📰 A woman does not mortgage herself to a man with marriage: CJI
•A woman does not mortgage herself to a man by marrying him and she retains her identity, including her religious identity, even after she exercises her right to marry outside her community under the Special Marriage Act, Chief Justice of India Dipak Misra orally observed while heading a five-judge Constitution Bench on Thursday.
•The Special Marriage Act of 1954 is seen as a statutory alternative for couples who choose to retain their identity in an inter-religious marriage.
•“Special Marriage Act confers in her the right of choice. Her choice is sacred. I ask myself a question: Who can take away the religious identity of a woman? The answer is only a woman can choose to curtail her own identity,” Chief Justice Misra said on the first day of hearing of a petition filed by a Parsi, who was barred by her community from offering prayers to her dead in the Tower of Silence for the sole reason that she married a Hindu under the Special Marriage Act.
•Nobody could presume that a woman has changed her faith or religion just because she chose to change her name after marrying outside her community, the Chief Justice observed.
•The Bench, also comprising Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan, is deciding the question whether a Parsi woman can keep her religious identity intact after choosing to marry someone from another faith under the 1954 Act.
•The very fact that petitioner Goolrookh M. Gupta, married under the Special Marriage Act, did not choose to convert showed that she had intended to retain her religious identity as a Zorastrian. A decision in favour of the woman would uphold the fundamental right to religion, dignity and life and create a paradigm shift for women within the minority community.
•(The court recently ruled in favour of Muslim women by striking down instant triple talaq as unconstitutional, and has now paved the way for a proposed legislation.)
Disagrees with widespread notion
•The Bench, prima facie, disagreed with the widespread notion in common law that a woman’s religious identity merges with that of her husband after marriage.
•Indicating that this amounted to discrimination on the ground of gender, Chief Justice Misra asked, “How can you [Parsi elders] distinguish between a man and woman singularly by a biological phenomenon… If a woman says she has not changed her religion, by what philosophy do you say that she cannot go to the Tower of Silence? No law debars a woman from retaining her religious identity.”
•Justice Sikri observed, “If a woman’s identity is merged, then Special Marriage Act is not required, is it not.”
•Chief Justice Misra said, “The Tower of Silence is not a mutt or a citadel of a cult. It is a place to offer prayers to the dead. Can such a right of a woman be guillotined? It is part of her constitutional identity.”
•The court said it had to decide whether a religious principle had dominance over the constitutional identity of a Parsi woman.
•Arguing for the petitioner, senior advocate Indira Jaising submitted that every custom, usage, customary and statutory laws had to stand the test of the Fundamental Rights principle. Article 372 (continuance of existing laws) of the Constitution was subject to Article 13, which mandated that laws should not violate the fundamental rights of an individual.
Petition against HC judgement
•The petition is against the Gujarat High Court’s March 23, 2012 judgment, which held that Ms. Goolrokh Adi Contractor ceased to be a Parsi as she had married Mahipal Gupta, a Hindu, under the provisions of the Special Marriage Act.
•The Valsad Parsi Anjuman Trust, which opposed Ms. Gupta’s plea, said the High Court decided the case after going through the affidavits of at least seven Parsi priests that said the religious tenets held that she ceased to be a Zorastrian upon her marriage to a Hindu and cannot be allowed to offer prayers in a Zorastrian place of worship.
•Ms. Jaising argued that the fundamental right enshrined in Article 14 of the Constitution guaranteed equality before the law and the equal protection of the laws. It prohibited discrimination on grounds of religion, race, caste, sex or place of birth. “Anything arbitrary violates the rule of law,” she submitted.
•Denying a woman respect and the right to observe her religion merely because she married outside her faith was violative of her fundamental right to religion enshrined under Article 25 of the Constitution.
•Ms. Jaising said there was a difference of opinion on the issue within the Parsi community itself. While some pockets allowed women who chose inter-religious wedlock into the Tower of Silence, others did not.
•Ms. Jaising argued that the ‘doctrine of coverture’, which held that a woman lost her identity and legal right with marriage, was violative of her fundamental rights. ''The doctrine is not recognised by the Constitution.''
•The court asked the Valsad Parsi Trust to inform by December 14 whether it would allow Ms. Goolrokh to attend the last rites of her parents.
📰 Defection, disaffection — on disqualification of JD(U) leaders from RS
The Tenth Schedule is meant to curb opportunistic party-hopping, not stifle dissent
•The disqualification of dissident Janata Dal (United) leaders Sharad Yadav and Ali Anwar as members of the Rajya Sabha was done in needless haste. Even if it did not violate the letter of the anti-defection legislation, the Chairman of the Rajya Sabha, Vice-President M. Venkaiah Naidu, could have considered whether it militated against its spirit. In his order, he cited the time-consuming procedural requirements as the justification for not referring the issue to the committee of privileges. Mr. Naidu took the view that all such cases should be disposed of within three months as any delay would be tantamount to subverting the anti-defection law. But neither Mr. Yadav nor Mr. Anwar posed a threat to any government to warrant such fast-tracking of the disqualification process. The decision under the Tenth Schedule of the Constitution was sought to be justified on the basis of the argument that the two members voluntarily gave up the membership of their party when they attended political rallies organised by rival parties. Mr. Naidu went by the fact that the faction led by Mr. Yadav did not command a majority within the JD(U) legislature party in the Rajya Sabha. Quite correctly, he did not accept the contention of the two members that it was the JD(U) leader Nitish Kumar who had given up membership of the party by quitting the Mahagathbandhan, the grand political alliance that had brought the party to power in Bihar. It is current political affiliation and not past electoral alliance that is relevant to the disqualification process. However, neither Mr. Yadav nor Mr. Anwar had disobeyed a whip or posed a danger to the stability of any government. Given this, the Rajya Sabha Chairman could have taken the assistance of the privileges committee before deciding the case. It is the fact that he did not exhaust all the procedural avenues before him that has left him open to charges that his ruling has a political hue.
•The JD(U) order is the latest in a long list of contentious decisions on disqualification by presiding officers. In many State Assemblies, such disqualification proceedings have had an impact on the very survival of the government, most recently in Tamil Nadu and Uttarakhand. Invariably, presiding officers take a politically partisan view, necessitating judicial intervention. India’s party-based parliamentary democracy requires MPs and MLAs to strike a fine balance between their roles as representatives of the people and of a political party. As members of the legislature are elected by votes sought in their own name and in the name of their party, the provisions of the Tenth Schedule should not be misused to stifle dissent, whether inside or outside the House. The anti-defection law works best as an insurance against violation of the people’s mandate for a party, but it cannot be made a tool to stifle all dissent.
📰 Aadhaar linking deadline to be extended to March 31, 2018
CJI orally assures setting up of larger Bench next week to hear Aadhaar-related cases
•Attorney General of India K.K. Venugopal on Thursday 7 submitted before the Supreme Court that the government intends to issue a notification on December 8, extending the deadline for mandatory linking of Aadhaar with services from December 31 to March 31, 2018.
•This extension would include 139 government subsidies, benefits or services, which are funded out of the Consolidated Fund of India as per Section 7 of the Aadhaar Act of 2016. The deadline for Aadhaar linkage for these services is currently December 31, 2017.
•The extension would, in all likelihood, include the mandatory linking of Aadhaar with bank accounts. Government lawyers in the Supreme Court said the extension of the deadline to March 31, 2018 in the case of Aadhaar-bank accounts linkage may be done in the next few days as this involved consultations with the Reserve Bank of India. So far, private citizens run the risk of being locked out of access to their own bank accounts if they do not link them with Aadhaar by December 31.
•Mr. Venugopal apprised a Bench led by Chief Justice of India Dipak Misra that the extension, however, does not include the linking of mobile phone numbers with Aadhaar. The deadline for this is February 6, 2018.
Judicial order
•He said it would require a judicial order from the Supreme Court itself to extend the deadline to March 31, 2018. This is because the government is complying with a February 6, 2017 order of the court in the Lok Niti Foundation case to tighten up the verification process of mobile phone users through Aadhaar linkage, citing national security.
•Mr. Venugopal's submissions came on an urgent mentioning made by advocates P.B. Suresh and Vipin Nair, joined by senior advocate Shyam Divan, for petitioners for an early hearing of their batch of petitions challenging the constitutionality of the Aadhaar scheme.
•Chief Justice Misra orally assured them that a Constitution Bench would hear them next week on the question of providing interlocutory reliefs. He indicated that it would be left to the Bench to give dates for the final hearing of the petitions.
•Mr. Divan has pressed for dates in the first or second week of January, immediately after Christmas holidays. He submitted that the government should promise that no coercive steps would be taken by the government or its agencies against Aadhaar holders till the court takes a final decision on the validity of the Aadhaar scheme.
•Mr. Venugopal said, “If that is the case, nobody will produce it [Aadhaar]. We have said that those with Aadhaar do not mind producing their Aadhaar.”
'Govt. stand ambiguous'
•Mr. Divan said the government’s stand was increasingly ambiguous on the plight of Aadhaar holders, who do not want to link their Aadhaar. He urged the court to address this issue immediately next week.
•Mr. Venugopal said the government was equally ready to argue the point.
•So, the focus of the hearing next week may likely be on the status of existing Aadhaar holders and whether the extension of the deadline would in effect confine to non-Aadhaar holders only.
•Advocate Zoheb Hossain, who assists Mr. Venugopal, said there were “different regimes”. That is, the government presumes that existing Aadhaar holders would not mind linking their bank accounts. Moreover, banks may even insist on Aadhaar for opening a new account, and existing Aadhaar holders would have to produce the document.
Panel report by February
•Mr. Venugopal said the Data Protection Committee, led by Justice Srikrishna, would submit its final report on sprucing up the Aadhaar Act to make it safe from data theft by February 2018.
•The Aadhaar petitions are in limbo in the Supreme Court since 2014.
•The mentioning on Thursday immediately follows a Constitution Bench wrapping up the Centre-Delhi government power tussle over the administration of the National Capital. The petitions have been challenged Aadhaar as a violation of the fundamental right to privacy.
•In October, the Centre joined forces with Mr. Divan for an early hearing of the Aadhaar cases. Mr. Venugopal said then that falsehoods were spread about Aadhaar linking, including how Aadhaar is a must for CBSE students to appear in Class 10 and 12 exams. A Constitution Bench may be set up to decide all the Aadhaar issues once and for all, he observed.
•The decision to set up a Constitution Bench comes despite Justice Rohinton Nariman’s separate judgment in the nine-judge Bench declaring right to privacy as a fundamental right. The order directed that the Aadhaar petitions to be posted for hearing before the “original” three-judge Bench.
•This ‘original’ Bench, led by Justice J. Chelameswar, had referred the petitions for hearing before a five-judge Bench, ehich found it necessary to first decide whether privacy was a fundamental right or not before hearing the Aadhaar petitions. It referred the legal question to a nine-judge Bench, which came out with the historic judgment in favour of the common man’s fundamental right to privacy against State intrusions.
•The nine-judge Bench verdict has a crucial bearing on the Aadhaar petitions, which argued that Aadhaar’s use of biometric details like fingerprints and iris scans violate bodily and informational privacy.
•The petitioners argue that mandatory requirement of Aadhaar for these schemes “constrict rights and freedoms, which a citizen has long been enjoying unless and until they part with their personal biometric information to the government”.
•The petitions have termed the Aadhaar Act of 2016 unconstitutional and contrary to concept of limited and accountable governance.
📰 FRDI Bill does not adversely modify depositor protections: Government
•In an attempt to clear the air about bank deposit protection under the proposed Financial Resolution and Deposit Insurance (FRDI) Bill 2017, the government on Thursday said the provisions in the Bill do not adversely modify existing protections granted to depositors at all, adding that the legislation would be far more depositor-friendly than those in other jurisdictions.
•“The FRDI Bill will strengthen the system by adding a comprehensive resolution regime that will help ensure that, in the rare event of failure of a financial service provider, there is a system of quick, orderly and efficient resolution in favour of depositors,” the government said in a statement on Thursday.
Misgivings
•“Certain misgivings have been expressed in the media regarding ‘bail-in’ provisions of the FRDI Bill,” the statement added. “The provisions contained in the FRDI Bill, as introduced in the Parliament, do not modify present protections to the depositors adversely at all. They provide additional protections to the depositors in a more transparent manner.”
•This statement comes against the background of increasing criticism in the media and on social media of the perceived nature of the ‘bail in’ clause, which allows a Resolution Corporation to cancel or modify the liabilities of a failing bank, something analysts have said could extend to bank deposits as well.
•“The FRDI Bill is far more depositor friendly than many other jurisdictions, which provide for statutory bail-in, where consent of creditors/depositors is not required for bail-in,” the statement added.
•The government added that the FRDI Bill will not limit the scope of powers for the government to extend financing and resolution support to banks, including public sector banks, saying that the Government’s implicit guarantee for public sector banks remains unaffected.
•“Indian Banks have adequate capital and are also under prudent regulation and supervision to ensure safety and soundness, as well as systemic stability,” the statement said. “The existing laws ensure the integrity, security and safety of the banking system. In India, all possible steps and policy measures are taken to prevent the failure of banks and protection of interests of depositors (e.g. issue of directions/prompt corrective action measures, capital adequacy and prudential norms).”
•The FRDI Bill was introduced in the Lok Sabha on August 10, 2017, and is currently under the consideration of the Joint Committee of the Parliament.
📰 World awaits ‘fair winds’ as Buenos Aires hosts trade talks
Food security, free movement of professionals top India’s wish list at WTO meet
•India is set to retain food security right and the protection of poor farmers and fisherfolk as top priorities at the upcoming meeting of the World Trade Organisation’s (WTO) highest decision-making body in Buenos Aires. The agenda for the multilateral trade negotiations would also include discussions on ways to advance e-commerce, investment facilitation and measures to help small firms participate effectively in the global marketplace.
•The WTO Ministerial Conference, to be held in South America for the first time, will see Argentina hosting the biennial event from December 10-13 in its capital, Buenos Aires. The city’s Spanish name translates as ‘fair winds’ — a meaning fitting well in this context, considering that WTO rules are meant to “establish what is fair” in global trade and “discourage ‘unfair’ practices.”
TFS proposal
•In addition to prioritising farm issues, India is keen to push forward its proposal on a Trade Facilitation in Services (TFS) Agreement. The TFS proposal aims to ensure relaxation of norms for movement of skilled workers and professionals across borders for short-term work. In its comments to the WTO on December 5, India proposed “a well-structured post-Buenos Aires meeting work programme on services” incorporating the TFS elements.
•Given the complexity of issues being discussed at the current round of negotiations, which had begun in 2001 in Doha to improve the trading prospects of developing nations, WTO Director-General Roberto Azevêdo said in a recent statement that “prospects for progress on specific issues in Buenos Aires are unclear. Members remain divided on many issues.” Currently, the WTO has 164 member-countries.
Public stockholding
•For India, a “permanent solution” to the issue of public stockholding for food security purposes is key. India is among the many countries which feel that the current WTO norms on public stockholding are very restrictive and prevent governments from meeting their people’s food security needs.
•According to a WTO note, “Members have agreed on the need to have an outcome on the public stockholding issue and have broadly converged on the elements that should form part of a permanent solution, including safeguards and transparency requirements. But their views differ on a number of elements such as product coverage, country coverage, information sharing, and preventing excess stocks from seeping into global markets.”
•Another outstanding agricultural issue India wants to see resolved is a Special Safeguard Mechanism (SSM) for developing countries. The SSM would permit developing nations like India to temporarily raise tariffs to counter import surges or price declines of farm items, and thereby protect their farmers. While India is learnt to be backing the Philippines’ proposal for adoption of a price-based SSM, a WTO note said, “In contrast, a number of members made it clear that such an outcome was unrealistic in the absence of a broader outcome in market access. A few members believe that the only feasible outcome on SSM at Buenos Aires would be a decision on the continuation of the SSM negotiations post Buenos Aires.”
•On e-commerce, a WTO note said the focus is on four areas: the future of the Work Programme (covering issues related to trade arising from global e-commerce), the moratorium (practice of agreeing at every Ministerial Conference to not impose customs duties on electronic transmissions, until the next Ministerial Conference), possible negotiations on e-commerce, and the setting up of a working group or other institutional structure. On the negotiations to limit harmful fisheries subsidies, India is batting for continuation of subsidies to small and subsistence fisherfolk.
📰 Capital crisis — on U.S. recognising Jerusalem as Israel’s capital
By recognising Jerusalem as Israel’s capital, the U.S. has endangered the peace process
•U.S. President Donald Trump’s decision to recognise Jerusalem as the capital of Israel, despite warnings at home and abroad, will worsen the Israel-Palestine conflict. Jerusalem, which houses holy places of all three Abrahamic religions and is claimed by both Israelis and Palestinians, is at the very heart of the dispute. Israel built its seat of power in West Jerusalem decades ago and occupied the East during the 1967 war, and later annexed it. Palestinians insist that East Jerusalem should be the capital of their future state. Even though there is a Congressional resolution in the U.S. urging Washington to relocate its embassy from Tel Aviv to Jerusalem, previous American Presidents avoided doing so given the legal, ethical and political implications of the issue, besides their commitment to a negotiated two-state settlement. By breaking with this consensus, Mr. Trump has in effect endorsed the Israeli claims to East Jerusalem. The decision will likely help him bolster his image among the Jewish lobby in Washington as well as American evangelical groups, his social base. Israel is obviously happy. Though Arab countries have voiced protest, they are unlikely to challenge an American decision. Mr. Trump’s move raises vital questions about U.S. diplomacy in the region besides putting new roadblocks in the peace process. It could be viewed as illegal as the Israeli claim that Jerusalem “complete and united” is its capital has been declared “null and void” by UN Security Council Resolution 478, which also asks member-countries to “withdraw diplomatic missions from the Holy City”. The U.S. is now acting against the spirit of this resolution.
•The Jerusalem gambit risks triggering another cycle of protests and repression in the Occupied Territories. In 2000, Ariel Sharon’s visit to the al-Aqsa compound in the Old City sparked the second intifada. Palestinians are expressing similar distress today. The peace process is not going anywhere, while Israel has gradually been tightening its occupation and building new settlements. Hamas has already called for a third intifada. In the longer term, Mr. Trump has just made the two-state solution more complicated. The Israeli-Palestine conflict can be settled only after an agreement is reached on the status of Jerusalem. The city was not part of Israel in the original 1947 UN plan to partition Palestine. Jerusalem, which was supposed to be ruled by an international trusteeship, was conquered by Israel. This is why the UN has not recognised it as Israel’s capital. With his latest announcement, Mr. Trump has endorsed the occupation. And in doing so, he has undermined the U.S.’s position as a neutral broker in Israeli-Palestinian talks. In short, he has dealt a blow to the peace process.
📰 Getting back on track
The GDP numbers are good but for growth to pick up further, we need to push private investment
•The national income numbers for the second quarter of 2017-18 has come as a relief. Gross Domestic Product (GDP) has grown at 6.3% year-on-year compared to 5.7% in the first quarter. The trend of declining growth rate quarter after quarter, which was seen in the last one year, has been reversed. This is a welcome sign. However, doubts and concerns persist for some.
Signs of revival?
•Is this a flash in the pan or is it a sign of a revival? Can we expect a further rise in the growth rate in the rest of the year? Some people are disturbed by the excessive focus on GDP and its growth rate. It is true that development has many dimensions and for a balanced view, one must look at all of them. Nevertheless, GDP is an important indicator of the performance of the economy, and a faster rate of growth is most often a prerequisite for rapid social development.
•What are the encouraging signs flowing out of the data on GDP for the July-September quarter? For this, we need to look at sectoral growth rates. The most encouraging sign is the performance of the manufacturing sector which grew at 7% against 1.2% in the previous quarter. This is really a turnaround, if we don’t dispute the number. In the corresponding quarter in the previous year, the growth rate was 7.7%. It appears that the manufacturing sector has come out of the disruptions caused by demonetisation and more particularly, the implementation of the goods and services tax (GST).
•Three other sectors which have grown strongly are the two subsectors under services — trade, hotels, etc., and public administration — besides electricity and other utility services. The trade sector grew by 9.9% and there is some indication by the Chief Statistician, T.C.A. Anant, that there could be some underestimation here.
•Public administration grew at 6%, much lower than the previous quarters but still reasonably high. In fact, it is a good sign that despite a lower growth of government expenditure, overall growth rate picked up. Some calculations show that excluding agriculture and public administration, the GDP growth rate in Q2 was 6.8% compared to 3.8% in Q1. The electricity sector has done well with a growth rate of 7.6% compared to 7.0% in Q1.
•The growth rate in agriculture was low at 1.7%. This was to be expected because the growth rate in agriculture was very strong the previous year. Even though the monsoon has been good, one should not expect a much stronger growth over a good year. The construction sector grew at 2.6% only. It is yet to recover from the impact of demonetisation. But that should not come as a surprise as demonetisation was directly meant to hurt the way business was being done in this sector.
Discouraging signals
•The most discouraging sign is the behaviour of the Gross Fixed Capital Formation (GFCF). It is true that GFCF at current prices grew at 6.3% in Q2 against 2.9% in the corresponding period last fiscal. This shows an improvement in terms of sentiment. However, as the growth rate of GFCF fell below the growth rate of GDP, the ratio of GFCF to GDP has fallen from 27.1% to 26.4%. This is truly disturbing. The fall must be due to a decline in private investment, as public investment during this period has done reasonably well. Without a rise in the private investment rate, sustained high growth cannot be maintained.
•There are some doubts about the high growth in manufacturing. In this context, analysts draw attention to the disparities between the rate of growth in the index of industrial production (IIP) and national income statistics. For example, in Q2 of 2017-18, manufacturing under IIP grew at 2.2%. There is, of course, a difference between the national income and IIP figures, the former dealing with value added and the latter with total production. Nevertheless, such sharp differences raise some concerns. In the new methodology in estimating value added in the manufacturing sector, corporate data play a major role. This approach is not incorrect. Though many committees, including the one headed by me, on savings have recommended the use of corporate sector data, some cross-checking is needed. The government has set up the National Statistical Commission to give credibility to the Indian Statistical System. It must make effective use of it. Perhaps a clear statement from the National Statistical Commission will help to put the doubts at rest.
The road ahead
•What do the numbers say about the future? After staying at the same level for two quarters, gross value added (GVA) has moved up. This may be broadly taken to mean that the decline in growth rate has bottomed out. Perhaps the glitches caused by GST have been overcome. That only amounts to the removal of a negative factor. Therefore, the immediate prospect is some improvement in the growth rate in the next two quarters. In the next two quarters, there is not much space for public administration to push the economy. Last year, a reasonable rate of growth was achieved because of the strong growth of government expenditure in all quarters. This year, at the end of the third quarter, fiscal deficit has almost reached the budgeted level. Even after allowing for some slippage, it is unlikely that government expenditure can act as a driver of growth. Thus, while one can expect the growth rate to pick up in the second half, any substantial increase depends on the behaviour of private investment which remains intractable.
•Yet another factor influencing growth is exports. India’s export performance has picked up in the current year. In terms of growth rate, it was doing reasonably well. During April-September, exports grew by 11.52%. But there was a setback in October with the export growth rate turning negative. However, the world economy is generally looking better this year. World trade in 2017 is expected to grow at 1.7% compared to 0.8% in 2016. Improvement in the external environment may help to raise our exports. This may be another positive factor influencing growth, even though it is difficult to say how strong it will be. All in all, it appears that the GDP growth for the year as a whole may be around 6.5%.
•For growth to pick up in a strong way, policymakers need to address the issue of declining investment rate. As pointed out already, the GFCF ratio has fallen to 26.4%. As late as 2014-15, the GFCF rate was 30.8%. Only when the reversal of this trend happens can we be assured of a sustained high growth of 7% plus. The excess capacity built up during the boom period must have been used up by now. A complex set of factors is keeping down the private investment rate. These factors need to be addressed in order to push up private investment, even as the pace of public capital expenditures, which have shown a pick up recently, is maintained.
