliban. The U.S., in a desperate bid to exit the Afghan war, has practically abandoned the Kabul government and millions of Afghans who do not support the Taliban’s violent, tribal Islamism, to the mercy of insurgents.

πŸ“° A deal that increases uncertainty

The U.S.-Taliban agreement achieves some objectives, but may not bring lasting peace

•The U.S.-Taliban agreement signed on February 29 may end up paving the way for further intra-Afghan fighting because it leaves the most important issue, namely, the future relationship between the Afghan government and the Taliban, unresolved. All it does is to propose an intra-Afghan dialogue between the Kabul government and the Taliban scheduled to begin on March 10.

•The prospects of such a dialogue leading to a durable peace in the country do not seem to be very good. A major reason for this is the inability of both the Kabul government and the Taliban to speak in one voice. The government is a perfect picture of disunity with President Ashraf Ghani and his primary challenger Chief Executive Abdullah Abdullah threatening to set up parallel governments. What makes this rivalry very dangerous is that Mr. Ghani belongs to the largest ethnic group, the Pashtun, and Mr. Abdullah’s base is among his fellow Tajiks, the second largest group in Afghanistan.

•Concessions made by Mr. Ghani’s government to the Taliban will likely be interpreted by Mr. Abdullah’s supporters as an intra-Pashtun deal reached at the expense of other ethnic groups, especially the Tajiks and the Uzbeks, who formed the bulk of the anti-Taliban Northern Alliance from 1996 to 2001. Consequently, ethnic fissures may descend into open conflict.

The many faces of Taliban

•Similarly, the Taliban, despite appearances to the contrary, is not a well-knit force. It is composed of various regional and tribal groups acting semi-autonomously. All of them may not be amenable to following the directions of its top leadership. It is, therefore, possible that some of them may continue to engage in assaults on government troops and even American forces during the withdrawal process.

•What the U.S.-Taliban agreement has accomplished in reality is to help the leaders on both sides achieve their primary objectives. The Taliban has pledged not to allow any terrorist organisation, such as al-Qaeda and the Islamic State, to operate from the territory it controls. Although important for American security interests, this was secondary to the Donald Trump administration’s key concern. Mr. Trump’s main goal was to demonstrate to his domestic constituency that he was serious about bringing American troops back home. According to the timeline set out in the agreement, all U.S. and NATO troops will withdraw from Afghanistan within 14 months. More important, the joint statement declared that the U.S. would reduce the number of U.S. military forces in Afghanistan to 8,600 within 135 days. This means that a substantial number of American troops will return to the U.S. well before the presidential election, thus giving a boost to President Trump’s odds for re-election.

•The Taliban leadership has also achieved its primary goal, namely, the withdrawal of foreign troops within a reasonable time frame. The Taliban already controls or contests half the country’s territory and the American and NATO withdrawal will help it expand its territorial base at the expense of the government’s poorly trained forces.

Why India should be concerned

•The prospect of this happening should worry New Delhi for two interrelated reasons. One, India has a major stake in the stability of Afghanistan, however tenuous it may be, as it has invested considerable resources in the country’s development. Two, India has a major stake in the continuation in power of the present dispensation, which it considers a strategic asset vis-Γ -vis Pakistan. An increased political and military role for the Taliban and the expansion of its territorial control should be of great concern to India since the Taliban is widely believed to be a protΓ©gΓ© of Islamabad. Therefore, any celebration in New Delhi will be highly misplaced.

πŸ“° Whither tribunal independence?

The reframed Tribunal rules are in contempt of several Constitution Bench decisions of the Supreme Court

•In November 2019, a Constitution Bench of the Supreme Court, in Rojer Mathew , declared the Tribunal, Appellate Tribunal and other Authorities (Qualification, Experience and other Conditions of Service of Members) Rules, 2017 as unconstitutional for being violative of principles of independency of the judiciary and contrary to earlier decisions of the Supreme Court in the Madras Bar Association series. In Rojer Mathew , there was also a direction to the Central government to reformulate the rules strictly in accordance with principles delineated by the Court in its earlier decisions. The reframed rules, notified on February 17 by the Ministry of Finance, however, suffer from the same vices.

•Through Part XIV of the Finance Act, 2017, around 26 Central statutes were amended, and the power to prescribe eligibility criteria, selection process, removal, salaries, tenure and other service conditions pertaining to various members of 19 tribunals were sub-delegated to the rule-making powers of the Central government. Describing the search-cum-selection-committee as an attempt to keep the judiciary away from the process of selection and appointment of members, vice-chairman and chairman of tribunals, the Court held that the executive is a litigating party in most of the litigation and hence cannot be allowed to be a dominant participant in tribunal appointments. Further, reiterating its previous decision in Madras Bar Association (2010), the Court held that the tenure of three years for members will “preclude cultivation of adjudicatory experience and is thus injurious to the efficiency of the Tribunals”.

•In the 2017 rules, as noted by the Court in Rojer Mathew , barring the National Company Law Appellate Tribunal (NCLAT), the selection committee for all other tribunals was made up either entirely from personnel within or nominated by the Central government or comprised a majority of personnel from the Central government. While the selection committee for NCLAT consisted of two judges and two secretaries to the Government of India, all other committees comprised only one judge and three secretaries to the Government of India. Now, in the 2020 rules, by default, all committees consist of a judge, the president/chairman/chairperson of the tribunal concerned and two secretaries to the Government of India.

An equal say for judiciary

•The common thread in the Madras Bar Association series and Rojer Mathew decisions is that judiciary must have an equal say in the appointment of members of the tribunals. In other words, to deny the executive an upper hand in appointing members to tribunals, the court ordered to have two judges of the Supreme Court to be a part of the four-member selection committee. In Madras Bar Association (2010), a Constitution Bench dealing with the validity and appointment of members to the National Company Law Tribunal (NCLT) under the Companies Act, 1956, held that the selection committee should comprise the Chief Justice of India or his nominee (chairperson, with a casting vote), a senior judge of the Supreme Court or Chief Justice of the High Court, and secretaries in the Ministry of Finance and Ministry of Law and Justice respectively. Subsequent Constitution Bench decisions in Madras Bar Association (2014), Rojer Mathew and the decision of the Madras High Court in Shamnad Basheer have repeatedly held that the principles of the Madras Bar Association (2010) are applicable to the selection process and constitution of all tribunals in India.

•Under the 2020 rules, the inclusion of the president/chairman/chairperson of the tribunal as a member in the selection committee is in the teeth of previous decisions of the Supreme Court. For instance, now, in the Income Tax Appellate Tribunal (ITAT), Customs Excise and Service Tax Appellate Tribunal (CESTAT), Central Administrative Tribunal (CAT), Debt Recovery Appellate Tribunal (DRAT), etc., a non-judicial member can become the president/chairman/chairperson, as the case may be. Therefore, when a non-judicial member becomes a member in the selection committee, the Supreme Court judge will be in minority, giving primacy to the executive, which is impermissible.

•In Madras Bar Association (2010), the Court explicitly held that only judges and advocates can be considered for appointment as judicial member of the tribunal and that persons from the Indian Legal Service cannot be considered for appointment as judicial member. Recently, in Revenue Bar Association (2019), the Madras High Court, while dealing with selection and composition of the Goods and Services Tax Appellate Tribunal (GSTAT), declared Section 110(1)(b)(iii) of the CGST Act, 2017 as unconstitutional for allowing members of Indian Legal Service to be judicial members in GSTAT.

Tenure violations

•In Madras Bar Association (2010), the Court had held that the term of office “shall be changed to a term of seven or five years”. Based on this, in Rojer Mathew , the Court held that the term of three years is too short, and by the time members achieve a refined knowledge, expertise and efficiency, one term will be over. Now, in the 2020 rules, the tenure of members has been increased from three years to four years, thereby blatantly violating the directions of the Supreme Court.

•Since Madras Bar Association (2010), the government has repeatedly violated the directions of the Supreme Court. One by one, the traditional courts, including the High Courts, have been divested of their jurisdictions and several tribunals have been set up. When the National Taxation Tribunal was struck down as unconstitutional by the Supreme Court, it was hoped that the government would stop experimenting with tribunals. The reality was different. The Madras High Court had to then deal with selection of members to the Intellectual Property Appellate Board. Then came the rules of 2017 and the GST Appellate Tribunal and Advance Authorities under the CGST Act.

•The sinister plan is obvious: divest courts of their powers, vest those powers with new tribunals, and fill them with civil servants. Now, only if an advocate has more than 25 years of experience, can he apply to the post of judicial member of various tribunals such as ITAT, CESTAT, Appellate Board under the Trade Marks Act, 1999, Appellate Tribunal for Electricity, etc. This 25-year eligibility is unheard of even for an appointment as a High Court judge. It seems absurd to even think that a lawyer with more than 25 years of successful practice would apply for the post of judicial member with a tenure of just four years. Further, as odd as it sounds, an advocate can no longer apply to the post of judicial member of CAT, DRAT, etc. The exclusion of advocates was first judicially noticed in Revenue Bar Association (2019) wherein the Madras High Court merely proceeded to recommend to Parliament to reconsider this proposal. By eliminating chances of bright advocates applying for the post of judicial members, the government surely intends to fill them with candidates from the Indian Legal Service. The 2020 rules are, thus, in contempt of several Constitution Bench decisions of the Supreme Court. Unless the Court comes down heavily on the Central government, we will see these encroachments over and over again.