The HINDU Notes – 20th March 2020 - VISION

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Friday, March 20, 2020

The HINDU Notes – 20th March 2020





πŸ“° New definition of MSMEs soon: Gadkari

Govts, PSUs owecrores to the sector: Minister

•Union Minister for Micro, Small and Medium Enterprises (MSME) Nitin Gadkari told the Rajya Sabha on Thursday that the government would come out with a new definition of MSMEs, which are currently defined on the basis of investment in plant and machinery, by the end of the ongoing session.

•Concluding the discussion on the working of his Ministry that started on Wednesday, Mr. Gadkari said the government was working on the new definition.

•Congress member Jairam Ramesh had suggested that MSME units should be defined on the basis of turnover as it would increase compatibility with the Goods and Services Tax (GST) system.

•Responding to concerns raised by several MPs, Mr. Gadkari admitted that “there are problems” but asserted that the government was trying to convert those hurdles into opportunities. It had accepted 39 suggestions by the U.K. Sinha committee appointed by the Reserve Bank of India, including the setting up a “fund of funds” for the sector. The MSME sector currently contributed 24% of the GDP growth and 48% of exports, with an annual turnover of Rs. 1 lakh crore this year. A target of Rs. 5 lakh crore in five years had been set, he said.

•Among the hurdles before the sector was the pending payments by governments and public sector undertakings, which Mr. Gadkari estimated were Rs. 5.5 lakh crore to Rs. 6 lakh crore. These dues needed to be cleared in order to boost the sector.

•He said he had made recommendations to help the sector in view of the ongoing coronavirus pandemic and that Finance Minister Nirmala Sitharaman had called a meeting to discuss the same on Friday.

πŸ“° Will Modi’s COVID-19 fund initiative revive SAARC?

Only robust political will and cooperation, not conflict, can lead to development in the region
On Sunday, while addressing the leaders of the South Asian Association for Regional Cooperation (SAARC) member states, Prime Minister Narendra Modi proposed the creation of a novel coronavirus (COVID-19) Emergency Fund for SAARC. Mr. Modi’s sudden proposal came as a surprise to many, as the Indian government has maintained for many years now that SAARC has not been successful in containing the regional threat of terrorism. The last SAARC summit was held in Kathmandu in 2014. The 19th SAARC summit, scheduled to be held in Islamabad, was cancelled after the September 18, 2016 attack on the military base in Uri. Since then, India, the largest SAARC country, has held that the grouping has inherent problems and has instead highlighted the role of newer outfits like the Bay of Bengal Initiative for Multi-Sectoral Technical and Economic Cooperation (BIMSTEC) as an alternative to SAARC to deliver on connectivity, development, and counter-terrorism efforts. In a conversation moderated by Kallol Bhattacherjee , Major General (Retired) Abdur Rashid and Qamar Agha discuss the relevance of SAARC today. Edited excerpts:
Do you think Mr. Modi’s initiative will help SAARC?
Major General Abdur Rashid:There are certainly many commonalities [among these nations] regarding threats and perceptions of threats. Such initiatives will always be welcome. This initiative [Mr. Modi calling for a SAARC meeting] came as a bolt from the blue since everyone thought SAARC is now in the coffin. But once the meeting was initiated by Mr. Modi, it was welcomed. The people of Bangladesh have also shown a positive attitude. Besides, there is concern about the problem in all these countries. We can talk and keep moving ahead. This will reduce tension and create robust cooperation.
Qamar Agha:I fully support the Major General’s argument. The region is integrated culturally and historically. There have been migrations for centuries within the region and we have always been cooperating with one another. It was after British rule that the visa passport regime was introduced. After SAARC, we thought cooperation would develop. It was, in fact, developing. We have common problems: not just COVID-19 but other enormous problems including water sharing and poverty. If we come together, that will once again lead to cooperation.
An initiative such as the creation of a health fund was not tried earlier, though the SAARC Charter hints at such cooperation. Given the absence of a collaborative spirit between India and Pakistan, is there a spirit in SAARC to prevent such front-line threats?

•AR:The concerns of every nation should be addressed in SAARC. Leaving Pakistan aside, you can see how other organisations like BIMSTEC are growing because every nation is on board there. Regarding SAARC, we have to see that all nations are on board and see if we can create a common platform. This fund is a good proposal. Bangladeshi Prime Minister Sheikh Hasina accepted the proposal happily.

There have been concerns about the relevance of SAARC, especially after the Islamabad summit could not be held. Do you think India-Pakistan problems could once again create trouble for the grouping’s revival?

•QA:Pakistan should realise that the future of the region lies in cooperation with India. Not just India, the Afghan government is also having a very bitter experience in dealing with Pakistan as they say militants are coming from Pakistan. Nevertheless, Pakistan is a very important country and that is why we insist that Pakistan should come on board.

But over the last few years we have been repeatedly told by leading Indian policymakers and officials, including External Affairs Minister S. Jaishankar, that there are inherent problems in SAARC. So, is India’s effort sincere?

•AR:Security is of great concern in the region and the India-Pakistan security situation certainly affected SAARC. But India-Bangladesh cooperation has become a great example of security management. We in Bangladesh have also been quite concerned about Pakistan’s attitude towards terrorism as they have an internal force which always promotes terrorism. So automatically we have to take into consideration every nation’s concern [in SAARC] on this. I am sure if we can build a robust political will, SAARC may go higher. If we live with suspicion and lack of trust, then development will be reversed. I think Pakistan has also learnt that conflict and tension cannot take the country ahead. At the moment, Bangladesh has gone ahead with development plans and it has shown that ties with India can go ahead.

In view of Pakistan Prime Minister Imran Khan’s recent statement which indicated that the country is not prepared to deal with the crisis, it’s natural to ask if Pakistan will show political will for a SAARC collaboration and, consequently, for its revival.

•QA:I think they are gradually coming around. The problem is so big that no country can handle this alone. Pakistan borders Iran and it’s a common problem for the whole region. The problem in Pakistan is that the elected government traditionally has tried to establish good ties with India. But all the leaders — whether Zulfikar Ali Bhutto, Benazir Bhutto or Nawaz Sharif — have faced major setbacks. The Pakistani military establishment is still reluctant to deal with us but circumstances are forcing Pakistan to at least cooperate on this issue. Second, they are also facing a very serious economic crisis in the country. Earlier they used to get money from oil-rich countries but oil prices have fallen and these countries also have troubles such as the war in Yemen. Pakistan is totally dependent on China but this too cannot go on for long as China-U.S. ties are also evolving. So, a situation like the 1990s, when cooperation was possible, is once again a possibility. Later normalisation of relations may also be possible.

There are other problems that are emerging among SAARC member countries like the proposal for a country-wide National Register of Citizens in India. This has triggered concern in Bangladesh. There’s also the Madhesi issue with Nepal and the border dispute in Kalapani. Can the revival plan of SAARC overcome these challenges?

•AR:India is a big neighbour, so automatically all the smaller countries that surround it will have some concerns about it. So, cooperation from India to look after the concerns of its smaller neighbours is very important.

•From Bangladesh’s point of view, we have solved the land boundary agreement (LBA) and exchanged the enclaves. We conducted it very peacefully without dislocating a large number of people. In comparison, 1947 was a humanitarian disaster as far as dislocation of lives was concerned. We have established that we can solve bilateral problems with India. All SAARC countries must have the political will on how to address such differences with India. Bangladesh maintains that the Citizenship (Amendment) Act is an internal matter of India’s. Bangladesh will respond when it creates an impact on us.

•The most important thing is that government-to-government cooperation is not enough. The more long-lasting thing is people-to-people ties. In this, India and Bangladesh are far ahead than India and Pakistan. It is not just with India but also with Myanmar.

•Ms. Hasina has emphasised a peaceful solution to the Rohingya issue. If India can emulate these ideals and mentality to support smaller neighbours, we can build a peaceful South Asian region.

Do you think issues like NRC and CAA can create hurdles for SAARC?

•QA:CAA is a difficult issue because there is some internal opposition too. Barring Pakistan, other SAARC states have accepted that it is India’s internal affair. But the security issue will remain important as far as Pakistan is concerned. But as far as other mechanisms are concerned, with other neighbours of India, they are working. We have organisations like BIMSTEC and bilateral engagements to deal with these differences. Almost with all the countries of the region, India has managed relation so far, except with Pakistan. Pakistan cannot achieve its objectives with the help of militancy. The economic situation is bad in Pakistan and foreign investment is not pouring in as there is a possibility that Pakistan could be placed on the blacklist in the Financial Action Task Force. I am hopeful that the SAARC summit will take place in Islamabad or in an alternative location.

When an organisation is not used for some time, it loses its strength. This is also true for SAARC. What can be done now to help boost SAARC?

•AR:SAARC lacked momentum for some time. After SAARC, we had started BBIN [Bangladesh, Bhutan, India, Nepal], BIMSTEC, BCIM [Bangladesh, China, India and Myanmar Economic Corridor]. Leaving aside Pakistan, the security concern of India will not be resolved. This time an opportunity has been given to Pakistan, as pointed out by Mr Agha. Bangladesh is equally concerned about Pakistan’s patronisation of terror elements. Jaish-e-Mohammed supports outfits in Bangladesh too, and we have lot of examples on that front. Therefore, we need to build trust and Pakistan will have to give the first commitment that it will not support these unethical forces. As discussed here, Pakistan has a unique civil-military problem. But Bangladesh has shown the way as it exercises political control over its military and focuses on development and that is why we are in a better position. Neighbours will have problems but we have to solve these issues amicably. The LBA and maritime boundary agreements have also shown the way for SAARC. 
Social and cultural contacts should be fostered to help people-to-people contact within SAARC.

What can India do to boost SAARC at this juncture beyond the COVID-19 crisis?

•QA:Individual countries cannot develop because we are in the age of globalisation. Fostering economic integration and development, supporting social and educational development and integration are some of the important things that India can do. India has been developing connectivity with Myanmar, Bangladesh, Thailand. So similarly we sought to have connectivity with Pakistan but that did not happen. Now we are trying to build that in Chabahar. These are some of the things that need to be boosted further in SAARC.

πŸ“° Giving Human Rights Commissions more teeth

The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state

•In 1993, the Indian Parliament enacted the Protection of Human Rights Act. The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution. To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.





•The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.” According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others. However, the complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight. Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General. Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.

•In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions has come under scrutiny and criticism. There have been the usual critiques of the politicisation of autonomous bodies, and selectiveness. Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.

Pending case

•In this context, a pending case before the High Court of Madras has assumed great significance. A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.

•Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative. While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on. These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.

•The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated. Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps. The key question revolves around the meaning of the word “recommend.”

•The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act. According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose. Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month. The argument, therefore, is that this is the only obligation upon the government. If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so: it would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well).

•While intuitively plausible, I suggest that this view needs to be rejected, for many reasons.

•The first is that there is often a gap between the ordinary meanings of words, and the meanings that they have within legal frameworks. Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood. For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system). Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.

Constitutional commitment

•Of course, there needs to be good reason for interpretations of this kind. This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions. As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights. To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions. The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights. It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities (effectively, the state judging itself). This, it is clear, would defeat the entire purpose of the Act.

•Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity. For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so. It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role that fourth branch institutions are expected to play in the constitutional scheme is significant.

•And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).

•Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.

•In sum, the crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.

πŸ“° Giving Human Rights Commissions more teeth

The Madras High Court is to decide on whether the recommendations made by such panels are binding upon the state

•In 1993, the Indian Parliament enacted the Protection of Human Rights Act. The purpose of the Act was to establish an institutional framework that could effectively protect, promote and fulfil the fundamental rights guaranteed by the Indian Constitution. To this end, the Act created a National Human Rights Commission, and also, Human Rights Commissions at the levels of the various States.

•The National and State Human Rights Commissions are examples of what we now call “fourth branch institutions.” According to the classical account, democracy is sustained through a distribution of power between three “branches” — the legislature, the executive, and the judiciary, with each branch acting as a check and a balance upon the others. However, the complexity of governance and administration in the modern world has necessitated the existence of a set of independent bodies, which are charged with performing vital functions of oversight. Some of these bodies are constitutional bodies — established by the Constitution itself. These include, for instance, the Election Commission and the Office of the Comptroller and Auditor General. Others have been established under law: for example, the Information Commission under the Right to Information Act, and Human Rights Commissions under the Protection of Human Rights Act.

•In the two-and-a-half decades of their existence, however, the functioning of the Human Rights Commissions has come under scrutiny and criticism. There have been the usual critiques of the politicisation of autonomous bodies, and selectiveness. Even more than that, however, it has been alleged that for all intents and purposes, the Human Rights Commissions are toothless: at the highest, they play an advisory role, with the government left free to disobey or even disregard their findings.

Pending case

•In this context, a pending case before the High Court of Madras has assumed great significance. A Full Bench of the High Court will be deciding upon whether “recommendations” made by the Human Rights Commissions are binding upon their respective State (or Central) governments, or whether the government is entitled to reject or take no action upon them.

•Under the Protection of Human Rights Act, the Human Rights Commissions are empowered to inquire into the violations of human rights committed by state authorities, either upon petitions presented to them, or upon their own initiative. While conducting these inquiries, the Commissions are granted identical powers to that of civil courts, such as the examining witnesses, ordering for documents, receiving evidence, and so on. These proceedings are deemed to be judicial proceedings, and they require that any person, who may be prejudicially affected by their outcome, has a right to be heard.

•The controversy before the Madras High Court stems from the issue of what is to be done after the Human Rights Commission completes its enquiry, and reaches a conclusion that human rights have been violated. Section 18 of the Protection of Human Rights Act empowers the Human Rights Commission to “recommend” to the concerned government to grant compensation to the victim, to initiate prosecution against the erring state authorities, to grant interim relief, and to take various other steps. The key question revolves around the meaning of the word “recommend.”

•The Full Bench of the Madras High Court is hearing the case because different, smaller benches, have come to opposite conclusions about how to understand the word “recommend” in the context of the Protection of Human Rights Act. According to one set of judgments, this word needs to be taken in its ordinary sense. To “recommend” means to “put forward” or to “suggest” something or someone as being suitable for some purpose. Ordinarily, a mere “suggestion” is not binding. Furthermore, Section 18 of the Human Rights Act also obligates the concerned government to “forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission”, within a period of one month. The argument, therefore, is that this is the only obligation upon the government. If indeed the Act intended to make the recommendations of the Commission binding upon the government, it would have said so: it would not simply have required the government to communicate what action it intended to take to the Commission (presumably, a category that includes “no action” as well).

•While intuitively plausible, I suggest that this view needs to be rejected, for many reasons.

•The first is that there is often a gap between the ordinary meanings of words, and the meanings that they have within legal frameworks. Legal meaning is a function of context, and often, the purpose of the statute within which a word occurs has a strong influence on how it is to be understood. For example, the Supreme Court has held, in the past, that the overriding imperative of maintaining judicial independence mandates that “consultation” with the Chief Justice for judicial appointments (as set out under the Constitution) be read as “concurrence” of the Chief Justice (this is the basis for the collegium system). Recently, while interpreting the Land Acquisition Act, the apex court held that the word “and” in a provision had to be construed as “or”.

Constitutional commitment

•Of course, there needs to be good reason for interpretations of this kind. This brings us to the purpose of the Human Rights Act, and the importance of fourth branch institutions. As indicated above, the Human Rights Act exists to ensure the protection and promotion of human rights. To fulfil this purpose, the Act creates an institutional infrastructure, via the Human Rights Commissions. The Human Rights Commissions, thus, are bodies that stand between the individual and the state, and whose task is to ensure the adequate realisation of constitutional commitment to protecting human rights. It stands to reason that if the state was left free to obey or disobey the findings of the Commission, this constitutional role would be effectively pointless, as whatever the Human Rights Commission did, the final judgment call on whether or not to comply with its commitments under the Constitution would be left to the state authorities (effectively, the state judging itself). This, it is clear, would defeat the entire purpose of the Act.

•Indeed, in the past, courts have invoked constitutional purpose to determine the powers of various fourth branch institutions in cases of ambiguity. For example, the Supreme Court laid down detailed guidelines to ensure the independence of the Central Bureau of Investigation; various judgments have endorsed and strengthened the powers of the Election Commission to compulsorily obtain relevant details of candidates, despite having no express power to do so. It is therefore clear that in determining the powers of autonomous bodies such as the Human Rights Commission, the role that fourth branch institutions are expected to play in the constitutional scheme is significant.

•And lastly, as pointed out above, the Human Rights Commission has the powers of a civil court, and proceedings before it are deemed to be judicial proceedings. This provides strong reasons for its findings to be treated — at the very least — as quasi-judicial, and binding upon the state (unless challenged).

•Indeed, very recently, the Supreme Court held as much in the context of “opinions” rendered by the Foreigners Tribunals, using very similar logic to say that these “opinions” were binding.

•In sum, the crucial role played by a Human Rights Commission — and the requirement of state accountability in a democracy committed to a ‘culture of justification’ — strongly indicates that the Commission’s recommendations should be binding upon the state. Which way the Madras High Court holds will have a crucial impact upon the future of human rights protection in India.




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