The HINDU Notes – 07th April 2021 - VISION

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Wednesday, April 07, 2021

The HINDU Notes – 07th April 2021


📰 President appoints N.V. Ramana as CJI with effect from April 24

CJI Sharad A. Bobde had recommended Justice Ramana, the seniormost judge of the Supreme Court, for appointment as the 48th Chief Justice of India.

•President Ram Nath Kovind on Tuesday appointed Justice N.V. Ramana as Chief Justice of India with effect from April 24.

•Born into a family of agriculturists in Krishna district of Andhra Pradesh, Chief Justice of India-designate, Justice Ramana, has adorned many hats — from student leader working for farmers and industrial workers to journalist for a leading Telugu newspaper to a first-generation lawyer.

•He was Additional Advocate General for Andhra Pradesh before being called to the State High Court Bench in 2001. Justice Ramana was the Delhi High Court Chief Justice prior to his elevation to the apex court. As CJI, Justice Ramana has a tenure of 16 months.

•Incumbent CJI Sharad A. Bobde had recommended Justice Ramana, the seniormost judge of the Supreme Court, for appointment as the 48th Chief Justice of India in a letter addressed to the Ministry of Law and Justice on March 24.

•“In exercise of the powers conferred by clause (2) of Article 124 of the Constitution, the President is pleased to appoint Sri. Nuthalapati Venkata Ramana, judge of the supreme Court, to be the Chief Justice of India with effect from April 24, 2021,” the Ministry of Law and Justice notification said.

•With this, both the Supreme Court and the government have followed the seniority norm in the appointment of CJIs.

•As Executive Chairman of National Legal Services Authority, Justice Ramana was responsible for making India’s legal aid programme the largest in the world wherein legal aid is not only provided on the basis of ‘means test’ rather on basis of fixed categories.

•Justice Ramana has said one of his primary objectives, besides providing easy access to justice, would be to improve the judicial infrastructure through a special purpose vehicle called the ‘National Judicial Infrastructure Corporation’ to act as a nodal agency.

📰 Fits and starts: On India-Pakistan dialogue process

India, Pakistan must be clear on scope of their nascent engagement if ties are to improve

•After a month of moves and messages that indicated a détente, events last week appear to have slammed the brakes on the India-Pakistan dialogue process. The moves began with a ceasefire announcement at the LoC in February, followed by Indus water talks, sporting visas and other measures, including official speeches by Pakistan’s top leadership pushing for regional rapprochement, and salutary messages exchanged between Prime Ministers Narendra Modi and Imran Khan. Despite the growing bonhomie, however, External Affairs Minister S. Jaishankar and Pakistan’s Foreign Minister Shah Mahmood Qureshi decided not to meet or even exchange greetings at a conference in Dushanbe last week. And then days later, Mr. Qureshi led a charge of Cabinet Ministers who opposed a move by Pakistan’s Economic Coordination Committee to reopen imports of Indian cotton and sugar, arguing that it would violate Pakistan’s commitments on Kashmir. Subsequently, Mr. Khan announced he was dropping the import proposal he had made in his capacity as Commerce Minister, and that ties with India would not be normalised unless the Modi government revoked its steps of August 2019, on Jammu and Kashmir and Article 370. New Delhi, which has chosen not to comment on the events of the past month, and has not denied reports that claimed India-Pakistan moves were part of a back-channel dialogue facilitated by other countries, has also made no comment on Mr. Khan’s U-turn.

•While such swings have been common in the India-Pakistan engagement, the present scenario poses questions. If talks are indeed under way behind the scenes, it is unclear why Pakistan’s import decision was not better coordinated before being publicly announced. The move followed a speech by Pakistan’s Gen. Bajwa where he stressed the need for geo-economics, trade and connectivity to be prioritised for regional prosperity. So, if it is not the all-powerful Army Chief or the ‘Pakistani establishment’ that is playing the “spoiler”, the Khan government must identify who it is. It is significant that New Delhi has chosen not to press its advantage over the embarrassing confusion in Pakistan’s stand, or react to its unworkable demand on Article 370, which has drawn India’s sharp comments in the past. This might indicate that the dialogue that has reportedly been on for months has been paused and much will depend on whether any other outlooked steps, including the restoration of High Commissioners in each other’s capitals and LoC trade that was suspended for security reasons in 2019, or commitments from Pakistan on cross-border terrorism, are announced next. If the nascent re-engagement is to have any chance, there must be also more clarity on what the two governments have decided to embark upon and hope to achieve from it.

📰 Mayhem in Myanmar: On the violence during Myanmar's Armed Forces' Day

India, China and countries in ASEAN should pressure the junta to restore democracy

•The violence of March 27, Myanmar’s Armed Forces’ Day, in which over 100 protesters were killed, has sent shockwaves. India, which initially expressed its “deep concern” and called for the “rule of law” and “the democratic process” to be upheld, had stopped short of directly condemning the junta’s violence. It had also sent a representative to attend Saturday’s celebrations. But on the day India’s defence attaché, along with the representatives of seven other countries, including China, Pakistan and Russia, was attending a massive military parade in Naypyidaw, the junta was gunning down its people. The violence and the prolonged crisis seem to have triggered a stronger response from several capitals, including New Delhi. On April 2, India, which has cultivated deep ties with Myanmar’s civilian and military leaderships, condemned “any use of violence” and called for “restoration of democracy”. There is growing international appeal for ending the bloodshed, but the junta seems unperturbed. Even after the March 27 killings, protests and regime violence continue. According to independent agencies, the junta has killed over 570 civilians, including 46 children, since the February 1 coup.

•When the regime resorted to violence, it may have calculated that swift repression would extinguish the fire for freedoms, like in 1988 and 2007. But there is a fundamental difference this time. If in the past the protests erupted against the continuing military rule, in February, the military usurped power from an elected government after a decade of partial democracy. Those who enjoyed at least limited freedoms, first under the transition government and then under Aung San Suu Kyi, have built a stronger resistance to the junta this time. Street protests are not the only challenge the Generals are facing. The banking system is on the brink of collapse with most staff on strike. Cash is scarce and prices of essential goods are rocketing. Industrial workers are also on strike, bringing the pandemic-battered economy to its knees. The Generals’ efforts to bring bank and government employees and port and industrial workers back to work have been unsuccessful so far. Worse still, armed insurgent groups have thrown their weight behind the protesters, triggering fears of a wider civil conflict. The Generals are unlikely to give up power on their own. They should be nudged to end the violence and make concessions. Initially, India and China, both vying for influence in Myanmar, were ambivalent in condemning the junta’s violence because they did not want to antagonise the Generals. But an unstable Myanmar is not in the interest of any country. India, China and other countries in ASEAN should heap pressure on the junta and work towards restoring democracy in Myanmar, which is the only way forward.

📰 Reworking net-zero for climate justice

Along with comparable levels of commitments there need to be equally comparable metrics for well-being

•Global transformation is affecting the planet. But there is no uniform transformation across the world. Global temperature increased sharply only after 1981 with little contribution from the developing countries as their industrialisation and urbanisation had yet to begin.

•In 2015, at the UN General Assembly when the Sustainable Development Agenda 2030 was adopted and at the Paris Conference, Prime Minister Narendra Modi stressed a reframing of climate change to climate justice, arguing that just when countries such as India were becoming major industrial and middle class nations, they should not pay the price for the pollution caused by the West. The Paris Agreement, explicitly recognises that peaking will take longer for such countries and is to be achieved in the context of “sustainable development and efforts to eradicate poverty”.

•This balance is now being upset for a common target and timetable, with non-governmental organisations (mostly foreign funded) in support and negotiators (mostly public servants) opposing the pressure. India will meet its Paris Agreement target for 2030, its per-capita emissions are a third of the global average, and it will in future remain within its share of ecological space. The pressure arises from the way the agenda has been set.

Treaty’s inequity

•First, inequity is built into the Climate Treaty. Annual emissions make India the fourth largest emitter, even though climate is impacted by cumulative emissions, with India contributing a mere 3% compared with 26% for the United States and 13% for China. According to the United Nations, while the richest 1% of the global population emits more than two times the emissions of the bottom 50%, India has just half its population in the middle class and per capita emissions are an eighth of those in the U.S. and less than a third of those of China.

•Second, the diplomatic history of climate negotiations shows that longer term goals without the strategy to achieve them, as in the case of finance and technology transfer, solve a political problem and not the problem itself. The focus on physical quantities, emissions of carbon dioxide and increase in global temperature, measures impacts on nature whereas solutions require an analysis of drivers, trends and patterns of resource use. The current framework considers symptoms, emissions of carbon dioxide, and was forced onto developing countries to keep the discussion away from the causes of the problem , the earlier excessive use of energy for high levels of well-being.

•Third, models on which global policy recommendations for developing countries are based consider achieving ‘reasonable’ not ‘comparable’ levels of well-being to show that early capping of energy use will not affect their growth ignoring costs on the poor. The different means to achieve the goals are not on the agenda because the rising prosperity of the world’s poor does not endanger the planet and the challenge is to change wasteful behaviour in the West.

Role of infrastructure

•The vaguely worded ‘net zero’ emissions, balancing emissions and removals, could be disastrous for development latecomers like India because the current frame fails to recognise that more than half the global cumulative emissions arose from infrastructure, essential for urban well-being.

•First, infrastructure has a defining role in human well-being both because of the services it provides outside the market and the way it shapes demand distinct from manufacturing (production) and lifestyles (consumption), which alone are captured in model projections.

•Second, the global trend is that in an urbanised world, two thirds of emissions arise from the demand of the middle class for infrastructure, mobility, buildings and diet. There is no substitute to cement, steel and construction material, and worldwide they will need half the available carbon space before comparable levels are reached around 2050, while developed countries use most of the rest. For developed countries, peaking of emissions came some 20 years after infrastructure saturation levels were reached and net-zero emissions are being considered some two decades even later to take advantage of aging populations and technology.

•Third, because of its young population and late development, much of the future emissions in India will come from infrastructure, buildings and industry, and we cannot shift the trajectory much to reach comparable levels of well-being with major economies. For example, China’s emissions increased three times in the period 2000-2015, driven largely by infrastructure.

New framework

•A global goal-shaping national strategy requires a new understanding. India must highlight unique national circumstances with respect to the food, energy and transportation systems that have to change. For example, consumption of meat contributes to a third of global emissions. Indians eat just 4 kg a year compared with around 68 kg per person for the European Union and twice that in the U.S. where a third of the food is wasted by households. Transport emissions account for a quarter of global emissions, are the fastest growing emissions worldwide and have surpassed emissions from generation of electricity in the U.S., but are not on the global agenda.

Coal use

•Coal accounts for a quarter of global energy use, powered colonialism, and rising Asia uses three-quarters of it as coal drives industry and supports the renewable energy push into cities. India with abundant reserves and per-capita electricity use that is a tenth that of the U.S. is under pressure to stop using coal, even though the U.S. currently uses more coal. India wants to eliminate the use of oil instead with renewable energy and hydrogen as a fuel for electrification, whose acceleration requires international cooperation around technology development and transfer.

•In the Paris Agreement, ‘climate justice’ was relegated to the preamble as a political, not policy, statement. It needs to be fleshed out with a set of ‘big ideas’. The first is a reframing of the global concern in terms of sustainable development for countries with per capita emissions below the global average, in line with the Paris Agreement. Second, the verifiable measure should be well-being within ecological limits. Third, international cooperation should centre on sharing technology of electric vehicles and hydrogen as a fuel, as they are the most effective response to climate change.

📰 Stamp out the canker thwarting democracy

A solution lies in an informal alliance of people and institutions propelling a stream of public-spirited action and activity

•The 21st century is host to multitudinous crises impacting different sectors. For instance, the 2007-08 financial crisis seriously dented the economies of many nations, and the recovery has been slow, or sporadic. Since then, a succession of unrelated crises have heralded forebodings of still graver damage not only to the economy but also to the body politic and people everywhere.

Introspection and action

•The COVID-19 pandemic provided the backdrop for dire predictions of this kind. Its impact has been far reaching, which has included an economic tsunami, upheavals and dislocation affecting every sphere of human activity, an accompanying health crisis which has not spared any nation, and the fostering of a crisis mentality. The fact that the novel coronavirus pandemic shows few signs of abating is aggravating this crisis atmosphere.

•Several other negative trends are simultaneously present. A churn in the post-1945 Westphalian order is only too evident. Across different continents, we are again witness to a series of political and strategic crises. Disinformation and distortions caused by an overload of fake information are creating an impression that the world is facing a systemic and multidimensional crisis, the consequences of which are unpredictable.

•The combination of circumstances is exposing the fragility of today’s party-based democracies, leading to questions about their ability to deal with newer problems. As crisis upon crisis plagues nations and countries, anger is becoming a dominant aspect. The situation demands a great deal of introspection followed by conscious action. Finding an optimal combination of authoritarian, populist and democratic trends, to ensure the material well-being of the majority and achieving economic development is, however, not easy. Concerns are that it could lend itself to the rise of new political oligarchies, masquerading in the garb of defenders of democracy, and the creation of new elites professedly seeking to defend democracy.

Fair polls under threat

•Recent trends within this country tend to buttress such concerns. For instance, elections have of late become a kind of a no-holds-barred battle for power, irrespective of whether it is being held in a large State, a medium-sized State or even an Union Territory. Levels of electioneering increasingly lend themselves to abuse, rather than a highlighting of issues or policies. Innuendoes and personal remarks dominate political debates. Money power is all too evident, and violence is the leitmotif in many segments. The most threatened aspect is the concept of fair and free elections. Concerns whether the verdict reflects the true will of the electorate are, hence, bound to persist long after the results are in.

•Even if an argument is put forward that many of today’s excesses do not reflect long-term reality, it is difficult to believe that the situation would return to the previous normal. Also that this is merely a dark chapter that will soon be forgotten. If this were true, it could be treated as a closed chapter, but this is unlikely to be the case. We may, hence, need to deal with this new reality, which puts greater reliance on authoritarian methods rather than on democratic means.

•None of these would, however, still amount to an existential crisis. The real existential crisis that India confronts — in a period dominated by the pandemic and bitter electoral battles — is the virtual collapse of systems of governance in many States, as well evidenced by the events that took place recently in India’s Maximum City, and the nation’s economic capital, viz., Mumbai.

Holding a mirror

•What was played out in public is a searing indictment of India’s claims to be a state with an entrenched belief in order and the rule of law. No amount of rationalisation can possibly justify the saga of events that have been unfolding daily in this city, since the so-called discovery of gelatine sticks in an abandoned vehicle just across the residence of India’s richest businessman, which is located in one of the city’s most protected areas.

•To this day, the police force has made no honest effort to determine why anyone should plant explosives in one of the most protected neighbourhoods in India, and believe that it would not be discovered (as so happened in this case), or what purpose was served by putting gelatine sticks without a triggering mechanism inside the vehicle. Instead, every attention has been devoted to making it a kind of free-for-all among members of the political class, the bureaucracy and the police hierarchy.

•The main villain in the latest saga — which is a true reflection of the existential crisis we currently face — is a lowly assistant police inspector, S. Vaze, who personifies everything that is wrong with the system and not only of the police, whose unsavoury exploits have now become too well known. The Mumbai incident should be seen as merely the tip of the iceberg of what is the current reality, which is not confined to Mumbai city, but extends well beyond Maharashtra to other States in the country. Vaze would have been well served had he followed the sage advice proffered to Alexander the Great by a group of Jain philosophers, in the Fourth Century BCE, that ‘every man can possess only so much of the earth surface as this we are standing........., you will soon be dead and then you will own only just as much of the earth as will suffice to bury you’. Perhaps Mumbai and Maharashtra too might well have been spared the ignominy and the indignity of what we have been seeing. What comes through loud and clear, however, is that Vaze is a symptom of what ails several layers of the political, civil and law and order system across the country. What is worse is that much of this is well known to both the powers that be as well as the people at large. Both have been cohabiting in this space for years.

•Even by the standards of a decline in police mores, the recent spate of disclosures confront us with an unpleasant reality that excesses of this kind, tend to occur almost daily. Established norms of conduct are sometimes given the go by during difficult periods, such as communal riots or other violent upheavals, but the extent of falsehoods indulged in by individuals in this instance has degraded not only the police force but also the entire system. What it signifies is anyone’s guess, but what is certain is that we have almost nowhere to go. This is the real existential crisis we confront today.

An alliance with a difference

•It may, hence, be time to embark on a new phase. It is no longer enough to merely define good policing or what kind of a relationship the community should have with the police. The reality is that it takes more than a courageous police leadership to stand up for the right policies, including not protecting officers who have clearly done something wrong. The situation has advanced far beyond this stage.

•Consequently, we need to look at newer alternatives. Repeating ad nauseum about reforming the police and establishing yet another blue-ribbon committee to undertake a thorough overhaul of the police machinery is a recipe for yet another disaster to come. This kind of thought is neither original nor revolutionary. Police commissions cannot alter the milieu in which the police are compelled to operate, in which everyone — the politicians, bureaucrats and everyone in authority or presumes to have authority — seeks a police force that they can bend to their will. Added to this is the widespread corruption that casts a larger-than-life shadow over not only police functioning but every facet of public life. It should, hence, be obvious to the meanest intelligence that no amount of recommendations or the constitution of Supreme Court-monitored investigations of police excesses can bring about any real change.

•What is, perhaps, needed, or needs to be attempted, is an informal alliance of people and institutions, irrespective of ideology or interests (to the exclusion of activists of every hue, business titans and politicians) which should come together to coalesce into a mighty stream of public-spirited action and activity. Essentially, it means creating and executing a national public awareness campaign against the kind of excesses that have been allowed to continue, embarking instead on a determined campaign to stamp out the canker that is thwarting democracy and democracy-related procedures and actions. Creating such a movement and sustaining it will not be easy, but if the system is to be saved, there is a need to consider such real alternatives.

📰 Redefining combatants

Cyberattacks point to the need to rethink what constitutes a force and what a justified response can be

•A report in The New York Times on the October 2020 breakdown of the Mumbai power distribution system points a finger at Chinese cyber hackers. While the truth may remain hidden, the discussion points to a macro issue. When, and under what conditions, would a non-kinetic strike, say a cyberattack, be considered an attack on the state? And under international rules of self-defence, what response would be considered legal? Would only a cyber counter-attack be justifiable or a kinetic response also be acceptable? Would a pre-emptive strike be kosher? These and other questions are knocking at our door, even as the definition of combat and combatants undergoes fast mutation.

Changing definitions

•The universally accepted Lieber Code of 1863 defines a combatant. It says, “So soon as a man is armed by a sovereign and takes the soldier’s oath of fidelity, he is a belligerent...”; all others are non-combatants. An organised group of “belligerents” constitutes a regular armed force of a state. The 1899 Hague Convention brings in further clarity of what constitutes a regular force. First, the force should be commanded by a person responsible for his subordinates. Second, it must have a distinctive emblem recognisable at a distance. Third, it must carry arms openly. And last, it must conduct operations in accordance with laws and customs of war.

•Those who conducted the (yet unproven) Mumbai ‘cyberattack’ or the 2007 attack on Estonia’s banking system did not meet any of the four conditions of being called combatants, but still wreaked havoc. A combatant, thus, needs to be redefined due to three reasons. First, a cyber ‘army’ need not be uniformed and may consist of civilians. After the cyberattack on Estonia, the government set up a voluntary Cyber Defence Unit whose members devote their free time towards rehearsing actions in case of a cyberattack. A rogue nation could well turn these non-uniformed people into cyber ‘warriors’. Second, cyber ‘warriors’ do not carry arms openly. Their arms are malicious software which is invisible. And finally, the source of the attack could be a lone software nerd who does not have a leader and is up to dirty tricks for money, blackmail or simply some fun. None of these meet the requirements of The Hague Convention but the actions of these non-combatants fall squarely in the realm of national security.

•This raises two very basic inquiries that need deliberation. First, would the nation employing civilians in computer network attacks not be in violation of the laws of war? And second, if these people are considered as combatants, would the target country have the right to respond in self-defence? A response would be reactive, after the attacker has conducted his operation; hence, as a right of self-defence, would an act of pre-emption (through kinetic means and/or through cyber) be in order? This argument may appear far-fetched now but needs to be examined as India seems to have a new view on the concept of the right to self-defence.

View of the right to self-defence

•In a February 24, 2021 UN Arria Formula meeting on ‘Upholding the collective security system of the UN Charter’, the Indian statement says, “...a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.” It adds that “this state of affairs exonerates the affected state from the duty to respect, vis-a-vis the aggressor, the general obligation to refrain from the use of force.” In a perceptive analysis of the statement, in Opinio Juris, Srinivas Burra, an Assistant Professor, opines that in a clear departure from established practices, “India... expressly contextualises its position on the question of the right of self-defence against the acts of non-state actors in international law.” Though used with reference to an “armed attack”, the implications of the statement, when viewed vis-à-vis cyberattacks done by faceless persons who are non-combatants as per international law, open up an avenue that requires careful examination; cyberattacks may not kill directly but the downstream effects can cause great destruction.

•International actions against hackers have been generally limited to sanctioning of foreign nationals by target nations. In 2014, for the first time, a nation (the U.S.) initiated criminal actions against foreign nationals (five Chinese operatives of Unit 61398 of the People’s Liberation Army) for computer hacking and economic espionage. The question is, how long before this escalates to covert and/or overt kinetic retaliation. India seems to have made its intentions clear at the UN meet, but this is a game that two can play; if not regulated globally, it could lead to a wild-west situation, which the international community should best avoid by resolute action.