📰 Triple talaq is criminal offence
The new law has safeguards, including bail to the accused before the start of trial
•The Union Cabinet on Wednesday cleared an ordinance that makes talaq-e-biddat, or instant triple talaq, a criminal offence that will attract a maximum jail term of three years. President Ram Nath Kovind later in the day gave his assent.
•The new law, however, incorporates safeguards, including a provision for bail to an accused before the start of the trial.
•While instant triple talaq will continue to be a “non-bailable” offence — the police cannot grant bail at the police station — the accused can approach a magistrate for bail even before trial.
•“There was an overpowering urgency and a compelling necessity to bring the ordinance as the practice continued unabated despite the Supreme Court’s order last year,” Union Law Minister Ravi Shankar Prasad told reporters.
•He said 201 cases had been reported from across the country after the Supreme Court banned triple talaq in August 2017. Since January 2017, 430 cases had been reported until September 13 this year. “What is important is that the practice of triple talaq continues in spite of the Supreme Court having annulled it and the Lok Sabha having passed a Bill that is pending in the Rajya Sabha. We have all the evidence and a series of papers in this regard,” Mr. Prasad said.
•The Law Minister attacked the Congress, saying it was not supporting the Bill pending in the Rajya Sabha because of “vote bank pressures.” He also appealed to Congress leader Sonia Gandhi, BSP chief Mayawati and Bengal Chief Minister Mamata Banerjee to support it in the next Parliament session.
•The Congress hit back at the government, alleging that “an unnerved BJP cornered over incidents of gruesome rapes” and lack of security for women was seeking to divert the political agenda.
•“While punishing the husband, all the women’s groups have asked an obvious question: ‘Once husband is in jail, who will pay maintenance and/or subsistence allowance to the woman and children?” observed Congress chief spokesperson Randeep Surjewala.
•“As raised by the Congress party as also various groups, why should the woman and children not have a right to proceed against the estate i.e. movable and immovable property of the husband? Modi Govt has deliberately not made any such provision,” he alleged.
•Earlier, Mr. Prasad told reporters that a magistrate could exercise discretion to grant bail “after hearing the wife”. The magistrate would also have power to decide the quantum of compensation and subsistence allowance for the victim and her minor children.
•Another safeguard that had been added is that the police can lodge an FIR (first information report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage. Non-relatives or neighbours cannot lodge a complaint under the proposed law.
•The offence of instant triple talaq has also been “compoundable” or a provision that allows the wife to withdraw a complaint or approach the magistrate for a dispute settlement.
📰 Mizoram prepares for last batch of Brus
‘Despite opposition from some members’
•The Mizoram government is going ahead with its preparations for the repatriation of the last batch of over 30,000 Brus from Tripura to the State despite opposition by some members of the community, a senior official said on Wednesday.
•Additional Secretary for Home Department, Lalbiakzama, said that the meetings of district core committees on Bru repatriation concluded in Lunglei district on Tuesday.
To be resettled
•Meetings had also been held in Mamit and Kolasib districts, where the Bru families were proposed to be resettled, he said.
•The Bru refugees are currently living in six relief camps in North Tripura district.
•“We do not have any official information about the reported protests in the relief camps and the withdrawal of Mizoram Bru Displaced People’s Forum chief A. Sawibunga from the agreement made on July 3 with the Centre and State governments of Mizoram and Tripura,” Mr. Lalbiakzama said.
Final repatriation
•As part of the final repatriation of 32,876 Brus of 5,407 families by September 30, the Mizoram government has planned to resettle 4,199 Bru families in Mamit district near Mizoram-Bangladesh-Tripura border while Kolasid and Lunglei districts bordering Assam would host 824 and 384 families respectively.
•Unhappy with the outcome of the agreement and demanding a better deal, a group of Bru refugees in Tripura had forced the MBDPF chief to withdraw from the agreement on Monday.
📰 Guilt by association and insinuation
A recap of the Saibaba case shows just how urgently the UAPA needs to be read down
•In the 1950s, the U.S. was gripped by an anti-communist hysteria that is now known as “McCarthyism”, after Senator Joseph McCarthy, its chief propagandist. McCarthyism was characterised by blacklists and harassment, investigations and inquiries, dismissals from employment, and sometimes arrests and imprisonment of persons suspected of having left-wing sympathies. Many of these activities took place under cover of broadly-worded and vaguely drafted laws, and were sanctioned by judges who were hardly immune from the corrosive public mood at the time.
Pathological approach
•Senator McCarthy was ultimately brought down, and McCarthyism has since become a byword for persecution of dissent and state paranoia. However, noting the prevalence of McCarthyist cycles in the lives of contemporary democracies, the American legal scholar, Vincent Blasi, proposed taking a “pathological approach” towards the constitutional right of freedom of speech and expression. Prof. Blasi argued that courts must interpret the right to free speech so that it can “do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically.” This means that lawsand statutes allowing wide discretion to state agencies and to judges should be interpreted narrowly, and judicial doctrines marking the line between criminal conduct and the permissible exercise of fundamental rights should be clear and specific. In this way, he believed, the rule of law would act as a protector of individual liberty and a constraint upon state power in those times when the temptation to view dissent as treason was at its highest.
•The ongoing case before the Supreme Court, pertaining to the arrests of numerous activists on the ground of their having links with Naxalism, has brought to the fore the operation of a law that goes directly contrary to Prof. Blasi’s pathological approach: the Unlawful Activities (Prevention) Act. Much has been written about the UAPA’s draconian procedures: pre-charge sheet detention for up to six months, the near-impossibility of getting bail, and the inordinate length of an average trial, effectively leading to years of incarceration before a final acquittal. The problem with the UAPA, however, is not simply the manner in which it sanctions the long-term deprivation of personal liberty even before an individual is found guilty. Equally seriously, what the UAPA deems criminal is phrased in such broad and vague terms that a finding of guilt or innocence itself entails an extraordinary amount of discretion. This discretion is vested both in the prosecution (when it builds up its case against the accused), and in the trial judge who hears and decides the case.
The Saibaba judgment
•To understand how this works in practice, consider the recent, high-profile case of Professor G.N. Saibaba. In March 2017, the Sessions Judge at Gadchiroli convicted Prof. Saibaba — along with five other persons — under various provisions of the UAPA, and sentenced him to life imprisonment. The accusations against him included criminal conspiracy to wage war against the government, membership of the banned Communist Party of India (Maoist) and its “front organisation” (the Revolutionary Democratic Front), an intention to facilitate and abet the commission of terrorist activities, and so on.
•In order to prove Prof. Saibaba’s “membership” of the banned organisation and its “front”, the primary inculpatory material included, for example, interviews in which he had discussed the history of the communist movement, his attendance at a public meeting where government policy had been criticised and the release of political prisoners had been demanded, his offer (as part of a team of persons) to mediate between the government and the Maoists, and copies of various pamphlets and videos that already existed on the Internet. The Gadchiroli Sessions Court put great store by this material as demonstrating Prof. Saibaba’s membership of, and involvement in, the activities of the CPI (Maoist) and the RDF.
•In addition, the court also held that Prof. Saibaba operated under different pseudonyms while carrying out his work. It formed this opinion by noting that, in some incriminating letters, a Naxal operative called “Prakash” had been referred to as handicapped, and also that — at one point — his hard-disk had crashed. Since Prof. Saibaba was also handicapped, and one of the external hard-drives seized from him was not working, the court held that Prof. Saibaba was Prakash. Similarly, part of the evidence included a 2007 RDF letter claiming that Prof. Saibaba was handling certain parts of the country, and a 2013 CPI (Maoist) document claiming that an individual called “Chetan” was handling those parts. On this basis, it was held that Prof. Saibaba was also Chetan.
The fault in the UAPA
•No doubt, the Sessions Court’s analysis of the evidence, and the conclusions that it drew, will be tested by the appellate courts. However, the core issue is not how the judge examined the evidence before him, but how the UAPA facilitates and encourages judges to draw sweeping conclusions of criminality on the basis of thin and, at best, suggestive material. In his critique of the Saibaba judgment, the criminal lawyer, Abhinav Sekhri, points out three ways in which this happens. First, the UAPA does not define what a “front organisation” is, or what makes an organisation a “front” of a banned unlawful or terrorist group. The wording of the UAPA, with references to “any combination of persons”, is vague and unhelpful. Second, the UAPA uses a number of broad terms that overlap with each other. Section 20 criminalises “membership” of a terrorist organisation; Section 38 uses the terms “associating” or “professing to be associated” with a terrorist organisation; and Section 39 criminalises “support” to a terrorist organisation, and includes “inviting” support as well as organising a “meeting” to support the terrorist organisation. And third, the UAPA punishes both “unlawful activities” and “terrorist acts”, but the definitions tend to overlap (and, in the Saibaba case, convictions were returned under both definitions for the same conduct).
•Our criminal legal system is based upon the idea of individual responsibility: I am guilty for a clearly-defined offence that I have committed (either by acting or, in some cases, failing to act). The UAPA, however, takes us into the shadowy, McCarthyist world of banned organisations and “fronts” of banned organisations, “membership” and “association” (even a “profession” of association), “support” and “inviting support”. With terms like these, there is little wonder that even judges see pseudonyms seven years apart, conspiracies and code names, and the possession of literature, books and documents as damning. With its loose language and ambiguous words, the UAPA creates a climate in which the focus shifts from individuals and crimes to groups and ideologies.
•There have been some judicial attempts to push back against this climate. The Supreme Court has held, for example, that the word “membership” has to be restricted to active incitement of violence (and not possession of books or attendance at meetings). In a famous judgment granting bail to members of the Kabir Kala Manch, the Bombay High Court applied this standard, and specifically rejected the prosecution’s argument that it was the “ideology” itself that was contagious. However, such judgments are few and far between, and the dominant approach remains one that is antithetical to individual liberty, and deeply McCarthyist in character.
•Back in 1952, while debating the extension of the Preventive Detention Act, Syama Prasad Mookerjee protested that while preventive detention may be justified in some extreme circumstances, “you cannot just treat it as sandesh and rasgulla that you make it a normal part of the law of the land and start relishing it.” There is now enough evidence to suggest that our state has begun to relish the crackdown on dissent under the cover of combating terrorism. It is time for citizens and courts to ensure a dialling down. Interpreting the provisions of the UAPA through the lens of Prof. Blasi’s pathological principle might be a good start.
📰 Impatient move: On the ordinance on triple talaq
Lack of consensus in the Rajya Sabha is no reason to issue an ordinance on triple talaq
•The Union Cabinet’s decision to take the ordinance route to enact a diluted version of its law making instant triple talaq a criminal offence is a sign of undue impatience. This is a matter that required deliberation, especially after serious objections were raised to some provisions of the Bill passed by the Lok Sabha; also, there is an ongoing debate on the desirability of criminalising instant triple talaq. The Muslim Women (Protection of Rights on Marriage) Bill, as approved by the Lok Sabha, sought to give statutory form to the Supreme Court ruling of 2017 that declared talaq-e-biddat as illegal. The Bill made this form of divorce punishable by a three-year prison term and a fine. In the face of Opposition concerns, the government proposed significant changes to water down the provisions relating to the treatment of talaq-e-biddat as a criminal offence. Despite a notice for these amendments being given, the matter was not taken up in the Rajya Sabha in the last session due to a lack of consensus. When the Bill has been deferred to the next session of Parliament, it is not clear what exigency impelled the government to take recourse to the extraordinary power of promulgating an ordinance. Could it be the elections to some State Assemblies this year? Clearly, the Centre wants to demonstrate that it is espousing the cause of Muslim women. But the mere lack of consensus in the House is not a good enough reason to promulgate an ordinance. It could even amount to subversion of the parliamentary process, as the Bill has been passed in one House and the other is likely to consider it in an amended form.
•However, the changes to be introduced through the ordinance do address some of the reservations about the original Bill. The first makes the offence cognisable only if the woman, or one related to her by blood or marriage,against whom triple talaq has been pronounced, files a police complaint. Second, the offence has been made compoundable, that is, the parties can settle the matter between themselves. And third, it provides that a magistrate may grant bail to the husband after hearing the wife. These amendments will not only restrict the scope for misuse by preventing third parties from setting the criminal law in motion against a man pronouncing instant triple talaq against his wife; they will also leave open the possibility of the marriage continuing by allowing bail and settlement. But the core issue that arises from the proposed law remains: whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. Also, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist, and it is somewhat self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.
📰 With PM Modi, Afghan President Ghani raises issues of IS, Pakistan terrorists
Kabul deported Indian national who travelled to Afghanistan to join IS: NIA
•Afghanistan President Ashraf Ghani on Wednesday discussed with Prime Minister Narendra Modi the growing presence of the IS (Da’esh) in Afghanistan, and the continuing influx of terrorists from Pakistan, during his day-long visit to Delhi, government sources said.
•Meanwhile, the National Investigation Agency (NIA) has announced that Kabul has deported an Indian national who had travelled to Afghanistan in an attempt to join the Islamic State.
•According to a statement from the NIA, the Afghan government deported Nashidul Hamzafar, 26, who had illegally entered the country to join the Islamic State in 2017. He had reportedly travelled from India to Afghanistan via Muscat, Oman and then through Iran, and was detained by the Afghan security forces shortly after.
Talks with Taliban
•At a reception hosted by think tank India Forum later, Mr. Ghani said it was necessary to separate such external elements from the Taliban, which, he said, must be engaged in a peace process.
•“Taliban are part of our society. Foreigners, members of Da’esh, these international networks are different. So we need to devise a way to separate what is internal to what is regional and global,” he said, making a strong pitch for talks with the Taliban, something India had traditionally opposed.
•An official said New Delhi would back the Afghan government on its decision to engage the Taliban in talks that are “Afghan-owned, Afghan-led.” Mr. Ghani said the talks had the support of the Afghan people, which was seen during the Id ceasefire in June this year, which the Taliban joined, a week after attacks had seen 1,000 people die.
•“During the ceasefire, over 30,000 Taliban came to the cities. Were they greeted with hatred? Were they lynched? Were they shot at? No. You saw scenes of all Afghans join in the celebrations and accepting each other. The most important thing we learned from the ceasefire is that Afghan people as a nation are willing to forego the past in order to gain the future,” President Ghani said.
•Peace with the Taliban was important so that security forces could concentrate on fighting other terrorist groups like the Islamic State, he said.
Siege of Ghazni
•During his meeting with Mr. Modi, President Ghani made a special mention of the siege of Ghazni city in August where a sizeable number of foreign fighters had fought alongside the Taliban. “He said at least 100 attackers of Ghazni came from Pakistan and they were identified as Pakistani nationals,” said the government source.
📰 ‘S. Korea wants to elevate ties with India’
Expert says Seoul wants to strengthen ties on economic and strategic fronts
•One of the major foreign policy initiatives of President Moon Jae-in of South Korea is the government’s ‘New Southern Policy’, with a goal of deepening ties with South East Asian nations as well as India and building an inclusive regional architecture in Asia, said an expert.
•In an interaction with a group of Indian journalists, Choe Wongi, head of the Centre for ASEAN-India Studies at Korea National Diplomatic Academy, said there were similarities “between our approach and that of India towards regional issues”.
Concerns about BRI
•“India wants to be more vocal about maritime security in the region. We are aware of it. There are increasing activities by China in the Indian Ocean region. There are concerns about the BRI (Belt and Road Initiative)... Nobody is appreciating what they are doing in the South China Sea. But a confrontational approach is not good,” he said. “China is... the largest trading partner of most countries in Asia. Whether we like China or not, we have to live with it,” said Mr. Choe, who’s involved in training South Korean diplomats.
•He added that South Korea’s main policy objective was not to get subsumed into the U.S.-China rivalry in Asia. “The U.S. Indo-Pacific policy is simple. We have to play by the rules. There are no exceptions. Even China is not an exception... [I]f the U.S. takes an aggressive approach, we can’t be part of it. That’s the message from regional countries. What we need is an inclusive regional architecture in Asia.”
•He added that South Korea, as part of this strategy, wants to build stronger ties with ASEAN and India on multiple fronts — economic, bilateral and strategic. “India is the main partner in expanding our economy in the South. Rising unemployment is a major problem. The economy is in a stagnant state. We have to expand and diversify our economic portfolio,” Mr. Choe said.
•India and South Korea have agreed to boost bilateral trade to $50 billion by 2030 from $20 billion now.
•At the diplomatic level, Mr. Choe said Seoul wanted to elevate ties with India to the level of those with four other major powers around the Korean Peninsula — the U.S., China, Russia and Japan. Asked about South Korea’s approach towards the BRI, he said: “We welcome BRI. But China is pursuing BRI projects unilaterally or bilaterally. That’s the problem... We want BRI to be more open and transparent.”
•Hyun Oh-Seok, a former Finance Minister of South Korea, said countries that are part of the BRI projects and borrow money from China should be cautious. “Recipient countries should be cautious with China. You can blame China. But the recipient countries should also be blamed,” he said, referring to allegations of debt trap weaker countries get into while welcoming China to build big-ticket infrastructure projects. “There has to be some kind of rules to deal with debt trap, etc. We have to set the rules,” he said.
•Mr. Hyun, who’s an adviser at the Beijing-led Asian Infrastructure Bank, said India has huge potential to play a bigger role in international politics. “It might play a bigger role in the coming years.”
📰 North ready to abolish missile sites if U.S. takes matching action: South Korea President
Speaking at a news conference after summit talks in Pyongyang, Moon Jae-in and North Korean leader Kim Jong-un said they agreed to turn the Korean peninsula into a “land of peace without nuclear weapons and nuclear threats”.
•North Korea had agreed to ”permanently” abolish its key missile facilities in the presence of foreign experts, and is willing to close its main nuclear complex if the United States took reciprocal action, South Korea's President Moon Jae-in said on Wednesday.
•Speaking at a joint news conference after their summit talks in Pyongyang, Mr. Moon and North Korean leader Kim Jong-un said they agreed to turn the Korean peninsula into a “land of peace without nuclear weapons and nuclear threats”.
•Mr. Kim said he would visit Seoul in the near future, in what would be the first-ever visit to the South's capital by a North Korean leader.
•They also agreed to pursue a bid to co-host the 2032 Summer Olympic Games, and actively work together in other international competitions including the 2020 Olympic Games in Tokyo.
•The latest summit will be a litmus test for stalled negotiations on the North's nuclear programme between Pyongyang and Washington, and for another meeting Mr. Kim recently proposed to U.S. President Donald Trump following their historic meeting in June in Singapore.
•Mr. Moon was seeking to engineer a proposal that combines a framework for the North's denuclearisation and a joint declaration ending the 1950-53 Korean War.
•Mr. Kim pledged to work toward the “complete denuclearisation of the Korean peninsula” in his first encounter with Mr. Moon, and at his summit with Mr. Trump in June.
•But discussions over how to implement the vague commitments have since faltered, with Washington demanding concrete action towards denuclearisation by North Korea before agreeing to a key goal of Pyongyang - declaring an end to the war.
•North Korea has given no indication it is willing to give up its nuclear arsenal unilaterally and is seeking relief from crippling international sanctions.
•Pyongyang has offered to stop nuclear and missile tests but did not allow international inspections for a dismantlemnt of its only known nuclear site in May, drawing criticism that its action could not be verified and could be easily reversed.
Washington's hope
•U.S. State Department spokeswoman Heather Nauert told a news briefing on Tuesday that Washington hoped the latest inter-Korean summit would bring about “meaningful, verifiable steps towards the denuclearisation of North Korea”, and called it a “historic opportunity” for Mr. Kim to follow through on commitments he made with Mr. Trump.
•Later on Wednesday, Mr. Moon's delegation is scheduled to tour the Mansudae Art Studio, the North's largest producer of art where state artists build statues and produce propaganda at a sprawling complex in Pyongyang.
•The institution was sanctioned by the U.N. Security Council last year as part of global efforts to rein in Pyongyang's nuclear and missile programmes by drying up its revenue sources.
•Mr. Moon is also scheduled to watch the North's signature “Brilliant Fatherland” Mass Game, which was reintroduced this year following a five-year hiatus, with a formation of glowing drones, lasers and stadium-sized gymnastics shows designed to glorify the country.
•The United States is pressing countries to strictly observe international sanctions, which will likely be a key theme when Secretary of State Mike Pompeo hosts a Security Council meeting on North Korea on Sept. 27 on the sidelines of the annual U.N. General Assembly.
•This week's summit is intended to craft concrete steps to implement the Panmunjom Declaration, named after the border village where they first met, officials in Seoul said.
“Military accord”
•The two Koreas also adopted a separate military accord aimed at preventing armed clashes between the old foes, which are technically still at war because the Korean War ended with a truce, not a peace treaty.
•The neighbours have already agreed to withdraw some guard posts and equipment, in a bid to transform the world's most heavily fortified border into a no-weapons area.
•Pyongyang says it has destroyed its main nuclear and missile engine test site, and has halted atomic and ballistic missile tests, but U.S. officials and analysts believe it is continuing to work on its weapons plans clandestinely.
•South Korea is pinning high hopes on Mr. Kim's remarks to Mr. Moon’s special envoys earlier this month that he wanted to achieve denuclearisation within Mr. Trump's first term in office ending in early 2021. Mr. Kim, at the same time, stressed that Washington must reciprocate his initial “goodwill” gestures.
•Anwita Basu, an analyst at the Economist Intelligence Unit, said, “While Moon has expressed his desire to agree on a concrete plan on denuclearisation, we believe that the two nations still differ on this concept.”
•In previous, failed talks, North Korea has said it could consider giving up its nuclear programme if the U.S. provided security guarantees by removing troops from South Korea and withdrawing its so-called nuclear umbrella of deterrence from the South and Japan.
•U.S. officials involved in the latest negotiations have said North Korea has refused to even start discussions about defining denuclearisation.
📰 Cabinet clears ₹3,466 crore dam improvement project
198 existing dams in seven States will benefit
•The government has approved a 65% hike, and extended by two years, a project to improve the stability and working of dams in 11 States. The Cabinet Committee on Economic Affairs (CCEA), chaired by Prime Minister Narendra Modi, approved the Dam Rehabilitation Improvement Project (DRIP) project on Wednesday. Out of the ₹3,466 crore cleared, ₹2,628 crore would be funded by the World Bank and ₹747 crore by the States and Implementing Agencies (IAs), and the balance ₹91 crore by the Central Water Commission (CWC).
•Originally, the total cost of DRIP was ₹2,100 crore with the States expected to fund ₹1,968 crore and the Centre ₹132 crore. Initially, the six-year project commenced on April 18, 2012, with a scheduled closing on June 30, 2018. This has now been extended to June 2020. A dam safety Bill that sets directives on how the States and the Centre ought to have an institutional mechanism to better manage dams is still to be discussed in Parliament.
•“The (DRIP) project will improve the safety and operational performance of selected existing dams and mitigate risks to ensure safety of downstream population and property. The primary beneficiaries are both urban and rural communities dependent on reservoir and downstream communities, who are prone to risk associated with dam failure or operational failure” said a press statement accompanying the decision.
Six monthly reviews
•There are 198 existing dams in Kerala, Madhya Pradesh, Odisha, Tamil Nadu, Karnataka, Jharkhand (Damodar Valley Corporation) and Uttarakhand (Uttarakhand Jal Vidyut Nigam Limited) that would benefit from the project. In lieu of the funds, dam managers would have to adhere to recommendations by the CWC as well as subject themselves to six monthly reviews by the World Bank and an audit by an independent French agency, said an official in the Union Water Ministry, who did not wish to be identified.
•Kerala, which saw devastating floods and questions raised on the management of its dams, will see 16 of the reservoirs managed by its Water Resources Department and 12 by that State’s Electricity Department, get funded under the DRIP programme to the tune of ₹ 514 crore.
•“This money was locked in and sent for approval before the floods. Moreover, the Mullaperiyar dam — located in Kerala and owned by Tamil Nadu — isn’t one of those to be rehabilitated,” the official quoted above added.
📰 Preparing for the floods
Kerala has a unique opportunity to put in place climate-resilient water management
•The recent floods in Kerala saw heroic rescues from raging rivers swollen by unprecedented rains — and the opening of shutters of major dams. There were allegations of ‘human blunders’ while the government said it could have done little else. The truth is that India has not learnt its lessons from recent floods, in Assam, Bihar and Tamil Nadu, and without addressing the underlying causes, history will repeat itself; if not in Kerala, elsewhere.
•Three factors stand out.
Reluctant dam managers
•In Kerala, as elsewhere, more flooding was caused by emergency releases from dams that were full. Despite forecasts of more rain, there were no controlled releases. World Bank analysis while preparing the National Hydrology Project (NHP) in 2015 showed that although weather forecasts are more accurate now, dam managers (especially bureaucrats) are reluctant to authorise advance controlled releases.
•This is partly because operating schedules are not based on predicted rainfall. These usually specify that dams must be filled up as soon as possible (because rain is not guaranteed later in the season) and must be full by the end of the monsoon (for the summer). But the world has moved to dynamic reservoir operations based on weather forecasts. While Bhakra dam’s managers switched to this after much persuasion, others in India have not because of the memory of notoriously inaccurate weather forecasts.
•The political leadership and the bureaucracy too do not tolerate mistakes. Therefore, dam managers are reluctant to risk their careers and order controlled releases in advance.
•The NHP is improving hydro-meteorological and weather forecasting systems across India but unless dam managers feel free to take credible risks, these will not be used for dynamic reservoir operations. A ‘plan B’ is also needed for water scarcities such as basin-scale water modelling and analysis supporting contingency planning (inter-basin transfers, linking canals to intermediate storage structures, and water re-allocation to higher-priority uses). None of these exist in India today.
Blocked waterways
•In the badly-affected Tiruvanvandoor area of Chengannur in Kerala, none of the 23 small streams (Pravinkoodu to Tiruvanvandoor area) and a larger stream (thodu) called Madanthodu exist today, having been filled-in and encroached. This caused the Pamba river to flow on the roads and wreak havoc. This is the story across Kerala: roads, railway lines and housing colonies being laid and built without regard for natural water ways, but with formal planning permission. The State Department of Inland Waterways focusses on large waterways while district and local panchayats have no mandate or interest in maintaining these to reduce flood risk. The State Disaster Management Agency also ignores them.
•River-basin specific flood inundation modelling with climate change simulations is a necessary first step to understand the full impact of potential unprecedented flooding. This includes worst-case scenarios such as twice the maximum historical rainfall, as was recently done by a Department for International Development, U.K.-supported project for the Mahanadi in Chhattisgarh. The second is for the local community to co-manage water resources with the government (by planning intermediate storage, drainage and emergency responses). The government cannot do this on its own, being an enormous task, as a seven-year European Union-funded project in Rajasthan on local integrated water resource management found.
•There must be massive awareness generation, to ensure that airports are not extended into river floodplains (an example being Chennai airport and the Adyar river), that road culverts let storm water through without hindrance, and that excess water is not blocked but allowed to saturate the soil strata (especially of sloping land) so that it does not cause mudslides (including the urul pottal that devastated hillsides in upland Kerala).
Unprepared populations
•Despite India being a signatory to the UN’s Sendai Framework for Disaster Risk Reduction, little has changed on the ground. Disaster management has improved and heroic efforts were made in Kerala to reduce human/animal casualties. Information was also shared through social and other media such as precautions to be taken after the flood. But most people were caught unawares by the ferocity of the flooding. Had such information been disseminated and absorbed earlier, disaster risks could have been greatly reduced, and everyone may well have coped better.
•Most modern cities have elaborate flood management plans (underground flood basins and spare riverbeds in the Netherlands). But India cannot even protect known flood-plains, tank foreshores and lakes peripheries from encroachment and illegal construction.
A road map
•Addressing these and other issues mentioned such as deforestation, encroachment and unplanned construction are self-evident priorities when development is viewed using the lens of climate-resilient water management (CRWM). A 2018 paper on an operational CRWM framework for South Asia defines three criteria for this.
•We need to use the best-available information for decision-making. This means improved hydromet systems and weather forecasts, robust modelling of catchment water flows with simulations of different climate-related scenarios, international norms for safety factors and building codes.
•We must prioritise buffers, flexibility and adaptability. This includes reviewing safety criteria of dams and canals, re-building these with higher safety factors, creating new intermediate storages, and introducing dynamic reservoir management.
•Finally, we must reduce the vulnerability of the poor who pay a disproportionately higher cost in calamities.
•Kerala has a unique opportunity to plan its future with a renewed awareness of the potential impact of climate-linked events. With more such extreme climate events likely in the future, it is better to be prepared than to be caught unawares — again.
📰 Upping the ante: On the U.S.-China trade war
The U.S. ratchets up the trade war with China, but to what end?
•The rules-based world order for international trade appears to be in for a rougher ride yet after the administration of U.S. President Donald Trump announced this week that it would be slapping $200-billion worth of Chinese exports with 10% tariff, ratcheting it up to 25% by the year-end. In the latest round of the ongoing trade skirmishes between the world’s two largest economies, almost 6,000 items will be hit by the new U.S. tariffs, from September 24 onward. Typical of Mr. Trump’s aggressive approach on “unfair” trade policies, the tariff announcement came with the warning, “If China takes retaliatory action against our farmers or other industries, we will immediately pursue phase three, which is tariffs on approximately $267 billion of additional imports.” Less than 24 hours after the U.S. announcement, China said it would apply retaliatory taxes to the tune of $60 billion. Given that over the summer both countries started taxing $50-billion worth of the other’s imports, if Mr. Trump makes good on his threat of additional tariffs, all Chinese imports to the U.S., nearly 4% of world trade, will come under the tax net. On both sides of the tariff war, economic pain is likely to be widely distributed.
•There are two questions that this escalation raises. First, what is the likely trajectory of this conflict? Economists concur that in the near term the trade war will cause a shrinkage in bilateral trade volumes. Businesses in the U.S., China and nations with close trade and investment links to the two countries, such as those in Europe, will find themselves in considerable economic trouble. Over the longer term, a reversal of the globalisation of supply chains may take place — perhaps that is the very aim of the Trump administration. However, the U.S. could have gone about this by applying its resources through bodies such as the World Trade Organisation to penalise China for overproduction, dumping overseas and excessive restrictions on market access. Second, what impact will this trade war have on the future of the hyper-connected world that we live in today? China, and indeed any other nation that trades with the U.S., may seek alternative markets and trading partners if the American government persists with its retreat into economic isolationism. Yet, even if countries can avoid some of the punitive costs of this battle, global institutions such as the WTO and a myriad other multilateral rule-making bodies will wither away, losing their authority. Philosophically, this would fly in the face of the foundational economic principles regarding division of labour and comparative advantage. This would, in the much-longer term, be a loss for the world community of nations, many of whom have worked hard to establish and credentialise the post-World War order precisely in order to stave off the dark forces of parochialism that engendered the horrors of that period.
📰 Bringing data under the rule of law
The debate on data localisation must not be reduced to a good-bad binary
•For long, Internet activists considered the Internet as being beyond law, politics and governments. J.P. Barlow made the famous Declaration of Independence of Cyberspace in 1996. It was fine when this phenomenon was just shaping up and challenging established institutions. But with the Internet and data becoming central to new social and economic institutions, can they still be kept sheltered from the rule of law? It is the law that provides people, especially the weaker sections, various protections and ensures justice. In a digital society, as data mirror and help organise all aspects of social, economic and political life, data need to be subject to the rule of law.
•For the law to apply to something, it should normally be able to access and act upon it. Agencies, for instance, may require access to data to ensure that someone who criminally harmed another can be punished. Data are important requirements for various regulations. Actors over which the Indian law has no reach should not be able to use our data to harm us through surveillance or informational warfare (including election manipulations). Our data should be protected from such foreign entities.
•As privacy is a right, it is primarily the state’s responsibility to protect our personal data. But it can mostly do so only if the data are within its reach. There are also great dangers regarding privacy from state agencies themselves. Such privacy can only be ensured by invoking and strengthening the protective and corrective powers of the state, including the judiciary and new data protection-related institution(s). It will be useful for the new data protection authority proposed by the Srikrishna Committee to actually be a constitutional authority.
Beyond the reach of law
•Data, and digital intelligence derived from it, are universally acknowledged as the key economic resources in the digital society. Who owns, controls and accesses data determines who gets what piece of the overall economic cake. The European Union, France, the U.K. and some current policy initiatives in India are proposing national data-sharing regimes and data infrastructures. This is especially applicable to data taken from public spaces and data that are generated by users on digital platforms, a category called ‘community data’ by some current Indian policy texts. Such regimes and infrastructures again require the law to have access to potentially shareable data.
•A lot of privately held digital data are needed for policymaking and governance. An example is the need for commuting data, mostly with companies like Uber, for smart traffic planning. Many similar requirements will emerge in all sectors. Some countries are exploring the idea of mandating access to such public interest data.
•The law cannot achieve all these basic objectives if data can easily escape to any part of the world, beyond its reach. Countries are therefore developing regulations for storage, processing and cross-border flow of data.
•Global social, cultural, economic and political integration must be promoted, but without sacrificing the effectiveness of nationally organised ‘rule of law’. Free flow should be the norm for general information and knowledge, with minimal conditions. But data today cover far more areas. Treaties should be explored so that data can flow between consenting jurisdictions with guarantees for application of corresponding laws of the country of origin, as the EU has done with its digital single market.
•Employing a liberal regime, the flow of data not considered important for concerned laws should not be hindered. Necessary provisions and exceptions need to be shaped for privately owned data which are the kind mostly involved in software and BPO services. Entities dealing with data quantities below a certain threshold may be exempted. All data flow regulations carry such mitigating provisions, including those proposed in India now.
Democracy is local
•However, to seek unchecked global flows of all kinds of data in emerging ‘datafied’ societies is irrational. It would mean withdrawal of the state from key social and economic roles that it traditionally performs. By default, digital societies and economies get ruled globally by the most powerful corporations and governments, which work in a mutually reinforcing manner. Data localisation attempts to bring back the rule of law to our digital and ‘datafied’ existence.
•All major countries are working on some kind of data localisation proposals. Germany, Indonesia, South Korea, Russia and China already have various kinds of data localisation regimes. The EU and the U.S. also localise or put very strict conditions on cross-border flow of some kinds of data.
•Global digital corporations live off global data. It testifies to their discursive might that when it comes to discussions in developing countries like India, the term ‘data localisation’ gets invariably presented as imbued with inherent moral, political and economic evil — a profanity that only state surveillance-minded and economic protectionist people can utter. At the numerous non-governmental meetings currently being held in Delhi and other places on data-related legal issues, any mention of data localisation, other than in the most critical terms, immediately attracts strong morally disapproving glances.
•To moral reprobation is added the cost-of-compliance argument. While this should be minimised, there is always some cost to maintaining the rule of law. There are some accumulated jump-start costs while shifting from a largely lawless regime to the rule of law in the digital space. These must be borne if we are to build the foundations of a rule of law-based, fair and just digital society. This task will only keep getting more difficult, and more expensive.
A genuine political debate
•The national debate on data localisation needs to integrate a wide range of social, political and economic perspectives. Legal and democratic requirements for local data regimes have to be appropriately balanced with the values of global digital integration. Interests of a transnational global elite need to be balanced with those whose livelihoods are attached to precarious local economies. Fears of state surveillance have to be balanced with the imperatives of a strong enough state that can protect people’s interests.
•Data are of many kinds — there is news and information; personal, community and corporate data; data concerning common business activities, military, banking, health, education and agriculture; and so on. Some of these data are very sensitive, some are needed for effective regulation, some for governance and policymaking, and some for economic development, infrastructure and sharing. It is therefore a matter of what kind of data requires what kind of regulatory regime – localisation, global free flow, or various shades of grey in-between, rather than a sterile binary of whether data localisation is good or bad, which is what the debate has been reduced to unfortunately.
📰 The death of a tigress
The SC has approved a shoot-to-kill order for a tigress. Is the objective to make forests safe for humans, or for wildlife?
•Earlier this month, the Supreme Court dismissed the plea filed by Earth Brigade Foundation (EBF) to overturn the order to shoot a five-year-old tigress from Pandharkawada in Maharashtra. This tigress, which is raising two cubs, has been accused of killing — and even eating — more than a dozen people over the last two years.
•The EBF’s main contention is that all the kills have taken place within designated forest areas or on their periphery. This begs the question, what is the objective? Is it to make forests safe for humans, or for wildlife? This degraded forest is home to spillover tigers from the nearby Tipeshwar Wildlife Sanctuary. Human encroachment is rampant — it disrupts contiguity of the habitat and multiplies the chances of man-animal conflict.
•The forest has scant food for wild herbivores. Alarmingly, there is heavy pressure of illegal grazing, with livestock consuming a huge proportion of the food and water meant for wildlife. Locals take cattle and goats “on contract” from rich owners to graze them illegally in the forest.
•The EBF’s case is not to save one tigress, but to keep wild habitats safe for wildlife to ensure their long-term survival. The Forest Department, mandated to preserve forests and their denizens, appears to be apathetic towards the basic tenets of habitat management. Citing human and political pressure, wildlife coming into conflict situations is regularly eliminated. Instead of unequivocally standing up for the forest and its denizens, why choose the path of least resistance by shooting dead a tigress, terming her a “man-eater”?
•The term “man-eater” is the legacy of the British Raj. However, it is now used whenever it is necessary to scare people, including those who rule on what is just, into demanding the killing of a tiger/leopard involved in a man-animal conflict. The National Tiger Conservation Authority protocols say, “Human beings killed due to chance encounters may also be eaten by the animal [especially an encumbered tigress in low prey base area] … [This is] not sufficient for classifying a tiger/ leopard as a ‘man-eater.’” The Pandharkawada situation is a textbook example of this as it involves an encumbered tigress (supporting two cubs), chance encounters (killings in the forest/forest boundary), and bodies consumed in a low prey-base area (the degraded forest).
•Even when a wild animal needs to be shot dead, the Maharashtra Forest Department seems to prefer to invite a private hunter, Shafat Khan, instead of calling upon personnel from within the government.
•With the court upholding the shoot order, this tigress, who has done nothing different from any other mother who would kill to protect her children and her home, is paying for it with her life.
📰 Rationalisation of CS schemes mooted
Many Centrally Sponsored Schemes are boutique in nature, with ‘dubious’ outcomes: N.K. Singh
•Several Centrally Sponsored Schemes (CSS) are just boutique in nature with ‘dubious’ outcomes, the 15th Finance Commission of the Union Government has noted while calling for urgent rationalisation of the CSSs.
•The pruning of such schemes would give the State governments greater measure of flexibility in financing, Commission Chairman N.K. Singh said here on Wednesday.
‘High costs incurred’
•“There are far too many of these boutique schemes with dubious outcomes in the States. Even the ones which are operational do not justify the high establishment cost being incurred on them,” he told reporters. The commission concluded its two-day consultations with the Maharashtra government, trade, industry leaders, economists and politicians. Among some core observations it made, the commission noted the general status of public financing in States remains ‘stressed’ owing to payments made towards the Seventh Pay Commission, loan waivers given to farmers and debt restructuring under the UDAY scheme. “The commission is looking at ways to restrict some of these schemes even as the Reserve Bank of India has pointed towards the stress on State finances as result,” he said.
Mergers in 2013
•The proliferation of the CSSs was debatable until the Ninth Five-Year Plan, when the total number of schemes shot up to 360, accounting for about 60% of Central assistance. In 2013, the Planning Commission announced the merger of several CSSs, reducing the count to 66. These were further pruned to 27 following the report of a committee of CMs led by Shivrajsingh Chauhan recently.
•State governments have already demanded an increased flow of untied fiscal resources in place of tied resources that come with CSS. Mr. Singh said Maharashtra was no different and has raised the need for larger devolution even though the 14th Finance Commission had recommended devolution of a significantly higher share of 42% of the divisble pool to States compared with the 32% recommended by the Thirteenth Finance Commission.
•“They have suggested a new formula for this while questioning the flow of devolution funds,” he said.
