Funds to political parties: Govt. may amend FCRA again
To seek opinion of Attorney-General
•After being pulled up by the Delhi High Court for not initiating any action against the Congress and the Bharatiya Janata Party, which received foreign funds from two subsidiaries of Vedanta, a U.K.-based company, the Home Ministry will seek the Attorney-General’s opinion to amend the repealed Foreign Contribution Regulation Act (FCRA) 1976, which barred foreign donations to political parties.
•The Representation of the People Act and the FCRA bar political parties from receiving foreign funds.
•Last year, the NDA government had amended the FCRA through the Finance Bill route, which allowed foreign-origin companies to fund NGOs here and also cleared the way for donations to political parties by changing the definition of “foreign companies.”
•The glitch was that although the amendment was done retrospectively it only made valid the foreign donations received after 2010, the year when the 1976 Act was amended.
Contempt petition
•The retrospective amendment did not apply to donations prior to 2010 and the Association for Democratic Reforms, a political watchdog, moved a contempt petition against the Home Ministry in March pointing out that the directives of the High Court against the two political parties which received foreign funds were not followed.
•Both the Congress and the BJP have been charged with illegally receiving foreign funds for political activities from Vedanta from 2004 to 2012.
•The ADR filed a PIL plea against the two parties for violating the FCRA. The Delhi High Court had held that the donations were illegal in 2014, but the two parties challenged the order in the Supreme Court but later withdrew the petition.
•In March this year, the ADR moved the contempt petition. The offence attracts an imprisonment of five years and fine or both to persons who assisted the political parties to receive the funds.
•A senior Home Ministry official said that after the Foreign Direct Investment (FDI) norms were progressively relaxed, there have been anomalies regarding the definition of “foreign companies” under the FCRA which were never corrected. The original FCRA provision, which declared that any company with over 50 per cent FDI was a foreign entity, was inconsistent with the view of the Finance and Commerce ministries, which treated companies based in India and having Indian directors and employees as Indian subsidiaries.
Supreme Court plans to go paperless
New system allows litigants to file cases digitally
•Prime Minister Narendra Modi on Wednesday inaugurated a significant step being taken by the Supreme Court: one that will take it from a being a paper court to becoming a digital court. The Integrated Case Management Information System (ICMIS) will allow a litigant to digitally file a case and watch its progress on a real-time basis.
•The system will help litigants access data and retrieve information online. It will be a step towards a paperless Supreme Court.
•Chief Justice of India J.S. Khehar said he proposed to integrate the system with all the 24 High Courts and the subordinate courts. It would help usher in transparency, reduce manipulation and help the litigant track the progress of a case on a real- time basis.
No break
•The Chief Justice said he had urged High Court judges to work for a few days during the summer break.
•The Supreme Court has lined up two Constitution Benches for hearing the triple talaq issue and the issue whether right to privacy of users would be violated by the contract entered into between WhatsApp and Facebook in 2016. Besides, a vacation bench would be hearing urgent matters through the entire duration of the summer vacation till the first week of July.
•Over 61,000 cases are pending in the apex court, while the 24 High Courts have 38.70 lakh pending cases, government data shows.
•Addressing the gathering, Mr. Modi said the decision of the Supreme Court and the High Courts to sit during the summer break would help the poor get justice. “I thank them for this,” he said.
Green cause too
•The Prime Minister said a paperless approach would be a boon to both litigants and the environment. Millions of litres of water and thousands of trees can be saved. Ten litres of water was used to make one A4 size paper, he said.
•Referring to the demonetisation of Rs. 500 and Rs. 1,000 notes, he said it was time people moved on to digital transactions so that the money saved could be used to build homes for the poor and new schools.
Multidrug-resistant TB will rise in India, says new study
Triple talaq and the Constitution
The Supreme Court cannot decide this case without engaging in a series of complex and difficult choices
•The Supreme Court today will begin hearing arguments in Shayara Bano v. Union of India , which has popularly come to be known as the “triple talaq case”. This case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, has created political controversy across the spectrum. The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious law. On the other hand, Prime Minister Narendra Modi has lent his support to the Muslim women fighting against the practice of triple talaq.
•One would expect the judges of the Supreme Court to adjudicate the constitutional validity of triple talaq (and, if they choose, of the other practices under question as well) detached from the political debate, and strictly in accordance with law. A closer look reveals, however, that the court cannot decide this case without engaging in a series of complex and difficult choices. In particular, the court will have to decide first whether to adjudicate the case in a narrow manner, which stops at assessing the relationship between triple talaq and Muslim personal law, of whether to undertake a broader approach, and ask whether personal law can be subject to the Constitution at all.
The narrow view
•Proponents of the first view — which include some of the interveners before the court — invite the judges to hold that triple talaq is invalid because it has no sanction in Muslim personal law. In response to the AIMPLB’s claim that the state has no right to interfere in the personal, religious domain, they respond that the religious domain, properly understood, does not, and has never, allowed for triple talaq. They draw a distinction between instantaneous talaq, or talaq-i-bidat (where divorce is complete when “talaq” is uttered three times in succession) with talaq ahasan, which requires a 90-day period of abstinence after the pronouncement, and talaq hasan, which requires a one-month-long abstinence gap between utterances. The latter two are part of Islamic personal law, but the first one is not.
•Relying upon the Supreme Court’s own judgments, they point out that only those features of a religion are constitutionally protected which are “integral” or “essential” parts of it. There is no evidence to show that talaq-i-bidat constitutes an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection. On this view, the Supreme Court need not go into tangled and messy questions involving personal law and the Constitution; it can decide the question on its own terms. Although this would involve secular judges laying down the law on what Islam does or does not consider an essential religious practice, the Supreme Court has been engaging in such religious inquiry at least since 1966, and it is too late in the day to now say that it cannot, or should not. In fact, the Supreme Court itself, in a number of cases, has either doubted the validity of instantaneous triple talaq, or gone so far as to say that it is not a part of Muslim personal law.
•Such an outcome would be an easy one for the court to achieve, and of a piece with decades of consistent jurisprudence. Historically, the Supreme Court has often “interpreted” or “modified” elements of religion to conform to a modernist, progressive world view, while holding that such its interpretation is the true understanding of what the religion actually commands. Such judicial intervention has primarily — but by no means exclusively — been in the domain of Hindu law. In the words of one scholar, instead of subjecting religion to external norms (such as those prescribed by the Constitution), the court has attempted to reform religion from within. Of course, there is a very basic question here about the court’s competence and legitimacy to undertake such a task. However, while the narrow view would be the easy and natural path for the court to take, it would also entail missing a significant opportunity.
The broad view
•There is a broader, almost radical, path that the court might chart. It might hold that controversies such as whether triple talaq is sanctioned by the Islamic faith raise questions that a court cannot, or should not, attempt to address. Far from entering the thicket of personal laws, the court should simply ask whether a challenged practice of personal law violates anyone’s fundamental rights.
•This approach, however, runs into one significant problem. In order to subject triple talaq — as a claimed aspect of Muslim personal law — to constitutional norms, the court must first overrule a 1951 judgment of the Bombay High Court (subsequently affirmed by the Supreme Court in another case) calledState of Bombay v. Narasu Appa Mali . In that case, Justices Chagla and Gajendragadkar held that uncodified personal laws may not be scrutinised for fundamental rights violations. They did so on the technical reasoning that Article 13 of the Constitution subjected only “laws” and “laws in force” to the scrutiny of fundamental rights, and that “personal laws” are neither “laws” for this purpose, nor “laws in force”. Beneath this technical reasoning, however, was a deeper assumption: a distinction between law, as created by the state or its agencies through acts of legislation on the one hand, and “personal law”, which had its source in the scriptures, and in non-state bodies for interpretation and enforcement, on the other.
•This view, however, suffers from being historically inaccurate. There does not exist — and there probably never existed — a “pure” domain of personal law, which has its source in scriptures (the Koran for Muslims, or the shastras for Hindus) independent and untouched by state influence. The colonial courts of the British empire, in fact, played an active role in both constructing and shaping what came to be defined as personal law. They did this through selection of “authentic sources” (to refer to and cite in their judgments), through creating a hotchpotch amalgamation of common law principles and what they perceived to be ancient Hindu (or Muslim) personal law, and by imposing binary categories upon fluid and changing identities. In many cases, this led to a rigidification and ossification of the dynamic aspects of religion. It is now well-known, for instance, that in the famous Aga Khan case in 1866, the Bombay High Court treated the Khoja community as Muslim, despite their own protestations that they identified neither with Muslims, nor with Hindus. It was perhaps for this reason that the British administrator Elphinstone famously observed that “we ought not to be guided by Hindu law, which is a new introduction of our own.”
The choice
•Ultimately, the choice between the court is a stark one. Ever since the Narasu Appa Mali case, there has been a domain of law — i.e., uncodified personal law — that has simply been deemed to be beyond the realm of the Constitution, and beyond the scrutiny of constitutional norms such as equality, freedom of conscience, and the right to personal liberty. Not only has this created a paradoxical situation where, as long as personal laws are uncodified, they escape constitutional scrutiny, but the moment they are legislated by the state (as large parts of Hindu laws were in the 1950s), they become subject to the Constitution; but it also seems to be entirely at odds with the basic principles of a republican democracy governed by a secular Constitution.
•There is no doubt that triple talaq violates women’s rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court. The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it, in 2017, change course, and hold that no body of law (or rather, no body of prescriptions that carries all the badges and incidents of law) can claim a higher source of authority than the Constitution of India?
Navigating the new silk road
China’s Belt and Road Initiative reflects global trends and a new paradigm which India can support and shape
•Will Prime Minister Narendra Modi surprise everyone and participate in China’s ‘Belt and Road Forum for International Cooperation’ which begins on May 14?
•That would be the kind of bold initiative he took in inviting leaders of our neighbouring countries to his swearing-in in 2014, but with far greater significance.
•It would also be an appropriate response to China’s recent four-point initiative and test its intent. China has suggested starting negotiations on a ‘China India Treaty of Good Neighbours and Friendly Cooperation’, restarting negotiations on the China-India Free Trade Agreement, striving for an early harvest on the border issue and actively exploring the feasibility of aligning China’s ‘One Belt One Road Initiative’ (OBOR) and India’s ‘Act East Policy’. To repeat Nehru’s outright rejection in 1960 of Zhou Enlai’s proposal to settle the border dispute would be a historic mistake.
With the long term in mind
•India’s response should be based on its long-term interest and not short-term concerns. First, treat the Belt and Road Initiative (BRI) — which already has contracts of over $1 trillion covering over 60 countries — as enlarging areas of cooperation; and push for India as the southern node and a ‘Digital Asia’. India cannot be a $10 trillion economy by 2032 without integrating itself with the growing Asian market and its supply, manufacturing and market networks.
•Second, complementary to China’s Initiative, develop common standards with the fastest growing economies in Asia that are on the periphery of the B&R Initiative, such as Bangladesh, Vietnam and Indonesia, to facilitate trade, investment and business engagement.
•Third, offer a new cooperation framework in South Asia around global challenges. For example, sharing meteorological reports, region specific climate research and the ‘Aadhaar’ digital experience, despite on-going security concerns.
•Fourth, thought leadership provides an avenue to increasing global influence. Hinduism and Buddhism spread to East and South-East Asia with commerce and an urbanising Asia and world, and needs a new organising principle around shared prosperity — principles that dominated India till 1800 making it the world’s richest country for over two millennia.
Economy as strength
•India has the potential to be the second largest world economy and Mr. Modi’s participation in the Forum will not be as just one of the 28 leaders and 110 participating countries but as a partner shaping the changing world order.
•Countries are now gaining influence more through the strength of their economy than the might of the military. However, analysts in India have yet to recognise these global trends and continue to see the re-emergence of China through a security prism. Calls for new alliances with Iran, Iraq, and Afghanistan “to create a two-front dilemma for our western neighbo[u]rs, but also encirclement of our northern neighbo[u]r from the west” ignore the strategic impact of the BRI which all countries in Asia, except Japan, embrace and require new approaches to secure our own re-emergence.
•As a continental power, China is knitting together the Asian market not only with roads, rail, ports and fibre optics but also through currency exchange, standards, shifting of industry and common approaches to intellectual property rights. As the world economy is expected to triple by 2050, Asia will again have half of global wealth. China is seeking to fill the vacuum following the U.S.’s withdrawal from the Trans-Pacific Partnership, and India should add elements to it that serve its national interest as part of its vision of the ‘Asian Century’.
•The bonhomie around the Donald Trump-Xi Jinping meet in Mar-a-Lago, U.S., in April is a pointer to how the global order changes. A 100-day plan to balance trade was a key outcome here and the Forum has the potential to do the same for the Asian giants.
•Change also raises the question whether existing approaches, institutions and rules are the best way of organising international relations. Coordination between the major powers is emerging as the best way of global governance in a multi-polar world. Despite their territorial dispute, strategic differences and military deployment in the South China Sea, China and Japan have just agreed to strengthen financial cooperation, and the Forum could provide an impetus to settling the border dispute between India and China.
•The BRI seeks “complementarities between a countries’ own development strategy and that of others”, though its goals have yet to be formalised, and India would lend a powerful voice to a strategy and structure that ensures common goals will not be neglected.
Rail regulator to define performance standards
To provide guidance on quantity and quality of service
•India’s first rail regulator, Rail Development Authority (RDA), would not just look at tariff structures for passenger and freight operations but also set standards of performance and efficiency that would be enforceable under the Railways Act.
•“RDA can define standards of performance and efficiency; such standards would be notified as rules under the Railway Act to give a binding force upon acceptance,” said a resolution dated May 5 approved by the Railways Board, inching a step closer toward setting up a rail regulator.
•The regulator will set “standards for efficiency and performance for consumer satisfaction in both passenger and freight” and will also be “authorised to check for deviations and suggest remedial measures.”
•“The regulator will provide guidance on quantity and quality of service provided to passengers. These may include setting standards including hours of service, frequency of trains, capacity per coach, cleanliness level, and quality of water, food, furnishing and linen,” said a senior Railway Ministry official.
•The Union Cabinet had last month approved setting up the rail regulator responsible for recommending passenger fares, setting performance standards for rail operations and creating a level playing policy for private sector participation.
•The resolution states that the regulator will be mandated to “suggest measures for absorbing new technologies for achieving desired efficiency and performance standards.”
Regulator’s structure
•The Railway Board also defined the structure of the RDA with a Chairman along with three members each for tariff, public private partnership and efficiency, standards and benchmarking.
•The regulator will, however, not involve itself in policy making of the Indian Railways, operations and maintenance of the rail system, financial management, setting technical standards and compliance of safety standards, the resolution said.
•It clarified that the regulator would only make recommendations on tariff and not impose a tariff on the Indian Railways.
